Why state loves treason charge ?
Treason, over the years, has become government’s preferred charge of choice against many of its harsh critics.
Though the charge usually doesn’t provide an easy path to a conviction – government however, has used it to good effect to keep its opponents longer in jail and on trial.
A week after MPs were arrested in the West Nile district of Arua, and spirited off into military detention where they were tortured, lawyers and opposition leaders have denounced the treason charges levelled against them as political persecution.
“Ordinarily with capital offences there is a period of time you must remain on remand before even the hearing of the case can start or applying for bail; this is what those who prefer such charges are after,” Galisonga said.
On August 13, MPs; Robert Kyagulanyi Ssentamu a.k.a Bobi Wine, Francis Zaake, Gerald Karuhanga, Paul Mwiru, Kassiano Wadri and 30 others were arrested in the heat of the Arua municipality by-election.
Bobi Wine is emerging as an effective mobiliser, thrice helping to defeat President Museveni’s candidates beginning with his own spectacular, landslide by-election victory in Kyadondo East.
He and the others were viciously attacked and taken by the Special Forces Command (SFC), the elite force which protects the president.
Save for Kyagulanyi who was charged in the military court martial for unlawful possession of military hardware and Zaake who is in a coma, the other 33 three appeared in the Gulu chief magistrates court. A charge of treason was read out against them. Today, August 23 Kyagulanyi was also charged with treason in the same court.
There is still lack of agreement on what triggered the mayhem but supporters of Wadri, who won this contest with Bobi Wine’s support, are reported to have thrown stones at the convoy of President Museveni on the eve of poling day.
What followed after the president left town, was an indiscriminate retaliatory attack on unarmed civilians by SFC troops. Yasin Kawuma, Kyagulanyi’s driver, was shot dead.
Why government likes it?
Treason charges have been preferred against many real or perceived opponents of Museveni ever since he shot his way to power in 1986.
It became a pet charge with the emergence of Col. (rtd) Dr Kizza Besigye as a formidable opponent in the last 18 years.
Besigye was first charged with treason in 2005, barely a month before the acrimonious 2006 general election. The former Forum for Democratic Change (FDC) founding leader was accused together with 22 others, including his brother Musasizi Kifefe, of belonging to the shadowy People’s Redemption Army (RPA).
Musasizi died in prison. Ten years later in 2016, Besigye was again arrested and remanded for close to six months for swearing himself in after the 2016 elections he claims he won.
FDC man Michael Kabaziguruka, the Nakawa MP who himself is facing two treason cases; one in the magistrate court and the other in the General Court Martial, agrees that treason charges are being abused for political reasons.
“I was arrested in 2012 and charged with treason but as we speak, I have never been committed to the High court for trial. But before they could even finish prosecuting that case, I was arrested again and this time charged in the military court martial on the same grounds. The president claimed I wanted to kill him,” Kabaziguruka said.
When he was first arrested, Kabaziguruka was locked up for four months. Likewise in 2016 he was held in Kigo prison for four months until High Court judge Yasin Nyanzi granted him bail.
“The head of state said publicly that I tried to assassinate him; that the UPDF will not release me. In the military when the head of state makes such a statement you don’t expect Gen Andrew Gutti [GCM chairman] to give me a fair hearing. The purpose of this charge is really to put you out of circulation and cause inconveniences,” Kabaziguruka says.
Betty Nambooze Bakireke, now MP for Mukono municipality, was kidnapped in 2009 while still the head of the Buganda Kingdom’s Central Civic Committee campaigning against a proposed change in the land law. Nambooze was held in several prisons across the country on charges of terrorism and treason.
“Museveni is very petty; he picks on big cases so that he can keep you in prison for years. The time you spend in police custody or on remand is a punishment in itself because he knows he has no case against you,” Nambooze said.
The Mukono MP is still recovering from injuries inflicted upon her by the SFC soldiers who attacked parliament last year.
When she was produced in court, the 2009 charges had been reduced to sedition. Nambooze says that her captors told her she would only be released if she accepted to meet the president.
“What made the president drop these charges was because he was put under a lot of pressure from Mengo to release us. I have been on bail since then but I no longer report back to court and nothing has happened,” Nambooze says.
“It’s very shameful that courts of law have been used as tools of oppression. They use these charges to make you permanent prisoners. The aim is to hold you for a long time and restrict your movement.”
