The strike by government prosecutors which has been going on for almost two months now, though merited, is not desirable.
This is the longest period prosecutors anywhere in the world have been on strike. The other prosecutors' strike this year in Ghana which was also grounded on pay did not last two weeks. They were sorted out timeously by the government of Ghana 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 prosecutors. 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/she misconducts 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, 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 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 magistrate 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 prosecutors. In one or two cases, the court has proceeded to hear a case where the director of public prosecutions has selectively appointed some police prosecutors to stand in for 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 Red Pepper editors where, in all the three cases, the DPP has appointed special prosecutors.
So, it appears that only accused persons with cases where government has an interest can be heard at the moment.
This favours some accused persons against others and promotes a new regime of preferential treatment, which is unconstitutional.
In the chief magistrate's court of Makindye, I have found that more than 1,874 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 magistrate's court, this would translate into 23,800 stalled cases and at least 24,000 Ugandans in detention without trial. Adding this number of detainees to our already-crammed prison 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 executive's inaction 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 offence when the prosecution arrests him but fails to prosecute him. His/her right to a fair and speedy trial 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 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.
The author is the managing partner, Muwema & Co. Advocates.