Attorney General reacts to anti-court martial petition
Dec 21, 2005
The Attorney General on behalf of the Government yesterday responded to the Uganda Law Society (ULS) Constitutional Court petition challenging the powers of the Military General Court Martial over civilians. The Solicitor General, Lucien Tibaruha, appearing with the acting director of Civil Litigati
The Attorney General on behalf of the Government yesterday responded to the Uganda Law Society (ULS) Constitutional Court petition challenging the powers of the Military General Court Martial over civilians. The Solicitor General, Lucien Tibaruha, appearing with the acting director of Civil Litigation, Joseph Matsiko and Phillip Mwaka asked court to dismiss the petition with costs.
Judges on the panel are, Deputy Chief Justice Laeticia Kikonyogo, Galdino Okello, George Engwau, Constance Byamugisha and Stephen Kavuma.Hillary Kiirya and Anne Mugisa attended. Next is part of the the proceeding.
9:42: Judges take seats
Court Registrar: Murangira
Petition No.18/2005 ULS vs The Attorney General.
Kikonyogo: Yes Mr. Tibaruha.
Tibaruha: I would like to put in a list of supplementary authorities which we prepared yesterday but we were unable to file in court. This petition by the ULS is petition is public interest litigation. In other words it is addressing issues of supreme public importance. As you are aware, this petition arose out of the events in the country for the last few weeks. My lords, you are also aware these events did not only lead to this petition but others before you. One of Dr. Kizza Besigye and the other one for Tumwesigye and others. It is true the two were consolidated into one amended petition but they are also of extreme importance. In addition, the same events led to the proceedings in the High Court and the general court martial (GCM) and therefore the importance of these proceedings cannot be over ...... When I started preparing for this case, I discovered that there are many legal issues to be addressed and I thereby made a comprehensive submission which my Lords is likely to take me more that five hours you granted me yesterday.
Okello: There is no problem we can even give two days if you want.
Tibaruha: Much obliged. In that case I go straight to the issues. My Lords, the respondent opposes this petition. We will submit on all the issues in the order they are framed.
Okello: Argue them in this order, 2, 3, 4,5&6 together and then no.1.
Tibaruha: My Lord, I propose to follow the order in which issues were agreed, issues 1, 2, 3, 4 and so forth. I will take the first issue separately, the second, third and forth. The fifth and sixth I will combine them.
My Lords in respect to the first issue No. 1, whether acts of security agents at the premises of the High Court contravened Articles 23 (1) and (6), 28 (1) and 128 (1) (2) (3) of the Constitution. We answer in the negative. We wish to premise our submissions on the affidavit of Major Kagoro Asingura, sworn on December 16, 2005.
The UPDF deployed at the High court premises for purely security reasons and to ensure that the accused persons are not rescued and made to disappear from the course of justice.
This court should not subject the military decisions relating to the deployment of soldiers at the High Court premises and the necessity thereof to judicial review.
We are fortified by the Supreme Court decision in Attorney General vs. Maj. Gen. David Tinyefuza, Constitutional Appeal No. 1 of 1997. In the judgment of justice Kanyeihemba, it is stated that, “The armed forces are instruments of the state, equipped, disciplined and trained to exercise physical force in the interest of the state.†They are subject to both civilian and military law in the manner conceded by Counsel for both parties. The discretion and judgment on military affairs and personnel are vested in the President as Chief Executive who also happens to be the repository of constitutional and legal powers relating to the same subject matter.
It further states that “Courts should refrain from reviewing decisions relating to military affairs unless they have to. The exercise of judicial power must be within proper bounds and should fall short to the point beyond which it might be considered as an intrusion in the powers of the co-ordinate branches, namely, the Legislature and the Executive.
The Constitution has empowered Parliament and not the Judiciary to supervise the executive when the latter is exercising its functions in military operations.â€
We cannot add more words to the self explanatory, instructive and binding statements of His Lordship, lest we dilute them. We can only submit that this court should follow the direction of the Supreme Court and decline to review the military activities that took place on November 16 and the reasons advanced in Maj. Kagoro’s affidavit for those activities.
In the alternative but without prejudice to the above, even if this Court were to hold that it should investigate the said military activities, which is not conceded, it is the Respondent’s case that there were no acts committed by security agents at the premises of the High Court that contravened Articles - 23 (1) and (6), 28(1), 128 (1), (2) and (3) of the Constitution.
It should be noted that the evidence of Kiyemba Mutale contains inadmissible hearsay news reports, which should not be relied on by. He relies on copies of The Monitor and The New Vision newspaper to explain what happened at the High Court.
These newspaper reports are not admissible and should be rejected. This submission is based on the authority in case of Attorney General Vs Major General David Tinyefuza.
The then former Chief Justice Wako Wambuzi stated “I must hold, with respect, that the Constitutional Court erred in law by taking into account hearsay evidence in reaching its decision.
There may well be some merit in Mr. Lule’s bold statement to the effect that the courts should pay regard to newspaper reports in a modern state. But I am still of the view that the rules of evidence in this regard are quite satisfactory in a modern state.†He in effect held that newspaper reports are hearsay and should never be relied on by a court of law. All the six other Judges repeated this. For instance, Justice Oder in his judgment said newspaper reports offend the rules against hearsay, and they are not evidence upon which a decision could be based.
Surrounding of the court premises, the Respondent contends that there was peaceful entry to the court premises by security agents.
Major Kagoro is a Senior UPDF Officer, a prosecutor of the General Court Martial and an Advocate of the High Court, and he was present at the High Court on that day. He rightly admits that members of UPDF were deployed at the High Court premises at about the time the accused were granted bail and that it was necessary to deploy. He said intelligence reports indicated that a group of terrorists had planned to rescue the accused people soon after release on bail with the intention of making them disappear and escape the course of justice. It also indicated that an attack by the said terrorist groups would have been catastrophic as there were many diplomats, judges and other people, including Ambassadors and Heads of Diplomatic Missions.
