Attorney General v Kabaziguruka (Constitutional Application 5 of 2021) [2021] UGSC 3 (5 August 2021)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: OWINY DOLLO CJ, ARACH AMOKO, OPIO AWERI, FAITH MWONDHA, MIKE CHIBITA JJSC

## CONSTITUTIONAL APPLICATION NO. 05 OF 2021

(ARISING FROM CONSTITUTIONAL PETITION NO. 45 OF 2016)

#### **BETWEEN**

ATTORNEY GENERAL....................................

#### AND

HON. MICHEAL KABAZIGURUKA...................................

### RULING OF THE COURT

This Application was brought by Notice of Motion under Rule 2(2), $6(2)(b)$ , 42 and 43(1) of the Judicature (Supreme Court Rules) Directions SI 13-11. It sought for orders that:

(a) Execution be stayed of the judgment, orders and declarations of the Constitutional Court at Kampala (Hon. Kenneth Kakuru, JA/JCC, Hellen Obura JA/JCC, Hon. Christopher Madrama JA/JCC and Hon. Remmy Kasule Ag JA/JCC) dated 1st July 2021 in Constitutional Petition No. 45 of 2016 - Hon, Michael Kabaziguruka vs Attorney General until final disposal of the appeal.

(b) Costs of this Application be provided for.

#### **Background**

The brief background of the application is that the respondent filed Constitutional Petition No.45 of 2016 in the Constitutional Court. The Constitutional Court delivered the judgment on 1st July 2021 and issued orders and declarations which the applicant was dissatisfied with. The applicant lodged a Notice of appeal, filed Constitutional Application No.05 of 2021 for stay of execution, filed

# Constitutional Application No.6 of 2021 for interim order and filed for

a certificate of urgency vide Constitutional Application No. 7 of 2021. The Constitutional Application No.7 of 2021 for certificate of urgency was fixed for hearing on 14th July 2021. At the hearing, both parties were represented. Counsel for the respondent Hon. Medard Sseggona conceded to the Application with costs in the cause. Counsel for the applicant welcomed the concession but prayed that

this Court grants the application since it is the Court which has power to do so. Accordingly, the Certificate of urgency was granted. The Application for interim order of stay of execution, Application No. 06 of 2021 and the substantive Application for stay were fixed for hearing on 15th July 2021.

In the interest of time, the substantive application No.5 for stay of execution was heard and after the hearing, the Court delivered a unanimous Ruling to the effect that the Court had to internalize the Application to give a Ruling and in the meantime, an interim order of stay of execution was granted until 29th July 2021 at 11:00 am when the Ruling will be delivered or until the Ruling will be determined.

The application is supported by the affidavit deponed by one Brig. Gen Associate Professor Godard Busingye LLD; but briefly, the grounds are that:

- 1) The applicant was dissatisfied with the orders and judgment of the Constitutional Court in Constitutional Petition No. 45 of 2016 - Hon. Michael Kabaziguruka vs Attorney General delivered on 1st July 2021; and has since filed a Notice of Appeal and lodged a letter requesting for certified copies of the record of proceedings and the judgment. - 2) The applicant's intended appeal to the Supreme Court challenging the judgment, orders and declarations of the Constitutional Court mentioned above raises constitutional and legal issues which have a high likelihood of success upon consideration by this Court.

- 3) The applicant's intended appeal will be rendered nugatory if the orders and declarations in the impugned Judgment are not stayed pending determination of the appeal. - 4) The balance of convenience tilts in favour of the applicant. - 5) The Application has been brought without undue delay 6) It is just and equitable to stay the execution of the orders and declarations in the impugned Constitutional Court judgment stated above.

The respondent Hon. Michael Kabaziguruka filed an affidavit in reply and stated as follows:

- 1) That with the assistance of his lawyers, he read and understood the contents of the Application and the affidavit of Brig. Gen. Associate Prof. Godard Busingye LLD in support of the application and he responds as follows:- - 2) That upon the advice of his lawyers which advice he verily believes to be true, that the Application is vexatious, misconceived, bad in law and untenable at law, an abuse of Court process and brought in bad faith by reason of which Court shall be moved to dismiss it with costs - 3) That the contents of paragraphs $2$ , $3,4,5,6$ and $7$ of the applicant's affidavit are contested. - 4) That the contents of paragraph 8 & 9 are false to the extent that the deponent claims a high probability of success of the intended appeal. - 5) That the refusal to grant the orders sought will occasion no injustice to the parties considering that the trial will commence and proceed in the established Courts of law having jurisdiction to try the matters in contention. - 6) That in reply to the contents of paragraph 10 of the affidavit in support of the Application, he had been advised by his lawyers which advice he verily believes to be true and correct that by issuance of an order for stay of execution military Courts continue trying both military personnel as well as civilians with all offences under the law without jurisdiction

