When court cut down the law to get scribes
Jun 22, 2004
For the first time in the history of Uganda, on Friday, a conviction and sentence were meted out by a court of law without any formal charging, plea, or even a charge sheet.
By Anne Mugisa
For the first time in the history of Uganda, on Friday, a conviction and sentence were meted out by a court of law without any formal charging, plea, or even a charge sheet.
The guilty verdict passed on six journalists and a defence lawyer by the Court Martial was arrived at even before establishmentof whether an offence was committed in the first place.
The journalists who included two chief editors of the country’s main papers, The New Vision and The Monitor and their four reporters had rushed to the court after a less-than-an-hour summons to show cause why they should not be charged for contempt.
The journalists were prepared to show cause why they should not be charged with contempt of court in accordance with the summons. But the prosecutor, Sam Serwanga told the court that the journalists were supposed to show cause why they should not be committed to jail for contempt, and proceeded to ask the court to invite the judge advocate to address the court on their offence.
The chairman of the court martial decided to proceed with the prosecution on the basis of the prosecution’s application and the advice of the judge advocate.
The turn of events caught the journalists and their lawyers off guard. The lawyers tried in vain to persuade the court to formally charge the journalists and afford them a formal trial so that they could defend themselves in accordance with the law.
The two newspapers had published articles on June 17, of a technical objection by an army officer, Brig. Nakibus Lakara before the same court, against being charged by an officer junior to him.
The papers said that Lakara’s contention was that charges against him should have been signed by a commanding officer or an officer of a higher rank than his. The charges had been signed by Col. Noble Mayombo.
According to the prosecution, this publication was done in contempt of an earlier court order to have the trial in camera. Prosecution had applied for a closed hearing saying that the evidence to be adduced was sensitive because it would touch on the security of the country, deployment of UPDF, troops, intelligence reports and correspondence between the Commander-in-Chief with the senior UPDF officers in the field.
The journalists, through their lawyers, Robert Kabushenga for The New Vision and James Nagwala for The Monitor contended that the adhoc manner under which the trial was conducted undermined the delivery of justice as expected of such a lawfully established court. The journalists were never given an opportunity to relate the story to establish breach.
The accused’s contention is that there was never a breach of the court order barring the media from the trial because the order was never served on the journalists. According to the journalists, there was never such an order duly signed and executed.
A city magistrate said that if what the journalists wrote was not specifically barred, then they did not commit any offence.
“By conducting the court in the manner he did, the chairman himself was in breach of the law that requires the Court Martial to conduct proceedings as much as possible in accordance with the rules of the civil court,†Kabushenga says.
The journalists’ contention is that having been issued with summons, they should have been allowed to show cause why they should not be charged with contempt, and not why they should not be committed to jail for the alleged contempt.
The issue would have been different if the contempt with which they were being charged was immediate in the court.
The alleged offence for which they had been summoned to the court had been committed some place else and as a result there should have been procedures to follow, including investigations and formal charging.
During Friday’s proceedings, the lawyers were made to make submissions before leading evidence after which the chairman of the Court Martial, Lt. Gen. Elly Tumwine, led the accused in evidence.
The lawyers want to go to the Constitutional Court to challenge the conviction and the whole of Friday’s proceedings, especially the constitutionality of the orders issued on grounds of the Press and Journalists Statute.
Some of the issues they want to challenge is the summoning of the accused to the dock for trial when they had only come to show cause why they should not be charged.
The others are; criminalising a lawyer (Lakara’s lawyer, Caleb Alaka) for addressing the court, and forcing the journalists to reveal their source which would have normally called for an adjournment to seek guidance from the Constitutional Court.
“The whole process of the trial is now standing on its head and we need to turn it back to its feet. We are going back to Court to do that,†Kabushenga said.
Several city lawyers have since aired their dissatisfaction.
According to Eriasi Lukwago, the journalists should have been accorded their constitutional right to a fair hearing, be informed of the charges against them and then allowed to take plea before they were tried.
Lukwago says the Court Martial should have complained to the Police, allowed it to carry on investigations and then take the suspects for charging in the magistrate’s court.
“If I defied a Supreme Court order, would I be arraigned in the Supreme Court? No I would be taken to a court of original jurisdiction so that due process takes place...†It is unfortunate that even our very own people can be privy to that kind of abuse of the judicial process. They should have assisted the court and they did not. All they want is a conviction, how it comes about, they don’t mind...,†Lukwago says.
The President of the Uganda Law Society, Moses Adriko, says that Friday’s trial raised three issues:
l Whether the military court had jurisdiction to try civilians
l Whether the due process of the law was allowed to take place
l Whether the rules of natural justice were followed here.
He says that the law does not give the army court jurisdiction to try civilians. “Even if they had applied the Penal Code, in this instance it was hearsay. The due process should have been allowed to take place.
He says convicting Caleb Alaka, a defence lawyer, was unfortunate. He also says if Alaka had conducted himself in a manner unbecoming of an advocate, the matter should have been forwarded to the Law Council to try and penalise him.
