Gen Sejusa: Honourable chairman, I stand, especially on this aspect of bail. As we set out many of us to fight for freedom, we had very serious aims and aspirations. Those were for a just or fair society and also for good behaviour and consistence on issues of governance, honourable chairman.
Gen Sejusa: I am a very senior member [lead state prosecutor interjects that the accused is making statements overtaken by procedure. But Gen Sejusa’s lawyer immediately reminds court that his client has asked the chairman for permission to say something.
The Judge Advocate, Lt Col Gideon Katinda, maintains that whatever the accused says should not be on bail application because it’s a procedural matter. Court Martial chairman Maj Gen Levy Karuhanga allows Gen Sejusa to continue.
Gen Sejusa: Thank you, honourable chairman, I am mindful of all that. I just wanted to say that there are legislative norms but also natural norms where people should be treated humanely with justice.
The background to this bail is informed by the fact that, and this I intend to tell court, it relates to fairness.
There’s no new charge here which has been preferred against me, which was not raised in the meeting I held with the President of Uganda and the Commander-in-Chief on January 2, 2015.
So this is the background, there’s nothing new that has been raised which happened before the expiration of the 90 mandatory days when I am supposed to be informed by UPDF on its decision to retire me.
I, therefore, [lead prosecutor Col Kagoro again tries to stop Gen Sejusa from further submissions but the chairman ignores him and allows Sejusa to continue]
Gen Sejusa: Just my last point Mr chairman; the place where I am detained. I am very comfortable where I am but I wish to share with you for purposes of history if you allow. [Again Col Kagoro tries interjection but Gen Sejusa counters]
Gen Sejusa: This is not political, it concerns Makindye where I am.
Court chairman: Let him make his prayer, do you want to be transferred from Makindye?
Gen Sejusa: Honourable chairman, just allow me to say this; [speaks in a poetic style] the captain salutes smartly, he is carrying a very old padlock in his left hand and says, “Sir it’s lock-up time, sir, go in and I lock you inside.” This is a dream, a bad dream. I see Maj Adraa dragging us at Makerere University main gate.
They throw us on top of each other on a military truck, then to Makindye Military Police barracks cells. Only second to Nakasero State Research in murdering inmates was our destination. We had learnt that the operational commander.... [Court Martial chairman alerts him to wind up his submission]
Gen Sejusa: In effect, Mr Chairman, what I am saying is that, there should be justice. When you hear the type of charges which have been preferred against me and the fact that I am locked up in a dungeon where Amin [late Idi] took me in 1976, cell number 4, which we used to call Cell of ‘no-return’…. Let court register that my lord, that I am in the dungeon where Amin locked me up.
Gen Sejusa: Thank you Mr chairman. [He waves to the people in the courtroom saying “it’s alright, it’s ok.”
Lead Prosecutor: My lord, my name is David Mushabe, appearing together with the Lord Mayor Erias Lukwago also counsel of the High Court of Uganda, Counsel Yusuf Nsibambi, Counsel Yunus Kasirivu, Counsel H Mike Mabikke, Counsel Gideon Munungu [son to the accused], Counsel Maj Ronald Kiduyi. (The prosecution also introduces its team).
Judge Advocate Lt Col Gideon Katinda: For purposes of record, have all the named lawyers filed notices of representation so that if they have not, then a solution is got? We don’t have any objection but we are talking about compliance with the regulations.
David Mushabe: Most obliged my lord, they have not filed their notice of representation. But I wish that court is mindful of Article 126 [2e] which overlooks the technicalities [for the interest of] justice. But I understand that I will get the notices and we shall file them. (Court proceeds).
Lead Prosecutor Col. Kagoro Tusingura: [reads the charge sheet] My lord, the accused Gen. David Sejusa alias Tinyefuza, 61, a male adult of sound mind, a resident of Naguru in Nakawa Division is accused of participating in political party activities…..
David Mushabe [stands up] … my prayer accordingly my lord together with my colleagues is that we disagree with the charge sheet. The matter be stood over for 15 minutes, we advise our client accordingly. We come back and proceed, my lord. That’s our prayer, my lord.
(Court martial chairman Maj Gen Levy Karuhanga concurs with the Defence team. Court adjourned to resume at 12:00 noon. Court resumes with Counsel Ladislaus Rwakafuuzi and Counsel Mutabingwa as part of Sejusa’s defence team.)
Prosecution: Gen David Sejusa alias Tinyefuza ROO31, a senior serving officer…. is accused of absence without leave….. Around 30th April 2013, the accused in his capacity as army representative in Parliament was granted permission by the Speaker for three weeks.. never returned…..
