Bukeni and 48 Others v Attorney General and 3 Others (Miscellaneous Cause 10 of 2021) [2021] UGHCCD 12 (16 March 2021);

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA
[CIVIL DIVISION]
MISCELLANEOUS CAUSE NO. 10 OF 2021

BUKENI ALI & 48 OTHERS:::::::::::::::::::::::::::::::::::::::::::: APPLICANTS
VERSUS

ATTORNEY GENERAL & 3 OTHERS::::::::::::::::::::::::::::_:RESPONDENTS

BEFORE: HON. JUSTICE ESTA NAMBAYO

RULING

The Applicants brought this application against the Respondents under Articles 20, 23,

24, 28, 29, 43, 44, 126 (1), 128 (2) and (3) and Article 50 of the Constitution of the Republic of Uganda as amended and sections 1, 3, 4, 8, 9, 11, 14 and 15 of the Human Rights (Enforcement) Act, 2019 and the provisions of the Judicature (Fundamental & Other Human Rights & Freedoms) (Enforcement Procedure) Rules, 2019) seeking for the following orders and declarations: –

1. A declaration that the detention of the Applicants by the agents of the Respondents for a period exceeding 48 hours without trial is in contravention of their rights guaranteed under the 1995 Constitution of the Republic of Uganda.
2. A declaration that the detention of the Applicants in un-gazetted places of detention to wit; Kasijjagirwa and Makindye Military Barracks constitutes an egregious violation of their rights enshrined under the 1995 Constitution of the Republic of Uganda.
3. A declaration that the concurrent trial of the Applicants before the Chief Magistrates Court of Masaka at Masaka and the General Court Martial, Makindye violates their rights guaranteed under the 1995 Constitution of the Republic of Uganda.
4. A declaration that the denial of the Applicants access to their lawyers, next of kin and medical doctors of their choice constitutes an egregious infringement of their rights guaranteed under the 1995 Constitution of the Republic of Uganda.
5. A declaration that the act of the 3^rd Respondent and/ or its agents/ servants in defying the order of the Chief Magistrates Court of Masaka at Masaka to release the Applicants and handing them over to the Uganda Peoples Defence Forces leading to their further unlawful detention at Makindye Military Barracks was in contravention of their rights and freedoms guaranteed under the 1995 Constitution of the Republic of Uganda.
6. A declaration that the arraignment and/ or charging of the Applicants before the General Court Martial in Criminal Case No. UPDF/GCM/001/2021 in the absence of their Lawyers contravened their right to a fair hearing under Articles 28, 44 (c) of the 1995 Constitution of the Republic of Uganda.
7. A declaration that the procedure leading to the detention of the Applicants was irregular, unlawful and marred by gross human rights violations specifically the right to a fair hearing and freedom from torture, inhuman and degrading treatment.
8. A declaration that the Applicants’ non-derogable right of a fair hearing and freedom from torture have been grossly violated.
9. A declaration that there are no justifiable reasons for the continued detention of the Applicants.
10. An order for the unconditional release of the Applicants from detention.
11. An order for a public apology by the Respondents respectively for the illegal and oppressive acts committed against the Applicants.
12. An order to the Director of Public Prosecutions to commence investigations and prosecute officers of the Respondents involved in the violations of the rights complained of hereinabove.
13. An order directing the Respondents to undertake to guarantee the non­repetition of their illegal conduct complained of hereinabove.
14. A permanent injunction restraining the officers and members of the Uganda Peoples Defence Forces, Uganda Police, Local Defence Units, and other security personnel from removing their nametags from their official uniforms.
15. A permanent injunction restraining the officers and members of the Uganda Peoples Defence Forces (UPDF) and Uganda Police Force from removing number plates from the vehicles used in security operations.
16. A permanent injunction restraining the Respondents from further trial and or prosecution of the Applicants in relation to the aforementioned or related offences as purported in their respective charge sheets.
17. An order for payment of general and exemplary damages for the violations of the aforementioned rights.
18. Costs of this application be provided for.

The grounds of this application are set out in the affidavits of Katana Benjamin, Angella Nansamba, Deborah Nabwami, Nakagiri Susan, Mutebi Nsubuga Moses and Kitagaana Zaidi but briefly they are that: –

1. The Applicants are members of the National Unity Platform (NUP) which sponsored Hon. Robert Kyagulanyi Ssentamu and are members of his campaign team who have been helping him in his bid to become the President of Uganda.
2. On the 29^th day of December, 2020, the Applicants and other supporters of the National Unity Platform while on their way to Kalangala District for campaigns were arrested by a joint task force of the Uganda Peoples Defence Forces (UPDF) and Police Officers dressed in military attire and police uniforms without name tags, and covered from head to toe with black masks and in head gear preventing their identification.
3. The Applicants were driven to Masaka Police Station while others were taken to Kasijjagirwa Military Barracks where they were detained. They were denied access to their lawyers, next of kin, and Medical Doctors and the officers of the Respondents refused to disclose their whereabouts to any of the family members.
4. On the 4^th day of January, 2021, the Applicants were charged with the offence of acting in a manner that is likely to spread an infectious disease and inciting violence and arraigned before the Chief Magistrates Court of Masaka.
5. The Applicants while in court had visible signs of torture through beatings and informed court accordingly which granted them bail on the strength of the sureties they brought before court. However, the same was granted before the close of business, yet the Chief Magistrates Court had directed that the Bail payments were to be effected in the bank.
6. The sureties of the Applicants proceeded to the Bank to pay the bail money, however a group of the police and military officers beat and chased the sureties away even before they could sign the bail forms forcing them to flee from the exercise.
7. On the 05^th January, 2021, the process of signing bail forms was concluded and production warrants were issued to produce the Applicants before court to enable them be released on bail. However, the officers of the 3^rd Respondent refused to take the Applicants to court.
8. Instead on the 07^th day of January, 2021, the agents of the 3^rd Respondent handed the Applicants to a joint task force of the Police and the Military from Masaka Central Prison where they were held and transferred them to Makindye Military Barracks where they were freshly charged before the General Court Martial and still the Applicants’ lawyers and relatives were denied access to them.
9. The Applicants were on the 8^th day of January, 2021 arraigned before the General Court Martial and remanded to Kitalya and Kigo Prisons.
10. The Applicants’ lawyers to wit; Medard Lubega Sseggona, Chrisestom Katumba, Jonathan Elotu and Benjamin Katana together with relatives of the Applicants and journalists were denied entry into the General Court Martial.
11. The detentions, torture, arraignment and trial and handing over of the Applicants to the officers of the Uganda Peoples Defence Forces contravenes the provision of the Constitution and the tenets of separation of powers.
12. The concurrent trial of the Applicants in the Chief Magistrates Court of Masaka at Masaka and the General Court Martial in the circumstances cannot guarantee a fair trial envisaged under the constitution of the Republic of Uganda.
13. The military have/ had no right or power to detain the Applicants whether in the barracks or anywhere else.
14. The Applicants have been subjected to horrendous inconveniences, mental anguish and emotional stress for which the Respondents are jointly and severally liable.
15. It is just and equitable that this application be allowed on such terms as the Court deems fair and expedient.
16. The Applicants were inaccessible and are not in position to swear the affidavits as a result of being held incommunicado.

