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Besigye lawyers, military face off over kidnap, treachery trial

Left to right: Capt Dennis Oola, Mr Obeid Lutale, and Dr Kizza Besigye in the dock at the General Court Martial in Makindye, Kampala, on January 13, 2025. PHOTO / ABUBAKER LUBOWA

What you need to know:

  • Besigye’s lawyers argue that his alleged crimes were committed outside the country so he cannot be tried in Uganda.

Remanded political stalwart Dr Kizza Besigye on January 13 defied the General Court Martial and refused to plead to the amended charge of treachery that the State had introduced.

The chairman of the seven-member military court panel had demanded that Dr Besigye plead to the new charge of treachery after the same had been read out to him and his co-accused and aide, Mr Obeid Lutale.

Brig Robert Freeman Mugabe, the chairman of the General Court Martial, had asked: “Col (retired) Kizza Besigye, have you understood the charge read to you?

But the former Luweero Bush war physician to President Museveni retorted: “I have heard and responded that I have objections to taking the plea of this charge. I have requested my lawyers to present my objections.” But Brig Mugabe insisted he was demanding to know if Dr Besigye had accepted the charge or not. To this, Dr Besigye shot back with the retort: “Accept what?”

Dr Besigye’s lead defence lawyer, Ms Martha Karua, then chipped in telling the court that his client had invoked Rule 23 that he objects to taking the plea and it would not be fair to ask him whether he accepts the charge or not.

The amended charge sheet saw Col Raphael Mugisha, the director of prosecutions at the military court, add a third suspect, Capt Dennis Oola, a serving officer with the UPDF Armoured Brigade.

In the treachery charge, the prosecution maintains that the trio between February 2023 and November 2024, in the cities of Geneva in Switzerland, Athens in Greece, and in Nairobi, Kenya, and in other diverse places in Uganda, held meetings aimed at soliciting for logistical support and identifying military targets in Uganda with intent to prejudice the security of the Defence Forces

Mr Obeid Lutale (left) and Dr Kizza Besigye leave the dock at the General Court Martial in Kampala on January 13, 2025. PHOTO/ABUBAKER LUBOWA

In light of the new charge, it had to take one of Dr Besigye’s soft-spoken lawyers Fredrick Mpanga, to convince the court that the defence team was entitled to making fresh their objections, if any, contrary to the earlier position of the prosecution that the old objections were still valid.

“My colleague (prosecution) will agree that once an amendment has been made, the process which was running before comes to an end and starts afresh with a new amendment. The charges we have right now – clearly from looking at the ones we have now and those before – essentially what the prosecutor has done is to start again the process, which started in November. So, the objections which had been made then, if any, had not been carried on to the current charge sheet,” Mr Mpanga submitted.

“When the accused person is asked if he understands the charge, we understand that is part of the plea-taking process, yet the law requires that before that process begins, he has a right to understand. We humbly request to be heard,” he added. 

Mr Lukwago submission

Mr Lukwago who shot up first, raised the issue of the court lacking territorial jurisdiction to try Dr Besigye and his co-accused. He argued that the alleged crimes were committed outside the country, in Nairobi-Kenya, Geneva-Switzerland and Athens-Greece.

“Mr chairman, it is the humble request of the accused persons that this honourable court-martial has no territorial jurisdiction to entertain the charges as spelled out in the charge sheet and it would be a violation of Articles 23 and 28 of the Constitution of the Republic of Uganda. The Constitution provides the jurisdiction of this court on matters relating to offences allegedly committed within the territory of Uganda,” he submitted.

Mr Lukwago added: “The UPDF Act specifically talks about weapons which are a monopoly of UPDF, not the defence forces or security forces of Switzerland or Geneva or Kenya. When you look at the provisions of Article 28(7) those Acts spelled out in the charge sheet would only constitute offences in those countries, Kenya, and Switzerland. Mr chairman, the particulars here are talking of Col Kiiza Besigye while at apartments in Kenya was found in unlawful possession of pistol, which is ordinarily a monopoly of the defence forces.”

The second issue that Mr Lukwago submitted was that Dr Besigye and Mr Lutale were kidnapped in Kenya and illegally brought before the military without following the international laws on extradition and deportation, hence should be freed.

“The Extradition Act provides for the procedure where even fugitives can be brought back to a country and stand trial. It is a judicial process that should be commenced by a Ugandan minister writing to his counterpart in Kenya,” Mr Lukwago argued.

He continued: “The other option would be deportation. If they entered Kenya illegally and were found to be possessing firearms, which are a monopoly of the defence forces of Kenya, they would have been tried in Kenya and deported if found guilty. In the case before you, there is no extradition process or deportation order and, therefore, Mr chairman, it clearly shows you have no jurisdiction to try the accused. You are called to entertain a matter that violates international and national laws,”

State responds

In response, on the issue of not following the extradition laws, Mr Mugisha briefly told the court that though they didn’t follow the known ways, the two suspects were brought back to Uganda following a memorandum of understanding between the two sister countries.

On the issue of the General Court Martial not having the territorial jurisdiction to try Dr Besigye and Mr Lutale, Mr Mugisha quoted the UPDF Act that allows the charging of suspects who could have committed crimes within and outside the country.

But defence lawyer Ernest Kalibaala had earlier intimated that although this particular provision of the UPDF Act allows slapping of charges allegedly committed outside the country, it’s a legal lacuna that needs interpretation by the Constitutional Court.

Ms Karua then demanded that the alleged MoU between Kenya and Uganda, which was used to forcefully bring back Dr Besigye be tabled in the court.

In further defence of the amended charge sheet, Judge Advocate Brig Richard Tukacungurwa said the principles of civil courts should be observed generally even in the Court Martial.

“The law on amendment of charges is very clear even in the criminal civil system, a charge sheet can be amended at any time if there is no injustice that will be suffered by the accused persons. The hearing of this case has not yet started,” Judge Advocate Tukacungurwa said.

Initially, Dr Besigye and Mr Lutale faced charges related to security and being in possession of firearms and ammunition until yesterday when they amended the charge sheet and added the offence of treachery.

After listening to the submissions in favour of and against Dr Besigye and Mr Lutale from taking plea on the new charge of treachery, the chairman of the court said he would deliver his ruling today at 10am.

Karua supplement

Ms Karua, who supplemented Mr Lukwago’s arguments, said the extradition process in Kenya is similar to that of Uganda and that due process as explained by Mr Lukwago must be followed. “The jurisdiction for courts in Uganda is for Ugandan territory as Nairobi is not within Uganda. For those offences committed in Kenya, the Kenyan courts have jurisdiction and so are those in Switzerland and Greece.