Military court can’t try Besigye
Jan 31, 2006
THE Military General Court Martial (GCM) has no powers to try Forum Democratic Change (FDC) president Col. Kizza Besigye and 22 other terrorism suspects, the Constitutional Court sitting in Kampala ruled yesterday.
By Hillary Kiirya and Hillary Nsambu
THE Military General Court Martial (GCM) has no powers to try Forum Democratic Change (FDC) president Col. Kizza Besigye and 22 other terrorism suspects, the Constitutional Court sitting in Kampala ruled yesterday.
The majority judgment of 4-1 followed a petition filed by the Uganda Law Society (ULS) seeking a constitutional review on the legality of a number of acts that are connected with the arrest, detention, charge and trial of Besigye and his co-accused.
The court said the trial of Besigye and 22 others at the GCM over terrorism and unlawful possession of firearms, whose ultimate penalty is death, contravened articles 22 (1), 128 (1) and 210 of the Constitution.
“It would not be fair to try an accused in a place where there is no jurisdiction. By doing this, it implies that the GCM can even hear an election petition. The GCM has no jurisdiction to try the case of terrorism. It does not matter whether it is a service offence but it is completely not competent to try these charges,†said Justice
Laetitia Mukasa-Kikonyogo, the Deputy Chief Justice. Her judgment concurred with that of the other three judges on the coram.
The acting Director for Civil Litigation, Joseph Matsiko, who received the judgment, said, “We have instructions to appeal against the decision of this court.â€
He asked the court to let him make an oral application to have the status quo of the 22 accused persons unchanged until the appeal was determined. The court insisted on a formal application.
Godfrey Lule, Peter Mulira, Medad Lubega and David Mpanga represented the ULS.
ULS President Moses Adriko was happy with the outcome and vowed to pursue the matter until the courts determine whether the GCM is subordinate to the High Court and if it can try civilians.
“The GCM should release the 22 persons charged with terrorism. On the issue of subordinate, we are looking towards the Supreme Court,†said Adriko.
Kikonyogo led the team of five judges who included Galdino Okello, George Engwau, Constance Byamugisha and Stephen Kavuma.
Kavuma differed from his colleagues on all the six grounds of the petition and dismissed it entirely.
The four judges said charging and trying the accused for terrorism and unlawful possession of firearms was inconsistent with Article 28 (1) and 126 (1) of the Constitution.
They said only the High Court has powers to handle terrorism charges. They said bail, if sought, could only be heard by the High Court under the Anti-Terrorism Act.
They said the Director of Public Prosecution (DPP) should consent to the charges. They said this was not done, rendering the case defective.
Initially, Besigye and the 22 were charged with treason and failure to report it, before Buganda Road Court and sent to the High Court for trial.
However, they were later produced before the General Court Martial to face terrorism charges.
The judges condemned the deployment of armed military men at the court premises, which they said was aimed at intimidating the judges and to show that they were dependent on the State for their positions.
They said such deployment should be with prior arrangement with the relevant authorities.
On the day the High Court granted the 22 suspects bail, heavily armed military men in black t-shirts surrounded the court.
The action sparked off protests from across the globe. The same men reappeared at the court in Police uniform on another day. A number of security chiefs said the deployment was for security reasons.
In a majority of 3-1, the court also held that the case of Tumushabe Vs Uganda was wrongly decided in holding that the Court Martial is subordinate to the High Court. “It was wrongly decided that the General Court Martial is subordinate to the High Court. The two are parallel.â€
In a majority judgment of 3-2, the judges said civilians who help UPDF soldiers commit crime can be charged before the GCM or any other military courts under the UPDF Act.
THE Military General Court Martial (GCM) has no powers to try Forum Democratic Change (FDC) president Col. Kizza Besigye and 22 other terrorism suspects, the Constitutional Court sitting in Kampala ruled yesterday.
The majority judgment of 4-1 followed a petition filed by the Uganda Law Society (ULS) seeking a constitutional review on the legality of a number of acts that are connected with the arrest, detention, charge and trial of Besigye and his co-accused.
The court said the trial of Besigye and 22 others at the GCM over terrorism and unlawful possession of firearms, whose ultimate penalty is death, contravened articles 22 (1), 128 (1) and 210 of the Constitution.
“It would not be fair to try an accused in a place where there is no jurisdiction. By doing this, it implies that the GCM can even hear an election petition. The GCM has no jurisdiction to try the case of terrorism. It does not matter whether it is a service offence but it is completely not competent to try these charges,†said Justice
Laetitia Mukasa-Kikonyogo, the Deputy Chief Justice. Her judgment concurred with that of the other three judges on the coram.
The acting Director for Civil Litigation, Joseph Matsiko, who received the judgment, said, “We have instructions to appeal against the decision of this court.â€
He asked the court to let him make an oral application to have the status quo of the 22 accused persons unchanged until the appeal was determined. The court insisted on a formal application.
Godfrey Lule, Peter Mulira, Medad Lubega and David Mpanga represented the ULS.
ULS President Moses Adriko was happy with the outcome and vowed to pursue the matter until the courts determine whether the GCM is subordinate to the High Court and if it can try civilians.
“The GCM should release the 22 persons charged with terrorism. On the issue of subordinate, we are looking towards the Supreme Court,†said Adriko.
Kikonyogo led the team of five judges who included Galdino Okello, George Engwau, Constance Byamugisha and Stephen Kavuma.
Kavuma differed from his colleagues on all the six grounds of the petition and dismissed it entirely.
The four judges said charging and trying the accused for terrorism and unlawful possession of firearms was inconsistent with Article 28 (1) and 126 (1) of the Constitution.
They said only the High Court has powers to handle terrorism charges. They said bail, if sought, could only be heard by the High Court under the Anti-Terrorism Act.
They said the Director of Public Prosecution (DPP) should consent to the charges. They said this was not done, rendering the case defective.
Initially, Besigye and the 22 were charged with treason and failure to report it, before Buganda Road Court and sent to the High Court for trial.
However, they were later produced before the General Court Martial to face terrorism charges.
The judges condemned the deployment of armed military men at the court premises, which they said was aimed at intimidating the judges and to show that they were dependent on the State for their positions.
They said such deployment should be with prior arrangement with the relevant authorities.
On the day the High Court granted the 22 suspects bail, heavily armed military men in black t-shirts surrounded the court.
The action sparked off protests from across the globe. The same men reappeared at the court in Police uniform on another day. A number of security chiefs said the deployment was for security reasons.
In a majority of 3-1, the court also held that the case of Tumushabe Vs Uganda was wrongly decided in holding that the Court Martial is subordinate to the High Court. “It was wrongly decided that the General Court Martial is subordinate to the High Court. The two are parallel.â€
In a majority judgment of 3-2, the judges said civilians who help UPDF soldiers commit crime can be charged before the GCM or any other military courts under the UPDF Act.