- 7) That in reply to the contents of paragraph 10 of the affidavit in support of the Application, the balance of convenience tilts in favor of trying him and other persons before Courts of Judicature which are clothed with jurisdiction to try all persons with all offences under the law. - 8) That continued trial by military Courts of all persons with all manner of offences under the law constitutes a violation of the Constitution as already found by the Constitutional Court and no amount of damages will atone such violations. - 9) That he ran to Court to protect and fight for his right to a fair hearing before a Court of law with requisite jurisdiction. Currently, he remains the only person on the charge sheet since other co-accused have settled their differences with government, and he is the only one being persecuted politically, and he knows that he cannot receive justice in a military Court. - 10) That the effect of the stay being applied for is to sanction continued illegality whereby the prosecutor being UPDF is intertwined and intermingled with the Court Martial leaving no room for fairness. - 11) That he knows that the intended appeal has no merit as no professional disciplinary organs, including the Judicial Service Commission, the Law Council, among others, exercises criminal jurisdiction; but only disciplinary action against members - 12) That whatever he stated herein above is true and correct to the best of his knowledge and belief.

#### Representation

At the hearing, the applicant was represented by Mr. George Karemera, Commissioner, Civil litigation, Mr. Phillip Mwaka Ag. Commissioner and Mr. Twinomugisha Mugisha State Attorney. The respondent was represented by Mr. Caleb Alaka, Hon. Meddard Lubega Ssegona, Mr. Kwemara Kafuzi, Mr. Samuel Muyizi Mulindwa and Mr. Abubaker Sekanjako.

#### **Submissions**

Both counsel made oral submissions.

#### Applicant's submissions

Mr. Karemera submitted that they are asking Court to exercise its inherent powers under Rules 2 (2) and 6(2) (b) to stay execution of the orders and declarations in the Judgment of Constitutional Petition No. 45 of 2016. He referred to the authorities filed and specifically the case of Hon. Theodore Ssekikubo vs Attorney General -Constitutional Application No.6 of 2013 and Attorney General vs Eddie Kwizera which set out the four conditions the applicant needs to satisfy before the Court.

He stated that the first one is to establish that the appeal has a likelihood of success or prima facie case and in this regard, he referred to the essential steps they have taken in that (a) they have filed a Notice of appeal and have written seeking for the proceedings. (b) That the affidavit in support deponed by Brig. Gen Prof. Godard Busingye LLD has been attached and referred to in paragraph 7 thereof.

Counsel contended that the appeal raises very serious constitutional and legal issues that warrant judicial consideration by this Court. That the judgment and particularly the judgment of Kakuru JA/JCC at page 17 and Hellen Obura at page 38 para 2 & 3 declared S.2 & 179 of the UPDF Act inconsistent with the Constitution and made a criminal offence inconsistent with Article 2(1) and 44(c) of the Constitution. That on coming to this conclusion, the Constitutional Court did not holistically evaluate the Constitution of 1995 as is demanded of them. The Court reached the decision/conclusion without looking at Article 210 of the Constitution, which provides for the structures of the UPDF and also provides for manner of discipline of the forces. He prayed that this Court gives them a chance to canvass this point before the Court. He added that currently, as far as the orders stand, the only jurisdiction left with the General Court Martial is under part 6 of the UPDF Act.

Counsel further submitted that the Constitutional Court declared trial of offences outside the UPDF Act unconstitutional which is an absurdity in their view. He prayed that this Court gives them an opportunity to canvass the above line of argument in arguing the appeal.

Counsel also submitted that the judgment of Kakuru JA/JCC at page 21 paragraph 5, Kasule JA/JCC at page 18 and Obura JA/JCC at page 36 line 45 declared section 119(1)(h) of the UPDF Act unconstitutional. This provision makes it an offence for civilians found in possession of arms and ammunition ordinarily in the employment of UPDF even if there is no danger created by him, he or she cannot be tried before the Court martial. He gave the example of a civilian who drives a military truck to the Supreme Court and he/ she is arrested before creating any trouble and cannot be tried by the General Court Martial but High Court. The Constitutional Court declared that service offences under Section 2 and 179 are no longer under the ambit of General Court Martial which only leaves military discipline offences under Part 6.

