Dr Kizza Besigye in the dock at Buganda Road Court in Kampala on February 14, 2025. He appeared before the court together with his colleague Samuel Lubega Mukaaku, with whom he is facing charges of inciting violence in 2022. PHOTOS / ABUBAKER LUBOWA
On a day when much of the world celebrates love, Dr Kizza Besigye was in tears at the Buganda Road Chief Magistrate’s Court in Kampala. According to Dr Besigye’s lawyer, Erias Lukwago, the jailed Opposition leader was not even allowed to speak to his wife Winnie Byanyima on Valentine’s Day.
On February 14, Dr Besigye appeared before Grade One Magistrate Winnie Nankya, looking frail. Before the court, his lawyer’s prayers were that his client should be given the liberty to, among other things, seek treatment for illness. However, despite his impassioned plea to the judge, Lukwago’s prayers did not succeed. Lukwago put Dr Besigye’s case to the presiding magistrate thus:
“The issues we are raising, your Worship, are as follows. Number one, your Worship: deprivation of liberty of A1 Dr Kizza Besigye without any lawful justification, contrary to the provisions of Article 23 of the Constitution. Article 23, sub-article 1 provides that no person shall be deprived of personal liberty except in any of the following cases:
a) In execution of a sentence or order of the court, and so on...So in this particular case, Your Worship, facts speak for them selves that Dr Besigye is in the custody of the prison authorities who are guarding him yet this honourable court granted him bail. It is on record that this court granted him bail.To your worship,he has no independent charges whatsoever under any court of law in Uganda.”
The February 14 hearing this year, in the Buganda Road Chief Magistrate’s Court, was convened to address Besigye’s previous absence from the court in a case in which Dr Besigye and his co-accused Samuel Mukaaku face charges concerning, inciting the masses in 2022 to protest the rising cost of living.
Dr Besigye and Obeid Lutale are incarcerated in Luzira Upper Prison on separate charges, for which, until recently, they were on trial in the General Court Martial, a military court.
Held in Nairobi, tried in Kampala
In November 2024, Dr Besigye and Mr Lutale were arrested in Nairobi, Kenya.
Reports at the time indicate that secret agents within the Ministry of Foreign Affairs reportedly provided the tip-off that sparked the sting operation in Kenya that seized Uganda’s veteran Opposition politician,retired Col Dr Besigye,and his companion Mr Lutale.
The joint team of Ugandan security personnel led by the army reportedly seized Dr Besigye and Lutale from Riverside Apartments in Nairobi, Kenya before whisking them off to Uganda.
Opposition sources said the military then held the two men incommunicado before they were produced before the General Court Martial at Makindye, a Kampala suburb.
Security sources revealed that before arresting Dr Besigye, the army had received information from their agents at the Foreign Affairs Ministry about Dr Besigye’s planned itinerary to Kenya.
Dr Besigye was in Kenya to attend the launch of Opposition politician Martha Karua’s book ,‘Against the Tide: My Journey on a Less Trodden Path’. The memoir depicts Ms Karua’s endurance and commitment to social justice and equality.
The sources said the security team that drew in the Police, Special Force Command, Defence Intelligence and Security (DIS), and Internal Security Organisation, convened in Kampala and agreed on monitoring the movements of Dr Besigye while in Kenya.
To achieve this, the security operatives in Uganda liaised closely with their counterparts in Kenya and are reported to have kept a close eye on Dr Besigye, including during the launch of the book.
The security meeting, the sources said, jointly plotted and agreed on the plan to have Dr Besigye and his colleague arrested. They also instructed DIS, a body responsible for conducting intelligence operations for the military, to take the lead in the operation.
The DIS, formerly known as CMI, conducts intelligence operations for the military and often collaborates with the Uganda Police Force (UPF) to combat violent crimes such as terrorism, armed robberies, abductions, kidnappings, and murders.
We could not verify whether Dr Besigye was whisked off by road or was airlifted from Kenya to Uganda where he was detained in a military facility.
Ms Winnie Byanyima, the wife of Dr Besigye, and also the executive director of the Joint United Nations Programme on HIV/Aids (UNAIDS) later posted a message on her X platform, raising the alarm that her husband had been abducted by Uganda’s security agencies who she said were holding him in a military facility and demanded his unconditional release.
Dr Besigye and Mr Lutale are on remand in Luzira Prisons, where they were detained over security-related cases, including charges related to security, illegal possession of firearms and ammunition, and treachery. The two declined to take the plea, arguing that the General Court Martial lacks jurisdiction to prosecute civilians.
This led Dr Besigye’s legal team to ask for a constitutional interpretation, on, among other things, the jurisdiction of the General Court Martial to try the two civilians—Dr Besigye and Lutale—in a military court.