The Respondents filed affidavits in reply sworn by Enock Abaine, the Assistant Commissioner of Police and Regional Police Commander Greater Masaka, Byabakama Benon, the Assistant Superintendent of Police and District Police Commander Kalangala, Kidega Henry, the Superintendent of Prisons, Masaka, D/AIP Esebu Edward, the Regional Scene of Crime Officer, Masaka and Col Moses Wandera, the Deputy Chief of Legal Services in the UPDF, opposing the application. The grounds of opposition are briefly that Presidential Candidate Hon. Kyagulanyi Robert Ssentamu was scheduled to have campaign meetings at Kalangala including Kaila playground at Kalangala Town Council, Misonzi Landing site in Bufumira sub County, Namisoke landing site in Bubeke sub County, Kisaba Landing site in Kyamuswa Sub County and Kachanga landing site in Mazinga sub County. As a result, a joint security team comprised of Uganda Police Force, Uganda Peoples Defence Forces and Intelligence Agencies were deployed in the area to provide security, ensure law and order and compliance with the COVID-19 Standard Operating Procedures (SOPs) at the campaign meetings. That Presidential candidate Robert Kyagulanyi Ssentamu and his team refused to use all the agreed venues for their campaign meetings as scheduled and agreed in the campaign meeting held by the National Unity Platform party representatives and the Kalangala District Security Committee and decided to hold a rally at Bugoma Landing site, which was not among the mutually agreed venues. At the rally at Bugoma Landing site, the crowd comprised of more than 400 people who were not observing COVID-19 SOPs started a procession from Bugoma Landing site to Kalangala District Headquarters in total disregard and violation of the Electoral Commission guidelines on the conduct of campaign meetings and Covid -19 SOPs. The joint security team decided to intercept the crowd in procession, leading to the arrest of 126 people including the Applicants. The suspects were not arraigned before Court on Friday the 1^st of January, 2021 because it was a gazetted Public Holiday of 1^st January, 2021 (New year’s day), the 2^nd and 3^rd of January, 2021 were Saturday and Sunday respectively. On Monday the 4^th January, 2021, the suspects appeared before the Chief Magistrates Court at Masaka, where they were charged and granted bail on terms that they were not able to fulfil immediately leading to their remand to Ssaza Government Prison at Masaka until the 19^th January, 2021. It is the Respondent’s contention that 49 of the suspects were found in possession of ammunition. On the 6^th January, 2021, while the suspects were still at Ssaza prison on remand awaiting to appear at Masaka Court on the 19^th January, 2021, a Production Warrant from the General Court Martial requiring to produce the 49 inmates found with ammunition to the General Court Martial at Makindye on the 08^th January 2021 was served on to the Masaka Prisons. On the same day, Masaka Chief Magistrates Court also issued a production warrant requiring Masaka Prison to produce all the 99 inmates remanded on the 4^th January, 2021 at Court on the 07^th January 2021. The forty-nine (49) inmates accused of being in possession of ammunition were taken to Makindye Military Barracks to answer charges of unlawful possession of ammunition before the Court Martial. The remaining fifty (50) were taken to the Chief Magistrates Court at Masaka and released on bail. The trial of the 49 in- mates who were taken to the General Court Martial is premised on the offence of unlawful possession of ammunition which is different from the charges that all the 99 suspects are facing at the Chief Magistrates Court at Masaka and that the hearing at the Court Martial commenced on the 1^st February, 2021.

There is a disconnect on the dates of Friday the designated Public Holiday, followed by the 2^nd and 3^rd which are said to be weekends of December, 2020. These should be dates in January, 2021 and not December, 2020. The campaign at Kalangala leading to the arrest of the suspects took place on the 30^th December, 2020. So the dates ahead must be dates in 2021.

Representation

Learned Counsel Medard Lubega Sseggona, Chrisestom Katumba, Jonathan Elotu and Benjamin Katana represent the Applicants while Principal State Attorney Wanyama Kodoli together with State Attorney Ebila Hillary Nathan, represent the Respondents.

Issues for trial are: –

1. Whether there were any human rights violations to the Applicants?
2. What remedies are available to the parties?

Issue No.1: Whether there were any human rights violations to the Applicants

Counsel for the Applicants laid out various constitutional violations under this issue and made submissions according to the violated articles specifically. I will follow the same pattern of presentation.

