‘The problem with (legalese) is that while we can communicate with each other perfectly well, like Laplanders discussing reindeer no one else knows what we’re talking about.’ John-Paul Boyd, Vancouver lawyer, BC Continuing Legal Education Society, 2013.
The above is happening in Uganda, presently.
In 2015, Betty Katusabe, a businesswoman, was killed. Prosecution alleges that the deceased was beaten and sliced using a machete when she failed to pay the balance due on a car she had bought from the car bond owner and prime suspect, one Muhammed Ssebuwufu. Mr. Ssebuwufu was arrested in connection to the murder, remanded in prison and presently stands trial for the crime. Other suspects were also arrested and apparently some remain at large.
Sometime in 2016 as well, former Kampala District Police Commander (DPC) Aaron Baguma was accused of aiding and abetting the prime suspect in evading apprehension in relation to the crime. He voluntarily surrendered to police to aid in the investigation but was later accused and arrested on charges that he had conspired with the prime suspect(s).
Despite his assurance that he has all the evidence to incriminate the accused persons, Mr. Chibita, the Director of Public Prosecutions (DPP) dropped the charges against the former DPC, much to the public’s shock and surprise.
It is also alleged that the former DPC has vital information and will on February 5th testify against the prime suspect and others, since the former DPC, despite his remand and incarceration, arrested the prime suspect.
His arrest, detention and acquittal aside, we briefly look at the legality of this position taken by the DPP in dropping the charges against DPC Aaron Baguma and having the latter testify against the prime suspect, as it is alleged.
Article 120 of Uganda’s constitution
This article provides for the office of the DPP and the functions he/she must perform accordingly. It seems that the DPP’s powers had for long not been scrutinized by the public until recently when former Kampala DPC Baguma was acquitted and released. This highly publicized case has made it important to question the mechanism the DDP uses to exercise his constitutional mandate.
In clause (3), the DPP has powers to;
‘(a)…direct the police to investigate any information of a criminal nature and to report to him or her expeditiously;
(b)… institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court martial;
‘(c) …take over and continue any criminal proceedings instituted by any other person or authority;
(d)… to discontinuance at any stage before judgment is delivered, any criminal proceedings to which this article relates, instituted by himself or herself or any other person or authority; except that the Director of Public Prosecutions shall not discontinue any proceedings commenced by another person or authority except with the consent of court.’
Clause 4 specifically touches on the functions the DPP has and therein, his personal discretion as the DPP, not as an individual. Check its construction;
‘(a) may, in the case of the functions under clause (3) (a), (b) and (c ) of this article, be exercised by him or her in person or by officers authorised by him or her in accordance with general or specified instruction; and
(b) shall, in the case of the functions under paragraph (d) of that clause, be exercised by him or her exclusively.’ [Emphasis ours] [See above clause]
True, ‘in exercising his or her powers under this article, the Director of Public Prosecutions shall have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of legal process’, but unless we understand how this law operates, we may not understand how the DPP should act. [Emphasis added]
We are told that the DPP invited and explained his position to the bereaved family and that they understood this inclination. What remains is the actual testimony the acquitted will give and whether or not it will help convict the accused.
Question: How will former Kampala DPC Aaron Baguma’s testimony affect the outcome of the case?
We cannot speculate. We can only understand what a witness in these circumstances must do and why he is made a witness in the first place.
Witnesses in law
A witness is a person who testifies to the veracity of something. In criminal trials, witnesses must be competent (legally allowed to testify), credible (believable) etc.
Sometimes, the prosecutor will exonerate the defendant if the defendant can testify against co-defendant(s). Literally, this seems unfair but is legal in our judicial system. A witness or co-defendant may be afraid to testify against a defendant for various reasons.
However, if that witness or co-defendant agrees to testify against the accused or co-defendant, the DPP has the mandate to offer vindication as an incentive. This is where the law assumes the DPP should exercise his/her prerogative under article 120.
The founders of our judicial system believed that this position could enable the justice system punish the greater evil visa vie the lesser evil because the latter is easier to transform than the former (our assumption, as well). Unfortunately, without sensitization, the bereaved and public can easily infer this position to be unethical and unfair in punishing all persons involved in committing and covering up the crime; which situations are offending either way.
Question: Can a co-accused request for leniency if he/she did not actually commit the crime but may have aided and abated therein?
Yes and no.
This is strange but true. It is for the DPP to decide. That is why the wording in the law construes a ‘may’ and ‘shall’: the former giving him options he can choose from while the latter instructing him to act without hesitation.
