“Right to a fair hearing is not negotiable”, Colonels’ lawyer threatens the army court!
Day two court session: Verbatim version.
Monday [December 2/2024], the jammed Makindye based General Court Martial chaired by Brig Gen Robert Freeman Mugabe was entertained by a lot of legal jargons in the session where the Judge Advocate Raphael Mugisha advised the seven panel court members that only four out of the 35 defense lawyers for DR Kizza Besigye and Obed Lutale Kamulegeya qualified to represent them.
The duo (Besigye and Lutale) who was abducted from Nairobi on November 16, detained in a military facility for four days prior to their trial in court martial where they were charged with four counts of causing insecurity to Uganda and illegally being in possession of two pistols and eight live ammunition.
The court had convened for a ruling on the plenary objections raised by counsel Erias Lukwago who had contended that the accused both a retired colonel and a civilian respectively were not supposed to be tried before the army court. Our reporter Siraje K Lubwama recorded the abridged proceedings bellow:
By 8:00am court goers including supporters of Besigye, a four-time unsuccessful presidential candidate, Besigye’s wife Winnie Byanyima, the yet unregistered PFF party members led by its Chairman Ambassador Wasswa Biriggwa, MP Ibrahim Ssemujju Nganda, Wafula Oguttu, former LOP Mathias Mpuuga and CP president Ken Lukyamuzi. All these were advised by military men at the gate to wait for the right time when some will be allowed access to the court room.
Several journalists who had arrived were briefed by one army officer with a tag Akankwasa of the day’s regulations: “Because of the insufficient space we have, we are only going to allow two journalists per media house with proper identifications to enter, he said.”
It took pleading efforts of some journalist to allow their free-lance male colleague from Al Jazeera who had only carried a national ID to enter.
“Our colleagues from the media, we want more discipline in the court room this time; don’t go beyond the place you are shown to stop like you did last time, report objectively because this is your motherland, another security officer in civilian clothes said.
Another army officer at the rank of a Captain led the journalists to a place outside the courtroom where they were offered chairs as they await the case to begin and were also cautioned not to use their phones or take photos before business commences.
At 10:43am Besigye and Lutale arrived at court in a prison drone registration number UU00067 and Besigye’s supporters began chanting and singing political solidarity songs, criticizing president Museveni and CDF Gen Muhoozi Kainerugaba telling them that at one time they will also go, as the handcuffed duo (Besigye and Obedi) was taken to court cells.
At 10: 49am; Court chairman enters court to join the six panel members and the Judge Advocate. Court Registrar calls Besigye and Lutale’s file and they were brought into the metallic cell and handcuffed).
Kalibbala: As you may please Mr Chairman and honorable members, I am Ernest Kalibbala, one of the lawyers of the defense team. The team comprises of 35 lawyers.
I need to be guided, there is an issue of many of our colleagues who are still stranded outside the gate of the court premises. They have been refused to enter with their phones. At least allow some lawyers to access the court with their phones which have become tools of our trade.
Chairman: I believe everybody is allowed if they follow the security arrangements. For example, the Lord Mayor was here last time; but he is stuck outside. I have seen him around.
Kalibbala: I seek your indulgence that the Lord mayor and the other defense lawyers including our lead Counsel Martha Karua be allowed in with their gadgets.
Chairman: Can you produce to us the entire list of your colleagues so that we know how many are still outside? (Kalibbala reads out the whole list of lawyers and omits Karua’s name prompting the court goers to shout: “And Karua”.
Kalibala: Yes, and Matha Karua.
Chairman: We are adjourning for 20 minutes to allow you sort out yourselves. (After about 30 minutes court reconvenes).
Kalibbala: Mr. Chairman and members, I have consulted my colleagues and they requested me to renew my request, to allow them come in with their telephones which are tools for their research so that they can represent their clients effectively.
Chairman: Ok, Court is adjourned for another 10 minutes
At 12:25pm more lawyers with their phones enter the court room. The Chairman creates space for them.
Chairman: I think now we can proceed.
Lukwago: If it may please you Mr. Chairman, and the honorable members, I would like to go on record about the representation of the two accused persons by first of all introducing myself as one of the defense lawyers.
Chairman, we intend to address this court on issues regarding the lead Counsel honorable Martha Karua Wangari, who is a practicing Advocate in the Republic of Kenya.
She has brought her practicing certificate as she is in the process of securing a temporary special practicing certificate from Uganda Law council (ULC) to enable her handle this case as the lead Counsel. She takes charge of the entire legal team, here and internationally.
We have Counsel Eron kiiza, Elias Nalukoola Luyimbaazi, Ronald Samuel Wanda, Michael Kintu, Kato Tumusiime, Kakuru Tumusiime, Abubakar Ssekanjako, Proscovia Kunihira, Baryan Turinawe, Mugagga Karemire, Ronald Katushabe, Isaac Kwagala, Farouq Kamulegeya, Lawrence Kabuye, Wilson Kato, john Mata Nsimbi, Cirus Ogul, Moses Tugume, Godfrey Akakimpa, Samuel Muyizzi Mulindwa, Godffrey kijjambu Mukasa, Raphael Tenderi, Retired Major Roland Iduri and Denis Enabu Atiimu. Lukwago did not introduce Abdallah Kiwanuka Mulima Mayuuni though he was in court. I don’t know whether there is anyone I have not introduced, so far that is the team.
But for the record, Senior Counsel Martha is still coordinating a team of lawyers from Kenya, Nigeria, and Tanzania; other Pan African lawyers to take charge of this case as our lead counsel.
This morning some members of our team escorted our colleague who is supposed to be the lead Counsel and a Senior Counsel in Kenya, Martha Karua to pick her temporary practicing certificate from the Uganda Law council (ULC). Martha Karua is a practicing advocate in the Republic of Kenya, she has a practicing certificate there.
