Court rejects Besigye plea, but rules police acts illegal

Thursday December 12 2019

Address. Former presidential candidate Kizza

Address. Former presidential candidate Kizza Besigye addresses the “The First National People’s Assembly” in Busabala, Wakiso District on February 14, 2019. PHOTO BY ABUBAKER LUBOWA  


The Constitutional Court has refused to hear a petition by Opposition leader Dr Kizza Besigye, saying since he does not recognise President Museveni’s government established by the 2016 General Election outcome, which was confirmed by the Supreme Court, he is in contempt of court and therefore cannot seek redress in the courts created under the same government.
Dr Besigye petitioned the Constitutional Court in 2011 seeking to stop his prosecution on charges of unlawful assembly under Section 65(1) and (2) of the Penal Code Act.

He contended that the Section of the Penal Code is inconsistent with Articles 21, 27, 29, 43 and 120 of the Constitution.
The former Leader of the Opposition Forum for Democratic Change (FDC) argued in the petition that he was severally arrested and charged with the offence of unlawful assembly yet many other people publicly participated without being obstructed, molested, arrested or in any way interfered with.

He contended that the Constitution having been overthrown, the people of Uganda now have a duty to re-establish a Constitutional order, through campaigns of civil disobedience such as those advocated by activists for change.
In a unanimous decision of the five-member Constitutional Court panel yesterday, the Justices ruled that they would not hear Dr Besigye’s petition or grant him the remedies he wanted because he committed contempt of court by saying the current government is illegitimate yet in 2016, the Supreme Court ruled that President Museveni had been validly elected.

The panel was led by Justice Kenneth Kakuru. Other judges are Geoffrey Kiryabwire, Elizabeth Musoke, Cheborion Barishaki and Stephen Musota.
“By swearing himself in as president, appointing a cabinet and national assembly after the judgment and orders of the Supreme Court, the petitioner was and is in contempt of court,” the judges said.
“Every court has a right to deny audience to any person found guilty of contempt. He or she may not be heard or granted any remedy until he purges himself or herself of contempt,” the judges added.

Contempt of court, the judges said, is a tool of justice that requires all persons to honour and respect courts and their decisions.
The judges reasoned that by Dr Besigye requiring the court to determine his petition ‘is an exercise in futility.’
Citing several activities and statements made by Dr Besigye and published in the media, the judges held: “All other persons who have done the same as the petitioner are also in contempt of the Supreme Court orders.”

“I would, therefore, decline to grant Besigye the remedies he seeks in the petition. May be he will have to seek audience before his own court or before the ‘judge’ who swore him in as president,” reads the ruling delivered by Registrar Agnes Nkonge.
The court further observed: “If indeed the President of this country was not elected by the people of Uganda, having usurped their sovereignty set out in Article 1(a) of the Constitution, it would follow that he has no power to appoint judges. The judges and justices appointed by him following the 2011 and 2016 elections have no judicial power as they were appointed unconstitutionally.”
They also ruled that Besigye can only bring and maintain an action against the Attorney General appointed and serving in an established Constitutional order having been appointed by a duly elected president.


However, the judges ruled that should Dr Besigye appear in court as an accused person, the court shall accord him all his rights but not as a petitioner seeking remedies.
“Had I not found as I have, I would have allowed this petition in part. I would have found that the impugned Sections 63(1) and (2) of the Penal Court Act are not inconsistent with provision of the Constitution set out in this petition,” the court ruled.
Human rights lawyer Eron Kiiza said: “It was unnecessary. The reasoning is more emotional than legal and infringes on his Constitutional right to effective remedies for legal violations. He is being crucified of his political opinions and civic expression. Opposing government is not a declaration of war, it is not terrorism and it is not hate speech.”

However, the Constitutional Court ruled that the acts of Uganda police in continuing to criminalise citizens’ rights of political expression and association are unconstitutional as stated by Dr Besigye.
“Citizens of this country are free to walk, demonstrate, shout or otherwise express their discontent with police’s actions, laws or lack of them at any time. It does not matter that those doing so are members of political parties in opposition or ordinary citizens under whatever name called,” the judges ruled.