Court name
Supreme Court of Uganda
Judgment date
30 January 2006

Uganda Law Society v Attorney General of the Republic of Uganda (Constitutional Petition-2005/18) [2006] UGSC 10 (30 January 2006);

Cite this case
[2006] UGSC 10
Short summary:
Constitutional Law, Constitutional Interpretation, Human Rights, Substantive rights, Liberty

THE REPUBLIC OF UGANDA

 

 

IN THE CONSTITUTIONAL COURT. OF UGANDA

AT KAMPALA

 

CORAM: HON. DEPUTY CHIEF JUSTICE L.E.M. MUKASA-KIKONYOGO

HON. JUSTICE G.M. OKELLO, JA

HON. JUSTICE S.G. ENGWAU, JA

HON. JUSTICE C.K. BYAMUGISHA, JA

HON. JUSTICE S.B.K. KAVUMA, JA

 

 

CONSTITUTIONAL PETITION NO. 18 OF 2005

 

 

THE UGANDA LAW SOCIETY:::::::::::::::::::::::::::::::::PETITIONER

 

VERSUS

 

THE ATTORNEY GENERAL OF

THE REPUBLIC OF UGANDA::::::::::::::::::::::::::::::::: RESPONDENT

 

 

JUDGMENT OF THE HON. DEPUTY CHIEF JUSTICE L.E.M. MUKASA-KIKONYOGO

 

 

 

 

Tins petition is brought-by The Uganda law Society, a body corporate established under the Uganda Law Society Act, Cap 276 of the Laws of Uganda 2000; hereafter to be referred as the petitioner. Its objects include, among others, representation, protection and assisting the public in Uganda in all matters touching, ancillary or incidental to the law. The petitioner has an interest in and is being affected by the following acts and/or matters complained of herein arising from and connected with the arrest, detention, charge and trial of Col. (Rtd). Dr. Kiiza Besigye and 22 others, whose full names are set out in schedule I attached to the petition, hereinafter collectively referred to as "the accused".

 

The petition is brought under Article 50 (1) and (2) and 137 (3) of 5 the Constitution of the Republic of Uganda 1995 as amended by the Constitution (Amendment) (No. 3) Act 2005 against the Attorney General.

It is supported by the affidavit and supplementary affidavit sworn by lo Mr. Kiyemba Mutale with it's annextures.

 

The background of this petition briefly is that Rt. Col. Kiiza Besigye, a leader of one of the opposition political parties known as Forum for Democratic Change (FDC) and twenty two others hereinafter to be referred to as the accused were jointly charged with treason and misprison of treason under the Penal Code Act. The indictment was read to them at Buganda Road Chief Magistrate's Court. The 1st accused, Dr. Kizza Besigye, was separately charged with rape allegedly committed in 1997. All the accused were subsequently committed to the High Court for trial.

 

On 16/11/05 the accused were taken to the High Court for bail application before Hon. Justice Lugayizi. Fourteen of the accused were granted bail but because of certain alleged acts of the security personnel at the court premises bail papers could not be processed.

 

The said security men were dressed in dark clothes and armed. They entered into some of the offices and interrupted the court's normal duty of processing bail, as a result the accused had to be taken back to prison.

 

 

The following day, which was 17/11/2005 all the accused persons including Rt. Col. Kizza Besigye were taken to Makindye and jointly charged in the General Court Martial with the offence of terrorism and in the alternative with being in unlawful possession of firearms. It is claimed by the accused that all the offences arose from the same facts as the treason and misprison of treason charges preferred against them in the High Court which contravenes Article 28(1) of the Constitution.

 

 

The Petitioner aggrieved by the aforesaid reasons is seeking the following declarations and redress based on the following facts: -

  1. THAT, the acts of the Anti Terrorism Task Force Urban Hit Squad, a security agency of the Respondent, perpetrated on the afternoon of the 16th November, 2005 at the High Court of Uganda during and immediately after the hearing by Mr. Justice Edmund Lugayizi of the bail application of the Accused contravened Articles 23 (1) & (6) and 128 (1) & (2) of the Constitution.

  2. THAT, the concurrent proceedings in High Court Criminal Case No. 955/2005 and Criminal Case No. UPDF/GCM/075/2005 in the General Court Martial involving the accused contravene Articles 28(1) and 44(c) of the Constitution and its effect is inconsistent with Articles 28 (9) and 139(1) of the Constitution.

  1. THAT, section 119(1)(g) and (h) of the Uganda Peoples Defence Forces Act No.7 of 2005 (hereinafter referred to as "The UPDF Act", which subjects civilians not employed by or voluntarily or in any other way officially connected with the Uganda Peoples Defence Forces to military law and discipline, is inconsistent with Articles 126(1) and 210 of the Constitution.

  2. THAT, the joint trials of civilians and members of the Defence Forces in military courts for offences under the UPDF Act is inconsistent with Articles 126(1) and 210 of the Constitution.

  3. THAT, the trial of the Accused persons before the General Court Martial constituted under the UPDF Act on a charge of terrorism whose penalty on conviction is death is in contravention of Articles 22(1) and 126(1) of the Constitution.

  4. THAT the act of charging and proceeding to try the accused persons with the offence of terrorism, an offence which is solely triable by the High Court in the General

4

Court Martial under the UPDF Act is inconsistent with the provisions of Articles 28(1) and 126(1) and 210 of the Constitution.

 

 

The Petitioner is, hence, praying to this Court to:

  1. Grant the declarations prayed for in paragraphs (a), (b), (c), (d), (e) and (f) above; and

  2. Grant orders that all and any proceedings against the Accused in the General Court-Martial cease forthwith.

 

 

The Petitioner further prayed for costs of the Petition.

 

 

The Attorney General, hereafter to be referred to as the respondent in his answer to the petition denied all the allegations contained in the petition. He averred that the petitioner is not entitled to any of the prayers sought in Paragraph 2 and 3 of the petition. He prayed for the dismissal of the petition with costs. The answer to the petition is supported by the affidavit and supplementary affidavit of Robina Rwakojo and that of Major Kagoro Asingura respectively.

 

 

The Petitioner was represented by Mr. Godfrey Lule as lead counsel, assisted by Mr. Peter Mulira, Mr. David Mpanga and Mr. Medard Lubega. The Respondent was represented by the Solicitor General, Mr. Tibaruha Lucian, assisted by the Acting Director of Civil Litigation, Mr. Joseph Matsiko and Senior State Attorney, Mr. Phillip Mwaka.

The petition is brought under public interest litigation. Mr. Lule as the lead counsel for the petitioner, when opening his submissions, explained that though the submissions touch on issues concerning Rtd. Col. Dr. Kizza Besigye and 22 others accused before the High Court, they are not representing them or any other person. Their client is the Uganda Law Society, the petitioner.

 

 

During conferencing inter-parties before the Court, the following issues were agreed upon: -

 

 

 

(1) Issue No. 1

Whether acts of security agents at the premises of the High

Court on the 16th November, 2005 contravened Articles 23(1) and (6), 28 (1) and 128 (1) (2) (3) of the Constitution.

 

 

(2) Issue No. 2

Whether the concurrent proceedings in the High Court Case No. 955/2005 and Court Case No. UPDF/Gen/075/2005 in the General Court Martial against the accused contravened Articles 28 (1) and 44 (c) of the Constitution and inconsistent with Articles 28 (9) and 139 (1) of the Constitution.

 

 

(3) Issue No. 3

Whether Section 119 (1) (g) and (h) of the UPDF Act is inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution.

(4) Issue No. 4

Whether the joint trial of civilians and members of the UPDF in Military Court for offences under the UPDF Act is inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution.

 

 

(5) Issue 5

Whether the trial of the accused before the General Court Martial on a charge of terrorism contravenes Article 22 (1) 28 (1) and 126 (1) of the Constitution.

 

 

 

(6) Issue 6

Whether the trial of the Accused for the offence of terrorism, and unlawful possession of firearms before the General Court-Martial is inconsistent with Articles 28(1), 120(1), 3(b) and (c), 126 (1) and 210 of the Constitution.

 

 

In interpreting the Constitution the court is guided by laid down principles which have been enunciated in a number of cases both locally and internationally. For example, in the case of Attorney General vs Momodon Jube 984 AC 689 in an appeal to the Privy Council, from the Court of Appeal of Gambia, Lord Diplock made the following observation:-

"A constitution and in particular that part of it which protects and entrenches the fundamental rights and freedoms to which all persons in the State are to be entitled to be given generous and purposeful Construction."

 

 

The interpretation should be generous rather than a legalistic one aimed at fulfilling the purpose of guarantee and securing the individual the full benefit of the Charters Protection. See R vs Big M. Drug Mart Ltd 1985 DLR 321 -395 in Supreme Court of Canada. Per. Dickson J, and Constitutional Petition No. 8 of 2003 Fox Odoi-Oywelowo and James Akampumuza vs Attorney General (unreported).

 

 

 

In Unity Dow vs Attorney General of Botswana 1992 LRC 623, it

was held that generous construction means:

 

"that you must interpret the provisions of the Constitution in such a way as not to whittle down any of the rights and freedoms unless by way of very clear and unambiguous provisions such interpretation is compelling".

 

 

Another guiding principle was reiterated in the case of South Dakota vs North Carolina 192 US 268 (1940) LED 448. This principle enjoins the Constitutional Court to look at the case as a whole and read it as an integral part. No one particular provision should destroy another but each support the other. No one provision of the Constitution must be segregated from all others and considered alone. All provisions bearing upon a particular subject are to be brought into

 

view and to be so interpreted as to effectuate the greater purpose of the instrument.

 

 

Enough for the principles of interpretation. Bearing in mind those principles I now propose to proceed with discussing the issues agreed upon by the parties.

 

 

Mr. Godfrey Lule argued the issue on jurisdiction separately and the rest together. The Solicitor General argued issues No.1 - 4 separately and issues No. 5 and 6 together. I appreciate the approach adopted by both counsel for the parties especially in view of the fact that Article 28 of the Constitution which embodies the right to a fair hearing runs throughout all the framed issues. However, I propose to adopt a slightly different approach. I will discuss issues 1, 2, separately, 3 and 4 together and lastly issues 5 and 6 together.

 

 

Issue No. 1

Whether the acts of security agents at the premises of the High Court on the 16 November 2005 contravened Articles 23 (1) and (6), 28 (1) and 128 (1), (2), (3) of the Constitution.

On the above issue it is the contention of the petitioner that the acts of the Anti Terrorism Task Force Urban Hit Squad, a security agency of the respondent, perpetrated on the afternoon of the 16 November, 2005 at the High Court of the Uganda during and immediately after the hearing by Mr. Justice Edmund Lugayizi of the bail application of 9 the accused contravened Articles 23 (1) and (6) and 128 (1) and (2) of the Constitution. It did not only threaten the independence of the Judiciary and impartiality of courts at the time but continued as a looming danger.

 

 

Counsel for the petitioner, further, submitted that the said acts and the presence of the security agency at the High Court were calculated to instil fear in the judge and other judicial officers and to induce judicial officers to be partial and to feel dependent on the state. It was also a warning if they did not enter favourable judgements they would be in danger. He argued that those acts contravened Article 28 (1) of the Constitution which requires the courts to be fair and accord an impartial hearing and to be independent during the whole trial. To him, the withdrawal of Justice Lugayizi from hearing of the case in the circumstances, justifies the fear of that threat. The petitioner relied on the affidavits sworn by Kiyemba Mutale, one of the counsel of Rtd. Col. Dr. Kizza Besigye and others in their cases pending before the High Court.

 

 

On the other hand the Respondent relied on the affidavit of Major Kagoro Asingura sworn on 16th November 2005 who deponed that the UPDF decided to deploy security personnel at the High Court premises for purely security reasons and to ensure that the accused persons are not rescued and made to disappear from the course of justice. Further, it should be noted that the petitioners never filed an affidavit in reply to rebut the averments on oath by Major Kagoro Asingura neither was he cross examined by counsel. It is the principle of the law that such evidence remains unchallenged. It follows, therefore, that the reasons and decision of UPDF to deploy security forces at High Court premises were purely for security. Counsel for the respondent vehemently contended that there were no acts committed by security agents at the premises of High Court that contravened Articles 23(1) and (6), 28(1), 128(1), (2) and (3) of the Constitution as alleged by the petitioners.

 

 

I heard the arguments of both counsel for the parties and considered them carefully. I have the following observations to make. I accept the submissions of counsel for the respondent that there were valid reasons for deployment of security forces at High Court premises. I am also mindful of and in agreement with the view expressed by Kanyeihamba JSC in Supreme Court Constitutional Petition No.1 of 1997 Attorney General Vs Major General David Tinyefuza (supra) that:-

"Courts should refrain from reviewing decisions relating to Military affairs unless they have to. The exercise of Judicial power must be within proper bounds and should fall short to the point beyond which it might be considered as an intrusion in the powers of the co- ordinate ranches, namely, the legislature and the Executive. The Constitution has empowered Parliament and not the Judiciary, to supervise the executive when the latter is exercising its functions in Military Operations."

 

The aforesaid notwithstanding, I find that this is a proper case in which review of the acts of the security personnel complained of is justified. I concede the security deployed was a desirable necessity for security reasons based on the security intelligence report. However, the execution of the 'surprise' deployment was not the best method. It appears it fostered fear and anxiety especially as the security personnel even went beyond their security intentioned limits and they entered the criminal registry and cells where its alleged they interrupted the course of the court's normal duty of processing bail of the accused persons.

 

Further, one would have expected the relevant authority to have consulted the head of the Judiciary on such deployment. This was not done despite the provisions of S. 42 UPDF Act which relate to the UPDF aid to the civil power and state as follows:-

"The Defence Forces, any part of the Defence Forces, and any officer or militant, are liable to be called out for service in aid of the civil power in any case in which a riot or disturbance of the peace occurs or is, in the opinion of the appropriate civil authority the riot or disturbance of the peace is likely to be beyond the powers of the civil authority to suppress or prevent."

The state agency would then in that co-ordinated way be executing the UPDF's constitutional mandate under Article 209(a-c) which provides that:

"209. The functions of the Uganda Peoples' Defence Forces are-

  1. to preserve and defend the sovereignty and territorial integrity of Uganda;

  2. to co-operate with the civilian authority in emergency situations...

  3. to foster harmony and understanding between the Defence Forces and civilians;..."

Taking into account the aforesaid circumstances, I would recommend that in future better methods should be employed and there should be prior consultation with the concerned authorities. I find that on the 16th November 2005, the acts of the security agents at the High Court premises constituted, acts of security interference that contravened Articles 23(1) (6); 28(1) and violated the Judiciary's independence in Article 128(1) (2) and (3) of Constitution. This issue, therefore, succeeds.

 

 

Issue No. 2

Whether the concurrent proceedings in the High Court Case No. 955/2005 and Court Case No. UPDF/Gen/075/2005 in the General Court Martial against the accused contravened Articles 28 (1) and 44 (c) of the Constitution and inconsistent with Articles 28 (9) and 139 (1) of the Constitution.

 

It is contended by the petitioner that the existence of concurrent proceedings in the High Court in Criminal Case No. 955 of 2005 where the 23 accused are indicted for treason and misprison of treason and in the General Court Martial in case No. UPDF/GEN/075 of 2005 for terrorism and unlawful possession of firearms, the offences being based on the same facts contravened the rights of the accused under Article 28(1) and 44(c) of the Constitution. The petitioner could not see how the accused can get a fair trial in the circumstances of this case. It is also contended that it violates their rights under Article 28(9). Further, the said concurrent trials are inconsistent with the jurisdiction of the High Court established by Article 139(1). For ease of reference the three Articles of the Constitution namely, 28(1), 44 (a) (b) (c) (d) 139(1) are reproduced here below:

 

 

Article 28(1) reads as follows:-

"(1) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent an impartial court or tribunal established by law".

 

 

Article 44 reads as follows:-

"Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms-

(a) freedom from torture, cruel, inhuman or degrading treatment or punishment;

  1. freedom from slavery or servitude;

  2. the right to fair hearing;

  3. the right to an order of habeas corpus".

 

 

 

Article 139(1) reads as follows:-

"(1) The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law"

 

 

First and foremost I think I should address my mind to the controversial issue of the jurisdiction of the General Court Martial. Does it have concurrent jurisdiction with the High Court which is seized with unlimited original jurisdiction, under Article 139(1) of the Constitution?

 

 

As far as Mr. Lule is concerned, the General Court-Martial is subordinate to the High Court. It was established under the UPDF Act 7 of 2005, enacted by Parliament in accordance with Article 210 of the Constitution. Although it has unlimited jurisdiction it is limited to that Act. On the contrary the original jurisdiction of the High Court under Article 139(1) (supra) is much wider in that it is unlimited in all matters.

 

Counsel explained that three superior courts of Judicature namely, the Supreme Court, Court of Appeal and High Court are established under and derive their jurisdiction from Article 129(1) of the Constitution which reads as follows:-

 

 

"(1) The Judicial power of Uganda shall be exercised by the Courts of Judicature which shall consist of-

  1. the Supreme Court of Uganda;

  2. the Court of Appeal of Uganda;

  3. the High Court of Uganda; and

  4. Such subordinate courts as Parliament may by law establish, including Qadhis' courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament".

 

 

The General Court Martial on the other hand derives its unlimited jurisdiction from an Act of Parliament, the UPDF Act but not directly from the Constitution. Mr. Lule and one school of thought argued that Parliament did not have the powers to create a court superior to the High Court but only subordinate to it. The enactment was, hence, ultra vires.

 

 

It follows, therefore, that the concurrent proceedings complained of are inconsistent with the above mentioned provisions Article 139(1) of the Constitution. There can be no fair trial as envisaged under Article 28(1) in an incompetent court. He relied on the majority decision in Constitutional Petition No. 6 of 2004 Tumushabe Joseph vs Attorney General where it was held that the General Court-Martial is subordinate to the High Court. It could not, therefore, have concurrent jurisdiction with the High Court to be competent to handle the concurrent proceedings in this case.

 

 

For the respondent, it was contended that the concurrent proceedings in both the High Court and General Court-Martial were lawful. As far as counsel for the respondent were concerned the General Court Martial is not bound by the decisions of the High Court. It has concurrent and unlimited jurisdiction derived from S. 197(2) of UPDF Act and enacted under Articles 210 of the Constitution.

 

 

It was, further, submitted for the respondent that military courts and in particular the General Court Martial have unlimited original jurisdiction to try persons subject to military law for any offence triable by the said General Court Martial even if those prisoners are undergoing trial in civil courts for different offences arising from the same or related facts. To the counsel for the respondent the concurrent proceedings complained of in this petition are not prohibited by the Constitution.

 

 

I heard the arguments advanced by the learned counsel for both sides and I have the following findings to make. To determine the issue of constitutionality of the concurrent proceedings in both the High Court and the General Court Martial we have to examine the status of the General Court Martial. If as it was held percuriam in Constitutional Petition No.6 of Joseph Tumushabe vs Attorney General, (supra) (as it was not decided on framed issues) the General Court Martial is subordinate to the High Court, then the former would be bound by the decision of the High Court. In the premises the concurrent proceedings in this petition would contravene Article 28(1) of the Constitution, 129(1) and 139(1).

 

 

However, I do not ascribe to that view. In accordance with the mandate under Article 210 of the Constitution to regulate UPDF,* Parliament enacted the UPDF Act No. 7 of 2005 and created the General Court Martial under section 197(2). To understand the status and jurisdiction of the General Court Martial in relation to that of the High Court it will be useful to look at the structure of the military court system, that is court martial generally. The field Court Martial is the highest court. It is not permanent but constituted when necessary. There are also the Division Court Martial, the General Court Martial and Court Martial Appeal Court. Below are also Unit Disciplinary Committees seized with jurisdiction to try and determine various types of offences with the exception of serious ones like murder, robbery and rape.

 

 

Looking the structure of the military courts, there is no doubt they are special type of courts compared with the ordinary civil courts, referred to as courts of Judicature envisaged under Article 129(1) of The Constitution.

 

Section 2 of UPDF Act defines the terms "Civil Court" as follows:-

 

 

Means a court of ordinary criminal jurisdiction in Uganda.

The term "Court Martial" defined as a Field Court Martial, the

General Court Martial or Court Martial Appeals.

 

 

Military courts exercise jurisdiction over specified matters. They were established to deal with service offences committed by members of the Armed Forces in contravention of the military law. Their jurisdiction is essentially penal and disciplinary. The Act spells out clearly persons subject to military law. It is also worthwhile noting that the UPDF Act creates a whole range of offences that are not included in the Penal Code Act.

 

 

Regarding the General Court Martial, which is the subject matter of our discussion, created under S. 197 of UPDF, is composed of officials appointed by the High Command for a period of one year. Under S. 197(2) it has unlimited original jurisdiction. It also has appellate jurisdiction for the lower military courts.

 

 

S. 197(2) reads as follows.

"(2) The General Court Martial shall have unlimited original jurisdiction under this Act and shall hear and determine all appeals referred to it from decisions of Division Courts Martial and Unit Disciplinary Committees". 197(3) states as follows:-

"(3) The General Court Martial shall have revisionary powers in respect of any finding, sentence or order made or imposed by any summary Trial Authority or Unit Disciplinary Committee, to be exercised in accordance with the provisions of Part XIII of this Act".

 

 

The appeals from the General Court Martial go to the Court Martial Appeal Court. The appeals from that court, Court Martial Court of Appeal go to the Court of Appeal of Uganda and not to the High Court and eventually to the Supreme Court. Although Court Martials are as far as practicable enjoined to observe the principles and the rules of evidence and procedure applied in civil courts, they also have their rules and regulations entitled, the Armed Forces (Rules of Procedure) Regulation, 1969. S.132/69 which were saved by subsequent amendment enactments.

 

 

Clearly, although the military courts have concurrent jurisdiction with the civil courts they are different in that they belong to a different separate regime. They are specialised. I, therefore, accept the submission of the learned Solicitor General and the position taken by Byamugisha JA in Constitutional Petition No.6 Joseph Tumushabe vs Attorney General (supra) that military and civil courts "are both courts of law. They are parallel to each other and converge at the Court of Appeal level. The difference is that they deal with different fact situation".

 

I entirely agree with the view that holds that the General Court Martial is equivalent of the High Court of Uganda established by the Constitution of Uganda and Courts of Judicature. I have had the advantage of reading in draft some of the judgements of my brothers on the coram and noted the position they and counsel for the petitioner took on this issue. I am not persuaded by the argument that Parliament can only create subordinate courts to the High Court. They gave a number of reasons for this including the provisions of Article 129(1) (supra) and Article 257(1) which defines the term court as follows:-

"means a Court of Judicature established by or under the authority of this Constitution".

 

 

I am unable to agree with the view that the General Court Martial and the Court Martial Appeals are subordinate to the High Court.

 

 

First and foremost the Court Martial Courts are not courts of Judicature but military courts. They are creatures of the UPDF Act enacted under Article 210. That shows that they are special courts. Secondly unlike all the other special courts like, the Industrial Court, Tax Appeal Tribunal, NPT, decisions- from the General Court Martial are not appealable to the High Court but as indicated before to Court

Martial Appeal Court, then to the appellate courts of the Courts of Judicature, namely the Court of Appeal and the Supreme Courts.

 

Thirdly and most important of all is the construction I put on Article

139(2) (supra). Clause 2 reads clearly as follows:-

"(2) Subject to the provisions of this Constitution and any other law, the decisions of any court lower than the High Court shall be appealable to the High Court".

 

If the General Court Martial was subordinate to the High Court its decisions would have been appealable to the High Court. Further, it would be strange for the appeals from the Court Martial Appeal court to be appealable to the Court of Appeal of Uganda and yet remain subordinate to the High Court whose decisions go to the same Appeal Court.

 

Another point to support our view is that both the High Court and General Court Martial have concurrent jurisdiction to try capital offences like murder and impose the same sentences and appeals from their decisions finally go to the same courts.

 

For the aforesaid reasons the General Court Martial cannot be described as a subordinate court to the High Court. It is not a court of Judicature under Article 129(1) of the Constitution but a military court created by the UPDF Act enacted by Parliament in exercise of its mandate to regulate UPDF. Article 210 of the Constitution reads inter alia that:-

"Parliament shall make laws regulating UPDF and in particular providing for (a) the organs structures of UPDF".

