IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL DIVISION

MISC. CAUSE NO. 26 OF 2017                                        

OOLA DAN ODIYA………………………………APPLICANT

V

ATTORNEY GENERAL………………………..RESPONDENT

BEFORE HON. LADY JUSTICE H. WOLAYO

RULING

The applicant  by  motion brought an application under article 50(1)  of the Constitution as amended for enforcement of article 28 (1) o f the Constitution . He prayed for the following orders:

1. A declaration that the UPDF Unit Disciplinary Committee and General Court martial has no jurisdiction to try the applicant for the offences disclosed in the charge sheet for CR. Case No. UPDF/UDC/MP/07/2017 dated 16.01.2017.
2. A permanent injunction restraining the respondent , its agents, servants and all those acting on behalf of the respondent from continuing with the prosecution of the applicant in any UPDF tribunal for the offence disclosed in the charge sheet .
3. The applicant be released from remand forthwith.
4. Compensation be ordered for violation of applicant’s right to a fair hearing and  freedom to personal liberty.

The grounds of the application are contained in the motion itself and affidavit in support.

The respondent filed two affidavits in reply ofNabasa Charity and Cpl. Nkomejimana Julius opposing the motion.

Mr. Walubiri appeared for the applicant while Ms. Apita Susan Okello State Attorney appeared forthe respondent.

Both counsel did not address me on whether this court has jurisdiction to hearthis application because the issue was not raised but Irealised it is necessary to address it first before going into issues raised by both counsel.

The Const. Court in Const Pet.  No. 18 of 2005 held that the High Court is equivalent to the General Court Martialwithconcurrent jurisdiction and that the GCM is neither subordinate nor superior to the High Court.

I reproduce the full text of the holding:

The General Court Martial is the equivalent of the High Court in the civil court system. Both have concurrent jurisdiction, same sentencing powers in capital offences with exceptions. Their decisions in capital offences are appealable to the Court of Appeal and eventually Supreme Court. Both courts have supervisory powers over their subordinate courts. The General Court Martial is, therefore, neither subordinate nor superior to the High Court but has to be equivalent to it.

In spite of equality in jurisdiction, article 50 of the Constitution as amended confers on the High Court jurisdiction among other courts in the hierarchy to enforce violations of the Constitution.This mean that this application brought under article 50 of the Constitution to enforce the applicant’s right to a fair trial by a court of competent jurisdiction is properly before me.

Applicant’s case

It was the applicant’s case that on 15.6.2016 he was charged in the chief magistrate’s courtGuluvide criminal case No. AA31 of 2016 and on 12.1.2017, a nolle prosequi was entered and he was discharged.

That in spite of the discharge,he was immediately re-arrested with his co-accused and charged in the UPDF disciplinary committee unit with treachery and murder.

It was the applicant’s case that he is not a UPDF soldier and has never aided or abetted any soldier in the commission of any offence and therefore not subject to military law.

Respondent’s case

It was the respondents case that a nolle prosequi is not an absolute discharge and that the applicant was properly charged with a service offence under section 119 (g) of the UPDF Act and committed for trial before the General Court Martial.

Whether article 28 (1) of the Constitution was violated.

Counsel Walubirifor the applicantsubmitted that to try the applicant in a military tribunal is a violation ofhis right to a fair trial under article 28(1) because he is not subject to military law.

Counsel submitted thatalthough the applicant was charged under section 119 (g)for aiding and abetting commission of an offence, no evidence has beenproduced by the respondent to show that he worked with a UPDF soldier to commit the alleged offence nor was he charged together with a UPDF soldier. It was counsel’s contention that jurisdiction isdetermined by disclosed factsand yet no such facts have been disclosed.

He concluded that the applicant’s right to afair hearing before an impartial tribunal under article 28 (1) of the Constitution has been violatedbecause the applicant does notbelong to the class of persons for which the military tribunal was established.

Counsel Apita for the respondent argued that the applicant has not demonstrated that the GCM is not an independent and impartial tribunal . Furthermore, that the GCM is enjoined by the UPDF Act to applyprinciples applicable in civilian courts . That therefore it is not possible to determine if it is not competent before the trial kicks off.

Counsel further argued that it is not for this court to consider whether there is evidence of aiding and abettingand that it has been held in decided cases that the GCM is competent to try civilians.

Article 28 (1)commands that

In the determination of civil rights and obligationsor 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.

There are two main aspects tothe issue under determination.