He submitted that these issues are serious with high legal and constitutional implications hence the need for them to address this Court on. He submitted that there is very high likelihood of success and was of the view that the Constitutional Court did not interpret the Constitution as a whole as mandated.

Counsel submitted that as shown in the application in paragraphs 6, 10 and 11, if the stay is not granted, the appeal would be rendered nugatory. He further submitted that the Constitutional Court ordered that anyone who has been charged before the General Court Martial for offences not under Part 6 of the UPDF Act be transferred to Civil Courts under the direction of the office of Director of Public Prosecutions within 14 days of the issuance of the orders. He argued that the effect of that order is that the Directorate of legal services of the UPDF, led by Gen. Busingye and his colleagues have to find all people who are not subject to Part 6 in Unit Disciplinary Court under the Act, Division Court Martials, General Court Martial, Field Court.

Martials and General Court Martial Appeal which are the five Courts involved and forward all of these to the DPP for direction.

He submitted further if they are successful in the appeal, the applicant has to trace back all these people who had been forwarded, the witnesses in effect rendering the appeal nugatory. He submitted that in preserving the status quo, there would be no prejudice suffered by the persons currently under trial. Their rights are maintained and upheld in the Constitution for fair hearing of the appeal so the balance of convenience is more in favour of the applicant. The Constitutional Court ordered that all persons currently serving sentences imposed by the authority of military Courts should have their cases transferred to the High Court (Criminal Division) for retrial or to be dealt with as the Court may direct within 14 days from the date of judgment which lapsed on the day this application was heard. He submitted that this would mean retrial of all cases that have gone through a constitutional and mandated Court process and is also subject to appeal and confirmation from other Courts. All the foregoing would have to be redone by the applicant. The inconvenience that the applicant would suffer would be saved by an order of stay. This is so because in the event that the appeal is successful, and yet the orders have been executed, it would be a great inconvenience after hearing the appeal and orders made by this Court, that the applicant begins to trace back what happened.

Counsel further submitted that the application was brought without undue delay. The Judgment was passed on 1st July 2021. The application was filed on 9th July 2021 which was a Friday just one week without the weekend. He added that they have triable issues regarding the functionality of the General Court Martial and the various Court Martials created under the UPDF Act which need urgent adjudication by this Court.

Counsel further submitted among other things that the philosophy behind establishment of the Court Martial is clearly provided in the Constitution as indeed discussed by Kakuru JA/JCC and Obura JA/JCC. It was to deal with our history, wherein, this country has

gone through numerous armed forces committing various atrocities against different people including civilians. It was meant to firmly deal with people who bring themselves under the realm of armed forces.

For a soldier, the discipline that is required of him or her is much higher than a civilian. And if you are a civilian and you bring yourself under the UPDF Act by your actions like procuring ammunition or classified stores as commonly referred to as uniforms. Counsel prayed that this Court gives them an opportunity to make their case again.

Mr. Mwaka on the other hand submitted on the point that there was a prima facie case established by the applicant to grant a stay of execution. Counsel submitted that the matters which will be presented in the appeal are matters which have been traversed in this Court before. That the matters come out clearly in the dissenting judgments. The status quo as it is now where the General Court Martial exercises its jurisdiction the way it does is as a result of those judgments vide Constitutional Appeal No. 1 of 2006 Attorney General vs **Uganda Law Society.** He asserted that the Constitutional Court did not follow the earlier decision of the Supreme Court. He submitted that the Constitutional Court departed from those decisions without due regard to Article 132(4) of the Constitution. He further submitted that the Constitutional Court in the dissenting judgment made analysis of those cases in the judgment of Madrama JA/JCC

Counsel further submitted that in the case of *Davis Wesley Tusingwire* vs Attorney General Constitutional Application No.01 of 2014 which was in respect of the constitutionality of the Anti-corruption Division and application for stay by Davis Wesley Tusingwire of all proceedings in the Anti-Corruption Division. When the order was granted, counsel submitted that it halted all the proceedings and caused break down in the operation of the Anti-Corruption Division. The accused persons could not apply for bail so they started going to the Constitutional Court to apply for bail. The whole period of the trial, they were kept in detention.

