Before he put his seal on the Bukenya papers, Rafael Baku (his name in Madi means literally “not a human being” or figuratively not of this world) must have pondered whether or not to pick up the phone and call President Yoweri Museveni. After all Gilbert “ Balibaseka” (in Luganda his name means “ they used to make fun” of me, and by implication, hey look the joke is on them) was a former Vice President. He had been dismissed in a politically contentious environment. Amongst the legal fraternity proving his guilt before the courts, if he were guilty, would be a major trial of the criminal justice’s cross to bear. Justice Bosco Katutsi famously said the bench was tired of the small fish of Uganda’s notoriously corrupt public sector when “crocodiles” (some of the biggest are known to troll the Nile) wade proudly in public view. Bukenya is not visually reptilic. He looks more like a puss- in- boots, a Muganda Garfield, the kind with nine political lives. Why Rafael Baku did not give the President a courtesy call still baffles me.
When we sat down on the 7th of December to discuss his official report to Parliament of 2011- I made it a point to ask the Ombudsman. Prior to his appearance on 933 KFM, I had posted a note on my FaceBook page to say he would be coming. It was met with the sort of heckle and spittle one reserves for a disgraced family member who has the audacity to return home after putting the clan to shame. Some said he was a straw man in the fight against corruption. Another said to ask his opinion about his position as acting “doormat” in reference to the fact that although he took over his predecessor Justice Faith Mwondha’s job- he has never really been appointed to the job. I must admit I have been shadowing the Inspector General of Governmentever since I first took interest in that office when Jotham Tumwesigye (now a Judge) had the job. In my interactions with all the Ombudsmen (including Mwondha who had the most balls or gall), the quiet spoken Baku stands out as an outlier. Sometimes folks like him can be underestimated.
“ Why didn’t you call the President?” I asked during the break. The man breaks into a smile and then says the law does not require him to call the head of state to announce a prosecution. But I pointed out that the office he holds in fact is also a political office. Case in point is my request, rejected by both the last two IGG’s to make the declarations of wealth public. Baku backed into the constitutional independence of the IGG as a defense. Feeling lucky, I launched into an argument about how the Central Bank governor Tumusiime Mutebile, another constitutionally independent office had confessed several times, and voluntarily so, to not being independent. Indeed rather than declare his independence Mutebile and several members of the Cabinet have sought the protection of Presidential immunity something I would like to explore here soon.
Well Baku said precisely because the President was a politician “ what if he said do not prosecute?” Well after telling the Uganda Law Society he had a good case against Bukenya and repeating the claims to the media, Baku, mysteriously withdrew the charges. This week Bukenya was acquitted basically because the state (and Baku) did not make a prima facie case, the lowest and most primary standard for a case.
The whole episode is embarrassing but the explanations about it do not by themselves suffice either. They leave room for the kind of speculation that leads nowhere. Baku during the Hot Seat however said his case against Bukenya was not expired. He had a case he said still.
Baku is probably going to join the bench (according to those who speculate knowledgeably about this sort of thing) but what is one to make on his on-again off-again “independence”? If you look at the behavior of politicians and civil servants its vogue these days to pass the buck. The higher you are the buck is passed on to shelter under the shield of Presidential immunity. Bukenya certainly tried to make a case for this as a defense – suggesting that since he took decisions as a surrogate of the President that somehow this allowed him the cover of the immunity the constitution offers a head of state.
The judges disagree and so do I.
Alas however it appears that while the President is bypassed – and often- by civil servants and politicians- they seek the shelter of the protection his office offers. A question that needs to be answered is if that immunity were to expire then what?
In the case of Bukenya what is clear is that he is free not because he had no case to answer but because he was never really prosecuted.
This era of Presidential entrapment and its implications for Uganda’s political path is something we should return to here soon.
Over to you.