Uganda: Besigye Defence Team Raises Constitutional Questions Before Court Martial

Dr Kizza Besigye in the dock at the military court in Makindye.
14 January 2025

The defence team representing opposition figure Dr. Kizza Besigye and his associate Hajj Obeid Lutale on Tuesday sought constitutional clarity after the General Court Martial dismissed their objections and ordered the accused to take a plea.

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.

Key Objections Raised by the Defence

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Defence Seeks Constitutional Reference The defence team urged the court martial to refer these constitutional questions to the Constitutional Court under Article 137(1). "This court cannot elevate itself above the Constitution. Matters of interpretation fall squarely within the jurisdiction of the Constitutional Court," Lukwago emphasized.

Court Martial's Ruling

Earlier, Brigadier-General Freeman Mugabe, chairman of the court martial, dismissed the defence's objections regarding the legality of the charges and jurisdiction.

He ruled that the trial falls under the UPDF Act and stated that there was no breach of international extradition protocols when the accused were brought to Uganda from Kenya.

"The agreement on defence and security for suspected serious crimes did not amount to abduction," Gen. Mugabe said. "Jurisdiction is a creature of statute, and this court has the power to try this matter."

Controversy Surrounding the Trial

The trial has drawn widespread criticism, with concerns about the abduction of Dr. Besigye and Hajj Lutale from Kenya in November 2024. The defence maintains that their transfer violated international extradition laws.

Further controversy arose when defence lawyer Eron Kiiza was summarily arrested in court, convicted of contempt, and sentenced to nine months in prison without trial.

As the defence pushes for constitutional interpretation, the trial continues to spotlight issues of judicial independence, fairness, and adherence to the rule of law.

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Counsel Ernes Kalibbala in his own words...

Taking to Article 208. This article established the UPDF. It spells out a number of good attributes for the UPDF.

To say you have jurisdiction, you're putting yourself above civilian authority. The UPDF must live by the Constitution.

Right to fair hearing. This is described as a culmination against forces of tyranny that brought about political instability.

28(12) | No person shall be convicted of a criminal offense unless its penalty is defined by law.

It requires every offense to be clear. When you read it, you know what conduct amounts to an offense, and it can't be derogated from.

The charge sheet has an offense "charges related to security," contrary to the UPDF Act.

"If you do or omit to do anything, it amounts to an offense."

I contend that the offense is not defined.

This 28 article deals with vagueness of charges. It is a contention that the offense was written without clarity, just to put a net to see what to catch.

There is a question on 128(1)(F). Is this section defined and consistent with Article 28(12) of the Constitution?

The General Court Martial cannot answer this question. It's a preserve of the Constitutional Court 137(1). We trust that the General Court Martial finds this question one to be referred for interpretation.

  1. Another question for us. Fundamental to the trial of two civilians, two gentlemen. Again, Article 28(1) spells out the stand on derogation as far as a fair hearing is concerned before an independent and impartial court. There are many cases on this. Cap. Armon Byarugaba. ULS vs AG 2005. The Constitutional Courts have all said that, with the setup here in the General Court Martial, it's impossible to have a fair hearing. I say this with all the humility and respect I can, but just to take you back to the article saying the force is subordinate to civilian rule. To do otherwise is to say that the force can rise above the Constitution. If that view is entertained, then the entire preamble of the Constitution is useless. You must distinguish yourselves from forces that abused the Constitution. One of them has a stay as a constitutional interpretation. I know the state will say so. But on the others that were not challenged. The law says we can't be here to deal with civilians even if we want unless we are elevating ourselves above the Constitution. We can only abide by the decision of court. The stay of implementation does not remove the interpretation of court. Framing a question.

Whether, in light of the decision of civilian court regarding the trial of civilians in court martial, the

Are you consistent with 102, 128(2)?

Are the judgments of the civilian courts binding to this court? I pray that this question also be allowed.

Impartiality, nature of the tribunal, there is a question about how impartial the tribunal and organ of the defense forces, which tries and investigates, can be considered impartial in any way.

This is about the court and not the individuals. How can you be a judge in your own cause? How else can you find prejudice in your own cause?

69(2) A court might adjourn to consult on the authority.

The convening authority is the high command. If you consult the high command, then Article 28(1) has no place, but this regulation of the court martial is not above the supreme law.

Is a trial before a court martial consistent with Article 28?

We know that civilian courts have sanctity. If the court is bound by the J.A. advocate, then who is making the decisions of the Court? This is a matter of law. Why then is there a panel?

I want to ask, "whether Regulation 63(2) and 69(2) of the UPDF rules of procedure are consistent with Article 28."

Interpretation can be done by petition or by reference. If you find a substantial question of law, yes, the court shall reference the question to the Constitutional Court for a decision.

A fourth question. 208 and Article 79(1) and 129(1).

Whether 208 is contrary to and convened parliament makes laws for Uganda. We contend that there is a question of the place of 208 and parliament.

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Counsel FK Mpanga

Law must be clear to be understood by all levels. Courts have recognized that military courts are intended for disciplinary matters.

The courts have pronounced the character of the court and the officers being subject to the Executive.

Courts have said the military court is not independent. These courts belong to the Executive. The court says persons subject to military law enjoy fundamental rights.

The Constitution which put up the officers is complaining before the ones it put into office. A father complains about the neighbour before his own children.

The law says officers and militants do not surrender their rights and freedoms because they have joined the military service.

It is the accused who are making these questions. Frame a question and forward it to the constitutional court. You don't have the right to determine whether the question makes sense.

To determine this, or whether it has been made before, is not your role. We are urging the court that once we raise questions, the duty is to put the question in proper wording and not to determine whether it should be sent.

As officers of the court, the duty is ours to advise the court. What Counsel Kalibbala did not say is that while people are executing office,

We request that, as commanded by the constitution, we do not engage with questions as to whether we should reference but rather to get the right language for the reference.

Section 195 on GCM. You don't have power to interpret the Constitution.

Send the question for interpretation to cure our doubts.

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