Namugerwa Hadijah v Director of Public Prosecutions and Attorney General (Civil Appeal No. 10 of 2012) [2012] UGCA 60 (14 June 2012)

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT AMPALA

CIVIL APPEAL NO. 10 OF 2012

(Arising from Misc. Cause No. 0152 of 2011 at Kampala)

### <table> NAMUGERWA HADIJAH ::::::::::::::::::::::::::::::::::::

### **VERSUS**

#### THE DIRECTOR OF PUBLIC PROSECUTIONS $\mathbf{1}$

ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::: $2.$

# $CORAM:$ HON. JUSTICE A. E. N MPAGI BAHIGEINE, DCJ HON. JUSTICE A. S. NSHIMYE, JA HON. JUSTICE M. S. ARACH AMOKO, JA

### JUDGEMENT OF THE COURT

This is an appeal from the Ruling and orders of the High Court in Miscellaneous Cause No. 0152 of 2011, wherein V. T. Zehurikize, J of the High Court, at Kampala, dismissed the writ of Habeous Corpus sought by the appellant on behalf of her brother, Ssali Muhammed. The learned trial judge held that the appellant's claim that the General Court Martial had no jurisdiction over Ssali Muhammed, a civilian failed because $S.119(1)(g)$ -(h) of the UPDF Act granted jurisdiction to that

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From this decision, the appellant appeals asserting that the court. learned trial judge erred in this finding.

Mr. S. Rwakafuzi represented the appellant while Mr. Gerald Batanda State Attorney with Ms. Faith Turunenya State Attorney appeared for the DPP

The factual background is as follows:

Ssali Muhammed along with two others not before court were arrested and charged with aggravated robbery, committing the offence with a 35 type of gun and ammunition, which is reserved for the UPDF. He was placed under the jurisdiction of the General Court Martial and held at Kigo Government Prison. The appellant, his sister, filed the writ of Habeas Corpus on his behalf. The trial court allowed the writ to be heard, but found that the General Court Martial did indeed have 40 jurisdiction over this case. Unsatisfied, the appellant appealed to this court.

One issue has been framed for this appeal:

Whether the General Court Martial has jurisdiction to try civilians for 45 offences alleged to have been committed with the use of ammunition ordinarily being the monopoly of UPDF. In resolving this issue, the appellant attacks the charge sheet to show that the General Court Martial jurisdiction would be inappropriate. Counsel also argues that the UPDF

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Act should not be applied to civilians. In opposition, Counsel for the $50$ respondent argues that appellant's claim about the charge sheet are suited for a trial on the merits rather than a writ of Habeas Corpus. Additionally, the respondent notes that the constitutionality of the relevant statute has been upheld.

## Section 119(1)(g)-(h) of the UPDF Act, provides:

"(1) The following persons shall be subject to military law-

- every person, not otherwise subject to military law, $(g)$ who aids or abets a person subject to military law in the commission of a service offence; and - $(h)$ every person found in unlawful possession of - arms, ammunition or equipment ordinarily being the $(i)$ monopoly of the Defence Forces; or - other classified stores as prescribed." $(ii)$

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The language of this statute clearly indicates that Ssali Muhammed's charges, including the possession of a firearm and ammunition that is ordinarily the monopoly of UPDF, fall within the jurisdiction of the General Court Martial. Because of the clarity of the Act, the only way then to prevent this exercise of jurisdiction is for the statute to be found to be unconstitutional. The only court considering this issue has been

the Constitutional Court in *Uganda Law Society vs. Attorney General of* the Republic of Uganda, Constitutional Petition No. 18 of 2005. In this case, the court upheld the constitutionality of this provision. When this case was further appealed to the Supreme Court in Constitutional *Appeal No. 1 of 2006*, this issue was not addressed. Therefore, current law clearly puts Ssali Muhammed within the jurisdiction of the General Court Martial. The learned trial judge was correct in his findings. The Appeal is denied with costs to the appellant.

Dated this $\ldots$ day of $\ldots$ $\mathcal{L}$ 2012

Mpagi-Bahigeine DEPUTY CHIEF JUSTICE A. S. Wshimye

JUSTICE OF APPEAL

M. S. Arach Amoko JUSTICE OF APPEAL