Top city lawyer Male Mabirizi Kiwanuka has asked the Constitutional Court to annul the trial of Kyadondo East Member of Parliament, Robert Kyagulanyi Ssentamu alias Bobi Wine by the army court.

In his petition, Mabirizi says that it is illegal for the army court to try civilians using the UPDF Act yet it was meant only to try members of the defence forces.

The controversial lawyer says the General Court Martial is only a tribunal because it is appointed by the president and not at the level of High Court.

According to the charge sheet, Bobi Wine (36), who was arrested after the Arua fracas that left his driver dead was charged by the General Court Martial that sat in Gulu of charges related to unlawful possession of fire arms and ammunition contrary to section 3(2) (a) of the Fire Arms Act 299.

 

Below is Mabirizi’s full petition:

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA.

CONSTITUTIONAL PETITION No……….OF 2018.

 

MALE H. MABIRIZI K. KIWANUKA::::::::::::PETITIONER.

VERSUS

THE ATTORNEY GENERAL OF UGANDA::::::::RESPONDENT

 PETITION

(Under Paragraph XXIX(f) of The National Objectives and Directive Principles of State Policy, Art 2, 3, 8A, 137(3) of the Constitution of Uganda and The Constitutional Court [Petitions and References] Rules S.I 91/2005).

 

THE HUMBLE PETITION MALE H. MABIRIZI K. KIWANUKA a male adult Ugandan lawyer by training and civically active Ugandan of C/o Plot 39, Kampala Road, Shell Capital Building, 2^nd Floor, Suite 201, Tel 0787 263 086/0752 570 574, Kampala, shows as follows-

1. Your petitioner alleges that:

• Section 119(1)(g) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 subjecting none-members of UPDF to military law merely by aiding and abetting members of UPDF in commission of a service offence is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
• Section 119(1)(h) of The Uganda Peoples Defence Forces(UPDF) Act, 2005 subjecting none-members of UPDF to military law because of merely being in possession of a firearm which is a monopoly of UPDF or which may be prescribed, is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
• Sections 161(1)(a), (b) & (c) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 requiring the person charged with Unlawful purchase, etc. of military stores to prove that he or she did not know and could reasonably not be expected to know, that the chattels in question were military stores; that those chattels had, by earlier transaction, been disposed of by order or with the consent of some person or authority who had, or whom he or she had reasonable cause to believe had, power to give the order or consent; or that those chattels had become the property of an officer or a militant who had ceased to be a member of the Defence Forces, or of the personal representative of a person who had died are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 28(3)(a), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
• Section 161(3) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 giving powers to a member of a court martial, if satisfied by evidence on oath that a person within the jurisdiction of the court martial, has, or is reasonably suspected to have in his or her possession, any property which has been the subject of an offence against this section, grant a warrant to search for the property as in the case of stolen goods is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
• Section 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 empowering an officer after searching for property suspected to have been the subject of the offence under section 161 to take such person in whose possession or keeping the property is found before a court martial is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
• The limitations on the liberty of none-members of UPDF placed by the Provisions of Section 119(1)(g(, 119(1)(h), 160, 161(1)(a), (b) & (c), 161(3) & 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 are inconsistent with and/or in contravention of Article 43(2(c) of the Constitution, which provides that Public interest shall not permit any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.
• The actions of the Uganda People’s Defence Forces to charge Kyagulanyi Robert also known as Bobi Wine before the General Court Martial Sitting at Gulu UPDF 4^th Division Headquarters, on 16^th August 2018, as a person subject to military law under Section 119(1)(h) of The UPDF Act, 2005 with an offence under Section 3(2) of The Fire Arms Act, Cap. 229 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
• The actions of the Uganda People’s Defence Forces, if any is taken, to prosecute, convict and sentence Kyagulanyi Robert also known as Bobi Wine by the General Court Martial under Section 119(1)(h) of The UPDF Act, 2005 with an offence under Section 3(2) of The Fire Arms Act, Cap. 229 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
• The actions of the Uganda People’s Defence Forces to charge any person who is not a member of UPDF, as a person subject to military law under Sections 119(1)(g) and 119(1)(h) of The UPDF Act, 2005 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
• The actions of the Uganda People’s Defence Forces, if any was ever taken, to prosecute, convict and sentence any person who is not a member of UPDF, as a person subject to military law under Sections 119(1)(g) and 119(1)(h) of The UPDF Act, 2005 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
• The actions of Uganda Peoples’ Defence Forces to remand and sentence none-members of UPDF to military barracks/facilities after appearing before The General Court Martial or any other military tribunal are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.

