Uganda's president wants to eradicate bail for capital offences, but even some in his own party aren't sure it's a good idea.
For over eight months, a distressed and poorly Justine Nakajumba has been pleading with the government in Uganda to grant her son bail. The elderly mother has protested numerous times outside parliament, prompting police to drag her away, and called on President Yoweri Museveni's administration to show mercy.
"I walked in the rain just to come and see my son," she told African Arguments after one visit to the capital Kampala. "I want to see the Speaker [of Parliament]. I am very sick and yet they are taking away my child".
Nakajumba's son is Muhammad Ssegirinya, a member of parliament belonging to the opposition National Unity Party (NUP). He was arrested, along with fellow opposition MP Allan Ssewanyana, on 7 September 2021. The two men are facing murder and terrorism charges related to machete killings in the Masaka district that claimed over 30 lives.
While awaiting trial, the two MPs have repeatedly appealed for bail. They were initially awarded temporary freedom but were dramatically re-arrested mere moments after leaving prison. Since then, the men have continued to request bail but to no avail, despite Ssegirinya showing a judge his "rotting foot" in need of medical attention and threatening to commit suicide.
The prosecution says the defendants should not be granted bail as it could jeopardise ongoing investigations. The defence says the charges are politically motivated and has accused judges of avoiding even hearing the opposition MPs' bail applications for fear of displeasing President Museveni.
This has left Ssegirinya and Ssewanyana languishing in prison despite being innocent until proven guilty, and Nakajumba falling into ever deeper distress.
"I am still psychologically traumatised and weak," says Ssegirinya's mother. "I am begging President Museveni to forgive him".
The campaign against bail
Under Museveni's rule, it has become commonplace for critical opposition leaders to face criminal charges - especially for capital offences - and be imprisoned. The president's main rivals Kizza Besigye and, later, Robert Kyagulanyi (aka Bobi Wine) have both been detained on several occasions, but many less prominent politicians have faced similar fates too.
What is causing growing concern now, however, are signs that Museveni wants to make it harder for defendants of capital offences to get bail. At the swearing in of new judges in September 2021, the president criticised the granting of bail and promised: "I am going to summon the [ruling] NRM caucus and, if necessary, we put it to a referendum". The following month, ministers backed proposed constitutional amendments to deny bail to suspects of offences such as murder, rape, robbery and treason. This February, Museveni raised the issue again, saying: "We must agree on the bailable offences... There are wrong elements in the judiciary. The constitution says bail may be given. Someone kills another and you give them bail? Really?"
The president's official reasoning is that granting bail to suspects of capital offences is overly lenient and that it can force communities to take matters in their own hands in the form of mob justice. Many opposition figures, however, believe the president's stance is part of an attempt to make the imprisoning of political opponents even more punitive and restrictive.
"[The plan to ban bail for capital offenders is] to target the opposition politicians because he knows that whoever tries to oppose him he will put him in [jail] for as long as he wants," says Bobi Wine. The NUP leader has been arrested on numerous occasions in recent years for charges ranging from the unlawful possession of firearms, to treason, to breaking Covid-19 regulations.
Kizza Besigye, a four-time presidential candidate who has similarly faced jail and arrests - including on charges of treason and rape - multiple times, described the proposed reforms as an "obnoxious" and said they "clearly violate the constitution".
"We need to fight ruthlessly"
Amending bail laws would require amendments to the Ugandan constitution. This would be controversial and require a two-thirds majority in parliament, but it would be far from unprecedented. Presidential term limits and age limits were scrapped in this way in 2005 and 2018 respectively. The ruling National Resistance Movement retains a large parliamentary majority and has a record of taking actions to consolidate control even if they are unpopular or anti-democratic.
"We are likely to have heightened political polarisation and disagreements around the no bail proposal," says Mwambustya Ndebessa, a senior lecturer of political history from Makerere University. "That does not augur well with democracy or state building."
It is possible the judiciary might resist changes to legal regulations, but that too is unlikely, according to Ndebessa.
"It is also full of NRM cadres," he says. "You have got the whole judiciary appointed by President Museveni like the Chief Justice who was once a minister in Museveni's government."
This leaves Uganda's opposition with few options. Speaking to African Arguments, NUP Secretary General, Davis Lewis Rubongoya, said they cannot rely on the "crippled judiciary". "We need to fight ruthlessly and get rid of Museveni regime or else he will lock all the opposition leaders in jail for good," he says.
Ibrahim Ssemujju Nganda, an MP and spokesperson for the opposition Forum for Democratic Change (FDC), also sees democratic options in Uganda narrowing and suggests the only route to regime change would be by repeating of the NRM's own rise to power in 1986 as an armed rebel movement. However, he notes the challenges of such action.
"It is difficult to have aggressive politics in Uganda at the moment because the price to pay is too high, including dying and leaving your family," he says.
How it could backfire
With the opposition weakened, the key remaining barrier to bail amendments comes from the government itself. Within the ruling NRM, the proposals have received a mixed reaction. While some support the measures, several others argued against the reforms in a meeting with Museveni in September 2021. Some, such as former Gulu Deputy Resident City Commissioner (RCC) Francis Okello Rwotlonyo, have remained notably tight lipped.
"I wouldn't want to comment much about what is still in the process," he told journalists in Gulu this February. "It is a right of a citizen to have bail. If the legislatures want to amend the bill and they feel it is appropriate, then it's incumbent upon them."
One reason NRM members may be hesitant to change bail conditions is a fear that they could end up on the wrong side of the repressive policy in the future. This has happened before. Former Prime Minister Amama Mbabazi, for instance, pushed through the passing of the Public Order Management Act (POMA), which was later used against him when he challenged the president at the ballot box in 2016. Similarly, former Inspector General of Police, Gen. Kale Kayihura, who urged parliament to allow police to keep suspects for over 48 hours before producing them in court in January 2018, was subjected to this treatment when he was arrested a few months later.
"What [Museveni] is cooking is dangerous to himself and his family because the same law can be used against them," says former Uganda People Congress (UPC) Deputy Mobiliser, Dan Oola Odiya, who was arrested on five charges of capital offences in 2017. "It is also a bit of trap for those in the NRM party who think they are going to be permanent in that party."
As the debate rumbles on in the coming months, President Museveni will hope he can convince his party to back the bail changes. However, one thing Nakajumba's experience makes clear, is that the president does not necessarily need to change the constitution to get the results he desires.
Her son and his co-accused, who have since been committed to the high court for trial, have the constitutionally protected right to bail, and yet Nakajumba continues to worry whether she will ever see her son again.
"All I can do is pray for my son to come out of prison alive," she says.
John Okot is a freelance journalist based in Gulu, northern Uganda.