 

The General Court Martial is the equivalent of the High Court in the civil court system. Both have concurrent jurisdiction, same sentencing powers in capital offences with exceptions. Their decisions in capital offences are appealable to the Court of Appeal and eventually Supreme Court. Both courts have supervisory powers over their subordinate courts. The General Court Martial is, therefore, neither subordinate nor superior to the High Court but has to be equivalent to it.

 

 

In the premises, where charges in a charge sheet were properly laid in each court, concurrent proceedings per se would not contravene or be inconsistent with Articles 28(9); 139(1) of the Constitution.

 

 

The aforesaid takes care of the general aspect of the constitutionality of concurrent proceedings in both the High Court and General Court Martial. However, with regard to the instant petition, there are still three questions to address before a final decision on whether the concurrent proceedings in the High Court and General Court Martial contravene the right to a fair hearing under Article 28(1) and 44(c) of the Constitution, can be reached.

 

 

I propose to deal next with the first question, namely whether the charges preferred against the accused persons were properly instituted in the Court Martial. The remaining two questions, namely whether the Court Martial is seized with jurisdiction to try offences under the Anti-Terrorism Act and whether it has jurisdiction to try the accused persons who are not subject to military law, will be deferred to issues No. 5 and 6 since they overlap.

 

 

On the evidence before court the manner in which the concurrent proceedings were instituted in the General Court Martial was not conducive to a fair trial. The accused had already been charged with capital offences in the High Court, which had competent jurisdiction to try all the charges. There was no convincing reason for instituting the charges in the General Court Martial simultaneously. It necessitated shuttling between the two courts which was inconvenient.

 

In this, I am fortified by the practice in some developed countries like USA where as a matter of state policy a person who is pending trial or has been tried by a State Court should not be dually tried by the Court Martial for the same act/omission. See Manual for Court Martial United States 1995 Ed Pages 11-10. It is, therefore, desirable in the instant case where the General Court Martial under the UPDF Act and the High Court under its original jurisdiction or specified law as provided by the Constitution, have concurrent jurisdiction over the same offences or offences arising out of the same facts for one of the two to hear all the cases. If the first court option was adopted the issue of dual trials in abuse of the 'double jeopardy' criminal principle under

 

S. 18 of the Penal Code Act would be avoided. Similarly the provisions of Article 28 (9) of the Constitution would be observed. There is no guarantee that where there were these concurrent trials there would be no different penalties even where one was capital and the other was not.

 

 

The aforesaid notwithstanding concurrent proceedings would not have contravened the Constitution if the General Court Martial had jurisdiction to try the 23 accused for the offences of Terrorism contrary to the Anti-Terrorism Act 14 of 2002 and being in unlawful possession of firearms contrary to the Firearm Act, which are the subject matter of issues 5 and 6. I therefore, defer, the conclusion of issue No. 2 to issues No. 5 and 6 which I propose to discuss last.

 

 

Issue No. 3

Whether Section 119 (1) (g) and (h) of the UPDF Act is inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution.

 

 

Issue No. 4

Whether the joint trial of civilians and members of the UPDF in military court for offences under the UPDF Act is inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution.

 

 

 

For convenience I shall consider both issues, No.3 and No.4 together.

It is the submission of the petitioner that the accused persons, apart from Captain Katabazi James alias Londe alias Kata alias Kekibira by description, are civilians and they cannot be tried in the General Court Martial. On the other hand, it is the contention of the respondent that, by virtue of S. 119 (1) (g) and (h) the accused persons brought themselves into the operation of that section and are, therefore, triable by the General Court Martial. The section complained of is to the effect that persons who aid or abet or assist in any way a person subject to military law in the commission of a service offence and those in unlawful possession of military weapons which are the monopoly of the UPDF should be punished.

 

 

Further, counsel for the respondent argued that the UPDF Act, is a special law that is aimed at providing a legal framework for peace and national security in this country. This argument is supported by the case of Attorney General Vs Major General David Tinyefuza Constitutional Petition No. 1/1997, where Mulenga JSC at page 38 of his judgment commented on Military law as follows:-

"A special package of laws designed to ensure proper command and administration of, and discipline in the army, in the interest of national security." Section 119 (1) of the UPDF Act (g) and (h) provides: -

(g) every person not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence; and

(h) every person found in unlawful possession of:

(i) arms, ammunition or equipment ordinarily being the monopoly of the Defence forces; or

(ii) Other classified stores as prescribed.

 

 

It was argued by counsel for the respondent that from the wording of section 119 (1) (g) and (h) it should be emphasized that military laws are designed specially in the interest of national security. This section, is, therefore, well intended in regard to national security. There is need to safeguard our national security.

 

 

Upon listening to the addresses by both counsel for the parties it may be argued by the liberalists that Parliament acted overzealously to subject the civilians falling within the ambit of the above provisions to the military law. There are specific laws under the civil courts under which civilians should be charged serially or jointly with the defence personnel for similar offences or offences arising out of the same facts. The UPDF Act should have specifically addressed its military personnel for the purposes of military administration and discipline under the military law and not haul civilians not employed by or voluntarily or in any other way officially connected with the forces, to military courts.

 

 

On the other hand, it is a tenable argument that the inclusion of the provisions above were intended to safeguard national security where such civilians find themselves in conflict with the military law. It was intended to discourage civilians from aiding and abetting army personnel to commit crimes while in pursuit of their duties within the military administration. This is well intentioned for purposes of the wider realm of the state's constitutional mandate to control the nation's defence and national security.

 

 

The fear of possible violation of the right to a fair trial is not justified. As observed earlier, where the offences charged, properly fall under the martial courts jurisdiction, the martial courts have the capacity to provide a fair trial in accordance with Article 28 of the Constitution. Firstly, as already seen they also have their own Rules and Regulations intended to ensure fair trial. Secondly, under section 209 of UPDF Act, they are enjoined to observe the rules of evidence and civil procedure applicable in ordinary civil courts. Section 209 of UPDF reads as follows:-

 

 

"Principles of civil court to be observed generally except as otherwise expressly provided in this Act and any regulations made under it, the rules of evidence and procedure to be observed in proceedings before a Unit Disciplinary Committee or court martial shall, as far as is practicable, be the same as those observed in proceedings before a civil court".

 

 

However, the concern here is the shifting of the onus in those cases on the suspects to prove that they are not or and part of the terrorist groups. They also have to show the court and the general public that their being in possession of such weapons is in good faith and is intended for their personal security. Critics of this law contend that it is wrong to shift the burden of proof and put it on the suspects to prove their innocence. As a general rule it is the State to prove the guilt of the accused.

 

 

The aforesaid not withstanding, due to the importance of national security it appears it is generally accepted that those members of civil society who assist in anyway the commission of military offence or aid and abet military offenders or those holding arms and ammunition unlawfully should be answerable in military courts. It is presumed that they had common criminal intention with military offenders when the alleged offences were committed. As far as I am concerned this does not interfere with fair trial as provided in our Constitution.

 

 

Further it is pointed out that even in developed and advanced democratic societies such as United States of America, civilians are in certain circumstances subject to military law and can be tried by Court Martial Courts. In this we are fortified by the citation relied on by the Learned Solicitor General, namely, The Manual for Court Martial United States, 1995 Edition at pages 10-11 which states that:-

 

"An act or omission which violates both the US Army Code and local Criminal law may be tried by a Court Martial or by a proper Civilian tribunal or by both. It is also stated that it is

 

constitutionally permissible to try a person by Court Martial and by a State Court for the same act.

That "In General Court Martial may try any person when authorized to do so under the code." It goes on to state that:

"Authority under the Code - Article 2 lists classes of persons who are subject to the Code. These Include.... Under some circumstances specified categories of Civilians."

 

As a general rule civilians should not be tried by military courts, where the civil courts have competent jurisdiction to try them. However, in my view and for the reasons stated above, joint trials of civilians and persons who commit service offences are justified in circumstances envisaged under section 119(1) (g) of the UPDF Act. They can be competently handled by courts martial so long as the principles of the rules of natural justice and the rules of evidence and procedure were strictly observed. To use the words of Justice Mulenga, in Attorney General Vs Major General David Tinyefuza (supra), "military laws are designed with special interest of National Security." It is, therefore, justifiable to subject any person to military law who aids or abets or is in unlawful possession of firearms or ammunitions which are the monopoly of the Army. The aforesaid evaluation has taken care of both issues 3 and 4 as they overlap.

 

In conclusion I find that the joint trial of civilians and members of the UPDF in military courts of offences under the UPDF Act, therefore, is not inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution. In the premises the answer to both issues Nos. 3 and 4 is in the negative.

 

Lastly, as I indicated earlier on I find it convenient to take the remaining two issues, 5 and 6 and consider them together.

 

Issue 5

Whether the trial of the accused before the General Court Martial on a charge of terrorism contravenes Article 22 (1) 28 (1) and 126 (1) of the Constitution.

 

 

 

Issue 6

Whether the trial of the Accused for the offence of terrorism before the general court martial is inconsistent with Articles 28(1), 120(1), 3(b) and (c), 126 (1) and 210 of the Constitution.

 

 

On the issue of jurisdiction of the General Court Martial visa vis that 4) of the High Court, the petition and the affidavit supporting the petition together with the submissions of counsel for the petitioner are to the effect that the General Court Martial has no jurisdiction to try Rtd. Col. Dr. Kizza Besigye and 22 Others for the offences of terrorism and unlawful possession. Under section 6 of the Anti- Terrorism Act, the offence of terrorism and any other offence punishable by more than ten years imprisonment are triable only by the High court and bail in respect of those offences may be granted only by the High Court. For the said reason Mr. G. Lule submitted that, the General Court Martial has no jurisdiction to try those offences. Any attempt by the Court Martial to continue with the trial of the 23 accused persons of those charges, would be tantamount to conferring jurisdiction upon itself. He relied on Section 197 of the UPDF Act which limits the jurisdiction of the General Court Martial to cases only under the Act.

 

 

In reply, the learned Solicitor General contended that the General Court Martial has powers to try those offences. He submitted that the accused persons were arrested, charged and are being prosecuted in the General Court Martial which is provided for under Article 210 of the Constitution. The General Court Martial as part of the organs of UPDF is established by law under Section 197 (2) and as such it is a competent military court. Further, he argued that under the UPDF Act 7/2005 the offences of terrorism and unlawful possession of firearms are service offences. The General Court Martial is, therefore, seized with jurisdiction to try a person subject to Military law who is charged with a service offence.

 

 

To resolve the issue of jurisdiction, it is important to define a 'Service Offence'. "A Service Offence" is defined in Section 2 of the UPDF Act, as "an offence under this Act or any Other Act for the time being in force committed by a person while subject to Military law." I agree that this provision of the law must be read together with S. 179 (1) of the same Act which provides that:

 

"A person subject to Military law, who does or omits to do an act

  1. In Uganda which constitutes an offence under the Penal Code Act or any other enactment,

  2. Outside Uganda, which would constitute an offence under the Penal Code Act or any other enactment if it had taken place in Uganda commit a Service Offence and is on conviction liable to a punishment as prescribed in Subsection (2)."

 

 

Subsection 2 thereof provides that a military court shall impose a penalty in accordance with the relevant enactment which creates the offence. This section of the UPDF Act I believe is intended to ensure fair trial in the General Court Martial.

 

 

The Anti-Terrorism Act, 2002 and Fire Arms Act Cap 299 and the Penal Code Act have offences which are brought under the UPDF Act as part of service offences. However, I do not agree with counsel for the respondent that by virtue of sections 2, 179 and 197 of UPDF

the General Court Martial is seized with jurisdiction to try the accused in this case for the offences of terrorism and being in unlawful possession of firearms. In my view, a court be it civil or military, can only try the accused for an offence where it is seized with jurisdiction. It would not be fair to try an accused person where jurisdiction is excluded from it. A case in point is the instant petition where the accused persons are charged with terrorism charges which are exclusively triable by the High Court. Section 6 of the Anti-Terrorism

Act reads as follows :-

"(6) The offence of terrorism and any other offence punishable by more that ten years imprisonment under this Act are triable only by the High Court and bail in respect of those offence may be granted only by the High Court".

 

 

Clearly, the General Court Martial has no jurisdiction to try that case. I am mindful of the provisions of S. 2 of (supra). It is of no effect because it cannot give jurisdiction which does not exist. It is immaterial to me whether the charges preferred against the accused are service offences because where the law excludes jurisdiction from a particular court, it is not competent to try it. The offence with which the accused are charged carries a death sentence and is only triable by the High Court.

 

 

Further, section 3 of the Anti-Terrorism Act provides that no person shall be prosecuted for an offence under this Act except with the consent of the DPP yet Article 120 (3)(b) prohibits the DPP to sign any charges prosecuted in the General Court Martial. I do not agree that it is not necessary for the DPP to sign the charge sheet. That clearly confirms the exclusion of trials of terrorism offences from the Court Martial. I am alive to the provisions of S. 2 of UPDF which define "service offence" as including "an offence under any other Act", (underlining is mine). Be that as it may, in my view, jurisdiction can only be extended to those offences where unlike in terrorism cases, the court's jurisdiction is not excluded. Giving section 2 of the UPDF Act such wide construction will end up by extending it to all criminal offences even outside its jurisdiction. I do not believe that by virtue of section 2 of UPDF Act, the General Court Martial has jurisdiction to try electoral petition offences. In the premises the General Court Martial, in the instant case, has no jurisdiction to try the accused for Terrorism as indicted in the charge sheet.

 

 

With regard to the charge of unlawful possession of firearms, contrary to section 312(a) and (b) of the Firearms Act preferred as the alternative charge in the Court Martial. I concede that an accused persons including civilians who are subject to military law under section 2 of UPDF may be tried by the Court Martial for being in unlawful possession of arms and ammunitions ordinarily the monopoly of the Defence Forces. In such a case it is the requirement of the law that the particulars of the acts the accused person complained of, must be stated. The charge sheet must disclose the acts which contravened the provisions of the UPDF Act or any other law under which the charges are preferred.

 

 

In the instant case, the aforesaid requirement of the law was not complied with. The acts of the accused which contravened the law were not mentioned. Neither is it shown that the arms or equipment ordinarily found in possession of the accused were the monopoly of the UPDF or classified stores as prescribed.

 

With regard to the charge of aiding and abetting under S.119 (1) (g), it is also defective. There is no principal offender to aid and abet. For the said reasons, in the present case, the General Court Martial, is not competent to try the accused persons for the offences of terrorism as stipulated under section 6 of Anti-Terrorism Act and being in unlawful possession of firearms preferred in the General Court Martial against the accused persons and pending in the said Court. The answers to issues No. 5 and 6 are in affirmative.

 

 

Returning to the discussion under issue No.2 as I have already found that General Court Martial would be competent to handle concurrent proceedings where seized with jurisdiction. However, in view of the holdings on issues 5 and 6, the General Court Martial, in this particular case, is not competent to try the 23 accused on charges of terrorism and being in unlawful possession of arms or equipment ordinarily the monopoly of the UPDF. Clearly Section 6 of the Anti- Terrorism Act excludes jurisdiction from it. There can be no fair trial within the meaning of Article 28(1) of the Constitution where the court is not competent to try the case. Issue No. 2 succeeds in part.

 

 

In the result I would allow this petition in part and my answers on the six framed issues are as follows:-

Issue No.1 in the affirmative

Issue No.2 negative in part

Issues No. 3 and 4 in the negative

Issues No. 5 and 6 in the affirmative

 

I would make the following declarations :-

 

 

(1) Issue No. 1

That the acts of security agents at the premises of the High Court on the 16 November, 2005 contravened Articles 23(1) (6); 128 (1) (2) (3) of the Constitution.

 

 

(2) Issue No. 2

That the concurrent proceedings in High Court Case No. 955/2005 and Court Case No. UPDF/Gen/075/2005 in the General Court Martial against the accused contravened Articles 28 (1) and 44 (c) of the Constitution but its effect was not inconsistent with Articles 28 (9) and 139 (1) of the Constitution as the General Court is not a subordinate court to the High Court but equivalent to it.

 

 

(3) Issue No. 3

That section 119 (1) (g) and (h) of the UPDF Act is not inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution.

 

 

(4) Issue No. 4

That the joint trial of civilians and members of the UPDF in Military Court for offences under the UPDF Act is not inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution.

 

(5) Issue 5

That the trial of the accused before the General Court Martial on a charge of terrorism contravenes Article 22 (1) 28 (1) and 126 (1) of the Constitution.

 

 

(6) Issue 6

That the trial of the Accused for the offence of terrorism, and unlawful possession of firearms before the General Court Martial is inconsistent with Articles 28(1), 120(1), 3(b) and (c) and 210 of the Constitution.

 

 

Lastly from the findings of the justices on the coram in the five judgements delivered in this petition, the decision of this Court is as follows:-

 

 

On issue No.1

By a majority of four to one the acts of security agents at the premises of the High Court on the 16 November, 2005 contravened Articles 23(1) (6) and 128 of (1) (2) (3) of the Constitution. j

 

 

On issue No. 2

a) By a majority of three to two the effect of concurrent proceedings in both the High Court and General court Martial where both courts have jurisdiction is not inconsistent with Articles 28(9) and 139(1) of the Constitution as the General Court Martial is not subordinate to the High Court but equivalent to it.

 

 

b) By a majority of four to one the concurrent proceedings in the High Court. Case No. 955/2005 and Court. Case No. UPDF/Gen/075/2005 in the General Court Martial against the accused contravened Articles 28(1) and 44(c) of the Constitution as the General Court Martial had no jurisdiction to try the charges preferred against the accused in the said court.

 

 

 

On issues No. 3

By a majority of 3 to two section 119(1) (g) and (h) of the UPDF Act is not inconsistent with Articles 28(1) 126(1) and 210 of the Constitution.

 

 

On issues No. 4

By a majority of 3 to two the joint trial of civilians and members of the UPDF in Military Court for offences under the UPDF Act is not inconsistent with Articles 28(1), 126(1) and 210 of the Constitution.

 

 

On issues 5

By a majority of 4 to one, the trial of the 23 accused persons before the General Court Martial on charges of terrorism contravenes Articles 22(1) 28(1) and 126(1) of the Constitution.

 

On issue No. 6

By a majority of 4 to one the trial of the accused for the offence of terrorism, and unlawful possession of firearms before the General Court Martial is inconsistent with Articles 28(1), 120(1, 3(b) and (c) and 210 of the Constitution.

In the result by a majority of four to one this petition is allowed in part. In public interest each party will bear its own costs.

 

 

Before we take leave of this petition we wish to draw the attention of all those concerned to the decision of this court in Constitutional Petition No. 6 of 2004 Joseph Tumushabe vs Attorney General

where it was decided percuriam by a majority of four to one that the General Court Martial is subordinate to the High Court. We hold by a majority of 3 to 2 that the case for the reasons we have given, was wrongly decided. By a majority of three to two we hold and declare that the General Court Martial is not subordinate to the High Court but equivalent to it in the parallel military court system.

 

 

 

Dated at Kampala this 31st day of January 2006.

 

L.E.M. Mukasa-Kikonyogo
HON. DEPUTY CHIEF JUSTICE

 

 

 

JUDGMENT OF GM OKELLO, JA:

The petitioner, The Uganda Law Society, is a corporate body under the Law Society Act, Cap 276 of Laws of Uganda 2000, with powers to sue and be sued in its corporate name. It has brought this petition under Articles 137(3) and 50(1) & (2) of the Constitution of the Republic of Uganda, 1995. In the petition, the petitioner challenges the Constitutional validity of: -

 

 

(a) acts of the Anti-Terrorism Task Force Urban Hit Squad, a unit of the Uganda Peoples' Defence Forces (UPDF), perpetrated on the 16th

November, 2005 at the High Court of Uganda. The petitioner alleges that these acts contravene Articles 23 (1) & (6) and 128(1) & (2) of the Constitution,

  1. the concurrent proceedings in the High Court in Criminal Case No 955 of 2005 and Criminal Case No UPDF/GCM/075 of 2005 in the General Court Martial (GCM) involving the accused persons. The petitioner alleges that these concurrent proceedings contravene Articles 28(1) and 44(c) of the Constitution and that its effect is inconsistent with Articles 28 (9) and 139 (1) of the Constitution,

  2. section 119(1) (8) & (h) of The Uganda Peoples' Defence Forces Act (UPDF Act) No 7 of 2005 which subjects civilians not employed or voluntarily or in any other way officially connected with the Uganda Peoples' Defence Forces to military law and discipline. The petitioner alleges this section is inconsistent with Articles 126(1) and 210 of the Constitution,

  3. joint trials of civilians and members of the UPDF in military courts of offences under the UPDF Act. The petitioner alleges this is inconsistent with Articles 126(1) and 210 of the Constitution,

  4. the trial of the accused persons before the General Court Martial constituted under the UPDF Act on a charge of terrorism, whose penalty on conviction is death. The petitioner alleges that that contravenes Articles 22(1) and 126(1) of the Constitution,

  5. the act of charging and proceeding to try the accused persons with the offence of terrorism, an offence which is triable solely by the High

 

Court, in the GCM under the UPDF Act. The petitioner alleges that that act is inconsistent with Articles 28(1), 126(1) and 210 of the Constitution.

 

 

(2) (a) The petitioner, therefore, prays that this Honourable court declares that the acts complained of above contravene the Articles of the Constitution mentioned and

  1. Grants orders that all and any proceedings against the accused persons in the GCM cease forthwith;

  2. Orders the respondent to pay costs of this petition.

 

 

The petition was accompanied by the affidavit of Mr. Kiyemba Mutale, one of the lawyers of the accused persons, sworn on 6/12/2005 in support of the petition. There was subsequently filed in this court a supplementary affidavit sworn by Mr.Kiyemba Mutale on 16/12/2005. Those affidavits substantiated the facts complained of in the petition.

 

 

To the petition was attached annexture 'B' copy of the charge sheet before the GCM against the accused persons. This will be reproduced in extenso later in this judgment, when its importance will appear as we discuss the jurisdiction of the GCM with respect of the offences allegedly committed by the accused persons.

 

 

The respondent filed his answer to the petition. In the answer, he denied all the allegations contained in the petitioner's petition. The answer was accompanied by the affidavits of Ms Robina Rwakoojo, a Principal State Attorney in the respondent's chambers, sworn on 13/12/2005. There are two other affidavits: one sworn by Major Kagoro Asingura, an advocate of the High Court of Uganda and all courts subordinate thereto and a prosecutor in the GCM. The affidavit was sworn on 16/12/2005 in support of the respondent's answer. Another is a supplementary affidavit sworn also on 16/12/2005 by Ms Robina Rwakoojo. These affidavits were sworn to rebut the evidence contained in the affidavits of Mr. Kiyemba Mutale.

 

 

On 14/12/2005, we held a scheduling conference with the lawyers of both parties. The purpose of the conference was to identify agreed facts and areas of disputes, frame the issues and get the counsel to file and exchange among themselves their respective summary of legal arguments and the texts of supporting authorities. The aim of the exercise was to facilitate expeditious disposal of the petition.

 

 

I must commend the lawyers on both sides for the immense co-operation they exhibited in the exercise. It is true, they had not been able to file and exchange their respective summary of legal arguments. This was explained on shortage of time, coupled by other commitments. I appreciate this. The texts of their respective supporting authorities, however, were filed and exchanged among themselves. I am extremely grateful to them for these useful authorities. I highly commend them for their undoubted industry evidenced by the stuff they have produced, given the short time within which they had these accomplished.

 

The facts which gave rise to this petition may be summarised as follows : Rtd Col Dr Kizza Besigye, the leader of a leading opposition Political Party, Forum for Democratic Change, and 22 others who included also his younger brother, one Musasizi Joseph Kifefe, were jointly charged in the Chief Magistrate's Court at Buganda Road with the offences of treason and misprison of treason under the Penal Code Act. Dr Kizza Besigye alone, was also charged with rape, which he was alleged to have committed in 1997. They were subsequently committed to the High Court for trial.

 

On 16/12/2005, the 22 accused persons, excluding Dr Kizza Besigye, were produced in the High Court for purpose of their bail application. Hon. Justice E. S. Lugayizi heard the application. He allowed the application and granted to the accused persons' bail.

