Lawyers representing advocate Eron Kiiza who is currently serving a nine months sentence in prison have asked court to release him unconditionally.
Kiiza was in January convicted and sentenced to nine months in prison by the General Court Martial in Makindye for contempt .
The Supreme Court later in a landmark decision ruled that trial of civilians by the army court is unconstitutional.
The lawyer later challenged the sentence handed to him on grounds of illegality and constitutional violations, adding that since he is a civilian, the military court has no powers to try him.
On Tuesday morning, Kiiza’s lawyers led by Peter Walubiri and George Musisi made a case before judge Dr.Douglas Singiza of the civil division of the High Court for their colleague’s release.
“The basic argument is that Kiiza was subjected to contempt proceedings before a court which the Supreme Court has found to have no competence and jurisdiction, given its composition, mode of appointment and many other reasons,”Walubiri said during submission.
The lawyer argued that the Supreme Court’s held that where proceedings before the General Court martial have been challenged, the decision of the Supreme Court nullifying proceedings before GCM will have retrospective effect.
“Court held that all charges, ongoing criminal trials or pending trials before court martial involving civilians must immediately cease and be transferred to ordinary courts of law with competent jurisdiction. This meant anything going on in court martial involving civilians will have to be terminated and possibly transfer it to civilian courts.
However, judge Singiza intervened, asking for lawyer Walubiri’s opinion on the kind of court that the Supreme Court meant when it said “civilian courts.”
In response, Walubiri said,” If they were criminal trials, then they would go to criminal court. In practice, there would be no transfer. For example Dr. Besigye and Lutale have been charged afresh because it is not possible to transfer their case.”
The lawyer said the most critical an applicable aspect is order number three of the Supreme Court which he said noted the court’s judgement shall have no retrospective effect on convictions and sentences made prior to date of this judgment, save where it is being challenged in a court of law.
He said the last past of the order directly applies to Kiiza and that he should be released unconditionally.
“Where those convictions and sentences were being challenged, the judgement would have the retrospective effect of nullifying what court martial had done.”
When Judge Singiza asked Walubiri whether the case is rightly before the civil division of the High Court, and not criminal division, he responded in the affirmative.
The judge however insisted on picking lawyer Walubiri’s brain on the matter.
“ Is it your case that wherever a judge is, can entertain any mater regardless of the division we have in this country,” Singiza asked.
In response, the lawyer insisted that the case is rightly before the current court.
“Divisions are administrative conveniences. They only operate in Kampala but if you were seated in Masaka, you would be handling land, criminal, civil matters . You should even be handling labour matters. We are dealing with right and liberty of a person in this case. His liberty cant be subject of administrative conveniences.”
The lawyer said there were earlier attempts to have the case filed before the criminal division of the High Court but were advised to take it to the civil division.
State drags feet
In response to Walubiri’s arguments, Attorney General’s representative, Johnson Natuhwera told court that it is wrong for Kiiza’s lawyers to claim that the army court was outlawed by the Supreme Court decision and that he should be released unconditionally.
“The facts of this case are that Eron Kiiza was accused of contempt of court in General Court Martial. Supreme Court did say GCM is a court of law. It didn’t abolish it. It reaffirmed its existence but only limited it to specific cases and offences. Eron Kizza was accused of contempt, tried and sentenced in accordance with section 169( i) g and 212(9) of the UPDF Act relating to contempt of an advocate,” Natuhwera said.
“These provision give an advocate who is charged of contempt of the General Court Marital a maximum punishment of five years. In fact the court martial was lenient to him.”
The lawyer from the Attorney General’s office insisted that Eron Kiiza’s conviction and sentence are valid as long as they have not been challenged in court.
This judgement shall hav no retrospective effect on any conviction made and sentence done prior to date of this judgement
He also addressed himself on the matter being referred to the criminal division of the High Court.
“He filed notice of appeal. When he did, before appeals tribunal of general court martial, the fact that all files were transferred to ordinary courts, the right forum( for this case) would be criminal division. There is no way he can appeal or apply conviction of criminal matter against Attorney General.”
Judge Dr.Douglas Singiza set Monday, March, 3 at 2:30pm as the date and time for delivering his ruling on the matter.