Friday, 5 June 2015
JAMIL MUKULU CAN'T GET JUSTICE UNDER THE MUSEVENI REGIME
Who is Jamil Mukulu?
Jamil Mukulu is a Ugandan, Muganda by tribe and a Muslim. He came to prominence in the early 1990s when as a member of the Tabliq sect became one of the outspoken Muslims over the role of Museveni in the killing of Muslims in Mbarara in 1979 and Butambala in 1983. In 1991 the Tabliq sect had had a bloody confrontation with Museveni's security forces commanded by James Kaziini around the Old Kampala Mosque over Muslim leadership wrangles. Jamil Mukulu went into hiding until in 1996 when the ADF rebels struck western Uganda and Jamil Mukulu was alleged to be the leader of the group. With bases in eastern Congo, the ADF managed to survive and in the late 90s, it was about getting accepted in some parts of Bunyoro, Rwenzori and Ankole regions. The rebel outfit is an alliance of a couple of rebel groups fighting the Museveni dictatorship notably NALU hence tagging it to Islamic fundamentalism is a wrong diagnosis. ADF is alleged to have carried out massacre of innocent civilians in both Congo and Uganda notably the alleged massacre of students of Kichwamba Technical Institute in western Uganda. Recently, it was linked to the spate of assassinations of Muslim Clerics in Uganda in which he is accused with others including the Australian based Cardiologist Dr Agrey Kiyingi who is intending to run for the Presidency against Museveni.
Uganda had initiated an Interpol arrest warrant for Jamil Mukulu and the USA had placed him on a sanctions list. Around April 2015 Jamil Mukulu was arrested in Tanzania by the Tanzanian authorities on other grounds since it had not identified him as Jamil Mukulu.
Extraction is a formal legal process by which persons accused or convicted of crime are surrendered from one state to another for trial or punishment. It takes place in accordance with bilateral treaties or multilateral conventions entered into by sovereign states. It is a form of international cooperation in criminal matters intended to promote cooperation in enforcement of criminal justice. However, any extradition law must contain appropriate safeguards for individuals where they would in the event of extradition suffer manifest injustice and oppression.
Many countries have domestic laws governing matters of extradition. In Uganda it is the Extradition Act of 1964 that provides for matters of extradition. In Tanzania, there are three pieces of legislation that deal with matters of extradition thus:
- The Extradition Act Cap 368
It applies only where there is extradition agreement with the requesting country. It lists extraditable crimes i.e Murder and the related offences, injury to person amounting to homicide, abduction, rape and similar offences, narcotics and drugs, damage to property, falsification of currency and similar offences, forgery, misappropriation, fraud, piracy, slave dealing etc. However, it gives exception if the extradition fugitive has committed crimes in Tanzania or is serving a sentence. The Act strictly prohibits the extradition of political offenders. The request for surrender of the fugitive criminal is made to the Minister by a diplomatic representative or by a Consular officer of the requesting country. The Minister may signify a Magistrate that a request has been made and require him/her to issue a warrant of arrest and detention in respect of the fugitive criminal. However if the offence is of a political nature the Minister may refuse and in the same regard, the Magistrate must adjourn the case and refer the proceedings to the Minister pending his decision.
- The Fugitive Offenders (Pursuit) Act 57
This Act arises from the East African Community (EAC). The Act enables Police officers of contracting states to pursue within Tanzania fugitive offenders from such countries. In this Act extraditable crimes are those identified under the Extradition Act Cap 368. The requesting country must have resspirocal provision for it to exercise that right. Under the EAC treaty Article 124 (5), member states agree to enhance cooperation in handling of cross border crime and provision of mutual assistance in criminal matters, including the arrest and extradition of fugitive offenders.
- Mutual Assistance on Criminal Matters Act Cap 254
This Act arises from the Commonwealth member states. It provides for mutual assistance in criminal matters between Tanzania and any Commonwealth member state. There must be an existence of an extradition pact that binds them in the commonwealth family together with an arrest warrant from Interpol or from the requesting country.
