Uganda Law Society and Another v Attorney General (Constitutional Application 7 of 2003) [2003] UGCC 2 (31 March 2003)

# THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

CORAM: HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA. HON. LADY JUSTICE A. E. N. **MPAGLBAHIGEINE,** JA. HON. MR. JUSTICE J. P. BERKO, JA. HON. MR. JUSTICE S. G. ENGVVAU, JA.

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### CONSTITUTIONAL APPLICATION NO. 7 OF 2003

#### UGANDA LAW SOCIETY & ANOTHER APPLICANTS

### VERSUS

ATTORNEY GENERAL RESPONDENT

#### **<sup>20</sup>** RULING OF THE COURT:

The applicants, in their consolidated Constitutional Petitions Nos. <sup>8</sup> of 2002 and 2 of 2002. are challenging the constitutionality of *National Resistance Army Statute No. <sup>3</sup> of 1992* (hereinafter referred to as the Statute No. 3) in so far as it provides for the passing of death sentences at all or without an appeal to the Supreme Court. Pending the hearing and determination of the

petitions, the applicants are seeking, by this application, an order of tliis court stopping the operation of Section 92 (I) (a) ofthe said Statute.

The grounds ofthe application are: -

- **(1)** grant, that the applicants have a prima facie case with a probability of success and that the balance of conveniences is in favour of the - (ii) that if the temporary relief being prayed for is not granted *"the inherent fundamental rights of gallant men and women in Uganda Peoples Defence Forces to life under article 22 of the Constitution may be violated, lives may be lost and irreparable injury suffered".*

a The application is supported by the affidavit of Mr. Andrew Kasirye, the president of the Uganda Law Society filed on 3/3/2003 and supplementary affidavit deponed by the same person and filed on 10/3/2003. In the first affidavit the deponent referred to the two petitions pending before tliis court and continues: -

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- *6. That the National Resistance Army Statute 1992 pre-dates the 1995 Constitution;* - *7. That the applicants/petitioners have prima facie case with a likelihood ofsuccess;*

- *8. That the petitions raise serious matters that impinge on the interpretation of the Constitution and on the enjoyment of fundamental rights to life and of a fair hearing that are seriously threatened unless the petitions are expeditiously heard;* - *9. That pending the final determination of the said petitions, there is a real and imminent danger that more death sentences may be passed under the National Resistance Army Statute 1992 and that Article 22(1) ofthe Constitution will be violated and human lives needless lost (sic);* - *10. That unless interim relief is granted staying further application ofS. 92 (1) (a) of the National Resistance Statute 1992, there is likelihood ofloss oflives and irreparable injury being suffered by persons sentenced to death under the National Resistance Army Statute 1992;* - *11. That in a balance of convenience and in the interests of justice this application should be granted. "*

The supplementary affidavit contains the following pertinent averments: -

2. *That I have learntfrom the New Vision of Tuesday <sup>4</sup>th March 2003 that Private Richard Wigiri, Private Kembacho*

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*Ssenyonjo and Private Alfred Okech were executed yesterday evening byfiring squad;*

*3. 4. 5.*

**io** *6. That the circumstances in which the said soldiers were sentenced to death and executed by firing squad still obtain to day and there is a risk that yet other members of Uganda Peoples Defence Forces will be so tried and executed;"*

The Attorney - General has filed two affidavits in opposition to the application. The first affidavit was deponed by Captain Kagoro A Asingwa, an officer of the UPDF - Directorate of Legal Services. The affidavit contains the following relevant averments: -

**20** *3. That is not true that there is no provision for appeal under the law - where a death sentence has been passed under Section <sup>92</sup> (1) (a) ofthe NRA Statute No. <sup>3</sup> of1992.*

> *4. That I know that several soldiers who have been convicted and sentenced to death under Section 92 (1) (a) of the NRA Statute have appealed to the Court ofAppeal and the Supreme Court.*

