The arrest of Dr. Kizza Besigye in Kenya on allegations of subversive activities against the state, has added another layer of the raging debate whether civil rights in a treasonous case, supersede the legal dictates of the judicial process.
There are two angles to this case, the political and legal. The arguments on either side tend to emphasise a strong conviction to pathways that would either pin Besigye or let him off the hook. The defence team is inclined to press for his civil rights as a reason he should be released, while on the other hand the prosecution is calling for the judicial process to be followed to the hilt.
In all the defence arguments, the ingredients of the case are pushed to the periphery and instead the manner he was conveyed to Uganda from Nairobi and the subsequent failing health are given prominence. This situation is confounded by the Supreme Court ruling about the legality of the court martial. The court ruled among others that cases involving civilians should be transferred to civil courts. It did not say that all civilian cases should be dropped and suspects set free.
However, on the other hand, the argument is that since the court martial was declared illegal to prosecute civilian cases, all civilians should be released forthwith. There is a lacuna in the Supreme court judgement, if all cases are to be transferred to civil courts, how do you reconcile the fact that the court martial was illegal, thus prosecuting civilians was illegal?
This conundrum brings us back to the main ingredients of the case, the state alleges that in different countries and places, Dr. Kizza Besigye was involved in treasonous activities that involved procuring fire arms to effect a violent overthrow of the government and plotting to assassinate President Museveni using Air Force military officers by shooting down the presidential jet. These schemes have been captured on an audio making rounds on social media. Besigye’s voice is heard negotiating with some people who are alleged arms dealers. In an interview on Citizen TV, Hon. Winnie Byanyima, Besigye’s wife, confirmed that Besigye was in a meeting with people he already knew, they were not strangers to him. This renders credence to the authenticity of the audio. This apparent evidence overshadows the calls for the release of Besigye on the basis of his civil rights.
Looking at the legal gymnastics by the defence lawyers demanding for the unconditional release of Besigye reveals the undercurrents of hypocrisy and complicity in the treason case against Besigye. To say that Besigye should be released because the Supreme Court declared the court Martial unconstitutional, negates the principle of retrospection, there is no way Besigye can go scot-free, because the Supreme Court decision cannot be reversed to accommodate his demands. Laws don’t bend backwards to accommodate current rulings.
The defence team led by Erias Lukwago, has smartly avoided discussing the merits of the substantive case, instead have concentrated on his right to bail. No amount of prodding can make them discuss this line.
When the Supreme court made a determination against court martial, it meant that the defence team was supposed to extract a decree. As a political gimmick, it has taken three weeks for the team to extract that decree. The intension is to extract sympathy from the public. The hunger strike by Besigye is intended to marinate the sympathy card. The transfer of files from court martial to civil court is a process that must be undertaken by both sides. Failure to act on one party means that the other party cannot move. The failing health due to hunger strike of Besigye was self-inflicted to hoodwink the public and spur civil society activism.
It is interesting that the day he was brought to court, he suspended the hunger strike without pointing out that his predicament was a creation of his defence team which was nonchalant on taking the right judicial process of extracting the decree.
As another act of distraction, Byanyima, has opened another line of attack involving family issues in a criminal undertaking. Her family differences with the first family are being played out in the public domain. She accuses her husband’s predicament on past relationship with the first family. History has it that in the formative stages of his education, the Byanyima family played a role in shaping his political future. Winnie is hard pressed to come to terms with the fact that a family dependant is one who calls the shots at the helm. She talks with a lot of disdain about the first family.
The hunger strike claim is also debatable given that the prison official spokesman disputed the fact that Besigye was on hunger strike. He emphasized that at no point did Besigye refuse to eat, but we all know that Besigye has had failing health for years. It cannot be now that his ill health is given prominence. The cause of his emaciated body has been a public discussion drawing all sorts of conspiracies, so to attribute it to the current scenario is to over stretch the imagination. The question at hand is, should Besigye’s alleged transgressions be treated as a civil rights issue, where his health is central or as a criminal undertaking that must play out in courts of law?
The argument that his health can be substituted for his iniquities is a long con. It is humanly right to address or mind one’s health and wellbeing in execution of justice, a suspect to stand trial must be of sound health, but his health status should not be used to subvert the judicial process. After all in the same delicate health, he chose to get involved in acts that brought him into conflict with the law.
The question remains, can the legal process be curtailed by the demand for observance of civil rights of a suspect involved in treasonous activities that involve the assassination of the president?
