Publication date: Tuesday, 3rd January, 2006
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MADE RULING: Katutsi |
High Court Judge John Bosco Katutsi yesterday ruled that the Court Martial
was detaining FDC president Kizza Besigye illegally. He said once the High
Court stopped the military court from trying him, they could not extend his
remand warrant. Below is the ruling
The applicant having successfully applied for a writ of habeas corpus ad subjiciendum
has been brought before me and Mr. Matsiko learned counsel for the respondent
has put forward a strong case defending the detention of the applicant at Luzira.
There are two affidavits sworn on behalf of the respondent. The first affidavit
is sworn by Major Kagoro Asingura said to be a Major in the Uganda People’s
Defence Forces (UPDF) and an advocate of the High court and all courts subordinate
thereto. The relevant paragraphs in his affidavit run as follows:
“2. That I am a prosecutor with the General court Martial, as presently convened
and constituted.
“4. That the applicant Rtd. Col. Dr. Kiiza Besigye is kept at Luzira upper
prison by virtue of warrant of commitment on remand issued by the General court
martial of the Uganda Peoples Defence Forces UPDF, on 24th November 2005.
5. That the said warrant of commitment on remand arose from criminal case no.
UPDF /GCM/075/05 before the said General court martial in which the applicant
is charged with Terrorism contrary to the Anti-Terrorism Act, and unlawful
possession of firearms contrary to the firearms Act.
7. That the said warrant of commitment on remand was extended to 19th December
2005 by the said General Court Martial, and the Applicant was required to appear
on that day before the General Court Martial.
8. That on the said 19th December 2005 the Applicant was also required to appear
before the High Court in criminal case no. 955 of 2005 where the applicant
is on trial for charges of treason, mis-prison of treason and rape.
9. That it was not practicable for the applicant to be produced before two
courts at the same time and for this reason the said warrant of commitment
on remand was produced before the said General Court Martial and it was extended
to 3rd January 2006.
The relevant paragraphs of the affidavit sworn by Robert Munanura said to be
a superintendent of prisons and an officer in charge of Uganda Government Prison,
Upper Prison Luzira run as follows:
“4. That the Applicant, Rtd. col. Dr. Kizza Besigye is kept at Luzira upper
prison by virtue of a warrant of commitment on remand issued by the General
Court Martial of the Uganda Peoples Defence Forces UPDF, on 24th November 2005.
7. That the said warrant of commitment on remand was extended to December 2005
by the said General Court Martial and the applicant was required to appear
on that day before the General Court martial.
8. That on the said 19th December 2005 the applicant was also required to appear
before the High Court in criminal case no. 955 of 2005 where the applicant
is on trial for charges of treason, mis-prison of treason and rape.
9. That it was not practicable for the applicant to be produced before two
courts at the same time and for this reason the said warrant of commitment
on remand was produced before the said General Court Martial and it was extended
to 3rd January 2006....”
“11. That I am informed by the office of the solicitor General, which information
I verily believe, that the High Court ordered for stay the said Court Martial
from proceeding with the trial of the accused but did not stop the said court
martial from extending the said warrant.”
In his equally forceful submission Mr.Mbabazi learned counsel for applicant
attacked the warrant of commitment on remand on which the respondent relies
in keeping the Applicant at Luzira upper prison.
The thrust of his attack if I did understand him correctly, is that the said
warrant expired on 25th November 2005 and has not been extended, what is endorsed
at the back of this warrant Annexture “A” is “adjourned” and not “extended”.
He referred to this as an “error on the face of the warrant.”
The second line of attack by Mr. Mbabazi is that the proceedings before the
General Court-Martial were stayed. Here he paused a philosophical question
viz:
“If proceedings are stayed, how do you extend a commitment warrant on remand?”
For his part Mr. Matsiko learned counsel for the respondent argues that the
commitment warrant on remand Annexture “A” is a valid warrant and is in respect
to proceedings before the General Court Martial. He urged court to read the
word “adjourned” as to mean the same thing as the word “extended” and the word “extended” to
refer to the warrant i.e. Annexture “A” to the affidavit of Munanura. On the
question of “stay of proceedings” before the General Court- Martial Mr. Matsiko
argues that what is stayed is the “proceedings” and not the status quo. The
following is my ruling in the matter.
That the writ of habeas corpus is inviolable is an uncontestable fact. It is
to be found in Article 23 clause 9 of the constitution, which reads:
“The right to an order of habeas corpus shall be inviolable and shall not be
suspended.
Decided cases on the subject state to the effect that once the commissioner
General of prisons makes a return to the writ it is for the detained person
to prove, supposing it is a warrant. That it is invalid.
See Rex.vs. Secretary of State for House Affairs, Green (1942) I K.B 87.
