Why Besigye lawyers refused their clients from taking plea.
As the court case against Dr Kizza Besigye and his political Aide Hajj Obeid Kamulegeya came up for mention at the Makindye General Court Martial (GCM) chaired by Brig Freeman Mugabe, prosecution led by Col Raphael Mugisha was armed with an amended charge sheet and a court ruling awaiting to be delivered.
Our Our Senior investigative and Court reporter Siraje Lubwama brings you a detailed verbatim report of the court proceedings.
(Hearing commences at 11:01 am when the Registrar calls Besigye’s file, he (Besigye) and his co-accused Lutale are led to the metallic box known as the court cell).
Mugisha: [Director of Prosecution GCM] May it please Mr. Chairman, appearing for the state are Col Raphael Mugisha, Capt. Ambrose Guma, Lt Gift Mubehamwe, 2nd Lt Anthony Olupot Philip, and 2nd Lt Regina Nanzara.
Kalibbala: May you please Mr. Chairman and honorable members, I am Earnest Kalibala, Counsel for the two accused persons and I am led by Senior Counsel Martha Karua, Erias Lukwago, Mr. Moses Tugume Byansi, Ms. Proscovia Kunihira, Mr. Cyrus Oguru, Mr. Peter Arinaitwe,
Mr. Brian Turinamukama, Mr. Tom Tussive, Mr. Michael Kintu, Mr. Sekajugo Mugaga, Mr. Wilson Kato, Mr. Erias Nalukola Luyimbazi, Hon Abdallah Kiwanuka, Mr. Godfrey Akakimpa, Mr. Ronald Samuel Wanda,
Mr. Kato Tumusiime, Mr. Fredrick Mpanga, Mr. Apollo Katumba, Mr. Lawrence Kabuye, Mr. Julius Paul Ssekadde, Mr. Samuel Muyizzi, Mr. Ivan Bwowe.
I think that is the list of counsels present this morning before you. This is the team, Mr. Chairman.
Mugisha: Mr. Chairman we are ready to proceed, we have an amendment to the charges we intended to present to this court last time.
Kalibbala: We want to first present two issues regarding procedure but let our lead Counsel address you first.
Martha: One of the key issues Mr. Chairman is our right to access this court. Looking at Regulation No.60 of the UPDF Act regulation No. 1. Because of what happened when Counsel Eron Kiiza was arrested from this court, we seek your assurance that we are not going to be threatened because this causes fear among us that is why our numbers are reducing.
(Martha says the days’ process of entering has been smooth unlike other days and court orderlies not having name tags, Counsel Muyizzi also complained of the blockage of the road leading to the Court premises and their denial to enter with their vehicles forcing them to carry huge bags for a long-distance accessing court.
In reply, the chairman said the issue of the name tags is the function of military police where he does not belong, He also cautioned court goers to stop misbehaving in court room by standing on chairs and shouting.
After a long argument, the Registrar reads the amended charge sheet where Capt. Denis Olara is involved and named Accused number one (A1) Besigye (A2) and Obeid (A3).
Whereas Olara pleads not guilty, Besigye and Obeid refuse to take plea giving reasons through their lawyers.
The amended chargesheet avers in one of the counts that Capt. Denins Olara, a UPDF serving officer No RO 12743 of the Armored Brigade prosecution avers that he together with the duo allegedly committed the treachery charges between February 2023 and November 2024 in three cities of Geneva in Switzerland, Athens in Greece, and in Nairobi Kenya plus other diverse places in Uganda.
They are alleged to have held various meetings aimed at soliciting for logistical support and identifying military targets in Uganda with intent to prejudice the security of the defense sources).
Why Besigye, Ob refuse to take plea to the amended charges.
Kalibbala: Mr. Chairman: my colleague (prosecution) will agree that once an amendment has been made, the process which was running before comes to an end and starts afresh with the new amendment.
The charges which we have right now, clearly from looking at the ones we have and those before, essentially what the prosecutor has done is to start again the process, which started in November. So, the objections which had been made then, if any, had not been carried on to the current charge sheet.
When the accused person is also asked whether he understands the charge, we understand that it is part of plea- taking process, yet the law requires that before that process begins, he has a right to understand. We humbly request to be heard.
Lukwago: Mr. Chairman, it is the humble request of the accused persons that this honorable court martial has no territorial jurisdiction to entertain the charges as spelled out in the charge sheet and it would have a violation of Articles 23 and 28 of the Constitution of the Republic of Uganda.
The Constitution provided the jurisdiction of this court on matters relating to offenses allegedly committed within the territory of Uganda.
The UPDF Act specifically talks about weapons which are a monopoly of UPDF, not the defense forces or security forces of Switzerland or Geneva, or Kenya.
When you look at the provisions of Article 28(7) those Articles spelled out in the charge sheet would only constitute offenses in those countries Kenya, Switzerland or Geneva.
Mr. Chairman, the particulars here state that Col Kizza Besigye while at the apartment in Kenya was found in unlawful possession of a pistol, which is ordinarily a monopoly of the defense forces.
