The Criminal Division of the High Court Judge, Yasin Nyanzi, ruled that Kitatta filed the application in a wrong court.
KAMPALA- High Court has dismissed an application by the Bodaboda 2010 patron, Abdallah Kitatta, to block his trial at the army court.
Yesterday, the Criminal Division of the High Court Judge, Yasin Nyanzi, ruled that Kitatta filed the application in a wrong court.
“I do not have powers by virtue of the law to handle this matter being a judge guided by criminal procedure rules”.
He added: “I create a scenario where I am ordering the Government to pay costs and respondents’ damages. Where would I have got the power? He asked.
Nyanzi observes that cases of enforcement of fundamental human rights and freedom are subject to civil procedure rules and, therefore, are handled by the High court, Civil Division or Constitutional court.
“The argument Kitatta’s lawyer Jimmy Muyanja made can only be handled by the Constitutional Court but this court is limited to handling cases which are criminal in nature. Each division of the court has a distinct function,” he said.
He said the Criminal court is responsible for hearing cases that cannot be tried by the Magistrate’s Court such as murder, treason, aggravated robbery, terrorism and human trafficking.
Kitatta had filed an application at the High Court against the Attorney General, Col. Gideon Katinda, Maj John Bizimana, Maj Raphael Mugisha, Capt. Samuel Masereje and Lt. Ambrose Baguma through Muyanja and Associates.
Katinda, is the judge’s advocate, Bizimana is the court registrar while Mugisha, Masereje and Baguma are prosecutors.
He wanted court to declare that his trial at the General Court Martial (GCM) is defective, illegal and violates Article 28 (7) of the Constitution being a civilian who is not subject to military law.
“My trial at GCM is defective, illegal, unlawful, pre-emptive and usurped the powers of the minister under the Firearms Act, Cap. 299 to determine the ammunitions of war thereby violating the Constitution by presiding over non-existent charges,” he contends.
He argued that Article 120 (3) of the Constitution empowers DPP to take over, continue or discontinue his case at the GCM because he is a civilian and not a solider.
“Despite DPP being notified that I am a civilian, I was charged before the GCM, which neglects the constitutional mandate imposed by Article 120 of the Constitution to have civilians prosecuted before the Magistrate’s Court or High Court,” Kitatta submitted.
Kitatta contended that GCM has no powers to detain him at the military facility because he is a civilian. Kitatta has so-far spent about four months at Makindye Military Police barracks.
Kitatta together with 12 other people are battling six counts including unlawful possession of firearms, live ammunitions, military head gears and uniforms.
The military equipment includes two pistols, SMG rifle and 50 rounds of ammunition for the firearms, among others. The case is being presided over by Lt. Gen Andrew Gutti.
Other suspects are Sowali Ngobi, Amon Twinomujuni, Joel Kibirige, Matia Ssenfuka, Hassan Sebatta, Jonathan Kayondo, Hassan Ssegoba, Sunday Ssemwogerere, John Sebandeke, Hussein Mugema, Fred Bwanika and Ibrahim Ssekajja.
Kitatta separately faces five counts of being in unlawful possession of an SMG gun, 3 pistols and 50 rounds of live ammunitions that prosecution states were found with him on January 18, 2018 at Vine Hotel in Wakaliga.
According to prosecution, the above items are only a monopoly of the Uganda Peoples Defence Forces (UPDF).
Prosecution further alleges that the trio, with 12 others, on the same date were found in possession of military headgear (caps) and uniforms. However, Ngobi and Ssekajja are the only suspects who were not produced in court.
The arrest of Kittata followed a crackdown on suspects linked to the murder of Francis Ekalungar, the former accountant of Case Clinic. Most of the suspects are bodaboda 2010 members.
Ekalungar was kidnapped on January 2, this year by unknown assailants on his way to dfcu Bank to deposit over sh15m belonging to the hospital. A day later, his body was found burnt at Kajjansi off Entebbe Road.