Kagoro also shows that, this group of terrorists included people, who looted shops and burnt cars in the previous two days. He also states that the UPDF had to deploy the security personnel to prevent the above from happening, and to ensure that the accused are brought before the General Court Martial to answer charges of terrorism and unlawful possession of firearms.
The evidence is not only credible, it is not challenged at all. It is our submission that, the deployment of security personnel did not breach any law or constitutional provision.
The UPDF Act, No. 7 of 2005 charges the UPDF with security functions of protecting the lives and property of Ugandans. If as it happened, terrorist groups engaged in acts of looting and burning shops and these groups were suspected to have planned to rescue the 22 accused people suspected of having committed treason by use of arms, the UPDF would have abdicated its duty if it had not deployed at the High Court. Moreover if such an attack had occurred and Judges and diplomats or other people present were affected either by being injured or by loss of life, it would indeed have been a national catastrophe.
That the UPDF rose to the occasion and acted on the basis of the intelligence reports, and on the basis of the precedent of looting and the destruction of property that had taken place the previous two days, which as everybody knows, paralysed the whole city, is commendable, lawful and constitutional. The actions of the UPDF cannot be said to have been in breach of any law.
On the contrary, the UPDF fulfiled its constitutional mandate of protecting lives and property of Ugandans at a time when chaos and destruction had engulfed the city. It should be noted that the looting and destruction of property in the city was incidental to and arose from the arrest and production in court of one of the accused persons.
Kikonyogo: Was the Chief Justice or Principal Judge notified of this deployment?
Tibaruha: When I was the coordinator of human rights, I was a member of the Ant-Terrorism Squad and legal advisor. I assure you that in the meetings we held sometimes, they would refuse to disclose contents of reports about intelligence
Okello: You are not answering the question, people do not plan like that.
Tibaruha: I am trying to show. You are saying they should have informed the Chief justice in advance. I am afraid intelligence people do not apply that.
Judges: They should have informed them about their presence.
Tibaruha: Yes.
Kikonyogo: The Chief Justice at least should have been informed that there would be an emergency situation.
Tibaruha: If it had been.... I have just given you a personal experience.
Kikonyogo: You are not giving evidence.......
Tibaruha: If it is the court’s view that intelligence information should also be disseminated to....
Kikonyogo: No you do not have to disseminate everything...
Okello: You should have told the CJ that for security matters, don't be surprised to see security around
Tibaruha: That is my personal view.
Kikonyogo: Okay, proceed.
Tibaruha: The deployment of the UPDF in the wake of these terrorist activities cannot be said to be unconstitutional.
At this point, the judges interrupt with the flow for purposes of clarification. Tibaruha after clarifying, he proceeds to submit.
Under Article 23 (1) (c) of the Constitution, a person may be arrested “for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda.â€
It is common ground that the 22 accused people were charged with serious offences of treason and misprision of treason before the High Court. Therefore there was reasonable suspicion that the accused had committed the offences of terrorism and unlawful possession of firearms.
The said offences of terrorism and unlawful possession of firearms are triable by the GCM. And therefore the action taken by the UPDF to prevent the accused’s escape and to ensure that they are produced before the GCM were both constitutional and lawful.
It should be noted that under Section 185 of the UPDF Act, a person suspected of committing a service offence may be arrested. And under Section 2 of Criminal Procedure Code Act, Cap. 116, a Police officer or any other person is allowed to effect an arrest of any person suspected of having committed an offence.
Therefore in view of the fact that it was necessary to prevent the terrorists who had wrecked havoc already from rescuing the 22 accused persons from the course of justice, and in view of the need to ensure that the said accused persons appear before the GCM to be charged with other offences, the actions of the UPDF on November 16 were not only justifiable but were also lawful and constitutional.
The argument that there was breach of the right to personal liberty and of the right to apply for bail guaranteed under Article 23 (1) and (6) of the Constitution is totally misconceived.
In any case, there is no evidence that the accused persons have been barred by anybody to apply for bail under section 219 of the UPDF Act before the GCM. My Lords, Counsel for the Petitioner relied on the supplementary affidavit of Kiyemba Mutale in a bid to show that the events of the November 16 interfered with the functioning of the judiciary. We submit that statements therein are hearsay and inadmissible.
Order 17 rule 3 of the Civil Procedure rules is very clear on affidavits. On the basis of this legal provision, Kiyemba Mutale’s affidavit must be struck out as it is based on information and not on knowledge.
The allegation that the acts of UPDF subjected the judiciary to the control or direction by the said UPDF or affected its independence is misconceived. No judicial officer was ordered to do anything or to handle any matter in any given way at all.
No evidence is available from any judicial officer that his or her independence was compromised or that he or she was put under the direction or control of any person or authority. The incident has been grossly exaggerated by the media.
It cannot in anyway be comparable to the incident in 1972 when President Amin’s security personnel entered the High Court premises, arrested the former Chief Justice Ben. Kiwanuka, took him away.
The judges seek clarification on the operations of the High Court in which Tibaruha said the operations of the High Court were normal on that day.
Tibaruha: In the interests of time I will abandon other things and avail you with copies.
Okello: No, we chose to submit orally and if you give us copies, how will the other party respond.
Tibaruha: We will give them copies.
Okello: have you given them now?
Tibaruha: No I have not.
Okello: You will have given them no time to respond..that is why we chose to give oral submission. They hear and take notes and respond.
Tibaruha: My Lord, it is the court that requested for the copies.
Kikonyogo: They need to respond.
Tibaruha: I can go to the next issue...
On whether the concurrent proceedings in the High Court case No. 955/2005 and Court Case No. UPDF/Gen/075/05 in the GCM against the accused contravened Articles 28 (1) and 44 (c) of the Constitution and inconsistent with Articles 28 (9) and 139 (1) of the Constitution.
