Wakilii

Bazibu v Attorney General and 2 Others (Miscellaneous Cause No. 110 of 2021)

High Court · [2022] UGHCCD 38 · 2022 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for habeas corpus and enforcement of human rights under Articles 23 and 24 of the Constitution
Decision
Applicant ordered transferred from military detention to civil prison; detention at military barracks declared illegal

Observed later treatment

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Holding

The High Court held that the General Court Martial had jurisdiction to try a civilian for unlawful possession of military ammunition under s.119(1)(h) of the UPDF Act, as civilians become subject to military law when found in possession of arms ordinarily the monopoly of the defence forces. However, the court declared the applicant's detention at Makindye Military Barracks illegal, ruling that Regulation 5 of the UPDF (Application to Civilians) Regulations requires civilians tried before military courts to be remanded in civil prisons only.

Outcome

Applicant ordered transferred from military detention to civil prison; detention at military barracks declared illegal

Facts

The applicant, a civilian, was arrested on 31 October 2020 by Special Forces Command and charged before the General Court Martial with unlawful possession of ammunition contrary to the Firearms Act. He was initially remanded to Kitalya Government Prison on 10 December 2020. On 26 December 2020, military personnel removed him from Kitalya and transferred him to Makindye Military Barracks, allegedly for his safety based on intelligence about threats to his life. The applicant's wife brought this application seeking his release or transfer back to civil prison, arguing that his detention in military barracks was unconstitutional and that military courts lacked jurisdiction to try civilians. The respondents argued that the transfer was made pursuant to an order of the General Court Martial for the applicant's own safety.

Issues

  1. Whether the General Court Martial has competent jurisdiction to try the applicant.
  2. Whether the continuous detention of the applicant in a military prison is lawful.

Orders

  • Preliminary objection dismissed.
  • Application partly allowed.
  • The applicant be immediately transferred back to a civil prison.

Rules and key headnotes

Constitutional Law — Human Rights Enforcement — High Court Jurisdiction — Applications under Human Rights Enforcement Act 2019
An application brought under Articles 23 and 24 of the Constitution and sections 3 and 4 of the Human Rights Enforcement Act 2019 seeking enforcement of human rights is within the preserve of the High Court, and the fact that a military court has made an order does not oust the High Court's jurisdiction to determine whether fundamental rights have been violated.
Criminal Law & Procedure — Military Jurisdiction — Civilians Subject to Military Law — Unlawful Possession of Military Monopoly Items
A civilian becomes subject to military law and may be tried by the General Court Martial when found in unlawful possession of arms, ammunition, or equipment ordinarily being the monopoly of the defence forces, pursuant to section 119(1)(h)(i) of the Uganda People's Defence Forces Act 2005.
Criminal Law & Procedure — Military Courts — Detention of Civilian Accused — Mandatory Remand in Civil Prisons
Regulation 5 of the Uganda People's Defence Forces (Application to Civilians) Regulations requires that when a civilian is brought before a military court, that person shall be remanded in a civil prison and this requirement is absolute, admitting no exceptions even where security concerns are raised by military authorities.
Human Rights — Fair Trial Rights — Access to Legal Representation — Detention in Military Facilities
Detention of a civilian accused in a military barracks or establishment indirectly infringes on the right to a fair trial because such establishments are not easily accessible to civilians, and the suspect's lawyers or family members may not be able to meet or discuss the case in preparation for trial.
Administrative Law — Judicial Review of Military Court Orders — Ultra Vires Orders — Compliance with Statutory Provisions
A military court is obliged to follow the law and avoid giving orders contrary to the laws of Uganda since it is itself a creature of the law, and an order by the General Court Martial directing remand of a civilian in a military facility is ultra vires and illegal where the enabling statute requires remand in a civil prison.

Legislation cited (16)

Cases cited (5)

  • 2nd Lt. Ambrose Ogwang v Uganda (Court of Appeal Criminal Appeal No. 107 of 2013)
  • Lt. Col John Kaye v Uganda (Court of Appeal Criminal Appeal No. 0315 of 2015)
  • Namugerwa Hadija v DPP & Attorney General (Supreme Court Civil Appeal No. 04 of 2012)
  • Namugerwa Hadija v DPP & Attorney General (Supreme Court Civil Appeal No. 04 of 2012)
  • Uganda Law Society vs Attorney General (supra)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bazibu v Attorney General and 2 Others (Miscellaneous Cause No. 110 of 2021) [2022] UGHCCD 38 (24 January 2022)
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.