PIC: Leader of opposition Winnie Kiiza talking to Nakawa Member of Parliament Micheal Kabaziguruka at high court during his application to block his trial in the Army court. Photo by Meddie Musisi.
The Attorney General (AG) has told the High Court in Kampala that the General Court Martial has jurisdiction to try civilians who aid and abet serving officers to commit offences which follows under the military law.
Appearing before Court presided over by Justice Patricia Basaza, principal state attorney George Kallemera told court that the jailed Nakawa MP Michael Kabaziguruka is rightly charged before the Army court because he abetted serving officers to engage in Acts meant to overthrow the government.
"Kabaziguruka is charged under section 191(1g) of the UPDF Act which provides that any person including civilians shall be subject to military law in commission of service offences." Kallemera said. He asked court to refer back the case to the Army court to proceed with the trial of the legislator and his 22 co-accused.
On the impartiality and independence of the court, Kallemera said that Kabaziguruka is not charged with political offences as he alleges but instead he is being charged with serious offences under the UPDF Act.
Kallemera said that the president is the commander of the armed forces by virtue of the constitutional obligation but does not direct members of the Army court on the delivery of the decision as Kabaziguruka alleges.
"For Kabaziguruka to allege that he will not be accorded to a fair hearing at the Army court, he must adduce incriminating evidence to justify his allegations." He said.
State Attorney Gerald Batanda also told court that they have incriminating evidence against Kabaziguruka and asked court in case it is inclined with the submissions of the applicant's lawyers, the case be referred to the Directorate of Public Prosecution instead of releasing him.
In rejoinder, Kabaziguruka's lawyer Ladislaus Rwakafuuzi said that even if Kabaziguruka is charged with abetting serving officers to commit offences, Law still prohibits trial of civilians in military court because the offences committed must be service offences and Kabaziguruka never belonged to the force.
He insisted that Kabaziguruka is charged with political offences which are highlighted under section 23 and 24 of the penal code Act as offences against the state.
Rwakafuuzi added that Kabaziguruka will not be accorded to a fair trial at Army court since the chairman of the High command is in government and participates in the day-to-day running of the UPDF yet Kabaziguruka is a strong opposition figure in the country.
"Army court cannot be independent because of the legal frame work in which it was set up as an organization of the UPDF which is directly controlled by the president who can even convene the court and the fact that its members directly reports to him." Rwakafuuzi said.
He added that nothing will the state or the public lose if the applicant is not tried in the Army court.
"If he is a real criminal and there incriminating evidence against him, let the Army court transfer the file to the DPP and takes over the case such that it can be handled expeditiously." He said.
Medard Sseggona also Kabaziguruka's lawyer told court that the independence of the judiciary is in built under article 28 of the constitution whereby once a judge is appointed cannot be directed by the president but members of the Army court can be directed, re-deployed or demoted.
Sseggona asked the judge to allow the application with costs to safe guard the continued charge of civilians in the Army court.
He said that any person to be tried before the Army court must have committed the offence while still a subject to military law.
Sseggona told court that Army court having been established outside Article 129 of the constitution, it cannot be taken as an impartial and independent court with in Article 28 of the constitution.
"It was established to discipline its peers and not civilians who are not governed by military law." He said.
The case was adjourned to September 16, when it will decide whether or not the legislator will be tried in Army court.
Recently, Kabaziguruka petitioned the High Court seeking a declaration that his trial before Army court is a violation of his constitutional rights to a fair trial.
He also wants court to unconditionally release him from the custody at Kigo main prison where he is currently incarcerated and damages.
Prosecutors at Army Court, Maj. Rafael Mugisha and Ambrose Baguma and the leader of opposition in Parliament Winnie Kizza were among the people present in court to follow the proceedings.
Kabaziguruka and his co-accused are alleged to have contrived a plot to overthrow the government of Uganda when they engaged themselves in war-like activities.
Prosecution at the General Court Martial further says that the accused did all the above with an intention to prejudice the security of Uganda's defense forces.
The offences are alleged to have been committed between the months of February and June in various places of Kampala, Wakiso and Luweero districts