- 5. *The NRA (Court Martial Appeal Court) Regulations 1994 which were made pursuant to Section 104 ofthe NRA Statute provide for appeal to the Supreme Court against a conviction involving a sentence ofdeath made under Section 92 (1) (a) of the NRA Statute.* - *6. That it is only in the case of a sentence of death by a Field Court Martial where no provision is madefor appeal.* - 7. *That a Field Court Martial is a special court which is intended to safe guard military operations by providing for immediate remedial measures.* - *8. That in many of these cases the death sentence is used as a disciplinary measure to safeguard state security by barring errant soldiersfrom deserting from front lines, barring them from killing civilians who are <sup>a</sup> source of vital intelligence information and to prevent cowardice in action.* - *9. That the military courts are not courts ofjudicature and their appellate system is quite differentfrom that of ordinary courts oflaw.* - *JO. Thatfrom my experience as a soldier, sentencing a soldier at the battle field to a sentence of life imprisonment is*

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*tantamount to giving luxury and cannot therefore be a deterrent.*

- *11. only instituted in situations/circumstances ofspecial operations and war; and That a Field Court Martial is* - *12. That suspending the operation of Section 92 (1) (a) of the NRA Statute No. 3 of 1992 will be prejudicial to the maintenance of the discipline of the Army, the Security of Uganda, and maintenance of general law and order in the country, especially at the point of time in Uganda when we have so many insurgencies. "*

He deponed that he was aware that Private Richard Wageri, Private Kakembo Ssenyonga and Private Alfred Okech were executed as alleged by Mr. Kasirye, but contends that their execution was done in accordance with the law.

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object of: - The second affidavit was from Lt. Col. John Baptist Mulindwa who described himself as the Division Operations and Training Officer of the Third Division of UPDF who claimed to have served the cause of democracy and military hierarchy ofthe country for over three decades. The substance of his affidavit is that the importance of Field Court Martial is to instil courage in soldiers during operation when they face life fire from opposing forces and to uphold discipline in the Army. According to him, the Field Court Martial was constituted at Kalisorikee in Kotido District with the

## *(a) maintaining discipline ofthe troops;*

- *(b) avoiding political diversionary tendencies by reiterating that indiscipline would not bring about deviation from the original mission to disarm the Karimojong warriors; and* - *(c) showing that justice would be done where a wrong has been done."*

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In his view, the above objectives were achieved in that soldiers who had intended to indulge in indiscipline, like killing innocent civilians, raping and other kindred acts of indisciple, refrained from doing so because of the fear of the penalties which the Field Court Martial might impose on them if found guilty and convicted.

The principles for granting an interlocutory relief or an injunction are well settled. It is generally accepted that for a temporary injunction to issue, the court must be satisfied: -

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- *(1) that the applicant has a prima facie case with a probability of success, and* - *(2) that the applicant might otherwise suffer irreparable injury. Ifthe Court is in doubt on any ofthese two issues, then,*

*(3) [1973] EA. 358. the court will decide the application on a balance of convenience See - Giella v Cassman Brown & Co. Ltd*

According to the first of the three principles stated above, the burden of the applicants are to satisfy the court, first, that there are serious questions to be tried in the suit and secondly, that on the evidence before the court there is probability of the applicants being entitled to the relief asked for. We must stress that at this stage proof of the facts deponed in the affidavit evidence is not required. What is required at this stage is to show a prima facie case and probability ofsuccess, not success.

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The argument of Mr. Karugaba, learned counsel for the applicants, was that the consolidated petitions of the applicants seek to challenge the power of Field Court Martial to pass death sentence without confirmation of the Supreme Court which is the highest appellate Court in Uganda. He referred to the affidavits of Capt. Kagoro Asingara and at Col. John Baptist Mulindwa in which it has been admitted that there was no right of appeal to the Supreme Court from a sentence of death passed by a Field Court Martial. In his view, since by article 273 of the Constitution the NRA Statute No. <sup>3</sup> of 1992 has to be construed so as to bring it into conformity with the 1995 Constitution, then a prima facie case is made out that section 92 (1) (a) of that Statute violates the article 22 (1) of the Constitution in so far as sentences of death passed by a Field Court Martial pursuant to that subsection are not subject to confirmation by the Supreme Court before execution can be carried out. With regard to irreparable injury, Mr. Karugaba has contended that during the pendency ofthe petitions, three soldiers have been convicted by a Field Coml Martial and executed when their sentences had not been confirmed by the Supreme Court. It is his submission that death is final and irreversible. Therefore, the applicants have established irreparable injury for the operation of the challenged subsection to be stopped pending the final determination ofthe petitions.