In his opening remarks Mr. Matsiko learned counsel for respondent stated:
“The grounds in the notice of motion and the events that followed do not justify
an order of release of the applicant. I rely on 2 affidavits filed in lieu
of a return of writ. The affidavits of Munanura and Major Kagoro sworn on 23.12.05...
contain valid and lawful grounds for the continued detention of the applicant
in Luzira.”
With the greatest respect I think Mr. Matsiko stated his case too widely. In
the affidavit of Major Kagoro I find matters that are of no concern to this
inquiry. The following are but just examples.’
“13. That I know as a prosecutor of the General court Martial which is an office
under the chieftaincy of Military intelligence, that there were credible intelligence
reports to the effect that a group of terrorists including those who burnt
cars and looted shops in Kampala when the applicant was arrested had planned
to attack the High Court premises to rescue the applicants co-accused so as
to make them escape the course of justice.”
“14. That because of the circumstances described herein above and the likelihood
of the applicant‘s escape and in the interests of national security, the applicant
does not deserve to be released.
“15. That the General Court Martial is not a court of Judicature subordinate
to the High Court, and it cannot be subjected to the control and direction
of the High Court when the said General Court Martial is exercising its jurisdiction
or at all.”
Section 34 of the Judicature Act provides as follows:
“34. The High Court-
a) may, at any time, where a person is deprived of his or her personal liberty
otherwise than in execution of a lawful sentence (or order) imposed on that
person by a competent court, upon complaint being made to the High Court by
or on behalf of that person and if it appears by affidavit made in support
of the complaint that there is a reasonable ground for the complaint, award
under the seal of the High Court a writ of habeas corpus ad subjiciendum directed
to the person in whose custody the person deprived of liberty is; and when
the return is made, the judge before whom the writ is returnable shall inquire
into the truth of the facts set out in the affidavit and may mark any order
as the justice of the case requires,
b) may award a writ of habeas corpus ad test flcandum or habeas ad respondendum
for bringing up any prisoner detained in any prison before the court, a court
martial, an official or special referee, an arbitrator or any commissioners
acting under the authority of any commission from the President for trial or,
as the case may be, to be examined touching any matter to be inquired into
by or pending before a court, a court martial, an official or special referee,
an arbitrator or the commissioners.”
From the above it is clear that the scope of my duty is to “inquire into the
truth of the facts set out in the affidavit”.
Now what are the facts set out in the affidavit? These are to be found in the
affidavit sworn by WINNIE BYANYIMA, said to be the spouse of the applicant.
These run as follows:
“2. That the applicant was granted bail and the bail forms are annexed hereto
and marked “A”.
“3. That before being granted bail, the applicant was charged before the General
Court Martial under criminal case no. UPDF/GCM/075 / 05....”
“4. The warrant of commitment issued on 24th November, 2005 remanding the applicant
till 25th November, 2005 expired and cannot be reversed.”
“5. That the High Court in misc. cause no.151 and misc. cause no.155 ordered
for a stay of proceedings of the General Court Martial criminal case no. UPDF/GCM/075/05....”
“6. That I know of no reason why the prison authorities are holding the applicant
in detention and any continued detention is illegal and unlawful and in contempt
of the High Court to release applicant on bail.”
Now, annexed to the affidavit of MUNANURA the officer in charge of Uganda Government
prison, upper prison Luzira where the applicant is detained is a document which
on the face of it is a warrant of commitment on remand. It shows plainly and
clearly that Col. (Rtd.) Kizza Besigye was remanded till 25th day of November
2005.and authorised and commanded the superintendent of prisons to receive
Col. (Rtd) Kizza Besigye in his custody and to produce him in the court at
0900am on the day named, that’s on 25th November 2005.
At the back of this warrant is found the following endorsements:
“25/11/05. The matter adjourned to 19/12/05. And “19/12/05 the matter adjourned
to 03/01/06.
It is trite that the meaning which words ought to be understood to bear is
not to be ascertained by a process akin to speculation; the primary duty of
a court of law is to find the natural meaning of the words used in the context
in which they occur. In this case it is stated plainly that: “the matter adjourned”;
WEBSTER’S NEW WORLD COLLEGE DICTIONARY defines “matter” inter alias as;
“Something is the subject of discussion, concern, action etc,”
To say that in “matter” at the back of the warrant refers to the warrant creates
an absurdity. A warrant cannot be a subject of discussion, concern, action
e.t.c. The matter here must refer to the proceedings before the court martial.
In that context, matter makes sense. The same dictionary defines the word to “adjourn” inter
alias as:
“To put off or suspend until a future time. To close a session or meeting for
a time.
The same dictionary then states:
“Adjourn is applied to the action of a deliberate time body in bringing a session
to a close, with the intention of resuming at a later date.”
