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Uganda Law Society v Attorney General (Constitutional Petition 18 of 2005)

Constitutional Court · [2006] UGCC 9 · 2006 Petition Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Articles 137(3) and 50(1) & (2) of the Constitution, brought as public interest litigation.
Decision
Petition allowed in part by a majority of four to one; declarations granted that the acts of security agents and the General Court Martial trial of the accused were unconstitutional.

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Holding

The Constitutional Court, by majority, allowed the petition in part. It held that the acts of heavily armed security agents who surrounded the High Court and interfered with bail documentation on 16 November 2005 violated the right to personal liberty, the right to a fair hearing, and the independence of the judiciary (Articles 23, 28 and 128). It held that the General Court Martial has no jurisdiction to try the accused for terrorism, which under section 6 of the Anti-Terrorism Act is triable only by the High Court, so the concurrent proceedings and that trial contravened Articles 28(1) and 44(c). By a majority of three to two the Court held the General Court Martial is equivalent, not subordinate, to the High Court, and that section 119(1)(g) and (h) of the UPDF Act is not inconsistent with the Constitution.

Facts

Rtd Col Dr Kizza Besigye, leader of an opposition party, and 22 others were jointly charged with treason and misprision of treason in the High Court; Besigye was separately charged with rape. On 16 November 2005, fourteen of the accused were granted bail by Justice Lugayizi. As bail documentation was being processed in the High Court Criminal Registry, a heavily armed unit of the UPDF (the Anti-Terrorism Task Force) surrounded the court premises, entered the registry and the holding cells, interfered with the documentation, and the accused were returned to prison despite the grant of bail. Justice Lugayizi later declined to continue handling the matter. The following day the accused were taken to the General Court Martial and charged with terrorism and, in the alternative, unlawful possession of firearms, offences arising from the same facts. The Uganda Law Society, by public interest litigation, petitioned the Constitutional Court challenging the security agents' conduct, the concurrent proceedings, and the jurisdiction of the General Court Martial.

Issues

  1. Whether the acts of security agents at the premises of the High Court on 16 November 2005 contravened Articles 23(1) and (6), 28(1) and 128(1), (2) and (3) of the Constitution.
  2. Whether concurrent proceedings against the accused in the High Court and the General Court Martial contravened Articles 28(1) and 44(c) of the Constitution and were inconsistent with Articles 28(9) and 139(1).
  3. Whether section 119(1)(g) and (h) of the UPDF Act is inconsistent with Articles 28(1), 126(1) and 210 of the Constitution.
  4. Whether the joint trial of civilians and members of the UPDF in a military court for offences under the UPDF Act is inconsistent with Articles 28(1), 126(1) and 210 of the Constitution.
  5. Whether the trial of the accused before the General Court Martial on a charge of terrorism contravenes Articles 22(1), 28(1) and 126(1) of the Constitution.
  6. Whether the trial of the accused for terrorism and unlawful possession of firearms before the General Court Martial is inconsistent with Articles 28(1), 120(1), 3(b) and (c), 126(1) and 210 of the Constitution.

Orders

  • Petition allowed in part by a majority of four to one.
  • Declaration that the acts of security agents at the High Court premises on 16 November 2005 contravened Articles 23(1) and (6) and 128(1), (2) and (3) of the Constitution.
  • Declaration that the concurrent proceedings in the High Court and the General Court Martial contravened Articles 28(1) and 44(c) of the Constitution.
  • Declaration that the trial of the accused before the General Court Martial on charges of terrorism and unlawful possession of firearms is inconsistent with the Constitution.
  • Each party to bear its own costs, the petition having been brought in the public interest.

