Kampala Lord Mayor Erias Lukwago, who is also the defense lawyer for the jailed opposition politician, Dr. Kizza Besigye, and his political ally, Hajj. Obeid Lutale, has insisted that his clients are in jail illegally.
Lukwago was submitting before the High Court in Kampala on Wednesday, during the hearing of their habeas corpus application challenging the continued incarceration of Besigye and Lutale despite the Supreme Court ruling that declared the General Court Martial illegal to try civilians.
Lukwago told the presiding judge, Douglas Singiza, that Dr. Besigye and Lutale are in illegal incarceration, adding that there is no charge before the High Court preferred against them.
He also said that there is no remand warrant issued by any court or any lawful order given by the court to keep them in custody.
Section 57 of the Prisons Act says that a person shall not be received or admitted into prison custody without a valid commitment or remand warrant or order of detention, warrant of conviction, or committal.
The essence of habeas corpus is to review the legality of the applicant’s arrest, imprisonment, and detention and challenge the authority of the prisoner or jail warden to continue holding the applicant. The application is used when a person is held without charges or is denied due process.
“Initially, there were charges that had been preferred against them (Besigye and Lutale) as explained in the affidavit of Winnie Byanyima and Proscovia Kunihira. My Lord, that is well explained. The explanation is that the defunct Court Martial had preferred charges against them, and on the 31st day of January 2025, the Supreme Court unequivocally pronounced itself on the constitutionality of the proceedings before the general court martial,” Lukwago told the court.
“All the proceedings before the general court martial were quashed by the constitutional court. It is hereby ordered that the declaration of the constitutional court that section 119(1)(G), now section 117 of the UPDF Act, which provides that any person not otherwise subject to military law who abets a person subject to military law in the commission of a service offense, is unconstitutional. So, this order is hereby set aside,” Lukwago told the court.
He further explained, “Initially, the constitutional court had held that section 119, which is now 117, had provided for a situation where civilians would be subject to military law if they abetted the commission of an offense by a serving officer; that was a valid law. They had not nullified those provisions. Now, that order of the Constitutional Court was set aside by the Supreme Court, meaning that Section 117 has now been nullified by the Constitutional Court.”
Besigye and Lutale were remanded to Luzira prison by the General Court Martial and had been scheduled to return to court on February 3, 2025.
However, on January 31, the Supreme Court issued a landmark ruling declaring that military courts lack jurisdiction to try civilians.
The Supreme Court ruled that all charges or ongoing criminal trials or pending trials before the courts martial involving civilians must immediately cease and be transferred to the ordinary courts of law with competent jurisdiction.
“These charges are preferred by the DPP under Article 120 of the Constitution. The charges before the general court martial are not sanctioned by the DPP. So, the charges to be taken or transferred to civilian courts pursuant to this particular order are those ones sanctioned by the DPP. As we speak right now, there is none. There is no charge sanctioned by the DPP to be taken to the civilian court,” Lukwago argued.
The Supreme Court also ruled that its judgment shall have no retrospective effect on any convictions made and sentences imposed prior to January 31, when the ruling was issued, save where the convictions and sentences are being challenged in the court of law.
This, Lukwago said, is not applicable to Besigye and Lutale because they are not convicts.
The Supreme Court also ruled that all pending trials or partly heard criminal cases that fall under the civil law courts jurisdiction, which are against members of the UPDF who are subject to service law, must be transferred to the civil courts with competent jurisdiction. This, Lukwago also said, is not applicable to Besigye and Lutale because it is for the serving members of the UPDF.
