Supreme Court on trial over Besigye charges

In 2015, he was found guilty by a court martial and sentenced to one year in jail.

Justice Elizabeth Musoke, who wrote the lead judgment, postulated: “The framers of the 1995 Constitution permitted Parliament to create such subordinate courts as it would deem fit.”

Whereas the Deputy Chief Justice, Richard Buteera, and Justice Monica Mugenyi dissented, Musoke opined further: “Accepting, as I do, that this is the true construction of Article 129 of the 1995 Constitution, it is, in my view, incontrovertible that military courts are not courts of judicature in terms of Article 126 (t) and 129 (1)(i) and that as a general rule, such military courts have no role in the administration of justice for civilians. They are neither superior courts nor subordinate courts.”

Musisi argues that whereas the Attorney General sought a stay of execution in the earlier ruling of former Nakawa County MP Michael Kabaziguruka, he did not seek the order in the case of Byarugaba. A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order.

“That matter has never been stayed, and that is where some of us argue that actually, the court is acting in contempt. I [Musisi] have ever raised it myself before the court martial and after consultation, they said the Attorney General [Kiryowa Kiwanuka] advised them that the same principle in Kabaziguruka applied, but court matters are not stayed by principle,” Mr Musisi told Monitor.

Kabaziguruka's constitutional challenge
Mr Kabaziguruka petitioned the Constitutional Court in 2016, challenging the trial of civilians in military courts after being arraigned before the Makindye-based army court on allegations of attempting to overthrow the government. He refused to take a plea and refused to apply for bail before the military court on the premise that his trial was unconstitutional and he was denied the right to a fair hearing, which is a non-derogable right under Article 44 of the Constitution.

In 2021, the majority of the Coram of the Constitutional Court justices, comprising the late Kenneth Kakuru, Hellen Obura, and Remy Kasule (with Madrama and Musota dissenting), ruled that although the court martial is a competent court, its powers are limited to serving officers of the Uganda People’s Defence Forces (UPDF). The justices ordered that the files for all civilians facing trial before the General Court Martial be transferred to civil courts through the office of the Director of Public Prosecutions (DPP) within 14 days.

They also ordered that all civilians serving sentences imposed by military courts have their files transferred to the High Court criminal division for either retrial or handling as the court deems fit.

Appeal to the Supreme Court
However, the Attorney General appealed the ruling at the highest appellate court. The Supreme Court, in its ruling on August 5, 2021, okayed the prayers of the Attorney General and ordered a stay of execution. This meant the military courts would continue prosecuting civilians until the determination of the main appeal, which is still pending delivery.

“Execution of, and giving effect to the orders and declarations issued by the Constitutional Court between the parties hereto, are stayed until disposal of the applicant’s intended appeal,” the five justices of the Supreme Court, led by Chief Justice Alfonse Owiny-Dollo, ruled.

Delayed judgment sparks controversy
“Of course, it is a travesty largely on the part of the Supreme Court because when they were granting the stay [of execution], they undertook in the ruling that they would deliver the decision expeditiously, and yet I know the Justices of the court have been fully constituted over a year now,” argued Mr Musisi. He accused the courts of abdicating judicial accountability and wondered whether courts appreciate that judicial power emanates from people.

According to the latest annual Judiciary performance report, the Supreme Court performed at less than 10 percent, which Musisi says is an indictment on the highest appellate court, which is supposed to set the standards for other subordinate courts.

Medard Sseggona, the Busiro East MP, and the lawyer for Kabaziguruka, told Daily Monitor in a telephone interview that the trial of Besigye and other civilians before it is unlawful because the General Court Martial is an illegal outfit. Sseggona was brief in his response when asked about the delayed ruling of the case at the Supreme Court.

“I am waiting for the Supreme Court to deliver the ruling,” he said.