(i) Violation by detention beyond 48 hours contrary to Article 23(4) (b) of the 1995 Constitution of Uganda.

Counsel for the Applicants submitted that the Applicants were detained by the agents of the Respondents for a period exceeding 48 hours without trial. Counsel explained that Benjamin Katana under paragraph 5 and 9 of his affidavit shows that the Applicants were arrested on the 29^th day of December 2020 and detained for 5 days before they were arraigned in court on the 4^th day of January 2021 which was beyond the mandatory 48 hours provided for under the constitution. That another witness Angella Nansamba also brings this out under paragraph 2 and 5 of her affidavit in support of the application. That the evidence of ACP Enoch Abaine under paragraphs 14 and 18 also confirms that the Applicants were arrested on the 29^th December, 2020 and brought to court on 4^th January, 2021 which was beyond the 48-hour period provided by the law. He relied on the case of Tabisa Edisa Nakaziba -v- Attorney General MC No. 295 of 2018, where Court held that: –

“the Applicant’s rights were violated when she was detained for three months without either being set free or taken to a court of law.”

Counsel submitted that this is not permissible under the Constitution and prayed that this Court finds that the detention of the Applicants for a period exceeding 48 hours without trial was unlawful.

In reply, Counsel for the Respondents submitted that the right to liberty under Art 23 of the 1995 Constitution of Uganda is not one of the non-derogable rights because under certain justifications, the right to liberty can be restricted. He relied on Art 23(1) of the Constitution. Counsel explained that the affidavit of ACP Abaine demonstrates that the Applicants were detained on the 30th December 2020 and charged in court on the 4th January 2021. He referred Court to paragraphs 18 & 22 of Abaine’s affidavit. That under paragraph 20 of ACP Abaine’s affidavit, it is stated that the police spent the 31^st December, 2020, compiling files of suspects for arraignment in Court. Under paragraph 21, Mr. Abaine states that the suspects were not arraigned before court on Friday the 1^st of January 2021 because it was a gazetted public holiday that the 2^nd and 3^rd of January 2021 were weekends.

Counsel submitted that in the circumstances, the detention of the Applicants was lawful as the forty-eight hours lapsed on a public holiday followed by a weekend. The Suspects were taken to Court on the 4^th January, 2021 as soon as the weekend lapsed. That the 4/01/2021 was the lawful last day under the law.

Analysis

Article 23 (4) (b) of the 1995 Constitution provides that a person arrested or detained upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, shall, if not earlier released, be brought to court as soon as possible but in any case not later than forty-eight hours from the time of his or her arrest.

In the Kenyan case of Republic -v- Amos Karuga Karatu [2008] eKLR, Court noted that: –

“The law of the land has to be obeyed particularly by those entrusted to enforce it. If the supreme law of the land says that an accused person has to be brought before court within 24 hours in the event of a non-capital offence and 14 days for a capita! one, that law must be strictly observed failing which the police have a burden cast on them to satisfy the court that the accused had been brought before court as soon as was reasonably practicable.” (emphasis is mine).

In Ndede -r- Republic [1991] K!r 567, the appellant had been arrested without a warrant on the 29^th September 1997 and was held in detention, incommunicado, until 30^th October, 1997 when he was taken before a Magistrate. The period of delay was just over thirty days. Ndede pleaded guilty before the Magistrate and was sentenced to inprisonment. He appealed to the High Court against the conviction and sentence but the appeal against the conviction was struck out as being incompetent, the Appellant having been convicted on his own plea of guilt. Ndede then appealed to the Court of Appeal. The Court of Appeal held that: –

“as there was no explanation offered for the delay of some thirty days before Ndede was brought to court, the trial Magistrate ought not to have accepted Ndede’s plea of guilty.”

The quashing of Ndede’s conviction was on the basis of lack of justification for violation of Ndede’s right by detaining him for more than the period laid down by law.

In this case, the RPC Greater Masaka, ACP Abaine Enock, states under paragraph 14 of his affidavit, that the Applicants were arrested on the 30^th December, 2020. This contradicts the evidence of the Applicants’ witnesses that the arrest took place on the 29^th December, 2020. The charge sheets presented by the Applicants indicate that the charges were drawn against the Applicants on the 31^st December, 2020 and that the offences were committed on the 30^th December, 2020. It is my finding therefore, in the absence of any other documentary evidence, that the Applicants were arrested on the 30^th December, 2020 as stated in the charge sheets and not on the 29^th December, 2020 as stated in the affidavits in support of the application.

Mr. Abaine further states under paragraph 21 of his affidavit in reply, that Friday the 1^st after the arrest of the Applicants, was a gazetted Public Holiday. That this was followed by the 2^nd and 3^rd which were weekends and that on the 4^th January, 2021, the Applicants were arraigned before Masaka Chief Magistrates Court.

This Court takes judicial cognisance of the fact that the 30^th of December, 2020 was a Wednesday. This is when the Applicants were arrested at Kalangala. According to paragraphs 16, 17 and 18 of DPC Abaine Enock’s affidavit in reply, some of the suspects 10 while in detention at Kalangala Police Station became violent and broke the police cells. That this made him to order for the transfer of 99 of the 126 suspects to the Central Police Station at Masaka leaving behind 27 suspects. No evidence has been brought to Court about the 27 suspects who remained at Kalangala. DPC Abaine states that on the evening of 30th December, 2020, when the 99 suspects arrived at Masaka Police station, they could accommodate only 85 of the 99 suspects in the Police cells at Masaka. So, the remaining 14 suspects were transferred to Kassajjagirwa Military facility for safe custody. This means that the 48 hours elapsed on Friday the 1^st of January, 2021 which was New year’s day and therefore a Public Holiday. 2^nd was a Saturday and 3^rd a Sunday. Courts do not usually sit on public holidays and weekends. The Applicants were taken to Court on Monday the 4^th January, 2021. This was the earliest possible working date. Basing on the findings in the above Kenyan case law, which I find pursuasive, it is my view and finding that the explanation given by the RPC Greater Masaka, ACP Abaine Enock, that the Applicants were taken to Court as soon as was reasonably practicable, convincing. Therefore, the Police delay in producing the Applicants before the Chief Magistrates Court at Masaka was justified despite the fact that the Applicants had been in detention for more than 48 hours. The 48 hours having lapsed on or just before New year’s day followed by a week end ending on the 3^rd January, 2021 and the accused being taken before Court on the 4^th January, 2021 immediately after the week end.