He further submitted that when the case went to the Supreme Court, Davis Wesley filed an application for stay of the execution until the appeal was disposed of. He drew the attention of this court to the Supreme Court Ruling which stated as follows:

"Bearing in mind the ... we are of the considered view that the applicant will not suffer irreparable damage if the order sought is not granted. But the emphasis is we are also of the considered view that the balance of convenience is more in favour of the Anti-*Corruption Division of the High Court proceeding with its work – the* accused persons are accorded speedy trial ............. Any person affected by the jurisdiction by any magistrate is free to seek appropriate judicial remedy. The application was dismissed."

Counsel submitted that there are trials going on in the Court Martial, and this Court had earlier determined the jurisdiction of the General Court Martial. He further submitted – that since the UPDF Act was amended as Act 2005, definitely many decisions have been made plus on-going proceedings, it will be pulling the carpet under the feet literally for the orders of the majority Justices to be implemented. In conclusion, he submitted that this Court maintains the status quo until the appeal is determined by granting the Stay of Execution.

#### Respondents' Submissions.

Mr. Meddard Lubega Sseggona in reply to the applicant's submission, opposed the application stating that it does not satisfy the four requirements as settled in various cases referred to by counsel for the applicant, Mr. George Kalemera. That even the principles that he has elaborated which they agree with in their view are not exhaustive, but just a sample of considerations. He cited the case of *Hwan Sung* industries Ltd Vs Tajdin Hussein & others - Civil ApplicationNo.19 of 2008, which dealt with the issue at page 61:

"Clearly this Court has wide discretion to entertain an application which is required by the rules to be brought to the Court of Appeal first in order to safe guard the right of Appeal. However, this discretion must be exercised only in exceptional circumstances which will depend on individual case ... The case of Republic vs Anoop S. Sundaral Trean Civil Appeal No 11 of 1988 and National *Housing* (unreported). The Court said, "Where an unsuccessful party is exercising an unrestricted right of Appeal, it is the duty of the court to make such orders for staying proceedings under the judgment appealed from as will prevent the appeal if successful from being nugatory. But the Court will not interfere if the appeal appears not to be bona fide or there are other sufficient exceptional circumstances."

Counsel submitted that they had exceptional circumstances they intend to address the Court on. He argued that the Application in paragraph 1; the orders sought are for stay of orders and declaration of the Constitutional Court. Further contended that whereas orders may be available to stay, declarations cannot be stayed because they are already in place. That declarations by their nature are selfexecuting no further orders can be sought. He argued that the Constitutional Court made declarations and one of them was that the General Court martial by its nature, Constitution and establishment does not offer a fair hearing to persons accused before it. The right to fair hearing under Article 28(1) is a non derogable right under Article 44 of the Constitution. Counsel submitted that the right to fair hearing cannot be suspended and so the effect of the orders sought now is to suspend that right to fair hearing until determination of the appeal. He submitted that this application is rooted in serious mischief and dangerous to the jurisprudence in this country.

Counsel further submitted that if the argument of Learned Counsel for the Applicant is convincing, it would be a vote of no confidence in the existing Court structure of this country. He further argued that Stay of Execution of orders and declaration of the Constitutional Court is a serious threat to protection of fundamental and most inalienable rights to a fair hearing. It is not a proper case for the grant of Stay. He further submitted that what is about to be suspended cannot be atoned to by any form of damages.

Counsel submitted among other things that Article 210 of the Constitution has never been tested in the authorities like *Uganda Law*

Society v. Attorney General (supra). That it was not canvassed and this is what the Applicant relies on. It mandated Parliament to make laws regulating the UPDF among others and in particular provides for organs and structures of UPDF and has nothing to do with criminal prosecution. He argued that the nearest that UPDF can establish is discipline in terms of Article 210.

Counsel further submitted that in the case of *Davis Wesley Tusingwire* (supra) the Court did not grant the order because it said there were alternatives.

Counsel submitted that the likelihood of success of the appeal is zero because if a Civilian came driving a tanker to the Supreme Court, there are institutions that deal with such cases.

Counsel further submitted that the order to refer cases pending before the Court Martial to the Civil Courts within 14 days, and then AG succeeds in the appeal, the files will have to be referred back to the Military Courts. He stated that under rule 2(2) of this Court rules' this Court has power to make directions that are judicial and just to the parties.

Counsel contended that the decisions of this Court take precedence over the Constitutional Court though it was not true that the Constitutional Court did not examine them.

Mr. Alaka for the respondent submitted that in the case of *Attorney* General v. Uganda Law Society (supra), the Supreme Court dealt with S.2 of the UPDF Act which defines a service offence and they did not discuss section 179 of the Act which deals with the jurisdiction of who are the people who are subject to military law (Courts). The Constitutional Court dealt with S. 179 of the Act, and therefore it was not true that the Constitutional Court ignored the Supreme Court decision. The Constitutional Court widened the question.