Kabaziguruka said the “delay [at the Supreme Court] has not only occasioned an injustice on myself because I remain a suspect in the matter, but also all the other people whose rights have been trampled upon by being tried by a military tribunal that continues to hold out as a court of judicature.” He opined further: “I was granted bail by the High Court, unfortunately, the Attorney General appealed that decision, which was really in bad faith. It was not clearly a court of law as envisaged by the Constitution. The tribunal sitting at Makindye is illegally transacting without a shadow of a doubt and is a kangaroo court.”

About a fortnight ago, Besigye, alongside his acolyte, Obeid Lutale, were arrested in Nairobi, Kenya, which has gained notoriety as a theatre of espionage games in the East African region. In an elaborate plot hatched by intelligence operatives, Besigye was returned to Uganda by road through a border outpost.

Besigye’s lawyer, Erias Lukwago, who is representing him at the General Court Martial, has put up flak against the trial of his client before a court he says lacks jurisdiction to try civilians, and the ability to comprehend the complexities of the law of evidence.

But the presiding chairperson of the court, Brig Gen Robert Freeman Mugabe, has rejected his impassioned pleas. “The two accused persons were brought before this court for plea-taking, but they objected on grounds that they are civilians and, therefore, cannot be tried by this court. In reply, Raphael Mugisha, counsel for the state, submitted that the jurisdiction to try a person not otherwise subject to military law is provided for under Section 117 of the UPDF Act,” ruled the chairperson of the military court, a fortnight ago.

He added: “This court has looked at Section 117 (g) and finds that the accused persons (Dr Besigye and Hajj Lutale) are subject to military law. The objection is, therefore, overruled. I so rule.”

Seeking intervention
It's against this background that Mr Lukwago, alongside the lead counsel for Dr Besigye, former Justice minister Martha Karua, stormed the chambers of the Chief Justice to prevail over the delay and have the judgment delivered as soon as possible.

“The stay of the constitutional court orders is giving the military license to force Dr Kizza Besigye, Hajj Obeid Lutale and many other civilians to be tried by the General Court Martial. We have asked that this judgment be delivered expeditiously so that the civilians are out of the General Court Martial,” Ms Karua said.

Law Society’s concerns
Last week, the president of the Uganda Law Society, Mr Isaac Ssemakadde, penned down a strongly worded missive to the Chief Justice demanding to know why the over three-year decision hasn’t been delivered to put to rest the ongoing debate. “We are facing a judicial crisis that threatens to unravel the very fabric of the rule of law in Uganda. Four years have passed without judgment on any constitutional appeal.”

He further stated: “...Above all else, active citizens demanded accountability for the Supreme Court’s excruciating ruling on prosecuting civilians in the military tribunals. For many, this grotesque delay symbolises a profound institutional crisis that demands immediate, unequivocal intervention.”

Court registrar’s explanation
Efforts to reach out to the Chief Justice were futile by press time, but the registrar of the court, Ms Harriet Ssali, last evening explained that the hearing of the appeal had some setbacks, including the death of two judges (Stella Arach Amoko and Rubby Opio Aweri), forcing the court to reconstitute the panels.

“The retirement of Justice Faith Mwondha early this year also affected the delivery of this appeal but since the hearing was done, any time from today, the decision will be delivered.”

Constitutional lawyer’s perspective
Senior constitutional lawyer Peter Walubiri said the highest court in the land is holding the country at ransom by delaying making the much-awaited judgment.

“First of all, regardless of the nature of the appeal, don’t you find it curious that the highest court in the land has failed to deliver such an important decision for a long time? People look to the Supreme Court on what is lawful and what is not. Whether it's on a property or commercial dispute, it is absurd that the Supreme Court could neglect its duty to work. On the trial of civilians before the military court, this is a long debate and there has been uncertainty whether a civilian should be tried in the military or not.”

Lack of official responses
When contacted last evening, the Attorney General said he was in Parliament and asked us to send him a message. Despite sending the question on whether the delayed delivery of the pending appeal has sparked a crisis in the country, he did not respond.

Equally, efforts to get a comment from Justice Minister Norbert Mao and the DPP, Ms Jane Frances Abodo, were futile by press time.

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