The extradition Act provides for the procedure where even fugitives can be brought back to a country and stand trial. It is a judicial process that should be concerned by a Ugandan minister writing to the counterpart minister in Kenya.
Defense lawyers: Army court have no jurisdiction to try Besigye
The other option would be deportation. If they entered Kenya illegally and were found to be possessing firearms, which are a monopoly of the defense forces of Kenya, they would have been tried in Kenya and deported if found guilty.
In the case before you, there is no extradition process or deportation order and therefore, Mr. Chairman, it clearly shows you have no jurisdiction to try the accused.
You are called to entertain a matter that violates international and national laws.
Lukwago: Under the UPDF regulations, particularly Rules 22 and 23, an accused person has got a right to object to a plea on grounds that 1; the charge sheet is defective, and 2; the jurisdiction of the court.
So, we raise these two fundamental issues, namely the one of territorial jurisdiction, and second the defects in the charge-sheet about the territorial jurisdiction.
The biggest contention is that Dr Besigye was illegally repatriated, and the rendition is not provided for under the law. You can only repatriate somebody for the prosecution using the mechanism provided for under the Extradition Act of 1964, which was never the case.
With the Extradition Act, 1964, there is a mechanism, meaning you’ve got to have a reciprocal process between Uganda and Kenya, and you have to go through the due process in Kenya which involves a court order, and a court warrant, which never happened.
Besigye kidnap.
So, Dr Besigye was just kidnapped. We cited the Commonwealth decision of South Africa and the House of Lords in the UK and a couple of other jurisdictions where proceedings of that nature have been declared inanity.
In South Africa, a number of African National Congress (ANC) party actors have been abducted from neighboring countries – Swaziland, Sweden, and wherever, and they would be taken back in South Africa for trial and the court said that wouldn’t be proper, it would be illegal, and they wouldn’t allow it.
So, those cases were cited in some of the Ugandan cases with approval here and we want the court to pronounce itself on the constitutionality of those charges.
The other thing is about the offences allegedly committed outside the jurisdiction of Uganda. We are saying UPDF has no universal jurisdiction over the cases committed all over the world. That is ridiculous and we are contesting that.
They [prosecution] cited Sections 208 and 209, but we insisted and said, look here, the constitution is paramount, and it is supreme. It doesn’t stipulate that the territorial jurisdiction of the courts of Uganda is restricted to the boundaries here.
How to treat cases involving firearms.
So, if you found that Dr Besigye was found in possession of firearms in Kenya, and that it offends the UPDF Act, we are saying that is starching the application of UPDF law to levels of absurdity because a pistol found in possession by a criminal in Kenya can’t be said to be a monopoly of the UPDF.
There are so many people with pistols in Kenya and also have munitions etc.
How defective is the charge sheet?
The other thing is about the defects in the charges sheet where they are alleging that the pistol is a monopoly of the UPDF. But we are saying that a pistol in Kenya cannot be a monopoly of the UPDF, so the charge sheet is defective, and therefore, you can’t subject Dr Besigye to a defective charge sheet.
When should one object to plea taking?
The law allows one to object to a plea being taken under a defective charge sheet or before a court which has no jurisdiction and those are the issues we have raised.
So, what happens is that we are saying if Dr Besigye refuses to take a plea, definitely the court pronounces itself on the same, whether they have jurisdiction or not, or if the charge is valid in law, proper in law or not.
If they agree with our submissions then they strike out the charge sheet and discharge Dr Besigye and hajj Obeid.
If they oppose and agree with prosecution, then that will presuppose continuing the trail. That gives us another task on seeing how to challenge the same within the mechanisms provided for under the law.
Why surprised about the new charge of treachery?
The new charge of treachery has caught us by surprise. Actually, we have failed to make head and tail out of it and how this gentleman, Capt. Dennis Olara has been brought into the picture because all along their contention has been that Dr. Besigye was found with Hajj Obeid Lutale at Riverside in Kenya.
There was no mention of any other person, the one they have added onto the charge sheet is one of the reasons we are opposed to the amendment of the charge sheet to add him (Olara). So, we are waiting to see the ruling tomorrow.
State response.
Mugisha: Mr. Chairman, though we did not follow the known ways, the two suspects were brought back to Uganda following a Memorandum of Understanding (MoU) between the two sister countries.
On the issue of the General Court Martial not having the territorial jurisdiction to try Col Besigye and Hajj Lutale, the UPDF Act allows charging of suspects who could have committed crimes within and outside the country.
Martha: Mr. Chairman, I this case we demand that the alleged MoU between Kenya and Uganda which was used to forcefully bring back our clients, Dr Besigye and Hajj Lutale be tabled in court.
Judge Advocate (JA) Brig Richard Tukacungurwa: Mr. Chairman, the law on amendment of charges is very clear even in the criminal and civil system, a charge sheet can be amended any time if there is no injustice that will be suffered by the accused persons. The hearing of this case has not started.
(The Chairman adjourns court to the following day at 10:00 am for the ruling, don’t miss the interesting revelation of the day’s proceedings in our article coming next).
By; Siraje Lubwama,
Senior Investigative Journalist in crime, court land matters, human Rights.
Freelance Journalist, with Alternative Digitalk