In all the Acts, there must be a functional extradition treaty and the fugitive criminal offender is protected from extradition if the offences are of a political nature and not of criminal act. The criminal fugitive suspect has a right of appeal.
Uganda pushes for extradition
During May 2015 Uganda government lodged an extradition request for Jamil Mukulu through the Attorney General of Tanzania. The application seks to have Jamil Mukulu extradited to Uganda to face charges of murder and aggravated terrorism. Attached to the application were indictment and affidavit of Uganda's Senior Police Officer SSP Oludu Francis, the Uganda Criminal Procedure Act, a copy of Mukulu's passport with picture and in names of Thomas Rwanga Musisi, arrest warrant issued by Jinja Magistrate court, Interpol arrest warrant, etc. The matter is being heard by the Magistrates Court in DarEssalaam where the Attorney General of Tanzania is leading the petition. After a short delay for the Commissioner of Prisons to grant permission for Jamil Mukulu's Lawyers to access him for an interview, his affidavit countering the extradition application is submitted. In his affidavit, among other arguments, he is supposed to argue that he will not get a fair trial in Uganda if extradited.
Uganda's criminal justice system is incompetent
A recent report by World Justice Project (WJP) ranked Uganda amongst the worst performing contries when it comes to observance and upholding of the rule of law. It is the 95th out of 102 countries; 15th out of the 18 countries sampled in Sub-Saharan Africa and 12th of the 15 low income countries. Scores and ranking was across eight categories among which is fundamental rights, government powers, regulatory enforcement and government powers. Launching the report, the Founder and CEO of WJP Mr. William Neukon said: "Effective rule of law helps reduce corruption, alleviate poverty, improve public health and education, and protect people from injustices and dangers - large and small."
The government's Human Rights Commission recently released its annual report in which the Army and Police were topping the rights violations. Illegal detention, torture, killing and maiming, and forced disappearances are the order of the day in Uganda under Museveni. In particular, illegal arrest and detention of Muslims of the Salaaf Sect to which Jamil Mukulu belongs for alleged links to rebel ADF is a decade old practice. Victims are moved to various detention places where their families can not locate them. They are sometimes released without charges and Police often denies knowledge of their arrests. During a recent retreat of local government and intelligence officers at Kyankwanzi, Museveni expressed his disappointment with Police's poor investigation methods accusing them of "not doing enough to interrogate suspects in the murder of Muslim clerics." It has been widely reported in the local Uganda media houses that Museveni is irking to personally interrogate Jamil Mukulu once he is extradited to Uganda! Since when did a head of State interrogate suspects or he wants to hold talks with him as earlier advised by Tanzania's Jakaya Kikwete? Since government has not come out to deny it, it can be taken as the true. A case in point is the recent escape from illegal detention of five victims four of whom were linked to terrorism related charges. They had been held in the notorious Kireka based Special Investigations Unit (SIU) since 2012. The four Ugandan victims had been arrested from the Rwenzori and Bukwo region on suspicion of being linked to rebel ADF. The fifth victim was a Rwandese senior army officer Brigadier Rutinywa who had been held for over two years without trial on suspicion of having illegally entered the country with the intention of destablising Rwanda. In spite of the existence of an extradition agreement with Rwanda, the Brigadier was not handed over; leave alone his anti-Rwanda political activities for which he deserves protection.
Brigadier Tomas Kwoyelo
Is a former commander in the LRA rebel group who was captured in 2008. Like others before him who were even more senior, he applied for amnesty under the Amnesty Act. In 2010 the Amnesty Commission forwarded his application to the DPP for consideration. The DPP did not respond but instead charged him with murder. Kwoyelo petitioned the Constitutional Court seeking a declaration that he was being discriminated since his colleagues like Brig Keneth Banya and others had earlier been granted amnesty. The Constitutional Court ruled that he had indeed been discriminated contrary to Article 21 of the constitution. The AG appealed to the Supreme Court which in April 2015 ruled that Brig Tomas Kwoyelo should stand trial in the Internal Criminal Division (ICD) of the High Court arguing thus: "it is immaterial that other persons with similar circumstances to the application have been granted amnesty because each case is decided on its own merits."
