My personal view & thinking backed up by law.
Yesterday, his Excellency the President of the Republic of Uganda Yoweri Kaguta Museveni addressed the nation regarding Covid-19, in his address to the nation, he introduced additional measures on how to contain the spread of Covid-19 but through out his address, one particular statement caught my attention and it will form the basis of my argument this evening. The statement read “Any politician who gives out food seeking cheap popularity will be arrested and charged with attempted murder”. He actually remphasized this issue once again in his follow up speech that he delivered today at 8 PM.
Does the statement hold water legally speaking.
It is public knowledge that laws in Uganda are made by Parliament by virtue of Article 79 of the Constitution of the Republic of Uganda, 1995 not the President. (My emphasis). A law becomes law in Uganda not because the president wishes it to be but rather Parliament although the President is a key player in the law making process when it comes to ascent.
Under criminal law, a person can not be charged for an offence unless the same is clearly stated under the law and it’s punishment prescribed, this is what is known as the principle of legality @Nulla poena sine lege. This principle is embedded in our Grand Norm under Article 28 (12).
What is the law on attempted murder in Uganda.
The offence of attempted murder is provided for under section 204 of the Penal Code Act Chapter 120, for ease of reference, i will replicate it here verbatim @ipsisima verba.
Attempt to murder.
Any person who—
(a) attempts unlawfully to cause the death of another; or
(b)with intent unlawfully to cause the death of another, does any act or omits to do any act, which it is his or her duty to do, such act or omission being of such a nature as to be likely to endanger human life, commits a felony and is liable to imprisonment for life.
The elements of attempted murder were set down in the case of Uganda Vs Hassan Agade & Ors Crim. Session Case No. 001/2010 (unreported) to be,
- The intention to cause death of another (malice aforethought).
- Manifestation of that intention by an overt act.
- Participation of the accused person.
From the wording of the law & the elements of the offense of attempted murder & with the greatest of respect to our Dear President, I don’t see the connection between distributing food with the aim of saving lives to the offense of attempted murder, there is no offense in other words. Even if a person is charged with that offense in such circumstances, such a charge sheet will be defective but this doesn’t mean there is no alternative offense that can suit such politicians. His excellency should always engage his Attorney General more often such that he keeps him enlightened & informed about such pertinent legal aspects.
What would be the likely offense in such circumstances.
The likely offense would be “Negligent act likely to spread infection of disease” contrary to Section 171 of the Penal Code Act Cap 120.
This offense is provided for under Section 171 of the Penal Code Act Cap 120. For ease of reference I will replicate it here verbatim @ipsisima verba.
Any person who unlawfully or negligently does any act which is and which he or she knows or has reason to believe to be likely to spread the infection of any disease dangerous to life commits an offence and is liable to imprisonment for seven years.
Given the reasoning of the President, it is my humble view that negligent act likely to cause infection of disease would be much more appropriate to charge such politicians with provided all the elements of the offense are proved beyond a reasonable doubt i.e the politician must have acted unlawfully and negligently, they ought to have known that there was a likelyhood for the spread of Covid-19 among other elements.
Be that as it may, in view of the Postivist School of Legal Thought, a President can make law, as per John Austin in his book “The Province of Jurisprudence Determined 1832”, the Learned Scholar opines that provided the law is emanating from the sovereign authority and it is backed up by sanctions such a law is good law, one may argue that in the context of Uganda it is the Parliament other than the President which is sovereign, this is because it has legislative powers. But considering our criminal laws as they stand as of today, such politicians that the president was talking about can’t be charged with attempted murder in the circumstances he elucidated, that would be contrary to the principle of legality which is the bedrock & core principle of criminal law, they may instead be charged with “negligent act likely to cause infection of disease” contrary to section 171 of the Penal Code Act Chapter 120. But still this would be subject to proof of all the essential ingredients elucidated in that section, failure of which, an acquittal would ensue.
Before I take leave of this matter, I call upon everyone to obey and listen to all the directives issued by the Ministry of Health and the President of the Republic of Uganda. That is the only way we are going to defeat this pandemic. We also need to respect the government in power because according to the Holy Bible specifically in the book of Romans 13:1 “Every person should obey the government in power. No government would exist if it hadn’t been established by God. The governments which exist have been put in place by God”. So let’s respect the government in authority for it was put in power by God, it is not their by mistake. We should commit ourselves to God as well through fasting and prayer.
With those few words,
I rest my case,
The writer is a Lawyer & a humble Citizen.
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