2. Your petitioner States that:

• Paragraph XXIX(f) of The National Objectives and Directive Principles of State Policy provides that it shall be the duty of every citizen— to promote democracy and the rule of law.
• Article 2 of The Constitution provides for the supremacy of the constitution which binds all persons and organs in this country and anything contrary to it is declared null and void to the extent of its inconsistency.
• Article 3(4) of The Constitution provides that All citizens of Uganda shall have the right and duty at all times to defend this Constitution and, in particular, to resist any person or group of persons seeking to overthrow the established constitutional order.
• Article 8A of The Constitution obliges the state and government to govern Uganda in line with National Objectives and Directive Principles of State policy.
• Article 20(1) of The Constitution provides that Fundamental rights and freedoms of the individual are inherent and not granted by the State.
• Article 20(2) of The Constitution provides that The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.
• Article 21(1) of The Constitution provides that All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.
• Article 21(2) of The Constitution provides that a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.
• Article 22(1) of The Constitution provides that No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.
• Article 23(3) of The Constitution provides that A person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction or detention and of his or her right to a lawyer of his or her choice.
• Article 23(5) of The Constitution provides that Where a person is restricted or detained—(a) the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the restriction or detention; (b) the next-of-kin, lawyer and personal doctor of that person shall be allowed reasonable access to that person; and  (c) that person shall be allowed access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.
• Article 28(1) of The Constitution provides that in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.
• Article 28(3)(a) of The Constitution provides that Every person who is charged with a criminal offence shall—be presumed to be innocent until proved guilty or until that person has pleaded guilty.
• Article 44(c) of The Constitution protects the right to fair hearing from being derogated in any circumstances.
• 79(1) of the constitution requires parliament to only pass laws subject to the constitution and for purposes of good governance, which good governance.
• Article 79(3) of the constitution makes it a function of parliament to protect the constitution and promote democratic governance which include making constitutionally compliant laws.
• Article 126(1) of the constitution provides that Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people.
• Article 128(1) of the constitution provides that In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.
• Article 128(2) of the constitution provides that No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.
• Article 129(1) of the constitution provides that The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of— (a) the Supreme Court of Uganda; (b) the Court of Appeal of Uganda;  (c) the High Court of Uganda; and  (d) such subordinate courts as Parliament may by law establish, including qadhis courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament.
• Article 210 of the constitution provides that Parliament shall make laws regulating the Uganda Peoples’ Defence Forces and, in particular, providing for—the organs and structures of the Uganda Peoples’ Defence Forces; recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces and ensuring that members of the Uganda Peoples’ Defence Forces are recruited from every district of Uganda; terms and conditions of service of members of the Uganda Peoples’ Defence Forces; and the deployment of troops outside Uganda.
• In contravention of The above Article, parliament enacted Sections 119(1)(g), 119(1)(h), 161(1)(a), (b) & (c), 161(3) & 161(4) of The UPDF Act, 2005 making none-members of UPDF to be subject to disciplinary and criminal code of members of UPDF, which is unconstitutional.
• Section 3(2) of The Fire Arms Act Cap. 229 provides that Any person who—purchases, acquires or has in his or her possession any firearm or ammunition without holding a valid firearm certificate, or otherwise than as authorised by such a certificate, or, in the case of ammunition, in quantities in excess of those so authorised; or fails to comply with any condition, subject to which a firearm certificate is held by him or her, commits an offence and is liable on conviction to imprisonment for a term not exceeding ten years or to a fine not exceeding twenty thousand shillings or to both.
• Section 119(1)(g) of The UPDF Act, 2005 provides that The following persons shall be subject to military law—every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence.
• Section 119(1)(h) of The UPDF Act, 2005 provides that The following persons shall be subject to military law—every person found in unlawful possession of—arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or other classified stores as prescribed.
• Sections 161(1)(a), (b) & (c) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 requiring the person charged with Unlawful purchase, etc. of military stores to prove that he or she did not know and could reasonably not be expected to know, that the chattels in question were military stores; that those chattels had, by earlier transaction, been disposed of by order or with the consent of some person or authority who had, or whom he or she had reasonable cause to believe had, power to give the order or consent; or that those chattels had become the property of an officer or a  militant who had ceased to be a member of the Defence Forces, or of the personal representative of a person who had died.
• Section 161(3) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 gives powers to a member of a court martial, if satisfied by evidence on oath that a person within the jurisdiction of the court martial, has, or is reasonably suspected to have in his or her possession, any property which has been the subject of an offence against this section, grant a warrant to search for the property as in the case of stolen goods.
• Section 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 empowers an officer after searching for property suspected to have been the subject of the offence under section 161 to take such person in whose possession or keeping the property is found before a court martial.
• The limitations on the liberty of none-members of UPDF placed by the Provisions of Section 119(1)(g(, 119(1)(h), 160, 161(1)(a), (b) & (c), 161(3) & 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 are inconsistent with and/or in contravention of Article 43(2(c) of the Constitution, which provides that  Public interest shall not permit any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.
• The method of appointment of members of military tribunals under interalia Sections 194, 195, 197 & 200 of The UPDF Act 2005 does not meet the test of Articles 28(1), 44(c), 128(1) and 128(2) of The Constitution which guarantee the right to fair hearing and before an impartial and independent court hence making the General Court martial not incapable of discharging justice to none-members of UPDF.
• All the basic tenets of independency of a court which include scrutiny at appointment and security of tenure are not available to the members of military tribunals since the UPDF Act sets up tribunals appointed for a short period with an option to renew which puts them on tenterhooks for fear of none-renewal and hence culpable to make decisions on the whims of the appointing authority.
• It is possible that civilians who compete with political space with the Commander in Chief of UPDF, in the current formation, are at a risk of being framed up with charges making them subject to military law and face tribunals which are neither impartial nor independent but with powers to sentence such politician to death or life imprisonment.
• The above is the exact scenario happening with Hon. Kyagulanyi Robert who does not share the same political line with the commander in Chief whose life is treated by being tried in a martial tribunal which is not independent.
• If this court does not annul provisions of the UPDF Act 2005 which makes civilians subject to military law, the democratic and rule of law processes are at risk in this country which has had a tough military history.
• With the current impugned provisions, the sitting president who commands the UPDF can easily influence trumped up charges against his real opponents by subjecting them to military law and then throw them before none-independent tribunals of UPDF which are meant for members of UPDF for them to sentence them to death or imprison them for life.

