Olivia Lutaaya: A criminal or prisoner of conscience?

On May 8, 2021, 27-year-old mother of two, Ms Olivia Lutaaya, received a phone call. The voice on the call asked her to rush to a police post in Namuwongo, a Kampala City suburb. Upon arrival, she was whisked away by hooded men to a safe house in Bukoto, another Kampala City suburb. 

Thereafter she was transferred to the Special Investigations Unit (SIU) in Kireka, Kigo Prisons, Wakiso District and later incarcerated at Luzira Prisons. 

She is being detained on charges of treachery and possession of ammunition. Last week, she was arraigned before the General Court Martial alongside 31 others but her impassioned plea to receive bail was not granted.

A National Unity Platform (NUP) supporter, Ms Lutaaya had earlier on been briefly detained after her arrest in Kalangala on December 30, 2020 with 29 others including Mr Eddie Mutwe, the bodyguard of NUP president and then presidential candidate Mr Robert Kyagulanyi, alias Bobi Wine.

Her ordeal
Is she a prisoner of conscience caught in the crosshairs of Uganda’s murky politics or is there evidence to implicate her for the offences she is charged with? 

Behind the iron curtain at Luzira Prisons, Ms Lutaaya recounts the circumstances of her arrest.

“Someone called me on the phone and said he had hired a boda boda [motorcycle] to take him and his wife who was in labour to Mulago and the boda boda rider had robbed them. The rider apparently had given them my number. I was concerned that there is someone out there using my phone number to rob people so I asked the man to come to the police post near where I worked [I had a small boutique selling clothes] and we meet there,” she revealed recently.

Located about six kilometres from the central business district in Kampala, the Kanyogoga Police Post squats across a bustling low-income community that straddles railway tracks and features dwellings made of rammed earth, wooden poles and iron sheets. Braving the downpour that morning, Ms Lutaaya did not know that she was being lured into a trap.  

“I went to the police post. All the officers there were familiar to me but also there was one there who was my relative, so I felt safe going there. When I got there, I found people waiting for me. They took me into a small room and asked me about a man called Sanya saying he had robbed them. I told them I knew Sanya and he is my friend, but he is not a thief. They ordered me to enter the car and take them to Sanya but promised to bring me back once I had shown them Sanya. When I entered the car there were other men. Their faces were covered with masks and they were wearing black gloves. They were six in total and were armed. That’s when I realised what was awaiting me. As they drove off, I saw my son playing near a trench and wondered if I would ever see him again,” she said.

While in custody, Ms Lutaaya said she was forcefully compelled to lure her friends in a sting operation. “They took away my phone and later gave it back to me and ordered me to call Sanya. It was at that point that they started accusing me of wanting to disrupt Museveni’s swearing in. I called Sanya and he told me where he was. They went there with me and picked him up also,” she said,
In the days and weeks that followed, Ms Lutaaya’s ordeal continued.

She said: "Thankfully, I wasn’t beaten but I would hear them beating my male counterparts and asking them what Bobi Wine was planning. There was a police officer who protected me and warned the others not to lay a hand on me. I was in a cell alone. We were kept there for two weeks and later taken to SIU in Kireka. We spent another two weeks there. “

Following Ms Lutaaya’s disappearance, her auntie, Sarah Nambi, a resident of Kanyogoga Zone in Namuwongo, a Kampala suburb, attempted to trace her niece.

“After a while, I called her phone and she answered and reassured me that she would be back shortly and she told me to take care of Jeremiah [son of Lutaaya]. I called again a day later and many days thereafter for the next three months and no one answered,”Ms Nambi said.

Ms Lutaaya was eventually produced in court and charged.
“We were taken to court and charged with being in possession of ammunition. Later we were charged with treachery. They claimed to have found us with bombs, bottles etc. after that we were remanded to Luzira and others were taken to Kitalya [Prison],” Ms Lutaaya said.

According to George Musisi, Ms Lutaaya’s lawyer, this case is a mockery of justice and an abuse of power by authorities because, among others, some of the evidence implicating his client of possession of ammunition took place when she was already in jail. 

“They spent around one month in illegal incommunicado detention. We didn’t know where they were until they were produced in court a month later with 31 others. Many of whom she didn’t even know. She had never met them before. Some were from Mbale, Kawempe. So out of the group of 32 whom they are alleging she connived with she knew about three of them. So, it is one of those cases where they use the law to abuse people’s rights, “Mr Musisi said.

Charges
Ms Lutaaya and her 31 co-accused were initially charged with unlawful possession of ammunition. This offence is provided for in Section 3 of the Firearms Act which states that: “Subject to this Act, no person shall purchase, acquire or have in his or her possession any firearm or ammunition unless, in respect of each such firearm, he or she holds a valid firearm certificate.”

Section 3 (2A) further states that: “Any person who purchases, acquires or has in his or her possession any firearm or ammunition without holding a valid firearm certificate, or otherwise than as authorised by such a certificate, or, in the case of ammunition, in quantities in excess of those so authorised; commits an offence and is liable on conviction to imprisonment for a term not exceeding ten years” or to a fine not exceeding Shs1.2 million “or both”.

The particulars of the offence state that between November 2020 and May 12, 2021, in the areas of Jinja, Mbale, Kireka, Nakulabye, Kawempe, Nateete, Kampala, Ms  Lutaaya and her co-accused were in possession of explosive devices, which are ammunition ordinarily the monopoly of the defence forces.

Amended on April 4, the charge sheet includes the offence of treachery which Section 129(a) of the UPDF Act defines as a person subject to military law who, for any purpose prejudicial to the security or interests of Uganda infiltrates the defence forces or is an agent of a foreign power or of any force engaging in war or war-like activities against the government. On conviction, Ms Lutaaya and her co-accused are liable to suffer death.