 

 

However, as the judge was hearing the bail application, a unit of a heavily armed UPDF, dressed in black T-shirts and army fatigue trousers were deployed within the High Court premises. When the lawyers of the accused persons moved to the Criminal Registry for documentation to effect the grant of the bail ordered by the judge, some of these armed men entered the Registry. They allegedly interfered with the documentation that had to be stopped. The accused persons were returned to Luzira Prison even though the judge had ordered their release on bail.

 

The following day, 17/12/2005, all the accused persons, including the RTD Col Dr Kizza Besigye, were taken before the GCM, where they were jointly charged with terrorism and in the alternative with unlawful possession of firearms. Both offences arose from the same set of facts as the offences of treason and misprison of treason for which they had earlier been committed to the High Court for trial.

Aggrieved by these developments, the petitioner instituted this petition. The following issues were agreed upon to be determined by this court:-

  1. Whether acts of security agency at the premises of the High Court on the 16th November, 2005 contravened Articles 23(1) and (6), 28(1) and 128(1), (2) and (3) of the Constitution.

  2. Whether the concurrent proceedings in the High Court Criminal Case No 955 of 2005 and General Court Martial Case No UPDF/GEN/075 of 2005 in the General Court Martial against the accused persons contravene Articles 28(1) and 44(c) of the Constitution and inconsistent with Articles 08(9) and 139(1) of the Constitution.

  3. Whether section 119(1)(g) and (h) of The Uganda Peoples' Defence Forces Act No 7 of 2005 is inconsistent with Articles 28(1), 126 (1) and 210 of the Constitution.

  4. Whether the joint trial of civilians and members of the Uganda Peoples' Defence Forces in Military Court for offences under the UPDF Act is inconsistent with Articles 28(1), 126(1) and 210 of the Constitution.

  5. Whether the trial of the accused persons before the General Court Martial on charges of terrorism contravenes Articles 22(1), 28(1) and 126(1) of the Constitution and

  6. Whether the trial of the accused persons for the offences of terrorism before the General Court-Martial is inconsistent with Articles 28(1), 120(1), 3(b) and (c), 126(1) and 210 of the Constitution.

As pointed out earlier in this judgment, this petition is brought under Article 137(3) of the Constitution. That meant that our task is to interpret the relevant provisions of the Constitution in order to answer the above issues. In that regard, it is instructive to set down here, the established relevant principles of constitutional interpretation that will guide me in the task at hand. These are not exhaustive list of those principles of constitutional interpretation.

 

 

They are:-

  1. The principles, which govern the construction of statutes also, apply to the construction of constitutional provisions. (The Republic vs EL Manu (1969) EA 357.)

  2. The widest construction possible in its context should be given according to the ordinary meaning of the words used, and each general word should be held to extend to all ancillary and subsidiary matters. In certain context, a liberal interpretation of the constitutional provisions may be called for.

  3. A constitutional provision containing a fundamental right is a permanent provision intended to cater for all times to come and, therefore, should be given dynamic progressive and liberal or flexible interpretation, keeping in mind the ideals of the people, socio- economic and political-cultural values so as to extend fully the benefit of the right. (South Dakota vs North Carolina, 192, US 268 1940 LED 448.)

  4. The entire Constitution has to be read together as an integrated whole and no one particular provision destroying the other, but each sustaining the other. This is the rule of harmony, the rule of completeness and exhaustiveness and the rule of paramountey of the written Constitution. (Paul K. Ssemogerere and 2 others vs AG, Constitutional Appeal No 1 of 2002.)

 

The words of the written Constitution prevail over all unwritten conventions precedents and practices.

 

 

No one provision of the Constitution is to be segregated from the others and be considered alone, but, all provisions bearing upon a particular subject are to be brought into view and be interpreted as to effectuate the greater purpose of the instrument.

 

 

Judicial power is derived from the people and shall be exercised by courts established under the Constitution in the name of the people and in conformity with the law and with the values, norms and aspirations of the people. (Article 126(1) of the Constitution of Uganda, 1995.)

 

 

The Constitution is the supreme law of the land and forms the standard upon which all other laws are judged. Any law that is inconsistent with or in contravention of the Constitution is null and void to the extent of the inconsistency. (Article 2(1) & (2) of the Uganda Constitution, 1995.)

 

 

Fundamental rights and freedoms guaranteed under the Constitution are to be interpreted having general regard to evolving standard of human dignity.

 

  1. Decisions from foreign jurisdictions with similar constitutional provisions, as ours are useful guide in the interpretation of our own Constitution.

  2. The decisions of International Courts and International bodies interpreting the inherent meaning of fundamental rights are relevant to the interpretation of the fundamental rights and freedoms of the individuals in our Constitution.

  3. Both purpose and effect are relevant to determine constitutional validity of a legislative or constitutional provision. (Attorney General vs Salvatori Abuki, Const. Appeal No 1 of 1998.)

 

 

Keeping the above principles constantly in mind, I shall now proceed to consider the above-framed issues. I shall consider issues 1 & 2 separately, 3 & 4 together and 5 & 6 also together.

 

 

Issue No 1:-

Whether acts of security agents at the premises of the High Court on the 16th November, 2005 contravened Articles 23(1) and (6), 28(1) and 128(1), (2) and (3) of the Constitution.

 

Mr. G.S. Lule, Senior Counsel (SC) was the lead counsel of the team of lawyers who represented the petitioner. On the team were Messrs Peter Mulira, M. Lubega and David Mpanga.

 

 

For the respondent was Mr. L. Tibaruha, the Solicitor General. He was assisted by Messrs, Joseph Matsiko, the Ag. Director of Civil Litigations (DCL) and Philip Mwaka, Senior State Attorney (SSA).

Submitting for the petition, Mr Lule contended that the acts of the heavily armed unit of the UPDF at the High Court of Uganda on 16/11/2005 contravened Articles 28(1) and 128(1), (2) and (3) of the Constitution. Relying on the affidavit of Mr. Kiyemba Mutale sworn on 6/12/2005 with the supplementary sworn on 16/12/2005, Mr. Lule pointed out the acts complained of as being :-

  1. surrounding the High Court precincts by a heavily armed unit of the UPDF when a judge was hearing bail application of the 22 accused persons, and

  2. entering the Criminal Registry, controlling the holding cells within the High Court by some of these heavily armed men,

  3. Interfering with the documentation process for the bail granted by the judge, causing a stoppage of the process.

 

He stated that these acts were calculated to instill fear in the minds of the judge and other judicial officers to induce them to be partial in their judgment. To make them feel dependent on the state for their position as a warning that if they did not enter judgment favourable to the State, they could be in danger. In his view, those acts contravened Articles 28(1) which guarantees the right to a fair hearing before an independent and impartial court or tribunal.

 

Mr. Lule further pointed out that according to his supplementary affidavit, Mr. Kiyemba Mutale and other lawyers representing Dr Kizza Besigye met the Principal Judge on 17/11/2005 about fixing a hearing date for their client's bail application. There, the principal Judge informed them that Justice E.S Lugayizi, who had been seized with the application, had declined to further handle it, citing the events of 16/11/2005. As there was no judge to handle it, the Principal Judge had taken over the application.

 

Further, that on 28/11/2005, the said Kiyemba Mutale and other lawyers, as members of the Uganda Law Society, met the Chief Justice of Uganda. At the meeting, they heard the Chief Justice condemned the acts of the security agency at the High Court premises on 16/11/2005, as an interference with the exercise of the judicial powers and independence of the judiciary.

 

Mr. Lule submitted that the withdrawal of Justice E.S Lugayizi from handling Dr Kizza Besigye's bail application, the circumstances in which the Principal Judge took over the handling of the application and the view expressed by the Chief Justice to the Uganda Law Society were clear. They indicated that the acts of the unit of the UPDF at the High Court on that day were intended to compromise the independence of the judiciary. They were inconsistent with Articles 128(1) (2) and (3) of the Constitution. The High Court did not request for the assistance of the UPDF for the court's effectiveness on that day.

 

He submitted that Courts are part of the Constitutional order. Those acts of the unit of the UPDF, on 16/11/2005 in The High Court of Uganda, were calculated to subvert the Constitutional order. He prayed that this court finds and declares the acts as unconstitutional.

 

 

Mr. L. Tibaruha did not agree. He contended that the acts of the unit of the UPDF on 16/11/2005 were not unconstitutional. He based his submission on the affidavit of Major Kagoro, who stated that He was at the High Court at that time attending the proceedings of the bail application of the 22 accused persons. Major Kagoro admitted that a unit of the UPDF was indeed deployed at the

High Court premises on 16/11/2005 for security reasons. They were there to avert a planned terrorists attack.

 

 

According to Mr. Tibaruha, courts should refrain from subjecting military decisions relating to the deployment of soldiers at the High Court on 16/11/2005 and the necessity to do so to judicial review. He relied on the decision of the Supreme Court of Uganda, in Attorney General vs Major General David Tinyefuza, Constitutional Appeal No 1 of 1997 in particular, the judgment of Kanyeihamba JSC.

 

In the alternative, Mr. Tibaruha stated that even if this court held that it could investigate the said military activities at the High Court of Uganda on 16/11/2005, there were no acts of the security agency which contravened Articles 23(1) & (6), 28(1), 128(1), (2) & (3) of the Constitution. He pointed out that the acts complained of were three, namely: -

  1. Surrounding by the armed unit of the UPDF of the High Court premises.

  2. Interference with the documentation of the bail grant ordered by the judge

  3. Re-arrest of the accused persons.

 

 

He challenged the affidavits of Mr. Kiyemba Mutale on which the petitioner relied for evidence of what took place at the High Court premises on 16/11/2005. According to him, that evidence is inadmissible in evidence. His reason was that the affidavit was based on Newspaper reports. He stated that

Newspaper reports have been held by the Supreme Court to be inadmissible in evidence for being hearsay. He cited AG vs Major General Tinyefuza supra.

  1. On the act of surrounding the High Court premises by the armed unit of the UPDF, Mr. Tibaruha contended that the entry was peaceful. He relied on the affidavit of Major Kagoro, dated 16/11/2005. Major Kagoro deponed that the presence of the unit of the UPDF at the High Court premises on that day was necessary on security grounds. It was to avert a planned terrorists attack. According to him, the attack could have been catastrophic if it went on. The Diplomats and Judges were at risk. He said that it was not necessary to inform the authorities of the judiciary in advance of such a security measure. Major Kagoro deponed that the second reason for the presence of the unit of the UPDF at the High Court on that day, was to ensure that the accused persons were brought before the GCM to answer charges of terrorism and unlawful possession of firearm.

  2. As regard the act of interference with the documentation process of the bail grant, the learned Solicitor General submitted that the evidence on which the alleged interference was based, is inadmissible. It is hearsay. He stated that the evidence that Justice E.S Lugayizi had declined to further handle Dr Kizza Besigye's bail application is hearsay. It was reported to have been related to Kiyemba Mutale by the Principal Judge who did not testify. It is, therefore, hearsay under 017 r 3 of the Civil Procedure Rules. According to him, the event of 16/11/2005 at the High Court did not affect the normal operations of the High Court. The Principal Judge heard Dr Kizza

Besigye's Bail Application the next day and granted him an interim bail.

 

(3) On the re-arrest of the accused persons, Mr. Tibaruha contended that the act of re-arresting these accused persons was lawful. They were suspected to have committed the offence of terrorism. The re- arrest was justified under section 185 of the UPDF Act and section 2 of the Criminal Procedure Code Act. He submitted that Article 23 was not violated as none of the accused persons had been barred from applying for bail before the GCM. Articles 128(1), (2) & (3) and 28(1) had not been contravened.

 

Exercising his right of reply, Mr. Lule submitted that the petitioner was not challenging the military decision to deploy at the High Court premises on 16/11/2005. What the petitioner was asking this court to examine is the behaviour of the UPDF personnel who were deployed at the High Court on that day. The behaviour of those soldiers on that day is not a question of security decision. The authorities of the judiciary did not seek aid from the UPDF under section 42 of the UPDF Act for that day. If by their behaviour, those soldiers fostered fears and intimidation or caused interruption of the normal operations of the judicial officers, then this court has powers to investigate those acts resulting from their behaviours and grant appropriate reliefs.

 

 

He distinguished AG vs Major General Tinyefuza (supra) from the event of 16/11/2005 on their facts. He stated that there was no question of deployment in Tinyefuza's case as it was at the High Court on 16/11/2005.

On the Newspaper reports, Mr. Lule stated that these were attached to Mr. Kiyemba Mutale's affidavit as corroborative evidence to support the evidence of the deponent who had been physically present at the scene.

 

I have carefully examined the above arguments of both counsel on this issue. The following questions emerged from those arguments:-

  1. whether this court has powers to investigate the acts of the security agency at the High Court premises on the 16/11/2005,

  2. if so, whether there is credible evidence to establish those impugned acts and

  3. whether those acts, if established, contravene articles 23(1) and (6), 28(1) and 128(1) (2) & (3) of the Constitution.

 

 

On (a) above, I appreciate Mr. Tibaruha's submission that this court should refrain from subjecting to judicial review military decisions regarding military affairs relating to security. I noted the Supreme Court's decision in Attorney General vs Major General David Tinyefuza, Constitutional Appeal No 1 of 1997, which he relied on. In particular, I read the passage he cited from the judgment of Kanyeihamba JSC with which the other Justices agreed. The passage says:-

 

 

" Courts should refrain from reviewing decisions relating to military affairs unless they have to. The exercise of judicial power must be within proper bound and should fall short to the point beyond which it might be considered as an intrusion in the powers of the coordinate branches, namely, the Legislative and Executive. The Constitution has empowered Parliament and not the Judiciary to supervise the Executive when the latter is exercising its functions in military operations ".

 

I agree that courts should indeed refrain from reviewing Executive's decisions regarding military affairs relating to security. The Constitution has apportioned roles between the three arms of Government. That division must be respected.

 

 

It should however, be noted that Article 137(3) of the Constitution empowers this court to review acts which any person alleges contravene a provision of the Constitution and make appropriate declaration. This view was confirmed by the Supreme Court, in Ismail Serugo vs Kampala City Council and The Attorney General, Constitutional Appeal No 2 of 1998. To refrain from exercising the powers granted it by Article 137(3) this would be abdicating the mandate given to it by the Constitution.

 

 

The acts complained of in the instant Petition do not include the decision of the Executive to deploy a heavily armed unit of the UPDF in the High Court premises on 16/11/2005. The acts complained of in this petition were identified by Mr. Tibaruha, and I agree with his identification as:-

  1. surrounding the High Court premises by a heavily armed unit of the UPDF on 16/11/2005,

  2. entering the Criminal Registry of the High Court by some of those heavily armed members of the UPDF and

 

(3) interfering with the documentation process of the bail that had been granted by the judge.

These acts are alleged to contravene the stated provisions of the Constitution. They are distinguishable from the Tinyefuza's case that prompted the above remarks from the learned Justice of the Supreme Court. In that case, it was the Executive's decision not to allow the petitioner to resign from the army. In the instant case, the complaint was against the acts of the members of the unit of the UPDF that was deployed at the High Court premises on 16/11/2005. This court, therefore, has powers, to review those acts, particularly as they are alleged to be inconsistent with Constitutional provisions protecting fundamental rights to determine whether they contravene the named provisions of the Constitution and make appropriate declarations.

 

 

On whether there is credible evidence to establish the acts complained of, I respectfully do not agree with Mr. Tibaruha that there is no such evidence. The evidence of Mr. Kiyemba Mutale on which the petitioner relies is not based on Newspaper reports. It is, therefore, admissible in evidence. The decision of the Supreme Court in AG. vs Tinyejuza (supra), in this regard is distinguishable and not applicable the facts of this case. Paragraph (4) of Mr. Kiyemba Mutale's affidavit of 6/12/2005, shows clearly, that he was present at the High Court on 16/11/2005 as part of the lawyers representing the 22 accused persons. He had also gone to apply for bail on behalf of the Rtd Col Dr Kizza Besigye, before Justice E.S Lugayizi. In paragraph 8, he deponed that he went to the Criminal Registry of the High Court where the bail documentation in respect of the 22 accused persons was being processed. While he was in the Registry, some of the heavily armed members of the UPDF came in. They interfered with the documentation process. The documentation process was stopped. The sureties felt intimidated in their undertaking and withdrew. They did not sign the papers.

In paragraph 9, he stated that he went to the holding cell within the High Court, where the accused persons were being held. He wanted to inform them of what had transpired in the Criminal Registry. There, he found some of the heavily armed members of the UPDF at the door of the cell. They denied him access to his clients.

 

 

It is clear from the above that the facts stated in those paragraphs were from the deponent's personal knowledge. The Newspaper reports referred to in paragraph 7 of the affidavit was intended merely to buttress the deponent's evidence. I agree, these Newspaper reports are hearsay. They cannot corroborate any evidence since they are inadmissible. Their deletion, however, will not diminish, in any way, the value of Mr. Kiyemba Mutale's evidence.

 

 

The affidavit of Major Kagoro dated 16/12/2005 was intended to rebut that of Kiyemba Mutale. Major Kagoro admits in paragraph 4 of his said affidavit the presence of a unit of UPDF at the High Court premises on 16/11/2005 for the reasons he stated in paragraphs 5-8. He denied in paragraph 9 and 10 that those personnel of the UPDF unit did go to the Criminal Registry and the cell within the High Court. I do not believe this denial, because, Major Kagoro did not claim to have gone to those places nor state that from where he stood, he was able to see if there were armed men at the Criminal Registry and at the cell of the High Court. What is clear is that there is no dispute about the presence of a unit of UPDF at the High Court premises on 16/11/2005. I find the evidence of Mr. Kiyemba Mutale more credible about the presence of some of these armed men at the Criminal Registry and at the holding cell within the High Court. I believe it.

 

I, therefore, find that there was a heavily armed unit of the UPDF at the High Court premises on 16/11/2005. Some of these armed men went to the Criminal

Registry of the High Court and interfered with the documentation process of the bail granted to the 22 accused persons. The 22 accused persons were consequently returned to prison, even though bail had been granted to them.

 

Mr. Kiyemba Mutale deponed in paragraph 3 of his supplementary affidavit dated 16/12/2005 about the effect of the acts of the security agency. There, he stated that he and his other colleagues met the Principal Judge over fixing a hearing date for Dr Kizza Besigye bail application. The Principal Judge told them that Honourable Justice Lugayizi who had been seized with the application had declined to further handle it. Accordingly, he, the Principal Judge, had taken over the application. The Principal Judge related to them the reasons that Justice Lugayizi had told him for declining to further handle the application. Mr. Kiyemba Mutale further repeated those reasons in his affidavit.

 

 

I do not agree with Mr. Tibaruha that the evidence of Mr. Kiyemba Mutale relating to their meeting with the Principal Judge and what transpired between them in the meeting was inadmissible on the ground of hearsay. Only the portion relating to the reason for Justice Lugayizi declining to further handle the application is hearsay. The Principal Judge should have given the evidence on that part or some one who heard Justice Lugayizi states them. It is hearsay for Mr. Kiyemba Mutale to further relate the reasons that the Principal Judge who had heard it from Justice Lugayizi had related to them.

 

 

The facts that Justice Lugayizi had declined and the Principal Judge had taken over the handling of the application are not hearsay. They are statements of facts from the Principal Judge. It is not hearsay to depone to it by Mr. Kiyemba Mutale who had heard them from the Principal Judge. These are admissible in evidence.

Mr. Kiyemba Mutale further deponed in paragraph 8 of the same affidavit to the effect that he and other members of the Uganda Law Society met the Chief Justice on 28/11/2005. At that meeting, he heard the Chief Justice condemned the events of 16/11/2005 as " an interference with the exercise of judicial power and independence of the Judiciary". Mr. Mutale attached a copy of the Newspaper reports of that meeting.

 

 

I again do not, with respect, agree with Mr. Tibaruha, that the evidence of condemnation by the Chief Justice of the events of the 16/11/2005 is hearsay. Mr. Kiyemba Mutale was present at the meeting and heard the Chief Justice condemn the events of that day. That evidence is not based on the Newspaper reports. The Newspaper reports were intended to corroborate the deponent's evidence of what transpired at that meeting. I, however, agree with Mr. Tibaruha that the Newspaper reports are hearsay. They are inadmissible in evidence. They, therefore, cannot corroborate another evidence.

 

 

As I have stated earlier in this judgment, deletion of these Newspaper reports does not diminish in anyway, the value of Mr. Kiyemba Mutale's evidence as to the Chief Justice's views about the events of 16/11/2005.

 

 

I must say, that I do not, with respect, agree with Mr. Tibaruha when he contended that there is no evidence to establish the acts of the armed men. There is evidence from the affidavit of Kiyemba Mutale as shown above. The evidence of Kiyemba Mutale which I found to be credible and believed, shows that the 22 accused persons had been granted bail by Justice E.S Lugayizi on 16/11/2005, in respect of the offences of treason and misprison of treason. While the documentation process was in progress in Criminal Registry of the High Court to effect the grant ordered by the judge, the armed men came to the Registry. They interfered with the documentation process and the sureties felt intimidated. They, accordingly, withdrew their undertaking and did not sign the documents. As a result, the 22 accused persons were returned to prison, even though the judge had granted them bail.

 

I will revert later to the argument that the re-arrest of the 22 accused persons was lawful together with the issue of the legality of charging and prosecuting the 22 accused persons before the GCM when I will be discussing issue No 2. For now, I wish to point out that one of the principles of Constitutional interpretation as stated earlier in this judgment is that both purpose and effect are relevant to determine constitutionality. Either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. This was the principle enunciated in The Queen vs Big M. Drug Mart Ltd (1980) LRC (Const)322. It was followed by the Supreme Court in AG vs Salvatori Abuki, Constitutional Appeal No 1 of 1998. I should add that unconstitutional effect of an act can also determine its unconstitutionality.

 

In the instant case, the effect of the act of the armed members of the UPDF in interfering with the 22 accused persons' bail grant documentation process resulted into the denial of the accused persons' right to their personal liberty. They were returned to prison despite the fact that the judge had granted them bail. In my view, this was a violation of their rights to personal liberty guaranteed under articles 23 (1) and (6) of the Constitution.

 

 

This article provides: -

 

 

Article 23: -

 

 

(1) No person shall be deprived of personal liberty except in any of the following cases:-

  1. in execution of the sentence or order of a court, whether established for Uganda or another country or of an international court or tribunal in respect of a criminal offence of which that person has been convicted, or of an order of a court punishing the person for contempt of court;

  2. in execution of the order of a court made to secure the fulfillment of any objection imposed on that person by law;

  3. for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda;

  4. for the purpose of preventing the spread of an infectious or contagious disease;

  5. in the case of a person who has not attained the age of eighteen years, for the purpose of the education or welfare of that person;

  6. in the case of a person who is, or is reasonably suspected to be of unsound mind or addicted to drugs or alcohol, for purpose of the care or treatment of that person or the protection of the community;

  7. for the purpose of preventing the unlawful entry of that person into Uganda, or for the purpose of effecting they expulsion, extradition or other lawful removal of that person from Uganda or for the purpose of restricting that person while being conveyed through Uganda in the course of extradition or removal of that person as a convicted prisoner from the country to another; or

(h) as may be authorised by law, in any other circumstances similar to any of the cases specified in paragraphs (a) to (g) of this clause;

 

 

 

 

 

 

(6) Where a person is arrested in respect of a criminal offence:-

 

 

(a) the person is entitled to apply to the court to be released on bail and the court may grant that person's bail on such conditions as

the court considers reasonable;

  1. in the case of an offence which is triable by the High Court as well as by a subordinate court, the person shall be released on bail on such conditions as the court considers reasonable, if that person has been remanded in custody in respect of the offence before trial for one hundred and twenty days;

  2. in the case of an offence triable only by the High Court, the person shall be released on bail on such conditions as the court considers reasonable, if the person has been remanded in custody for three hundred and sixty days before the case is committed to the High Court

 

To recognise the universality of Human rights, it is important to note that the above Article is similar to Article 6 of the African Charter on Human and Peoples' Rights to which Uganda is signatory.

 

 

It provides: -

" Every individual shall have the right to liberty and security of his person. No one may be deprived of his freedom, except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested and detained ".

