Kiiza v Attorney General & Another (Miscellaneous Cause 37 of 2025) [2025] UGHCCD 50 (3 March 2025)

Full Case Text

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(CIVIL DIVISION)**

#### **MISCELLANEOUS CAUSE NO. 37 OF 2025**

# **IN THE MATTER OF ARTICLES 23(9), 44(D) AND 50 OF THE CONSTITUTION OF THE REPUBLIC OF UGANDA, I995**

#### **AND**

#### **IN THE MATTER OF SECTION 38 OF THE JUDICATURE ACT CAP I6**

## **AND**

## **IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS**

## **CORPUS AD SUBJICIENDUM BY [MR] ERON KIIZA**

**1. KIIZA ERON:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

#### **1. ATTORNEY GENERAL**

2. **COMMISSIONER GENERAL OF PRISONS:::::::::::::::::::::::RESPONDENTS**

**Before:** *Hon. Justice Dr Douglas Karekona Singiza*

#### **RULING**

#### **1 Background**

For the reasons that I shall give shortly, I intend to be brief in this decision. The motion before this court seeks for the orders that a writ of *habeas corpus ad subjiciendum* be issued requiring the Attorney General (AG) and the Commissioner General of Prisons (CGP), their servants, agents, and/or officers acting under their orders to produce Mr Eron Kiiza before this court for appropriate orders.1 The motion before this court is grounded on a number of assertions on behalf of the applicants which I summarise in the seven bullet points below:

- 1. Mr Kiiza is an advocate of the High Court and one of the lawyers that represented Rtd Col Dr. Kizza Besigye, and Haji Obeid Lutale Kamulegeya at the General Court Martial at Makindye. - 2. ln the course of representing the two persons, at the GCM, the Mr Kiiza was quickly accused of contempt of court, convicted and sentenced to 9 months of imprisonment at Kitalya Mini Max Prisons where he is currently being illegally detained by the second Respondent. - 3. Mr Kiiza challenged the decision of the GCM before the Court Martial Appeals Court (CMAC) *vide Kiiza Eron vs Uganda No. 001 of 2025*; and put forward two main considerations: First is that his right to a fair hearing was violated; second that the conviction and sentence was illegal and unconstitutional as had been noted by the Constitutional Court in previous other decisions. - 4. Indeed, on 3l January 2025, the Supreme Court, in *Attorney General v Hon. Michael Kabaziguruka*, Constitutional Appeal No. 2 of 2021, agreed with the Constitutional Court that "the Courts Martial (sic) are not independent and impartial Courts that can guarantee a right to a fair hearing envisaged under Article 28 of the Constitution". - 5. Further that given the manner in which the Court Martial is currently constituted, these courts [and related ones] are incapable to try civilians impliedly, Mr Kiiza's appeal cannot be heard and determined by a related military court in exercise of its appellate power.

1 The motion was brought under the provisions of articles 23(7) and (9), 44(d) and 50 of the Constitution as amended; section 38 of the Judicature Act Cap. 16; and rules 3, and l3 of the Judicature (Habeas Corpus) Rules S. I l3-61.

- 6. Thus Mr Kiiza's continued detention on the basis of an illegal, unconstitutional conviction and sentence is against the "tenets of constitutionalism, rule of law and good governance". - 7. Considering that this court is clothed with inherent powers and unlimited jurisdiction to adjudicate this matter and grant the orders sought, the interest of justice demand that court orders for his unconditional release from the illegal detention.

#### *1.1 Representation*

During the filing of the motion, the applicant was jointly represented by M/s Kizza Mugisha & Co. Advocates and M/s Arinaitwe Peter & Co. Advocates. However, at the time of the prosecution of the motion in court, Mr Peter Mukidi Walubiri presented the arguments on behalf of the applicants. The respondents were represented by Mr Johnson Natuhweera (a Senior State Attorney). The practice of this court to state is usually to appreciate the contribution of counsel on both sides, but where I do not adopt all the arguments made and the authorities cited, it is not out of disrespect but due to limitations of time and space.

## *1.2 Issues for determination*

From the motion papers, the reply thereto, and the other arguments that were presented, it is clear that the complaint before this court focuses on one main question:

*1) Whether on the basis of the decree of the Supreme Court, the applicant adopted the correct procedure to challenge the conviction and sentence of the General Court Martial?*

#### **2 Depositions of the parties**

The motion is supported by the depositions by Mr Ronald Samuel Wanda [one of the applicant's lawyers]. The motion is opposed by relying on the deposition of Col Raphael Mugisha, the Head Prosecutions in the [Uganda Peoples Defence Forces] UPDF attached to the Joint Staff Legal Services.