1. There is a challenge to the competency of the GCM  to try the applicant.
2. There is a challenge to the charge  as framed in as far as it does not disclose that the GCM has jurisdiction to try the applicant.

Challenge to the competency of the GCMto try the applicant

This challenge goes to jurisdictionof the GCM.The Supreme Court in Constitutional Appeal No. 1 of 2016 Attorney General v Uganda Law Society held that the GCM is a creature ofUPDF Act which also creates many offencesthat are referred to as service offences.Thissame issue of jurisdiction and competency of the GCM was recently discussed by my learned sister Justice Basaza in Misc. Cause No. 135 of 2016  Hon. Kabaziburuka  v AGwhere she found that the GCM had jurisdiction to try civilians charged with service offences. It istherefore now settled law that the GCM has jurisdiction to try civilians charged withservice offences.

Challenge that the charge sheet does not disclose that the GCM has jurisdiction.

Counsel for the applicant challenged the charge sheet as framed on the grounds that it did not disclosethe nexus between the applicant who is a civilian and section 119 (1) (g)of the UPDF Act in order to bring the applicant under the jurisdiction of the GCM.

Section 119 (1)(g) of the UPDF Act brings under the jurisdiction of the GCM any person not otherwise subject to military law if that person

‘ aids orabetsa person subject to military law in the commission of a service offence. ‘

Counsel for the applicant submitted thatall the co-accused persons are not soldiers which means they too must be shown to have aided and abetted in the commission of a service offence to the same degree as the applicant.

Service offences are described as an offence under the Act or any other Act for the time being in force committed by a person while subject to military law.

As to whether the applicantwas charged with a service offence depends on the charge as framed. The applicant was charged withfour others in two counts:

Count 1: Treachery c/s 129 (a) of the UPDF Act

It is alleged thatOola David,resident of Kanyagoga AZone Gulu district person subject to military law and ‘others still at large’ on 27.5.2016 with intent to prejudice the security of the Republic of Uganda infiltrated the Defence Forces at Opit Army Detach in Gulu district.

Count two

Murder c/s 188 and 189 of the Penal Code Act

Oola David resident of Kanyagoga Zone A , Gulu district and four others on 27th May 2010 at Opit Army Detach in Gulu district with malice aforethought unlawfully caused the death of RA /098243 Pte Odong Alphonse Ojara.

Treachery is a service offence under section 129 of the UPDF Act.

With respect to murder,section 179 (1) of the UPDF Act prescribes that

A person subject to military law , who does or omits to do an act in Uganda which constitutes an offence under the Penal Code Act or any other enactment…

Commits a service offence and is on conviction , liable to a punishment .’

Sections 179and 119 compliment each other on the issue of jurisdiction of the GCM to try civilians.

Section 119 (1) (g) confers jurisdiction on the GCM to try civilians but only in instances where the civilian who is not otherwise subject to military law has aided and abetted a  person subject to military law. The latter persons are described in section 119 (1) (a) to ( c) as

1. Every officer and militant of a regular force
2. Every officer and militant of a reserve force
3. A person attached or seconded as an officer to any service or force of the defence forces.

The other category of persons is described as not otherwise subject to military law but

1. Is serving in the position of an officer or a militant of any force raised and maintained outside Uganda and commanded by an officer of the defence forces
2. Who voluntarily accompanies any unit or other element of the defence forces which is on service in any place.
3. While serving with the defence forces under an engagement by which he or she has agreed to be subject to military law
4. Who aids and abets a person subject to military law in the commission of a service offence.

Section 179 of the UPDF Act is with respect to civil offenses e.g. under the penal codecommitted by persons subject to military law. The reference to ‘persons subject to military law ‘ in section 179 is deliberate because it leaves out the other category ‘ of persons not otherwise subject to military law’. There is therefore a presumption in law that civilians are not subject to military law unlessthey aided and abetted persons subject to military law as prescribed in section 119 (1) (g) of the UPDF Act.

Section 19 of the Penal Code is a good guide to the definition of aiding and abetting. It prescribes as follows:

1. When an offence is committed , each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with committing it:

1. Every person who does the act or makes the omission which constitutes the offence.
2. Every person who does or omits to do an act for the purpose of enabling or aiding another person  to commit the offence.
3. Every person who aids or abets another person in committing the offence.

Therefore, there is a difference between aiding and abetting on the one hand and committing the actual offence on the other hand.