Key headnotes

Constitutional Law — Judicial Review of Military Affairs — Jurisdiction under Article 137(3)
Although courts should ordinarily refrain from reviewing executive decisions on military affairs relating to national security, the Constitutional Court retains jurisdiction under Article 137(3) to review specific acts alleged to contravene the Constitution, including the conduct of security personnel.
Human Rights — Independence of the Judiciary — Interference with Court Proceedings
The conduct of armed security agents who surround court premises, enter the registry and cells, and interfere with the processing of bail granted by a judge is intimidating to judicial officers and contravenes the right to personal liberty (Article 23), the right to a fair hearing (Article 28(1)), and the independence of the judiciary (Article 128).
Constitutional Law — Status of the General Court Martial — Subordination to the High Court
By a majority of three to two, the General Court Martial, created under Article 210 and the UPDF Act, is a specialised military court that is equivalent to, and not subordinate to, the High Court, since its decisions are appealable to the Court Martial Appeal Court and ultimately the Court of Appeal rather than to the High Court; Joseph Tumushabe v Attorney General was to that extent wrongly decided.
Criminal Law & Procedure — Jurisdiction — Terrorism Triable Only by the High Court
The offence of terrorism under section 6 of the Anti-Terrorism Act is triable only by the High Court; the General Court Martial therefore has no jurisdiction to try any person, including civilians, for terrorism, and to do so violates the right to be tried by a competent court under Article 28(1).
Criminal Law & Procedure — Double Jeopardy — Concurrent Proceedings Arising from the Same Facts
Charging accused persons concurrently in the High Court and in the General Court Martial with different offences arising from the same set of facts, where the latter court lacks jurisdiction, denies a fair hearing and contravenes Articles 28(1) and 44(c) of the Constitution.
Statutory Interpretation — Constitutional Interpretation — Generous and Harmonious Construction
Constitutional provisions, particularly those protecting fundamental rights, must be given a generous, purposive and dynamic construction, and the Constitution must be read as an integrated whole so that no provision destroys another but each sustains the other.
Constitutional Law — Military Law over Civilians — UPDF Act s.119(1)(g) and (h)
By a majority of three to two, section 119(1)(g) and (h) of the UPDF Act, which subjects to military law persons who aid or abet a person subject to military law or who are found in unlawful possession of arms ordinarily the monopoly of the Defence Forces, is not inconsistent with Articles 28(1), 126(1) and 210 of the Constitution.

Legislation cited (36)

  • Constitution of the Republic of Uganda 1995 art.2
  • Constitution of the Republic of Uganda 1995 art.22(1)
  • Constitution of the Republic of Uganda 1995 art.23(1) and (6)
  • Constitution of the Republic of Uganda 1995 art.28(1)
  • Constitution of the Republic of Uganda 1995 art.28(9)
  • Constitution of the Republic of Uganda 1995 art.44(c)
  • Constitution of the Republic of Uganda 1995 art.50
  • Constitution of the Republic of Uganda 1995 art.120(3)(b)
  • Constitution of the Republic of Uganda 1995 art.126(1)
  • Constitution of the Republic of Uganda 1995 art.128
  • Constitution of the Republic of Uganda 1995 art.129
  • Constitution of the Republic of Uganda 1995 art.137(3)
  • Constitution of the Republic of Uganda 1995 art.139(1)
  • Constitution of the Republic of Uganda 1995 art.139(2)
  • Constitution of the Republic of Uganda 1995 art.208(2)
  • Constitution of the Republic of Uganda 1995 art.210
  • Constitution of the Republic of Uganda 1995 art.257(1)
  • Uganda Peoples Defence Forces Act No. 7 of 2005 s.2
  • Uganda Peoples Defence Forces Act No. 7 of 2005 s.42
  • Uganda Peoples Defence Forces Act No. 7 of 2005 s.119(1)(g) and (h)
  • Uganda Peoples Defence Forces Act No. 7 of 2005 s.179
  • Uganda Peoples Defence Forces Act No. 7 of 2005 s.185
  • Uganda Peoples Defence Forces Act No. 7 of 2005 s.197
  • Uganda Peoples Defence Forces Act No. 7 of 2005 s.199(1)
  • Uganda Peoples Defence Forces Act No. 7 of 2005 s.204
  • Uganda Peoples Defence Forces Act No. 7 of 2005 s.209
  • Anti-Terrorism Act No. 14 of 2002 s.3
  • Anti-Terrorism Act No. 14 of 2002 s.4
  • Anti-Terrorism Act No. 14 of 2002 s.6
  • Anti-Terrorism Act No. 14 of 2002 s.7
  • Firearms Act Cap 299 s.3
  • Penal Code Act s.18
  • Judicature Act Cap 13 s.33
  • Judicature Act Cap 13 s.34
  • Uganda Law Society Act Cap 276
  • Civil Procedure Rules O.17 r.3

Cases cited (12)

  • Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Joseph Tumushabe v Attorney General (Constitutional Petition No. 6 of 2004)
  • Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
  • Paul K. Ssemogerere and 2 Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Fox Odoi-Oywelowo and James Akampumuza v Attorney General (Constitutional Petition No. 8 of 2003)
  • Major General Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Attorney General v Jobe [1984] AC 689
  • R v Big M Drug Mart Ltd [1985] 1 SCR 295
  • Unity Dow v Attorney General of Botswana [1992] LRC 623
  • South Dakota v North Carolina 192 US 268
  • Republic v El Manu [1969] EA 357
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.