Gen Sejusa: My lord chairman, I raise no objection.
David Mushabe: My lord, the accused person is not ready to take plea because of jurisdiction issues. There’s concurrence or duplicity of prosecution of proceedings. My lord, there’s miscellaneous case number 176 of 2015 where the accused applied to the High Court of Uganda to make a declaration and a finding that the accused is no longer a serving military officer; that due to the actions of his superiors or former employer, he was constructively discharged or dismissed from the army. That my lord is still pending before Justice Lydia Mugambe of the High Court in Kampala.
The charges laid against our client in this court are premised on the presumption that he is still a serving officer, an issue that is to be determined by the High Court of Kampala. My lord, in the case of Gerald Karuhanga and Kizza Vs Attorney General, Judicial Service Commission and Hon. Justice Kavuma, Constitutional Court held that it’s abuse of court process to have two cases in two different courts seeking the same remedies basing on the same argument.
My lord, what is before the High Court of Kampala is pending to be determined whether or not our client was constructively discharged from UPDF by the conduct of UPDF and the government of Uganda. And he has argued before court that dismal or discharge can be expressed or implied by conduct and it was out of that, that he believed he had been discharged. And where there are same issues pending before different courts, the subsequent must be put on hold to wait for the other court to pronounce itself on that matter.
Also in the case of Kizza Besigye Vs Attorney General in 2004, you remember in this very court, there was a case against Kizza Besigye and others in the High Court of Uganda. The Constitutional Court ruled that if there’s one in the General Court Martial and before the High Court, [the latter] must be determined before this one [in court martial]. And the proceedings were terminated. Kizza Besigye was not tried before this court because of that ruling. My lord, when you look at all these accounts- participating in political activities, insubordination, it’s presumptuous that our client was still subject to the UPDF Act whereas not. And that’s why it’s very important that the proceedings here must be stayed and wait for the ruling by Justice Lydia Mugambe.
It would be pre-emptive in nature to commence new proceedings against our client based on the same principle that is yet to be determined by the High Court of Uganda.
There’s implied admission that once he went AWOL [Absent Without Official Leave] then he ceased to be a member of the UPDF.
Lead Prosecutor: The submission of my learned friend is incompetent, misconceived and has no merit. He talked about constructive discharge; discharge is not a matter of words, but a matter of law and when you refer to the procedure before the High Court, as far as I am concerned, the proceedings there are before a civil court, and proceedings of a civil matter cannot bar continuance of a criminal case. If you read well and interpret the cases of Kizza Besigye being tried by the Court Martial and the civil court, it was the relationship whether the same case can be in the civil court and Court Martial. Which court should take precedence? So the Kizza Besigye case does not apply here.
Judge Advocate: Let’s continue please, [Defence lawyers agree asking the chairman to allow all charges to be read at first before Gen Sejusa responds to them]
Chairman Maj Gen Levy Karuhanga: [Reads the Absence Without Official Leave charge again] General, have you heard the charge and understood it?
Gen Sejusa: I have heard and understood the charge. However I request this honourable court, that I will not take plea on that specific charge honourable chairman. This is the first time I hear these charges. I think it’s under article 23 of the Uganda Constitution that the accused person upon his arrest be informed of the reason. I have been in jail for three days. I have been in detention without knowing any charges, I have not made any statement.
Judge Advocate: [advises that a plea of guilty or not guilty be entered. And so it’s done.]
Prosecution: My lord, investigations on this matter are almost complete so we pray that a date be set for trial as the accused is remanded.
Chairman: [reads the second charge]……participating in Political Party activities contrary to the UPDF Act in reference to serving officers.
Prosecution:…….that on the 22nd Nov 2015 at the DP offices in Kampala, Gen. David Sejusa participated in person and mobilized in a meeting by that political party contrary to the UPDF Act…… investigations are over and we request for 14 days for trial.
(Judge Advocate advises that the accused goes ahead to take plea).
Gen Sejusa: I have heard and understood. Like in the instance of the first charge, I decline to take plea, because the offence stated is premised upon the determination of the key question whether I am still a serving officer of the UPDF, a question still pending before the High Court.
[a plea of not guilty is entered].
Chairman: [reads the 3rd charge of conduct prejudicial to order and discipline of the UPDF]… that on 22 April 2015, Gen Sejusa participated in meeting held by JEEMA at their office, where he uttered public statements.
Prosecution: Investigations are almost complete. (court adjourned to Tuesday next week for further proceedings).