Human rights commissioner speaks on PRA

Feb 11, 2007

I have, with much unease, read several articles in the print media and listened to various radio debates related to the mandate of the General Court Martial. <br>Below is my legal opinion on the matter.

Mariam Wagadya

I have, with much unease, read several articles in the print media and listened to various radio debates related to the mandate of the General Court Martial.
Below is my legal opinion on the matter.

In line with Article 210 of the Constitution, Parliament enacted the UPDF Act which provides for, among others, the General Court Martial (GCM). The court has both original and appellate jurisdiction over all offences within the ambit of the Act.

Under Section 15 of the Act, persons subject to military law include, among others, “every person found in unlawful possession of arms, ammunition, equipment and other prescribed classified stores ordinarily being the monopoly of the army.” Therefore, any person in unlawful possession of the items mentioned above can be legally prosecuted by the army court. The prosecution of civilian suspects in the army court is therefore lawful.

The GCM is not inferior to the High Court. The two are parallel courts deriving their power from the Constitution. While the High Court has unlimited original jurisdiction in all matters generally, the army court deals specifically with discipline of military personnel and other persons as provided for under S. 15 of the Act. The High Court and Constitutional Court should therefore not be seen to undermine the authority of the army court.

Any accused person seeking release on bail ought to apply for it in the same court trying him and not a “rival” court. Specifically, any accused person being tried by the army court ought to apply for bail in the same court and not the High Court. The jurisdiction of the High Court does not extend to matters pending before another parallel court. The Prisons Service should also be spared the venom. Dr. Byabashaija is keeping PRA suspects because a lawfully constituted court – the GCM – has ordered him to do so.

Uganda is not the only country with a Court Martial system. Courts Martial exist in all civilised nations. There is nothing strange or unlawful about the army court trying the PRA suspects. The country needs the Courts Martial. Without them there would be complete anarchy.
The army court should resist intimidation and blackmail by politicians, some of who are disguised as human rights activists.

Supposing it is true that the PRA suspects were arrested by UPDF soldiers in action in Ituri forests, what message does all this pressure send to the army? That in future rebels who surrender must never be allowed to return home! Is this what we desire for our country?

Once a matter has been taken before the courts, the courts should be allowed to do their work. Judicial matters must be resolved within the courts and not through intimidatory letters, press conferences, demonstrations and any other kind of undue influence. The law should take its course. The party in whose favour the judgment has been delivered has a duty to initiate execution proceedings.

A judgment remains a declaration until the same is executed. Counsel for the successful party has a duty to extract the decree with the orders and the necessary warrants and present them before the judicial officer who presided over the case for his or her signature. It is the decree and warrant which are served on the unsuccessful party, or any other concerned officer, for compliance. All the legal procedures must be exhausted.

Article 17(1) (f) of the Constitution states that, “It is the duty of every citizen of Uganda to cooperate with lawful agencies in the maintenance of law and order”. Are we complying with these provisions when we keep referring to judicial officers as “impotent, castrated, dead, docile and non-existent”? Is it a show of respect for judicial officers when we walk out on judges?

Why have the so-called human rights defenders narrowed their focus to the detention of PRA suspects and not equally demonstrated against vices like child sacrifice, rebel atrocities, the apparent failing peace talks in Juba, and others?

Human rights institutions are enjoined to serve all people. We risk being hijacked by politicians whose motives we may not clearly appreciate.

The writer is a lawyer and member of the Uganda Human Rights Commission

mwangadya@yahoo.com

(adsbygoogle = window.adsbygoogle || []).push({});