3. Therefore, your petitioner prays that this constitutional court:

• Makes declarations that:
  1. Section 119(1)(g) of The Uganda Peoples Defence Forces(UPDF) Act, 2005 subjecting none-members of UPDF to military law merely by aiding and abetting members of UPDF in commission of a service offence is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22, 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
  2. Section 119(1)(h) of The Uganda Peoples Defence Forces(UPDF) Act, 2005 subjecting none-members of UPDF to military law because of merely being in possession of a firearm which is a monopoly of UPDF or which may be prescribed, is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
  3. Sections 161(1)(a), (b) & (c) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 requiring the person charged with Unlawful purchase, etc. of military stores to prove that he or she did not know and could reasonably not be expected to know, that the chattels in question were military stores; that those chattels had, by earlier transaction, been disposed of by order or with the consent of some person or authority who had, or whom he or she had reasonable cause to believe had, power to give the order or consent; or that those chattels had become the property of an officer or a  militant who had ceased to be a member of the Defence Forces, or of the personal representative of a person who had died are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 28(3)(a), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
  4. Section 161(3) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 giving powers to a member of a court martial, if satisfied by evidence on oath that a person within the jurisdiction of the court martial, has, or is reasonably suspected to have in his or her possession, any property which has been the subject of an offence against this section, grant a warrant to search for the property as in the case of stolen goods is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
  5. Section 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 empowering an officer after searching for property suspected to have been the subject of the offence under section 161 to take such person in whose possession or keeping the property is found before a court martial is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
  6. The actions of the Uganda People’s Defence Forces to charge Kyagulanyi Robert also known as Bobi Wine before the General Court Martial Sitting at Gulu UPDF 4^th Division Headquarters, on 16^th August 2018, as a person subject to military law under Section 119(1)(h) of The UPDF Act, 2005 with an offence under Section 3(2) of The Fire Arms Act, Cap. 229 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
  7. The actions of the Uganda People’s Defence Forces, if any is taken, to prosecute, convict and sentence Kyagulanyi Robert also known as Bobi Wine by the General Court Martial under Section 119(1)(h) of The UPDF Act, 2005 with an offence under Section 3(2) of The Fire Arms Act, Cap. 229 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
  8. The actions of the Uganda People’s Defence Forces to charge any person who is not a member of UPDF, as a person subject to military law under Sections 119(1)(g), 119(1)(h), 161(1)(a), (b) & (c), 161(3) & 161(4) of The UPDF Act, 2005 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
  9. The actions of the Uganda People’s Defence Forces, if any was ever taken, to prosecute, convict and sentence any person who is not a member of UPDF, as a person subject to military law under Sections 119(1)(g) and 119(1)(h) of The UPDF Act, 2005 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
  10. The actions of Uganda Peoples’ Defence Forces to remand and sentence none-members of UPDF to military barracks/facilities after appearing before The General Court Martial or any other military tribunal are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
• Issues a permanent injunction restraining The Uganda Peoples’ Defence Forces, the respondent, his agents and all persons, agencies or bodies claiming through him from:
  1. Enforcing Sections 119(1)(g), 119(1)(h), 161(1)(a), (b) & (c), 161(3) & 161(4) of The UPDF Act, 2005 subjecting none-members of UPDF to military law merely by aiding and abetting members of UPDF in commission of a service offence and by merely being in possession of a firearm which is a monopoly of UPDF or which may be prescribed, respectively against Hon. Robert Kyagulanyi Ssentamu(also known as Bobi Wine) or any other none-member of The Uganda People’s Defence Forces.
  2. Any further remanding and sentence of none-members of UPDF to military barracks/facilities after appearing in the General Court Martial or any other military tribunal.
• Orders the Uganda Peoples’ Defence forces, respondent, his agents or any other person claiming through him to henceforth unconditionally release Kyagulanyi Robert also known as Bobi Wine or any other none-member of The Uganda People’s Defence Forces who was charged, convicted or sentenced under Sections 119(1)(g), 119(1)(h), 161(1)(a), (b) & (c), 161(3) & 161(4) of The UPDF Act, 2005
• Awards general damages to the petitioner due to disturbance and anguish caused to the petitioner arising out of the actions complained against in this petition.
• Awards costs of the petition to the petitioner.
• Awards an interest of 25% per annum on the general damages and costs from the time of filing this petition till payment in full.

4. Petitioners’ address:

MALE H. MABIRIZI K. KIWANUKA

C/o Plot 39, Kampala Road, Shell Capital Building, 2^nd Floor, Suite 201, Tel 0787 263 086/0752 570 574, Kampala

5. Address of the respondent:                  ATTORNEY GENERAL CHAMBERS,

Ministry of Justice and Constitutional Affairs,

Directorate of Civil Litigation, Parliament Avenue, Kampala.

6. Representation:

At the filing of the petition, the petitioner is acting for himself.

Dated and Signed at Kampala this 20^th day of August 2018 by:

 …………………………

MALE H. MABIRIZI K.KIWANUKA                                                   PETITIONER.

Drawn and filed by;                                                              MALE H. MABIRIZI K. KIWANUKA

C/o Plot 39, Kampala Road, Shell Capital Building,                                                                                     2^nd Floor, Suite 201, Tel 0787 263 086/0752 570 574, Kampala.

THE REPUBLIC OF UGANDA                                                                                                 IN THE CONSTITUTIONAL COURT OF UGANDA                                                                   AT KAMPALA.

CONSTITUTIONAL PETITION No……….OF 2018.

MALE H. MABIRIZI K. KIWANUKA::::::::::::PETITIONER.

VERSUS

THE ATTORNEY GENERAL OF UGANDA::::::::RESPONDENT

 

AFFIDAVIT IN SUPPORT OF THE CONSTITUTIONAL PETITION.

I, MALE H. MABIRIZI K.KIWANUKA, of C/O Plot 39, Kampala Road, Shell Capital Building, 2^nd Floor, Suite 201, Tel 0787 263 086/0752 570 574, Kampala, do hereby affirm on oath and state as follows:

10. THAT I am a male adult Ugandan of Sound mind, a lawyer by profession, having graduated at Makerere University in 2012 with a Bachelor of Laws (Honours) degree and the petitioner herein.
11. THAT I am also a civically active Ugandan who has been closely following the constitutional trends in this country ever since my secondary school.
12. THAT it is in the above capacities, which give me the competency to depose to this affidavit, that I depose to this affidavit in support of this constitutional petition.
13. THAT as a lawyer, a civically active Uganda, I have continuously been following all events around the rule of law in Uganda with more interest in how people are heard in case they are charged of offences which are tramped up by the state to frustrate their political careers.
14. THAT although still in secondary school, I closely followed the trial against Retired colonel Dr. Kizza Besigye where he was arraigned both in the High Court and The General Court Martial at Makindye over similar facts and offences.
15. THAT then, without prejudice top some parts which I did not agree with, this court stood stood by its mandate and held that it was unconstitutional for a person to be charged in the Court Martial and in the High Court at the same time.
16. THAT I know that even in High Court, where the same Dr. Kizza Besigye who as an aspiring Presidential candidate for 2006 general elections was charged with rape and treason, court never found a case to answer.
17. THAT I have been following the trends surrounding the violence that erupted at close of campaigns for Arua Municipality bye-election on 13^th August 2018 and I have closely been following the charging of suspects.
18. THAT on 16^th August 2018, all the suspects, except Hon. Robert Kyagulanyi Ssentamu (also known as Bobi Wine) were arraigned before The Chief Magistrates Court at Gulu, charged with treason and remanded to prison.
19. THAT on the contrary, Hon. Robert Kyagulanyi Ssentamu (also known as Bobi Wine) was arraigned before The General Court Martial sitting at Gulu, Uganda Peoples Defence Forces (UPDF) 4^th Division Headquarters and charged under the following Charge sheet:

“THE REPUBLIC OF UGANDA

UGANDA PEOPLES’ DEFENCE FORCES

IN THE GENERAL COURT MARTIAL

HOLDEN AT 4 DIVISION HQS GULU

CR.CASE No. UPDF/GCM/036/2018

                                                       DATE: 16 AUGUST 2018

UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTOR

VERSUS

HON. KYAGULANYI ROBERT a.k.a BOBI WINE:::ACCUSSED

CHARGE SHEET

Hon. Kyagulanyi Robert a.k.a Bobi Wine, a male adult of sound mind aged 36 years, Member of Parliament Kyaddondo East, resident of Magere Village, Kasangati Town Council, Wakiso District, a person subject to Military law by virtue of Section 119(1)(h)(i) of the UPDF Act 2005 is charged with;

Count 1

STATEMENT OF OFFENCE

Unlawful possession of Fire Arms C/S 3(2) (a) of The Fire Arms Act Cap 299

PARTICULARS OF OFFENCE

Hon. Kyagulanyi Robert a. k.a Bobi Wine on the 14^th day of August 2018, at around 0900 hrs while at Pacific Hotel in Arua Municipality, Arua District, was found in illegal possession of a fire arm to wit; SMG Serial number 56-4801247 equipment ordinarily being a monopoly of Defence Forces (inscribed in pen ‘PNG’ possibly meaning ‘pleaded not guilty’).