Officials from the directorate of public prosecutions and attorney general’s chambers couldn’t be reached for a comment. Police spokesman Emilian Kayima declined an interview.
The legal opinion
Laudislaus Rwakafuzi, a human rights lawyer who has defended many against treason, agrees with Nambooze and Kabaziguruka.
“Treason is a grave offence…it is very hard to get bail hence keeping your opponents out of the way through the courts. They will tell you that it’s the court that has remanded you yet actually it’s the executive that has remanded you,” Rwakafuzi says.
Dr Livingstone Ssewanyana, the executive director of Foundation for Human Rights Initiative, observes that because of the seriousness of the charge, it has a chilling effect on the individual and his or her entire network.
“It is intended to subdue that person such that he is no longer seen to assert him/herself,” he said.
“The charge should be used sparingly. Actually, we have a Constitutional Court petition that will be heard in September challenging the powers of the DPP to charge somebody who is expressing him/herself with treason; that sort of charge amounts to abuse of office,” Ssewanyana said.
He pointed out that treason cases take a lot of time before the state either loses interest or one is acquitted.
“It effectively puts the individual under the custody of the state and it’s hard to get bail because with such a case you can only get a mandatory bail after 180 days. The charge doesn’t only disfavour an individual but puts him/her at the whims of the state,” Ssewanyana said.
All three men that the state doesn’t prefer treason charges with intent to convict, but rather to secure victory over an opponent.
Galisonga adds that because the standard of proof is set at beyond reasonable doubt, requiring irrefutable evidence, 95 per cent of the treason cases either suffer a still birth or end up in acquittals.
“Treason involves actions that are not known to very many people unless one person confesses that indeed he had engaged in treasonous activities it very hard to prove,” Galisonga said. The burden of proof is on the state to prove beyond reasonable doubt all the elements of the offence. The accused can even opt to keep quiet throughout the trial. He doesn’t have to prove his innocence.
It is for this reason, the lawyer added, that government is now dragging people before military courts where orders from the commander in chief could override evidence.
“It is the court martial that can only convict people on such cases but their ruling would also be overturned on appeal in the civil courts,”Galisonga opines.
Rwakafuzi adds that in some of the cases he has handled, the state abandons the cases because they have no faith in the charges.
“Museveni is jittery; he doesn’t want if there is another election to have this group from Kampala to go to the villages because when they go, they give the villagers hope and confidence to vote against the status quo. So, he is doing this so that nobody else tries; I can assure you if there is another by-election, very few people will go there,” Rwakafuuzi says.
Kabaziguruka remembers meeting a one Africa Gabula who has been in prison for over 15 years after he was convicted of treason.
“He was lied to that they would give him a very lenient sentence if he pleads guilty. I was told he is one of the very few people who have ever been convicted of treason,” Kabaziguruka said.
“The ingredients of proving such an offence were really tightened so that you don’t wake up and think court will convict someone just like that.”Kabaziguruka said.
What is treason?
Section 23 of the Penal Code Act, the collection of laws setting out criminal offences in Uganda and their punishment, states that a person commits treason when he/she; (a) levies war against the Republic of Uganda; (b) unlawfully causes or attempts to cause the death of the President or, with intent to maim or disfigure or disable, unlawfully wounds or does any harm to the person of the President, or aims at the person of the President any gun, offensive weapon, pistol or any description of firearm, whether it contains any explosive or destructive substance or not; (c) contrives any plot, act or matter and expresses or declares such plot, act or matter by any utterance or by any overt act in order, by force of arms, to overturn the government as by law established.
The section further states that a person also commits treason when he/she aids or abets another person in the commission of treason, or becomes an accessory before or after or conceals acts of treason.
The section describes death as the punishment.
Section 23 (2) states that any person who forms an intention to compel by force or constrain the government as by law established to change its measures or counsels or to intimidate or overawe Parliament; or instigate any person to invade the Republic of Uganda with an armed force and manifests any such intention by an overt act or by any utterance or by publishing any printing or writing, commits treason and is liable to death if convicted.
Section 23 (3,4) further note that a person also commits treason if he /she incites any person to commit an act of mutiny or any treacherous or mutinous act; incites any such person to make or endeavour to make a mutinous assembly, attempts to seduce any person serving in the armed forces or any member of the police force or prison services or any other security service, by whatever name called to withdraw from his or her duty and allegiance to the Constitution. Such persons are also liable on conviction to suffer death.
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