(ii) Detention at Un-gazetted Places at Kassajjagirwa and Makindye Military Barracks contrary to Article 23 (2) of the 1995 Constitution

Counsel for the Applicants submitted that the Applicants were detained at Kassajjagirwa Military Barracks which is not a gazetted detention facility contrary to Art. 23 (2) of the Constitution. That the detention of the Applicants at Kassajjagirwa was an affront to the law which provides that persons are to be detained in a gazetted detention centre. Counsel referred this Court to paragraphs 18 and 19 of the affidavit of Enoch Abaine where he states that he transferred some of the Applicants to Kassajjagirwa Military Facility because Masaka Police could only accommodate 85 of the 99 Suspects. That the act of taking some of the suspects to Kassajjagirwa was contrary to Article 23 (2) of the Constitution. Counsel prayed that this Court finds that the detention of the Applicants in 11

an un-gazetted place at Kassajjagirwa contravened the provisions of Article 23 (2) of the Constitution of Uganda.

In reply, Counsel for the Respondents submitted that the reason for the transfer of some of the Applicants to Kassajjagirwa Military Facility was because Masaka Police station could not absorb all the suspects at the time. Counsel referred this Court to paragraphs 18 & 19 of the affidavit of ACP Enock Abaine where he states that 85, out of the 99 suspects were detained at Masaka Police station while 14 suspects were transferred to Kassajjagirwa Military Facility for safe custody due to shortage of space at Masaka Police.

Counsel further submitted that Article 212 (d) of the Constitution allows Police to cooperate with the civilian authority and other security organs established under the Constitution and with the population generally. That it was in pursuance of the above provision that Police transferred the suspects to the sister security facility for safe custody due to limited capacity to absorb all the suspects at Masaka.

Counsel explained that Article 23(2) of the Constitution prohibits detention in unauthorized/ungazetted detention centres which was not the case. He relied on Regulation 5(1) of the National Resistance Army (Application to civilians) Regulations 1996, which provides that-

“upon arrest of a civilian, that civilian may be detained in a military cell and shall be brought before a military court not later than forty-eight hours after arrest.”

Counsel also relied on Section 188(1) of the UPDF Act,2005, which provides that a person effecting arrest under this Act shall immediately commit the person arrested to civil custody or service custody. The civil or service custody are the only authorized instances of lawful detention in military centres and submitted that following the above provisions of the law, military cells are authorized detention centres. That in this case, the Applicants did not adduce evidence to prove that Kassajjagirwa Military Facility, where they were detained was un gazetted and as such, they failed to discharge the burden of proof expected of them.

Analysis

Article 23 (2) of the 1995 Constitution of Uganda provides that a person arrested, restricted or detained shall be kept in a place authorized by law.

1. a) Detention at Kassajjagirwa Military Facility

It is not in dispute that there were suspects detained at Kassajjagirwa Millitary Facility. ACP Abaine states in paragraphs 18 and 19 of his affidavit in reply that in the evening of 30th December, 2020, Masaka Police cells could only accommodate 85 of the 99 suspects that were brought from Kalangala. That the remaining 14 suspects were transferred to Kassajjagirwa Military Facility for safe custody because there was shortage of room at Masaka Police Station to hold all the suspects at Police.

Millitary Facilities established under the LIPDF Act are intended to serve people in the Military or civilians who have come in conflict with the Military law.

Regulation 5(1) of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations, provides that: –

“upon arrest of a civilian, that civilian may be detained in a military cell and shall be brought before a military court not later than forty – eight hours after his or her arrest”.

In this case, Civilians were detained in a military facility with the intention of taking them before a Civilian Court. This was contrary to the above provision of the law.

1. 188 (1) of the UPDF Act, 2005 relied on by Counsel for the Respondents envisages arrest of the civilian by the military and upon such arrest; the civilian suspect should be committed to civil custody.

Art.23 (2) of the Constitution provides that a person arrested, restricted or detained shall be kept in a place authorized by law, (enphasis is mine). Counsel for the Applicants has not presented evidence to show that Kassajjagirwa military facility where the 14 Applicants were detained is a place not authorized by law. All that they have presented is evidence showing that the Applicants were detained at Kasajjagirwa military facility. Kasajjagirwa military facility not being a Police detention centre does not necessarily mean that it is a place not authorized by law.

My finding therefore, is that the evidence presented by the Applicants does not show that they were detained in a place not authorized by law. The complaint in my view, is detaining the Applicants in a military facility when they are not in the military, neither were they going to appear before a military court. The suspects from Kassajjagirwa were all taken to be charged at the Chief Magistrate’s Court of Masaka. Therefore, their detention at Kassajjagirwa military facility contravened Regulation 5(1) of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations.

1. b) Detention at Makindye Military Barracks

After being charged at Masaka Chief Magistrates Court, 49 suspects were taken to Makindye military barracks and subsequently charged before the military court martial.

Section 119 of the UPDF Act, 2005 provides for Persons subject to Military law.

