Wakilii

Kitata v Director of Public Prosecutions & Another (MISCELLANEOUS CAUSE NO. 125 OF 2018)

High Court · [2019] UGHCCD 251 · 2019 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for fundamental rights enforcement challenging trial of civilian in General Court Martial
Decision
Application partly allowed with declaration that military detention was unlawful; no damages awarded despite illegality; remaining prayers dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that civilians can be tried by the General Court Martial when they fall within section 119 of the UPDF Act, particularly where charged with unlawful possession of arms or ammunition ordinarily being the monopoly of the defence forces. The regulations under S.I 307-8 remain valid, having been saved by section 256 of the UPDF Act. Section 204 does not bar trial of civilians in the court martial but creates dual avenues for prosecution. However, the detention of a civilian in military facilities beyond forty-eight hours after arrest and after plea contravenes regulation 5 of S.I 307-8 and is unlawful.

Outcome

Application partly allowed with declaration that military detention was unlawful; no damages awarded despite illegality; remaining prayers dismissed

Facts

The applicant, a civilian, was charged in the General Court Martial with six counts: unlawful possession of firearms under the Firearms Act and unlawful possession of military stores under section 160(2)(c) of the UPDF Act. He was arrested by military personnel and initially detained at Luzira prison but later transferred to military detention at Mbuya following intelligence reports of threats to his life. The applicant challenged his trial before the General Court Martial through this fundamental rights application, seeking twenty declarations and three orders declaring the court martial proceedings unconstitutional, illegal, and void. He argued that as a civilian he could only be tried by the Magistrates Court or High Court under section 204 of the UPDF Act, that the regulations permitting civilian trials before the court martial were invalid, and that his military detention and arrest violated his constitutional rights.

Issues

  1. Whether a civilian charged in the General Court Martial can only be tried by the Magistrates Court or High Court under section 204 of the UPDF Act.
  2. Whether the Uganda Peoples' Defence Forces (Application to Civilians) Regulations S.I 307-8 remains valid following repeal of the old UPDF Act Cap 307.
  3. Whether the trial of the applicant by the General Court Martial violates the Constitution and is unlawful.
  4. Whether the detention of the applicant in military detention facilities contravenes the regulations governing civilian detention.
  5. Whether section 119(1)(h) of the UPDF Act is operative and applicable to the applicant.

Orders

  • Declaration that the detention of the applicant in military detention beyond forty-eight hours after arrest and after appearing for plea was in contravention of regulation 5(1) and 5(2) of S.I 307-8 and was illegal.
  • Direction to the applicant to file a proper application for contempt regarding alleged failure to comply with the Constitutional Court's directions in Uganda Law Society & Jackson Karugaba v Attorney General.
  • Application dismissed in all other respects.
  • No order as to costs or damages.

Rules and key headnotes

Court Martial Jurisdiction — Trial of Civilians — UPDF Act s.119
Civilians in Uganda can become subject to military law and be tried by the General Court Martial where they fall within the categories specified in section 119 of the UPDF Act, particularly section 119(1)(h) which subjects to military law every person found in unlawful possession of arms, ammunition or equipment ordinarily being the monopoly of the defence forces.
Statutory Interpretation — Saved Provisions — Transitional Provisions
Where a repealing statute contains a saving provision expressly preserving regulations, rules, orders and directions made under the repealed enactment, those subsidiary instruments remain in force until they expire according to their terms or are revoked by a competent authority under the new Act, notwithstanding the repeal of the parent statute.
Court Martial Jurisdiction — Dual Avenues of Prosecution — UPDF Act s.204
Section 204 of the UPDF Act, which provides that nothing in the Act shall affect the jurisdiction of any civil court to try a person for an offence triable by that court, does not bar the trial of a civilian in the court martial where the civilian falls within section 119 but instead creates two avenues for trial of such civilians: they may be tried in the civil court under section 204 or in the military court under section 119.
Director of Public Prosecutions — Powers and Jurisdiction — Court Martial Proceedings
The power of the Director of Public Prosecutions under article 120(3)(c) of the Constitution to take over and continue criminal proceedings instituted by any other person or authority is discretionary and does not create a mandatory obligation to take over or continue prosecutions before the court martial, nor does charging a person before the court martial amount to usurping the powers of the DPP.
Arrest Without Warrant — Military Arrest of Civilians — Regulation 4 of S.I 307-8
Regulation 4 of S.I 307-8 permits a soldier to arrest a civilian without a warrant of arrest from a competent military court where that person is found in circumstances whereby any person is, under the Criminal Procedure Code Act, empowered to arrest without warrant, including under section 10(i) where a person is in possession of anything reasonably suspected to be stolen property or is reasonably suspected of having committed an offence with reference to that thing.
Liberty and Detention — Military Detention of Civilians — Unlawfulness
The detention of a civilian in military detention beyond forty-eight hours after arrest and after appearing for plea in court martial contravenes regulation 5(1) and 5(2) of S.I 307-8, which bars detention of a civilian in a military cell beyond forty-eight hours and categorically prohibits remand of a civilian in military detention after appearing in court for plea, requiring instead that the person be remanded in a civil prison.
Damages — Unlawful Detention — Judicial Discretion
Where a court finds detention unlawful but the case is of a sensitive nature involving serious charges, the accused has since been returned to civil prison, and security concerns existed, a court may in the exercise of its discretion decline to award damages for the period of unlawful detention.

Legislation cited (33)

Cases cited (4)

  • Uganda Law Society & Jackson Karugaba v Attorney General (Constitutional Petition Nos. 2 of 2002 and 8 of 2002)
  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Namugerwa Hadija v Attorney General (Civil Appeal No. 4 of 2012)

Full judgment

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

Kitata v Director of Public Prosecutions & Another (MISCELLANEOUS CAUSE NO. 125 OF 2018) [2019] UGHCCD 251 (30 May 2019)
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.