A lawyer for Dr Kizza Besigye and Obeid Lutale Kamulegeya have put Attorney General Kiryowa Kiwanuka, and members of the General Court Martial on notice telling them to stop trying his clients in the military court or face the law.
The General Court Martial members are Brig. Gen. Robert Freeman Mugabe, Col. Joseph Ecelare Okalebo, Lt. Col. Sam Ntungura, Maj. Angella Catherine Laker, Capt. Nicole Etoru, Capt. Abdu Basajabalaba, Warrant Officer One Oyar Boris Mark, Judge Advocate: Col. Richard Tukacungurwa and Lt. Col. Rapheal Mugisha.
Kiiza’s notice of intention to sue over contempt of court by General Court Martial or UPDF was issued as Besigye’s legal team continues to protest the trial of the opposition doyen and his ally Lutale in the army tribunal.
They are relying on Constitutional Court rulings to push through their argument.
On 15th December 2022, the Constitutional Court of Uganda in Rtd. Captain AMON BYARUGABA AND OTHERS V ATTORNEY GENERAL (Constitutional Petition No. 44 of 2015) [2022] UGCC 11 (15 December 2022) (the Byarugaba case) made the following declarations and orders:
“The exercise of jurisdiction by Military Courts to try civilians for criminal offences is unconstitutional. Under the 1995 Constitution, trying civilians is the role of civilian Courts of Judicature, which DO NOT include Military Courts. Military Courts are intended as disciplinary Courts for the UPDF to secure the public interest of maintaining discipline among the members of the UPDF.
I would declare that the UPDF Act, 2005, to the extent that it may be understood as conferring jurisdiction on Military Courts to try civilians is unconstitutional and therefore null and void to that extent.
I would order that criminal cases in which civilians have been charged before the Military Courts but are pending trial, or have been partly tried, should immediately be transferred to a competent civilian Court of Judicature, and taken over by the Director of public prosecutions.
I would order that the convictions and sentences of civilians which arose from criminal cases tried by Military courts prior to the date… should immediately be transferred to a competent civilian Court of Judicature, and taken over by the Director of public prosecutions.
I would order that the convictions and sentences of civilians which arose from criminal cases tried by Military courts prior to the date of this Judgment are valid. However, in future, any trial of civilians by Military Courts, and any decision that may be taken at such trials to convict and/or sentence civilians shall from the date of this judgment be invalid and null and void ab initio.
On 3rd February 2023, the Constitutional Court of Uganda in SSEMUJJU V ATTORNEY GENERAL (Constitutional Petition No. 4 of 2018) [2023] UGCC 5 (3 February 2023) (the Ssemujju case) made the following declarations and orders:
“The General Court Martial established under the Section 197 of the UPDF Act is a competent quasi-judicial military Court established under the UPDF Act whose jurisdiction is limited to the enforcement of military discipline.
The General Court Martial’s jurisdiction is only limited to trying service offences specified under the UPDF Act, only in respect of persons subject to military law.
Military law under the UPDF Act must be construed to exclude laws that are the preserve of Civil Courts of judicature established under Chapter Eight of the Constitution.
Persons subject to military law under UPDF Act must exclude all those persons who have not voluntarily placed themselves under the jurisdiction of that Act excerpt as provided for under Section 119(1) (g).
Section 119(1)(h) and 179(1)(a) of the UPDF Act are unconstitutional as they are inconsistent with Article 28(1) of the Constitution.
Section 119(1) (g) of the UPDF Act is not unconstitutional.
Provided the person not otherwise subject to military law is tried as an accomplice together with a person who is subject to military law as the principal offender on the same charge sheet.
The petitioner is not a person subject to military law and his trial under the UPDF Act is unconstitutional. The charges brought against him under the UPDF Act are unconstitutional null and void and of no effect.
Section 197 of UPDF Act is NOT unconstitutional.”
Relying on these two rulings, Kiiza and others in Besigye’s legal team have told the AG and the military tribunal’s members to respect the judgement and stop holding civilian courts in contempt.
“TAKE NOTICE that we have instructions to drag you to courts of law in Uganda and abroad if you DO NOT stop disobeying court orders and START respecting the fundamental human rights and freedoms of our clients: RTD. COL. KIZZA BESIGYE and HAJI LUTALE OBEID KAMULEGYEYA,” Kiiza wrote.
“The Constitutional Court in the Ssemujju case anticipating unnecessary debates from your ilk further clarified on 3rd February 2023 that the above authority remains “good law” and binding until and unless Supreme Court rules otherwise. The Supreme Court has not! Stop your criminal and human rights violating trial of our clients in a kangaroo military tribunal.”
Read more about how the fearless Besigye lawyer shook tables before Museveni’s military court, as well as what Besigye’s wife has said about begging Museveni to forgive her husband, and on calls for her to challenge Museveni in 2026 elections, as reported Here, There and Over There.
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