 

Even if these accused persons were to be re-arrested for different offences as stated by Major Kagoro, the documentation process for the bail that they had been granted, should have been allowed to be completed without interruption.

 

 

Article 28 (1)

This Article guarantees the right to a fair hearing before an independent and impartial court or tribunal established by law. It provides thus: -

 

 

" In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law".

 

This Article is similar to Article 14(3) of the International Covenant on Civil and Political Rights to which Uganda is a signatory. It is couched thus: -

 

" In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees in full equality: -

 

(a) To be informed promptly and in detail in language which he understands of the nature and cause of the charge against him.

  1. To have adequate time and facilities for preparation of his defence and to communicate with counsel of his own choosing

  2. To be tried without delay.

  3. To be tried in his presence and to defend himself in person and through legal assistance of his own choosing; to be informed, if he does not have legal assistance of his rights, and to have legal assistance assigned to him, in any case where the interest of justice so requires, and without payment by him in such cases if he does not have sufficient means to pay for it.

  4. To examine, or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

  5. To the free assistance of an interpreter if he can not understand or speak the language used in court.

 

 

(g) Not to be compelled to testify against himself or to confess guilt".

 

I have already referred to the evidence of Mr. Kiyemba Mutale to the effect that the armed men had interfered with the documentation process of the 22 accused persons' bail grant. That interference is clearly incompatible with the right to a fair hearing guaranteed by the above Article.

 

There is evidence by the same Mr. Kiyemba Mutale in paragraph 7 of his affidavit of 6/12/2005. It shows that when he went to the Criminal Registry of the High Court, he became aware that the High Court had been surrounded by several men dressed in black T-shirts and army fatigue trousers. They were wielding sophisticated sub-machine guns and had taken positions in the High Court premises.

 

Mr. Lule submitted that the act of surrounding the High Court by those armed men who took positions in the High Court premises was calculated to intimidate the judicial officers into being partial in favour of the State. I respectfully agree. I noted the two reasons given by Major Kagoro in his affidavit about the presence of those armed men in the High Court on that day, namely,

  1. to avert a planned terrorists attack aimed at rescuing the accused persons in order to defeat the course of justice,

  2. to ensure that the accused persons were brought before the GCM to answer charges of terrorism and unlawful possession of firearms.

 

I must say that this court is not questioning either the Executive's decision for the presence of those men at that place or their reason for it. It is the effect of the behaviour of those armed men when they were at the High Court premises that we are concerned with. Their surrounding the High Court premises, wielding sophisticated guns and taking positions within the High Court premises were intimidating to the Judicial officers and to all those working in the Judiciary. That is the obvious perception of a right thinking onlooker. The deployment could have taken a non-intimidating form. The documentation process to effect the bail granted by the judge was stopped. The lawyers of the 22 accused persons were also denied access to their clients. The effect to these acts is clearly incompatible with the right to a fair hearing. It contravenes the principle of independence of the judiciary guaranteed by Article 128(1) (2) and (3) of the Constitution in this way: -

 

 

Article 128:

" (1) in the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.

  1. No person or authority shall interfere with the courts or judicial officers in the exercise of the judicial functions.

  2. All organs and agencies of the States shall accord the courts such assistance as may be required to ensure the effectiveness of the courts ".

 

 

I would, therefore, answer issue No 1 in the affirmative.

 

 

This now brings me to issue No 2 which is, whether the concurrent proceedings in the High Court, Case No 955 of 2005 and Court Case No UPDF/GEN/075/2005 in the GCM against the accused persons contravene Articles 28(1) and 44(c) of the Constitution and inconsistent with Articles 28(9) and 139(1) of the Constitution.

 

 

Mr. Lule contended that the existence of concurrent proceedings in the High Court in Criminal Case No 955 of 2005 for offences of treason and misprison of treason on the one hand and in the GCM in Case No UPDF/GEN/075 of 2005 for terrorism and unlawful possession of firearms on the other hand, offences in both courts having arisen from the same facts, against the accused persons, contravenes

  1. the right to a fair hearing guaranteed by Article 28(1) and 44(c) of the Constitution,

  2. violates rights not to be tried again for another offence for which one has been convicted or acquitted guarantees by Article 28(9) of the Constitution,

  3. is inconsistent with the jurisdiction of the High Court established by article 139(1) of the Constitution.

 

He stated that he would argue the jurisdiction of the GCM first with respect to the offences allegedly committed by accused persons under the Anti-Terrorism Act No 14 of 2002 and unlawful possession of firearms under the Firearms Act Cap 299. He stated that the Superior Courts of Judicature which include the Supreme Court, Court of Appeal and the High Court derive their authorities directly from the Constitution itself under Article 129 (1). These Superior Courts, he argued, are therefore, superior to all other courts that derive their authorities not from the Constitution, but through an Act of Parliament. An Act of Parliament that establishes such a court must not be ultra vires to the Constitution.

 

He pointed out that the UPDF Act No 7 of 2005 has established the GCM as an organ of the UPDF. This Act of Parliament was made by Parliament under the authority of Article 210 of the Constitution. The original jurisdiction, conferred on the GCM by section 197 (2) of the Act is not unlimited. It is limited under the UPDF Act and no further. The powers of the GCM are thus confined to the interest of the UPDF. In contrast, the original jurisdiction of the High Court as conferred by article 139 (1) is unlimited in all matters.

Referring to annexture 'B' to the petition, an Amended charge sheet of the GCM, Mr. Lule submitted that GCM has no jurisdiction: -

 

 

(1) to try the offences contained in that charge sheet,

 

 

(a) Firstly, the offence of terrorism under the Anti terrorism Act: section 6 of the Act confers jurisdiction over offences under the Act to the High Court only.

 

(1) the charge sheet does not show that the requirement of section 3 of the Act which requires consent of the DPP for any person to be prosecuted for any offence under the Act had been complied with.

 

(b) Secondly, the offence of unlawful possession of firearms under the Firearms Act Cap 299 Laws of Uganda 2000. According to Mr. Lule, there is nothing in the charge sheet that links the offence to UPDF Act to bring it within the jurisdiction of GCM. The firearms allegedly found in possession of the accused persons are not shown to being ordinarily the monopoly of the Defence Force or other classified stores as prescribed.

 

 

He submitted that the offences are, therefore, not service offences to fall within the jurisdiction of the GCM.

 

 

(2) to try the accused persons because

(a) apart from Cpt Katabaazi who might be a soldier, all the other 22 accused persons, including the Rtd Col Dr Kizza Besigye, are civilians. As civilians, they are not subject to military law. Therefore, the GCM has no jurisdiction over them. It is, therefore, incompetent to try the accused persons for those offences.

 

 

He argued that anyone who has been charged with a criminal offence has a right to be tried by a competent court. To be tried by an incompetent court is an infringement of his right to a fair hearing guaranteed by Article 28(1). A right to a fair hearing is entrenched in Article 44(c). A court that is incompetent to try a case or a person, he argued, is not a court for the purpose of the trial. Any decision taken by it is a nullity.

 

Mr. Lule further contended that the accused persons were obliged to appear in the High Court for the offence of treason and misprison of treason. These offences arose from the same facts as the offences of terrorism and unlawful possession of firearms with which they were subsequently charged before the GCM. The offences in the two courts are in essence the same offences. Were the GCM to have jurisdiction to try the accused persons for these offences, he argued, the accused persons would have run the risk of a double jeopardy. They would have been tried and punished twice for essentially the same offences. That would be inconsistent with Article 28(9) of the Constitution.

 

 

He stated that in Tumushabe vs The Attorney General, Constitutional Petition No 6 of 2004, this court had held by a majority of 4 to 1 decision that GCM is subordinate to the High Court. GCM, therefore, can not have concurrent jurisdiction with the High Court.

Mr. Tibaruha did not agree. He contended that the existence of proceedings in the High Court of Criminal Case No 955 of 2005 and of Case No UPDF/GEN/075 of 2005 in the GCM against the accused persons is lawful. It does not contravene Article 28(1) and 44(c) of the Constitution, nor are they inconsistent with Articles 28(9) and 139(1) of the Constitution. According to him, Government decided to institute proceedings against the accused persons in both courts because the two courts have concurrent jurisdictions. The accused persons are charged in the High Court with treason and misprison of treason. In the GCM, they are charged with terrorism and unlawful possession of firearms, which are service offences under section 2 of the UPDF Act. In his view, these offences are different from the offences with which the accused persons were charged in the High Court, though the offences arose from the same facts.

 

 

He stated that exercise of concurrent jurisdiction in such a situation does not contravene Article 28(9) because the High Court has unlimited original jurisdiction conferred by Article 139(1) of the Constitution and the GCM also has unlimited original jurisdiction conferred by section 197(2) of the UPDF Act.

 

 

In his contention, GCM has jurisdiction over the accused persons because they are subject to military law and have committed service offences. Exercise of a concurrent jurisdiction in such a situation is not inconsistent with the jurisdiction of the High Court.

 

 

Learned Solicitor General pointed out that although these two courts have concurrent jurisdiction, they are not from the same court system. The High Court is one of the courts of judicature established under Chapter 8 of the Constitution. On the other hand, the GCM is one of the military courts established by Parliament as an organ of the UPDF under the authority of

Article 210 in Chapter 12 of the Constitution. Military Courts are charged with the duty to administer military justice. They are not part of the courts of judicature. GCM is, therefore, not subordinate to the High Court. Joseph Tumushabe vs Attorney General (supra) which held that GCM is subordinate to the High Court was wrongly decided. That decision was made per incuriam. It was a decision not resulting from framed issue submitted upon by the parties. He explained that concurrent trial of an accused person for different offences that arise from the same set of facts is not prohibited under the Constitution. Section 204 of the UPDF Act in fact allows it. Where GCM commences a trial of a person subject to military law for a service offence, a civil court still has jurisdiction to try the person for an offence triable by it even when the second trial rises from the same or related facts as the first trial.

 

 

He prayed that issue No2 be answered in the negative.

 

 

Judicial power in Uganda is provided for in Article 126(1) as follows: -

 

 

" Judicial power is derived from the people and shall be exercised by courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people".

 

That Article shows the source of judicial power and who are to exercise it. Both counsel have rightly, in my view, conceded that judicial power in Uganda is allocated by the Constitution to the courts of judicature by Article 129 (1) which provides thus: -

 

 

"The judicial power of Uganda shall be exercised by the Courts of Judicature, which shall consist of;

  1. the Supreme Court of Uganda

  2. the Court of Appeal of Uganda

  3. the High Court of Uganda and

  4. such subordinate courts as Parliament may by law establish, including Qadhis' Courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament".

 

 

Judicial power in Uganda is thus conferred by the Constitution to courts established under the Constitution of the Republic of Uganda. Article 257 of the Constitution defines court to mean:

 

 

" a court of judicature established by or under the authority of this Constitution ".

 

 

These courts are spelled out in Article 129(1) of the Constitution. They are named in clause 1(a) (b) (c) and (d) of Article 129(1) above. Clause 1(d) gives Parliament general power to establish subordinate courts. Article 129(2) named the Supreme Court, Court of Appeal and the High Court to be the superior courts of record. Clause 2 of Article 129 provides: -

 

 

" The Supreme Court, The Court of Appeal and the High Court of Uganda shall be superior courts of record and shall each have all the powers of such a court ".

There is no dispute that GCM is established by Parliament under section 197(1) of the UPDF Act No 7 of 2005. The preamble of the UPDF Act no07 of 2005 shows that in enacting that Act, Parliament acted under the authority of Article 210 of the Constitution, which provides: -

 

" Parliament shall make laws regulating the Uganda Peoples' Defence Forces, and in particular, providing for: -

  1. the organs and structures of the Uganda Peoples' Defence Forces;

  2. recruitment, appointments, promotion, discipline and removal of members of the Uganda Peoples' Defence Forces and ensuring that members of the Uganda Peoples' Defence Forces are recruited from every district of Uganda;

  3. terms and conditions of service of members of the Uganda Peoples' Defence Forces; and

  4. ..the deployment of troops outside Uganda ".

 

 

The above Article empowers Parliament to make laws for the above purposes only. These are essentially to cater for the interest of the UPDF. The GCM was therefore, established as an organ of the UPDF to deal with discipline in the UPDF. What should be noted is that Article 210 does not empower Parliament to establish courts. Yet it has established a court, the GCM, under section 197(1) of the UPDF. Section 197(2) conferred on that court unlimited original jurisdiction under the Act. This is right, in my view, because Parliament has a general power under Article 129(1) (d) of the Constitution to create courts. I have comfort to say so because one of the cannons of Constitutional interruption is that "the Constitution must be read as an integrated whole and no one particular provision destroying the other, but each sustaining the other. This is the rule of harmony, the rule of completeness and exhaustiveness and the rule of paramountcy of the Constitution." Per Manyindo, DCJ as he then was, in Major General Tinyejuza vs AG, Constitutional Petition No 1 of 1996.

 

Article 139(1) conferred on the High Court unlimited original jurisdiction in all matters with such appellate and other jurisdictions as may be conferred on it by this Constitution or other law.

 

 

From the above, I do not, with respect, agree with Mr. Tibaruha that the GCM is not subordinate to the High Court, nor that they are at the same level, merely because they have concurrent jurisdiction in some matters. The High Court is one of the Courts of Judicature established in chapter 8 of the Constitution. Even though the GCM is established by Parliament under the authorities of Article 210 in Chapter 12 of the Constitution, it derives its judicial power by virtue of Article 129(1)(d). It is, therefore, a specialised court of judicature because its jurisdiction is confined to, under the UPDF Act, to deal with the military. My reason is that there is no any other provision of the Constitution other than 126(1) that confer judicial powers in Uganda. Article 129(2) of the Constitution is very clear on which are superior or subordinate courts in Uganda. It provides that: -

 

 

" The Supreme Court, The Court of Appeal and the High Court of Uganda shall be superior courts of record and shall each have all the powers of such a court ".

Clause 1(d) of Article 129 empowers Parliament to establish only subordinate courts. Parliament, therefore, can not establish superior courts or courts equivalent to those mentioned in Article 129(2). That would be ultra vires the Constitution and such a law would be null and void.

 

 

" Subordinate court " has been defined in Article 257 (1) of the Constitution to mean " a court subordinate to the High Court".

 

In Joseph Tumushabe vs Attorney General, Constitutional Petition No 6 of 2004, my brother judge, Justice Twinomujuni, who wrote the leading judgment with which the majority of 4 to 1 agreed, after referring to Article 129(1) and (2) of the Constitution said:

 

" Under this article, Parliament can not establish a court which is superior to the High Court. It only has power to create subordinate courts ".

 

I could not agree more with that view. I can only add that under whatever Article of this Constitution, Parliament creates a court, such a court must be subordinate to the High Court. Therefore, all the specialised courts or tribunals that are created by Parliament like, the Industrial court, Non-Performing Assets Recovery Tribunal (NPAPT), Tax Appeal Tribunal, the Court-Martial Appeal Court to which appeals from GCM go, are subordinate to the High Court.

 

The Courts of Judicature are the only bodies entrusted with judicial power to decide on the Criminal liabilities and the civil rights and obligations of the people of Uganda. That perhaps is why those specialised courts or tribunals have appeals from them channelled to one of the superior courts of judicature. Appeals from Court-Martial Court Appeal Court, where a sentence of death is imposed, come to the Court of Appeal. This is intended to ensure that in adjudication of cases in their special fields, these specialised courts or tribunals meet the internationally accepted standard of a fair trial.

I agree, Parliament may confer on some of these specialised courts, in some matters, original jurisdiction concurrent with that of the High Court. However, the conferment of such a jurisdiction perse does not make such a specialised court or tribunal superior or at the same level with the High Court. The Constitution has empowered Parliament to establish only subordinate courts.

 

 

The argument that the GCM is from a different court system is not tenable. The Constitution does not empower Parliament to set up a parallel court system to the courts of judicature. Article 126(1) confers the power to exercise judicial power in Uganda to only courts established under this Constitution. Court is defined in Article 257 to mean courts of judicature established by or under the authority of this Constitution. Article 129(1)(d) empowers Parliament to establish only subordinate courts not a court system.

 

 

It was argued for the respondent that if the GCM was subordinate to the High Court why should appeals from it not go to the High Court as directed by Article 139(2) of the Constitution?

 

 

Article 139(2) provides that:

 

 

" Subject to the provisions of this Constitution and any other law, the decisions of any court lower than the High Court shall be appealable to the High Court ".

 

My answer is that Article 139(2) refers to the ordinary courts of judicature. The GCM is a specialised court with a mandate to administer only military justice.

As appeals are creatures of statute, the UPDF Act No 7 of 2005 makes appeals from the GCM to go to another specialised court, the Court-Martial Appeal Court. Only appeals from the Court- martial Appeal Court in certain cases go to the Court of Appeal. This does not change the fact that the GCM is subordinate to the High Court. Article 129(2) of the Constitution says so. It is the High Court and not the GCM that is declared by the Constitution as one of the superior courts of record of Uganda.

 

The second reason for my holding the view that the GCM is subordinate to the High Court is to be found in Article 208(2) of the Constitution, which provides:

 

 

" The Uganda peoples' Defence Forces shall be Non-partisan, National in character, Patriotic, Professional, Disciplined, Productive and Subordinate to the civilian authority as established under this Constitution ".

 

The GCM is an organ of the UPDF that is enjoined to be subordinate to the civilian authority. The Judiciary is part of the civilian authority established under this Constitution. The High Court is part of the Judiciary. In terms of the provision of Article 208(2) above, therefore, the GCM is subordinate to the High Court.

 

To buttress this point, I am happy to call in aid section 33 of the Judicature Act Cap 13 of Laws of Uganda 2000. This section empowers the High Court to grant absolutely or on such terms and conditions as it thinks just all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it. This is intended that as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.

 

Prerogative writs and orders are some of the ways that the High Court exercises its supervisory power over subordinate courts or administrative decisions. Section 34 of the Judicature Act is relevant here. It empowers the High Court to:-

 

 

" (a) issue a writ of habeas corpus ad subjiciendum directed to a person in whose custody the person deprived of liberty is, if it is satisfied from affidavit that there is reasonable ground for the complaint of deprivation of someone's liberty. Once the return is made on the writ, the judge before whom it was placed shall inquire into the truth of the facts stated in the affidavit and may make order as the justice of the case requires;

 

 

(b) issue a writ of habeas corpus ad testificandum or habeas corpus ad respondendum for bringing up any prisoner detained in any prison before any court, a court-martial, an official or special referee, an arbitrator or any commissioners acting under the authority of any commission from the President for trial or, as the case may be, to be examined touching any matter to be inquired into by or pending before a court, a court-martial, an official or special referee, an arbitrator or the commissioners ".

 

Sections 36 and 37 of the Judicature Act deal with prerogative orders of mandamus, prohibition and certiorari. Only High Court can issue them. The above provisions reinforce the view that the High Court is superior to the GCM.

Mr. Lule has submitted that the concurrent jurisdiction of the High Court and the GCM over the accused persons is inconsistent with Articles 28(1) and 44(c) of the Constitution with reference to annexture 'B' to the Petition. Annexture "B' to the petition is an amended charge of GCM charging the accused persons with the offences of terrorism and unlawful possession of Firearms.

 

To appreciate his contention better, I reproduce here below the amended charge sheet.

 

 

It reads:

STATEMENT OF OFFENCE

Terrorism C/S 7(1), (b) and (2)0) of the Anti-Terrorism Act 14 of 2002.

 

 

PARTICULARS OF OFFENCE COL (RTD) DR. KIIZA BESIGYE, CAPT KATABAASI JAMES alias LONDE, alias KATA alias KEKIBIRA, MWEBEMBEZI GODFREY, ATUKINDA FRANK alias AMANYA, JURUA JACKSON MACPEACE, BAIBA ABUBAKAR, ABUKO ACHIKULO AMIYE, KABAKA JAMES TABUGA, UMARU KISSA, KACHWANO ABELI, YAHAYA AMIR ASEGA, IDD AHAMED YUNUS, TUMWESIGYE GEORGE alias OWAKUKIRORU, TWEYAMBE ROBERT alias BAGUMA DARIUS, ATWONGYEIRWE PETER, MAZIM YUSUF ODUGO, ARIKE JOHN, YASIN KESIA GELE, OBBA ZACHARIA MUSA, OKIRING PATRICK alias GRACE EFFORTE, BRUHAN DRIATRE IWAGO, AGUPIO SAMSON, MUSSASIZI JOSEPH KIFEFE and others still at large, between the months of November and December 2004, while in diverse places within and outside Uganda, but more particularly in the Districts of Arua, Yumbe and Koboko in the West Nile Region, with intent to intimidate the public or a section of the public, and for a political aim, procured and or were found in unlawful possession of firearms and ammunitions to wit:

 

93 Sub-machine guns, 04 rocket propelled guns, 02 Rocket propelled shells, 03 Hand grenades, 24 anti-personnel land mines, 23 anti-personnel fuses and 212 loose live ammunitions an act being of terrorism.

 

 

IN THE ALTERNATIVE STATEMENT OF OFFENCE

 

 

Unlawful Possession of Firearms c/s 3(1), (2) (a) and (b) of the Firearms Act Cap 299.

 

 

PARTICULARS OF OFFENCE COL (RTD) DR. KIIZA BESIGYE, CAPT KATABAAZI JAMES alias LONDE, alias KATA alias KEKIBIRA, MWEBEMBEZI GODFREY, ATUKUNDA FRANK alias AMANYA, JURUA JACKSON MACPEACE, BAIBA ABUBAKAR, ABUKO ACHIKULO AMIYE, KABAKA JAMES TABUGA, UMARU KISSA, KACHWANO ABELI, YAHAYA AMIR ASEGA, IDD AHAMED YUNUS, TUMWESIGYE GEORGE alias OWAKUKIRORU, TWEYAMBE ROBERT alias BAGUMA DARIUS, ATWONGYEIRWE PETER, MAZIM YUSUF ODUGO, ARIKE JOHN, YASIN KESIA GELE, OBBA ZACHARIA MUSA, OKIRING PATRICK alias GRACE EFFORTE, BRUHAN DRIATRE IWAGO AGUPIO SAMSON, MUSASIZI JOSEPH KIFEFE and others still at large between the months of November and December 2004, while in diverse places within and outside Uganda, but more particularly in the Districts of Arua, Yumbe and Koboko in the West Nile Region, procured and or were found in unlawful possession of firearms and ammunitions to wit: 93 Sub-machine guns, 04

Rocket propelled guns, 02 Rocket propelled shells, 03 Hand grenades, 24 anti- personnel land mines, 23 anti-personnel fuses and 212 loose live ammunitions without holding valid Firearms Certificates.

 

 

 

 

OFFICER PREFERRING CHARGE

(HEAD PROSECUTION - UPDF) CHAIRMAN

From this charge sheet, I do not, with respect, agree with Mr. Tibaruha that GCM has jurisdiction to try the accused persons for offences contained therein. The charge sheet does not link the offences with the UPDF Act to bring the offences within the jurisdiction of GCM. ALL the essential ingredients of the offence charged must be alleged in the particular of the offence. This has not been done here.

 

 

Section 3 of the Anti-Terrorism Act requires consent of the DPP for any person to be prosecuted for the offence of terrorism. There is nothing in the charge sheet to show that this requirement has been complied with. Section 6 of the Anti-Terrorism Act limits the jurisdiction over such offences as that portrayed in the charge sheet before the GCM only to High Court.

 

 

Article 120(3)(b) of the Constitution prohibits the DPP from instituting criminal proceedings in a court- martial.

 

 

Section 6 of the Anti-Terrorism Act No 14 of 2002 provides thus: -

 

 

" the offence of terrorism and any other offence punishable by more than ten years imprisonment under this Act are triable only by the High Court and bail in respect of those offences may be granted only by the High Court ".

Section 3 of the same Act provides:

" No person shall be prosecuted for an offence under this Act, except with the consent of the Director of Public Prosecution."

 

Clearly, non- compliance with the requirement of section 3 of Anti-Terrorism Act above renders the act complained of not an offence prosecutable under Anti-Terrorism Act. Therefore, it cannot be a service offence within the meaning of section 2 of the UPDF Act. Consequently, the GCM has no jurisdiction over it.