Count 2

STATEMENT OF OFFENCE

Unlawful possession of Fire Arms C/S 3(2) (a) of The Fire Arms Act Cap 299

PARTICULARS OF OFFENCE

Hon. Kyagulanyi Robert a.k.a Bobi Wine on the 14^th day of August 2018, at around 0900 hrs while at Pacific Hotel in Arua Municipality, Arua District, was found in illegal possession of a fire arm to wit; SMG Serial number UE-0471-1998 equipment ordinarily being a monopoly of Defence Forces (inscribed in pen ‘PNG’ possibly meaning ‘pleaded not guilty’)

Count 3

STATEMENT OF OFFENCE

Unlawful possession of ammunitions C/S 3(2) (a) of The Fire Arms Act Cap 299

PARTICULARS OF OFFENCE

Hon. Kyagulanyi Robert a.k.a Bobi Wine on the 14^th day of August 2018, at around 0900 hrs while at Pacific Hotel in Arua Municipality, Arua District, was found in illegal possession of 35 live ammunitions of caliber 7.62 x 39mm, equipment ordinarily being a monopoly of Defence Forces (inscribed in pen ‘PNG’ possibly meaning ‘pleaded not guilty’)

(In Pen wrings “-Investigations on going-23^rd Augu/2018 for further mention-Remanded to Makindye”)”

A copy of The Charge Sheet is hereto attached and marked ‘A’

11. THAT I state with confidence, as a lawyer and a civically active Ugandan that the above charge sheet and the process of charging Hon. Robert Kyagulanyi also known as Bobi Wine or any other person, who is not a member of UPDF in the General Court Martial, is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution, which guarantee rule of law, equality before the law, right to life, the right to fair hearing, administration of justice in the name of the people, independence of the Judiciary, courts of judicature and mandates parliament to only make laws to regulate discipline of Members of UPDF.
12. THAT I know that Paragraph XXIX(f) of The National Objectives and Directive Principles of State Policy provides that it shall be the duty of every citizen— to promote democracy and the rule of law.
13. THAT Article 2 of The Constitution provides for the supremacy of the constitution which binds all persons and organs in this country and anything contrary to it is declared null and void to the extent of its inconsistency.

 THAT Article 3(4) of The Constitution provides that All citizens of Uganda shall have the right and duty at all times to defend this Constitution and, in particular, to resist any person or group of persons seeking to overthrow the established constitutional order.

 THAT Article 8A of The Constitution obliges the state and government to govern Uganda in line with National Objectives and Directive Principles of State policy.

 THAT Article 20(1) of The Constitution provides that Fundamental rights and freedoms of the individual are inherent and not granted by the State.

16. THAT Article 20(2) of The Constitution provides that The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.
17. THAT Article 21(1) of The Constitution provides that All persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

 THAT I know that Article 21(2) of The Constitution provides that a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.

 THAT Article 22(1) of The Constitution provides that No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and sentence have been confirmed by the highest appellate court.

21. THAT Article 23(3) of The Constitution provides that A person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction or detention and of his or her right to a lawyer of his or her choice.
22. THAT Article 23(5) of The Constitution provides that Where a person is restricted or detained—(a) the next-of-kin of that person shall, at the request of that person, be informed as soon as practicable of the restriction or detention;  (b) the next-of-kin, lawyer and personal doctor of that person shall be allowed reasonable access to that person; and  (c) that person shall be allowed access to medical treatment including, at the request and at the cost of that person, access to private medical treatment.

 THAT I know that Article 28(1) of The Constitution provides that in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.

 THAT Article 28(3)(a) of The Constitution provides that Every person who is charged with a criminal offence shall—be presumed to be innocent until proved guilty or until that person has pleaded guilty.

27. THAT Article 44(c) of The Constitution protects the right to fair hearing from being derogated in any circumstances.
28. THAT Article 79(1) of the constitution requires parliament to only pass laws subject to the constitution and for purposes of good governance, which good governance.
29. THAT Article 79(3) of the constitution makes it a function of parliament to protect the constitution and promote democratic governance which include making constitutionally compliant laws.

 THAT I know that Article 126(1) of the constitution provides that Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people.

29. THAT I see that Article 128(1) of the constitution provides that In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.
30. THAT Article 128(2) of the constitution provides that No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.
31. THAT Article 129(1) of the constitution provides that The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of—the Supreme Court of Uganda; the Court of Appeal of Uganda; the High Court of Uganda; and  such subordinate courts as Parliament may by law establish, including qadhis courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament.

 THAT Article 210 of the constitution provides that Parliament shall make laws regulating the Uganda Peoples’ Defence Forces and, in particular, providing for— the organs and structures of the Uganda Peoples’ Defence Forces;              recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces and ensuring that members of the Uganda Peoples’ Defence Forces are recruited from every district of Uganda;  terms and conditions of service of members of the Uganda Peoples’ Defence Forces; and the deployment of troops outside Uganda. A copy of The Relevant parts of The Constitution is hereto attached and marked ‘B’