5. 119 (1) (h) i provides specifically that: –

(1) The following persons shall be subject to military laws –

1. every person found in unlawful possession of: –
2. arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces.

Regulation 3 of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations, SI 307-8 provides for civilians to be tried by a General Court Martial and it states that: –

“A civilian to whom the provisions of the Act apply shall be tried only by the Division Court Martial, General Court Martial and the Court – Martial Appeal Court.” Regulation 5(1) of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations, provides that upon arrest of a civilian, that civilian may be detained in a military cell and shall be brought before a military court not later than forty – eight hours after his or her arrest.

Under Regulation 5(2) of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations, when a civilian is brought before a military court under sub regulation (1) of this regulation, the military court shall remand that person in a civil prison from where, whenever that person is required to be produced in the military court, he or she shall be brought.

Regulation 5(3) of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations provides that the case against a civilian held under this regulation shall be heard as soon as possible.

In this case, the suspects remanded at Makindye military baracks were charged with unlawful possession of ammunition C/s 3(1) and (2) (a) of the Firearms Act which brought them under the jurisdiction of the General Court Martial. Therefore, their remand at Makindye military baracks before charging them at the General Court Martial fell within the provisions of Regulation 5(1) of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations.

According to the Court Martial record of proceedings of the 1^st/2/2021 after the Applicants made their first appearance before the Court Martial, they were remanded at Kitalya and Kigo Government Prisons which are civilian Prisons. (See page 33 of annexure C to the affidavit of Col. Moses Wandera. This was also in line with the provisions of Regulation 5(2) of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations.

1. Denial of the Applicants access to their lawyers, next of kin and Medical Doctors and the fruits of their bail.

Counsel for the Applicants submitted that on the 8th of January 2021, the Applicants’ lawyers Hon. Medard Lubega Sseggona, Chrisestom Katumba, Benjamin Katana and Jonathan Elotu together with the relatives of the Applicants were denied entry into the General Court Martial. Counsel relied on paragraphs 9 and 14 of the affidavit of Benjamin Katana, paragraph 9 of the affidavit of Deborah Nabwami, wife to the 7th Applicant and paragraph 13 of the affidavit of Col. Moses Wandera to show that the Applicants sought for their lawyers who were outside to represent them in Court to no 15

avail. Counsel prayed that court finds that the denial of the Applicants access to their lawyers, next of kin and medical doctors was a violation of their rights under the Constitution of Uganda. That the Applicants denial of the due process of law including the right to enjoy the benefits of their bail granted by the Chief Magistrates Court at Masaka contravened their rights.

Counsel relied on Article 128 (3) of the Constitution which requires every State agency to assist Courts in the realisation of its orders and submitted that the UPDF, UPF and Prison authorities have instead frustrated this effort to the Applicants’ chagrin. Counsel relied on the cases of Gregory Kafuuzi versus Attorney General [2000] KALR 473, where it was held that Article 23 (5) (a) of the Constitution of Uganda as amended requires that an arrested person shall be allowed to inform his family that he has been arrested, failing of which is a violation of his/ her constitutional right. That the denial of this right by the Respondent’s agents invariably violates the rights of the Applicants and in the case of Issa Wazembe -v- Attorney General, where Justice Musa Ssekaana relied on the case of Joseph Tumushabe vs Ag [2005] KALR 768, where Ntabgoba, PJ. (as he then was) held following S.188 (1) of the UPDF Act, 2005, which provides that a person effecting arrest under this Act shall immediately commit the person arrested to civil custody or service custody and found that there was a violation of the rights of the Applicant as he had been detained in military custody.

In reply, Counsel for the Respondents submitted that paragraphs 7 & 17 of Nasamba and Nabwami’s affidavits demonstrate that the Applicants had access to their relatives. That the doctors and lawyers of the Applicants’ choice had the opportunity to access them as required under Article 23(5)(b) of the Constitution.

Analysis

Article 23 (5) (b) of the 1995 Constitution provides that a person restricted or detained shall be allowed reasonable access to the next-of-kin, lawyer and personal doctor.

Regulation 6(1) of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations S I 307 – 8, provides that a civilian to whom these regulations apply shall be entitled to be represented before a military court by a lawyer of his or her own choice.

Under Regulation 6(2), where a civilian is unable to afford a lawyer then that person shall, in case he or she is charged of a capital offence, and at the expense of the state, be provided a lawyer to represent him or her.

Col. Moses Wandera informed Court in paragraph 13 and 14 of his affidavit that the 49 accused persons pleaded not guilty to the Charge of unlawful possession of ammunition and applied for bail before the General Court Martial. He referred this Court to a copy of the Court Martial proceedings on bail application which is annexure “D” to his affidavit in reply.

According to the Court Martial proceedings on pages 2, 3 and 4, the accused persons were asked the language that they would use in Court and they all said they would use Luganda. It is indicated that there were interpreters in Court. The accused persons were then told that they had a right to object to any member on the panel participating in the hearing of their case. No one was objected to.

On page 7 of the proceedings, the Court explained to the accused persons that they had a right to legal representation by an Advocate of their choice. That the General Court Martial had Maj SK Mutungi provided by the Government to represent all accused persons appearing before the Court Martial in case they had no lawyers of their own. All the accused persons named their own lawyers who included Counsel Medard Ssegona, Counsel Katana, Counsel Malende, Counsel Asuman Basalirwa, Counsel Rubongoya, Counsel Kibazo, Counsel Wameli and others. The above proceedings took place before charges were read out to the accused persons. At the end of the proceedings of that day, it is recorded that the accused persons were advised to communicate to their lawyers to be present in Court at the next hearing scheduled for the 19^th January, 2021. According to annexure “D” to Col Wandera’s affidavit in reply, the Applicants filed a Notice of Motion applying for bail. There are also photocopies of identity cards for some sureties and photocopies of letters of introduction of the sureties from their respective Local Council Authorities. In view of the above, it is my sincere belief and finding that the Applicants were not denied access to their lawyers and next of kin.

