Besigye refuses to take plea at military court

Veteran politician Kizza Besigye on January 14 refused to plead to the new charge of treachery be- fore the General Court Martial in Makindye, Kampala. “Mr chairman, I decline to take plea,” a defiant Dr Besigye boldly told the chairman of the court, Brig Gen Robert Freeman Mugabe.

Dr Besigye alongside his aide, Mr Obeid Lutale, through his lawyers, came determined not to plead to the new charge. The treachery charge was introduced on January 13 by the State that also added Capt Dennis Oola, a third suspect onto the charge sheet. Capt Oola belongs to the Armoured Brigade of the UPDF.

Dr Besigye has been on remand at Luzira prison since November last year when he was arrested from Kenya’s cap- ital Nairobi and brought back to Uganda.

Dr Besigye and Mr Lutale face charges related to security and being in possession of firearms and ammunition. Dr Besigye argued that the military court does not have powers to try civilians.

His lawyers also raised six other legal questions for Constitutional Court interpretation. Dr Besigye’s defiance brought him on the collusion path with the military court that forcefully enter a plea of not guilty on behalf of the four-time former presidential candidate.

To bolster his defiance, Dr Besigye, while leaving the court dock where he had spent most of the day yesterday, left singing the defiance song: “We shall overcome some day…”with his supporters joining in.

A host of defence lawyers led by Kenya’s former Justice minister Martha Karua, Kampala Lord Mayor Erias Lukwago, Mr Fredrick Mpanga and, Mr Ernest Kalibaala, had disagreed with the earlier decision of the court that held that it had the power to try their clients Dr Besigye and Lutale.

It is upon this backdrop that de- fence lawyers formulated seven questions that they wanted the military court to refer to the Constitution- al Court for interpretation and in the meantime, halt the proceedings.

Some of the legal questions they want the Constitution Court to interpret included whether or not the accused enjoy a right to a fair hearing before this court, that Section 128 of the UPDF Act is not clear, that the court is not independent and impartial, that the court has no jurisdiction to try civilians, and that military court has no jurisdiction over of- fences of unlawful possession of firearms under the Firearms Act.

In rebuttal, director of prosecutions Raphael Mugisha argued that most of the legal questions have since been determined by the Constitutional Court and that there is no need for the military court to refer the same questions for the second interpretation. He singled out the Michael Kabaziguruka case in which the Constitution- al Court ruled that it is unconstitutional for civilians to be tried before the military court.

Mr Mugisha was quick to say the Supreme Court has since stayed the implementation of the directives of the Constitutional Court, meaning that the cur- rent status is that civilians can be tried by the military courts.

In his ruling handed down at about 6pm yesterday after three adjournments were made, the chairman of the court entirely agreed with the submissions of the State that most of the legal questions that Dr Besigye and his de- fence team had sought the Constitution- al Court interpretation of have already been determined.

“In the result, this court finds that since most questions raised have already been decided upon by the Court of Ap- peal, which also sits as the Constitution- al Court and the matter is on appeal, especially in the Kabaziguruka case, this court declines to make a reference as prayed by the counsel for the accused,” the chairman of the military court held.

He added: “This court will continue hearing the case following the order of stay that was given by the Supreme Court and the application is hereby declined. The accused (Dr Besigye and his co-accused) should take plea. We so rule.” Since Dr Besigye and the court were not reading from the same page, the court further remanded him to Luzira prison until February 3. The chairman advised him and his legal team that if there is any pending issue, the same should be raised on the same day of return.

In 2016, former Nakawa MP Michael Kabaziguruka petitioned the Constitutional Court, challenging the trial of civilians in military courts after being arraigned before the army court on allegations of attempting to overthrow the government.

He refused to take plea before the army court arguing that his trial was unconstitutional and he was denied the right to a fair hearing, which is non derogable un- der Article 44 of the Constitution.

Pending decision
In 2021, the majority of the coram of the Constitutional Court justices comprising the late Kenneth Kakuru, Hellen Obura, and Remy Kasule (with Madrama and Musota dissenting), ruled that though the Court Martial is a competent court, its powers are limited to serving officers of the Uganda People’s Defence Forces (UPDF).

The judges ordered that the files for all civilians facing trial before the General Court Martial be transferred to civil courts through the office of the Director of Public Prosecutions (DPP) within 14 days.

However, the Attorney General appealed the ruling at the highest appellate court. The Supreme Court in its ruling on August 5, 2021, okayed the prayers of the Attorney General and ordered a stay of execution. This meant that the military courts would continue prosecuting civilians until the determination of the main appeal, which is now still pending delivery.

The Supreme Court has lately come under heavy criticism for taking so long to deliver the judgment that would have sorted the biggest question in the country of whether civilians can be tried before military courts.