Lawyers’ petition begins at Constitutional Court
Following the charging of Col. Kizza Besigye and 22 others with terrorism in the General Court Martial, the Uganda Law Society (ULS) petitioned the Constitutional Court seeking to stop the trial, which it called unconstitutional. The constitutional Court hearing started yesterday, conducted by a pa
Following the charging of Col. Kizza Besigye and 22 others with terrorism in the General Court Martial, the Uganda Law Society (ULS) petitioned the Constitutional Court seeking to stop the trial, which it called unconstitutional. The constitutional Court hearing started yesterday, conducted by a panel of five judges. They are deputy Chief Justice Laeticia Kikonyogo and Justices Galdino Okello, George Engwau, constance Byamugisha and Steven Kavuma. The ULS is represented by lawyers Godfrey Lule, Peter Mulira, David Mpanga and Medard Lubega. Solicitor General Lucien Tibaruha and Joseph Matsiko, the acting director of civil litigation, represent the Government. Anne Mugisa and Hillary Kiirya recorded the proceedings
Lule: There is an issue I would like to raise. I would like to raise the issue of the jurisdiction of the Court Martial because it would considerably reduce…depending on your decision.
Okello: You would like us to rule on that?
Lule: Yes my lords.
Okello: That would delay proceedings. I suggest you argue everything at once…if we go like that, we are unlikely to beat the time.
Lule: Much obliged. Last evening we got some constraint. We were served with affidavits from the other side. (Says wants to cross-examine the person who swore the affidavit).
Tibaruha: The witness is our witness and he is Maj. Kagoro.
Kikonyogo: Is he around?
Tibaruha: No. We have just been informed. We need time to inform him.
Lule: Then if he is not around for cross-examination, ignore his affidavit.
Okello: (To Lule) He isn’t saying don’t cross-examine. He is saying inform him in time.
Lule: (Asks the judges to direct on what should be done and he would follow.)
Okello: If you are not cross-examining say so precisely, but don’t push it to us to decide. Cross-examination is your right.
Tibaruha: If we adjourn we can look for him.
Lule: (He abandons cross-examination when asked if they should adjourn to call the witness). The petition was brought under articles 50(i) (ii) of the Constitution and article 137 (iii) of the Constitution.
The purpose of article 50(i)… it is the petitioners’ case that the acts of the Anti-Terrorism Task Force, which is an agency of the government, did not only threaten the independence and impartiality of the court or courts in general at the time, but continues as a looming danger. Under Article 137 (v) the high Court which is seized with the matter which gives rise to the interpretation of the Constitution, that the High Court may refer the matter to the constitutional Court. The only exception is if it arises under the Field Court Martial.
This court has power to accept reference from the High Court and since this court has been requested by the petitioners to interpret the Constitution, it is my submission that in addition to being a court of interpretation of the Constitution, it is also a competent court to consider the matters under article 50, if it can conveniently be tried together as it arises.
Articles 28 of the constitution which embodies the right to fair hearing runs through all the issues framed. And the arguments I’ll put forth will affect all the petitioners. Before I go further, I wish to first challenge the jurisdiction of the General Court Martial in respect to offences alleged to have been committed under the Anti-Terrorism Act.
The jurisdiction is a creature of Statute. No court can confer upon itself jurisdiction except under a statute. Chapter 18 of the Constitution makes provisions for the judiciary…under article 129, Courts of Judicature are provided for and they are; the Supreme court of Uganda, the court of Appeal of Uganda and the High Court of Uganda and as a procedural…such subsidiary courts as Parliament may establish. My understanding of these provisions is that the three higher courts derive their authority from the constitution itself. All the other courts derive their authority from the Constitution, but via Acts of parliament, in which case the Act of Parliament establishing or conferring jurisdiction must not be ultra vires (with) the Constitution.
Article 130 provides for the Supreme Court, 134, 135 and 136 provide for the Court of Appeal, Article 137 constitutes the Court of Appeal to be a Constitutional Court with powers also to set up the Appeal and composition, and article 138 establishes the High Court. Under Article 139 (i) the High court is conferred with original jurisdiction in all matters in addition, it exercises appellate jurisdiction as may be conferred by the law.
Under Article 210, Parliament is empowered to make laws regulating UPDF and particularly providing for organs and structures of the UPDF pertaining to recruitments, appointments, promotions, discipline and removal of members of the UPDF and ensuring that members of the UPDF are recruited from every district of Uganda.
Additionally….. must provide for conditions of service of members of the UPDF and the deployment of the troops outside Uganda. My understanding of this provision is that it caters for matters exclusively in the army or authority of the UPDF. And if any court is set up under the law made by parliament for purposes mentioned in this article, must confine itself to those purposes and no more.