 

 

As regards to the alternative offence of unlawful possession of firearm, the charge again does not link the offence to the UPDF Act in order to bring it within the jurisdiction of GCM. There is no averment in the charge sheet that the accused persons were persons subject to military law. Apart from Capt Katabaazi James who might be a soldier, all the caused persons including Rtd Col Dr Kizza Besigye are civilians. Importantly, it is not averred in the charge sheet that the arms allegedly found in possession of these civilians are ordinarily the monopoly of the Defence Forces. Without alleging facts that bring them within the military law, the GCM has no jurisdiction over them for those offences. This is the position in this case. The essential ingredients of the offences linking them to the UPDF Act in order to bring them within the GCM are not averred in the charge sheet. Therefore, GCM has no jurisdiction over the accused persons for those offences.

 

A right to a fair hearing embodies the right to be tried by a competent court. A court that has no jurisdiction to try a case with which a person has been charged is not a competent court for the purpose of that case. It is in fact, not a court for the purpose of such a trial. Any decision made by it in that regard is null and void. To be tried by an incompetent court is a violation of one's right to a fair hearing protected by Article 28(1) and entrenched by Article 44(c) of the Constitution. The GCM has no jurisdiction over the offence of terrorism and unlawful possession of firearm under the Firearm Act contained in Annexture 'B'. The appearance of the accused persons, therefore, before the GCM is a violation of their right to a fair hearing provided under Article 28(1) and entrenched by Article 44(c) of the Constitution.

The next is the existence of concurrent proceedings in the High Court and in the GCM against the accused persons for different offences which arise from the same set of facts as being inconsistent with Article 28(9) and 139 of the Constitution. On this, Mr. Tibaruha contended that the Constitution does not prohibit that situation. I do not, with respect, agree with that. The argument that this is permissible because the two courts have concurrent jurisdiction and the offences are different offences, though they arise from the same set of facts is untenable.

 

 

I have already stated that the GCM has no jurisdiction to try the accused persons for the offences contained in annexture 'B' to the Petition. Had the GCM jurisdiction, the existence of the proceedings against the accused persons in the two courts of concurrent jurisdiction for different offences which arose from the same set of facts would be inconsistent with Article 28(9) of the Constitution. One of the cannons of Constitutional interpretation I have referred to earlier in this judgment is that a Constitutional provision particularly that which relates to the fundamental rights and freedoms must be given a dynamic and progressive interpretation in order to realise the full benefit of the guaranteed right.

 

To restrict the scope of Article 28(9) to the same case of which the accused had earlier been tried and either convicted or acquitted is to give a restrictive interpretation to the provision contrary to principle referred to above. Such an approach would not give the full benefit of the guaranteed right. The proper interpretation is to enlarge the scope to include the right not to be charged in two different concurrent jurisdictions with different offences arising from the same set of facts. This avoids the risk of the accused being convicted twice for the same offence in contravention of Article 28(9). It is trite procedural criminal law that a court has power to convict an accused for a lesser cognate offence, if established by evidence, even though he had not been charged with it.

 

 

This is a likely situation in the instant case. The accused persons who are now charged with treason and misprison of treason in the High Court, could instead be convicted of unlawful possession of firearms under the Firearms Act, if that is established by evidence. Charging them before the GCM with terrorism and unlawful possession of firearms, offences which arose from the same set of facts as the treason with which they are charged in the High Court, if the GCM had jurisdiction, would be inconsistent with Article 28(9) of the Constitution.

 

I would, therefore, answer issue No 2 partly in the affirmative. Concurrent proceedings against the accused persons in the High Court in Criminal Case No 955 of 2005 and in the GCM in Case No UPDF/GEN/075 of 2005 contravene Articles 28(1) and 44(c) of the Constitution.

 

 

This now takes me to issues No 3 and 4, which I propose to tackle together, because they are related. They are couched thus:

 

 

Issue (3)- Whether section 119(1)(g) and (h) of the Uganda Peoples' Defence Forces Act No 7 of 2005 is inconsistent with Articles 28(1), 126(1) and 210 of the Constitution.

Issue (4) - Whether joint trial of civilians and members of the UPDF in, military court for offence under the UPDF Act is inconsistent with Articles 28(1) and 210 of the Constitution.

 

 

Mr. Tibaruha contended that the impugned sections of the UPDF Act are not inconsistent with articles 28(1), 126(1) and 210 of the Constitution. He Submitted that as a military law, the UPDF Act is a special law designed to provide a legal framework for peace and National security. He got Solace for this assertion from the decision of the Supreme Court in Attorney General vs Major General Tinyefuza (supra), in particular, the judgment of Mulenga JSC who said:

 

" Military laws are designed specially in the interest of National Security ".

 

 

He stated that section 119(1)(g) and (h) is intended to safeguard National security. He submitted that this being the case, this court should desist from entertaining a challenge to any provision of the law which is intended to foster a National security, especially where that law does not infringe on the right to a fair and speedy trial or on the exercise of judicial power. He cited the statement of Kanyehamba JSC in Tinyefuza's case (supra), that:

 

 

" The armed forces are instrument of State, equipped, disciplined and trained to exercise physical force in the interest of the State."

 

From the above, Mr. Tibaruha urged us to refrain from subjecting to judicial review, military decisions taken in the interest of National security. In his view, sections 119(1)(g) and (h), the UPDF Act are for that purpose. Without them, the UPDF Act would not achieve its objective of instilling and maintaining discipline in the UPDF and of providing a legal framework for National security.

 

 

Mr. Lule's submission was that Parliament had exceeded its mandate under Article 210 when it enacted sections 119(1)(g) and (h) of the UPDF Act No 7 of 2005. It extended the power of the GCM to cover civilians, contrary to the clear mandate of Article 210 of the Constitution.

 

 

I have read the views of the two eminent Justices of the Supreme Court, Justice Mulenga and Justice Kanyeihamba in Tinyefuza's case (supra). I do agree with Justice Mulenga that Military laws are designed specially in the interest of National security. I believe, however, that in designing such a law, Parliament would be mindful to keep within the mandate of the Constitutional provision it is acting under. As it is alleged that the impugned section 119(1)(g) and (h) of the UPDF Act in-fringe the Constitutional provision which guarantees the entrenched right to a fair hearing, it is necessary that we consider these allegations and make appropriate findings thereon. If we find that they do in- fringe the said right, then we are under a duty to make appropriate declaration. The right to a fair hearing is non derogable under Article 44(c)

 

To refrain from doing so would tantamount to our abdicating the duty vested in us by the Constitution. We are guardians of the fundamental rights of the citizens of this country.

 

 

The section provides thus: -

 

 

" (1)... the following persons shall be subject to military law:

(g) every person not otherwise subject to military law who aids or abets a person subject to military law in the commission of a service; and

 

 

(h) every person found in unlawful possession of:

 

 

(i) arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or

 

 

(i) other classified stores as prescribed ".

 

 

It is clear to me that the above provisions bring within the military law those civilians who are neither members of the UPDF, nor agreed to be subject to military law. This is clearly outside the powers given to Parliament by Article 210 of the Constitution. That Article empowers Parliament to make laws to cater for the interest of the UPDF. While I do appreciate that UPDF is charged with the duty of ensuring National security, it is important that the limit of the mandate given by Article 210 is observed. As a general principle, the GCM has no jurisdiction over civilians. Sections 119(1)(g) and (h), which bring civilians within the military law, are clearly outside the mandate of Article 210 of the Constitution. I am satisfied that those civilians who fall under sections 119(1)(g) and (h) could be adequately dealt with in the civil courts where they expect to get a fair trial.

 

 

In my view, sections 119(1)(g) and (h) of the UPDF Act are, therefore, inconsistent with Article 210 of the Constitution. I must repeat for emphasis that Military Courts have no general jurisdiction over civilians. This is because Article 210 does not empower Parliament to make laws that would give such courts jurisdiction over civilians or non-members of the UPDF.

The right to a fair hearing encompasses the right to be tried by an independent, impartial and competent court. A court that lacks jurisdiction over a case is not a competent court to try such a case. To do so would be a violation of the accused person's right to a fair hearing guaranteed under article 28(1) and entrenched under Article 44(1) of the Constitution.

The judicial powers of the GCM are confined to the military personnel in respect of service offences. Sections 119(1)(g) and (h) of the UPDF Act as stated above are inconsistent with Article 210 of the Constitution. Parliament exceeded its power under Article 210 in making to those sections.

 

 

Therefore, joint trial of civilians and members of the UPDF in Military Courts for offences under the UPDF Act is inconsistent with Articles 28(1) and 210 of the Constitution.

 

 

I would, therefore, answer issue Nos 3 and 4 in the affirmative.

 

 

Finally, I now move to issues Nos 5 and 6, which I propose to discuss jointly. These issues are couched thus:

 

 

No 5: - Whether the trial of the accused persons before the GCM on charge of terrorism contravenes Articles 22(1) and 28(1) and 126(1) of the Constitution

 

 

No 6:- Whether the trial of the accused persons for the offence of terrorism before the GCM is inconsistent with Articles 28(1), 120(1), (3)(b) and(c), 126(1) and 210 of the Constitution.

 

 

I have already substantially covered these issues when I discussed issue No 2. In view of my findings on that issue that the GCM has no jurisdiction to try the accused persons for terrorism on the charge in Annexture 'B', I must answer Issues Nos 5 and 6 in the affirmative. GCM has no judicial power generally- over Civilian in Uganda. To give itself jurisdiction to try the accused persons who are civilians for the offence of terrorism, GCM is acting outside Articles 210.

I would, therefore, answer issues No 5 and 6 in the affirmative.

 

 

In the result, I would allow the petition. Issue Nos. 1, 2, 3, 4, 5 and 6 are answered in the affirmative.

 

 

Accordingly, I would make the following declarations: -

 

 

(1) The acts of the security agency at the High Court premises on

16/11/2005 contravened Articles 23(1) and (6), 28(1) and 128(1), (2) and (3) of the Constitution.

(2)

The concurrent proceedings against the accused persons in the High Court in Criminal Case No 955 of 2005 and in the GCM in Case No UPDF/GEN/075 of 2005 contravene Articles 28(1) and 44(c) of the Constitution and inconsistent with Article 28(9) of the Constitution.

 

 

 

(3)

Section 119 (1)(g) and (h) of the UPDF Act No 7 of 2005 are, therefore, inconsistent with Articles 28(1) and 210 of the

 

Constitution.

 

 

The GCM has no judicial power over civilians who do not fall under the UPDF Act. Therefore, their trial singly or jointly

with members of the UPDF before the GCM for offences under

 

the UPDF Act is inconsistent with Articles 28(1), and 210 of the Constitution.

 

 

 

 

 

(5) The trial of the accused persons before the GCM on the charge

 

of terrorism contravenes Articles 28(1) 120(1)(3)(b) and 210 of the Constitution.

 

 

 

I would order that each party bear his own costs of this petition, since it was brought in public interest.

 

 

 


Dated at Kampala this 31st day of January 2006.

 

 

G.M. OKELLO
JUSTICE OF APPEAL

 

 

 

 

 

JUDGEMENT OF S.G. ENGWAU, JA

 

 

 

The petition is brought under Articles 137 (3) and 50 (1) and (2) of the Constitution. Messers Godfrey Lule, SC, Peter Mulira, Medard Lubega and David Mpanga represented the petitioner, a body corporate, established under the Uganda Law Society Act (CAP 276). Mr. Lucian Tibaruha, Solicitor General and Mr. Joseph Matsiko, Ag. Director Civil Litigation represented the respondent, the Attorney General.

 

 

 

 

 

Both the petitioner and respondent framed and agreed upon the following issues:

 

1. Whether acts of security agents at the premises of the High Court on the 16th November, 2005 contravened Articles 23 (1) and (6), 28 (1) and 128 (1), (2) and (3) of the Constitution.

 

  1. Whether the concurrent proceedings in the High Court Criminal Case No. 955 of 2005 and the General Court Martial case No. UPDF/Gen/075/05 against the accused contravene Articles 28 (1) and 44 (c) of the Constitution and inconsistent with Articles 28 (9) and 139(1) of the Constitution.

  2. Whether sections 119 (g) and (h) of the Uganda People's Defence Forces No. 7 of 2005 is inconsistent with Articles 28 (1), 126(1) and 210 of the Constitution.

  3. Whether the joint trial of civilians and members of the Uganda People's Defence Forces in military court for offences under the UPDF Act is inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution.

  4. Whether the trial of the accused before the General Court Martial on a charge of terrorism contravenes Articles 22 (1), 28 (1) and 126 (1) of the Constitution.

  5. Whether the trial of the accused for the offences of terrorism and unlawful possession of firearms before the General Court Martial is inconsistent with Articles 28 (1), 120 (1), (3)(b) and (c), 126 (1) and 210 of the Constitution.

 

 

 

 

 

The first issue is whether acts of security agents at the premises of the High Court on the 16th November, 2005 contravened Articles 23 (1) and (6), 28 (1) and 128 (1), (2) and (3) of the

 

 

Constitution. It attacks the acts of security agents of the Government at the High Court on the 16th of November, 2005. Mr. Godfrey Lule pointed out that on that day, the accused and their lawyers were at the High Court processing bail application. Mr. Kizemba Mutale, one of the lawyers for the accused, deponed that after grant of bail application, the lawyers went to the Criminal Registry to facilitate the release of the accused. People dressed in black T-shirts, army fatigue trousers, wielding machine guns surrounded the High Court and took positions. On seeing that, Mutale went to Criminal Registry from where those people interfered with the process. Those men also entered the cells where the accused were and took them back to Luzira Prison.

 

 

Mr. Mutale and his colleagues Erias Lukwago, Sam Njuba and Yusuf Nsibambi met the Principal Judge who told them Lugayizi, J had declined from hearing bail application because of the events of the November 16th. Mr. Lule contended that those acts led to the withdrawal by Lugayizi, J from further hearing of the case, the circumstances in which the Principal Judge took over and the condemnation by the Chief Justice and Uganda Law Society. In his view, those acts were intended to compromise the independence and impartiality of courts, contrary to free and fair adjudication as envisaged in Articles 28 (1) of the Constitution. Mr. Lule then urged this court to restrain any further occurrence of such acts in future. He relied on Articles 128 (1), (2) and (3) of the Constitution, which reads:

"128 (1) In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.

  1. No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.

  2. All organs and agencies of the state shall accord to the courts such assistance as may be required to ensure the effectiveness of the courts."

Mr. Lule submitted that from the reactions of Lugayizi, J, Chief Justice and Principal Judge, courts did not require the assistance from those soldiers on that day. He further pointed out that under section 42 of the UPDF Act, there is a provision for aid of a civil authority. In his opinion, Chief Justice or Principal Judge were civil authority who could call upon UPDF to come to give assistance but Chief Justice and Principal Judge made pronouncements objecting to the events of November, 16th.

 

 

Mr. Lucian Tibaruha contended that the acts of the security agency of the respondent on 16th November, 2005 did not contravene Articles 23 (1) and (6), 28 (1) and 128 (1), (2) and (3) of the Constitution as alleged by the petitioner. He pointed out that the alleged acts are found in the affidavit of Mutale, which contains inadmissible hearsay newspaper reports. He also urged this court not to subject the military decision regarding the deployment at the High Court and the necessity to do so to

 

 

judicial review. He relied on the decision of Kanyeihamba, JSC in Constitutional Appeal No.1 of 1997, Attorney General vs Major General David Tinyefuza where his Lordship stated inter alia thus:

"Courts should refrain from reviewing decisions relating to military affairs unless they have to. The exercise of judicial power must be within proper bounds and should fall short to the point beyond which it might be considered as an intrusion in the powers of the co-ordinate branches, namely, the Legislature and the Executive. The Constitution has empowered Parliament, and not the Judiciary, to supervise the Executive when the latter is exercising its functions in military operations."

 

 

Mr. Tibaruha further submitted that surrounding the High Court premises was done peacefully by security personnel. According to intelligence report, a group of terrorists were going to rescue the accused persons soon after their release on bail and make them disappear and escape the course of justice. He continued to say that an attack would have been catastrophic as there were judges and other people including ambassadors and heads of diplomatic missions. He further claimed that this group of terrorists looted shops during the previous day. He said UPDF had to deploy security personnel to prevent the above from happening and to ensure that the accused appear before the General Court Martial to answer charges of terrorism and unlawful possession of firearms. In his opinion, the deployment of security personnel did not breach any law. According to him, it was not necessary to inform the judiciary about the deployment because that was a security matter.

 

 

Counsel for the petitioner relied on supplementary affidavit of Mr. Mutale to show that the events of November 16th interfered with the functions in the High Court. Mr. Tibaruha submitted that the statement by Principal Judge is inadmissible under Order 17 Rule 3 of Civil Procedure Rules which applies to this court by virtue of rule 13 of the Rules of this court. He pointed out further that no judicial officer was stopped from doing his or her work. No judicial officer was compromised and the High Court operated normally.

 

 

Mr. Tibaruha stated that the issue of arrest of the accused was to take them to the General Court Martial. Article 23 (1) (6) allows the arrest of any person on reasonable suspicion and take him or her to court. In his opinion, there was reasonable suspicion to arrest the accused persons. Section 185 of UPDF Act allows the arrest of a person who is suspected to have committed a service offence. According to him terrorism and unlawful possession of firearms are service offences. Therefore, the activities of military personnel were lawful in the circumstances.

 

 

The events of the 16th November, 2005, in my view, were uncalled for. There were enough police personnel around the High Court on that day. In addition there were prison's personnel to beef the security. According to the affidavit of Major Kagoro, the military personnel were deployed purposely to arrest the accused persons and take them later to the General Court Martial to answer charges of terrorism and unlawful possession of firearms. It is not the deployment of those military personnel, which is being condemned. It is the manner in which they behaved which is deplorable and prejudicial to independence of the Judiciary. They were heavily armed and wielding their sophisticated machine-guns. They surrounded the High Court building and positioned themselves all over the place. The sight was frightening to the on-lookers who included judges, other judicial officers, supporting staff and people who had gone to attend court.

 

 

The affidavit evidence of Mutale and Major Kagoro requires a bit of scrutiny. Major Kagoro stated among other things that the deployment of military personnel was to prevent rescue of the accused by terrorists. He got that information from intelligence report. He is not an intelligence officer of the UPDF. He is a major in the Uganda People's Defence Forces and an advocate of the High Court and all courts subordinate thereto, and a prosecutor of the General Court Martial. One wonders how he got those intelligence reports.

As regards Mutale's affidavit evidence, he was at the High Court that day because he was one of the lawyers representing the accused persons. He saw for himself what those military personnel did in the Criminal Registry and in the cells where the accused were being detained. I am inclined to believe him that those military personnel interfered with bail application process.

As a result those granted bail preferred to go back to Luzira Prison and sureties also refused to sign documents for bail. Subsequently, Lugayizi, J stepped down from further hearing of the case and the Principal Judge took over, Major Kagoro does not state in his affidavit precisely where he was at the High Court on that day. His evidence is not credible.

 

 

Under Article 128 (3) of the Constitution, all organs and agencies of the state are required to accord to the courts such assistance as may be required to ensure the effectiveness of the courts. What those military personnel did on that day was not an assistance envisaged in Article 128 (3) of the Constitution. Similarly, section 42 of UPDF Act provides: The Defence Forces, any part of the Defence Forces, and any officer or militant, are liable to be called out for service in aid of the civil power in any case in which a riot or disturbance of the peace occurs or is, in the opinion of the appropriate civil authority likely to occur, if in the opinion of the appropriate civil authority the riot or disturbance of the peace is likely to be beyond the powers of the civil authorities to suppress or prevent. I would agree with Mr. Lule that the Hon. Chief Justice or Principal Judge were civil authority of the Judiciary who would have requested for assistance on that day from the military if there was need to do so. Their pronouncements objecting to the events of that day demonstrated that they did not need any assistance. The acts complained of interfered with the accused from getting their freedom on bail.

In the result, I would answer issue No. 1 in the affirmative.

The 2nd issue is whether the concurrent proceedings in the High Court and the General Court Martial against the accused contravene Articles 28 (1) and 44 (c) of the Constitution and inconsistent with Articles 28 (9) and 139 (1) of the Constitution.

 

 

Mr. Lule submitted that Chapter Eight of the Constitution makes provision for the Judiciary. He pointed out that under Article 129 of the Constitution, the Courts of Judicature are provided for as the Supreme Court of Uganda, the Court of Appeal of Uganda, the High Court of Uganda and such subordinate Courts as Parliament may by law establish. He submitted that the three higher Courts derive their jurisdiction and existence from the Constitution itself. All the other Courts derive their jurisdiction from the Constitution by the Acts of Parliament. He pointed out that any Act of Parliament must not be at variance with the Constitution.

 

 

Mr. Lule submitted that the General Court Martial is a creature of Statute. Under Article 210, Parliament is empowered to make laws, regulations and structures of the UPDF pertaining to appointments, recruitment, promotion, discipline and removal of members of UPDF. He pointed out that the UPDF Act caters for matters exclusively in the army or authority of UPDF. In his opinion, if any Court is set up by an Act of Parliament, that Court must confine itself to those purposes and no more.

Mr. Lule stated that the General Court Martial is set up under section 197 of the UPDF Act No. 7 of 2005. It is composed of seven members of the UPDF. Under section 197 (2), the General Court Martial has unlimited original jurisdiction under the Act and hears and determines all appeals referred to it from decisions of Division Courts Martial and Unit Disciplinary Committees. Learned counsel pointed out that the unlimited original jurisdiction is not so unlimited. It is limited to jurisdiction under the UPDF Act and no more.

 

 

In the petition is attached Annexture B, amended charge sheet, in the General Court Martial. In that charge sheet the accused persons are charged with terrorism, contrary to section 7 (1) (b) and 2 (j) of the Anti-Terrorism Act No. 14 of 2002 and in the alternative unlawful possession of firearms, contrary to section 3 (1), (2) (a) and (b) of the Firearms Act (cat 299). These offences were allegedly committed within and outside Uganda. They are said to have been committed under the UPDF Act for which the General Court Martial has jurisdiction to try them. Mr. Lule contended that the General Court Martial in charging the accused is acting contrary to the provisions of the UPDF Act in that section 197 (2) confines their powers to cases only under that Act. He pointed out that section 3 of the Anti-Terrorism Act under which the General Court Martial purports to charge the accused requires the consent of the Director of Public Prosecution (DPP) and there is a form to be filled. The charge sheet before the General Court Martial does not show that the requirement for consent is complied with. In counsel's opinion, the General Court Martial conferred jurisdiction upon itself and not a jurisdiction conferred by law.

 

 

Mr. Lule submitted further that section 4 of the Anti-Terrorism Act confers terrorism to ordinary Courts of Uganda. The General Court Martial is not one of them. Section 6 of the Act says terrorism is triable only by the High Court and bail may be granted only by the High Court. It was counsel's contention that the General Court Martial not being the High Court has no jurisdiction to try anybody under this Act. He submitted that the General Court Martial under section 197 (2) has power to try only cases under the UPDF Act.

 

 

Similarly, Mr. Lule submitted that unless it is shown that the Firearms Act is one of the Acts falling under the UPDF Act, the General Court Martial has no power to try anybody for the offence of being in unlawful possession of the firearms. According to counsel, the UPDF Act does not show that the Firearms Act is included in the UPDF Act to allow the General Court Martial to exercise jurisdiction.

 

 

Mr. Lule further contended that the General Court Martial has no power to try the accused or anybody else for the offences alleged to have been committed under the Anti-Terrorism Act or the alternative offence of being in unlawful possession of firearms under the Firearms Act. He pointed out that the state is aware of the alternative venue under Annexture C when the accused were charged with similar offences in the High Court. According to counsel, jurisdiction of Courts is a constitutional matter. The state like anybody else must comply with the constitutional requirement. If any agency of the state breaches any provision of the Constitution, such act shall not be allowed to stand. Therefore, this Court should declare that the General Court Martial has no power to handle those matters and must be restrained to try any further acts arising from the charge sheet.