Again here to say that the word “adjourn” referred to a commitment warrant
on remand would create an absurdity. It would actually mean that the warrant
of commitment on remand was being closed till a future date. That would surely
mean that the warrant was put into abeyance.
In the FITGERALD’S case (1869), L.R.5 Q. B. I. MELLOR J at p. 10 said:
“The word ‘adjourn’ must be construed with reference to the object of the context.
And with reference to the object of the inquiry. What might in certain Acts
of Parliament require a technical interpretation, where adjournments are well
understood, as for instance, relating to courts of justice, does not apply
to inquiries of this nature. . . . . when the power of holding those meetings
is given. . .the word ‘adjourn’ must be taken as used in the popular sense
of deferring or postponing the inquiry to a future day.”
In the same case LUSH J at p.12 said:
“The word ‘adjourn’ is not used in its technical sense, as it is used when
applied to proceedings of courts of justice, where the authority is holding
a meeting is on a day, but where the law implies an authority to create, as
it were, a special extension of that period when it is needful for the “purpose
of completing the business for which the meeting is held. Where that is done,
the whole period is regarded as being one day, and the meeting or sitting as
one meeting. If in such a case the day has been suffered to expire without
adjournment then nothing can be done to keep alive the function of the body,
and their authority necessarily expires.”
Mr. Matsiko learned counsel for the respondent invited me to read the word ‘adjourn’ as ‘extend’.
With the greatest respect to do so would be to commit a terrible assault on
the English language. The Court Martial is deemed to know what to “adjourn” means.
It must take its natural meaning. I hope I will be acquitted of discourtesy
if I decline the invitation. My holding on this issue is that the commitment
warrant on remand expired on 25th November and has never been extended.
But not only that. There is another fact to inquire into. This is the fact
of stay of the proceedings before the General Court-Martial.
The case of JOSEPH TUMUSHABE VS ATTORNEY GENERAL Constitutional Petition No
6 of 2004 is authority for the proposition that the General Court Martial is
subordinate to the High court. In his ruling made on 2nd December 2005, Kasule
AG.J made an order staying the proceedings in respect of the applicant then
going on in the General Court Martial. The law is clear. This is that a judgment
made by a competent court of law remains in force until it is overturned or
reversed by a superior court or Parliament repeals the law. The case of Joseph
Tumushabe supra is good law and binding on this court and indeed the General
Court Martial.
Therefore the ruling of Kasule made on 2nd December 2005 still stands till
reversed by a superior court in this case the court of appeal as a constitutional
court.
What then is the effect of the order staying the General Court Martial proceedings?
The SHORTER OXFORD ENGLISH DICTIONARY on Historical principles defines ‘stay’ inter
alia as:
“The action of stopping or bringing to a stand or pause; the fact of being
brought to a stand or delayed; a stoppage. Or suspension of action; a check,
set back LAW: suspension of a judicial proceeding.. .a version of progress
or action; a pause, halt. . .To cease moving, halt. To cease going forward,
to stop, halt; to arrest ones course and standstill. To cease or desist from
some specified activity.
The authors go on to quote a verse from the Bible on the word ‘stay’:
“And the sunne stood still, and the moone stayed, until the people had avenged
themselves upon their enemies.” Josh V.13.
In his affidavit and by paragraph 17 thereof Major Kagoro avers:
“17. That I know that the General Court Martial decided to stay its proceedings
in criminal case no. UPDF/GCM/075/05 against the applicant pending the decision
of the constitutional court on whether or not the General Court Martial has
jurisdiction to try the applicant.”
From this bold and loud averment from no lesser person than the prosecutor
in the General Court Martial, what other evidence does the applicant need to
advance .that he is indeed in illegal detention?
“If you have stayed your proceedings against the applicant, what right do you
have to purport to extend his warrant on remand?”
A wise inquisitive by-stander seeing the chairman of the General Court Martial
order for further remand of the applicant would ask in shock: and the question
would be pertinent.
In all honesty Mr. Matsiko, learned counsel for the respondent, would I hope
nod in agreement with the question paused by our wise inquisitive by-stander.
Once a matter is stayed as seen above it ceases to operate. The moment the
General Court Martial stayed their proceedings everything including the power
to order the remand of the applicant ceased. From the 2nd of December 2005
when the order of Kasule AG.J was signed, the General Court Martial ceased
to have anything to do with the applicant. That being the view I take of the
law from the 25th November 2005 applicant has been in illegal detention. If
sanity is to be regained the applicant must be given his freedom to be on bail
as granted by the principal Judge. The total sum of my holding is that the
continued detention of the applicant at Luzira is illegal and unlawful. He
should be released forth with unless held on other lawful orders. Applicant
will get the cost of this application. I order accordingly.
This article can be found on-line at: http://www.newvision.co.ug/D/8/516/474116
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