James Katabazi Vs Secretary General of EAC and AG of Uganda - 119 (EAC 2007)
The above ground breaking case highlights the sad picture of Uganda's criminal justice system with regard to political opposition to Museveni's military dictatorship. Katabazi was arrested in 2004 with others over allegations that they were members of the rebel PRA that had been linked to opposition leader Dr. Besigye. As usual they were detained without trial till 06 November 2006 when the High Court granted them bail but before they could get their freedom the regime unleashed armed commandos who surrounded the High Court, threatened the Judges before re-arresting the suspects and remanding them again. On 11th November the same suspects were taken to the Court Martial and charged with terrorism and illegal possession of firearms. The Uganda Law Society petitioned the Constitutional Court seeking a declaration that the act of rearresting and charging the suspects before the Court Martial was unconstitutional. The court madea ruling in favor of the petitioners but the regime refused to comply thus the detainees petitioned the East African Court of Justice.
The respondents conceded the facts as pleaded by the petitioners but pleaded that the deployment of security at the High Court was meant to prevent them from escaping to resume rebellion and that their rearrest was for purposes of ensuring that they answer to charges of terrorism and illegal possession of firearms before the court martial. The EAC Secretary General initially claimed ignorance about the incarceration of the claimants but was reminded by the claimants' Legal team that under Article 71(1) (d) of the EAC treaty one of the functions of the Secretariat of which the SG is the head is to undertake either on his own initiative or otherwise of such investigations, collection of information, or verification of matters relating to any matter affecting the community that appears to it to merit examination.Court ruled thus: "....if is immaterial how that information comes to the attention of the Secretary General. As far as we are concerned, it would have sufficed if the complainants had shown that the events in Uganda concerning the claimants were so notorious that the 1st respondent (Secretary General) could not but be aware of them."
The EAC had not concluded the necessary protocol giving the court jurisdiction to entertain matters of human rights. However, court reflected a bit on the objectives of the EAC as set out in Article 5(1) (2) and (3) on legal and judicial objectives. Article 6(d) rule of law - promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and peoples' rights. Article 7 on rule of law, social justice and and the maintenance of universally accepted standards of human rights. The court concluded that it would not assume jurisdiction but would not also abdicate from exercising its jurisdiction of interpretation under Article 27(1).
It ruled thus: "We on our part are alarmed by the line of defense offered on behalf of the government of Uganda which if endorsed by this court would lead to an unacceptable and dangerous precedent, which would undermine the rule of law."
The petition succeeded but the regime in Uganda refused to comply and continued to hold the victims in illegal detention until some of them died in detention (Kifefe - bother of Dr Besigye) and others sought Amnesty. Capt James Katabazi - the lead petitioner died last week in a motor accident.
Jamil Mukulu if it is true that he was the leader of the ADF rebels was pursuing a political goal of dislodging the Museveni dictatorship. Therefore, he can not only be extradited but qualifies for Amnesty under the Amnesty Act like many others who have benefited after committing worst crimes in pursuance of a political goal. If Museveni manages to have Jamil Mukulu extradited from Tanzania by whatever means, it will set a very dangerous precedent for Ugandans who are struggling to free themselves from his 30 years of military dictatorship. Unfortunately, because of the terror link, Ugandans have shied away from decampaigning the impending extradition of Jamil Mukulu yet they strongly believe he like other Ugandans can not get justice because of his political belief. This is not to tolerate impunity; and there is a high possibility that Jamil Mukulu may have committed the alleged crimes but he remains innocent until proved guilty by a competent and impartial court of law which is not present in Uganda under Museveni.
INFORMATION IS POWER