Uganda Law Society and Another v Attorney General (Constitutional Application 7 of 2003)

Constitutional Court · [2003] UGCC 2 · 2003 Application Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Application in the Constitutional Court for an order staying the operation of a statutory provision pending the hearing of consolidated constitutional petitions

Decision

Application for a stay refused; the consolidated constitutional petitions remain to be heard and determined.

The full judgment

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Holding

The Constitutional Court refused to stay section 92(1)(a) of the NRA Statute pending consolidated petitions challenging death sentences passed by a Field Court Martial without confirmation by the Supreme Court. Applying the Giella v Cassman Brown test, the court held that although a Field Court Martial is a court of competent jurisdiction (a subordinate court under article 129), it is a special court that Parliament never intended to be subject to article 22(1)'s appeal/confirmation requirements; the petitions therefore had no probability of success. While death is irreparable, the affidavit evidence demonstrated the necessity of the death sentence in field operations, so the balance of convenience favoured the State. Dr. Rwanyarare's case was distinguished as concerning political, not military, matters.

Facts

The Uganda Law Society and another applicant had filed consolidated Constitutional Petitions Nos. 8 of 2002 and 2 of 2002 challenging the constitutionality of the National Resistance Army Statute No. 3 of 1992, in so far as it permitted death sentences to be passed by a Field Court Martial without an appeal to or confirmation by the Supreme Court. Pending determination of the petitions, the applicants sought an order stopping the operation of section 92(1)(a) of the Statute. The supporting affidavits asserted that three soldiers — Privates Richard Wigiri, Kembacho Ssenyonjo and Alfred Okech — had been convicted by a Field Court Martial and executed by firing squad while their sentences were unconfirmed, and that further executions were imminent. The Attorney General's affidavits, deponed by an officer of the UPDF Directorate of Legal Services and a Division Operations and Training Officer, contended that a Field Court Martial is a special court convened for field operations to maintain discipline and security, and that the death sentence served as a necessary deterrent against desertion, killing of civilians and cowardice in action.

Issues

Whether the applicants established a prima facie case with a probability of success that section 92(1)(a) of the NRA Statute is unconstitutional.
Whether a Field Court Martial is a court of competent jurisdiction subject to article 22(1) of the Constitution.
Whether the applicants would suffer irreparable injury and whether the balance of convenience favoured suspending the operation of section 92(1)(a) pending the petitions.
Whether the court should follow its earlier decision in Dr. Rwanyarare's case and grant the stay.

Orders

The application is refused.
No order as to costs.

Key headnotes

Civil Procedure — Interlocutory Relief — Conditions for a Temporary Injunction

A temporary injunction or interlocutory stay will issue only where the applicant shows a prima facie case with a probability of success and that it might otherwise suffer irreparable injury; where the court is in doubt on either, it decides the matter on the balance of convenience.

Civil Procedure — Prima Facie Case — Standard at the Interlocutory Stage

At the interlocutory stage the applicant need not prove the facts deponed in the affidavit evidence; it suffices to show serious questions to be tried and a probability, not certainty, of success.

Constitutional Law — Courts of Judicature — Status of a Field Court Martial

A Field Court Martial established under section 77 of the NRA Statute is a subordinate court created by Parliament within the meaning of article 129 of the Constitution, and is therefore one of the Courts of Judicature and a court of competent jurisdiction for the purposes of article 22(1).

Constitutional Law — Field Court Martial — Special Court Exempt from Appeal Requirements

A Field Court Martial is a special court constituted to administer instant justice and maintain discipline in field operations, and Parliament never intended article 22(1) to subject its death sentences to appeal or confirmation; this special status is recognised by articles 137(5) and 121(6) of the Constitution.

Human Rights — Right to Life — Irreparable Injury Weighed Against State Necessity

Although the death penalty is final and irreversible, irreparable injury at the interlocutory stage must be balanced against the higher objective the punishment serves; unrebutted evidence of the necessity of the death sentence in field operations may tip the balance of convenience against suspending the impugned provision.

Legislation cited (17)

National Resistance Army Statute No. 3 of 1992 s.92(1)(a)
National Resistance Army Statute No. 3 of 1992 s.71
National Resistance Army Statute No. 3 of 1992 s.76(1)
National Resistance Army Statute No. 3 of 1992 s.77(1)
National Resistance Army Statute No. 3 of 1992 s.77(2)
National Resistance Army Statute No. 3 of 1992 s.80(1)
National Resistance Army Statute No. 3 of 1992 s.83(1)
National Resistance Army Statute No. 3 of 1992 s.84
National Resistance Army Statute No. 3 of 1992 s.104
Constitution of Uganda 1995 article 22(1)
Constitution of Uganda 1995 article 121(6)
Constitution of Uganda 1995 article 129
Constitution of Uganda 1995 article 132
Constitution of Uganda 1995 article 137(5)
Constitution of Uganda 1995 article 273
National Resistance Army (Court Martial Appeal Court) Regulations 1994 reg.17(1)
Political Parties and Organisations Act No. 18 of 2002 s.6

Cases cited (2)

Giella v Cassman Brown & Co. Ltd [1973] EA 358
Dr. James Rwanyarare and Others v Attorney General (Constitutional Application No. 6 of 2002)

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