I was lucky to be taught criminal law in my first year at Makerere University by the late professor Abraham Kiapi.He was a master of the subject and indeed wrote several books on law generally. Criminal law is still taught in first year today and any first year law student will tell you Mr George Agaba should be in Luzira Prison alongside Mr Santos Makmot. With greatest respect to the Director of Public Prosecutions, I am unable to understand the conclusions he has reached in this matter.
Under section 19 of the Penal Code Act when an offence is committed, the following persons are deemed to have taken part in committing the offence:
(a) A person who actually does the act which constitutes the offence. In this case it is Makmot who pulled the trigger.
(b) A person who does an act which aids another person commit the offence. Clearly, this is Agaba who goes to his car, gets the gun out and attempts to shoot before Makmot takes the gun from him and pulls the trigger.
(c) A person who aids another to commit the crime. If Agaba had not brought the gun out of his car, Makmot would not have shot anyone.
Under the Penal Code Act, each of these persons are guilty of the offence and can be charged with actually committing it. Prof. Kiapi called them principal offenders. That is the law today. In fact, if you apportion blame in the offence, Makmot's percentage in the murder is 33 per cent while Agaba is 66 per cent.
But it is all murder even if one contributed 1 per cent. Secondly,if it is true that the eviction itself was unlawful then under Section 20 of the Penal Code Act, Agaba, Makmot and the all the KCCA officials who set out on an unlawful purpose are deemed to have committed murder if it is proved that the murder was probable consequence of pursuing the unlawful eviction. A home is the last bastion of every person and to violently destroy it while armed can lead to murder which indeed happened. Had KCCA not been armed with guns and sticks, murder would not be seen as a probable consequence. There is, in my view, sufficient legal provisions to charge Agaba with murder.
There is no doubt in my mind that I have correctly interpreted the law and applied them to the evidence which is freely available on television footage. I challenge anyone to contradict me. I know that the lawyers in the directorate of public prosecutions are aware of this law. They are good lawyers. The top officials there were in Prof. Kiapi's criminal law class. What happened?
Then the police spokesperson Judith Nabakooba claims they could not keep Agaba beyond the constitutional 48 hours. This is insulting. Both the directorate of public prosecutions and the police are aware and have tendered "holding charge" sheets in courts. This enables the police to charge an accused while investigating. To release a suspect on a police bond on the capital offence of murder is illegal. Section 17 of the Criminal Procedure Code forbids this yet we have law enforcement officers disregarding the law. It is also insulting because the police routinely detain suspects beyond 24 hours. What is special about Agaba?
There is every reason to charge Agaba with murder. Why have they failed to so?
I was not impressed with Kale Kayihura's outrage on television. Makmot was at the scene because he was assigned to guard a very, very important person. That person happens to be Agaba. Who deployed him? His boss. Who is the ultimate boss in police? Kayihura. Incidentally who determines in this country who is important and therefore entitled to protection? Agaba is a mere director of a department.
They're very many in this country without protection. So what other qualification does Agaba have? If he was charged with murder he would have to spend time in Luzira like many other suspects. He appears to be a young, healthy man so it is unlikely a judge of the High Court would find any special circumstance to give him early bail. Solution - don't take him to court. He is a very important person.
This is the kind of injustice frustrating Ugandans every day. It is the injustice which takes them to the streets and then we condemn them as terrorists.
The manipulation of the law to benefit a particular person, the failure to apply the law in a uniform manner and ignoring the law are perquisites to anarchy.
When tempers have cooled Agaba will be told that he need not report to police anymore. That will be the end of the matter. He will go back to his office until he shoots another person and we start all over again. Have we not forgotten what Gilbert Arinaitwe did?
When State institutions collapse or become ineffective as has happened in Uganda, civil society has to step in to fill the void until we have reestablished functioning institutions. In this particular case the Uganda Law Society should prepare a dossier to bring a private prosecution against Agaba as soon as the State lets him free. Under Section 3(d) of the Uganda Law Society Act, it has a duty "to protect and assist the public in Uganda in all matters touching, ancillary or incidental to law".
Wandera Ogalo is an Advocate of the High Court.