The Respondent submits that the existence of proceedings in the High Court Criminal Case No. 955/2005 and Court Case UPDF/Gen/075/05 in the GCM against the accused persons is lawful and does not contravene Articles 28 (1) and 44 (c) of the Constitution, and are not inconsistent with Articles 28 (9) and 139 (1) of the Constitution as alleged.
The gist of the petitioner’s case is that the existence of proceedings in High Court for treason and misprision of treason on the one hand and in the GCM for terrorism and unlawful possession of firearms on the other hand contravene the right to a fair hearing, violates the right not to be tried again for an offence for which one has been convicted or acquitted and is inconsistent with the jurisdiction of the High Court.
In our submission, the Petitioner’s contentions are misconceived. Because according to Black’s Law Dictionary, Seventh Edition, concurrent jurisdiction is “jurisdiction exercised simultaneously by more than one court over the same subject matter within the same territory.â€
Concurrent proceedings in respect of a person undergoing trial for an offence under the Penal Code Act in the High Court on one hand and for a service offence under the UPDF Act in the GCM are not prohibited by the Constitution.
Government decided to institute proceedings against the accused persons both in the High Court and in the GCM because both the High Court and the GCM have concurrent jurisdiction.
Although the GCM is not legally obliged to follow the orders of the High Court, it has nevertheless decided to stay its proceedings pending the decision of this Court on whether or not the proceedings before the GCM are unconstitutional.†We submit that the GCM is not legally bound to follow the orders of the High Court because both courts have concurrent jurisdiction.
The accused persons were arrested, charged and are being prosecuted in the High Court, which is established by article 139(1) of the Constitution, for the offences of treason, misprision of treason and rape. Dr. Kizza Besigye on the basis of article 23(1) (c) of the Constitution read together with article 23(4)(b) thereof.
The said offences are a creature of the Penal Code Act, Cap.120, laws of Uganda Revised Edition 2000.
The accused persons were also arrested, charged and are being prosecuted in the GCM, which is provided for under article 210 of the Constitution as part of the organs of UPDF and is established by law under Section 197 (2) of the UPDF Act No. 7/2005, for the offences of terrorism and unlawful possession of firearms which are service offences under the UPDF Act No.7/2005.
It is also our submission that the GCM is, under the UPDF Act, seized with jurisdiction to try any person subject to military law who is charged with a service offence.
It is pertinent to note that “service offence†is defined in Section 2 of the UPDF Act, as “an offence under this Act or any other Act for the time being in force committed by a person while subject to military lawâ€.
We submit that the offence of terrorism under the Anti-Terrorism Act No. 14 of 2002 and unlawful possession of Firearms under the Firearms Act, Cap. 299 are service offences by virtue of S.2 of the UPDF Act, which defines service offence as an offence under the UPDF Act or any Other Act committed by a person subject to military law.
Some of the accused persons who are civilians are in terms of Section 179 (1) of the UPDF Act persons subject to military law because they committed acts, which constitute offences under any other enactment namely, terrorism under the Anti-Terrorism Act and unlawfully possession of firearms under the Firearms Act.
It is our submission that, once a person is subject to military law, that person is triable by the General Court Martial.
It does not matter that the accused person is undergoing trial for different offences in a civil court. In fact, under Section 204 of the UPDF Act, it is provided that nothing in this Act shall affect the jurisdiction of any civil court to try a person for an offence triable by that court.â€
This means that once a military court commences trial of a person subject to military law, a civil court still has jurisdiction to try the same person for an offence triable by that court, even when that second trial arises out of the same or related facts.
In our submission, the reverse is also true and permissible: Military Courts and in particular the General Court Martial have unlimited original jurisdiction to try a person subject to military law for any offence triable by the said General Court Martial, even if that person is undergoing trial in a civil court for different offences but arising from the same or related facts.
There is no provision in the Constitution forbidding this. On the contrary, a proper interpretation of S. 204 of the UPDF Act shows that it is permissible to try a person subject to military law in both a court martial and a civil court.
To demonstrate the appropriateness of separate trials in the General Court Martial and Civil Courts, we will give an example. A person subject to military law may commit the offence of violence to a Superior Officer contrary to Section 135 of the UPDF Act. If the said violence resulted in the death of the Superior Officer, the accused person can be tried by the High Court for murder. The trial for murder by the High Court would not be a bar for trial by the General Court martial for the offence of violence to a Superior Officer. This is especially so since the military court may want to impose a penalty of dismissal with disgrace, or reduction in rank etc.
Clearly concurrent proceedings in the High Court and the General Court Martial are not prohibited by the Constitution. Several provisions in the UPDF Act indicate that guarantees of a fair trial are observed in the course of the trial in the General Court Martial.
First of all the General Court Martial is established by Section 97 of the UPDF Act and all the members of the court including the Chairperson are appointed by the High Command.
It is an independent and impartial court.
Secondly Section 212 of the UPDF Act provides for public trials in the military courts and Section 214 thereof provides for the appearance in court of witnesses and advocates for the accused persons.
Any conduct of an advocate before the General Court Martial that would be liable to censure or be contempt of court if it took place before a civil court is likewise liable to censure or is contempt of court before the General Martial.
And finally, Section 183 and Section 209 of the Act expressly provide that the rules of evidence and procedure to be observed in proceedings before a court martial shall as far as is practicable be the same as those which apply before a civil court.
A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
In our submission, the provision simply means firstly that a person cannot be tried and convicted or acquitted of an offence, say of murder, and he or she is tried of the same offence. Secondly it means that a person having been convicted or acquitted of the offence of murder cannot be tried again of the offence of say manslaughter, because he could have been convicted of manslaughter at the trial for murder.