 

 

On the issue of a fair hearing, Mr. Lule submitted that for anyone to be tried for a criminal offence by an incompetent Court, like the General Court Martial on these matters, is a violation of his or her right under Article 28 (1) of the Constitution. In his opinion, a Court which is not competent cannot give fair hearing because there are no rules to conform to. He pointed out that the UPDF Act requires that there should be rules for trial before the General Court Martial. Section 252 (2) of the UPDF Act confers the power on the minister of Defence to make rules. He has not done so to date. However the UPDF Act under section 209 says the General Court Martial shall follow the rules followed in civil courts but in practice those rules are not followed. In counsel's view, a trial in those circumstances would violate the rights of the accused under Article 28 (1) of the Constitution and should not be permitted.

 

 

On the question of double jeopardy, Mr. Lule submitted that for purposes of trial, the General Court Martial is not a Court under the Constitution. Any decision taken on these matters is a nullity. According to him, the accused are obliged to appear in the High Court for three different charges, but reading the charge sheet and indictment, the facts arise from the same transactions. The facts and offences are the same. If the General Court Martial had power, the accused would appear in two Courts and would be punished twice for the same offences and that would contravene Article 28 (9) of the Constitution.

 

 

As to whether the General Court Martial is subordinate to the High Court, Mr. Lule cited Constitutional Petition No.6 of 2004. Joseph Tumushabe vs The Attorney General where this Court held so. He submitted that it follows therefore that the General Court Martial cannot have concurrent jurisdiction with the High Court to which it is subordinate.

 

 

Mr. Tibaruha submitted that the existence of proceedings in both the High Court and in the General Court Martial against the accused is lawful and does not contravene Articles 28 (1) and 44 (c) of the Constitution and are not inconsistent with Articles 28 (9) and 139 (c) of the Constitution as alleged or at all. In Black's Law Dictionary 7th Edition, concurrent jurisdiction is defined as "jurisdiction exercised simultaneously by more than one Court over the same subject matter within the same territory." He submitted that according to the supplementary affidavit of Major Kagoro, the General Court Martial stayed its proceedings pending the decision of this Court but it is not legally bound to follow the orders of the High Court.

Mr. Tibaruha pointed out that under Article 139 (1) of the Constitution, the High Court has unlimited original jurisdiction in all matters and an appellate jurisdiction conferred on it by the Constitution or other law. The UPDF Act is created by Parliament under Article 210 of the Constitution. According to him, under section 197 (2) of the UPDF Act No.7 of 2005, the General Court Martial has also unlimited original jurisdiction to try the offences of terrorism and unlawful possession of firearms which are service offences under the UPDF Act. In section 2 of the UPDF Act, "service offence" is defined as "an offence under this Act or any other Act for the time being in offence committed by a person while subject to military law." In his view, concurrent proceedings in the High Court and the General Court Martial are not prohibited by the Constitution.

 

 

On the issue of a right to fair hearing, Mr. Tibaruha pointed out that the ingredients of a right to a fair hearing are provided for in Article 28 (1) and (3) of the Constitution. He stated that several provisions in the UPDF Act guarantee a fair trial in the course of trial in the General Court Martial. According to him the General Court Martial is an independent and impartial Court. Section 212 of the UPDF Act provides for public trials in the military Courts and section 214 thereof provides for the appearance in Court of witnesses and advocates of the accused. Further, Mr. Tibaruha pointed out that UPDF Act in parts vi-xiv creates an elaborate court system with all the attributes of fair trial system. He concluded that sections 183 and 209 of the Act expressly provide that the rules of evidence and procedure to be observed in proceedings before a Court Martial shall as is practicable be the same as those which apply before a civil Court.

 

 

The petitioner contends that concurrent trials before the High Court and the General Court Martial contravene Article 28 (9) of the Constitution. Mr. Tibaruha says the argument is misconceived. He points out that section 216 of the UPDF Act is "in pari materia" with and a replica of Article 28 (9) of the Constitution. He said both provisions forbid a trial for an offence for which somebody has already been tried and convicted or acquitted. In the instant cases, the accused are still being tried and there is no conviction or sentence imposed for the same offences.

 

 

It is the contention of the petitioner that the current proceedings in the High Court and in the General Court Martial is inconsistent with the jurisdiction of the High Court under Article 139 (1) of the Constitution. Mr. Tibaruha submitted that the provisions of Article 139 (1) of the Constitution, section 14 (1) of the Judicature Act (CAP 13) and section 197 (2) of the UPDF Act No.7 of 2005 indicate that the High Court and the General Court Martial have concurrent jurisdiction. According to him, both Courts have "unlimited original jurisdiction and appellate jurisdiction." Mr. Tibaruha hastened to point out that although both Courts have concurrent jurisdiction each belongs to a distinct and separate legal regime. The High Court is a Court of Judicature established by Article 129 of the Constitution. It is an ordinary Court under the Judiciary in Chapter Eight of the

Constitution. According to him, the General Court Martial is not a Court of Judicature. The General Court Martial is one. of the organs of the Uganda People's Defence Forces in Chapter 12 of the Constitution. It is a special Court intended to deal with the security and to try people subject to military law who commit service offences. It is not subordinate to the High Court but has concurrent jurisdiction with the High Court. He further stated that the decisions of the General Court Martial are not appealable to the High Court. Under section 199 (1) of the UPDF Act the decisions of the General Court Martial are appealable to the Court Martial Appeal Court. It cannot be said therefore that the General Court Martial is a lower Court than the High Court. Moreover the High Court has no supervisory or control over the General Court Martial.

 

 

The judiciary is established as an organ of the state under Chapter Eight of the Constitution and takes precedence over any other Court or tribunal established by Parliament for specific purposes, such as the General Court Martial. The reason for this is that especially in criminal offences, which entail the abridgement or curtailment of the rights of the individual protected under the Constitution and International Covenants, the definition and application of the criminal laws under which this may legitimately be done must be consistent with the guarantees of human rights. In this regard, only the ordinary Courts have the authority and power to interpret the guarantees of human rights under the Constitution.

The Constitution provides in Article 126 that "Judicial power is derived from the people and shall be exercised by the Courts established under this Constitution in the name of the people and in conformity with the law and with the values, norms and aspirations of the people." The Courts established under the Constitution are the Supreme Court, the Court of Appeal/Constitutional Court, the High Court and subordinate Courts. The General Court Martial is not a Court of Judicature under the Constitution. It is created by Parliament under Article 210 of the Constitution. Under the UPDF Act No.7 of 2005, Parliament has made laws regulating the UPDF and establishes its organs and structures and the recruitment, appointment, promotion, discipline and removal of members of the UPDF. The General Court Martial is therefore established by Parliament under UPDF Act, and its functions are to fulfil the conditions provided for in Article 210 of the Constitution, to wit, to discipline members of the UPDF. Its jurisdiction is established under section 197 (2) of the UPDF Act. It has unlimited original jurisdiction to hear and determine all appeals referred to it from the decisions of Division Courts Martial and Unit Disciplinary Committees. Its jurisdiction is limited to cases under the UPDF Act and no more and subject to service offences and to people subject to military law.

 

 

The 23 accused persons are charged in the General Court Martial with the offence of terrorism, contrary to section 7 (1) (b) and 2{j) of the Anti-Terrorism Act No. 14 of 2002. In the alternative they are charged with unlawful possession of firearms, contrary to section 3(1), (2)(c) of the Firearms Act. These offences were allegedly committed within and outside Uganda and they are said to have been committed under the UPDF Act for which the General Court Martial has jurisdiction to try them. It is pertinent to find out whether the Anti-Terrorism Act or the Firearms Act (CAP 299) fall under the UPDF Act.

 

Section 3 of the Anti-Terrorism Act reads: "No person shall be prosecuted for an offence under this Act except with the consent of the Director of Public Prosecutions." In the

instant case, Mr. Tibaruha submitted that such consent is not required before the General Court Martial. But section 4 of the Anti-Terrorism Act confers the offence of terrorism to ordinary Courts of Uganda. The General Court Martial is not an ordinary Court in Uganda. It is a special Court for disciplining the members of the UPDF. Section 197 (2) of the UPDF Act confines the powers of the General Court Martial to cases under that Act. The offence of terrorism is not one of them. Section 6 of the Anti- Terrorism Act reads:

"The offence of terrorism and any other offence punishable by more than ten years imprisonment under this Act are triable only by the High Court and bail in respect of those offences may be granted only by the High Court."

 

 

Clearly, the General Court Martial is not the High Court in Uganda. In charging the accused with terrorism in the General Court Martial is contrary to the provisions of section 197 (2) of the UPDF Act, which confines the powers to cases under the Act. The General Court Martial conferred jurisdiction upon itself and not a jurisdiction conferred by law. Therefore, the General Court Martial not being the High Court has no jurisdiction to try the accused or anybody else under the Anti-Terrorism Act.

 

 

It is not shown also that the Firearms Act falls under the UPDF Act. In the premises, the General Court Martial has no power to try the accused or anybody else for the offences alleged to have been committed under the Terrorism Act or for the alternative offence of being in unlawful possession of firearms under the Firearms Act. The accused should be tried for those offences in the High Court.

Article 28 of the Constitution provides: "In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial Court or tribunal established by law." The reference to "competent Court or tribunal" under the Uganda Constitution, refers to judicial organs under the Constitution for civil rights and ordinary criminal offences. Of course the General Court Martial is also established under Article 210 of the Constitution but under section 197 (2) of the UPDF Act it exercises jurisdiction but limited to members of the UPDF and people subject to military law for service offences as defined in section 2 of the UPDF Act.

 

 

As the General Court Martial cannot try the accused or any other person under the Anti-Terrorism Act or under the Firearms Act, it will violate their right under Article 28 (1) of the Constitution, namely, to a fair hearing. The right to a fair hearing is a non-derogable right under Article 44 (c) of the Constitution.

 

 

On the question of double jeopardy, in law there are certain canons of fundamental importance which must be preserved and obeyed by all organs, which exercise legitimate judicial power, and these are: First, no one may be tried for an offence that did not exist when the act(s) for which he or she is charged occurred. On the charge sheet it is alleged that the accused had committed the offences of terrorism and unlawful possession of firearms between November and December of 2004. This was before the enactment of the UPDF Act in 2005. The accused cannot be tried for those offences under the UPDF Act retrospectively. Secondly, a person may not be charged in different jurisdictions for the same offence(s), or if the offences are different, for offences which arose from the same set of fact(s). The facts on the indictment for the offences of treason and concealment of treason show that these offences were allegedly committed within and outside Uganda. The same facts appear for the offences of terrorism and unlawful possession of firearms. In law the principle of double jeopardy does not allow for the accused to be charged both in the High Court and the General Court Martial for offences that arise from the same set of facts.

 

 

As to whether the General Court Martial is subordinate to the High Court, the issue of concurrent jurisdiction is relevant. Under Article 129 of the Constitution, the judicial power of Uganda shall be exercised by the Courts of Judicature, which shall consist of

  1. the Supreme Court of Uganda,

  2. the Court of Appeal of Uganda,

  3. the High Court of Uganda and

  4. such subordinate Courts as Parliament may by law establish.

 

 

The General Court Martial is not one of the Courts of Judicature. It has no judicial power of Uganda as the Courts of Judicature do have. Article 129 (2) of the Constitution says the Supreme Court, the Court of Appeal and the High Court shall be superior Courts of record and shall each have all the powers of such a Court. The General Court Martial is therefore not a superior Court of record and shall not have all the powers of such a Court. It is not a Court under the Constitution. Under Article 257 (1) "court" means a court of judicature established by or under the authority of this Constitution.

Under Article 139 (1) of the Constitution, the High Court has unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law. The General Court Martial is a creature of the UPDF Act No.7 of 2005. It has unlimited original jurisdiction under this Act. It cannot be compared with the High Court which has unlimited original jurisdiction on all matters.

 

 

The Constitution under Article 208 (1) and (2) provides that: "208. (1) There shall be armed forces to be known as the Uganda People's Defence Force. (2) The Uganda People's Defence Forces shall be non- partisan, national in character, patriotic, professional, disciplined, productive and subordinate to the civilian authority as established under this Constitution."

 

 

Clearly, the High Court is established under the Constitution. The General Court Martial is not a Court under the Constitution. Parliament under Article 210 of the Constitution established it. It is subordinate to the civilian authority as established under this Constitution. The High Court is a Civil Court. It is a civil authority to which the General Court Martial is subordinate. The judiciary has exclusive jurisdiction to determine the civil rights and obligations of Uganda citizens to the exclusion of any special or specialised tribunals, like the General Court Martial, which deals with structures governing Defence Forces. I would answer issue No. 2 in the affirmative.

Issue No.3 is whether section 110 (1) (g) and (h) of the Uganda People's Defence Forces No.7 of 2005 is inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution. Section 119 (1) (g) of the UPDF Act reads: "The following persons shall be subject to military law-

(g) every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence, and

(h) every person found in unlawful possession of-

(i) arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces, or

(ii) other classified stores as prescribed."

 

 

Mr. Lule's contention here is that out of the 23 accused persons, (Rtd) Colonel Dr. Kiiza Besigye and Capt. James Katabazi have a record of service with the UPDF but the rest are civilians. Dr. Besigye, according to counsel, has retired from the UPDF. He is now a civilian. He was not sure whether Capt. James Katabazi is still in active service of the UPDF or has also retired. He pointed out that the charge sheet before the General Court Martial is defective in that it does not link the accused persons with the offences mentioned in (g) and (h) of section 119 (1) of the UPDF Act. In his opinion, the General Court Martial cannot exercise powers to try civilians who are not subject to military law. In his view, trying them before the General Court Martial would be a violation of their rights under Article 28 of the Constitution.

Mr. Lule further submitted that under Article 126 (1), judicial power is derived from the people and shall be exercised by the Courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people. The General Court Martial is not a Court within the meaning of the Constitution. It is a court established by section 197 (2) of the UPDF by virtue of Article 210 of the Constitution. Its functions are to fulfil the conditions provided for in Article 210 of the Constitution, to wit, to discipline members of the UPDF.

 

 

Mr. Tibaruha responded that a person who aids and abets a person subject to military law is triable by the General Court Martial. According to Tibaruha, the UPDF Act aims at providing a legal framework for peace and security in this country. In his opinion, subjecting civilians to military law where they aid or abet persons who are subject to military law does not contravene the Constitution. In his view, this Court should desist from challenging the prerogative power of Parliament on this matter. According to him, the UPDF Act was properly enacted within the mandate of Parliament.

 

 

Generally, any civilian subject to military law for service offences can be tried jointly with any member of the UPDF. In the present case, in order to obtain a conviction under the impugned section 119 (1) (g) of the UPDF Act, the charge sheet must mention who the principal offender is and that principal offender must be subject to the military law for service offences. In that regard, the accused would aid or abet the principal offender failure of which the charge sheet would be defective. The impugned section 119(1) (h) of the UPDF Act, requires proof that arms, ammunition or equipment found in unlawful possession were ordinarily in the monopoly of the Defence Forces or that they were classified stores as prescribed. In the charge sheet the principal offenders subject to military law are lacking and evidence to show that the accused were in unlawful possession of arms, ammunition or equipment, which were ordinarily in the monopoly of the Defence Forces or classified store as prescribed is also lacking. I would answer the issue in the affirmative.

 

 

Issue No.4 is whether the joint trial of civilians and members of the Uganda People's Defence Forces in military Court for offences under the UPDF Act is inconsistent with Articles 28(1), 126(1) and 210 of the Constitution.

 

Mr. Lule contended that a joint trial of civilians and members of the UPDF in a military Court contravene the right to a fair, speedy and public hearing before an independent and impartial Court or tribunal established by law. That it is contrary to the exercise of judicial power and that it contravenes the power of Parliament to regulate the UPDF.

 

Mr. Tibaruha submitted that any person liable to military law who is suspected of having committed a service offence can be lawfully and constitutionally charged before the General Court Martial. He further pointed out that there is no provision in the

Constitution or in any other law, which prohibits joint trial of civilians and members of the UPDF either in the civil Courts or in the General Court Martial. In his opinion, the articles of the Constitution allegedly infringed are clearly not applicable. Civilians who are subject to military law and who are suspected of having committed service offences under the UPDF Act can lawfully be tried in the General Court Martial. He said this could be done either alone or jointly with serving members of the UPDF. Therefore, in his view, it cannot be said that joint trial of civilians before the General Court Martial is contrary to the right to fair trial or that it contravenes the exercise of judicial power.

 

 

Under Article 210 of the Constitution, Parliament is to make laws regulating the UPDF and establish its organs and structure and the recruitment, appointment, promotion, discipline and removal of members of the UPDF. Parliament in enacting the UPDF Act No.7 of 2005 in which civilians and members of the UPDF can be jointly tried by the General Court Martial, in my view, exceeded its mandate. Under Article 129 (1) of the Constitution, the judicial power of Uganda shall be exercised by the Courts of Judicature. The General Court Martial is not one of them. The General Court Martial is established by Parliament under the UPDF Act, and its functions are to fulfil the conditions provided for in Article 210 of the Constitution, to wit, to discipline members of the UPDF. Therefore, joint trial of civilians before the General Court Martial, instead of civil Courts, is contrary to the right to fair trial and contravenes the exercise of judicial power.

Issue No.5: Whether the trial of the accused before the

General Court Martial on a charge of terrorism contravenes Articles 22(1), 28(1) and 126(1) of the Constitution.

 

 

Issue No.6: Whether the trial of the accused for the offence of

terrorism or unlawful possession of firearms before the General Court Martial is inconsistent with Articles 28 (1), 120(1), (3)(b) and (c), 126 (1) and 210 of the Constitution.

 

 

 

 

The counsel for the petitioner and counsel for the respondent argued both issues together and I shall deal with them in the same manner. Mr. Lule, learned counsel for the petitioner, contended that the General Court Martial in charging the accused with the offence of terrorism are acting contrary to the provisions of the UPDF Act. He pointed out that section 197 (2) of the UPDF Act confines the powers of the General Court Martial to cases under that Act. According to him, the Anti-Terrorism Act under which the General Court Martial purports to charge the accused does not fall under the UPDF Act. Section 4 of the Anti-Terrorism Act confers terrorism to ordinary Courts of Uganda and the General Court Martial, which is a specialised Court, is not one of the civil Courts of Uganda.

 

 

Mr. Lule further argued that section 3 of the Anti-Terrorism Act requires consent of the DPP before prosecution of the accused or anybody else. He pointed out that according to the charge before the General Court Martial, consent from the DPP was not obtained and forms were not filled to that effect. Learned counsel further submitted that section 6 of the Anti-Terrorism Act stipulates that the offence of terrorism is triable "only" by the High Court and bail in respect of the offence may be granted "only" by the High Court. In his view, the General Court Martial not being the High Court has no jurisdiction to try the accused or anybody else under the Anti-Terrorism Act. The General Court Martial under section 197 has power to try only cases under the UPDF Act. Therefore, the trial of the accused persons in the General Court Martial with the offence of terrorism whose penalty on conviction is death, and which is solely triable by the High Court, contravenes the above Constitutional provisions.

 

 

Mr. Tibaruha responded that the offence of terrorism under the Anti-Terrorism Act of 2002, is triable by the General Court Martial as long as a person is subject to military law. In his opinion, the offence of terrorism is a service offence under section 2 of the UPDF Act. A service offence is defined "as an offence under the UPDF Act or any other Act for the time being in force, committed by a person while subject to military law." Section 197 (1) of the UPDF Act, makes it a service offence for any person subject to military law, who does or omits to do an act which constitutes an offence under the Penal Code Act or any other enactment.

In respect of Article 22 (1) of the Constitution, Mr. Tibaruha submitted that there is no evidence to show that the accused have been or will be deprived of their lives without there being a lawful sentence confirmed by the Supreme Court. It was his contention that if the General Court Martial found the accused guilty as charged and imposes any sentence, they would be free to appeal, and if the sentence imposed is death, they can go even up to the Supreme Court.

 

 

It was the contention of the petitioner that the charge of terrorism against the accused persons before the General Court Martial contravenes Article 28 (1) namely; the right to a fair hearing. Mr. Tibaruha submitted that this argument is not tenable because the UPDF Act has sufficient provisions that ensure a fair trial.

 

 

Counsel for the petitioner argued that under section 6 of the Anti- Terrorism Act, the offence of terrorism is triable only by the High Court and therefore the trial of the accused by the General Court Martial was a violation of their rights since the offence of terrorism is not a military offence under section 2 of the UPDF Act which provides for offences under the said Act or any Act which in this case is the Anti-Terrorism Act. He further pointed out that under Article 120 (3) (b) of the Constitution the powers of the DPP do not apply to any Court Martial. In his opinion, there was no need for consent, direction or control by the DPP on the matter.

Mr. Lule argued that the charge sheet of the General Court Martial does not indicate that the accused were charged under section 119 (1) (g) and (h) of the UPDF Act, and therefore the General Court Martial has no jurisdiction to try them. Mr. Tibaruha responded that section 119 (1) (g) and (h) provides that any person including civilians who are found in unlawful possession of arms and ammunition ordinarily in the monopoly of the Army are subject to military law. He, however, conceded that this section does not create an offence and a punishment. Therefore, the accused persons cannot be charged under it. They were charged under the Anti-Terrorism Act and the Firearms Act, which legislations create offences of terrorism and unlawful possession of firearms and which prescribe the punishment there under.

 

 

The petitioner also contends that the charges of terrorism before the General Court Martial contravene Article 126 (1), which provides for the exercise of judicial power. Mr. Tibaruha's response was that this article is irrelevant to this issue. He pointed out that there is no evidence that a person has denied any judicial officer or authority from exercising judicial power.

 

 

The petitioner contends that charges of terrorism before the General Court Martial contravenes Article 210 of the Constitution, which gives Parliament power to make laws regulating the UPDF. Mr. Tibaruha says again this article is irrelevant to the issue. There is no evidence, according to him, that the power given to Parliament is contravened by the lawful charges of terrorism brought against the accused.

 

 

It is true to say that any civilians or members of the UPDF who are subject to military law, which is a service offence under section 2 of the UPDF Act an be tried by the General Court Martial. With due respect to Mr. Tibaruha, the offences of terrorism and unlawful possession of firearms are not, in my view, service offences under section 2 of the UPDF Act. Section 197 of the UPDF Act confines the powers of the General Court Martial to cases under that Act. Therefore, the General Court Martial in charging the accused with terrorism under the Anti- Terrorism Act of 2002 and unlawful possession of firearms under the Firearms Act, are acting contrary to the provisions of the UPDF Act. These Acts do no fall within the provisions of the UPDF Act. Therefore, the General Court Martial lacks jurisdiction to try the accused or anybody else under those Acts. In purporting to charge the accused with terrorism and unlawful possession of firearms before the General Court Martial contravenes Articles 28(1) of the Constitution, namely, the right to a fair hearing.

 

 

It follows that under section 6 of the Anti-Terrorism Act, the offence of terrorism is triable only by the High Court and therefore the trial of the accused by the General Court Martial was a violation of their rights since the offence of terrorism is not a military offence under the UPDF Act. It is not a service offence under section 2 of UPDF Act. It is true that under Article 120 (3)

(b) of the Constitution, the powers of the DPP do not apply to any Court Martial. But the offence of terrorism is triable only by the High Court, so any person or authority purporting to charge the accused with terrorism must in the first place get consent of the DPP under section 3 of the Anti-Terrorism Act.

 

 

It is true that any person including civilians who are found in unlawful possession of arms and ammunition ordinarily the monopoly of the Defence Forces are subject to military law as a service offence. The charge sheet before the General Court Martial purporting to charge the accused with unlawful possession of arms and ammunition does not mention that the arms and ammunition allegedly found in their possession were the monopoly of the Defence Forces or classified stores as prescribed. The charge sheet does not also mention the principal offenders whom the accused would aid or abet. In the premises, the General Court Martial has no jurisdiction to try them under section 119 (1) (g) and (h) of the UPDF Act. All in all I would answer issues 5 and 6 in the affirmative.

 

 

In the result, I would allow this petition and make the following declarations.

(a) THAT, the acts of the security personnel, a security agency of the respondent, on the 16th November, 2005 at the High Court of Uganda during and immediately after the grant of the bail application to the accused contravened

Articles 23 (1) and (6) and 128 (1), (2) and (8) of the Constitution.

  1. THAT, the concurrent proceedings in the High Court Criminal Case No. 955/2005 and Criminal Case No. UPDF /GCM/075/05 in the General Court Martial involving the accused contravene Articles 28 (1) and 44 (c) of the Constitution and its effect is inconsistent with Articles 28 (9) and 139 (1) of he Constitution.

