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Supreme Court halts orders stopping military from trying civilians

 

Chief Justice Alfonse Owiny-Dollo led the panel of justices in the Supreme Court. File Photo

Kampala, Uganda | THE INDEPENDENT | The Supreme Court has issued an interim order staying the implementation of the Constitutional court ruling barring the military courts from trying civilians.

The order has been issued by a panel of five Justices led by the Chief Justice Alfonse Owiny-Dollo saying that he had listened to the arguments of both sides and found that they had raised serious issues for which the court needs more time to internalize before detailed ruling is delivered.

Justice Alfonse Owiny-Dollo stated that the interim order shall be in place until July 29th 2021, when the court will deliver a detailed ruling.

The order follows an application for stay of execution filed by the Attorney General challenging the orders made recently by Constitutional Court in a petition filed by former Nakawa Member of Parliament Michael Kabaziguruka.

The Constitutional Court in a majority decision of three Justices against two ordered that civilians who are not subject to military law and are currently being tried before any military court their case be transferred to civil courts under the direction of the Director of Public Prosecutions within 14 days.

Justices Kenneth Kakuru, Hellen Obura and Remmy Kasule also ordered that all those persons not subject to military law who are serving sentences imposed to military courts contrary to the Constitution, their files be transferred to High Court Criminal division for either re-trial or to be dealt with as court may seem fit.

The judges added however that their judgment did not discharge any person from any criminal responsibility and as such, fresh charges may be brought against the affected persons by the DPP. They reasoned that although the Court Martial is a competent court under the 1995 Constitution, it’s powers are only limited to serving personnel of the Uganda People’s Defense Forces but not civilians.

With exception of the dissenting Justices Christopher Madrama and Steven Musota, the majority justices also made a declaration that Kabaziguruka who had petitioned them following his arrest and subsequent sentencing on charges related to plotting to overthrow the government of Uganda, had had his right to fair hearing infringed upon.

However, the Attorney General on Friday last week filed an application for stay of execution of orders arguing that he is not satisfied with the orders and judgment in question.

According to the Commissioner for Civil Litigation George Kallemera who was leading a team of Advocates from the Attorney General’s chambers, on July 1st 2021, they filed a notice of appeal and lodged a letter requesting for certified copies of proceedings and the judgment to enable them appeal against the decision.

Court has also heard that the appeal which is challenging the decision will be rendered useless if the orders and declarations of the Constitutional Court are not stayed until the determination of the appeal.

“The balance of convenience tilts in favour of the applicant until the pending Constitutional appeal is heard and disposed off by the Supreme Court”, said Kallemera.

He also noted that their application has been brought without any further delay and therefore it will be just and equitable to stay the execution of the judgement orders and declarations.

According to Acting Commissioner in the Attorney General’s chambers Phillip Mwaka, the matters which are before the court are matters that have already been traversed by the same court but were reportedly ignored by the learned majority Justices of the Constitutional Court.

As such, Mwaka noted that if a stay of execution order is not granted, it may result into chaos and breakdown the  entire system.

However, Kabaziguruka’s lawyers led by Caleb Alaka and Medard Sseggona opposed the application saying that the Attorney General’s arguments were not exhaustive.

Sseggona said that the declarations of court are self executing and therefore one cannot seek an order to stop them from being implemented. He noted that there is no circumstance under which any court in this country can suspend the right to fair hearing which the Constitutional court already declared, that Kabaziguruka’s right was violated.

According to Sseggona, the orders were not to free suspects, but to take them to courts that have uncontested jurisdiction provided for under the law.

Sseggona who was also accompanied by lawyers Samuel Muyizzi Mulindwa and Abubaker Ssekanjako noted that this was not a proper case for grant of stay of execution because what was described cannot be compensated with any form of damages.

He said that when Kabaziguruka filed in these courts of judicature, his application to block his trial in the military court was refused until the Constitutional court gave him relief recently after his rights had been infringed upon.

It is against this background that the order has been granted temporarily.

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