As is the practice of this court, I have elected not to repeat Mr Wanda's averments in paragraphs 2 to 5 of his deposition since those averments generally reiterate the grounds of the motion. Mr Wanda's deposition places emphasis on the fact that since the Supreme Court had established that Courts Marshal are not clothed with the requisite power to try Civilians, the applicant's

conviction and sentence for contempt had effectively become unconstitutional, illegal null and void. He makes a point that 'once a given court has been declared to have no jurisdiction, the sentences and orders made by such a Court are a nullity and as such the continued detention of the Applicant amounts to a violation to his right to personal liberty.' On account of the above findings, Mr Wanda calls upon this court to invoke its inherent powers and order for the applicants release from prison unconditionally.

In opposition to the motion, the respondents rely on the deposition of Col Raphael Mugisha, the Head Prosecutions in the [Uganda Peoples Defence Forces] UPDF attached to the Joint Staff Legal Services. I have likewise, elected not to dwell so much on paragraphs 2-7 of his deposition because those averments mainly dwell on facts which have already been covered in the motion. I nonetheless pick on four critical areas in his deposition thus:

- 1. Col Mugisha insists that on the 7 January 2025, Mr Kiiza was found guilty of the offence of contempt of court by the GCM and convicted and sentenced to a term of imprisonment of nine (9) months at Kitalya Mini-Max prison. - 2. Col Mugisha is aware that the Supreme Court orders in *Hon. Michael Kabaziguruka* case among other things, were that "[t]his judgment shall have no retrospective effect on any conviction made, and sentences imposed, prior to the date of this judgment; save where the conviction and sentence is being challenged in a Court of law'. - 3. It is his averment that whereas the Supreme Court decision had invalidated the trial of civilians in the GCM, a conviction and sentence of civilians by the GCM would remain operational until such a time when formal a challenge against such a conviction and sentence had been formally made in a court of law in exercise of its appellate power. - 4. Since Mr Kiiza had formally challenged the decision before the Court Martial Appeal Court (CMAC), the present motion is improperly before this court.

#### *2.1 Examination*

I have considered the arguments of both parties and to the extent that both sides locate their arguments in *habeas corpus* and personal liberty, I have elected not to dwell so much on those arguments for the reasons that I will explain in the decision. While I do agree with the propositions put forward by the learned AG that the applicant could have first challenged the convictions and sentence before an appellate court, it is probably not correct to argue that in light of the Supreme Court decision, such an appellate court would be the CMAC in fact.

#### *2.2 Invoking the inherent powers of the high court*

Unlike the magistrates' courts, the high court is vested with unlimited original jurisdiction under article 139(1) of the Constitution. Courts maintain that the delineation of circuits and divisions within the court system serves the purpose of orderliness, which may limit the high court's power to hear and determine all of the disputes before it.2 It would appear that it is not in question that jurisdictional limits are intended to ensure certainty and orderliness in adjudication.*3* There is no doubt that it is legally impermissible for a court to hear and determine a matter when such a court is not endowed with the power to do so.*4*

This section deliberates on issue 1: *Whether, on the basis of the decree of the Supreme Court, the applicant adopted the correct procedure to challenge the conviction and sentence of the General Court Martial?* As has been explained in different other court decisions, jurisdiction is of three kinds: geographical jurisdiction, pecuniary jurisdiction, and subject-matter jurisdiction. Subject-matter jurisdiction is governed by the law applicable to the subject matter under dispute, which usually prescribes that a specific court is mandated to hear and determine a specific kind of dispute. Judges in this country do not so to speak enjoy a 'floating power' to hear and determine any disputes anywhere wherever they occur. It would amount to judicial chaos and blunder were any judge to sit and hear any disputes brought to him or her without checking first whether there would be a better suited high court division or circuit to do so in the first place as is the case in the motion before me.

#### *2.3 Decision*

I take the firm view that the procedure adopted by the applicant to challenge the impugned conviction and sentence was an incorrect one. I would probably have attempted to answer the motion questions had the applicant approached this court by way of an application for judicial review. Moreover, this Court would not be clothed with the requisite criminal appellate or revisionary powers to examine the challenged conviction and sentence by the GCM.

2 See the Judicature (Designation of High Court Circuits) Instrument, Statutory Instruments No. 94 of 2023. For example, whereas a judge stationed at the civil division of the high court may exercise an appellate or revisionary power to hear and determine a criminal conviction and sentence of this nature, it is not expected that such a judge can do so while sitting as a civil division judge, unless by an administrative instruction of the Hon. Principal Judge.

3 See *Rose v Jumo* HCT (Arua) C. Rev No. 0006 of 2015 per Mubiru J.

4 In *Bank of Uganda v Transroad Limited* (Civil Appeal 3 of 1997) [1998] UGSC 7, per Wambuzi CJ. In *Raphael Baku & Anor v Attorney General,* SC Const. Appeal No.1 of 2005, it was emphasised that jurisdiction must be exercised only where it is conferred by the law or a constitutive commercial transaction document.

Accordingly, the motion before this court must fail and it is hereby dismissed with no orders as to costs.

## **Douglas Karekona Singiza**

**Judge**

**03 March 2025**