The General Court Martial set up under section 197 of the UPDF Act which says (Reads the provision) Under sub-section 2 of 197 of the UPDF Act, the GCM shall have unlimited original jurisdiction under this Act and shall hear and determine all appeals referred to it from divisional court martials and disciplinary committees. In other words the unlimited original jurisdiction conferred on the GCM is not so unlimited. It is limited to jurisdiction under this Act and no further.
To the petition is attached annexture B, which is an amended charge sheet of the GCM holden at Makindye. It charges 23 persons. The first one being Retired Col. Dr. Kizza Besigye, the second one Capt. James Katabaazi. The rest have no title showing that they have any position in the army. So the 21 out of 23, unless evidence is produced to the contrary, I would assume that are not army men… The first charge, they say that these people committed acts of terrorism within and outside Uganda in diverse places. And it gives a motive of a political aim intended to intimidate. The second charge is unlawful possession of firearms contrary to section 3(1) (2) (a) (b) of the Fire Arms Act and that those offences were committed within Uganda and outside Uganda. There is nothing in these charges to show that these charges were committed under the UPDF Act for which the GCM has jurisdiction to try the suspects. In other words, the GCM in charging and endeavouring to try the accused, they are acting contrary to the provisions of the UPDF Act.
I would like to go further to say that section 3 of the anti-Terrorism Act under which the GCM purports to charge the accused says that no person shall be prosecuted for an offence under this Act except with the consent of the Director of Public prosecutions (DPP). I wish to take you to annexture C to the petition. This is an indictment in the High Court preferred against the very same people who are being prosecuted under the GCM. That indictment shows clearly the sanction of the DPP and this is a requirement under the Trial and Indictment Act (TIA). The charge sheet under the GCM does not show that that was complied with by the GCM. So the GCM arrogated themselves to confer jurisdiction upon themselves, the jurisdiction not authorised by law. Instead, section 4 of the Anti Terrorism Act confers jurisdiction on the courts of Uganda. This means the ordinary courts.
Section 6 of the Anti-Terrorism Act says that the offences of terrorism and any other offence punishable by more than 10 years imprisonment are triable only by the High Court and bailable in respect of those offences, by the High Court.
The GCM not being the High Court has no jurisdiction to try anybody in Uganda for an offence of terrorism under the circumstances and not to grant bail under…. The GCM as you have seen under section 197 of the UPDF Act has …to try cases only under the UPDF Act. Hence unless they show that the Fire Arms Act (FAA) is one of the Acts falling within the army or UPDF Act, the GCM has no jurisdiction to try anyone for offences committed under the fire Arms Act.
My perusal of the UPDF Act does not show that the FAA has been placed under the jurisdiction of the UPDF Act. It is my submission that the GCM has no power to try the accused or anybody else for offences alleged to have been committed under the ATA or the alternative offence in the charge sheet of being in possession of firearms contrary to the FAA.
(He argues that the state could try the suspects in the ordinary courts. And that the Constitutional Court should declare that the accused cannot be tried in the Court Martial. He submits that the Court martial is incompetent to try anybody charged with a criminal offence because there can be no fair hearing. Says the court Martial is not independent).
The accused are obliged to appear in the High Court on three other charges, but a reading of the two charge sheets shows that the alleged offences arise from the same transactions. In essence the offences are the same. Were the Court Martial to have power, these accused would be menaced twice for the same acts or alleged acts or if both courts convicted, they will be punished twice for the same offence. Under sections 18 of the Penal Code Act, it says (reads that one cannot be punished twice for the same offence) terrorism is an offence punishable under the Penal Code, section 26 which says (i) (reads that it provides for life imprisonment) yet under the Anti-Terrorism Act, the punishment is death. There is a complex situation if the Court martial convicted and sentenced them to death and the High Court convicted and sentenced them to life imprisonment. What would happen if the GCM convicted first and carried out the sentence fast.
(He cites the case of Tumushabe and says) This court had to deal with hierarchy of courts between the high Court and the GCM. The majority judgement of four to one held that the GCM was subordinate to the high Court. It follows therefore that the GCM does not have the same concurrent jurisdiction of the high Court to which it is subordinate.
So original unlimited jurisdiction under the UPDF Act is confined to military offences. Only two of the accused served in the army and only one is in the army or might still be there. The other, Besigye, is said to be retired.
