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Besigye detention: What Attorney General told Parliament

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Attorney General Kiryowa Kiwanuka during the plenary session at Parliament yesterday. Mr Kiwanuka said prisoners who were previously being tried by the General Court Martial and other military
courts will remain in prison until the government finalises the process of transferring their cases to the civilian courts. PHOTO/DAVID LUBOWA

On February 4, the Attorney General told Parliament that prisoners who were previously being tried by the General Court Martial and other military courts would remain in prison until the government finalizes the process of transferring their cases to the civilian courts.

Following the January 31 Supreme Court ruling, which banned the trial of civilians in military courts and ordered all ongoing cases in the same courts to be transferred to the Courts of Judicature, AG Kiryowa Kiwanuka informed the House that he had advised the DPP to liaise with the GCM and ensure that this process starts.

“The Uganda Prisons Authority is advised to wait for the process above and orders of competent courts regarding any matters concerning the detention of accused persons, hitherto facing trial in the military court,” he said.

This statement implies that Opposition leader Dr Kizza Besigye and his aide, Obeid Lutale, who are being held in Luzira prison “illegally” following the expiration of their detention warrant on Monday, will have to wait longer until this process is completed.

Dr Besigye and Lutale were abducted from Nairobi, Kenya, on November 16 last year, before being arraigned before the Brig. Freeman Mugabe-led GCM on November 20, where they were charged with unlawful possession of firearms.

They have since been remanded several times and were meant to reappear on February 3, but the Supreme Court ruling, which stripped the powers of the GCM, made it impossible for the latter to convene.

“All charges, or ongoing criminal trials, or pending trials before the court martial involving civilians must immediately cease and be transferred to the ordinary courts of law with competent jurisdiction,” Chief Justice Alfonse Owiny-Dollo, who led the Supreme Court judges panel, ruled.

He added: “The provisions of the UPDF Act constituting and providing for the trial procedure of the GCM, the Division Court Martial, and the Court Martial Appeal Court do not contain any or sufficient constitutional guarantees and safeguards for them to exercise their judicial functions with independence and impartiality, which is a prerequisite for fair hearing provided for under Articles 21, 28(1), 44(c), and 128(1) of the Constitution.”

"Imagine me, the Chief Justice of Uganda, who has never done any military training, leading a battlefield and defending the country against an enemy."

President Museveni, on Sunday, February 1, criticized the Supreme Court ruling, saying the judges do not rule this country. His response came a day after Col. Chris Magezi, the military assistant in charge of public relations of the Chief of Defence Forces (CDF), posted on his official X-platform that they would not release Dr Besigye and his colleague until Mr. Museveni, who is the Commander-in-Chief, makes the final declaration on the matter.

These are some of the issues that angered the MPs, who accused the government of implementing the Supreme Court ruling at a slow pace. Dr Besigye’s lawyers, led by Ms Martha Karua, Lord Mayor Erias Lukwago, and others, on February 4 revisited Luzira prison, where the commissioner general of prisons informed them that he was awaiting communication from the AG on whether to continue keeping the suspects or release them.

On November 20, 2024, Dr Besigye and his aide Lutale were charged in the court martial. Lawyers led by former Kenya Minister of Justice Martha Karua (centre) and Kampala Lord Mayor Erias Lukwago (second right) leave Luzira prison on February 4, 2025 after visiting Opposition leader Kizza Besigye and his aide Obeid Lutale.

Mr Lukwago told reporters that they had earlier held a meeting with the AG, who assured them that he had advised the DPP to take over the cases.

“Dr Besigye and Hajji Obeid have given us instructions to get them out of Luzira soonest. They want the State to comply with the Supreme Court directives and have threatened to take several actions in prison if there is no compliance,” he said.

Showdown at parliament:

Who Said What?

Attorney General Kiryowa Kiwanuka: Thank the Right Deputy Speaker for your wise guidance. Like I said, the judgment was delivered on January 31, 2025, we received the signed judgment on February 2, 2025, we rendered advice dated February 3, 2025, and we advised as follows:

All criminal pending trials before the General Court Martial should cease forthwith.
General Court Martial (GCM) in liaison with the Prisons Authority should provide a list of all criminal cases involving civilians pending before the GCM for onward transmission to courts to determine the appropriate courts to handle the cases.

