Court Martial Dismisses Besigye's Request For Constitutional Reference

The General Court Martial in Makindye has dismissed an application in which Col Dr Kizza Besigye wanted his treachery case to be referred to the Constitutional Court for interpretation. 

The Court chaired by Brigadier Robert Freeman Mugabe on Tuesday dismissed the application saying the matters  Besigye wants to raise before the Constitutional Court are already a subject of a pending appeal before the Supreme Court.  

Consequently, the  Court Martial ruled that the matter will continue hearing the cases based on a temporary injunction granted in the Kabaziguruka Case.

They immediately ordered  Besigye to take a plea on treachery charges.

However, Besigye's lawyers led by Martha Karua, Fredrick Mpanga and others said they would appeal against the decision.

But Mugabe said that since morning Lukwago has been talking about almost all laws without success.

The Judge Advocate Brigadier Richard Tukacungurwa advised that they were delaying and wasting time.

Brigadier Mugabe then continued and read charges against Besigye, his co-accused Obeid Lutaale Kamulegeya and Captain Denis Oula with whom they are jointly charged with five counts including treachery, and illegal possession of ammunition and firearms.

Whereas Captain Oula denied the charges against him, Besigye and Lutaale declined to take the plea and maintained their stand that they had a right to appeal.

The Court informed them that they could only appeal at the end of the whole trial but not on this particular ruling. The Court then indicated forcefully that Besigye and Lutaale had denied the charges.

The law allows courts to admit a plea of not guilty if an accused person declines to take the plea or remains silent.

The Court noted that the matters raised can be appealed in the Court Martial Appeals Court and further indicated that the laws need to be read together but not in isolation.

According to Mugabe, the law gives the court Martial power to give its opinion and it can agree or disagree to refer the matter for Constitutional reference.

The Kabaziguruka case which has given them powers to continue with Besigye's matter has its roots in 2016 when Michael Kabaziguruka, a civilian and then-member of Parliament, was arrested and detained on treachery charges. He was arraigned before the General Court Martial, which prompted him to petition the court, challenging its jurisdiction to try him.

The Constitutional Court ruled in Kabaziguruka's favour, declaring that Section 119(1)(h) and 179(1)(a) of the UPDF Act, which allowed for the prosecution of civilians, were unconstitutional. The court ordered that cases against civilians in military courts be transferred to civilian courts.

Despite this judgement, the General Court Martial has continued to try civilians, including Besigye and Obed Lutaale.

This was because the Supreme Court Justices in May 2024 issued a temporary injunction following an appeal by the Attorney General.

The Chief Justice had stayed the Constitutional Court decision on August 5, 2021, through a temporary injunction, allowing the General Court Martial to continue trying civilians.

Earlier in the morning, the team of Besigye's lawyers led by Martha Karua, Frederick Mpanga and Erias Lukwago asked the Court Martial to refer the case to the Constitutional Court for it to address several issues arising from the trial in which Col Dr Kizza Besigye and two others are accused of Treachery and unlawful possession of ammunition and firearms.



It all started when the Brigadier Robert Freeman Mugabe-led court ruled that they had the jurisdiction to try offences reportedly committed outside Uganda, including Geneva in Switzerland, Athens in Greece and Nairobi in Kenya where Besigye and Co-accused are said to have committed the crimes from.



Besigye's lawyers want the Constitutional Court to address the issue of impartiality and independence of the UPDF Court Martial because it investigates, and tries the accused persons.



They wonder how can one be a Judge in their cause when offences reportedly committed are against the defence forces when the very defence forces are again trying the case.  They say it's better for impartiality reasons, the case moves away from the General Court Martial.



They also want the Constitutional Court to interpret a question arising from Section 208 whether it is contrary to the Constitutional Provisions that say Parliament has powers to set boundaries outside Uganda.



They talked about the Huma Rights Enforcement Act saying that when the derogation of rights is brought to the attention of the Court, the Court is supposed to declare the trial a nullity.



He said if the Court Martial tries civilians, they are committing offences against the civil courts to which they are supposed to be subordinate.




Frederick Mpanga said the first question was about the uncertainty of the offence and said for instance someone is standing on the road and when he or she crosses the road is disobeying someone but again another person is telling him to cross the Road.  He clarified that the charges against Besigye and Lutaale are uncertain.



Mpanga further said the rationale should be one knowing that if you cross the Road or not crossing it is an offence.  He was trying to explain that the offences the accused persons are charged with are not clearly defined in the charge sheet.

Mpanga said the law should be very clear to the lowest person in society such that they don't do anything that prejudices the security of the defence forces.

On Impartiality, Mpanga said the military courts are supposed to try discipline offences but they are now appointed by the Executive.

Accordingly, they formed the questions for which they want the Constitutional Court to determine once their prayers have been granted by the General Court Martial.

They are, whether Section 128(1) (f) of the UPDF Act is defined and therefore consistent with Article 28(12) of the Constitution, whether in light of the decisions of the Constitutional Court and the Supreme Court regarding the trial of civilians in the Court Martial, the conduct of the General Court Martial, as an organ of the UPDF and the members of UPDF who constitute it, is inconsistent with Article 208(2) which declares the UPDF and its members to be subordinate to civilian authority and whether in circumstances, such as these, where the Defence Forces are the complainant, investigator, witnesses and judge, a trial before the UPDF General Court Martial is consistent with Article 28(1) of the Constitution.



The other is whether the trial/continued trial before the General Court Martial by judicial officers who have no professional training to execute and/or perform judicial functions contravenes Article 128 of the Constitution.


Both Lutaale and Besigye have been sent on remand to Luzira Prison. While Captain Oula will return to Court on February 3rd.