Section 119 of the UPDF Act sets down a description of persons subject to the military law. They are all military people apart from those falling under the (g) and (h) of 119 subsection (i). Those under (g) and (h) are brought in as civilians who may be tried under the military law are (reads that any person who aids or abets one under military law in commission of a service offence or a person found in unlawful possession of firearms, ammunition or equipment ordinarily being a monopoly of the defence forces, or other classified stores as prescribed…) So in the GCM, none of the ingredients mentioned in (g) and (h) is mentioned in the charges. The only link with the military law for those people is absent. So without that link, the GCM cannot exercise powers to try civilians in the charge sheet as persons subject to military law.
It is not sufficient to say they were found with weapons. They should be a monopoly of the UPDF. Not every weapon however large the arsenal.
If the charges on the charge sheet cannot apply to the accused, at least those that are civilians. I can’t talk about the second accused much because there may be evidence that he is still in the army.
Those people to be tried under the GCM cannot have a fair hearing and the impartiality is attached right from the beginning. (He says the GCM must give way to the High Court because it is inferior. He also submits that it was the High Court that first commenced prosecution before the Court Martial and that even if it had jurisdiction it would still have to give way to the High Court to conclude before it also starts trial.)
Now I tackle issue number 1 of the invasion of the court, separately from the above.
The petitioner contends that the acts of the Anti-Terrorism Task Force were calculated to intimidate and inculcate fear in the minds of the judges and other judicial officers to induce them to be partial in their judgment and to feel dependent on the state for their positions and as a warning that if they did not enter into judgment in their favour, they would be in danger.
It is the petitioner’s contention that those acts contravene Article 28 of the Constitution, which requires courts to accord a fair hearing, to be independent and impartial in the exercise of their duty.
The withdrawal of Justice (Edmund) Lugayizi from further hearing the case and the circumstances under which the Principal Judge (James Ogoola) took over the case and views that the Chief Justice (Benjamin Odoki) expressed during a meeting with members of the Uganda Law Society indicate that the acts of the army men wearing black T-shirts and army trousers was to compromise the independence of the judiciary. This contravenes the Constitution of the Republic of Uganda.
The petitioners pray this court to make a declaration, which will effect restraining any further occurrence of these acts.
Article 128 (1) of the Constitution says ......from the reaction of the judges, it is clear that the acts of the military men did not require the assistance of the forces to effect their work in extending justice to those seeking it.
This was a violation from the principles enshrined in article 128, article 3 (1) and (4)......................
The judiciary is part of the establishment of the constitutional order. The act of the military men was to sub-verge this. Uganda Law Society brought up this petition considering the right of the people. (At this stage he reads a section in the constitution to this regard).
After that Lule continues to say that disturbing the judiciary by deploying the military men would cause social injustice and bring about political instability. he concludes his submissions, saying he would return to court to refer the court to authorities to help in the petition.
Court adjourns for 30 minutes and resumes at 12:15 when the authorities were brought up. At this stage court is adjourned to today for the Attorney General to respond.
Lule: There is an issue I would like to raise. I would like to raise the issue of the jurisdiction of the Court Martial because it would considerably reduce…depending on your decision.
Okello: You would like us to rule on that?
Lule: Yes my lords.
Okello: That would delay proceedings. I suggest you argue everything at once…if we go like that, we are unlikely to beat the time.
Lule: Much obliged. Last evening we got some constraint. We were served with affidavits from the other side. (Says wants to cross-examine the person who swore the affidavit).
Tibaruha: The witness is our witness and he is Maj. Kagoro.
Kikonyogo: Is he around?
Tibaruha: No. We have just been informed. We need time to inform him.
Lule: Then if he is not around for cross-examination, ignore his affidavit.
Okello: (To Lule) He isn’t saying don’t cross-examine. He is saying inform him in time.
Lule: (Asks the judges to direct on what should be done and he would follow.)
Okello: If you are not cross-examining say so precisely, but don’t push it to us to decide. Cross-examination is your right.
Tibaruha: If we adjourn we can look for him.
Lule: (He abandons cross-examination when asked if they should adjourn to call the witness). The petition was brought under articles 50(i) (ii) of the Constitution and article 137 (iii) of the Constitution.
The purpose of article 50(i)… it is the petitioners’ case that the acts of the Anti-Terrorism Task Force, which is an agency of the government, did not only threaten the independence and impartiality of the court or courts in general at the time, but continues as a looming danger. Under Article 137 (v) the high Court which is seized with the matter which gives rise to the interpretation of the Constitution, that the High Court may refer the matter to the constitutional Court. The only exception is if it arises under the Field Court Martial.
This court has power to accept reference from the High Court and since this court has been requested by the petitioners to interpret the Constitution, it is my submission that in addition to being a court of interpretation of the Constitution, it is also a competent court to consider the matters under article 50, if it can conveniently be tried together as it arises.
