"The DPP is an independent office unlike the military which is subject to direction, so Interference with that office through military prosecution destroys the root of our constitutional democracy and offends the right to a fair hearing which doesn't begin with court but the decision making process on whether and how to prosecute," said Alaka.
Lawyers representing the former Nakawa
Division Member of Parliament Michael Kabaziguruka have asked the Supreme Court
Judges to dismiss an appeal in which the government is challenging the decision
not to try civilians before the Court Martial.
The Constitutional Court in June 2021 in a
majority decision of three Justices against two ordered that cases of civilians who are
not subject to military law and are currently being tried before any military
Court be transferred to civil courts under the direction of the
Director of Public Prosecutions within 14 days.
Kakuru , Hellen Obura and Remmy Kasule also ordered that all those persons not
subject to military law who are serving sentences imposed by military courts
contrary to the constitution have their files transferred to the High Court Criminal
division for either retrial or to be dealt with as court may seem fit.
The Judges added however, that their
judgement did not discharge any person from any criminal responsibility and as
such fresh charges may be brought against the affected persons by the DPP.
reasoned that although the Court Martial is a competent court under the 1995
constitution, its powers are only limited to serving officers of the Uganda
People's Defense Forces but not civilians.
But the Attorney General was not happy
with the decision and appealed on July 23rd 2021 in the Supreme Court and today a
Panel of seven Justices led by the Chief Justice Alfonse Owiny-Dollo has heard
the case and promised to deliver judgment on notice.
The Attorney General Kiryowa Kiwanuka
said that the appeal should be allowed because the majority Justices of the
Constitutional Court erred in law and fact in determining that the General
Court Martial cannot be impartial or independent and doesn't apply the
principles therein to persons subject to the military law.
He added that General Court Martial
only tries civilians who present themselves before it by coming into conflict
with the military laws.
However, Kabaziguruka’s lawyers led by
Medard Lubega Sseggona and Caleb Alaka told court to dismiss the Attorney
General’s appeal and uphold the Constitutional Court decision saying that
trying people of criminal offenses in the Court Martial interferes with the
office of the Director of Public Prosecutions.
//Cue in: “My Lord the ….
Cue out: …mandate is concerned”. //
"The DPP is an independent office
unlike the military which is subject to direction, so Interference with that
office through military prosecution destroys the root of our constitutional
democracy and offends the right to a fair hearing which doesn't begin with
court but the decision making process on whether and how to prosecute," said
"From the above your Lordships,
it is clear that the military courts cannot guarantee those cardinal and
indispensable tenets and such failure is unconstitutional," Alaka added. "We invite you
to be pleased in finding no merit in this ground and upholding the decision of
the Constitutional Court.”
But after the Constitutional Court
decision, Kabaziguruka through his lawyers also put in a cross appeal on the
decision on whether a civilian can be tried in a military court as an
accomplice together with a person subject to military law.
On this, the lawyers contend that the
purpose of UPDF Act us to regulate its officers and men and at no point do
civilians become subject to military discipline so as to be brought under the Act.
"The notion developed by Justice Kakuru of Constitutional Court-JCC that a person who joins the army voluntarily
assumes the risk is also decontextualized by his lordship with respect," said Sseggona. "A
person can only voluntarily assume the discipline but not the illegality and
unfairness as the same may not be envisaged and can never be condoned including
but the person so assuming since it is an illegality.”
The lawyers also noted that there are
no circumstances under which the Courts Martial should exercise criminal
jurisdiction even if the criminal offenses are against their own soldiers.
They thus asked the court to uphold
the Constitutional Court decision, find merit in their appeal and dismiss the
Attorney General's prayers with costs.