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

Observed later treatment

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Holding

The Court allowed the petition, answering all six issues affirmatively. The armed UPDF deployment at the High Court, which intimidated judicial officers and disrupted bail documentation, violated personal liberty (Article 23) and judicial independence (Article 128). The General Court Martial is subordinate to the High Court and has no jurisdiction over civilians or over terrorism, which is triable only by the High Court; trying civilians there breached the right to a fair hearing (Articles 28(1), 44(c)). Concurrent High Court and GCM proceedings on the same facts offended Article 28(9). Sections 119(1)(g) and (h) of the UPDF Act are inconsistent with Article 210.

Outcome

Petition allowed; all six issues answered affirmatively and declarations made that the impugned security-agency acts, the concurrent proceedings, and sections 119(1)(g) and (h) of the UPDF Act are unconstitutional.

Facts

Rtd Col Dr Kizza Besigye and 22 others were charged in the Chief Magistrate's Court at Buganda Road with treason and misprision of treason and committed to the High Court for trial. On 16 November 2005, while Justice E.S. Lugayizi heard and granted bail to 22 of the accused, a heavily armed unit of the UPDF was deployed within the High Court premises. Some armed men entered the Criminal Registry and interfered with the bail documentation process, causing the sureties to withdraw, so the accused were returned to prison despite the grant of bail. They were also denied access to their lawyers at the holding cells. The following day all the accused, including Dr Besigye, were taken before the General Court Martial and jointly charged with terrorism under the Anti-Terrorism Act and, in the alternative, unlawful possession of firearms under the Firearms Act, offences arising from the same facts as the treason charges. The Uganda Law Society petitioned the Constitutional Court challenging the constitutionality of the security-agency acts, the concurrent proceedings, the trial of civilians by the GCM, and provisions of the UPDF Act subjecting civilians to military law.

Issues

1. Whether acts of the security agency at the premises of the High Court on 16 November 2005 contravened Articles 23(1) & (6), 28(1) and 128(1), (2) and (3) of the Constitution.
2. Whether the concurrent proceedings in the High Court (Criminal Case No. 955 of 2005) and the General Court Martial (Case No. UPDF/GEN/075 of 2005) contravene Articles 28(1) and 44(c) and are inconsistent with Articles 28(9) and 139(1) of the Constitution.
3. Whether section 119(1)(g) and (h) of the UPDF Act No. 7 of 2005 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 persons before the General Court Martial on charges of terrorism contravenes Articles 22(1), 28(1) and 126(1) of the Constitution.
6. Whether the trial of the accused persons for the offence of terrorism 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

• The acts of the security agency at the High Court premises on 16 November 2005 contravened Articles 23(1) & (6), 28(1) and 128(1), (2) and (3) of the Constitution.
• The concurrent proceedings against the accused persons in the High Court (Criminal Case No. 955 of 2005) and in the GCM (Case No. UPDF/GEN/075 of 2005) contravene Articles 28(1) and 44(c) and are inconsistent with Article 28(9) of the Constitution.
• Section 119(1)(g) and (h) of the UPDF Act No. 7 of 2005 is inconsistent with Articles 28(1) and 210 of the Constitution.
• The GCM has no judicial power over civilians who do not fall under the UPDF Act; their trial, singly or jointly with members of the UPDF, before the GCM for offences under the UPDF Act is inconsistent with Articles 28(1) and 210 of the Constitution.
• The trial of the accused persons before the GCM on the charge of terrorism contravenes Articles 28(1), 120(1)(3)(b) and 210 of the Constitution.
• Each party to bear its own costs of the petition, it having been brought in the public interest.

Rules and key headnotes

Legislation cited (35)

• Constitution of Uganda 1995 art.137(3)
• Constitution of Uganda 1995 art.50(1) & (2)
• Constitution of Uganda 1995 art.23(1) & (6)
• Constitution of Uganda 1995 art.28(1)
• Constitution of Uganda 1995 art.28(9)
• Constitution of Uganda 1995 art.44(c)
• Constitution of Uganda 1995 art.120(3)(b)
• Constitution of Uganda 1995 art.126(1)
• Constitution of Uganda 1995 art.128(1), (2) & (3)
• Constitution of Uganda 1995 art.129(1) & (2)
• Constitution of Uganda 1995 art.139(1) & (2)
• Constitution of Uganda 1995 art.208(2)
• Constitution of Uganda 1995 art.210
• Constitution of Uganda 1995 art.257
• Constitution of Uganda 1995 art.2(1) & (2)
• UPDF Act No 7 of 2005 s.119(1)(g) & (h)
• UPDF Act No 7 of 2005 s.197(1) & (2)
• UPDF Act No 7 of 2005 s.185
• UPDF Act No 7 of 2005 s.204
• UPDF Act No 7 of 2005 s.2
• UPDF Act No 7 of 2005 s.42
• Anti-Terrorism Act No 14 of 2002 s.3
• Anti-Terrorism Act No 14 of 2002 s.6
• Anti-Terrorism Act No 14 of 2002 s.7(1)(b) & (2)(j)
• Firearms Act Cap 299 s.3(1), (2)(a) & (b)
• Judicature Act Cap 13 s.33
• Judicature Act Cap 13 s.34
• Judicature Act Cap 13 s.36
• Judicature Act Cap 13 s.37
• Criminal Procedure Code Act s.2
• Civil Procedure Rules O.17 r.3
• Penal Code Act
• Law Society Act Cap 276
• African Charter on Human and Peoples' Rights art.6
• International Covenant on Civil and Political Rights art.14

Cases cited (9)

• Republic v EL Manu (1969) EA 357
• South Dakota v North Carolina, 192 US 268
• 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)
• Attorney General v Major General David Tinyefuza (Constitutional Appeal No. 1 of 1997)
• Ismail Serugo v Kampala City Council and Attorney General (Constitutional Appeal No. 2 of 1998)
• Joseph Tumushabe v Attorney General (Constitutional Petition No. 6 of 2004)
• The Queen v Big M Drug Mart Ltd (1980) LRC (Const) 322
• Major General Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Mpunga and Another v Attorney General (Constitutional Petition No. 32 of 2012)

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