It is worthy to note at this juncture that the UPDF Act expressly forbids breach of article 28(9) of the Constitution in section 216 of the Act which section provides that:
The jurisdiction of the High Court is provided for in article 139(1) of the Constitution while as the jurisdiction of the General Court Martial is provided for in section 197(2) of the UPDF Act No. 7/2005 which states that:
The aforementioned provisions of article 139(1) of the Constitution, S.14(1) of the Judicature Act, Cap. 13 and S.197(2) of the UPDF Act No. 7 of 2005 indicate that the High Court and General Court Martial have concurrent jurisdiction. Both courts have “unlimited original jurisdiction†and appellate jurisdiction.
The High Court is a Court of Judicature. It is a civil court, which belongs to the ordinary judicial system under the Judiciary in chapter 8 of the Constitution. In contrast, the General Court Martial is not a Court of Judicature. It is not a civil court and therefore does not belong to the ordinary judicial system under the Judiciary in chapter 8 of the Constitution. It is a military court, and one of the organs of the UPDF under article 210 of the Constitution in chapter 12 of the Constitution, which is headed “Defence and National Security.â€
My Lords the General Court Martial and Other Military Courts are enjoined to administer military justice under the UPDF Act. They are special courts designed to deal with the military establishment and national security and hence to try people subject to military law who commit service offences.
They are not subordinate to, but have concurrent jurisdiction with civil courts. These courts are not under any law subject to the control or direction of civil courts.
The Judicature Act does not contain any provision that applies to them. Nor does the Magistrates Courts Act. Therefore in all matters of service offences under the UPDF Act, the Courts Martial are not subject to the civil courts.
The decisions of the General Court Martial are not appealable to the High Court. According to Section 199(1) of the UPDF Act, the decisions of the General Court Martial are appealable to the Court Martial Appeal Court. It cannot be said therefore that the General Court Martial is a lower court than the High Court. In addition, under S.179 of the UPDF Act, the General Court Martial has power to pass a death sentence. It cannot therefore be said to be lower or subordinate to the High Court when both courts have power to pass the same maximum sentences. On the contrary, the General Court Martial is at the same level with the High Court of Judicature, both courts belonging to two parallel court systems: The courts martial and the courts of judicature.
With respect to the offence of terrorism which carries the maximum death penalty, an appeal lies from the Court Martial Appeal Court to the Court of Appeal and finally to the Supreme Court. This point was made very clear by the Supreme Court in the case of Sgt. Kalemera Vs Uganda Criminal Appeal No. 18 of 1994 at page 3, where the said Supreme Court held that:
“It is clear that after the 1995 Constitution came into force appeals from the Court Martial Appeal Court must first be made to the Court of Appeal.â€
It is our considered opinion that the case of Joseph Tumushabe Vs Attorney General was wrongly decided. The decision in the said case does not reflect the correct legal position on the matter.
Both the High Court and the General Court Martial have concurrent unlimited original jurisdiction and appellate jurisdiction. Consequently the exercise by the General Court Martial of its jurisdiction does not contravene the jurisdiction of the High Court.
We submit that military law and hence the UPDF Act is a special law that is aimed at providing a legal framework for peace and security in this country. Indeed the Supreme Court agrees with us on this position.
We submit that this being the case, this court should desist from entertaining a challenge to any provision of the law, which is intended to foster national security, especially where that law does not infringe on the right to a fair and speedy trial or on the exercise of judicial power.
“The armed forces are instruments of state, equipped, disciplined and trained to exercise physical force in the interest of the Stateâ€
“Courts should refrain from reviewing decisions relating to Military affairs unless they have to. The exercise of judicial power must be within proper bounds and should fall short to the point beyond which it might be considered as an intrusion in the powers of the coordinate braches, namely, the Legislature and the Executiveâ€.
We humbly submit that the UPDF Act including the impugned sections were properly enacted by Parliament within its constitutional mandate and duty to legislate for protection and promotion of security and peace which are a prerequisite to the democratic governance of Uganda. This mandate is given under articles 79 and 210 of the Constitution. Section 119 (g) and (h) is therefore not unconstitutional.
The entire section 119 of the UPDF Act was enacted to maintain discipline amongst the members of the UPDF and does not infringe the right to a fair hearing.
In terms of article 209 of the Constitution indiscipline among the members of the UPDF would lead to loss of life, loss of military operations, failure of the UPDF to execute its constitutional mandate. Consequently, this would expose the Constitution, the democratic governance, the rule of law and the entire nation to insecurity.
We submit that without the provisions of Section 119(1) (g) and (h), Section 119(1) (a-e) would be rendered impotent and useless. Consequently, the entire Section 119 of the UPDF Act would not have achieved its objective of instilling and maintaining discipline in UPDF and of providing a legal framework for national security. This is because punishing those members of the UPDF who commit service offences without punishing those who assist them or those who are in possession of arms and ammunition which are the monopoly of the Army would render the section impotent. It is inconceivable to argue as the petitioner has argued in effect, that those who assist ordinary criminals whose crimes do not carry such grave national consequences are punishable under the Penal Code Act while those who assist military criminals whose offences have grave national consequences should not be punished.
We wish to show that in other free and democratic societies, civilians are subjected to military law and are triable by Courts Martial. We shall take the example of the United States of America, which is regarded as the World’s best democracy.
It is abundantly clear that in the USA, both may try in either a Court Martial or a Civilian Court or a person who breaches the Army Code. It is also clear that a Court Martial may try a Civilian who breaches the US Military Code.
The contention of the Petitioner is that the trial of the Accused persons in the General Court Martial with the offence of terrorism whose penalty on conviction is death, and which is allegedly solely triable by the High Court contravenes the aforementioned Constitutional provisions.
This Contention is misconceived.
Article 22(1) states that no person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate Court.
We submit that the offence of terrorism under the Anti Terrorism Act of 2002, is triable by the General Court martial as long as a person is subject to military law.
The Petitioner also contends that the charges of terrorism before the General Court Martial contravenes article 126(1), which provides for the exercise of judicial power. We submit that this article is irrelevant to this issue. There is no evidence that any person has denied any judicial officer or authority from exercising judicial power. The Petitioner’s contention is misconceived.
