One of the six police officers being court-martialed for kidnapping two Rwandan political asylum-seekers in 2013 has dashed to the civil division of the High court challenging General Court Martial proceedings.
Nickson Agasirwe Karuhanga says all charges against him and other officers are “concoctions” aimed at persecuting, and not prosecuting him.
In an application filed on January 5, 2018, Agasirwe wants the civil court to declare that the UPDF unit disciplinary committee and General Court Martial (GCM) have no jurisdiction to try him of the offences disclosed in last year’s charge sheet.
Besides kidnap, Karuhanga faces a raft of charges including unlawful possession of arms, ammunition or equipment ordinarily being the monopoly of defence forces.
To the contrary, in the application, in which the attorney general is the only respondent, Agasirwe contends that the charge sheet is defective since it doesn’t disclose the fact that he is a member of police entitled to a firearm and other defense artillery.
The particulars of the offence, according to Agasirwe, don’t further disclose that he possessed a firearm certificate for his armory issued by the chief licensing officer.
“That if the said particulars had been disclosed by the military tribunal, I would not fall within the jurisdiction of the General Court Martial for trial,” Agasirwe says in his affidavit in support of the application.
“That of all intents and purposes, there is no nexus between the charges that have been preferred against me and I cannot be tried for having been in unlawful possession of a firearm.”
At the military court, Agasirwe, a senior superintendent of police and a former commander of police special operations, is facing trial with the commandant of police’s Professional Standards Unit, Joel Aguma, and Assistant Superintendent of Police James Magada (Crime Intelligence).
Others are Sgt Abel Tumukunde (Flying Squad), Faisal Katende (Flying Squad), Amon Kwarisima, Rene Rutagungira, a Rwandese national, and Bahati Mugenga Irunga, a Congolese national.
They were all charged in October last year. It is alleged that on September 25, 2013, the accused persons kidnapped Lieutenant Joel Mutabazi, a former bodyguard of Rwandan President Paul Kagame, in Kamengo along Kampala-Masaka road and forcefully conveyed him to Rwanda.
Mutabazi had fled for his life from Kigali to seek political asylum in Uganda with a United Nations refugee agency (UNHCR) looking out for him. Mutabazi was sentenced to life in prison.
The group was also charged with the kidnap of Jackson Kalemera, Mutabazi’s brother, on the same day. Similarly, Kalemera was also dispatched to Rwandan authorities against his wishes.
However, through Joel Olweny and Company Advocates, Agasirwe says even his co-accused cannot similarly be tried of the said offences because they are also police officers.
From the foregoing, Agasirwe says, it is clear for court to see that the military tribunal is biased, their charges are misconceived and there is no nexus between the charge sheet and my circumstances.
He pleads with High court to issue a permanent injunction stopping the trial arguing that the he is not being accorded a fair hearing by the Court Martial whose members are acting as the “judge and jury”.
“That the misconception by the military tribunal partly formed the basis of their bias and if not checked by this honorable court [civil division of the High Court] shall greatly result in irreparable injury and occasion a miscarriage of justice as my fundamentally protected rights guaranteed under the constitution shall be greatly infringed upon for which no amounts in terms damages can adequately compensate,” Karuhanga says.
The decision to go to the civil court seems to have been inspired by the fact that the Court Martial has twice differed Agasirwe’s bail ruling. At the same time, prosecutors at the same court continue to prefer fresh charges against Agasirwe “without justification but with impunity and malice geared at keeping me incarcerated.”
Last week, Agasirwe’s co-accused Aguma filed a bail application before the criminal division of the High court after the military court had thrown out his bail application last year.