  2. THAT, section 119 (1) (g) and (h) of the Uganda People's Defence Forces Act No. 7 of 2005 (hereinafter referred to as "The UPDF Act"), which subjects civilians not employed by or voluntarily or in any other way officially connected with the Uganda People' s Defence Forces to military law and discipline, is inconsistent with Articles 126 (1) and 210 of the Constitution.

  3. THAT, the joint trials of civilians and members of the Defence Forces in military Courts for offences under the UPDF Act is inconsistent with Articles 126 (1) and 210 of the Constitution.

 

  1. THAT, the trial of the accused persons before the General Court Martial constituted under the UPDF Act on a charge of terrorism whose penalty on conviction is death is in contravention of Articles 22 (1) and 126 (1) of the Constitution.

  2. THAT, the act of charging and proceeding to try the accused persons with the offence of terrorism, an offence which is solely triable by the High Court in the General Court Martial under the UPDF Act is inconsistent with the provisions of Articles 28 (1), 126 (1) and 210 of the Constitution.

 

 

As this is a case of public interest, I would decline to award costs. Each party is to bear its own costs.

 

 

Dated at Kampala this 31st day of January 2006.

 

S.G. Engwau
Justice of Appeal/ Constitutional Court.

 

 

JUDGEMENT OF BYAMUGISHA, JA

 

The petitioner who is a body corporate established under the Laws of Uganda (Cap 276) filed the instant petition under Articles 137(3) and 50 of the Constitution seeking the following declarations and orders: (a) That the acts of the Anti-terrorism task force urban hit squad, a security agency of the Respondent, perpetrated on the afternoon of the 16th November, 2005 at the High Court of Uganda during and immediately after the hearing by Mr. Justice Edmund Lugayizi of the bail application of the accused contravened Articles 23(1)(6) and 128(1)(2) of the Constitution. (b)That the concurrent proceedings in High Court criminal case No.955/2005 and criminal case No. UPDF/GCM/075/05 in the General court-martial involving the accused contravenes Articles 28(1) and 44(c) of the Constitution.

(c) That section 119(1)(g) and (h) of the Uganda Peoples Defence Forces Act No.7/05 which subjects civilians not employed by or voluntarily or in any other way officially connected with the Uganda Peoples Defence Forces to military law and discipline, is inconsistent with Articles 126(1) and 210 of the Constitution.

(d)That the joint trials of civilians and members of the Defence Forces in military courts for offences under the UPDF Act is inconsistent with Articles 126(1) and 210 of the Constitution.

  1. That the trial of the accused persons before the General Court Martial constituted under the UPDF Act on a charge of terrorism whose penalty on conviction is death is in contravention of Articles 22(1) and 126(1) of the Constitution.

  2. That the act of charging and proceeding to try the accused persons with the offence of terrorism, an offence which is solely triable by the High Court in the General Court Martial under the UPDF Act is inconsistent with the provisions of Articles 28(1) and 126(1) and 210 of the Constitution.

The facts leading to the institution of the proceedings before us are not in dispute. The persons on whose behalf the petition was filed were charged in the Chief Magistrates' Court with the offences of Treason and Misprision of Treason contrary to sections 23 and 25 of the Penal Code Act. One of them Dr Retired Col. Kiiza Besigye was charged separately with the offence of Rape contrary to section 123 of the same Act.

 

 

They were subsequently committed for trial to the High Court vide Criminal Session case No.955/05. On 16th November 2005 some of the accused persons applied and were granted bail by Lugayizi J. Before they were released, they were arrested within the High Court premises by the UPDF personnel. On 17th November 2005 they were charged before the General Court -Martial with terrorism contrary to section 7(1) and (2) of the Anti-Terrorism Act. The charge sheet contained alternative count of unlawful possession of firearms contrary to section 3(1)(2)(a)(b) of the Firearms Act.

Some of the accused persons are civilians.

 

 

Both parties filed affidavits in support and in opposition to the petition. The only facts in dispute were that there was interference by security personnel with the judicial process.

 

The following were the issues agreed upon for resolution:

  1. Whether the acts of security agents at the premises of the High Court premises on 16th November,2005 contravened articles 23(1)(6), 28(1) and 128(1),2,and (3) of the Constitution.

  2. Whether the concurrent proceedings in the High Court Case No.955/05 and Court martial under UPDF/Gen/075/05 against the accused contravene articles 28(1) and 44(c) of the Constitution and inconsistent with articles 28(9) and 139(1) of the Constitution.

  3. Whether section 119(1) (g) and (h) of the Uganda Peoples Defence Forces Act is inconsistent with articles 28(1), 126(1) and 210 of the Constitution.

  4. Whether the joint trial of civilians and members of the Uganda Peoples Defence Forces in military court for offences under the UPDF Act is inconsistent with articles 28(1), 126(1) and 210 of the Constitution.

  5. Whether the trial of the accused before the General Court martial on a charge of terrorism contravenes articles 22(1), 28(1) and 126(1) of the Constitution.

  6. Whether the trial of the accused for the offences of terrorism before the General court-martial is inconsistent with articles 28(1), 120(1), (3) (b) and (c), 126(1) and 210 of the Constitution.

I shall now deal with the issues in the manner they were framed commencing with issue No. 1.

This issue concerned the events that occurred at the High Court premises on 16th November 2005. It was submitted before us by Mr Lule SC learned counsel for the petitioner that the acts of security men in surrounding the High Court premises and interfering with the release of suspects was meant to intimidate and instill fear in the mind of the judge and other judicial officers to be partial in their judgments. He submitted that the acts contravened Article 28(1). He pointed out that the withdraw of Lugayizi J. from further hearing of Besigye's bail application and the circumstances of Ogoola PJ taking over the case; the views expressed by the Chief Justice when he met members of the bar all indicate compromise of the independence of the judiciary. He pointed out that the judiciary is one of the established constitutional orders and the acts of the task force were meant to take control of the judiciary outside the constitution. He invited us to answer the issue in the affirmative.

 

 

Mr Tibaruha, the Solicitor General for the respondent, supported the acts of the security forces on the day in question. He submitted that there was peaceful entry in the High Court premises. He relied on the affidavit of Major Kagoro Asingura, an Advocate of Courts of Judicature and a prosecutor in the General Court Martial. The affidavit of this witness was

to the effect that there was intelligence information to the effect that terrorists had planned to kidnap the accused persons and take them to unknown places so that they escape the course of justice. He pointed out that the same terrorists had looted shops and burnt cars in the city a few days earlier and the security forces did not want to take any chances. He dismissed the affidavit of Kiyemba Mutale as being hearsay as he deponed to matters that were not within his knowledge. In particular he pointed out that the deponent relied on newspaper reports that quoted His Lordship, the Chief Justice as having condemned the events of that day when he met members of the petitioner.

He further stated that there was no evidence of any member of the judiciary who was intimidated and that the activities of the judiciary continued normally. It was his submission that the events of that day were blown out of proportion by the press.

 

 

The learned Solicitor General defended the acts of the military personnel in re-arresting the accused persons as this was provided for under Article 23(1)(c) of the Constitution. The accused persons were required to appear in the General Court- Martial to answer criminal charges.

 

 

The functions of the Uganda Peoples Defence Forces are set out in Article 209 of the Constitution, which are stated to be inter alia

  1. To preserve and defend the sovereignty and territorial integrity of Uganda;

  2. To co-operate with civilian authority in emergency situations and in cases of natural disasters;

  3. To foster harmony and understanding between the Defence Forces and civilians; and

  4. To engage in productive activities for the development of Uganda.

 

 

When Parliament enacted the Uganda Peoples Defence Forces Act (Act 7/2005) it made provision for the Defence Forces to aid civil authority in emergency situations. Section 42 provides as follows:

 

The Defence Forces, any pari of the Defence Forces, and any officer or militant, are liable to be called out for service in aid of the civil power in any case in which a riot or disturbance of the peace occurs or is, in the opinion of the appropriate civil authority likely to occur, if in the opinion of the appropriate civil authority the riot or disturbance of the peace is likely to be beyond the powers of the civil authority to suppress or prevent". (Underline supplied)

Section 43 gives militants and officers called out to aid civil authority police powers. It provides as follows:

 

"(1) Officers and militants called out for service in aid of the civil power under section 42 shall, without further authority or appointment and without taking any oath of office, have and may exercise, in addition to their powers and duties as officers and militants, all the powers and duties of a police officer.

 

 

(2) Where any officer or militant has been called out for service in aid of the civil power, he or she shall act only as a military force and shall individually be liable to obey the orders of his or her superior officer, who shall exercise his or powers in corroboration with the officer in charge of the civil power".

 

The words " appropriate civil authority" is defined in section 2 of the Act to mean the President, a minister, the Inspector General of Police, a resident district commissioner, or a district police commander. My understanding of these provisions are that whereas it is permissible for members of the Defence Forces to assist civil authority in situations set out in the Constitution and the Act, in order to do so they have to be requested by the appropriate civil authority as set out in the Act. They also have to work in corroboration with the officer in charge of civil authority.

 

 

The affidavit of Major Kagoro Asingura and the submissions of the learned Solicitor General have not come anywhere near satisfying the provisions of the Act and the Constitution. It is the duty of the Police to preserve law and order and protect life and property under Article 212 of the Constitution. For purposes of clarity I shall reproduce some paragraphs from Major Kagoro Asingura's affidavit: Paragraph 4 states as follows:

 

"I know that members of the Uganda People's Defence Forces were on that day deployed at the High Court premises at about the time the accused were granted bail.

Paragraph 5

 

"That I know that the presence of security personnel at the High Court premises was as a result of intelligence reports to the effect that a group of terrorists had planned to rescue the accused soon after release on bail with the intention that they disappear to unknown places to escape the course of justice".

 

There Is nowhere in this affidavit where the witness states that the appropriate civil authority mentioned in the Act requested for aid from the military to assist in the alleged security situation that was likely to occur. He does not state that the head of the civil courts in this country was aware of their presence.

 

 

The military is subordinate to civil authority appointed under the provisions of the Constitution. It does not augur well for the military to carry out an operation in a civil installation without the appropriate civil authority requesting the military for assistance. I do not think that civilians can just enter military barracks or installation without prior knowledge or arrangements being made. What is good for the goose is good for the gander.

 

 

Whereas I cannot dispute the fact that the military had intelligence information as stated in the affidavit, I am not persuaded that the operation

carried out by the military was for the purpose stated in the affidavit of Major Asingura. It would appear that the ultimate purpose was to re- arrest the accused persons and take them to the general court martial where they were charged with other offences.

The acts of the military did interfere with the normal operation of the court and its independence in that the accused persons who had been granted bail were unable to process their bail documentation because of interference by the military. It was, in my view a threatening scenario and it contravened the provisions of article 128 of the Constitution which guarantees the independence of the judiciary and prohibits persons or any authority from interfering with the courts or judicial officers in the exercise of their judicial functions.

 

 

The learned Solicitor General in his submissions referred us to the judgement of Kanyeihamba JSC in the case of Attorney General v Tinyefuza Constitutional Appeal No.1/97 in which the learned justice counseled that courts should refrain reviewing decisions relating to military affairs unless they have to. I agree. The military operations that the learned justice had in mind are those related to purely military matters. But in the instant case, the law under which the military purported to act was flouted. There are clear boundaries laid down in the Constitution and the UPDF Act stating the operations of each arm of

Government. Each arm of government is required to act within its boundaries without interfering with the operations of the other. In the matter before us, the military crossed the boundary without being requested to do so by the appropriate civil authority as the law requires and this court is seized with jurisdiction to inquire. The petitioners complained that the military men that were deployed at the High Court premises interfered with the documentation and release of the accused persons on bail. Indeed it is on record that the military men went to the Criminal Registry and intimidated the sureties who declined to sign the bail forms. Consequently the accused persons were taken back to prison. The complaint is that the people were denied their personal liberty and had to remain in custody. This contravened article 23 (supra) of the Constitution that protects personal liberty. The acts were also an assault on the independence of the judiciary guaranteed by article 128(supra).

 

 

Major Kagoro Asingura in his affidavit and the learned Solicitor General justified the interference with documentation because according to them, the accused persons were required to appear before the General Court Martial to answer other charges. That may as well be true. However, the military had no right whatsoever to interfere with the judicial process of releasing the accused persons on bail.

Having said that however, I was not persuaded by the allegations made in Kiyemba Mutale's supplementary affidavit to the effect that Jugayizi J. declined to hear Dr Besigye's bail application because of the events of 16th November. There was no evidence that the said application was actually allocated to him and he declined to entertain it out of fear. At most what Kiyemba Mutale stated was hearsay. On the evidence that was adduced before us, I am satisfied that the military men who surrounded the High Court were uninvited, they had not been requested by the appropriate civil authority to assist in any way as the law requires. In the process, they interfered with the judicial process of granting the accused persons bail.

I would therefore answer the first issue in the affirmative.

 

 

The second issue concerns concurrent proceedings in the High Court and the General Court -Martial against the accused persons. In his submissions, Mr Lule stated that the existence of the two proceedings in two courts arising out of the same facts contravenes the following rights: 1. The right to a fair hearing as guaranteed by Articles 28(1) and 44(c ) of the Constitution.

  1. The right not to be tried again for another offence for which one has been convicted or acquitted which is guaranteed by Article 28(9) of the Constitution.

  2. The jurisdiction of the High Court established by Article 139(1) of the Constitution.

Learned counsel stated that the High Court as a superior court of record derive its jurisdiction from the Constitution and therefore it is superior to all other courts whose authority are derived from an Act of Parliament. He pointed that the UPDF Act was made under the authority of Article 210 and it established the General Court-Martial as one of the organs of the UPDF. He argued that whereas the High Court has unlimited original jurisdiction in all matters, the General Court-Martial's jurisdiction under section 197(2) is limited to the provisions of the Act. This means, according to Mr Lule, the jurisdictions of the General Court-Martial is confined to the UPDF Act and no further.

He referred to annexture "B" to the petition that is the amended charge sheet from the General Court -Martial, and submitted that the General Court Martial has no jurisdiction to try the offences stated therein. The reasons for saying so are the following:

1. Section 6 of the Anti-Terrorism Act confers jurisdiction over the offences under the Act to the High Court only.

  1. The amended charge sheet does not meet the requirements of section 3 of the Act that require the consent of the Director of Public Prosecutions.

  2. The alternative count under the Firearms Act does not link the offence to the UPDF Act in order to bring it within the jurisdiction of the General Court Martial. In other words, counsel contended that the firearms allegedly found in possession of the accused persons are not shown to being ordinarily the monopoly of the Defence Forces or other classified stores.

 

 

He further submitted that the above offences are not service offences and therefore the General Court-Martial has no jurisdiction over them. He stated that apart from Katabazi, who is described as a Captain, the rest of the accused persons are civilians who are not subject to military law. It was his contention that a person who is charged with a criminal offence has a right to be tried by a competent and impartial court or tribunal and to be tried by an incompetent court infringes the right to a fair and impartial hearing.

 

 

Mr Lule further argued that the offences of terrorism and unlawful possession of firearms arose from the same facts as treason and misprison of treason and therefore essentially the same. He claimed that the accused

persons would suffer double jeorpady if they were to be tried convicted and sentenced by the two courts for similar offences. This, according to him would be inconsistent with article 28(9)(supra). He cited the case of Tumushabe v Attorney General, Constitutional Petition No.6/04 in which this Court held by a majority of 4 to 1 to the effect that the General Court Martial is subordinate to the High Court and therefore it cannot have concurrent jurisdiction with the High Court.

 

 

In reply, Mr Tibaruha, learned Solicitor General, defended the existence of the proceedings in the two courts. He defended the decision of Government to charge the accused persons in the two courts because they have concurrent jurisdiction. He also stated that the offences are different. He, however conceded that they arose from the same or similar facts but contended that it was lawful to charge the accused persons as this does not contravene the provisions of the Constitution cited by Mr Lule.

 

 

The learned Solicitor General contended that the General Court-Martial has jurisdiction to try the accused persons because they are subject to military law and they committed service offences. He claimed that terrorism and unlawful possession of firearms are service offences under section 2 of the UPDF Act. This section defines a service offence to mean

"an offence under the Act or any other Act for the time being in force, committed by a person while subject to military law".

 

He contended that the High Court and the General Court-Martial have concurrent jurisdiction although they belong to different court systems. The High Court is one of the Courts of judicature established under the Constitution while the General Court -Martial was established under an Act of Parliament as one of the organs of UPDF to administer military justice.

On the Tumushabe case (supra) he contended that it was wrongly decided since the decision was not based on the issues framed at the trial. He invited us to answer the second issue in the affirmative.

 

 

There is no dispute on the facts as pleaded and submitted on by both counsel that the accused persons are facing concurrent criminal proceedings before the High Court and the General Court -Martial. The charges before the High Court are treason and misprison of treason. The charges in the General Court -Martial are terrorism and unlawful possession of firearms. In principle there is nothing illegal or unconstitutional in charging a person in different courts with criminal offences concurrently if the said courts are seized with jurisdiction. If the offences arise out of the same facts and transactions, the accused person ought to face those charges in one court.

In the matter now before us, the complaint of the petitioner as I understand is that the accused persons are facing charges in different courts that are based and arise out of similar facts. I have perused the indictment filed by the Director of Public Prosecutions in respect of the offences in the High Court. I have also perused the amended charge sheet in respect of offences in the General Court -Martial. They both appear to be based on similar facts or arise out of similar transactions. The Director of Public Prosecutions having preferred charges against the accused persons in the exercise of his powers under the Constitution, in my humble opinion, the military ought to have respected that decision. Secondly it is not healthy for efficient administration of Government to see government department competing with each other. Thirdly the accused persons themselves are incapacitated in the preparation of their defences as they have to appear before different courts. Fourthly, they may end up being punished twice. The charging of the accused persons in the General Court -Martial was, in my view, malafide.

 

 

I do not agree with the submission of the learned Solicitor General that terrorism and unlawful possession of firearms are service offences under the UPDF Act and therefore triable by the General Court -Martial. His interpretation of a service offence contained in section2 (supra) is, with

respect wrong. The section does not confer jurisdiction to military courts to try every offence under any other statute committed by persons subject to military. The jurisdiction of the military courts is confined to offences created by the UPDF Act. The expression "any other enactment" would in my view refer to other statutes that would create a service offence and confer jurisdiction to military courts to try that offence. It is wrong for a court to confer jurisdiction on itself. The jurisdiction of the General Court-Martial is unlimited and original. But it is confined to offences committed under the provisions of the Act by persons subject to military law. In the instant case, it is not clear to me whether the accused persons objected to the jurisdiction of the General Court Martial to try them and whether the Charge sheet was based on similar facts to the offences in the High Court. This could have been done under rule 34(1) of the Armed Forces (Rules of Procedure) Regulations S.I.No.32/69. But in view of the spirited defence put up by the learned Solicitor General and the affidavits of Ms Rwakojo, a Principal State Attorney, in the Chambers of the respondent and Major Kagoro Asingura, it is obvious what the ruling of the court would have been. All the same, objections ought to have been raised in the General Court-Martial about the concurrency of the proceedings and its jurisdiction to try them.

The existence of concurrent criminal proceedings in the High Court and the General Court-Martial contravenes the right to a fair hearing before an independent and impartial tribunal. A court that has no jurisdiction cannot be said to accord an accused person a fair trial. On double jeopardy, I have already referred to the particulars of the indictment in the High Court and the particulars of the Charge sheet in the General Court Martial. Both allege that the acts by the accused were committed in and outside Uganda. The purposes of the said acts were to advance a political aim or purpose. It also alleged that they acquired arms and ammunitions. They were apparently found in possession of these arms. The possibility of the accused being convicted in both courts cannot be ruled out. They will therefore be punished twice for offences arising out of the same facts. The provisions of Article 28(9)(supra) were enacted to prevent that scenario.

Accordingly, I would answer the second issue in the affirmative.

 

 

I shall deal with the third and 4th issues together as they both deal with the trial of civilians in military courts. The petitioner is challenging the provisions of section 119(1)(g) and (h) of the UPDF Act as being inconsistent with Articles 28(1), 126(1) and 210 of the Constitution. The section provides for persons who are subject to military law. For purposes of this petition, the provision states as follows:

"(1) The following persons shall be subject to military law

 

(a)

(b)

(c)

(d)

(e)

(f)

(g) every person, not otherwise military, who aids and abets a person subject to military law in the commission of a service offence;and

 

(h)every person found in unlawful possession of-

(i) arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or (ii) other classified stores as prescribed."

In submitting on the above issues Mr Lule stated that one cannot be tried under military law unless one is a member of UPDF or a civilian working for the armed forces. Anyone who does not fall under the above category must have aided and abetted. He contended that there must be a principal offender who is subject to military law and this is an important ingredient of the offence. The charge sheet must allege that there is someone who is subject to military law who committed a service offence and if there is no such allegation, the General Court- Martial has no jurisdiction over the charge.

 

Learned counsel further submitted that Parliament conferred the power exercised by the General Court-Martial acting under Article 210 and it must have been careful not confer greater jurisdiction than was necessary. He contended that Parliament did not ordain that people who are not in any way connected with the Defence Forces be tried by the General Court-Martial and that is why they were clear in defining those who can be tried by the court-martial. He pointed out that the accused did not commit the alleged offences in the circumstances stated under section 119(1)(g) and (h) and therefore they cannot be tried by the General Court- Martial.

 

 

In reply, Mr Tibaruha, submitted that the provisions of the impugned section are consistent with the articles in the Constitution cited by the petitioner. He agreed with Mr Lule that the section subjects persons who aids or abets in any way a person subject to military law in the commission of a service offence and those who are found in possession of military weapons.

 

 

He further stated that military law is a special law that is aimed at providing a legal framework for peace and security. He again cited the decision of the Supreme Court in the case of Attorney General v Tinyefuza (supra). Mulenga JSC at page 38 commented thus on military law:

 

"A special package of laws designed to ensure proper command and administration of, and discipline in the army in the interest of national security".

 

Kanyeihamba JSC on his part said:

"The armed forces are instruments of state, equipped, disciplined and trained to exercise physical force in the interest of the State".

He emphasized that military laws are designed especially in the interest of national security and the provisions of the section being challenged were enacted for that purpose.

He dismissed the fears expressed by the petitioners to the effect that civilians who are tried in the military courts do not get a fair trial as guaranteed under the Constitution. He stated that the UPDF Act contains sufficient provisions that guarantee a fair trial.

Mr Tibaruha also found comfort in the Manual For Courts Martial of the United States, 1995 Edition at page 10-11 where it is stated that

 

"an act or omission which violates both the US Army Code and local criminal law may be tried by a court martial or by a proper civilian tribunal, or both. It is constitutionally permissible to try a person by Court Martial and by s State Court for the same act".

 

The same Manual lists classes of persons who are subject to the Code and the list includes civilians. Mr Tibaruha concluded by stating that it is lawful even in democratic societies to subject any person to military law who aids or abets in the commission of a service offence or is found in possession of arms, ammunitions etc that are a monopoly of the military. He invited us to answer the issue in the negative.

I think there in no much debate under the law as it stands to day that it permissible to subject certain categories of civilians to military law. The provisions of section 119 were intended to cater for that. As both counsel submitted, quite rightly in my view, that is subject to military law are the following:

  1. Every person not otherwise subject to military law who is serving in the position of an officer or militant of any force raised and maintained outside Uganda and commanded by an officer of the Defence Forces.

  2. Every person, not otherwise subject to military law, who voluntarily accompanies any unit or other element of the Defence Forces that is on service in any place.

  3. Every person, not otherwise subject to military law, while serving with the Defence Forces under an engagement by which he or she has agreed to be subject to military law.

  4. Every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence; and

  5. Every person found in unlawful possession of_

(i) arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces, or

(ii) other classified stores prescribed.

The provisions of section 119 permit the trial of civilians who are categorized in its provisions. This means that any other civilian who is arrested and charged in any military court and who does not fall in the categories stated above has a right to challenge the jurisdiction of the court -martial to try him before pleading to any charge brought against him or her. The challenge can be on the offence charged or the jurisdiction or both.

 

 

The accused persons, on whose behalf the instant petition was filed except one, are civilians. They were charged as principal offenders. To be charged as principal offenders with a service offence, it has to be shown that the civilians fall under category (d), (e) or (f) of section 119. If they do not fall under the mentioned category, the charge sheet ought to mention that they aided or abetted a person subject to military law to ; commit a service offence.

 

 

As for unlawful possession of arms, ammunition or equipment ordinary being a monopoly of the Defence Forces or classified stores, these do not fall under the provisions of the Firearms Act. There is no law on our statute books and counsel cited none to us providing for arms, ammunition or equipment being a monopoly of the Defence Forces. In

the absence of such law, the military ought not to resort to the Firearms Act as a substitute to charge civilians who are found in unlawful possession of firearms without a license. I am sure Parliament had a different intention when it enacted clause (h) in the Act. I also think that Parliament did not ordain military courts to try any offence in the statute books that have been committed by persons who are subject to military. It was careful when it limited the jurisdiction of military courts to try offences committed under the provisions of the UPDF Act. Therefore, civilians who do not fall under the categories stated in the Act are not liable to be tried by military courts because Parliament did not intend them to so tried.

 

 

The Constitution ordained civil courts with jurisdiction for the protection of human and civil rights for both civilians and members of the Defence Forces who are charged with criminal offences. The jurisdiction of military courts should not be invoked, except for the purpose of maintaining or enforcing discipline in the forces. Therefore proceedings may be brought against a member of the Defence Forces or a civilian for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. I think the military as a disciplined and professional force ought to refrain from causing unnecessary excitement and stampede

in some sections of society by appearing to act or acting as if it is a law unto itself. The law and procedures under which military courts operate ought to be adhered to. They should refrain from encroaching on jurisdiction that ought to be exercised exclusively by civil courts. As a result members of the Defence Forces should not lose the protection to which they are entitled by the practice and procedures of civil courts, especially the right to trial by assessors.

 

 

Having said that, I accept the submission of both counsel that civilians who find themselves under the categories stated in the Act are liable to be charged and tried in military courts. There is nothing illegal or unconstitutional per se about it. The charge sheet that was exhibited in the instant petition purporting to charge the civilians with unlawful possession of firearms did not mention that the said arms were exclusively for the monopoly of the Defence Forces or classified stores as prescribed. The section itself does not create any offence under the Act. Consequently any trial before the General Court-Martial would violate their rights under the Constitution. I would allow the issues in part.

 

 

The 5th issue concerns the trial of the accused persons before the General court-martial on charges of terrorism. The complaint is that the trial contravenes articles 22(1), 28(1) and 126(1) of the Constitution. In order to resolve this issue regard must be had to the provisions of the Anti- Terrorism Act (Act 14/2002). The second point to consider is jurisdiction. It is well established that jurisdiction is a creature of statute. No court or tribunal can confer jurisdiction upon itself and any proceedings conducted by such a court or tribunal is a nullity. The jurisdiction of the General court-martial is created by section 197(2) of the UPDF Act. The section states as follows:

 

"The General Court Martial shall have unlimited original jurisdiction under this Act and shall hear and determine all appeals referred to it from decisions of Division Courts Martial and Unit Disciplinary Committees".

 

 

The provision of this section limits the jurisdiction of the General Court martial to try offences committed by persons subject to military law under the Act and no more. However, offences that are committed by people subject to military law that are not included in the UPDF Act are triable by ordinary civil courts. In the case of the offence of terrorism, section 3 of the Anti-Terrorism Act provides as follows:

 

"No person shall be prosecuted for an offence under this Act except with the consent of the Director of Public Prosecutions."

Section 4(1) of the same Act gives courts in Uganda jurisdiction to try any offence prescribed by the Act, whenever they are committed. Section 6 states as follows:

 

"The offence of terrorism and any other offence punishable by more than ten years imprisonment under this Act are triable only by the High

Court and bail in respect of those offences may be granted only by the High Court".

The combined effect of these provisions as I understand them, is that jurisdiction to try offences of terrorism is conferred on courts in Uganda. The offence of terrorism that carries a sentence of more than ten years is triable exclusively by the High Court.

Article 120 (3)(b) of the Constitution spells out the functions of the Director of Public Prosecutions, which are to institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court martial.

This means that the Director of Public Prosecutions has no business to do with the any court martial in as far as institutions of criminal proceedings are concerned. Since no person can be prosecuted for an offence under the Anti- Terrorism Act without the consent of the Director of Public Prosecutions, it goes without saying that the General Court Martial has no jurisdiction to try any offence under the Act. Since the Director of Public Prosecutions cannot consent to the charge. More importantly jurisdiction is specifically conferred on courts of Uganda under section 4(1). The word "court" is defined in Article 257(1) of the Constitution to mean a court of judicature established by or under the authority of the Constitution

Article 129(1) provides for judicial power to be exercised by the Courts of Judicature to consist of

  1. the Supreme Court of Uganda;

  2. the Court of Appeal of Uganda;

  3. the High Court of Uganda;

  4. such subordinate courts as Parliament may by law establish, including Qadhis' courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament.

(2) The Supreme Court, the Court of Appeal and the High Court of Uganda are superior courts of record and each has the powers of such a court.

The word "subordinate court" is defined to mean a court subordinate to the High Court. This means Parliament cannot create a court higher than the High Court under the provision of the article.

 

 

Is the General Court-Martial a "court" within the meaning of the Constitution? In order to answer this question, regard must be had to the provisions of the Constitution under which it was established. Whereas Parliament was empowered to establish subordinate courts under article 129(1)(d), the General Court Martial was established under an Act of Parliament enacted to operationlise Article 210 of the Constitution. This article mandated Parliament to make laws regulating the Uganda Peoples' Defence Forces and in particular, providing for-

  1. the organs and structures of Uganda Peoples' Defence Forces

  2. recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples' Defence Forces and ensuring that members of the Uganda Peoples' Defence Forces are recruited from every district of Uganda;

  3. terms and conditions of service of members of the Uganda Peoples' Defence Forces; and

  4. the deployment of troops outside Uganda.

 

 

It is clear at least to me that the mandate given to Parliament under the above article was to enact a law along the guidelines stated above. Therefore, the different layers of military courts that were established under the Act were intended to carry out disciplinary functions under the Act but they are not courts as defined under the Constitution.

 

 

I am aware of two decisions of this court in which it was held that the court martial martials are competent courts and they are subordinate to the High Court. The first decision is the case of Uganda Law Society &another v Attorney General -Constitutional Application No.7/2003. The brief facts were that the applicants filed two constitutional petitions

challenging the constitutionality of certain sections of the now repealed UPDF Act. Before the petition was heard, they filed an application in which they sought to stop the operation of section 92 of the Act until the hearing and determination of the petitions. The main complaint in the petitions and the application was that the death sentenced that had been imposed by the Field Court- Martial was going to be carried out before the same is confirmed by the Supreme Court pursuant to Article 22(1) of the Constitution. At page 14 of the ruling this Court said:

 

"In our view a Field Court Martial is one of the subordinate courts established by Parliament by virtue of S. 77 (1) of the NRA Statute. It is therefore one of the Courts of Judicature and consequently it is a court of competent jurisdiction as envisaged in article 22(1) of the Constitution ".

The second decision is Joseph Tumushabe v Attorney General Constitutional Petition No.6/2004. The petition was filed by a human rights activist on behalf of a number of people who were arrested and charged in the General Court- Martial with the offence of treason. They were neither tried nor granted bail. After spending a period exceeding 360 days in custody, Joseph Tumushabe filed the petition challenging their continued detention. He contended that they were entitled to bail under article 23(6)(b) and (c) of the Constitution like anyone else who is charged with a capital offence triable by the High Court.

 

 

In its decision, this Court by majority of 4 to 1 held that the General court-martial was a court subordinate to the High Court. In the lead judgement by Twinomujuni JA at page 9 of the judgement said:

"The word "court" is defined in article 257 to mean "A Court of judicature established by or under the authority of this Constitution."

 

Article 79(1) provides:

 

"Subject to this Constitution, Parliament shall have power to make laws on any matter for the peace, order, development and good governance of Uganda".

 

There is no doubt that the Uganda Peoples Defence Forces Act that provides for the General court-martial is deemed to have been made under the authority of the Constitution. The word "court" therefore includes the General court-martial. The Constitution does not except the General court-martial from the provisions of chapter four in general or article 23 in particular".

The learned justice concluded by holding that the General Court Martial is a subordinate court to the High Court.

In my dissenting judgment I set out the definitions of the words "court" and "subordinate to the High Court" as used in the various Articles of the Constitution and concluded that the General Court Martial was not a court subordinate to the High Court within the meaning of the Constitution. I still hold the same view. The expression "subordinate court" as used in the Constitution appears in Articles 23, 129(1)(d), 142(1) and 257. Article 138(2) spells out the appellate jurisdiction of the High Court. It states as follows:

"Subject to the provisions of this Constitution and any other law, the decisions of any court lower than the High Court shall be appeallable to the High Court", (emphasis added.)

Section 16 of the Judicature Act gives jurisdiction to the High Court to hear and determine appeals-

"Which lie to it by virtue of any enactment from decisions of magistrates courts and other subordinate courts in the exercise of their original or appellate jurisdiction".

 

The expressions "any court lower" and "other subordinate courts" are wide enough to encompass the General Court -Martial as a subordinate court because it exercises original and appellate jurisdiction. But the framers of the Constitution did not intend military courts to be courts within the meaning of the Constitution.

 

 

The Constitution establishes three arms of Government. The military belongs to the executive arm of Government. In fact it is the cohesive arm of Government. The courts that are established under the Constitution and under its authority are supposed to exercise judicial power, to be independent, impartial and not to be under the direction of anybody or authority in the discharge of their duties. On the other hand, military courts operate under a chain of command, they are ad hoc. They are convened to try service offences committed against military discipline by persons who are subject to military law. To bring such courts under the

meaning of the words "court " or "subordinate to the High Court" as defined in the Constitution would defeat the purpose for which those expressions were meant to convey under the Constitution.

 

 

I would conclude by saying that the General Court-Martial is not a court subordinate to the High Court within the meaning of the Constitution. It has no jurisdiction to try the offence of terrorism as this was reserved for the High Court only. The same applies to offences under the Firearms Act. The General court-martial's jurisdiction is confined to the provisions of the Act.

The fifth issue would be answered in the affirmative. As for issue No.6 I think it has been largely dealt with when dealing with the last issue I would therefore answer it in the affirmative.

 

 

In view of my findings, this petition would partly succeed. The following declarations would be made:

  1. The acts of the Anti- terrorism task force hit squad at the premises of the High Court on 16th November 2005 contravened Articles 23(1) and (6), 28(1) and 128(1)(2)(3) of the Constitution.

  2. The concurrent proceedings before the High Court and the General Court-Martial involving the persons on whose behalf the petition was filed contravenes Articles 28(1)(9) and 44(c ) of the Constitution. The

General Court -Martial is not subordinate to the High Court within the meaning of the Constitution.

  1. The provisions of section 119(1)(g)(h) of the UPDF Act are not inconsistent with Articles 28(1) and 210 of the Constitution.

  2. The trial of civilians with members of the UPDF for offences under the UPDF Act is not inconsistent with articles 28(1),126(1) and 210 of the Constitution.

  3. The trial of the accused person in the General Court- Martial on charges of terrorism contravenes articles 22(1), 28(1) and 126(1) of the Constitution.

  4. The trial of the accused persons for offences of terrorism and unlawful possession of firearms in the General Court-Martial is inconsistent with and contravenes Articles 28(1), 126(1),and 210 of the Constitution.

 

 

In the result, I would partly allow the petition. Each party to bear its own costs.

Dated at Kampala this 31st day of January 2006.

 

C.K. Byamugisha

Justice of the Constitutional Court

 

 

JUDGMENT OF S.B.K. KAVUMA, JA

This petition is brought by the Uganda Law Society, (hereinafter referred as the petitioner). The petitioner is established by the Uganda Law Society Act Cap 276 of the Laws of Uganda as a body corporate with power to sue and be sued in its corporate name. The Petition is brought under Articles 137 (3) and 50 (1) and (2) of the Constitution of the Republic of Uganda. The petitioner challenges the Constitutionality and of: -

  1. the acts of the Anti Terrorism Task Force Urban Hit Squad, a security agency of the Respondent, perpetrated on the afternoon of the 16th November, 2005 at the High Court of Uganda during and immediately after the hearing by Mr. Justice Edmund Lugayizi of the bail application of the Accused contravened Articles 23(1) 7 (6) and 128(1) & (2) of the Constitution.

  2. the concurrent proceedings in High Court Criminal Case No. 955/2005 and Criminal Case No. UPDF/GCM/075/05 in the General Court Martial involving the accused contravenes Articles 28(1) and 44(c) of the Constitution and its effect is inconsistent with Articles 28(9) and 139(1) of the Constitution.

  3. section 119(1)(g) & (h) of the Uganda Peoples Defence Forces Act No. 7 of 2005 (hereinafter referred to as "The UPDF Act"), which subjects civilians not employed by or voluntarily or in any other way officially connected with the Uganda Peoples Defence Forces to military law and discipline, is inconsistent with Articles 126(1) and 210 of the Constitution.

  1. the joint trials of civilians and members of the Defence Forces in military courts for offences under the UPDF Act is inconsistent with Articles 126(1) and 210 of the Constitution.

  2. the trial of the accused persons before the General Court Martial constituted under the UPDF Act on a charge of terrorism whose penalty on conviction is death is in contravention of Articles 22(1) and 126(1) of the Constitution.

  3. the act of charging and proceeding to try the accused persons with the offence of terrorism, an offence which is solely triable by the High Court in the General Court Martial under the UPDF Act is inconsistent with the provisions of Articles 28(1) and 126(1) and 210 of the Constitution.

 

 

(2). The Petitioner prayed that this Honourable Court may: -

  1. Grant the declarations prayed for in paragraphs (a), (b), (c), (d) (e) and (f)

  2. Grant orders that all and any proceedings against the accused in the General Court Martial cease forthwith.

  3. Order the respondent to pay costs of this petition.

The petition is supported by an affidavit sworn to by Mr. Kiyemba Mutale on the 6th/12/2005, a supplementary affidavit deponed to by the same person on the 16/12/2005 and both affidavits have annextures.

The respondent in his answer to the petition denied all the allegations contained in the petition. The respondent's answer is supported by affidavits and supplementary affidavits sworn to by Ms Robinah Rwakoojo a Principal State Attorney in the Attorney General's Chambers and Major Kagoro Asingura, an advocate of the Courts of Judicature and a prosecutor at the General Court Martial.

 

 

At the hearing of the petition, the petitioner was represented by a team of advocates lead by Mr. G.S. Lule Senior Counsel (Sc). He appeared with Mr. Peter Mulira, Mr. Medard Lubega and Mr. David Mpanga. The Attorney General, (hereinafter referred to as the respondent), was represented by Mr. Lucian Tibaruha, the Solicitor General assisted by Mr. Joseph Matsiko, the Acting Director of Civil Litigation at the respondent's Chambers and Mr. Philip Mwaka, a Senior State Attorney at the same chambers.

The brief back ground to this petition is that Col. (Rtd) Dr. Kiiza Besigye and 22 others accused persons, (hereinafter collectively called the accused,) were charged in the Chief Magistrates Court at Buganda Road with offences of treason and misprison of treason in Criminal Case No. 955 of 2005. Some of the accused were granted bail by the High Court on the 16th November 2005 but before they left the court premises, they were, through the deployment of a unit of the UPDF, arrested and returned to Luzira prison. On the 17th/11/2005 they were taken before the General Court Martial (hereinafter referred to as the GCM) and charged with terrorism and unlawful possession of firearms. Some of the accused are civilians. The petitioner brings the petition under public litigation.

 

 

At a scheduling conference inter-parties before Court on the 14th/12/2005, the following issues were framed and agreed: -

 

 

Issue No. 1. Whether the acts of security agents at the premises of the High Court on the 16th November, 2005 contravened Articles 23 (1) and (6), 28 (1) and 128 (1) (2) (3) of the Constitution.

 

 

Issue No. 2 - Whether the concurrent proceedings in the High Court case No. 955/2005 and Court Case No. UPDF/Gen/075/05 in the General Court Martial against the accused contravened Articles

28 (1) and 44 (c ) of the Constitution and inconsistent with Articles 28 (9) and 139 (1) of the Constitution.

 

 

Issue No. 3 Whether Section 119 (1)(g) and (h) of the UPDF Act is inconsistent with articles 28(1), 126(1) and 210 of the Constitution.

 

 

Issue No. 4 - Whether the joint trial of civilians and members of the UPDF in military court for offences under the UPDF Act is inconsistent with articles 28(1), 126(1) and 210 of the Constitution.

 

 

Issue 5: Whether the trial of the accused before the General Court Martial on a charge of terrorism contravenes Article 22(1), 28(1) and 126(1) of the Constitution.

 

 

Issue 6: Whether the trial of the Accused for the offence of terrorism before the General Court Martial is inconsistent with articles 28 (1), 120 (i), (3)(b) and (c), 126(1) and 210 of the Constitution.

 

Some of the principles of constitutional interpretation that will guide me in the task before me include the following: -

(1) It is now accepted that the principles which govern the construction of statutes also apply to the interpretation of

constitutional provisions. (The Republic vs EL manu (1969) EA 357).

  1. The widest construction possible, in its context, should be given according to the ordinary meaning of the words used.

  2. The entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, the rule of completeness and exhaustiveness and the rule of paramountancy of the written Constitution. (Paul K. Ssemogerere and 2 others vs A.G Const. Appeal No. 1 of 2002.)

  3. All provisions bearing on a particular issue should be considered together to give effect to the purpose of the instrument (South Dakota vs North Carolina, 192, US 268 (1940) LED 448.)

  4. The words of the written Constitution prevail over all unwritten conventions, precedents and practices. .

  5. Decisions from foreign jurisdictions with similar constitutional provisions as ours are a useful guide in the interpretation of our own Constitution.

  6. Both purpose and affect are relevant to determine the constitutional validity of a legislation or constitutional provision (Att. Gen. Vs. S. Abuki, Constitutional Appeal No. 1 of 1995.)

(8) Article 126 (1) of the Constitution of the Republic of Uganda enjoins courts in this country to exercise judicial power in conformity with law and with the values, norms and aspirations of the people

Bearing the above principles in mind, I will now proceed to consider the above issues. I will deal with issues 1 and 2 separately, 3 and 4 together and 5 and 6 together.

 

Issue No. 1. Whether the acts of security agents at the premises of the High Court on the 16th November, 2005 contravened Articles 23 (1) and (6), 28 (1) and 128 (1) (2) (3) of the Constitution.

 

Submitting on this issue, Mr. Lule(Sc) submitted that by reason of the events of the 16th November at the High Court when State security agents were deployed there, His Lordship Justice E.S. Lugayizi declined to further hear the accused's case. The Lord Chief Justice and His Lordship the Principal Judge condemned the events as interference in the exercise of judicial power. "Counsel contended that the acts of the security agents deployed were calculated to intimidate and instil fear in the minds of the Judges and other judicial officers, to induce them to be partial and to feel dependent on the State for their positions. According to him, this was a warning that if they did not enter favourable judgment, they would be dealt with. Counsel contended that those acts contravened Article 28 (1) and would compromise the judicial officers' independence and that of the judiciary. Learned counsel submitted further that the reaction of His Lordship Lugayizi J., His Lordship the Principal Judge and the Lord Chief Justice following those events shows clearly that the courts did not require the assistance of the State agents.

 

 

Article 3 of the Constitution, Counsel argued, prohibits the taking of control of the government of Uganda unconstitutionally. The Judiciary is part of the established constitutional order and the acts of these state agents had the effect of subverting that order. The Law Society brought this action in the spirit of resisting subversion of the constitutional order. The petitioner relied on the affidavits sworn by Mr. Kiyemba Mutale.

 

 

The learned Solicitor General did not agree. Basing himself on the affidavit of Major Kagoro Asingura sworn on the 16th November 2005, he submitted that the UPDF decided to deploy at the premises of the High Court purely for security reasons and to ensure that the accused were not rescued and made to disappear from the course of justice. He submitted further that Court should not subject the decision to deploy and the military deployment to judicial review. In the alternative, but without prejudice to the above submissions, the learned Solicitor General submitted that even if the Court were to hold that it should investigate the said military activities, which he did not concede, there were no acts committed by the security agents at the premises of the High Court that contravened Articles 23 (1) and (6), 28 (1), 128 (1), (2) and (3) of the Constitution. The Solicitor General contended that the acts were aimed at arresting persons that were reasonably suspected of having committed criminal offences. He pointed out that the evidence of Mr. Kiyemba Mutale in his two affidavits in support of the petition was, in so far as it related to the acts complained of, hearsay and inadmissible.

 

I have carefully considered the submissions of both counsel. I have also carefully studied the evidence on record.

 

 

I accept the submission of the learned Solicitor General based on the unchallenged affidavit of Major Kagoro Asingura that the deployment of a unit of the UPDF at the High Court and the acts undertaken thereunder on the 16.11.2005 were first and foremost for security reasons based on intelligence information available to those responsible for the security of this country and secondly for ensuring that the accused did not disappear from the course of justice.

 

 

The decision to deploy the UPDF at the High Court that day and the acts that accompanied it are certainly a matter that lies within the province of the executive authority of this country which Article 99 of the Constitution vests in the President.

It provides: -

"99(1)The executive authority of Uganda is vested in the President and shall be exercised in accordance with this Constitution and the laws of Uganda.

  1. ....

  2. ...

  3. Subject to the provisions of this Constitution, the functions conferred on the President by clause (1) of this article may be exercised by the President either directly or through officers subordinate to the President

  4. ...

By virtue of Article 98(1) the President is also the Commander in Chief of the UPDF. The Article provides -

"98(1) There shall be a President of Uganda who shall be the Head of State, Head of Government and Commander-in-Chief of the Uganda Peoples' Defence Forces and the Fountain of Honour." I accept the Solicitor General's submission that the deployment and the acts of those deployed should not be subjected to judicial review. I find the case of The Attorney General Vs Major General David Tinyefuza, Constitutional Appeal No. 1 of 1997 especially the words of His Lordship Kanyeihamba JSC at pages 37 to 38 very instructive.

His Lordship stated -

"the armed forces are instruments of state, equipped, disciplined and trained to exercise physical force in the interest of the state". They are subject to both civilian and military law in the manner conceded by Counsel for both parties. The discretion and judgment on military affairs and personnel are vested in the President as Chief Executive who also happens to be the repository of constitutional and legal powers relating to the same subject matter. Courts should refrain from reviewing decisions relating to military affairs unless they have to. The exercise of judicial power must be within proper bounds and should fall short to the point beyond which it might be considered as an intrusion in the powers of the co-ordinate branches, namely, the Legislature and the Executive. The Constitution has empowered Parliament and not the Judiciary, to supervise the executive when the latter is exercising its functions in military operations."

I find the above very relevant and conclusive on this matter. It is also instructive and binding and would fully disposes of this issue. However, before taking leave of the same I wish to address my mind to two points I consider important.

 

 

It was submitted for the petitioner that the assistance by the UPDF unit that participated in the operation at the High Court on the 11th November 2005 was neither necessary nor requested for. It is also contended that the authorities at the High Court should have been alerted about the operation before hand. I do not agree. It is not always necessary or practicable to do so. This being a security matter, the dictates of the nature of the intelligence information available to the Executive and the nature of the operation called for in the circumstances must have, understandably, rendered it impracticable for such advance information to be divulged to the authorities. I take judicial notice of the fact that many times intelligence information regarding security operations and the decision to conduct them and indeed the reasons for such operations are matters treated with extreme confidentiality and secrecy in the interest of national defence and security. Section 130 of the UPDF Act is illuminative of this view. It provides - "130

(1) A person subject to military law who -

 

  1. discloses by word of mouth or by document, confidential information to the enemy or to unauthorized members of the Defence Forces or the public;

  2. talks about or discusses any confidential information in unauthorized places or with authorized persons within hearing distance of unauthorized persons;

 

  1.  

  2.  

(e)

(f) does or omits to do anything with intent to prejudice the security of the Defence Forces or forces co-operating with the Defence Forces, commits an offence and is, on conviction liable to suffer death.

 

 

(2) For the purposes of this section