Lastly on this issue, the petitioner contends that the charges of terrorism before the General Court martial contravenes article 210 of the Constitution, which gives Parliament power to make laws regulating the UPDF. Again this article is irrelevant to this issue. There is no evidence that the power given to Parliament is contravened by the lawful charges of terrorism brought against the Accused.
After about four hours of submission, Tibaruha ends his submission and court adjourns to today for reply by ULS lawyers.
Judges on the panel are, Deputy Chief Justice Laeticia Kikonyogo, Galdino Okello, George Engwau, Constance Byamugisha and Stephen Kavuma.
9:42: Judges take seats
Court Registrar: Murangira
Petition No.18/2005 ULS vs The Attorney General.
Kikonyogo: Yes Mr. Tibaruha.
Tibaruha: I would like to put in a list of supplementary authorities which we prepared yesterday but we were unable to file in court. This petition by the ULS is petition is public interest litigation. In other words it is addressing issues of supreme public importance. As you are aware, this petition arose out of the events in the country for the last few weeks. My lords, you are also aware these events did not only lead to this petition but others before you. One of Dr. Kizza Besigye and the other one for Tumwesigye and others. It is true the two were consolidated into one amended petition but they are also of extreme importance. In addition, the same events led to the proceedings in the High Court and the general court martial (GCM) and therefore the importance of these proceedings cannot be over ...... When I started preparing for this case, I discovered that there are many legal issues to be addressed and I thereby made a comprehensive submission which my Lords is likely to take me more that five hours you granted me yesterday.
Okello: There is no problem we can even give two days if you want.
Tibaruha: Much obliged. In that case I go straight to the issues. My Lords, the respondent opposes this petition. We will submit on all the issues in the order they are framed.
Okello: Argue them in this order, 2, 3, 4,5&6 together and then no.1.
Tibaruha: My Lord, I propose to follow the order in which issues were agreed, issues 1, 2, 3, 4 and so forth. I will take the first issue separately, the second, third and forth. The fifth and sixth I will combine them.
My Lords in respect to the first issue No. 1, whether acts of security agents at the premises of the High Court contravened Articles 23 (1) and (6), 28 (1) and 128 (1) (2) (3) of the Constitution. We answer in the negative. We wish to premise our submissions on the affidavit of Major Kagoro Asingura, sworn on December 16, 2005.
The UPDF deployed at the High court premises for purely security reasons and to ensure that the accused persons are not rescued and made to disappear from the course of justice.
This court should not subject the military decisions relating to the deployment of soldiers at the High Court premises and the necessity thereof to judicial review.
We are fortified by the Supreme Court decision in Attorney General vs. Maj. Gen. David Tinyefuza, Constitutional Appeal No. 1 of 1997. In the judgment of justice Kanyeihemba, it is stated that, “The armed forces are instruments of the state, equipped, disciplined and trained to exercise physical force in the interest of the state.†They are subject to both civilian and military law in the manner conceded by Counsel for both parties. The discretion and judgment on military affairs and personnel are vested in the President as Chief Executive who also happens to be the repository of constitutional and legal powers relating to the same subject matter.
It further states that “Courts should refrain from reviewing decisions relating to military affairs unless they have to. The exercise of judicial power must be within proper bounds and should fall short to the point beyond which it might be considered as an intrusion in the powers of the co-ordinate branches, namely, the Legislature and the Executive.
The Constitution has empowered Parliament and not the Judiciary to supervise the executive when the latter is exercising its functions in military operations.â€
We cannot add more words to the self explanatory, instructive and binding statements of His Lordship, lest we dilute them. We can only submit that this court should follow the direction of the Supreme Court and decline to review the military activities that took place on November 16 and the reasons advanced in Maj. Kagoro’s affidavit for those activities.
In the alternative but without prejudice to the above, even if this Court were to hold that it should investigate the said military activities, which is not conceded, it is the Respondent’s case that there were no acts committed by security agents at the premises of the High Court that contravened Articles - 23 (1) and (6), 28(1), 128 (1), (2) and (3) of the Constitution.
It should be noted that the evidence of Kiyemba Mutale contains inadmissible hearsay news reports, which should not be relied on by. He relies on copies of The Monitor and The New Vision newspaper to explain what happened at the High Court.
These newspaper reports are not admissible and should be rejected. This submission is based on the authority in case of Attorney General Vs Major General David Tinyefuza.
The then former Chief Justice Wako Wambuzi stated “I must hold, with respect, that the Constitutional Court erred in law by taking into account hearsay evidence in reaching its decision.
There may well be some merit in Mr. Lule’s bold statement to the effect that the courts should pay regard to newspaper reports in a modern state. But I am still of the view that the rules of evidence in this regard are quite satisfactory in a modern state.†He in effect held that newspaper reports are hearsay and should never be relied on by a court of law. All the six other Judges repeated this. For instance, Justice Oder in his judgment said newspaper reports offend the rules against hearsay, and they are not evidence upon which a decision could be based.
Surrounding of the court premises, the Respondent contends that there was peaceful entry to the court premises by security agents.
Major Kagoro is a Senior UPDF Officer, a prosecutor of the General Court Martial and an Advocate of the High Court, and he was present at the High Court on that day. He rightly admits that members of UPDF were deployed at the High Court premises at about the time the accused were granted bail and that it was necessary to deploy. He said intelligence reports indicated that a group of terrorists had planned to rescue the accused people soon after release on bail with the intention of making them disappear and escape the course of justice. It also indicated that an attack by the said terrorist groups would have been catastrophic as there were many diplomats, judges and other people, including Ambassadors and Heads of Diplomatic Missions.
Kagoro also shows that, this group of terrorists included people, who looted shops and burnt cars in the previous two days. He also states that the UPDF had to deploy the security personnel to prevent the above from happening, and to ensure that the accused are brought before the General Court Martial to answer charges of terrorism and unlawful possession of firearms.
The evidence is not only credible, it is not challenged at all. It is our submission that, the deployment of security personnel did not breach any law or constitutional provision.