Articles 28 of the constitution which embodies the right to fair hearing runs through all the issues framed. And the arguments I’ll put forth will affect all the petitioners. Before I go further, I wish to first challenge the jurisdiction of the General Court Martial in respect to offences alleged to have been committed under the Anti-Terrorism Act.
The jurisdiction is a creature of Statute. No court can confer upon itself jurisdiction except under a statute. Chapter 18 of the Constitution makes provisions for the judiciary…under article 129, Courts of Judicature are provided for and they are; the Supreme court of Uganda, the court of Appeal of Uganda and the High Court of Uganda and as a procedural…such subsidiary courts as Parliament may establish. My understanding of these provisions is that the three higher courts derive their authority from the constitution itself. All the other courts derive their authority from the Constitution, but via Acts of parliament, in which case the Act of Parliament establishing or conferring jurisdiction must not be ultra vires (with) the Constitution.
Article 130 provides for the Supreme Court, 134, 135 and 136 provide for the Court of Appeal, Article 137 constitutes the Court of Appeal to be a Constitutional Court with powers also to set up the Appeal and composition, and article 138 establishes the High Court. Under Article 139 (i) the High court is conferred with original jurisdiction in all matters in addition, it exercises appellate jurisdiction as may be conferred by the law.
Under Article 210, Parliament is empowered to make laws regulating UPDF and particularly providing for organs and structures of the UPDF pertaining to recruitments, appointments, promotions, discipline and removal of members of the UPDF and ensuring that members of the UPDF are recruited from every district of Uganda.
Additionally….. must provide for conditions of service of members of the UPDF and the deployment of the troops outside Uganda. My understanding of this provision is that it caters for matters exclusively in the army or authority of the UPDF. And if any court is set up under the law made by parliament for purposes mentioned in this article, must confine itself to those purposes and no more.
The General Court Martial set up under section 197 of the UPDF Act which says (Reads the provision) Under sub-section 2 of 197 of the UPDF Act, the GCM shall have unlimited original jurisdiction under this Act and shall hear and determine all appeals referred to it from divisional court martials and disciplinary committees. In other words the unlimited original jurisdiction conferred on the GCM is not so unlimited. It is limited to jurisdiction under this Act and no further.
To the petition is attached annexture B, which is an amended charge sheet of the GCM holden at Makindye. It charges 23 persons. The first one being Retired Col. Dr. Kizza Besigye, the second one Capt. James Katabaazi. The rest have no title showing that they have any position in the army. So the 21 out of 23, unless evidence is produced to the contrary, I would assume that are not army men… The first charge, they say that these people committed acts of terrorism within and outside Uganda in diverse places. And it gives a motive of a political aim intended to intimidate. The second charge is unlawful possession of firearms contrary to section 3(1) (2) (a) (b) of the Fire Arms Act and that those offences were committed within Uganda and outside Uganda. There is nothing in these charges to show that these charges were committed under the UPDF Act for which the GCM has jurisdiction to try the suspects. In other words, the GCM in charging and endeavouring to try the accused, they are acting contrary to the provisions of the UPDF Act.
I would like to go further to say that section 3 of the anti-Terrorism Act under which the GCM purports to charge the accused says that no person shall be prosecuted for an offence under this Act except with the consent of the Director of Public prosecutions (DPP). I wish to take you to annexture C to the petition. This is an indictment in the High Court preferred against the very same people who are being prosecuted under the GCM. That indictment shows clearly the sanction of the DPP and this is a requirement under the Trial and Indictment Act (TIA). The charge sheet under the GCM does not show that that was complied with by the GCM. So the GCM arrogated themselves to confer jurisdiction upon themselves, the jurisdiction not authorised by law. Instead, section 4 of the Anti Terrorism Act confers jurisdiction on the courts of Uganda. This means the ordinary courts.
Section 6 of the Anti-Terrorism Act says that the offences of terrorism and any other offence punishable by more than 10 years imprisonment are triable only by the High Court and bailable in respect of those offences, by the High Court.
The GCM not being the High Court has no jurisdiction to try anybody in Uganda for an offence of terrorism under the circumstances and not to grant bail under…. The GCM as you have seen under section 197 of the UPDF Act has …to try cases only under the UPDF Act. Hence unless they show that the Fire Arms Act (FAA) is one of the Acts falling within the army or UPDF Act, the GCM has no jurisdiction to try anyone for offences committed under the fire Arms Act.