70. THAT I have looked at Section 3(2) of The Fire Arms Act Cap. 229 which provides that Any person who—(a) purchases, acquires or has in his or her possession any firearm or ammunition without holding a valid firearm certificate, or otherwise than as authorised by such a certificate, or, in the case of ammunition, in quantities in excess of those so authorised; or (b) fails to comply with any condition, subject to which a firearm certificate is held by him or her, commits an offence and is liable on conviction to imprisonment for a term not exceeding ten years or to a fine not exceeding twenty thousand shillings or to both. A copy of The Relevant parts of The Fire Arms Act is hereto attached and marked ‘C’
71. THAT Section 119(1)(g) of The UPDF Act, 2005 provides that The following persons shall be subject to military law—every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence.
72. THAT Section 119(1)(h) of The UPDF Act, 2005 provides that The following persons shall be subject to military law—every person found in unlawful possession of—arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or other classified stores as prescribed.
73. THAT Sections 161(1)(a), (b) & (c) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 requiring the person charged with Unlawful purchase, etc. of military stores to prove that he or she did not know and could reasonably not be expected to know, that the chattels in question were military stores; that those chattels had, by earlier transaction, been disposed of by order or with the consent of some person or authority who had, or whom he or she had reasonable cause to believe had, power to give the order or consent; or that those chattels had become the property of an officer or a  militant who had ceased to be a member of the Defence Forces, or of the personal representative of a person who had died.
74. THAT Section 161(3) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 gives powers to a member of a court martial, if satisfied by evidence on oath that a person within the jurisdiction of the court martial, has, or is reasonably suspected to have in his or her possession, any property which has been the subject of an offence against this section, grant a warrant to search for the property as in the case of stolen goods.
75. THAT Section 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 empowers an officer after searching for property suspected to have been the subject of the offence under section 161 to take such person in whose possession or keeping the property is found before a court martial. A copy of The Relevant parts of The UPDF Act 2005 is hereto attached and marked ‘B’
76. THAT looking at the clear provisions of Article 210 of The Constitution which only mandated parliament to make laws prescribing discipline of members of UPDF, it is clear that in enacting Section 119(1)(h) of The UPDF Act, 2005, subjecting none-members of UPDF to military law because of their association with members of UPDF is contrary to parliament constitutional mandate.
77. THAT the above unconstitutional legislation extends to enactment of Section 119(1)(h) of The UPDF Act, 2005 which subjects a none-member of UPDF to military law merely because of being in possession of firearms specified therein yet the same are crimes punishable under Section 3(2) of The Fire Arms Act, Cap. 299.
78. THAT I see that in light of Article 28(3)(a) of The Constitution which is clear that in our criminal justice system a person is presumed innocent until proved guilty, Parliament did not have powers to legislate and enact Sections 161(1)(a), (b) & (c) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 requiring the person charged with Unlawful purchase, etc. of military stores to prove that he or she did not know and could reasonably not be expected to know, that the chattels in question were military stores; that those chattels had, by earlier transaction, been disposed of by order or with the consent of some person or authority who had, or whom he or she had reasonable cause to believe had, power to give the order or consent; or that those chattels had become the property of an officer or a  militant who had ceased to be a member of the Defence Forces, or of the personal representative of a person who had died.
79. THAT indeed, the above provisions amend Article 28(1)(a) of The Constitution in a manner not allowed by the Constitution since The UPDF Act 2005 is not an Act whose sole purpose is to amend the Constitution and the procedures of amending the constitution were not complied with.
80. THAT it means that a person, for purposes of this petition a civilian, who has no single knowledge about the art and science of weapons is made guilt before trial and the burden is placed on him to prove that he is not guilty, which is unacceptable in the current constitutional order.
81. THAT I know that the cardinal principle of the common law justice system to which Uganda is part is that a person is innocent until proven guilty and the burden is on the prosecutor to prove the case but this is changed by the above stated provisions of The UPDF Act, 2005 which places the burden on the accused.
82. THAT it is also evident that it was unconstitutional for parliament to enact Section 161(3) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 giving powers to a member of a court martial to issue a warrant of search against a person who is not a member of UPDF because parliament’s power is restricted on making laws regulating members of The UPDF.
83. THAT equally, it was unconstitutional for parliament to enact Section 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 empowering an officer after searching for property suspected to have been the subject of the offence under section 161 to take such person in whose possession or keeping the property is found before a court martial.
84. THAT the above is because the mandate of parliament under Article 210 of The Constitution is restricted to members of UPD and there was no way it could purport to base under the same article to permit presentations of none-members of UPDF to the Court Martial.
85. THAT it is therefore clear that parliament, which is only mandated to legislate subject to the Constitution exceeded its powers in enacting The UPDF Act, 2005 since Article 210 only restricts it to legislations about the discipline of members of UPDF and not providing for situations when none-members of The UPDF should be taken to a court martial.
86. THAT the above is strengthened by the fact that unlike in other articles empowering parliament to make laws which are general, Article 210 is so particular and specific on what laws parliament can make and if it was intended for parliament to have general legislative powers, it would have been specifically provided.
87. THAT as a lawyer, I know that the framing of Article 210 the way it is standing is rooted in the preamble to the Constitution which reflects on military juntas which caused great suffering of Ugandans and subjecting them to military law when they are not members of armed forces.
88. THAT I perceive that the reason why the Constituent assembly was alert in using the word ‘members’ as opposed to any other general word because the same article provides that members shall be recruited from all districts of Uganda.
89. THAT it is clear that the constituent assembly was clear that a person can only be subjected to military law when he was recruited into the force and it was clear to prevent any eventuality of subjecting none members of defence forces to military law.
90. THAT I know that given the nature of defence forces whose members are recruited, trained and maintained in a system that operates on orders without questioning their legality or authenticity, whose disciplinary tribunals are located in military installations which are restricted to a specific class of people, there is no way the safe guards under Article 23(5) of The Constitution can be complied with.
91. THAT further, I have not seen any law in this country authorizing detention of civilians in military facilities yet the UPDF does it in total contravention of Article 23(2) of The Constitution.