The UPDF Act, No. 7 of 2005 charges the UPDF with security functions of protecting the lives and property of Ugandans. If as it happened, terrorist groups engaged in acts of looting and burning shops and these groups were suspected to have planned to rescue the 22 accused people suspected of having committed treason by use of arms, the UPDF would have abdicated its duty if it had not deployed at the High Court. Moreover if such an attack had occurred and Judges and diplomats or other people present were affected either by being injured or by loss of life, it would indeed have been a national catastrophe.
That the UPDF rose to the occasion and acted on the basis of the intelligence reports, and on the basis of the precedent of looting and the destruction of property that had taken place the previous two days, which as everybody knows, paralysed the whole city, is commendable, lawful and constitutional. The actions of the UPDF cannot be said to have been in breach of any law.
On the contrary, the UPDF fulfiled its constitutional mandate of protecting lives and property of Ugandans at a time when chaos and destruction had engulfed the city. It should be noted that the looting and destruction of property in the city was incidental to and arose from the arrest and production in court of one of the accused persons.
Kikonyogo: Was the Chief Justice or Principal Judge notified of this deployment?
Tibaruha: When I was the coordinator of human rights, I was a member of the Ant-Terrorism Squad and legal advisor. I assure you that in the meetings we held sometimes, they would refuse to disclose contents of reports about intelligence
Okello: You are not answering the question, people do not plan like that.
Tibaruha: I am trying to show. You are saying they should have informed the Chief justice in advance. I am afraid intelligence people do not apply that.
Judges: They should have informed them about their presence.
Tibaruha: Yes.
Kikonyogo: The Chief Justice at least should have been informed that there would be an emergency situation.
Tibaruha: If it had been.... I have just given you a personal experience.
Kikonyogo: You are not giving evidence.......
Tibaruha: If it is the court’s view that intelligence information should also be disseminated to....
Kikonyogo: No you do not have to disseminate everything...
Okello: You should have told the CJ that for security matters, don't be surprised to see security around
Tibaruha: That is my personal view.
Kikonyogo: Okay, proceed.
Tibaruha: The deployment of the UPDF in the wake of these terrorist activities cannot be said to be unconstitutional.
At this point, the judges interrupt with the flow for purposes of clarification. Tibaruha after clarifying, he proceeds to submit.
Under Article 23 (1) (c) of the Constitution, a person may be arrested “for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda.â€
It is common ground that the 22 accused people were charged with serious offences of treason and misprision of treason before the High Court. Therefore there was reasonable suspicion that the accused had committed the offences of terrorism and unlawful possession of firearms.
The said offences of terrorism and unlawful possession of firearms are triable by the GCM. And therefore the action taken by the UPDF to prevent the accused’s escape and to ensure that they are produced before the GCM were both constitutional and lawful.
It should be noted that under Section 185 of the UPDF Act, a person suspected of committing a service offence may be arrested. And under Section 2 of Criminal Procedure Code Act, Cap. 116, a Police officer or any other person is allowed to effect an arrest of any person suspected of having committed an offence.
Therefore in view of the fact that it was necessary to prevent the terrorists who had wrecked havoc already from rescuing the 22 accused persons from the course of justice, and in view of the need to ensure that the said accused persons appear before the GCM to be charged with other offences, the actions of the UPDF on November 16 were not only justifiable but were also lawful and constitutional.
The argument that there was breach of the right to personal liberty and of the right to apply for bail guaranteed under Article 23 (1) and (6) of the Constitution is totally misconceived.
In any case, there is no evidence that the accused persons have been barred by anybody to apply for bail under section 219 of the UPDF Act before the GCM. My Lords, Counsel for the Petitioner relied on the supplementary affidavit of Kiyemba Mutale in a bid to show that the events of the November 16 interfered with the functioning of the judiciary. We submit that statements therein are hearsay and inadmissible.
Order 17 rule 3 of the Civil Procedure rules is very clear on affidavits. On the basis of this legal provision, Kiyemba Mutale’s affidavit must be struck out as it is based on information and not on knowledge.
The allegation that the acts of UPDF subjected the judiciary to the control or direction by the said UPDF or affected its independence is misconceived. No judicial officer was ordered to do anything or to handle any matter in any given way at all.
No evidence is available from any judicial officer that his or her independence was compromised or that he or she was put under the direction or control of any person or authority. The incident has been grossly exaggerated by the media.
It cannot in anyway be comparable to the incident in 1972 when President Amin’s security personnel entered the High Court premises, arrested the former Chief Justice Ben. Kiwanuka, took him away.
The judges seek clarification on the operations of the High Court in which Tibaruha said the operations of the High Court were normal on that day.
Tibaruha: In the interests of time I will abandon other things and avail you with copies.
Okello: No, we chose to submit orally and if you give us copies, how will the other party respond.
Tibaruha: We will give them copies.
Okello: have you given them now?
Tibaruha: No I have not.
Okello: You will have given them no time to respond..that is why we chose to give oral submission. They hear and take notes and respond.
Tibaruha: My Lord, it is the court that requested for the copies.
Kikonyogo: They need to respond.
Tibaruha: I can go to the next issue...
On whether the concurrent proceedings in the High Court case No. 955/2005 and Court Case No. UPDF/Gen/075/05 in the GCM against the accused contravened Articles 28 (1) and 44 (c) of the Constitution and inconsistent with Articles 28 (9) and 139 (1) of the Constitution.
The Respondent submits that the existence of proceedings in the High Court Criminal Case No. 955/2005 and Court Case UPDF/Gen/075/05 in the GCM against the accused persons is lawful and does not contravene Articles 28 (1) and 44 (c) of the Constitution, and are not inconsistent with Articles 28 (9) and 139 (1) of the Constitution as alleged.
