Supreme court stays ruling on prosecution of civilians in army court

Chief justice Alfonse Owiny-Dollo

Chief justice Alfonse Owiny-Dollo

The Supreme court has issued an interim order staying the execution of a Constitutional court ruling barring the military court from prosecuting civilians. 

The order was issued Thursday by a panel of five justices led by chief justice Alfonse Owiny-Dollo following a petition filed by the attorney general. Owiny-Dollo said that he had listened to the arguments of both sides and found that they had raised serious issues for which his court needed more time to internalize before a detailed ruling is delivered.

Two weeks ago, the Constitutional court in a 3-2 majority decision ruled that civilians cannot be subjected to military law and ordered the transfer of their cases to civil courts within 14 days for retrial or be dealt with as court may seem fit. Justices Kenneth Kakuru, Hellen Obura and Remmy Kasule ruled in favour while Christopher Madrama and Steven Musota dissented.

The ruling followed a 2016 petition filed by former Nakawa MP Michael Kabaziguruka. However, the commissioner for civil litigation George Kallemera from the attorney general's chambers on July 1 filed a notice of appeal and lodged a letter requesting for certified copies of proceedings and the judgement of the Constitutional court to enable them to appeal against the decision.

The Supreme court also heard that the appeal challenging the decision will be rendered useless if the orders and declarations of the Constitutional court are not stayed until the determination of the appeal scheduled for July 29.

"The balance of convenience tilts in favour of the applicant until the pending constitutional appeal is heard and disposed of by the Supreme court," said Kallemera.

He also noted that their application has been brought without any further delay and therefore it will be just and equitable to stay the execution of the judgement orders and declarations.

According to the acting commissioner in the attorney general's chambers Phillip Mwaka, the matters which are before the Supreme court have already been traversed by the same court but were reportedly ignored by the learned majority justices of the Constitutional court.

As such, Mwaka noted that if a stay of execution order is not granted, it may result into chaos and break down the entire judicial system. However, Kabaziguruka's lawyers led by Caleb Alaka and Medard Sseggona opposed the application, saying that the attorney general's arguments were not exhaustive.

Kabaziguruka's lawyers (L-R) Muyizzi Mulindwa, Caleb Alaka and Medard Lubega Sseggona

Sseggona said that the declarations of court are self-executing and therefore one cannot seek an order to stop them from being implemented. He noted that there is no circumstance under which any court in this country can suspend the right to fair hearing which the Constitutional court already declared that Kabaziguruka's rights were violated.

According to Sseggona, the orders were not to free the suspects but to take them to civilian courts that have uncontested jurisdiction provided for under the law.

Sseggona who was also accompanied by lawyers Samuel Muyizzi Mulindwa and Abubaker Ssekanjako noted that this was not a proper case for grant of stay of execution because what was described cannot be compensated with any form of damages. 

He said that when Kabaziguruka filed in these courts of judicature his application to block his trial in the military court they refused until the Constitutional court gave him relief recently after his rights had been infringed upon.

© 2016 Observer Media Ltd