Retired Supreme Court Justice George Kanyeihamba intends to ask the Constitutional Court to adjourn the hearing of his petition challenging proposed bail reforms until such a time when the government brings back the threats to scrap bail for capital offences.
Kanyeihamba announced this on Monday while appearing before the Constitutional Court Registrar Henry Twinomuhwezi for a pretrial hearing of his petition and five others against the Attorney General, President Yoweri Museveni and his National Resistance Movement political party.
Pre-trial hearing is the stage when parties in the case sit and agree on the legal issues they want court to determine before the matter can be forwarded to a panel of five Justices (in this case) for hearing. It is also used to check if all the relevant documents are on record such as affidavits and responses from both parties.
In October 2021, Kanyeihamba together with four Law Students John Solomon Nabuyanda, Edrine Prince Bbosa, Alex Wavamunno , Williams Ronald Asiimwe, and lawyer Simon Ssenyonga petitioned Court in October 2021 challenging the statements made by President Museveni in regards to bail.
Museveni had earlier at the Judiciary headquarters and Kololo Ceremonial grounds said that bail is not a Constitutional right and threatening to use political and legal means to make sure that bail for capital offenders is scrapped.
Museveni also threatened to summon the NRM Caucus to discuss the issue to make sure that bail is removed politically.
The petitioners thus asked the Constitutional court to issue an order prohibiting Museveni, the attorney general, NRM party and any other person from furthering any of such actions that threaten the right to bail application and police bond.
On Monday, while appearing before the Constitutional Court Registrar Twinomuhwezi for pretrial hearing, Kanyeihamba said he has since learnt that Museveni has withdrawn his threats and is no longer interested in summoning the NRM caucus to discuss issues of scrapping the bail.
Accordingly, from his wheel chair, Kanyeihamba noted that when the matter is called for hearing next month, they will ask the Court to shelve the petition and adjourn it’s hearing indefinitely because there is nothing to adjudicate on since he has reportedly learnt that the respondents have withdrawn their threats.
Kanyeihamba now wants the case shelved and brought back for hearing in future if at all the government ever threatens to scrap the right to bail again.
The case is fixed for hearing before Constitutional Court Justices Catherine Bamugemeire Stephen Musota, Irene Mulyagonja, Muzamiru Mutangula Kibeedi and Monica Mugenyi on June 16th 2022.
A written response submitted to Court by the State Attorney Twinomugisha Mugisha on behalf of the government wants Kanyeihamba’s petition dismissed.
According to the affidavit of Lucy Mbonye Nakyobe the Head of Public Service and Secretary to Cabinet, the case should be dismissed because no legal proceedings can be commenced under a sitting President.
Nakyobe further argues that the petition is misconceived, bad in law and prematurely brought before the Court because it is challenging mere opinions and recommendations on proposed legislative reforms of the law governing bail which have not been passed into law and therefore not actionable in court.
“The petition is incompetent in as far as it is not supported by any admissible, credible or competent evidence. Further that the supporting affidavits are incurably defective in as far as they are not premised in the petitioners’ knowledge but are based on hearsay information obtained from the newspaper reports”, reads Nakyobe’s affidavit.
The government now wants the petition dismissed for having been misconceived and an abuse of Court process because it does not raise any constitutional questions for interpretation saying it purports to seek enforcement of the constitution.
The Chief Justice Alfonse Owiny-Dollo has always indicated that the right to bail is a constitutional right which judicial officers can grant or deny based on the judicial officer’s discretion. “A judge just doesn’t wake up on the wrong side of the bed and use that as a basis for denying an applicant bail,” he usually says to stress the ridiculousness of the proposal.
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