PROSECUTORS STRIKE SHOULD NOT DELAY TRIALS

by Fred Muwema

The current strike by Government prosecutors which has been going on for almost two months now, though merited, is not desirable.This is the longest period any prosecutors anywhere in the world have been on strike. The other prosecutor strike this year in Ghana which was also grounded in pay did not last two weeks. They were sorted out timeously by the Government of Ghana so as to stave a national embarrassment. The prosecutors strike in Israel in April 2015 lasted 43 days and it was an agitation over political interference in their work. As a country, we cannot be proud of this world record set by our prosecutors. We have actually gained nothing from this prosecutors strike apart from damaging our reputation as a serious nation. 

Unfortunately, the Courts are making it worse by stopping criminal trials because of the absence of the prosecutors. A court is a revered place where everyone including the state must submit to its jurisdiction and authority. We all know that when Court sits, it waits for no man be it a government or private lawyer. Even the presence of an accused person can be dispensed with in a trial if he or she misconduct themselves. It is surprising that the Courts have chosen to take leave from duty while the prosecutors are also away from duty. The Constitutional command that justice shall not be delayed is not subject to dilution by any person or organ of the state including the Courts.Therefore the Courts should be reminded that they are denying justice when they delay justice to accused persons because of the prosecutors strike.

 I must stop here if only to acknowledge the Court of Appeal which is presently hearing criminal appeals and applications in the absence of the prosecutors. This Court is holding the stick from the right end since it has not allowed itself to become an extension of other peoples’ strike. This Court should be commended for remaining open for business and observing its cardinal role of granting access to justice to all people for as long as they appear before it.

I, however, cannot say the same about the High Court and Magistrates Courts. They have largely closed their doors to accused persons who have come to them to receive their non-derogable right to be heard in a fair, speedy and public trial guaranteed by the Constitution. All cases called in the present criminal session at the High Court in Kampala did not proceed because of the absence of the prosecutors. In one or two cases, the Court has proceeded to hear a case where the DPP has selectively appointed some Police Prosecutors to stand in for the prosecution. The Rukungiri magistrates Court has also recently handled the Togikwatako case of Dr. Kizza Besigye while Magistrates Courts in Kampala have handled the case of Stanley Ndawula of the Investigator and the Redpepper Editors wherein all the three cases, the DPP has appointed special prosecutors. So it appears that only accused persons with cases where the government has an interest can be heard at the moment. This favors some accused persons against others and promotes a new regime of preferential treatment which is unconstitutional.

In the Chief Magistrate Court of Makindye, I have found that more than 1874 criminal cases have stalled because of the prosecutors strike. According to the Magistrates Courts (magisterial areas) instrument 2017, there are 83 magisterial areas with 476 magistrates Courts. Even if we were to average out 500 cases to each Magistrates Court, this would translate into 23800 stalled cases and more than 24000 Ugandans in detention without trial. Adding this number of detainees to our prison service which is already crammed and operating at 200% of installed capacity is a disaster of epic proportions.

My sense is that it is the executive and not the Courts supposed to sort out the prosecutors strike.The Courts must not bear responsibility for the prosecutors strike by adjourning trials because of the executives in action to resolve the matter. Criminal Courts should not punish accused persons with extended detentions as if it is their fault that the prosecutors are on strike. An accused person commits no offense when the prosecution arrests him but fails to prosecute him. His or her right to a fair and speedy trial when presented in Court is absolute.It cannot be taken away  even in a state of emergency let alone industrial action by the people supposed to prosecute them. In fact, any trial which is mounted in violation of this fundamental human right is not a trial at all. It is a nullity which cannot be sanctioned by  the Court however strong  the evidence against the accused might be. There is no reason why Courts should allow ordinary Ugandans to rot in jail because of the Government malfunctions.It is not right, it is not fair.

                                              
                                                      Dated: 1st December 2017.

                 The article “PROSECUTORS STRIKE SHOULD NOT DELAY TRIALS” 
                     by Fred Muwema  (Managing Partner Muwema & Co. Advocates)
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