Question: What other incentive can the DPP give to him/her to have a solid case if someone in his position cannot be a witness?
A plea bargain is one of those incentives the DPP can use to prosecute. A plea bargain is between the prosecutor and the defendant; and greatly depends on the magnitude of the crime.
Definition of a plea bargain:
Black’s Law dictionary defines a plea bargain as ‘a negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu. [usually] a more lenient sentence or a dismissal of the other charges’.
To plea simply means to respond to something and in this case, a charge levied against the accused/defendant.
A plea bargain is usually used in criminal cases where the accused agrees to plead guilty to any part of the charges or to a lesser charge on condition that the prosecutor reduces the defendant’s punishment. Most prosecutors prefer plea bargains to net the defendant they presume is the greatest offender.
Misdemeanors (minor offences) carry minimum punishments while felonies (capital offences) carry maximum punishments. Capital offences including murder, robbery, aggravated robbery (robbery with a deadly weapon), treason, rape and defilement, aggravated rape and defilement (if the accused infects the victim with a venereal disease like HIV), etc. are handled by the state, i.e. DPP.
Our law presumes that capital offences are offences against the state and therefore are the state’s responsibility to prosecute them. This presumption cements the DPP’s actions performed under article 120 of the constitution.
Why plea bargain?
- To avoid lengthy criminal trials. You must appreciate the fact that criminal cases take longer durations: the investigations, preference of a charge, decision on which party to prosecute and which court to preside over the case, the availability of relevant witnesses, witness protection, etc. lengthen the criminal trial. A plea bargain allows the parties to expedite the case in the shortest time.
Also, to exonerate an innocent party that may be caught up in the scuffle. Like it or not, the system faults when it accuses an innocent person simply because that person had information about the crime: whether before, during or after. It is the prosecutor’s discretion to investigate and in his discretion offer an incentive he/she deems fit for those circumstances. That is where article 120 (4) (b) of our constitution comes in.
- To de-congest prisons. A crime can be classified as a felony (major) or a misdemeanor (minor) offence. Plea bargains help de-congest prisons if defendants are charged with a misdemeanor and given a lesser sentence where the defendant will receive an early release. This is because a prison sentence is almost certain in criminal cases. This excuse often benefits the economist.
- The defendant cannot be accused of the same crime again since he/she has been accused [albeit of a lesser charge) and punished accordingly. Hon. Mr. Justice Geoffrey Kiryabwire reiterated this position in the case of Joshua v The Commissioner Of Customs, URA (HCT – 00 – CC – MA – 44 – 2007) ((HCT – 00 – CC – MA – 44 – 2007))  UGCOMMC 37 (28 April 2008), when he ruled that; “Compounding an offence in my understanding is a form of settlement of the offence without prosecution that results into a settlement order. It is a form of plea bargain with the offender that results in an admission of the offence in the expectation, no doubt, of a lighter sentence. This is because no prosecution has taken place saving all concerned valuable time and resources.”
Downside of a plea bargain
- The defendant loses the right to defend himself/herself even against the offence they plead guilty to. In a plea bargain, the defendant admits guilt in what many may assume is coerced or is a coy to avoid punishment. We can never know how the crime transpired and affected persons may not get closure.
- The defendant may be accused of false charges, forced to take a plea bargain, be condemned as a criminal when actually is an innocent person. Later, it may be difficult to prove the defendant’s innocence despite overwhelming evidence to his/her innocence.
In our present example, we can safely assume that DPC Aaron Baguma may be a vital witness against the first accused whose testimony will help the DPP pin the first accused to the charges. However, he may have to live with the previous accusation hovering over his conscience for a long time despite the acquittal.
In court, what transpires may occasionally be gibberish to the public but legalese and its fraternity, if employed legally and ethically, is important in any democracy. The drama comes from not educating citizens, in simple terms, about the procedures involved and hopefully, reader, you reckon its complexity with fairness as well.
We understand that the public wants justice and for the perpetrators of Betty Katusabe’s murder punished for the crime. Amidst that, the intricacies of the process, though confusing, should also be explained to the public that follows court processes.
The DPP has got the mandate, yes. But he also is an officer of the law: a law that governs the public. In essence, he must consider explaining to the public, albeit in lay terms, his decision in these sensitive cases without necessarily divulging legal arguments he stores up for the actual trial.
From the author: But to understand justice, you must be willing to understand your foe’s argument. There is no such thing that the law has done, that it cannot undo.
BY ATUHAIRWE AGRACE