92. THAT I have seen that, once detained in a military facility, suspects appearing in The General Court Martial are denied access to their lawyers, personal doctors and relatives who would help them in one way or the other.
93. THAT I see that given the fact that a person who is not a member of UPDF is not accustomed to the environment, procedures and usages of UPDF, which equally applies to any civilian lawyer who may be appearing therein, the proceedings and trial therein for a civilian cannot be termed to be fair before an impartial court or tribunal as required under Article 28(1) and 44(c) of The Constitution.
94. THAT I have discovered that the right to life of a civilian charged in the Court Martial is derogated and put at risk since most of service offences and offences under The UPDF Act carry death penalty or imprisonment for life yet for civilians, those penalties apply to grave offences such as murder.
95. THAT I see that the limitations on the liberty of none-members of UPDF placed by the Provisions of Section 119(1)(g(, 119(1)(h), 160, 161(1)(a), (b) & (c), 161(3) & 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 are inconsistent with and/or in contravention of Article 43(2(c) of the Constitution, which provides that  Public interest shall not permit any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.
96. THAT the above is because in a democratic society, which democratic principles are universal, it not logical to send a civilian to a military tribunal simply because he/she is suspected to be in possession of a fire arm or that he is suspected to have abetted a militant in commission of an offence because by doing that, his/her life is put at a risk and hence the right to life is derogated.
97. THAT to demonstrate this, under Section 120 of The UPDF Act 2005, A person subject to military law who displays cowardice in action commits an offence and is on conviction, where it results in failure of operation or loss of life, liable to suffer death or, in any other case, liable to life imprisonment.
98. THAT under Section 121 of The UPDF Act 2005, A person subject to military law who breaches concealment in operation, commits an offence and is on conviction, where it results in loss of life, liable to suffer death or, in any other case, liable to life imprisonment.
99. THAT under Section 122 of The UPDF Act 2005, A person subject to military law who fails to protect war materials, misuses or sells them, commits an offence and is on conviction, liable to suffer death.
100. THAT under Section 123 of The UPDF Act 2005, A person subject to military law who is charged with the responsibility of briefing for an operation and fails to do so; fails to obey instructions as explained or laid down regarding briefing for an operation; or fails to prepare for an operation, commits an offence and is, on conviction, where there is failure of operation or loss of life, liable to suffer death or, in any other case, liable to life imprisonment.
101. THAT under Section 124 of The UPDF Act 2005, A person subject to military law who is found guilty of exposing operational plans to unauthorised persons; misusing operational funds, food or other supplies for personal interest;  capturing from the enemy goods for personal use instead of capturing materials for the Defence Forces;  failing to report and hand in goods captured from the enemy;  failing to ensure that goods captured from the enemy are brought to base and are accounted for; or  being drunk during an operation is liable to suffer life imprisonment.
102. THAT under Section 125 of The UPDF Act 2005, A person subject to military law who carelessly shoots any person or handles arms or ammunition in such a. manner as to endanger lives of other persons in operation, commits an offence and is, on conviction, liable to life imprisonment.
103. THAT under Section 126 of The UPDF Act 2005, A person subject to military law who commits an act of violence to any person bringing material to the Defence Forces or to any forces co-operating with the Defence Forces; irregularly detains or diverts any material being convoyed to any unit of the Defence Forces or of any forces co-operating with the Defence Forces; without orders from his or her superior officer, improperly destroys or damages any property; breaks into any house or other place with intention to plunder; commits any offence against the property or person of any inhabitant or resident of a country in which  he or she is serving; steals from or with intent to steal, searches the body of any person killed or wounded in the course of war-like operations;  steals any money or property which has been left exposed or unprotected in consequence of war-like operations; takes, otherwise than for the service of the Republic of Uganda, any money or property abandoned by the enemy; or being a person in command of a unit or detachment of the Defence Forces, uses soldiers of his or her unit or permits or suffers soldiers of his or her unit to be used for carriage of merchandise for sale to soldiers of the unit or detachment for his or her own or another person’s personal gain, commits an offence and is, on conviction, liable to life imprisonment.
104. THAT under Section 127 of The UPDF Act 2005, A person subject to military law who—by want of due precaution through disobedience of orders or willful neglect of duty, is made a prisoner of war; having been made a prisoner of war, fails to rejoin the Defence Forces when able to do so; or having been made a prisoner of war, serves with or aids the enemy; commits an offence and is, on conviction, liable to suffer death.
105. THAT under Section 128 of The UPDF Act 2005, A person in command of a vessel, aircraft, defence establishment or unit of the Defence Forces who—when under orders to carry out an operation of war or on coming into contact with an enemy which it is his or her duty to engage, does not use his or her utmost exertion to bring the officers and militants under his or her command or his or her ship, vessel, aircraft or his or her other material into action;  being in action, does not, during the action in his or her own person and according to his or her rank, encourage the officers and militants under his or her command to fight courageously; when capable of making a successful defence, surrenders his or her ship, material or unit to the enemy; or  gives premature orders to attack resulting in failure of operation,  commits an offence and, on conviction, where it results in failure of operation or loss of life, shall be sentenced to death or, in any other case, is liable to life imprisonment.
106. THAT under Section 129 of The UPDF Act 2005, A person subject to military law who, for any purpose prejudicial to the security or interests of Uganda—infiltrates the Defence Forces or is an agent of a foreign power or of any force engaging in war or war-like activities against the Government; consciously gives classified information to a foreign power or any force engaging in war or war-like activities against the Government or solicits information with a view to giving it to such a power or force; consciously gives confidential information to anyone without the knowledge and approval of the proper authority; or  consciously withholds vital information from the proper authorities,  commits the offence of treachery and is, on conviction, liable to suffer death.
107. THAT under Section 130 of The UPDF Act 2005, A person subject to military law who—discloses by word of mouth or by document, confidential information to the enemy or to unauthorised members of the Defence Forces or the public; talks about or discusses any confidential information in unauthorised places or with authorised persons within hearing distance of unauthorised persons; gives a parole, watchword, password, countersign or identification signal different from that which he or she  received or without authority, alters or interferes with any identification or other signal;  improperly occasions false alarm;   forces a safeguard or forces or strikes a sentinel; or  does or omits to do anything with intent to prejudice the security of the Defence Forces or forces co-operating with the Defence Forces,  commits an offence and is, on conviction, liable to suffer death.