Nangwala says that if the government wants to have confidential information revealed, it should enact a law so that everybody, including accountants, doctors and lawyers can be compelled to reveal such information about their clients.
Ends
For the first time in the history of Uganda, on Friday, a conviction and sentence were meted out by a court of law without any formal charging, plea, or even a charge sheet.
The guilty verdict passed on six journalists and a defence lawyer by the Court Martial was arrived at even before establishmentof whether an offence was committed in the first place.
The journalists who included two chief editors of the country’s main papers, The New Vision and The Monitor and their four reporters had rushed to the court after a less-than-an-hour summons to show cause why they should not be charged for contempt.
The journalists were prepared to show cause why they should not be charged with contempt of court in accordance with the summons. But the prosecutor, Sam Serwanga told the court that the journalists were supposed to show cause why they should not be committed to jail for contempt, and proceeded to ask the court to invite the judge advocate to address the court on their offence.
The chairman of the court martial decided to proceed with the prosecution on the basis of the prosecution’s application and the advice of the judge advocate.
The turn of events caught the journalists and their lawyers off guard. The lawyers tried in vain to persuade the court to formally charge the journalists and afford them a formal trial so that they could defend themselves in accordance with the law.
The two newspapers had published articles on June 17, of a technical objection by an army officer, Brig. Nakibus Lakara before the same court, against being charged by an officer junior to him.
The papers said that Lakara’s contention was that charges against him should have been signed by a commanding officer or an officer of a higher rank than his. The charges had been signed by Col. Noble Mayombo.
According to the prosecution, this publication was done in contempt of an earlier court order to have the trial in camera. Prosecution had applied for a closed hearing saying that the evidence to be adduced was sensitive because it would touch on the security of the country, deployment of UPDF, troops, intelligence reports and correspondence between the Commander-in-Chief with the senior UPDF officers in the field.
The journalists, through their lawyers, Robert Kabushenga for The New Vision and James Nagwala for The Monitor contended that the adhoc manner under which the trial was conducted undermined the delivery of justice as expected of such a lawfully established court. The journalists were never given an opportunity to relate the story to establish breach.
The accused’s contention is that there was never a breach of the court order barring the media from the trial because the order was never served on the journalists. According to the journalists, there was never such an order duly signed and executed.
A city magistrate said that if what the journalists wrote was not specifically barred, then they did not commit any offence.
“By conducting the court in the manner he did, the chairman himself was in breach of the law that requires the Court Martial to conduct proceedings as much as possible in accordance with the rules of the civil court,†Kabushenga says.
The journalists’ contention is that having been issued with summons, they should have been allowed to show cause why they should not be charged with contempt, and not why they should not be committed to jail for the alleged contempt.
The issue would have been different if the contempt with which they were being charged was immediate in the court.
The alleged offence for which they had been summoned to the court had been committed some place else and as a result there should have been procedures to follow, including investigations and formal charging.
During Friday’s proceedings, the lawyers were made to make submissions before leading evidence after which the chairman of the Court Martial, Lt. Gen. Elly Tumwine, led the accused in evidence.
The lawyers want to go to the Constitutional Court to challenge the conviction and the whole of Friday’s proceedings, especially the constitutionality of the orders issued on grounds of the Press and Journalists Statute.
Some of the issues they want to challenge is the summoning of the accused to the dock for trial when they had only come to show cause why they should not be charged.
The others are; criminalising a lawyer (Lakara’s lawyer, Caleb Alaka) for addressing the court, and forcing the journalists to reveal their source which would have normally called for an adjournment to seek guidance from the Constitutional Court.
“The whole process of the trial is now standing on its head and we need to turn it back to its feet. We are going back to Court to do that,†Kabushenga said.
Several city lawyers have since aired their dissatisfaction.
According to Eriasi Lukwago, the journalists should have been accorded their constitutional right to a fair hearing, be informed of the charges against them and then allowed to take plea before they were tried.
Lukwago says the Court Martial should have complained to the Police, allowed it to carry on investigations and then take the suspects for charging in the magistrate’s court.
“If I defied a Supreme Court order, would I be arraigned in the Supreme Court? No I would be taken to a court of original jurisdiction so that due process takes place...†It is unfortunate that even our very own people can be privy to that kind of abuse of the judicial process. They should have assisted the court and they did not. All they want is a conviction, how it comes about, they don’t mind...,†Lukwago says.
The President of the Uganda Law Society, Moses Adriko, says that Friday’s trial raised three issues:
l Whether the military court had jurisdiction to try civilians
l Whether the due process of the law was allowed to take place
l Whether the rules of natural justice were followed here.
He says that the law does not give the army court jurisdiction to try civilians. “Even if they had applied the Penal Code, in this instance it was hearsay. The due process should have been allowed to take place.
He says convicting Caleb Alaka, a defence lawyer, was unfortunate. He also says if Alaka had conducted himself in a manner unbecoming of an advocate, the matter should have been forwarded to the Law Council to try and penalise him.
Nangwala says that if the government wants to have confidential information revealed, it should enact a law so that everybody, including accountants, doctors and lawyers can be compelled to reveal such information about their clients.
Ends