On the right of the Applicants access to medical Doctors, there is no evidence presented to show that the Applicants requested for access to a medical Doctor and it was denied.

1. Denial of a right to a fair hearing.

Counsel for the Applicants submitted that on the 8^th of January, 2021, the lawyers of the Applicants to wit; Hon. Medard Lubega Sseggona, Chrisestom Katumba and Jonathan Elotu together with Angella Nansamba, Deborah Nabwami and Nakagiri Susan relatives of the Applicants proceeded to the General Court Martial to represent and seek for bail for the Applicants. Some army personnel, called Tumusiime Ronald, informed them that he had orders from above not to let them into the General Court Martial.

That while the Applicants’ lawyers were requesting to be allowed into the General Court Martial, the Applicants were being arraigned before the Court Martial. That the Applicants asked for their lawyers to be present in Court, but the Chairperson declined to grant their prayers and remanded them to Kitalya Prison. Counsel relied on the cases of Pett -v- Greyhound Racing Association (1968) 2 AH ER 545 where Lord Denning observed that: –

“it is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task” and the Kenya case of the Republic -vs- Karisa Chengo & 2 Others, Petition No. 5 of 2015 [2017] eKLR where the Supreme Court while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows: –

“the right to legal representation…………………. under the said article, is a fundamental

ingredient of the right to a fair trial and is to be enjoyed pursuant to the Constitutional edict without more.”

Counsel explained that the actions of the General Court Martial not following the laid down principles under Article 28 of the Constitution by denying the Applicants a right to be represented by counsel of their choice contravened their right to a fair hearing. Counsel prayed that this Court finds that the arraignment and/ or charging of the Applicants before the General Court Martial in Criminal Case No. UPDF/GCM/001/2021 in the absence of their Lawyers contravened their right to a fair hearing.

In reply, Counsel for the Respondents submitted that the Applicants’ right to a fair hearing was not violated at all by the Respondents as alleged. That evidence to confirm that the Applicants right to a fair hearing was duly observed as contained in paragraphs 12, 13, 14, and 15 of the affidavits of Col. Moses Wandera, paragraphs 1, 2, 3, 4, 5 and 6 of Major John Bizimana, paragraphs 9 & 12 of the affidavit of Katana Benjamin where the charge sheet before the Chief Magistrates Court at Masaka and the General Court Martial are attached and marked as annexures A & B respectively. Counsel further referred this Court to paragraphs 4 & 5 of the affidavit of Nakagiri Susan and submitted that in view of the above evidence, it is their conclusion that the Applicants were duly accorded a fair hearing both at the Chief Magistrates’ Court at Masaka and the General Court Martial.

Analysis

According to the Court proceedings of the 8^th January, 2021, when the accused persons first appeared before the General Court Martial, their lawyers were not in Court. Counsel for the Applicants have submitted that they were denied access by Tumusiime Ronald on grounds that he had orders from above not to allow them in. No evidence has been presented to back up this allegation. The record presented to this Court as evidence of that day’s proceedings shows that the accused persons appeared in Court in person, that the Court explained to them their right to a lawyer of their choice and that there was also a Court Martial lawyer on brief. That each of the accused persons opted to get his or her own lawyers, who they each named including Hon. Ssegona, Counsel Katana, Counsel Malende Counsel Asuman Basalirwa, Counsel Rubongoya, Counsel Kibazo, Counsel Wameli and others. The proceedings of the Court Martial for that day show that the Constitutional requirements under Art. 28 (3) (a), (b), (c), (d), (e) and (f) were fully complied with. (See also my finding in paragraph (iii) above).

Regulation 12 (1) of the Uganda Peoples’ Defence Forces (Rules of Procedure) Regulations SI 307 -1 which provides that: –

“Upon a Court Martial assembling, the Court shall, before beginning the trial, satisfy itself in dosed court—” I have put emphasis on the word “satisfy itself in dosed Court”.

The evidence presented that Counsel was denied access to the Court contradicts the record of the Court of that day showing that the Applicants were advised to inform their lawyers to appear in court for the next sitting. It is not clear at what stage Counsel for the Applicants were denied access to the Court. It is possible that Counsel could have arrived at the Court Martial when the Court was performing its mandatory preliminary requirements of satisfying itself in a dosed court (Regulation 12(1) (supra), before any hearings begin at the Court Martial.

1. Unconstitutionality of the Concurrent trial of the Applicants before the Chief Magistrate’s Court of Masaka and the General Court Martial at Makindye.

Counsel for the Applicant submitted that the concurrent trials before the General Court Martial and a Civil Court has been settled by the Courts of law as illegal. He referred this Court to the case of Attorney General -v- Uganda Law Society Constitutional Appeal No. 1 of 2006; where Mulenga JSC (as he then was) while quoting Okello J.A. noted that: –

“the concurrent proceedings in the General Court Martial and the High Court contravened Articles 28(1) and 44(c) of the Constitution, not only because the Genera! Court Martial had no jurisdiction over the offences with which the accused persons were charged before it, but also because such concurrent proceedings were inconsistent with the principle underlying the protection under Article 28(9).”