THAT under Section 132 of The UPDF Act 2005, A person subject to military law who—plots, incites, conspires to cause, takes part in or endeavours to persuade any person to join in a mutiny; being present, does not use his or her utmost endeavours to suppress a mutiny; or  being aware of an actual or intended mutiny, does not, without delay inform his or her superior officer of the mutiny,  commits the offence of mutiny and is on conviction, where it results in failure of operation, loss of life or destruction of military operational materials, liable to suffer death or, in any other case, liable to life imprisonment.

88. THAT under Section 133 of The UPDF Act 2005, A person subject to military law who either wilfully or through neglect, disobeys a lawful order commits an offence and is, on conviction, where it results in failure of operation or loss of life, liable to suffer death or, in any other case, liable to life imprisonment.
89. THAT under Section 134 of The UPDF Act 2005, A person subject to military law who fails to execute his or her duties, commits an offence and is, on conviction, where it results in failure of operation or loss of life, liable to suffer death or, in any other case, liable to life imprisonment.
90. THAT under Section 137 of The UPDF Act 2005, A person subject to military law who spreads harmful propaganda, commits an offence and is, on conviction, where there is failure of operation or loss of life, liable to suffer death or, in any other case, liable to life imprisonment.
91. THAT under Section 146 of The UPDF Act 2005, A person subject to military law, who deserts the Defence Forces, commits an offence and is, on conviction—if the desertion endangers life or leads to loss of life; if he or she deserts with arms or ammunition or other war materials; or if he or she deserts and joins the enemy,   is liable to suffer death or, in any other case, liable to life imprisonment.
92. THAT under Section 151 of The UPDF Act 2005, A person who wilfully hijacks or through default, loses, strands or hazards or suffers to be lost, stranded or hazarded any ship, vessel, armoured vehicle or aircraft belonging to or used by the Defence Forces or forces co-operating with the Defence Forces, commits an offence and is, on conviction, liable to suffer death.
93. THAT under Section 152 of The UPDF Act 2005, A person who—in the use of, or in relation to, any aircraft or aircraft material, wilfully or negligently or contrary to regulations, orders or instructions, does any act or omits to do anything which act or omission results or is likely to result in damage to or destruction or loss of any aircraft or aircraft material of the Defence Forces or forces co-operating with the Defence Forces; wilfully or negligently or contrary to regulations, orders or instructions, does any act or omits to do anything which act or omission results in the loss of any aircraft or aircraft material of the Defence Forces or forces co-operating with the Defence Forces; or  during a state of war, wilfully or negligently causes the confiscation by or under the authority of a neutral State of any of the aircraft of the Defence Forces or of any forces co-operating with the Defence Forces;  commits an offence and is, on conviction, liable to suffer death.
94. THAT under Section 153 of The UPDF Act 2005, A person who attempts to hijack an aircraft, vessel or ship belonging to or under use by, the Defence Forces or forces co-operating with the Defence Forces, commits an offence and is, on conviction, liable to suffer death.
95. THAT under Section 154 of The UPDF Act 2005, A person subject to military law who, intentionally or negligently, does or omits to do an act in the use of or in relation to an aircraft, or aircraft material, which act or omission causes or is likely to cause loss of life or bodily injury to any person, commits an offence and is on conviction, liable to life imprisonment.
96. THAT under Section 155 of The UPDF Act 2005, A person subject to military law who, when in an aircraft, disobeys any lawful command given by the Commander of the aircraft in relation to the flying or handling of the aircraft, or relating to the safety of the aircraft, whether or not the Commander is a person subject to military law, commits an offence and is, on conviction, liable to life imprisonment.
97. THAT under Section 160 of The UPDF Act 2005, Any person who—with fraudulent intent applies to any arms, clothing, equipment, vehicle, aircraft or boat any mark referred to in subsection (1);  fraudulently defaces or conceals any mark referred to in sub-section (1)  on any arms, clothing, equipment, vehicle, aircraft or boat; or  unlawfully receives, possesses, sells or delivers any arms, clothing, equipment, vehicle, aircraft or boat bearing any mark referred to in subsection (1) or forbidden by or under this Act to be sold, pledged or otherwise disposed of,  commits an offence and is, on conviction, liable to imprisonment for life.
98. THAT under normal circumstances and in civil service, such breaches outlined above are minor negligent acts of a person and omissions which are normally punishable by warnings and at the standard of The Penal Code Act Cap. 120, those are misdemeanours.
99. THAT however, as outlined above, for members of UPDF, those are capital offences leading to death and to hem, it is normal because of the nature of their recruitment and training but it is a total failure of fair hearing and a threat to the right to life of a civilian to subject him to such laws without any recruitment or training.
100. THAT further, the method of appointment of members of military tribunals set up under the UPDF Act does not meet the test of Articles 28(1), 44(c), 128(1) and 128(2) of The Constitution which guarantee the right to fair hearing and before an impartial and independent court hence making the General Court martial not incapable of discharging justice to none-members of UPDF.
101. THAT Section 194 of The UPDF Act 2005, provides that There shall be in each Division or equivalent formation of the Defence forces a Division Court Martial with unlimited original jurisdiction under this Act which shall consist of—a chairperson who shall not be below the rank of Major; two senior officers; two junior officers; a Political commissar; and one non-commissioned officer, all of whom shall be appointed by the High Command for a period of one year.
102. THAT Section 195 of The UPDF Act 2005, provides that there shall be a Unit Disciplinary Committee for each unit of the Defence Forces, which shall consist of a Chairperson who shall not be below the rank of captain; the Administration Officer of the unit; the Political Commissar of the unit; the Regiment Sergeant Major or Company Sergeant Major of the Unit; two junior officers; and One Private.
103. THAT Section 197 of The UPDF Act 2005, provides that There shall be a General Court Martial for the Defence Forces, which shall consist of—a Chairperson who shall not be below the rank of Lieutenant Colonel; two senior officers; two junior officers; a Political Commissar; and one non-commissioned officer, all of whom shall be appointed by the High Command for a period of one year.
104. THAT Section 197 of The UPDF Act 2005, provides that There shall be a Court Martial Appeal Court for the Defence Forces which shall hear and determine all appeals referred to it under this Act from decisions of the General Court Martial.
105. THAT Section 200 of The UPDF Act 2005, provides that There shall be Field Courts Martial which shall consist of the Field Commander of the operation as the Chairperson and eight other members appointed in writing by the deploying authority before departure.

 THAT from the above, it is manifest that all the basic tenets of independency of a court which include scrutiny at appointment and security of tenure are not available to the members of military tribunals.

95. THAT instead, the UPDF Act sets up tribunals appointed for a short period with an option to renew which puts them on tenterhooks for fear of none-renewal and hence culpable to make decisions on the whims of the appointing authority.
96. THAT it is therefore possible that civilians who compete with political space with the Commander in Chief of UPDF, in the current formation, are at a risk of being framed up with charges making them subject to military law and face tribunals which are neither impartial nor independent but with powers to sentence such politician to death or life imprisonment.
97. THAT this is the exact scenario happening with Hon. Kyagulanyi Robert who does not share the same political line with the commander in Chief whose life is treated by being tried in a martial tribunal which is not independent
98. THAT it is therefore clear that if this court does not annul provisions of the UPDF Act 2005 which makes civilians subject to military law, the democratic and rule of law processes are at risk in this country which has had a tough military history.
99. THAT the above is because with such provisions, the sitting president who commands the UPDF can easily influence trumped up charges against his real opponents by subjecting them to military law and then throw them before none-independent tribunals of UPDF which are meant for members of UPDF.

 THAT I am praying for a declaration that Section 119(1)(g) of The Uganda Peoples Defence Forces(UPDF) Act, 2005 subjecting none-members of UPDF to military law merely by aiding and abetting members of UPDF in commission of a service offence is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22, 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.