With respect to section 119 of the UPDF Act persons not otherwise subject to military laware subject to military law when they aid and abet persons subject  to military law.

Therefore, it is imperative that the charge sheet on the face of it discloses this essential requirement.

I am fortified in this analysis by the decision of the Constitutional Court in Const. pet. No. 18 of 2005 (ulii)  Uganda Law Society v Attorney Generalwhereone of the issues for determination was whether the GCM had jurisdiction to try civilians jointly with military offenders.One of the charges the GCM had preferred against accused persons was possession of firearms contrary to the Firearms Act. The courtheld that where the prosecutor relies on section 119 (1) (g) of the UPDF Act, particulars of the acts complained of must be stated in the charge sheetand where there is no principal military offender to abet or aid, the charge sheet is defective.

A critical examination of the charge sheet shows that the applicant is described as a person subject to military law and he is charged with ‘others still at large’.

1. , 2006 discusses at length the principles  with respect to framing charges. 

He states that the basic requirement of the content of everycharge is that it must contain the statementof the specific offense or offences with which the accused is charged together with such particulars as many be necessary on the nature of the offence.

Jurisdiction is a matter of law and not evidence,therefore this means where a civilian is charged in the GCM the charge sheet must from the outset ,on the face ofit disclose that the GCM has jurisdiction to try the civilian.

The constitutional court in  Const.  Petition  18 of 2005 went on to explain that

Due to the importance ofnational security, it is generally accepted that those members of civil society who assist in anyway the commission of military offenders or abet military offenders should be answerable in military courts. It is presumed they had a common intention with military offenders when alleged offences were committed.’

The current charge sheet is defective in as far as it doesn’t disclosethe other personssubject to military lawwhom the applicant aided and abetted.It is not sufficient to simply allude to ‘others at large’or that the applicant is subject to military law.In any case, it isa wrong description to describe the applicant as a person subject to military law when in facthe is a person ‘not otherwise subject to military law’.

That aside,the charge sheet should at least have charged the applicant witha principaloffender who is subject to military lawi.e,person or persons described in section 119 (1) (a) to (c)in order to bring the applicant under the jurisdiction of the GCM.

The charge of treacherycould have brought him under the jurisdiction of the GCM if it had been clearly stated in the particulars that principal persons subject to military lawwere involved. This is not the case.

For the GCM to try the charge of murder against a civilian, he must haveaided and abetted aperson subject to military law in the commission of the same. The particulars as they stand disclose the applicant as a principal offenderand not an accessory before or after the act.

Therefore, the GCMis precluded bysection 119 (1) (g) of the UPDF Act from trying the applicant for murder because he is not charged jointly with person subject to military law per se. Neither do the particulars of the offence disclose a common intention with military offenders.

Counsel for the respondent submitted that this is a matter of evidence to be determined by the trial court.

As said earlier, jurisdiction is a matter of law which must be evident from the pleadings.

In the absence ofparticulars in the charge sheet disclosing that the applicant aided and abetteda military offender, the GCM is not competent to try the applicant and therefore continuation of proceedings in the GCM is a violation ofthe applicant’s right to a fair trialby a competentcourt or tribunal as commanded by article 28 ( 1) of the Constitution.

Remedies.

I now turn to remedies.

The applicant prayedfor general damagesfor the infringement of the applicant’s rights to fair trialandinfringement ofhis liberty.

Before the applicant was charged in the Unit Disciplinary Committee, a nolle prosequi had been entered by the DPP in the criminal charges pending in the chief Magistrate’s court, Gulu. This means he has been unlawfully deprived of his right to liberty since 16.1.2017 when he was charged afresh under military law.

I consider a sum of 10,000,000/ adequate for the wrong suffered.

In the premises, this application is allowed and I make the following orders:

1. The applicant’s right to be tried by a court of competent jurisdiction was violated .
2. The GCM  had no jurisdiction to try the applicant based on a charge sheet that did not disclose  the requirement under section 119 ( 1) (g) of the UPDF Act.
3. A permanent injunction shall issue restraining the respondent , its agents, servants and all those acting on behalf of the respondent from continuing the prosecution of the applicant  on the impugned charge sheet  or on the particulars disclosed in that charge sheet.
4. The applicant shall be released from custody immediately.

Each party to bear its own costs.

DATED AT KAMPALA THIS13TH DAY OF APRIL 2017.

HON. LADY JUSTICE H. WOLAYO