The Supreme Court has issued an interim order staying an earlier ruling in which the Constitutional Court declared the trial of civilians by the General Court Martial illegal and consequently stopped.
The Constitutional Court in a majority judgment of 3:2 last month, owing to a 2016 petition by then Nakawa Municipality MP Michael Kabaziguruka who was facing treachery charges, held that it is unconstitutional for the army courts to try civilians since they are not part of the military.
“The Court-Martial is clearly not part of the judiciary. It is part of the executive arm of government established under chapter 12 of the Constitution which provides for the country’s defence and national security. The General Court Martial is therefore not a competent court within the meaning of Article 28. The persons subject to military law only subject themselves to the jurisdiction of the General Court Martial in respect of only service of offences set out in the UPDF Act,” Justice Kenneth Kakuru said.
On Thursday, a panel of five justices of the Constitutional Court led by the Chief Justice, Alfonse Owiny Dollo heard from the Attorney General that since they filed an appeal in the earlier Constitutional Court judgment, not allowing their application for its stay would not make sense.
“Court ordered that all persons currently serving sentences imposed by the authority of the military courts should have their cases be transferred to the High Court criminal division for retrial or to be dealt with as that court may deem fit elapses today,” George Kalemera, the director for civil litigation in the Attorney General’s chambers told court.
He noted since the Attorney General’s side has very serious issues that have higher chances of succeeding in their appeal, it is imperative that the court halts execution of the Constitutional Court orders.
However, in response, Kabaziguruka’s lawyers led by Medard Sseggona opposed the application by the Attorney General, arguing that suspending earlier orders would be disastrous.
“The import and effect of the orders that are sought here are to suspend the right to fair hearing until the determination of the appeal. The remedy is for this court to direct that the army court should not take on any further prosecutions and that for the suspects appearing before them should be granted temporary relief until this court decides,”Sseggona told the panel of Supreme Court justices.
He insisted that at no time can a court suspend the right to fair hearing.
However, after consideration of the arguments of both sides, the panel of justices reasoned with the Attorney General’s lawyers on the need to stay the execution of the Constitutional Court ruling temporarily until the appeal is disposed of.
“In the interest of justice, this court issues an interim order for the stay of execution of the orders of the Constitutional Court. This interim order for stay of execution shall remain in force until the determination now before this court,” Chief Justice Alfonse Owiny Dollo said.