8:30am: Besigye arrives at court aboard a prisons bus under tight security of two pick-up truck-fulls of Military Police and two of Anti-Riot Police. He is the only prisoner in the bus but is accompanied by 20 prison warders. Inside the court premises, a force of about 30 mean-looking policemen armed with batons cordon of the court cells where Besigye is held.
9:30am: Besigyeâ€™s wife Winne Byanyima enters the courtroom in the company of lawyers Mbabazi and Yusuf Nsibambi. They are unrobed and suspicious that the judge might kick them out of the court.
9:50am: Court starts.
Clerk: Miscellaneous cause no. 161/2005, Col. Besigye and in the matter of an application for a writ of habeas corpus and subjiciendum. (Besigye is directed to the dock but the judge orders that he takes a seat in the audience and is accordingly relocated).
Katutsi: yes please.
Mbabazi: I am Mbabazi for the applicant and Joseph...(Katutsi interrupts, saying he could neither hear nor see Mbabazi. He gives Mbabazi 30 minutes to wear a robe).
10:24am: Court resumes.
Mbabazi: I will begin by apologising.
Katutsi: It is okay, proceed. But what are these policemen doing here. Let them go out. â€œGo away.â€
Mbabazi: The applicant is in court and we are ready to proceed.
Matsiko: My lord, we are seeking guidance from court. We received a notice and greetings for this application without any other document. Even the purported affidavits sworn on behalf of the applicant are for ex-party application. My humble view is that this really means there is no application as there is no extra evidence supporting it. I pray for guidance and decision on this matter.
Mbabazi: I do not know whether he is seeking an objection.
Katutsi: Yes, according to his argument.
Mbabazi: My Lord, habeas corpus applications are normally ex-party under the habeas corpus rules 1972. The order for habeas corpus is received by the greetings and the notice. That is sufficient. We gave him an affidavit even without demand as the law says.
Katutsi: You mean if they wanted extra documents they should have demanded.
Mbabazi: Yes my lord, and essentially he is required to produce a return. I am even ready to receive the affidavit I have been served now without going into technicalities.
Katutsi: Matsiko wants to know why the applicant has been produced. Were the affidavits satisfied? He is before me and I want to know why he is here.
Matsiko: He is going to argue his application and I would want to respond.
Katutsi: I propose we proceed and hope you do not bring evidence that is not before court.
Mbabazi: Much obliged, my Lord. My lord, the respondent has filed affidavits, one of Maj. Kagoro Asingura and has annexure. For our purposes, we are interested in the warrant of commitment on remand. There is a signature for the chairman Court Martial and order was to the officer in charge (Luzira) Upper Prison.
It is the applicantâ€™s contention that the committal was up to November 25. When it reached that day, the warrant expired. However, the state on the same warrant on the backside, there is an endorsement saying the matter adjourned to December 19, 2005. The catchword here is adjourned.
The respondent has also produced an affidavit from Robert Munanura and has made attachments. It is the same attachments he has also made. If you see how they were extending, the whole exercise was illegal. The committal is completely defective.
When we were appearing before the High Court, the court had two duties to justify on the detention. (Defection on the face of the warrant and whether it was properly extended).
Remand is an order of court affecting the right to Liberty of an individual. It therefore ought to conform to the law. What I discussed in the first place were errors. Instead of remand, it was adjourned.
A warrant issued by a court clerk could not be a valid one. A warrant issued by a grade II magistrate on a matter before the High Court, would also be invalid and would render the detention illegal.
In this case, after the matter had been adjourned to December 19, 5005, there was another endorsement on December 19 and says matter adjourned to January 3, 2006. It is on the basis of this that the Commissioner General is justifying the continued detention of the applicant.
We need to listen to how those endorsements were made. When you look at Munanuraâ€™s affidavit, they are basically saying nothing. On one hand, we have Munanura being advised by the Solicitor General that stay of proceedings by the High Court does not stop the court martial from extending the warrant. He further says the court martial decided to stay proceedings. It is not denied.
The question is, how do you extend a warrant when proceedings have been stayed? For clarity, the order for stay by the High Court is attached.....
The court martial prosecutor is saying that they stayed proceedings and the prisons say they have a warrant. I found the legal perspective of warrant as so important. Warrant is a process of court. There must be court to exercise its powers and authority.