The gist of the petitioner’s case is that the existence of proceedings in High Court for treason and misprision of treason on the one hand and in the GCM for terrorism and unlawful possession of firearms on the other hand contravene the right to a fair hearing, violates the right not to be tried again for an offence for which one has been convicted or acquitted and is inconsistent with the jurisdiction of the High Court.
In our submission, the Petitioner’s contentions are misconceived. Because according to Black’s Law Dictionary, Seventh Edition, concurrent jurisdiction is “jurisdiction exercised simultaneously by more than one court over the same subject matter within the same territory.â€
Concurrent proceedings in respect of a person undergoing trial for an offence under the Penal Code Act in the High Court on one hand and for a service offence under the UPDF Act in the GCM are not prohibited by the Constitution.
Government decided to institute proceedings against the accused persons both in the High Court and in the GCM because both the High Court and the GCM have concurrent jurisdiction.
Although the GCM is not legally obliged to follow the orders of the High Court, it has nevertheless decided to stay its proceedings pending the decision of this Court on whether or not the proceedings before the GCM are unconstitutional.†We submit that the GCM is not legally bound to follow the orders of the High Court because both courts have concurrent jurisdiction.
The accused persons were arrested, charged and are being prosecuted in the High Court, which is established by article 139(1) of the Constitution, for the offences of treason, misprision of treason and rape. Dr. Kizza Besigye on the basis of article 23(1) (c) of the Constitution read together with article 23(4)(b) thereof.
The said offences are a creature of the Penal Code Act, Cap.120, laws of Uganda Revised Edition 2000.
The accused persons were also arrested, charged and are being prosecuted in the GCM, which is provided for under article 210 of the Constitution as part of the organs of UPDF and is established by law under Section 197 (2) of the UPDF Act No. 7/2005, for the offences of terrorism and unlawful possession of firearms which are service offences under the UPDF Act No.7/2005.
It is also our submission that the GCM is, under the UPDF Act, seized with jurisdiction to try any person subject to military law who is charged with a service offence.
It is pertinent to note that “service offence†is defined in Section 2 of the UPDF Act, as “an offence under this Act or any other Act for the time being in force committed by a person while subject to military lawâ€.
We submit that the offence of terrorism under the Anti-Terrorism Act No. 14 of 2002 and unlawful possession of Firearms under the Firearms Act, Cap. 299 are service offences by virtue of S.2 of the UPDF Act, which defines service offence as an offence under the UPDF Act or any Other Act committed by a person subject to military law.
Some of the accused persons who are civilians are in terms of Section 179 (1) of the UPDF Act persons subject to military law because they committed acts, which constitute offences under any other enactment namely, terrorism under the Anti-Terrorism Act and unlawfully possession of firearms under the Firearms Act.
It is our submission that, once a person is subject to military law, that person is triable by the General Court Martial.
It does not matter that the accused person is undergoing trial for different offences in a civil court. In fact, under Section 204 of the UPDF Act, it is provided that nothing in this Act shall affect the jurisdiction of any civil court to try a person for an offence triable by that court.â€
This means that once a military court commences trial of a person subject to military law, a civil court still has jurisdiction to try the same person for an offence triable by that court, even when that second trial arises out of the same or related facts.
In our submission, the reverse is also true and permissible: Military Courts and in particular the General Court Martial have unlimited original jurisdiction to try a person subject to military law for any offence triable by the said General Court Martial, even if that person is undergoing trial in a civil court for different offences but arising from the same or related facts.
There is no provision in the Constitution forbidding this. On the contrary, a proper interpretation of S. 204 of the UPDF Act shows that it is permissible to try a person subject to military law in both a court martial and a civil court.
To demonstrate the appropriateness of separate trials in the General Court Martial and Civil Courts, we will give an example. A person subject to military law may commit the offence of violence to a Superior Officer contrary to Section 135 of the UPDF Act. If the said violence resulted in the death of the Superior Officer, the accused person can be tried by the High Court for murder. The trial for murder by the High Court would not be a bar for trial by the General Court martial for the offence of violence to a Superior Officer. This is especially so since the military court may want to impose a penalty of dismissal with disgrace, or reduction in rank etc.
Clearly concurrent proceedings in the High Court and the General Court Martial are not prohibited by the Constitution. Several provisions in the UPDF Act indicate that guarantees of a fair trial are observed in the course of the trial in the General Court Martial.
First of all the General Court Martial is established by Section 97 of the UPDF Act and all the members of the court including the Chairperson are appointed by the High Command.
It is an independent and impartial court.
Secondly Section 212 of the UPDF Act provides for public trials in the military courts and Section 214 thereof provides for the appearance in court of witnesses and advocates for the accused persons.
Any conduct of an advocate before the General Court Martial that would be liable to censure or be contempt of court if it took place before a civil court is likewise liable to censure or is contempt of court before the General Martial.
And finally, Section 183 and Section 209 of the Act expressly provide that the rules of evidence and procedure to be observed in proceedings before a court martial shall as far as is practicable be the same as those which apply before a civil court.
A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
In our submission, the provision simply means firstly that a person cannot be tried and convicted or acquitted of an offence, say of murder, and he or she is tried of the same offence. Secondly it means that a person having been convicted or acquitted of the offence of murder cannot be tried again of the offence of say manslaughter, because he could have been convicted of manslaughter at the trial for murder.
It is worthy to note at this juncture that the UPDF Act expressly forbids breach of article 28(9) of the Constitution in section 216 of the Act which section provides that:
The jurisdiction of the High Court is provided for in article 139(1) of the Constitution while as the jurisdiction of the General Court Martial is provided for in section 197(2) of the UPDF Act No. 7/2005 which states that:
The aforementioned provisions of article 139(1) of the Constitution, S.14(1) of the Judicature Act, Cap. 13 and S.197(2) of the UPDF Act No. 7 of 2005 indicate that the High Court and General Court Martial have concurrent jurisdiction. Both courts have “unlimited original jurisdiction†and appellate jurisdiction.