Counsel explained that Court record shows that on the 4^th January 2021, the Applicants were charged with the offence of acting in a manner likely to spread an infectious disease C/S 171 of the Penal Code Act and inciting violence in the Magistrate’s Court of Masaka and on the 08^th day of January 2021 the Applicants were whisked away to the General Court Martial and charged with unlawful possession of Ammunition Contrary to Section 3 (1) and (2) (a) of the Fire Arms Act Cap 299. Counsel relied on paragraph 12 of the affidavit in support of the application by Katana Benjamin. Counsel explained that the way the Applicants were whisked away by the agents of the Respondents from a Court of law and taken to the General Court Martial where they were freshly charged with unlawful possession of Ammunition Contrary to Section 3 (1) and (2) (a) of the Fire Arms Act points to an inference that the executive is trying to use the Applicants as political pawns to try them in a Court where it has control. Counsel relied on the case of 2^nd Lt. Ambrose Ogwang, Criminal Appeal No. 107 of 2013, where the Court of Appeal held that: –

“the General Court Martial is not an independent court in line with Article 28(1) of the 1995 constitution which requires that a court must be independent of the authority that brings the charges to the trial of the judges of an independent court and cannot be under the administrative control of the authority that brings charges. In order to secure independence of the courts, they must be placed under a different arm of the state known as judiciary with security of tenure and insulation from control of the executive which originates criminal charges. Military courts, appointed by the high command are basically organs of the army intended to ensure operational efficiency and discipline of officers and militants of the Uganda peoples defence forces”.

Basing on the above, Counsel submitted that the concurrent trial of the Applicants before the Chief Magistrate’s Court of Masaka and the General Court Martial at Makindye is unlawful and illegal and he prayed that this Court finds as such.

Analysis

Art. 28(1) of the Constitution of Uganda provides that in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.

Art. 44 provides that notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms—

1. –
2. –
3. the right to fair hearing;

1. 119 (1) of the UPDF Act, 2005 provides for people who are subject to military law and states as follows: –

(h) Every person found in unlawful possession of-

1. Arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces.
2. Other classified stores as prescribed.

In the case of Namugerwa Hadijah -v- DPP & Attorney General, SCCA No. 4 of 2012(2013] UGSC, Jotham Tumwesigye, JSC, (as he then was) noted that: –

“It is dear to me that Civilians in Uganda can become subject to military law and once they become subject to military law they will be tried by the General Court Martial. I am unable to see any exemption of civilians from the application of S. 179 of the Act once they become subject to military law under S. 119(1) (g) & (h) of the UPDF Act. Ordinarily civilians who are not involved in fighting wars should be tried by civilian Courts, not military courts. Therefore, S.119(1)(g) & (h) of the UPDF Act is rather unusuai…..untii section 119(1) (g) & (h) of the UPDF Act is repealed or declared to be unconstitutional by a competent Court, it will remain valid, effective and enforceable regardless of the misgivings of human rights advocates about it.”

In this case, the 49 accused persons who were taken to the General Court Martial were charged with the offence of unlawful possession of ammunition contrary to section 3(1) and (2) (a) of the Fire Arms Act. The particulars of offence are that the accused persons and others still at large on or around the 3^rd day of January, 2021 at Makerere Kavule, Kigundu zone in Kampala District were found in unlawful possession of four (4) rounds of live ammunition of AK-47, the said ammunition being ordinarily a monopoly of Defence Forces. The Court Martial has jurisdiction to try the offence with which the Accused persons were charged under S. 119(1) (h) i of the UPDF Act 2005. The case of Namugerwa Hadijah -v- DPP & Attorney General, (supra) emphasizes the position that civilians can be charged in a Court Martial under S. 119 of the UPDF Act, 2005.

I find the holding relied on by Counsel for the Applicants in the case of Attorney General -v- Uganda Law Society Constitutional Appeal No. 1 of 2006; not applicable to this case. In the holding relied on the Judge clearly pointed out that the Court Martial had no jurisdiction. In this case, the Court Martial has jurisdiction under S. 119(1) (h) i of the UPDF Act, 2005.

Secondly, in the holding the Judge referred to Art. 28(9) of the Constitution which provides that: –

“A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.”

The Applicants in this case have not presented any evidence to show that they have been tried by a competent court for the offence with which they are charged with before the Court Martial and /or that they have been previously convicted or acquitted of the same offence.

In regard to the case of 2^nd Lt. Ambrose Ogwang -v- Uganda; Criminal Appeal No. 107 of 2013, I find that the independence and impartiality of the trial Court was not part of the issues that Counsel required this Court to pronounce itself on, no evidence was brought to that effect and no prayer was sought for such pronouncement.

In Interfreight Forwarders (U) Ltd -v- East African Development Bank, SCCA No. 33 of 1992, the Court held that;

The system of pleading is necessary in litigating. It operates to define and deliver clarity and precision of the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which court will be called upon to adjudicate between them. It thus serves the double purpose of informing each party what is the case of the opposite party and which will govern the interlocutory proceedings before the trial and what the court will have to determine at the trial. (See Bullen & Leake and Jacobs Precedents of Pleadings, 12th Edition page 3). Thus, issues are framed on the case of the parties so disclosed in the pleadings and evidence is directed at the trial to the proof of the case so set and covered by the issues framed therein. A party is expected and bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a case not set up by him and be not allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by the way of amendment of the pleadings.” (emphasis is mine)

See also Semalulu -v- Nakitto (Civil Appeal No.4/2008) [2017] UGHCLD 49 (27/4/17), and DFCU Bank Limited v Muwanga (MISC. APPLICATION NO. 240 OF 2018) [2018] UGHCLD 38 (12/4/2018).

1. Torture of the Applicants Contrary to Article 44 (a) of the Constitution.

Counsel relied on Art. 24 of the Constitution which guarantees freedom from torture, cruel, inhuman or degrading treatment or punishment, Article 43 (1) and (2) (a), (b) and (c) of the Constitution, Article 44 (a) of the Constitution, Section 2 (1) of the Prevention and Prohibition of Torture Act, 2012 and the cases of Issa Wazembe vs. AG (supra) and Ireland vs United Kingdom EC HR Application No.5310/71 and explained that in this case, it is not disputed that Mr. Katana Benjamin with the lawyers of the National Unity Platform and the family members of the Applicants went to the various detention centres where the Applicants and other supporters of Hon. Robert Kyagulanyi Ssentamu and the National Unity Platform were detained but they were denied entry into the said detention centres despite several demands for the same. Counsel referred this Court to paragraphs 7and 8 of the affidavit of Katana Benjamin and submitted that these acts put the Applicants and their family members in immense torture which was inhumane and degrading.