Following mounting pressure on the Supreme Court to deliver a ruling in the appeal by the Attorney General for a stay of execution on the Constitutional Court ruling in the Kabaziguruka case, the Supreme Court of Uganda finally fixed a date at the end of January for delivering a judgment, arising in the appeal of the court decision arising from a petition filed by former Nakawa Division MP Michael Kabaziguruka, who was facing trial before the military court.
The state had accused Mr Kabaziguruka and others of plotting to infiltrate defence forces with intent to overthrow the government of Uganda by use of firearms. The offences were allegedly committed between February and June 2016 in the districts of Kampala, Wakiso and Luweero.
In a majority decision of July 2021, in which Justices Hellen Obura and Remmy Kasule concurred with Justice Kakuru and Justices Christopher Madrama and Stephen Musota dissented, the Constitutional Court gave almost identical orders as made by the Supreme Court in 2025.
The Constitutional Court in 2021 ordered:“All those persons not subjected to military law and are currently being tried before any military court; we order that their cases be transferred to civil courts under the direction of the Director of Public Prosecutions within 14 days from the date hereof.”
In the aftermath of the 2021 Constitutional Court ruling in the Kabaziguruka case, Attorney General (AG) Kiryowa Kiwanuka appealed the Constitutional Court’s ruling to the Supreme Court. The decision of the Constitutional Court was stayed, prolonging the trial of civilians in military courts.
On January 31,2025,the Supreme Court delivered a landmark judgment declaring it unconstitutional to try civilians before military courts, citing a lack of independence, impartiality, and fairness.
Chief Justice Alfonse Owiny-Dollo ordered that all ongoing prosecutions or pending trials before the court martial involving civilians must immediately cease and be transferred to the ordinary courts of law with competent jurisdiction.
Justice Owiny-Dollo regretted the perfect storm that had contrived to stop the Supreme Court from delivering the eagerly anticipated judgement. He cited a fire that swept through his erstwhile chambers in the leafy Kampala suburb of Kololo.
There were also, he added, sledgehammer blows inflicted by the deaths of justices Ruby Opio Aweri and Stella ArachAmoko.
The seven-member bench of the Supreme Court delivered a judgment that nullified the trial of civilians in military courts.
Chief Justice Alphonse Owiny-Dollo (C) speaks during a Supreme Court session to deliver a landmark ruling on the trial of civilians in military courts in Kampala on January 31, 2025. PHOTO/ABUBAKER LUBOWA
In their own words, the judges ruled as follows:
Night Percy Tuhaise
The General Court Martial (GCM) would be competent if it were a court of law with requisite structures to conduct a fair hearing.
Sections 2, 119 and 179 of the UPDF Act are inconsistent with the Constitution and, therefore, null and void. The arraignment of [Michael] Kabaziguruka before the GCM was unconstitutional since he was not at the time a member of the UPDF. The GCM is established under Article 210(b) of the Constitution and, therefore, is not a subordinate court since it is not subject to the supervision of any of the superior courts, including the Supreme Court. The GCM lacks the features of a competent court in terms of competence and impartiality of its officers.
The GCM cannot hold a fair trial due to several deficiencies due to its setup. Its members are incompetent due to lack of legal knowledge. The deficiencies highlighted above render it impossible for the GCM to accord a fair trial to the people who fall within its jurisdiction. It is inappropriate to grant the military courts powers to try offences beyond the discipline of soldiers as all those matters that fall outside that should be tried by courts of judicature. I make the following declarations:
The GCM is not a subordinate court but a disciplinary tribunal; its jurisdiction is limited to matters involving disciplinary offences committed by UPDF members; hearing of civilian offences is not the GCM role; hearing UPDF members cases that attract imprisonment or death falls within the jurisdiction of courts of judicature.
The GCM is a specialised court established to administer military justice in respect of disciplinary and criminal military offences. While the Constitution sets up the court of judicature directly under Article 129 of the Constitution, the GCM is established by Parliament under the UPDF Act. Legal qualification is not a basis for appointment of members of the GCM.
This is in contrast with the appointment requirements for the courts of judicature where judicial officers are required to have legal qualifications. The legal principle is that any court with jurisdiction to impose a serious penalty should be presided over by qualified persons to accord a fair trial under Article 28 of the Constitution and international law principles.
The GCM cannot accord a fair trial. The GCM is not competent to hear criminal matters other than matters relating to the discipline of soldiers.
Elizabeth Musoke
I find that the General Court Martial (GCM) is established as a military organ of the UPDF to instil discipline in members of the Force and the nature of the punishment is limited to disciplinary sanctions i.e. dismissal with disgrace.