The High Court is a Court of Judicature. It is a civil court, which belongs to the ordinary judicial system under the Judiciary in chapter 8 of the Constitution. In contrast, the General Court Martial is not a Court of Judicature. It is not a civil court and therefore does not belong to the ordinary judicial system under the Judiciary in chapter 8 of the Constitution. It is a military court, and one of the organs of the UPDF under article 210 of the Constitution in chapter 12 of the Constitution, which is headed “Defence and National Security.â€
My Lords the General Court Martial and Other Military Courts are enjoined to administer military justice under the UPDF Act. They are special courts designed to deal with the military establishment and national security and hence to try people subject to military law who commit service offences.
They are not subordinate to, but have concurrent jurisdiction with civil courts. These courts are not under any law subject to the control or direction of civil courts.
The Judicature Act does not contain any provision that applies to them. Nor does the Magistrates Courts Act. Therefore in all matters of service offences under the UPDF Act, the Courts Martial are not subject to the civil courts.
The decisions of the General Court Martial are not appealable to the High Court. According to Section 199(1) of the UPDF Act, the decisions of the General Court Martial are appealable to the Court Martial Appeal Court. It cannot be said therefore that the General Court Martial is a lower court than the High Court. In addition, under S.179 of the UPDF Act, the General Court Martial has power to pass a death sentence. It cannot therefore be said to be lower or subordinate to the High Court when both courts have power to pass the same maximum sentences. On the contrary, the General Court Martial is at the same level with the High Court of Judicature, both courts belonging to two parallel court systems: The courts martial and the courts of judicature.
With respect to the offence of terrorism which carries the maximum death penalty, an appeal lies from the Court Martial Appeal Court to the Court of Appeal and finally to the Supreme Court. This point was made very clear by the Supreme Court in the case of Sgt. Kalemera Vs Uganda Criminal Appeal No. 18 of 1994 at page 3, where the said Supreme Court held that:
“It is clear that after the 1995 Constitution came into force appeals from the Court Martial Appeal Court must first be made to the Court of Appeal.â€
It is our considered opinion that the case of Joseph Tumushabe Vs Attorney General was wrongly decided. The decision in the said case does not reflect the correct legal position on the matter.
Both the High Court and the General Court Martial have concurrent unlimited original jurisdiction and appellate jurisdiction. Consequently the exercise by the General Court Martial of its jurisdiction does not contravene the jurisdiction of the High Court.
We submit that military law and hence the UPDF Act is a special law that is aimed at providing a legal framework for peace and security in this country. Indeed the Supreme Court agrees with us on this position.
We submit that this being the case, this court should desist from entertaining a challenge to any provision of the law, which is intended to foster national security, especially where that law does not infringe on the right to a fair and speedy trial or on the exercise of judicial power.
“The armed forces are instruments of state, equipped, disciplined and trained to exercise physical force in the interest of the Stateâ€
“Courts should refrain from reviewing decisions relating to Military affairs unless they have to. The exercise of judicial power must be within proper bounds and should fall short to the point beyond which it might be considered as an intrusion in the powers of the coordinate braches, namely, the Legislature and the Executiveâ€.
We humbly submit that the UPDF Act including the impugned sections were properly enacted by Parliament within its constitutional mandate and duty to legislate for protection and promotion of security and peace which are a prerequisite to the democratic governance of Uganda. This mandate is given under articles 79 and 210 of the Constitution. Section 119 (g) and (h) is therefore not unconstitutional.
The entire section 119 of the UPDF Act was enacted to maintain discipline amongst the members of the UPDF and does not infringe the right to a fair hearing.
In terms of article 209 of the Constitution indiscipline among the members of the UPDF would lead to loss of life, loss of military operations, failure of the UPDF to execute its constitutional mandate. Consequently, this would expose the Constitution, the democratic governance, the rule of law and the entire nation to insecurity.
We submit that without the provisions of Section 119(1) (g) and (h), Section 119(1) (a-e) would be rendered impotent and useless. Consequently, the entire Section 119 of the UPDF Act would not have achieved its objective of instilling and maintaining discipline in UPDF and of providing a legal framework for national security. This is because punishing those members of the UPDF who commit service offences without punishing those who assist them or those who are in possession of arms and ammunition which are the monopoly of the Army would render the section impotent. It is inconceivable to argue as the petitioner has argued in effect, that those who assist ordinary criminals whose crimes do not carry such grave national consequences are punishable under the Penal Code Act while those who assist military criminals whose offences have grave national consequences should not be punished.
We wish to show that in other free and democratic societies, civilians are subjected to military law and are triable by Courts Martial. We shall take the example of the United States of America, which is regarded as the World’s best democracy.
It is abundantly clear that in the USA, both may try in either a Court Martial or a Civilian Court or a person who breaches the Army Code. It is also clear that a Court Martial may try a Civilian who breaches the US Military Code.
The contention of the Petitioner is that the trial of the Accused persons in the General Court Martial with the offence of terrorism whose penalty on conviction is death, and which is allegedly solely triable by the High Court contravenes the aforementioned Constitutional provisions.
This Contention is misconceived.
Article 22(1) states that no person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate Court.
We submit that the offence of terrorism under the Anti Terrorism Act of 2002, is triable by the General Court martial as long as a person is subject to military law.
The Petitioner also contends that the charges of terrorism before the General Court Martial contravenes article 126(1), which provides for the exercise of judicial power. We submit that this article is irrelevant to this issue. There is no evidence that any person has denied any judicial officer or authority from exercising judicial power. The Petitioner’s contention is misconceived.
Lastly on this issue, the petitioner contends that the charges of terrorism before the General Court martial contravenes article 210 of the Constitution, which gives Parliament power to make laws regulating the UPDF. Again this article is irrelevant to this issue. There is no evidence that the power given to Parliament is contravened by the lawful charges of terrorism brought against the Accused.
After about four hours of submission, Tibaruha ends his submission and court adjourns to today for reply by ULS lawyers.