Relying on the case of Tabisa Edisa Nakaziba -v- Attorney General MC No. 295 of 2018, Counsel submitted that holding an individual without permitting him or her to have contact with his or her family and refusing to inform the family if and where the individual is being held, is inhumane treatment of both the detainee and the family of the concerned and therefore amounts to cruelty.

That Katana Benjamin and Angella Nansamba state in their affidavits that they saw the Applicants with visible signs of torture through beatings when the Applicants appeared before Court for trial and that the Applicants informed court accordingly before being granted bail. Counsel prayed that this Court finds that the Applicants’ non-derogable rights of fair hearing and freedom from torture were grossly violated.

There were on submissions in reply on this issue by Counsel for the Respondents.

Analysis

Art. 44 of the Constitution of 1995 provides that notwithstanding anything in this Constitution, there shall be no derogation from enjoyment of the following rights and freedoms-

(a) Freedom from torture and cruel, inhuman or degrading treatment or punishment.

1. 3 (1) of the Prevention of Torture Act, 2012 provides that notwithstanding anything in this Act, there shall, be no derogation from the enjoyment of the right to freedom from torture.

Counsel submitted that Katana Benjamin and Angella Nansamba state in paragraphs 7 of their affidavits in support of the application that they saw the Applicants with visible signs of torture through beatings. Angella Nasamba states in paragraph 7 of her affidavit that she managed to speak to the 7th Applicant, who informed her that he was tortured and he even had visible scars on his body. There is no further evidence presented by the Applicants to the claim of torture, there is no medical report filed to confirm the allegations that the Applicants were tortured.

1. 101 of the Evidence Act, provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.

For Court to come up with a finding of torture, the victim should present evidence which is credible and properly verified by medical reports. It is not enough for the Applicants’ witnesses to only present sworn affidavits claiming that the Applicants were tortured and that the signs of torture were visible on the Applicants. The alleged tortured persons should have presented medical evidence to corroborate their claims. It is also important that the tortured persons tell Court how they were tortured. It is not enough for the Applicants witnesses to tell Court that the Applicants had visible wounds of torture. I find that the evidence presented by the Applicants is not enough to sustain the claim of torture.

iz/7l Unlawful continued detention of the Applicants contrary to Art 23 of the 1995 Constitution

Counsel for the Applicants submitted that the right to personal liberty is essentially a personal freedom in which no government can abuse. That this right requires that the arrest and or detention of an individual is in accordance with the law. The import of this right is to protect the individual against the excesses of the government and its agents. That this right is provided for under Article 23 of the 1995 Constitution as a fundamental human right that should be protected. That Section 15 (4) (e), (g) and (h) of the Human Rights (Enforcement) Act 2019 provides that a person shall be taken to be unreasonably detained where the procedure leading to his or her detention was irregular or unlawful; there are no justifiable reasons for his or her continued detention; His or her non-derogable rights have been infringed upon; His or her continued detention amounts to a miscarriage of Justice.

Counsel explained that under paragraphs 1, 12 and 14 of Benjamin Katana’s affidavit in support to the application, he states that the Applicants were arraigned before court on the 04^th day of January 2021, they applied for bail and the same was granted. However, on the 07^th day of January 2021, they were transferred to Makindye Military barracks wherein they have been detained despite having been granted bail. That this is not only in contempt of the orders of the Chief Magistrates Court that had served production warrants for the Applicants to appear in court, but also an abuse of court process and the powers of the Chief Magistrates Court by the agents of the executive. Counsel prayed that this court finds that the continued detention of the Applicants in Kitalya Prison is unlawful.

Analysis

I have already established that the Applicants applied for bail (see annexure “D” to the affidavit in reply made by Col. Moses Wandera. I also pointed out that evidence as to whether or not the Applicants were granted bail was not brought to the attention of this Court.

Under regulation 7(1) of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations, a military Court may grant bail to a civilian brought before it on the same considerations that regulate the granting of bail in civil courts.

Regulation 3 of the Uganda Peoples’ Defence Forces (Application to Civilians) Regulations, SI 307-8 provides that: –

“A civilian to whom the provisions of the Act apply shall be tried only by the Division Court Martial, General Court Martial and the Court – Martial Appeal Court.”

I wish to clarify that the offence with which the Applicants were charged in the Court Martial is different from the offences with which they were charged at the Chief Magistrates Court at Masaka. This means that the bail granted to the Applicants at Masaka Chief Magistrates Court does not apply in the Court Martial. The Applicants therefore, rightly applied for bail again in the Court Martial, where bail is not granted, they mail appeal to the Court Martial Appeal Court (see regulation 3of the Uganda Peoples’ Defence Forces (application to civilians) Rules).

In the result therefore, I find that the charging of the Applicants at the General Court Martial at Makindye is within the law. The record of proceedings from the General Court Martial shows that the Court Martial followed the right procedure within the law as has been established herein above. What has to be determined by the General Court Martial is whether or not the Applicants committed the offence with which they were charged. Therefore, I find no merit in this application and it is hereby dismissed from Court. Since the matter seems to still be ongoing at the General Court Martial, each party will bare its own costs.

I so order.

Dated, signed and delivered at Kampala this 16^th day of March, 2021.

Esta Nambayo

JUDGE

16/3/2021.