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Court Martial Insists No Need for Constitutional Review in Besigye Decisions

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Court Martial Insists No Need for Constitutional Review in Besigye Decisions
Dr.Besigye in the dock

In a ruling delivered on Wednesday evening, Brigadier-General Robert Freeman Mugabe, the chairman of the GCM, asserted that his court has the power to try anyone charged with treachery, regardless of whether the alleged offence occurred within or outside Uganda.

A marathon day at the Makindye-based General Court Martial (GCM) on Tuesday concluded with the expected ruling, as opposition figure Dr Kizza Besigye and his associate, Hajj Obeid Lutale, were directed to take plea on charges of treachery.

The charge, which carries a maximum death sentence, was controversially added on Monday despite strong objections from the defence team.

In a ruling delivered on Wednesday evening, Brigadier-General Robert Freeman Mugabe, the chairman of the GCM, asserted that his court has the power to try anyone charged with treachery, regardless of whether the alleged offence occurred within or outside Uganda.

“The General Court Martial has jurisdiction in these matters, and we have the powers to proceed with the charges as outlined,” Mugabe stated.

The defence team, led by counsel Ernest Kalibbala, swiftly challenged the court’s jurisdiction, arguing that the matter required interpretation by the Constitutional Court.

"We are asking for a reference, not a petition," Kalibbala clarified.

"We want you to enrich the questions, so we can go to the Constitutional Court and come back with clarity instead of walking on egg shells.”

Key Objections Raised by the Defence

Led by Kenyan senior counsel Martha Karua and constitutional lawyer Erias Lukwago, the defence raised four constitutional questions challenging the court martial's jurisdiction and impartiality in the trial.

  • Undefined Offenses:
  • Defence counsel Ernest Kalibbala argued that the charges were vague and violated Article 28(12) of the Constitution, which mandates that offenses and penalties must be clearly defined by law. Kalibbala contended that the charge of "endangering the security of defence forces" was overly broad and lacked specificity.
  • Impartiality of the Court Martial:
  • Lukwago questioned whether a military tribunal, composed of members of the UPDF, could provide a fair and impartial trial to civilians. He cited Article 28(1), which guarantees a fair hearing before an independent and impartial court.
  • Civilian Jurisdiction:
  • The defence referred to previous rulings by constitutional courts, asserting that civilians should not be tried under military tribunals. They contended that the UPDF Act and its regulations could not supersede the Constitution’s provisions on civilian authority and fair trials.
  • Subordination of the Military to Civilian Authority:
  • The defence cited Article 208, which establishes the UPDF as subordinate to civilian authority, and argued that the court martial's actions risk undermining the Constitution’s supremacy.

The defence referred to legal provisions such as Rule 18 of the Constitutional Court Petition Rules of 2005, which outlines the procedure for referring matters of constitutional interpretation to the higher court.

Kalibbala implored the court to follow this procedure, highlighting that such an interpretation is beyond the scope of the General Court Martial’s jurisdiction.

“Only a superior court can offer constitutional clarity,” he added.

Despite these arguments, the GCM maintained its stance. After several adjournments during which the court appeared to consult with higher authorities, Brigadier-General Mugabe issued a firm ruling.

"This court has the authority to make a decision on the reference request," he ruled. "The court can disagree or agree on whether to make a reference or not. This court declines to make reference as asked by the defence. The accused should take plea."

The court’s decision echoes its position in previous high-profile cases involving military jurisdiction, notably the 2016 Kabaziguruka case, in which the Supreme Court upheld the jurisdiction of military courts in certain circumstances.

The ruling in Kabaziguruka affirmed that under the Uganda People’s Defence Forces (UPDF) Act, the General Court Martial has authority to try civilians in specific situations, such as when charges involve national security or treason.

Kalibbala, however, disagreed with the ruling, stressing that the matter involves complex constitutional issues that should not be disregarded.

“We are not opposed to the trial; we are simply asking that jurisdictional concerns be resolved by the Constitutional Court,” he argued.

Kalibbala's comments reflect concerns shared by many legal experts, who believe the case may have wider implications for the boundaries of military court jurisdiction and civilian trials.

Dr Besigye and Hajj Lutale were reportedly taken from Nairobi on November 16, where they had gone to attend a book launch by Ms Karua.

The duo was extradited to Uganda without following international extradition protocols, with Dr Besigye later claiming there were no border checks during their transfer.

Their abduction became public three days later when Dr. Besigye’s wife, Winnie Byanyima, informed the media of his disappearance in Nairobi.

Within 24 hours of the media revelations, the military charged the pair with endangering the security of defence forces and illegal possession of firearms, including two pistols.

Dr Besigye, a retired Colonel instrumental in the 1986 bush war that brought the current government to power, challenged the validity of the charge sheet, citing defects under UPDF Regulations 22 and 23.

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