She needs this special practicing certificate to take lead of the entire team as is the desire for our clients. We did not find any official in the office apart from the cleaners.
We reached to the chairperson Justice Mulyagonja who told us that they did not process Justice Karua’s request because it was sent online, they preferred a hard copy which went on Dec 2/2024. She has promised to expedite the processes by tomorrow (Tuesday).
Senior Counsel and lead Counsel of this entire team has been promised this certificate by tomorrow. Allow my learned friend Kalibbala to also address you.
Kalibbala: Mr. Chairman, our entire team which is supposed to be led by Senior Counsel Martha currently have the following lawyers, (reads them all). We expect more lawyers from other African counties under the umbrella Pan African Lawyers Forum.
The information I want to bring before this court is that since our team leader [Karua] arrived in this country, she has not interacted with our clients to discuss the matter before this court.
This morning, we visited the office of the ULC and we talked to its boss Justice Irene Mulyagonja and she promised to finalize the processes of the special practicing certificate today, a process that will allow our team Captain to move an effective representation for the accused persons.
Lukwago: Mr. Chairman, the prayer we are making is that this court allows us to interact with our clients, here and now.
Judge advocate: You seem not prepared for this case.
Kiiza: We are more prepared Mr. Chairman, the prayer we are making is to interact with our clients, it is not for debate, or for counter arguments. This is not going to be business as usual.
Chairman: Do you need to talk to them now, or any other day?
Kiiza: We need to talk to them now and in private not in public.
Judge Advocate: You say you have no instructions and no special practicing certificate. You can proceed without your lead Counsel who is not properly before this court.
Lukwago: If there are any adjustments to our clients’ instructions, we seek to meet them and we chart a way forward.
Kiiza: And for the benefit of doubt, that is why our lead Counsel who is here in court is not addressing it, the reason we need to meet our clients so that we can effectively represent them.
Judge Advocate: With this battalion of lawyers, only four are properly before this court because they have fulfilled the conditions of putting notice to this honorable court to represent the accused persons with the required 48 hours of the UPDF Act.
These Counsels are: Erias Lukwago, Eron Kiiza, Nalukoola and Tumusiime Kato. I think the rest of lawyers should not be put on record. The qualified four can proceed with the case. The rest of the lawyers should first put things right.
Lukwago: Prosecution is misinterpreting the UPDF Act. Every lawyer before this court has an address and a Chamber he or she comes from. In the case of Martha, she is c/o Lukwago and Company Advocates.
If there is need to see the practicing certificates for other lawyers, they are all available. These are small technicalities which should not derail this court process.
Judge Advocate: As for you and the other three I have mentioned are the only Counsels legally before this court and on record.
Kiiza: My colleague in uniform is misleading court. Article 28 of the Constitution guarantees a right for a fair hearing (reads the Article verbatim). Article 44 (c) says these rights are not negotiable in any way.
Judge Advocate: So where do you get the mandate, you Kiiza? (laughter in court).
Chairman: Rafael, you want to…
Kiiza: I went to study law for five years and this Constitution was promulgated in 1995, and Articles are in my heard, Article 221 says that UPDF shall promote, protect and respect this Constitution; I am reading the Constitution and you are bringing rhetoric, so if you have not read these provisions, you should not come and misled court [bout of laughter from court goers).
Kalibbala: I am one of the subjects of objection. The right for an accused to appoint a lawyer of his or her choice is in the Constitution and should not be ignored because of the small technicalities.
The accused persons are here in court, they have not objected to our representation. So, if you allow us to meet them, we are going to have a way forward. If this court needs our practicing certificates they can be availed.
Judge Advocate: There is a list of lawyers presented to this court on a headed paper of General Court Martial, who filed it? Is it an authentic document? We all studied law for five years.
The filing in 24 hours’ notice to this court that you will be representing your client applies. Why did the four lawyers fulfill it and the rest refused or failed?
Chairman: You need to fulfill that requirement.
Lukwago: It is one of the issues we are going to address when we meet our clients now. I tried to get access to them in Luzira Upper Prison and I failed. As in charge Counsel because the lead Counsel had not arrived in the Country, I even reached the Commissioner General of Prisons. Now that she is here, can we discuss with our clients?
Chairaman: There is no harm in that.
Kiiza: We need a private meeting to discuss confidential matters (Chairman; provide them a room to meet their clients and for the third time adjourn the case for another 30 minutes as court hears another case).
At 2:05pm Besigye and Obed lawyers re-enter court and the file is read again.
Chairman: You can now address the court.
Lukwago: Thank Mr. Chairman, we have been instructed to seek for a short adjournment up to tomorrow afternoon to have Karua’s special practicing certificate received as promised by ULC. It is our humble prayer Mr. Chairman.
Chairman: Counsel it may not be possible tomorrow because we have a cause list already for the day, we may not even get time to handle all the cases cause listed.
Lukwago: In this case, we request to accommodate us on Wednesday to constitute a full legal team because this matter touched human rights.
Chairman: We only sit on Mondays and Tuesdays and other days when we are facilitated. I think next week is not far because this week is already full. So let us have Tuesday next week.
Judge Advocate. On that day, what are we going to handle apart from having the case mentioned?
Lukwago: This is prosecution’s case, it knows better, it will serve us better if our clients are set free that day. For the record, we are supposed to come here when our Senior Counsel has taken charge and receive a ruling on the preliminary matters we raised last time.
Chairam: Let’s expect mention of the case and ruling.
Kiiza: It is proper we start at 10:00am.
Chairman: I think it is okay also. The accused are further remanded till then.
By; Siraje Lubwama,
Senior Investigative Journalist in crime, court land matters, human Rights.
Freelance Journalist, with Alternative Digitalk