On whether the applicant demonstrated a prima facie case with probability of success, counsel submitted that the learned applicant has not established a prima-facie case. That it was erroneous on part of Counsel for the applicant to submit that Kakuru JA/JCC did not

look at Article 210 of the Constitution. On the contrary he submitted that it was at page 6 of his judgment where his lordship Kakuru reproduced Article 210 and concluded in his judgment that the Court was established pursuant to Article 210 to discipline serving officers.

He submitted that the analogy of soldiers in Somalia and a Civilian driving a military tanker cannot be pushed to agree that there is a probability of success. Counsel submitted that the case of Davis Wesley Tusingwire (supra) was for stay of all proceedings of Anticorruption Division and initially the argument was that the Anti-Corruption Division was unconstitutional. So, the same is distinguishable from the instant case.

In rejoinder, Mr. Kalemera Counsel for the Applicant reiterated his earlier submissions that the effect of the orders and declaration would be that the General Court Martial under UPDF Act has to evaluate all the cases that are currently on trial before it to sort out those which fall under S. 2 and S.179 of the UPDF Act thereof, and refer them either to the office of the Director of Public Prosecutions or to the High Court Criminal Division for retrial.

He submitted that under the Act therefore, there are five different Court Martials, - Disciplinary Court Martial, the General Court Martial, the Court Martial Appeal and the Division Court Martial and was not in position to know the magnitude of the numbers involved.

Counsel submitted that he agreed with Mr. Ssegona that Article 210 of the Constitution was not canvassed appropriately by the Constitutional Court, since learned counsel Segona said he was Counsel in the *Uganda Law Society* case (supra). He added that this was the appropriate opportunity to conclusively end the issue as they had illustrated to Court if they are given the chance to effectively argue their case. Counsel submitted that they have demonstrated that they have a good case on appeal.

## Consideration of the Application

The Law governing grant of stay of execution is provided in Rule 6 (2) (b) of this Court's Rules. It provides:

Subject to sub rule (1) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may-

in any civil proceedings, where a notice of appeal has been $(b)$ lodged in accordance with rule 72 of these Rules, order a stay of execution, an injunction or stay of proceedings as the court may consider just.

The conditions or principles have been laid down in various cases by this Court and in other jurisdictions in the commonwealth. This Court has discretionary power to grant a stay of execution but has to be done judicially. We take judicial notice that this Application was brought under Rule 2 (2) of this Court's Rules which mandates, inter alia this Court to invoke its inherent powers to make such orders as maybe necessary for achieving the ends of justice or to prevent abuse of the process of any such Court.

Orders for stay of execution pending appeal may be traced from the English authorities of Cropper vs Smith (1883) Ch. D 305, Wilson vs Church (1879) 11 Ch. D 576 and Erin for Properties Ltd vs Cheshire County Council (1974) 2 ALL ER 448. These authorities were discussed by this Court in the case of Lawrence Musitwa Kyazze vs Eunice Busingye - Civil Application No. 18 of 1990.

In the case of *Erin for Properties Ltd* (supra), Meggary J observed as follows:

"There may of course be many cases when it could be wrong to grant an injunction pending appeal as where an appeal would be frivolous or to grant an injunction (stay of execution), would inflict greater hardships than it would avoid. But subject to that, the principle is found in the leading Judgment of Cotton LJ in Wilson Vs Church (No.2) (1879)12 Ch. D 45C) when speaking of an appeal from Court of Appeal *to House of Lords, he said; "where a party appealing exercising his* undoubted right of appeal, this Court ought to see that the appeal if *successful is not rendered nugatory.*"

The above principles have been followed in many cases in Applications of this nature in this Court. Some of the cases include Constitutional Application No. 7 & 9 of 2011 - Akankwasa vs Uganda, Hon. Theodore Ssekikubo, Hon. Wilfred Nuwagaba, Hon. Mohammed Nsereko, Hon. Baranabas Tinkasimire, Hon (Rtd) Saleh Kamba, Ms. Agasha Mary & Joseph Kwesiga vs National Resistance Movement Consolidated Constitutional Application No. 6 of 2013.