The GCM should provide a list of all pending criminal cases involving members of the UPDF pending before the Court Martial that fall in the category of transfer for onward transmission to courts for determination of the appropriate courts to handle the matter.

The Directorate of Public Prosecution is advised to liaise with the GCM and the UPDF to take over the conduct and ongoing criminal trials that have been identified for transfer.

The Uganda Prisons Authority is advised to await the process above and orders of competent courts regarding any matters concerning the detention of accused persons, hitherto facing trial in the military court.

The Ministry of Defence and Veteran Affairs is also advised to immediately commence considerations of the recommendations of the Supreme Court with a view to introducing the appropriate amendments to the UPDF Act.

I have also written to the Chief Justice and requested the Chief Justice, advising him that we have commenced the implementation of the court order and sought advice on the person with whom the DPP should liaise for purposes of effecting these orders.

Medard Sseggona (Busiro East):First of all, I want to express gratitude to the AG that he was able, unlike the tweets that we saw saying that some of these suspects won’t be released, as the AG has indicated the willingness to implement, notwithstanding, of course, the instances where he must have read this court order upside down.

As the Attorney General was reading, I have been touched and concerned about a number of issues. The Attorney General knows that a person can only be held in prison on a valid warrant. The order of the court, which literally dismantled, and I mean literally not technically, dismantled the orders of the defunct, caused the warrants upon which these people were arrested to expire.

But with the case of Dr Kizza Besigye and Hajji Obeid Lutaale, even without the orders of the Supreme Court, the warrant itself was expiring on Monday, and it did expire. So currently, for these people or persons that are being held, on whose orders? On whose valid warrants do they continue to be in prison?

Second relates to the DPP liaising with the GCM. What is the DPP’s business? The DPP is empowered under the law to commence prosecutions against any person of her choice, provided there is evidence. The reverse isn’t true that the DPP goes around fishing for cases. But this time around, they are telling the DPP to go around fishing for cases from the person who has been conducting business illegally.

Do not forget that until Friday [January 31,] there was a Constitutional Court that declared that this was not a rule of law... They secured an interim order from the Supreme Court to stay execution [and] in this case, it was purely the transfer of files from GCM to the civil courts.

Thirdly, from the AG’s communication, I have not heard anything to do with timelines. So, as long as they are doing their consultations, these people (prisoners) can be in prisons now on order of the AG. Where under the law does the AG get the powers to remand or continue an illegal remand or to detain? Literally, what he has done is to amend.

Ibrahim Ssemujju Nganda (Kira Municipality): Information I wanted to give to Hon Medard and Parliament is that yesterday our lawyers who represent Dr. Besigye and Hajj Obeid visited the Commissioner General of Prisons, and he said that his understanding was that Besigye and Hajj Obeid needed to leave his prison on Friday when the judgment was made. He said he was there waiting from the AG, but up to yesterday, the AG had still disappeared from him.

Sseggona: I do not want to end up criticizing the AG and want to give some way forward if I were in his unenviable position. This is what I would do. From Friday through to Monday, I would not sleep but require information from the GCM relating to all prisoners held there. I would advise the government to sieve out all prisoners and tell them, "Let’s do the honorable thing of withdrawing..."

The third thing I would do is to advise the police immediately to go to GCM and take over the files, and at least do the ugly thing you have been doing—of re-arresting them from prison or court upon their release.

Leader of Opposition in Parliament, Joel Ssenyonyi:I am glad the Attorney General has rightly advised the Executive to implement the court order, but I, however, think that he is ill-advising the GCM.

The insinuation in the remarks of the AG is that the court martial keeps holding onto these people until the DPP determines whether or not to take over these matters. This is ultra vires because the Supreme Court said that all those under the court martial should cease with immediacy.

Article 120 of our country’s Constitution provides for the office of the DPP... It says that the DPP shall not be in control or manipulation of anybody. What the learned AG seems to be saying is that now the GCM is going to be directing the DPP: "We have these matters; you take them up." That is against the law.

Sseggona: They have interfered with the independence of the DPP by telling her to go and liaise with GCM.

Wilfred Niwagaba (Ndorwa East): This particular judgment falls in the category of self-executing judgments that should be complied with without any other process as alluded to by the AG.

What is happening now is that all players are doing what they are doing illegally. In simplicity, the Constitution has been overthrown because the judgment is self-executing.