96. THAT I am praying for a declaration that Section 119(1)(h) of The Uganda Peoples Defence Forces(UPDF) Act, 2005 subjecting none-members of UPDF to military law because of merely being in possession of a firearm which is a monopoly of UPDF or which may be prescribed, is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
97. THAT I am praying for a declaration that Sections 161(1)(a), (b) & (c) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 requiring the person charged with Unlawful purchase, etc. of military stores to prove that he or she did not know and could reasonably not be expected to know, that the chattels in question were military stores; that those chattels had, by earlier transaction, been disposed of by order or with the consent of some person or authority who had, or whom he or she had reasonable cause to believe had, power to give the order or consent; or that those chattels had become the property of an officer or a  militant who had ceased to be a member of the Defence Forces, or of the personal representative of a person who had died are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 28(3)(a), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
98. THAT I am praying for a declaration that Section 161(3) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 giving powers to a member of a court martial, if satisfied by evidence on oath that a person within the jurisdiction of the court martial, has, or is reasonably suspected to have in his or her possession, any property which has been the subject of an offence against this section, grant a warrant to search for the property as in the case of stolen goods is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
99. THAT I am praying for a declaration that Section 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005 empowering an officer after searching for property suspected to have been the subject of the offence under section 161 to take such person in whose possession or keeping the property is found before a court martial is inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
100. THAT I am praying for a declaration that The limitations on the liberty of none-members of UPDF placed by the Provisions of Section 119(1)(g(, 119(1)(h), 160, 161(1)(a), (b) & (c), 161(3) & 161(4) of The Uganda Peoples Defence Forces (UPDF) Act, 2005  are inconsistent with and/or in contravention of Article 43(2(c) of the Constitution, which provides that  Public interest shall not permit any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.
101. THAT I am praying for a declaration that The actions of the Uganda People’s Defence Forces to charge Robert Kyagulanyi Ssentamu (also known as Bobi Wine) before the General Court Martial Sitting at Gulu UPDF 4^th Division Headquarters, on 16^th August 2018, as a person subject to military law under Section 119(1)(h) of The UPDF Act, 2005 with an offence under Section 3(2) of The Fire Arms Act, Cap. 229 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
102. THAT I am praying for a declaration that The actions of the Uganda People’s Defence Forces, if any is taken, to prosecute, convict and sentence Robert Kyagulanyi Ssentamu (also known as Bobi Wine) by the General Court Martial under Section 119(1)(h) of The UPDF Act, 2005 with an offence under Section 3(2) of The Fire Arms Act, Cap. 229 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
103. THAT I am praying for a declaration that The actions of the Uganda People’s Defence Forces to charge any person who is not a member of UPDF, as a person subject to military law under Sections 119(1)(g) and 119(1)(h) of The UPDF Act, 2005 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
104. THAT I am praying for a declaration that The actions of the Uganda People’s Defence Forces, if any was ever taken, to prosecute, convict and sentence any person who is not a member of UPDF, as a person subject to military law under Sections 119(1)(g) and 119(1)(h) of The UPDF Act, 2005 are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
105. THAT I am praying for a declaration that The actions of Uganda Peoples’ Defence Forces to remand and sentence none-members of UPDF to military barracks/facilities after appearing before The General Court Martial or any other military tribunal are inconsistent with and/or in contravention of Articles 8A, 20(1), 20(2), 21(1), 22(1), 28(1), 44(c), 126(1), 128(1), 128(2), 129 & 210 of the Constitution.
106. THAT I am praying for a permanent injunction restraining The Uganda Peoples’ Defence Forces, the respondent, his agents and all persons, agencies or bodies claiming through him from enforcing Sections 119(1)(g), 119(1)(h), 161(1)(a), (b) & (c), 161(3) & 161(4) of The UPDF Act, 2005 subjecting none-members of UPDF to military law merely by aiding and abetting members of UPDF in commission of a service offence and by merely being in possession of a firearm which is a monopoly of UPDF or which may be prescribed, respectively against Hon. Robert Kyagulanyi Ssentamu(also known as Bobi Wine) or any other none-member of The Uganda People’s Defence Forces and from Any further remanding and sentence of none-members of UPDF to military barracks/facilities after appearing in the General Court Martial or any other military tribunal.
107. THAT I am praying for Orders that the Uganda Peoples’ Defence forces, respondent, his agents or any other person claiming through him to henceforth unconditionally release Kyagulanyi Robert Ssentamu(also known as Bobi Wine) or any other none-member of The Uganda People’s Defence Forces who was charged, convicted or sentenced under Sections 119(1)(g), 119(1)(h), 161(1)(a), (b) & (c), 161(3) & 161(4) of The UPDF Act, 2005.
108. THAT I am seeking for general damages from the respondent due to disturbance and anguish caused to the petitioner arising out of the actions complained against in this petition.
109. THAT I am seeking for costs of the petition to be paid by the respondent to me.
110. THAT I am also seeking for an interest of 25% per annum from the date of filing this petition on the damages and costs awarded in this petition, till payment in full.
111. THAT I depose to this affidavit in support of this constitutional petition challenging the several actions and decisions elaborated herein and in the petition.
112. THAT Whatever is stated herein above is true to the best of my knowledge.

AFFIRMED by the said

MALE H.MABIRIZI K.KIWANUKA              ………………

                                                                       DEPONENT                                                    

Dated at Kampala this………….. day of ……….. 2018.

BEFORE ME

……………………………..

                                               A COMMISIONER FOR OATHS.

 

Drawn and filed by;                                                                                                      

MALE H. MABIRIZI K. KIWANUKA 

 C/o Plot 39, Kampala Road, Shell Capital Building,

2^nd Floor, Suite 201, Tel 0787 263 086/0752 570 574, Kampala

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA.

CONSTITUTIONAL PETITION No…………..OF 2018.

MALE H. MABIRIZI K. KIWANUKA::::::::::::PETITIONER.

VERSUS

THE ATTORNEY GENERAL OF UGANDA::::::::RESPONDENT

 

SUMMARY OF EVIDENCE

The petitioner will contend that the actions complained against in this petition are unconstitutional, null and void, warranting the grant of the remedies sought.

 

LIST OF DOCUMENTS

1. The UPDF General Court Martial Charge Sheet dated 16^th August 2018 against Hon. Kyagulanyi Robert also known as Bobi wine.
2. Any other with leave of court.

LIST OF AUTHORITIES

1. The 1995 Uganda Constitution.
2. The UPDF Act, 2005.
3. The Fire Arms Act, Cap. 299
4. Case law.
5. Any other with leave of court.

 

Dated and Signed at Kampala this 20^th day of August 2018 by: