Prosecutors fight back after Besigye lawyers ask them to refer case to Constitutional Court

Kampala, Uganda | THE INDEPENDENT | The Army Prosecutors in the trial of Col. Dr. Kizza Besigye and two others have objected to a request for a constitutional reference, arguing that the General Court Martial has the jurisdiction to try the case.

Besigye’s lawyers Martha Karua, Frederick Mpanga and Erias Lukwago want the Constitutional Court to address the issue of impartiality and independence of the UPDF Court Martial because it investigates, and tries accused persons.

They wonder how can one be a Judge in their cause when offences reportedly committed are against the defence forces when the very defence forces are again trying the case.  They say it’s better for impartiality reasons, the case moves away from the General Court Martial.

They also want the Constitutional Court to interpret a question arising from Section 208 whether it is contrary to the Constitutional Provisions that say Parliament has powers to set boundaries outside Uganda.

They talked about the Huma Rights Enforcement Act saying that when the derogation of rights is brought to the attention of the Court, the Court is supposed to declare the trial a nullity.

He said if the Court Martial tries civilians, they are committing offences against the civil courts to which they are supposed to be subordinate.

Defence lawyer Mpanga said the first question was about the uncertainty of the offence and said for instance when someone is standing on the road,  and decides to cross the road, by doing so he or she is considered disobeying someone but again another person is telling him or her to cross the road.  He argued that the charges against Besigye and Lutaale are uncertain.

Mpanga further said the rationale should be one knowing that it is an offence, or not , when you cross, or not cross the road.  He was trying to explain that the offences the accused persons are charged with are not clearly defined in the charge sheet.

Mpanga said the law should be very clear to the lowest person in society such that they don’t do anything that prejudices the security of the defence forces.

On Impartiality, Mpanga said the military courts are supposed to try discipline offences but they are now appointed by the Executive.

Accordingly, they formed the questions for which they want the Constitutional Court to determine once their prayers have been granted by the General Court Martial.

They are, whether Section 128(1) (f) of the UPDF Act is defined and therefore consistent with Article 28(12) of the Constitution, whether in light of the decisions of the Constitutional Court and the Supreme Court regarding the trial of civilians in the Court Martial, the conduct of the General Court Martial, as an organ of the UPDF and the members of UPDF who constitute it, is inconsistent with Article 208(2) which declares the UPDF and its members to be subordinate to civilian authority and whether in circumstances, such as these, where the Defence Forces are the complainant, investigator, witnesses and judge, a trial before the UPDF General Court Martial is consistent with Article 28(1) of the Constitution.

The other is whether the trial/continued trial before the General Court Martial by judicial officers who have no professional training to execute and/or perform judicial functions contravenes Article 128 of the Constitution.

It is against this background that the army Prosecutors have objected to the request for Constitutional reference.

The Court Martial Chairperson Brigadier Robert Freeman Mugabe who is Presiding over proceedings has adjourned the case for one hour to give the ruling.

The prosecutors, led by Captain Ambroz Guma, claimed that the court is impartial and independent and that the offences related to security are clearly defined under the UPDF Act.

The objection comes after Besigye’s lawyers asked the court to refer the case in which Besigye is jointly charged with Obeid Lutaale Kamulegeya and Captain Denis Oula on charges of treachery to the Constitutional Court, citing concerns about impartiality and the court’s jurisdiction to try civilians.

Guma objected to the request for Constitutional reference saying the law states that the original Court (trial Court) shall submit the questions to be determined by the Constitutional Court.

Guma said it is not true that the Court’s hands are tied and that the General Court Martial is the one to determine the questions that require Constitutional interpretation.

On the issue of impartiality and independence of the court, the Prosecutor said that on January 13th 2025, the members of the court Martial were asked to introduce themselves to the accused persons who said they didn’t have objections to them and therefore this means that they are not partial.

Guma said that the offences related to security are clearly defined offences under the UPDF Act adding that an offence can be committed through an unlawful act or unlawful commission and the intent must be to prejudice the security forces.

He said that this is a matter to be determined with evidence and that at this stage, it is premature.

Guma said that whereas Besigye’s lawyers argued that the Court Martial has no powers to try civilians as it was declared by the Constitutional Court, the decision in the case of the Attorney General’s appeal in Michael Kabaziguruka’s petition is still pending before the Supreme Court.

Another Prosecutor 2nd Lt Anthony Olupot Phillip said the Supreme Court has in several decisions held that it has the jurisdiction to try offences under the UPDF Act.

He said that under regulation 14 of the UPDF Regulations, the Court members are guided by principles of fairness to dispense Justice without fear or favour.

Olupot noted that the relationship between the Court Martial and the High command of the appointing authority is administrative but not judicial.

According to Prosecutor Lt Gift Mubehamwe, the issues of jurisdiction were solved in the ruling in the morning in which the Court indicated that it has the powers to try offences reportedly committed abroad.

Mubehamwe asked the Court to guide them on where one can take their grievances once not satisfied by the General Court Martial decision.

Prosecutors also objected to the issues concerning lawyer Eron Kiiza saying that they didn’t arise from the ruling given earlier.

Earlier in the morning, the team of Besigye’s lawyers asked the Court Martial to refer the case to the Constitutional Court for it to address several issues arising from the trial in which Col Dr Kizza Besigye and two others are accused of Treachery and unlawful possession of ammunition and firearms.

It all started when the Brigadier Robert Freeman Mugabe-led court ruled that they had the jurisdiction to try offences reportedly committed outside Uganda, including Geneva in Switzerland, Athens in Greece and Nairobi in Kenya where Besigye and Co-accused are said to have committed the crimes from.

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