Lawyers Elias Nalukoola (left), Ernest Kalibbala (2nd left), Martha Karua (centre) and Erias Lukwago (right) at the General Court Martial on January 13, 2025. The lawyers protested the jurisdiction of the General Court Martial to try Dr Kizza Besigye and Hajji Obeid Lutale. PHOTO/ABUBAKER LUBOWA
Dr Ernest Kalibaala (one of Dr Besigye’s defence lawyers): Mr chairman and honourable members, my name is Ernest Kalibaala, and these are the advocates representing the two accused persons (Dr Besigye and Hajj Obeid Lutale). (He goes ahead to read the list of the advocates present in the court.) Honourable chairman, we have some housekeeping issues that need to be resolved before we proceed. If you may allow us, this will be handled first with my senior colleague, Martha Karua.
Martha Karua: May it please the court, one of the housekeeping issues is regarding our right of access to court as advocates representing the suspects in the dock. Regulation 1 gives you, the chairman, the duty that this court functions like any other court of law. In any other court of law, advocates are granted access to court to be able to do their duty to represent the accused persons. Because of what transpired here last time on January 7, when Eron Kiiza was denied access, resulting in his being jailed, we are humbly seeking your assurance that as advocates, we are not going to endure any intimidation or obstruction as we come into court to do our duties.
I must state that what transpired has caused a lot of shock, and as you see, we are less than we normally are. It has caused fear and intimidation among our ranks of advocates, and we need to bring to your attention that this court needs to show and demonstrate balance—not just the welfare of the military officers before it but the welfare of everybody in its presence. So, we are seeking assurance that we can represent our clients without any intimidation.
Today, I must state that we accessed [court] with ease, unlike other days. We have also been facilitated to sit together while we can discuss with one another.
The other issue is officers who are manning this court do not have their name tags. We are not able to know who is interacting with us, and it is necessary because it is a procedure that any officer who is officiating at a court should disclose.
Another issue that may not appear very relevant is we have noticed the changing composition of the court, that sometimes one or two members are replaced. We are requesting that when that occurs, they are introduced.
We have other housekeeping issues, which I will let my other colleagues present, but before I proceed, I would want to tell the judge advocate that, yes, I am from Kenya, but I am an East African and I have an East African passport. The kind reference of me as a foreigner is not applicable. I am an East African holding an East African passport apart from being licensed to practice law here.
There is another issue that I was required to mention before I hand over to the lord mayor. It is just about the terminologies. The last time we appeared, the judge advocate said I could also be subjected to contempt of proceedings for referring to this court as a tribunal.
Whereas we are trying our best to keep referring it to court, I just want this on record that the word tribunal is not derogatory at all. Tribunal refers to a court in the Oxford dictionary, and I hope my team has come with the photocopies, and it refers to a specialised court like yours, which is dealing with a specific matter.
We are not dealing with general matters. For instance, a Ugandan who is a landlord cannot come and file a complaint against his tenant before you. You are set up for a particular purpose, that is what the tribunal means, and therefore, I will plead with the judge advocate to please let us give the proper interpretation because they are bound to take you to the interpretation.
There is no objection, but if we object, the chairman has a duty to see whether our objections are valid. I would like to refer to the English dictionary.
Judge Advocate Brig Richard Tukacungurwa: Mr chairman, if I may interject, the UPDF Act defines the meaning of court, and that is the one we shall follow, which was enacted by Parliament. We shall not go with the dictionary.
Martha Karua: That is exactly our problem. Mr chairman, we seek your indulgence to listen to our objection. The English language is not defined by the UPDF Act or even the Constitution of Uganda. The English language is a foreign language, and the meaning is found in either legal dictionaries or reputable dictionaries in the world. Therefore, the word tribunal court, which is an English word, must be defined, and I said Rule 60 places a responsibility on the chairman to ensure that this court functions like other courts of law.
We read those dictionaries every day in the courts of Uganda, Kenya, and elsewhere in the world, and I invite you to use the dictionary so that we do not undergo threats or intimidation in the court and to avoid court being treated in a manner that is not accepted in the laws of Uganda.
I hand over to my colleague [Erias Lukwago].
Mr Lukwago: Mr chairman, I would want to substantiate these issues with prayers. Number one, Mr chairman, the issues raised by senior counsel are fundamental in the administration of justice before you or by this court martial.
From the list read by my friend here, counsel Kalibaala, the name Eron Kiiza remains on the list as one of the advocates representing the accused persons. Mr chairman, we seek your guidance on how that is going to be handled because the instructions still stand that he should be part of the team despite what transpired the last time we were here in the proceedings of this court.
We are wondering whether there will be orders that each time the proceedings come, you have powers to direct that he be produced here to execute the duty, then maybe he is returned.
We leave it to you, Mr chairman, to guide us on how we are going to deal with that because it is a matter of the right to representation, which is a key ingredient of the right to fair hearing enshrined in Article 28 of the Constitution. As we indicated earlier, there is a specific role he has been assigned in representing the accused persons, so we beg to be guided, Mr chairman, on how Eron Kiiza is going to continue featuring in these proceedings.
At the commencement of court from day one, the names of the officers were read, but after that, as highlighted by my senior colleague here, the panel kept shifting. So the panel that was announced on day one is the panel that ought to have continued even on the day Eron was summarily charged and convicted. It was a totally different panel.
So, Mr chairman, we beg that you give validity to the proceedings that transpired. We are concerned that the whole environment is not good for this session, as she has noted, and we are on record. You can see our numbers have shrunk because of the intimidation going on.
Some orders were made earlier by you, Mr chairman, that all officers manning the process right from the point of entry should be clearly identified and have name tags, but we still have hooded officers whose faces you cannot recognise. So we do not know who we are dealing with, Mr chairman.
Why should we continue having officers manning all protocols yet cannot identify [them]? May we request that you make the environment conducive in the interest of justice?
It is a known principle that justice should not only be done but it should also be seen to be done. It should be manifested in the proceedings and processes that are conducted.
The issue of tribunal should not be fancied because we use it in the judicature system. It happens even in the Supreme Court, and the Chief Justice does not take offence. I am worried if that is going to provide disciplinary proceedings, just even if it is a mere slip of the tongue.
This has a chilling effect on our way of proceeding and is so fundamental in the interest of justice. Lastly, I have heard officers referring to you as my lord, yet for us, we are addressing you as the chairman. Would that also be taken as undermining this court because we are not addressing you as my lord?