My perusal of the UPDF Act does not show that the FAA has been placed under the jurisdiction of the UPDF Act. It is my submission that the GCM has no power to try the accused or anybody else for offences alleged to have been committed under the ATA or the alternative offence in the charge sheet of being in possession of firearms contrary to the FAA.
(He argues that the state could try the suspects in the ordinary courts. And that the Constitutional Court should declare that the accused cannot be tried in the Court Martial. He submits that the Court martial is incompetent to try anybody charged with a criminal offence because there can be no fair hearing. Says the court Martial is not independent).
The accused are obliged to appear in the High Court on three other charges, but a reading of the two charge sheets shows that the alleged offences arise from the same transactions. In essence the offences are the same. Were the Court Martial to have power, these accused would be menaced twice for the same acts or alleged acts or if both courts convicted, they will be punished twice for the same offence. Under sections 18 of the Penal Code Act, it says (reads that one cannot be punished twice for the same offence) terrorism is an offence punishable under the Penal Code, section 26 which says (i) (reads that it provides for life imprisonment) yet under the Anti-Terrorism Act, the punishment is death. There is a complex situation if the Court martial convicted and sentenced them to death and the High Court convicted and sentenced them to life imprisonment. What would happen if the GCM convicted first and carried out the sentence fast.
(He cites the case of Tumushabe and says) This court had to deal with hierarchy of courts between the high Court and the GCM. The majority judgement of four to one held that the GCM was subordinate to the high Court. It follows therefore that the GCM does not have the same concurrent jurisdiction of the high Court to which it is subordinate.
So original unlimited jurisdiction under the UPDF Act is confined to military offences. Only two of the accused served in the army and only one is in the army or might still be there. The other, Besigye, is said to be retired.
Section 119 of the UPDF Act sets down a description of persons subject to the military law. They are all military people apart from those falling under the (g) and (h) of 119 subsection (i). Those under (g) and (h) are brought in as civilians who may be tried under the military law are (reads that any person who aids or abets one under military law in commission of a service offence or a person found in unlawful possession of firearms, ammunition or equipment ordinarily being a monopoly of the defence forces, or other classified stores as prescribed…) So in the GCM, none of the ingredients mentioned in (g) and (h) is mentioned in the charges. The only link with the military law for those people is absent. So without that link, the GCM cannot exercise powers to try civilians in the charge sheet as persons subject to military law.
It is not sufficient to say they were found with weapons. They should be a monopoly of the UPDF. Not every weapon however large the arsenal.
If the charges on the charge sheet cannot apply to the accused, at least those that are civilians. I can’t talk about the second accused much because there may be evidence that he is still in the army.
Those people to be tried under the GCM cannot have a fair hearing and the impartiality is attached right from the beginning. (He says the GCM must give way to the High Court because it is inferior. He also submits that it was the High Court that first commenced prosecution before the Court Martial and that even if it had jurisdiction it would still have to give way to the High Court to conclude before it also starts trial.)
Now I tackle issue number 1 of the invasion of the court, separately from the above.
The petitioner contends that the acts of the Anti-Terrorism Task Force were calculated to intimidate and inculcate fear in the minds of the judges and other judicial officers to induce them to be partial in their judgment and to feel dependent on the state for their positions and as a warning that if they did not enter into judgment in their favour, they would be in danger.
It is the petitioner’s contention that those acts contravene Article 28 of the Constitution, which requires courts to accord a fair hearing, to be independent and impartial in the exercise of their duty.
The withdrawal of Justice (Edmund) Lugayizi from further hearing the case and the circumstances under which the Principal Judge (James Ogoola) took over the case and views that the Chief Justice (Benjamin Odoki) expressed during a meeting with members of the Uganda Law Society indicate that the acts of the army men wearing black T-shirts and army trousers was to compromise the independence of the judiciary. This contravenes the Constitution of the Republic of Uganda.
The petitioners pray this court to make a declaration, which will effect restraining any further occurrence of these acts.
Article 128 (1) of the Constitution says ......from the reaction of the judges, it is clear that the acts of the military men did not require the assistance of the forces to effect their work in extending justice to those seeking it.
This was a violation from the principles enshrined in article 128, article 3 (1) and (4)......................
The judiciary is part of the establishment of the constitutional order. The act of the military men was to sub-verge this. Uganda Law Society brought up this petition considering the right of the people. (At this stage he reads a section in the constitution to this regard).
After that Lule continues to say that disturbing the judiciary by deploying the military men would cause social injustice and bring about political instability. he concludes his submissions, saying he would return to court to refer the court to authorities to help in the petition.
Court adjourns for 30 minutes and resumes at 12:15 when the authorities were brought up. At this stage court is adjourned to today for the Attorney General to respond.