The GCM exceeds its jurisdiction by trying offences that attract life imprisonment and death. Article 210 restricts the jurisdiction Parliament may confer on the court martial. The jurisdiction must be confined to military disciplinary offences and the imposition of disciplinary sanctions.
The jurisdiction is overstretched by trying civilians who aid and abet the commission of service offence. The jurisdiction of the GCM as currently conferred by the UPDF Act exceeds the constitution al limits under Article 210(b) of the Constitution. Non-members found in possession of prescribed UPDF attire and stores are an overstretch of the jurisdiction of the military courts.
Section 179 of the UPDF Act exceeds the constitutional limits in as much as it confers jurisdiction on the GCM to punish what is contemplated under the Constitution. The GCM is not supervised by any superior courts.
The GCM lacks legal competence of its officers found in other subordinate courts. The provisions of the UPDF Act, which empowers the GCM to try civilians, are unconstitutional and inconsistent with Article 210(b) of the Constitution.
Sections 2, 119 and 179 of the UPDF act are inconsistent with the Constitution and, therefore, null and void. The arraignment of [Michael] Kabaziguruka before the GCM was unconstitutional since he was not at the time a member of the UPDF.
The GCM is established under Article 210(b) of the Constitution and, therefore, is not a subordinate court since it is not subject to the supervision of any of the superior courts, including the Supreme Court. The GCM lacks the features of a competent court in terms of competence and impartiality of its officers. The GCM cannot hold a fair trial due to several deficiencies due to its setup. Its members are incompetent due to lack of legal knowledge.
The deficiencies highlighted above render it impossible for the GCM to accord a fair trial to the people who fall within its jurisdiction. It is inappropriate to grant the military courts powers to try offences beyond the discipline of soldiers as all those matters that fall outside that should be tried by courts of judicature.
I make the following declarations: The GCM is not a subordinate court but a disciplinary tribunal; its jurisdiction is limited to matters involving disciplinary offences committed by UPDF members;
hearing of civilian offences is not the GCM’s role; hearing UPDF members’ cases that attract imprisonment or death falls within the jurisdiction of courts of judicature.”
Legal ping pong after Supreme Court ruling
Armed with the Supreme Court orders, which called for the cessation of civilian cases in military courts, on February 3, Dr Besigye’s lawyers attempted to secure his release, meeting with the Commissioner General of Prisons and engaging with the Attorney General’s office, arguing Dr Besigye and Lutale’s remand warrants had expired and were no longer valid.
Frustrated by his continued detention despite the Supreme Court orders, Dr Besigye went on a hunger strike in Luzira Prison. He was also denied the opportunity to meet his lawyers. Four people were arrested by police for protesting the continued detention of Dr Besigye and other civilians.
After a back and forth between Dr Besigye’s lawyers, the Attorney General, the Prisons authorities and the Office of the Director of Public Prosecutions, with each institution at one point, stating that they were either still internalising the Supreme Court judgment or waiting on instructions from the Attorney General, this week, Director of Public Prosecutions (DPP) Jane Frances Abodo assembled a team of prosecutors to handle files transmitted from the General Court Martial and other military courts, potentially including the case files of Dr Besigye and Mr Lutale.
Until the DPP and her team conclude the file transfers, there seems no clear end in sight for Dr Besigye and his co-accused Lutale, alongside all political prisoners previously facing trial in the General Court Martial.
RULING BY JUDGES
The General Court Martial is a competent court of jurisdiction that tries service offences committed by UPDF serving members. Any member of the public who aids and abets a service against UPDF to commit an offence automatically subjects themselves to the jurisdiction of the court martial.
Section 117.1 of the UPDF Act is void for vagueness and, therefore, inconsistent with the right to a fair trial as enshrined in Article 28.12 of the Constitution. Service offences are not at cross purposes with the objectives of the UPDF or the legislative mandate of Parliament. I would respectfully propose the following additional advisory order for consideration.
The court martial is substantially composed of civilian judges, who are directly appointed thereto by the Judicial Service Commission (JSC) in accordance with the Constitution as is presently done in respect of judges of the Industrial Court, and the members of the court martial from within the military should be appointed in consultation with the JSC.
CATHERINE BAMUGEMEREIRE
The set up of the General Court Martial cannot give an assurance that they will deliver an independent and impartial judgement.
They are all serving army officers who report to their superiors. A soldier who commits an ordinary offence should be arraigned before the Civil Appeal as opposed to the military court. In its current form, the court martial is not in a position to guarantee a free and fair trial.
MIKE CHIBITA
The General Court Martial is a subordinate court under Section 129 of the Constitution. I would agree that trial of civilians be remitted to civilian courts for review. Applies the principle of prospective annulment and holds that earlier decisions of the court martial should not be interfered with.