Those cases bring out clearly the conditions which have to be considered before the grant of Application can be made as follows: -

- 1) The applicant has to establish that the appeal has likelihood of success or has a prima facie case. - 2) The applicant has to establish that he/she will suffer irreparable injury or damage or that the appeal will be rendered nugatory if the stay is not granted. - 3) If (1) and (2) have not been established, Court must consider where the balance of convenience lies. - 4) The applicant has to establish that the Application was instituted without undue delay. - 5) The applicant has to establish that the Notice of Appeal has been filed.

Counsel for the applicant submitted at length on the requirement of suffering irreparable injury/damage and the appeal being rendered nugatory. He also submitted at length on the appeal having a high likelihood of success and establishing a prima facie case. He submitted that the impugned Judgment declared service offences under Section 2 & 179 of the UPDF Act unconstitutional, to be no longer brought under the ambit of the General Court Martial and leaves in effect offences only under Part 6 of the UPDF Act. Counsel to that effect submitted inter alia that the orders and declarations in the impugned judgment raised serious Constitutional and Legal issues which require interpretation of the Constitution by this Court. Sections 2, 179 and 119(1) (h) of the UPDF Act were declared unconstitutional, so were inconsistent with and in contravention of Articles 28(1) & 44(c) of the Constitution. Counsel submitted that this Court needs to canvass and or interpret Article 210 of the

Constitution in light of the above provisions of the UPDF Act as this has never been canvassed before. This is the mother provision of the UPDF Act.

That therefore the above demonstrates that there is a prima facie case and likelihood of success. Counsel submitted that there are many trials going on and that this Court had earlier determined the jurisdiction of the Court Martial after the amendment of the UPDF Act, 2005.

On the other hand, counsel for the respondent opposed the application and contended that there is no high likelihood of success and or prima facie case established. Counsel submitted inter alia that the conditions/requirements for grant of an order of stay of execution have not been established. Further, that those conditions counsel for the applicant has elaborated which they agree, in counsel's view are not exhaustive. Relying on the case of Hwan sung Industries Ltd Vs Tajdin Hussein & 2 others (supra), he submitted that he had exceptional circumstances he intended to address Court on. He argued that the General Court Martial does not offer a fair hearing to persons accused before it contrary to Article $28(1)$ and $44$ (c) of the Constitution inter alia.

After listening to both counsel and upon careful consideration of their pleadings and the annextures thereon and the law applicable, we are of the view that exceptional circumstances submitted by counsel for the respondent are actually the issues that will be considered on appeal. Therefore, it means that there are serious constitutional and legal issues to be resolved as the applicant submitted and as raised in this Application.

The submissions of counsel for the respondent showed that Article 210 of the Constitution had never been tested in Court. The Constitutional Court judgment discussed it and hence the need for this Court to be clarify on it through appropriate interpretation. For clarity, it provides:

Parliament shall make laws regulating the Uganda People's Defence *Forces and in particular providing for:*

- a) The organs and structures of the Uganda People's Defence *Forces* - **b)** Recruitment, appointment, promotion, Discipline, and removal of members of the UPDF and ensuring that members of the UPDF are recruited from every District of Uganda - c) Terms and conditions of service of members of the UPDF and - d) The Deployment of troops outside Uganda.

We are satisfied that there are serious issues raised by the impugned judgment of the Constitutional Court in Petition No. 45 of 2016 that require judicial consideration by this court namely, the declaration of S.2, S.179 and S.119(1)(h) of the UPDF Act being inconsistent with and in contravention of Articles 28(1) and 44 (c) of the Constitution. There is irreparable injury/damage the applicant would suffer if a stay is not granted as shown in the affidavit in support of the Application paragraphs 6, 10 and 11 which illustrate the need to preserve the status quo.

In the result, we allow the application and make the following orders:

- 1) Execution of and or giving effect to the orders and declarations issued by the Constitutional Court in Constitutional Petition No. 45 of 2016, between the parties hereto, are stayed until disposal of the applicant's intended appeal. - 2) The Constitutional Application No. 6 of 2021 which had been filed by the applicant for interim order of stay lapses. - 3) The costs of this application shall abide the outcome of the intended appeal. - 4) Owing to the matter in contention, for which the appeal has now been filed, being one of great public importance, the appeal shall be accorded urgency; and shall be immediately fixed for hearing.

Dated at Kampala this $$5$$ day of August 2021.

Owiny Dollo **Chief Justice**

Arach Amoko Justice of the Supreme Court

Opio Aweri Justice of the Supreme Court

Thurangero

$M \\ would$ Justice of the Supreme Court

Chibita Justice of the Supreme Court