According to another amended charge sheet, Ms Lutaaya and her co-accused, between March and May 2021 in areas of Kampala, specifically Kireka, Nakulabye, Kawempe, Nateete Nakasero, Jinja and Mbale, under a force called Bali Bali Group, engaged in war or war-like activities against the government of Uganda.  

The particulars of the offence state that: “You recruited, trained and unlawfully detonated explosive devices ordinarily the monopoly of defence forces onto motor vehicles and infrastructure in the aforementioned areas for purposes prejudicial to national security.”

In response to the charges, Mr Musisi expressed frustration with the legal process.
“The trial only started recently in 2023 then the State says no we have held you for two years, we have finished investigations. But two years later you find that there are other charges that are produced.”

Highly placed sources who preferred to speak on condition of  anonymity, claimed that there is an attempt to cajole the accused to accept a plea bargain by falsely implicating the NUP leader, Bobi Wine. On one occasion during a break in court proceedings, the accused were offered their freedom on condition that they pin Bobi Wine for  alleged subversive activities.

Ms Lutaaya’s predicament brings into the spotlight the continued trial of civilians in the General Court Martial, which the Constitutional Court in July 2021 found to be unlawful in the case of the former Nakawa MP, Michael Kabaziguruka vs the Attorney General.

In his judgement, the late Justice Kenneth Kakuru, postulated that the General Court Martial’s jurisdiction is only limited to trying service offences specified under the UPDF Act, only in respect of persons subject to military law. “Persons subject to military law under the UPDF Act must exclude all those persons who have not voluntarily placed themselves under the jurisdiction of that Act”, he argued. 

Section 119 1 (h) of the UPDF Act stipulates that every person found in unlawful possession of arms, ammunition or equipment ordinarily being the monopoly of the defence forces is subject to military law. However, Justice Kakuru found Section 119 1 (h) unconstitutional as it is inconsistent with Article 28 (1) of the Constitution.

“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,” reads part of the judgement. 

This decision was appealed by the Attorney General, however, in Constitutional Application No.5 of 2021 and as judgment is pending on the appeal, the Supreme Court ordered on August 5 2021 that execution of and or giving effect to the orders and declarations issued by the Constitutional Court are stayed until the appeal is determined by the highest appellate court. 

Mr Musisi explains the implications of the court ruling. 

He said: "The Attorney General appealed to the Supreme Court in the case of Mr Kabaziguruka and the Supreme Court gave a stay meaning that it allowed the General Court Martial to continue trying civilians until the Supreme Court decides. The Supreme Court has not given a final pronouncement on the Attorney General’s appeal.”

In December 2022, the Constitutional Court delivered another judgement in a case filed by a retired UPDF Captain Amon Byarugaba and 100 others against the Attorney General and in a majority decision of three to two, the justices held that under the 1995 Constitution, it is only civilian courts of judicature dressed with the jurisdiction. 

Critics accuse the General Court Martial of being akin to a kangaroo court, which does not adhere to the rigorous rules of evidence and criminal procedure, and where judges may act to please their puppet masters.

But the army said the General Court Martial is an impartial court that seeks to deal with hardcore criminals who threaten the security of the country by accessing arms, which is a monopoly of the UPDF.
Brig. Felix Kulayigye who is the spokesperson of the Defence ministry and UPDF, declined to comment on a matter because it is “pending determination in the Supreme Court”.

Ms Lutaaya and her 31 co-accused are a diverse cast that includes 66-year-old Siraji Mudebo, a herbalist from Mbale and Ronald Kijambo,20, of Bweyogerere.

In their absence, their families have struggled to pick up the pieces as Ms Nambi reveals.

She said: “So, I tell people, especially those women like me, that we should act as if these children are dead and we look after their children. Those who will be freed will assume their responsibilities but we should not lament. Where will our help come from?”

Ms Justine Nakabugo, 61, mother of 38-year-old Abdullah Kintu, said her son was arrested in May 2021 on the day President Museveni was sworn in for a fresh five-year term. 
“Kintu was selling pineapples in Bweyogerere market and was arrested with eight others. He has three children. I am looking after one of them with what I make from selling charcoal at a stall. With the other two, NUP helps us with school fees and a few other things,” Ms Nakabugo revealed.

Ms Mutesi Kisakye, the mother of Musa Kagoma, 25, who was also arrested in May 2021, has also narrated the ordeal she has gone through for the last two years after her son was jailed. 
“My son has three young children. They all live with me yet I have no job. Musa was a boda boda rider but the motorcycle was also confiscated,” Ms Kisakye said.

Life is precarious for Ms Nambi who lives in a two-roomed house with Ms Lutaaya’s son. The walls caved in recently but luckily no one was hurt and she has just rebuilt them with the help of funds from NUP Opposition party, which also donated building materials. She continues to care for Ms Lutaaya’s seven-year-old son who has struggled to come to terms with his mother’s incarceration. 
She took the child to meet his mother in prison. “It was an emotional reunion between mother and son. I think Jeremiah [Ms Lutaaya’s son] expected to be left behind with his mother but when I told him it was time to leave, he protested.”

In Ms Nambi’s view, her niece has been punished enough.

“She has been detained too long. Three years! It is too cruel a punishment," she said.

The public outcry for Ms Lutaaya and hundreds of other civilians who are being tried in the General Court Martial, calls for a speedy and fair trial. This appears untenable as the Supreme Court is yet to commence the hearing of the appeal in the Kabaziguruka case, a concern human rights exponents fear it may result in a miscarriage of justice.