First
published by Change of Guards Blog on June 5, 2015
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. Aggrey Kiyingi who is intending
to run for the Presidency against Museveni.
Arrest
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.
Extradition
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 reciprocal 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 seeks 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 Dar Er Salaam 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 countries 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 destabilising 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 Kenneth
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 re-arresting
and charging the suspects before the Court Martial was unconstitutional. The
court made a 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 re-arrest
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 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 - brother of Dr. Besigye) and others sought Amnesty. Capt. James Katabazi - the lead petitioner died last week in a motor accident.
Conclusion
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
change of guards blog
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