Tuesday, May 17, 2011

Prerogative of mercy without justice: Bakoko should be arrested on arrival at Entebbe!

On Labour Day, a pronouncement that is fundamental to the fight against corruption was made by the Head of State on Hon. Bakoko Bakoru’s indictment in a case where workers lost billions of money in one among the very many NSSF scandals that we now know as the Nsimbe estates ferocious deal. The President supposedly did this as an olive sign to the disgraced former Minister of Labour who in fear of prison fled to United States of America.

Without detailing the obvious effect this has in the fight against corruption and increase in the temerity of those that are taking public funds as if it is from their banana plantation, I would wish to explore whether the act of forgiving a person without the due process of law is in itself legal and therefore permissible. I write this as a lay person (to be precise, a mathematician up to graduate level), and therefore this reasoning should be looked at in a way that can be deciphered so that possibly private legal action is taken (against Bakoko) to deter some of these obvious circumstances that promote impunity.

The root of prerogative of mercy is in the British tradition (which Uganda follows) is one of the historic Royal Prerogatives of the British monarch in which he or she can grant pardons to convicted persons. In actual practice, this power has been delegated to the Secretary of State for Justice in England and Wales and the Scottish Ministers in Scotland. It was originally used to permit the monarch to withdraw death sentences, but is now used to change any sentence or penalty.

Under Article 121 (1) of our constitution of 1995, before such declarations there is supposed to be an Advisory Committee on the Prerogative of Mercy which shall consist of the Attorney General who shall be the chairperson; and six prominent citizens of Uganda appointed by the President. Their qualification and roles are clearly spelt out but specifically they are to advise on how to “ grant to any person convicted of an offence a pardon either free or subject to lawful conditions; a respite, either indefinite or for a specified period, from the execution of punishment imposed on him or her for an offence; substitute a less severe form of punishment for a punishment imposed on a person for an offence; or remit the whole or part of a punishment imposed on a person or of a penalty or forfeiture otherwise due to Government on account of any offence. In other words it is clearly after a court process with the exception of the field Court Martial.

In Rwanda a similar arrangement is in place. The Constitution specifies that “The President of the Republic has authority to exercise the prerogative of mercy in accordance with the procedure determined by law and after consulting the Supreme Court on the matter”. Again there is a process and procedure.

In spite of the law, I know that a crime which implies law-breaking or delinquency when committed is treated in accordance with clear laid down processes. And these laws are normally enacted in accordance with certain conditions that mantle the operational environment in a state. When crime is committed, there is a mechanism that is followed part of which may be either a light or harsh sentence or just a warning by an agent of Justice. That leads to what we all hear or understand as “justice”. In other words, crime (or breaking a law) is the essence of Justice. Without crime, nobody would talk about justice. That is why it is risible for anybody to settle crimes (defilement, corruption, capital offences etc.) out of court. It is no longer the business of the person affected but that of the state.

For justice to be seen that it was done there is also a clear process. And it is this Justicethat becomes the essence of mercy. Surely, we cannot afford to give mercy without justice. And that is where I think H.E the President is wrong. You cannot be seen to forgive somebody in the ‘process of justice’- because they are still even innocent. Mercy would imply that they have already been pronounced guilty. In any case, then the accomplices with whom Bakoko was to be tried with would have been pardoned at the onset.

When I was working in one of the Government Institutions in March 2005, a learned friend informed me that a Commissioner in Education Ministry would not be put in office after he became the best in public Service Commission (PSC) interviews allegedly because there was another commissioner who was appointed through the ‘Prerogative of Mercy’ of the President (no mistake here!). I informed the learned friend at that time that it would be illegal to substitute PSC role with “Prerogative of mercy”. Thankfully, that was resolved positively in favour of the PSC decision. To be sincere therefore, I think that mercy is derived from Justice. The President cannot therefore forgive a suspect; he can only do that to a convict as was in the case of Hon. Rwakasisi.

Finally, mercy is the essence of grace. Grace is unmerited favour, only granted by God to the ‘guilty’- those who think that they are innocent don’t benefit! And in New Public Management, the only room for grace and mercy is improved service delivery to the poor. The rest is done as if it is in a profitable business. So, in a way, there cannot be prerogative of mercy without justice and therefore, Bakoko should be arrested on arrival at Entebbe! She is a suspect and the IGG must convict her in order for her to benefit from the Presidential olive branch, more to the detriment of the workers who lost their hard earned savings.

If this trend is what we are to see for the next five years, then be afraid/real afraid!

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