Can Museveni get Minister Kitutu off the hook?

There is sufficient political literature for one to make a conclusion that indeed a president in Uganda has enough authority to influence the pardoning of an accused person before courts of law. Hon. Mary Gorreti Kitutu, who faces a host of charges before the courts of law in Uganda, and above all, as a lady, she is quickly overwhelmed and can’t hold on for long. Court processes are quite stressful considering her advanced age and being a first-time offender, and can even lead to suicide in some cases.

The Bamasaaba have heard her cries and will petition the president to extricate her from the burden. After all, the Bible says those who confess their sins will be forgiven. Hon. Kitutu, in a number of correspondences, appears to concede that indeed she may have acted out of order. If the president glosses over Hon. Kitutu’s sins, this will not be the first time to do so.

On January 5th, 2021, the Daily Monitor relayed requests of the Kisoro LCV chairman beseeching the president to pardon General Kaihura over a series of offences ranging from kidnaps of people to Rwanda, issuing out guns to the Kitata group, and murders in Entebbe. The president said he would look into their requests, and indeed, all these charges against Kaihura were dropped, and Gen Kaihura was eventually retired peacefully from the military. I hope no one will accuse me of trying to reincarnate and compare Kaihura’s crimes and those of Gorret Kitutu.

It is a popular proposition and a valid assumption that what is the source of the agenda is also the source of the goose, literally meaning that what is good for one person is good for another too. If General Kaihura could be pardoned, how about Hon. Kitutu, whose crimes are a little lower in magnitude?

Hon. Kitutu’s crimes are office-related and involve the stealing of chattels, which is punishable under the Penal Code Act. However, some of the charges against her are also vicarious in nature, and she merely bears political responsibility for failing to exercise vigilance as the line minister.

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I had previously made an earlier argument that the people who should face the full wrath of the law should be the technical officers who failed to render the necessary technical guidance on how such critical items as iron sheets should be distributed.

Does the law allow the president to interfere in court processes? Whereas Article 128(1) of the constitution emphasizes the independence of the constitution and goes ahead to discourage anyone from meddling in court processes, as a court of law should always act independently, there are also situations where courts of law have been accused of a miscarriage of justice.

I think that is why the president was clothed with authority in line with the doctrine of the prerogative of mercy, where he could pardon convicted persons on advice by the line minister in a way checking on excesses of courts of law. Relatedly, I also take note that courts of law mediate and arbitrate over criminal and civil cases but not complainants. Once the complaining party chooses to withdraw a matter before the court, the court cannot challenge that decision.

The complainant in this respect is the Director of Public Prosecution, and Hon. Kitutu may be telling the president that the crimes she is being accused of are vicarious in nature, since she was not found anywhere red-handed selling or stealing the iron sheets.

Whereas the president is not vested with the authority to discontinue proceedings before the court, he is vested with the authority to pardon accused persons after they are convicted. A legal scholar once said that law is thoroughly political and that lawyers and judges can’t avoid politics. No wonder that all these laws are made by parliaments.

If the Director of Public Prosecution signs an nolle prosequi note, Hon. Kitutu could be a free woman in an instance. A nolle prosequi note is the most important decision in litigation and is never challenged by anyone, not even the Chief Justice or even the president.

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The writer is a researcher from Mbale and a spokesperson for InzuyaMasaaba

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