How can the court martial have exercised its authority when the proceedings have been stayed? This cannot be done and since it cannot be done, the applicant is being detained illegally.
He should be released and that is what habeas corpus is about. The stay of proceedings is more of freezing. So if the warrant expires, the person ought to be released. That is my contention. Actually when stay of proceedings is ordered, the jurisdiction of that court or tribunal is put on hold. No one can appear there.
Katutsi: Which stay are you talking about? I thought the stay by this court is being contested in the Constitutional court.
Mbabazi: When I came here, I looked at the judgment of (Remmy) Kasule and that does not arise.
Katutsi: So what is before the Constitutional Court?
Mbabazi: They are several but that is not one of them.
Matsiko: It is actually one of the central issues in court.
Katutsi: Okay Mbabazi proceed.
Mbabazi: To appreciate fully is whether the applicant should appear before the Court Martial. But to them, they said it was impractical. If an order is given by this court and another court proceeds to do so, then that is contempt of court.
To show that they are very serious with the proceedings in the court martial, you can see that they can still entertain an application for bail. They are bent on continuing with the proceedings despite the stay.
If the prisons authorities wanted direction on this matter, they should have come to court to seek review of the judgment by justice Remmy Kasule.
Kagoro has also talked about the applicant running away, but that is not an issue.
Katutsi: I will not entertain that.
Mbabazi: Much obliged, my lord. Article 23 (9) on habeas corpus is inviolable and cannot be suspended. It is my submission that you do order for the release of the applicant because his continued detention is illegal.
We have not sought for damages because it is liberty first.
Matsiko: I oppose the application. The grounds raised in the notice of motion and affidavits do not justify an order for release of the applicant (Besigye) from custody. I will rely on two affidavits of Robert Munanura and Maj. Kagoro.
Without spending a lot of time, those affidavits contain a lot of valid and lawful grounds for the continued detention of the applicant in Luzira.
Katutsi: Bear this in mind, this court granted bail to the applicant.
Matsiko: It is true my Lord, but the applicant has other charges in the court martial.
This court did grant bail to the applicant in criminal cases of treason, rape and concealment of treason that are before this court. The applicant has other charges in the court martial. Evidence has shown that he has not applied for bail in the court martial.
Either on proceedings before this court or court martial, there is no order releasing the applicant in as far as the proceedings before the court martial are concerned.
It is also clear in the judgment of Justice Kasule. He said he declines to release the applicant at that stage.
The order does not entitle the applicant to release in respect of charges before the court martial. In view of the court martial charges, the applicant is in lawful detention.
This brings me to the issue of the warrant of commitment. The commitment clearly states that Besigye was remanded until November 25, 2005 and at the back, it shows that the warrant was extended to December 19 and further extended to January 3, 2006.
Katutsi: Are you reading what is on the committal warrant or you are reading your own things? Stick to what is on that warrant.
Matsiko: Okay, my Lord. The matter was adjourned to December 19 and further to January 3, 2006.
(Matsiko reads this comparing it with Kagoroâ€™s affidavit that indicated that Besigyeâ€™s continued detention is lawful).
Katutsi: what do you want us to go by? The words on Kagoroâ€™s affidavit or what is on the committal warrant?
Matsiko: I will read them together but my humble submission is that it is the warrant that was extended. The court martial can stay proceedings but can extend the warrant of commitment. The judge said all must stay and the applicant should remain on remand in prison. And to argue otherwise would be absurdity.
The adjournment meant extension of commitment. This is a mere technicality but it meant extension of commitment.
Katutsi: My job is to determine whether the applicant is being legally detained under the circumstance.
Matsiko: In view of the central issue of the court martial being in the constitutional court, you should not grant the applicant release. The High Court cannot order the court martial to stay proceedings. On Ibingiraâ€™s case, counsel talked about the validity of the detention. I pray for dismissal of this case with costs.
(Case adjourned to Monday for ruling).

World Philosophy Day

Etymologically, philosophy as a word means “love of wisdom”. It is derived from two Greek words: philia which means love, and sophia which means wisdom.

Dr. Mutyaba Emmanuel Musoke

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