Jonathan Odur, Shadow Justice Minister: Article 126 Clause 2(e) states that substantive justice shall be administered without undue regard to technicalities, but the learned AG understands this clearly.

What I would expect today or yesterday is for the court martial to sit and say, "We are now discharging all these persons that are before us."

You have read very good advice that you have rendered. I would like to know whether you rendered that advice to the President. The President quoted you, saying that he called you on the phone, and you seem to have given him advice that doesn’t seem to match with what you are telling us here.

Would you now clarify to us if this advice you have given to us is exactly what you rendered to the Head of State?

AG Kiwanuka:First of all, the court martial cannot sit to make any orders that you want them to make. If there are facts that Hon Medard Sseggona is not here, the place to take them is to the court.

Secondly, Hon Sseggona should know that as a practicing advocate, after you are successful in court, you extract a decree. If you think my advice is inconsistent with what the judgment said, you are at liberty to extract a decree, have the court sign it, and use it in the premises you want to use it.

I spent time reading this judgment, page by page, word for word, and what I have advised here, I got it from the judgment.

I spent time reading this judgment, page by page, word for word, and what I have advised here, I got it from the judgment.

Sseggona: When the AG speaks, he is the head of the Bar. Everyone at the Bar should ordinarily keep quiet. I agree with him that a successful litigant goes ahead together with the losing litigant to prepare a decree jointly. If he was waiting for a decree, what was the basis of his advice?

I am not aware of the law under which the losing litigant would write to the court to ask for which order. Is the AG to mislead the country that the person who was in court when the judgment was being issued is waiting for a decree extracted by one party?

AG Kiwanuka: I have told you my understanding of the judgment, but what we are saying is that if you disagree with what I have written, the arbiter is there.

Theodore Ssekikubo (Lwemiyaga County): As a law student, we were taught that the judgment of the court is a judgment in rem, not in persona, meaning all must abide, not only the AG but also constitutional order and listen.

Secondly, the learned AG did his best when he made his arguments before the Supreme Court [and] that is the best he could offer now. For this House to demand and expect a better alternative from him would be too much.

He stayed the Constitutional Court order, ran to the Supreme Court, prepared himself, robbed himself, got all his entourage, and proceeded to the Supreme Court. Unfortunately, he couldn’t do better than he did in the Constitutional Court.

To that regard, for this House to expect procedural guidance from the learned AG when he failed to convince the seven justices of the Supreme Court would be a disservice not only to this country but also to Parliament.

Ssemujju: The AG said the court martial cannot sit because of this judgment. The court martial was not waiting for a decree but immediately stopped functioning.

For the release of prisoners, including Dr Besigye, who is now in Luzira illegally because there is no warrant, the AG has written to the Supreme Court. Why did they stop immediately?

I sympathize with him. Maybe the same reason the court said military courts cannot dispense justice is because the people who were asking the AG to advise have already expressed themselves. The CFD said Besigye can only get out of prison in a coffin.

What sort of advice can you give to a person who thinks like that, even if you are a professor of law times three?

They say...

Medard Sseggona (Busiro East):
"I do not want to end up criticising the AG and want to give some way forward if I were in his unenviable position. From Friday through to Monday, I would not sleep but require information from the GCM relating to all prisoners held there. I would advise the government to sieve out all prisoners and tell them, ‘Let’s do the honourable thing of withdrawing…’"

LOP Joel Ssenyonyi:
"The insinuation in the remarks of the AG is that the Court Martial keeps holding onto these people until the DPP determines whether or not to take over these matters. This is ultra vires because the Supreme Court said that all those under the Court Martial should cease with immediacy…"

Jonathan Odur (Shadow Justice Minister):
"You have read very good advice that you have rendered. I would like to know whether you rendered that advice to the President. The President quoted you, that he called you on phone and you seem to have given him advice that doesn’t seem to match with what you are telling us here…"

Theodore Ssekikubo (Lwemiyaga County):
"…Maybe the same reason the court said military courts cannot dispense justice is because the people who were asking the AG to advise have already expressed themselves. The CFD said Besigye can only get out of prison in a coffin. What sort of advice can you give to a person who thinks like that…"

Attorney General Kiryowa Kiwanuka:
"I have also written to the Chief Justice and requested the Chief Justice, advising him that we have commenced the implementation of the court order and sought advice on the person with whom the DPP should liaise, for purposes of effecting these orders."