**10** Mr. Karugaba has finally invited the Court to follow its decision in Constitutional Application No. 6 of 2002 between Dr. James Rwanyarare and Others against the Attorney-General in which this Court suspended the operations of section 6 of the *Political Parties and Organisations Act No. 18 of2002* pending the hearing and determination of Constitutional Petition No. 7 of 2002 in which the constitutionality of the said Act was being challenged.

Mr. Barishaki, Commissioner for Civil Litigation^, for the Attorney-General, in opposing the application, has argued that: -

**20 (1)** *(H)* the applicants have failed to make out a prima facie case that the consolidated petitions have a chance ofsuccess, and that on balance of convenience, it is necessary that the application ofthe section do continue.

to He has contended that appeals are creation of statutes. Therefore, it is the NRA Statute that will indicate where appeals will end. Fie referred, in particular, to Parliamentary Election Petitions where under the

*Parliamentary Elections Statute (Interim Provisions) Statute* appeals end at the Court of Appeal and argued that that fact does not render the law unconstitutional.

Constitution which attest to the fact that Field Court Martial is a special court and argued that the Constitution itself does not envisage appeals to Supreme Court from sentences passed by Field Comt Martial. On the first issue he submitted article 22 (1) cannot apply to a Field Court Martial and therefore there is no likelihood that the petitions would succeed. He also argued that articles 22 (1) and 132 ofthe Constitution refer to Courts ofJudicature and contended that Field Court Martial is not part of the Courts of Judicature and therefore cannot be brought under those articles. He further said that Field Court Martial is a special Court and it is recognised as such by both the NRA Statute and the Constitution. He referred to Sections of the NRA Statute and some articles of the

On the next issue, Mr. Barishaki, reiterated the averments deponed in the two affidavits the respondent relied upon and contended that at this point in time, where the country is facing insurgency, the army should be permitted to do their work undeterred by external influences.

As regards Dr. Rwanyarare's case (supra), Mr. Barishaki has contended that the two situations are not the same. That case dealt with political matters, whilst the instant petitions concern the security of the country. He prayed for the dismissal ofthe application with costs.

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In reply, Mr. Karugaba has contended that articles 137 (5) and 121 (6) of the Constitution have expressly excluded Field Court Martial from their operations, whereas article 22 (1) does not have similar language. Article 22 (1) refers to a court of competent jurisdiction. Under the NRA Statute a Field Court Martial is a court of competent jurisdiction and therefore subject to article 22 (1) ofthe Constitution.

On the binding effect of Dr. Rwanyarare's case (supra), Mr. Karugaba has contended that a court may only depart from its earlier decision: -

- **10 (1)** - matter; where there is a conflicting decision of its own on the - **(U)** where there is a conflicting decision of a superior court on the matter; and - (iii) where the court is satisfied that its earlier decision was per incunan.

He submitted that none of the above situations applied in this case and therefore this court should follow its earlier decision and grant the application.

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section 71 ofthe Statute. To appreciate the force in the arguments from both sides, it would be apt to set out the structure of military courts as established under *Part III of the NRA Statute* under the heading of *Trial and Punishment of Service Officers: -* The above heading clearly shows that the military courts try service officers who commit service offences as set out in subsection 4 of

n

The military courts are convened by the High Command or by any authority authorised by the High Command. The lowest in hierarchy of military courts is the *Unit Disciplinary Committee* established under S. 76 (1) for each unit with jurisdiction to try and determine all cases other than: -

- (a) murder, - (b) manslaughter, - **(c)** robbery, - rape, (d) - treason, (e) - teiTorism, and (f) - disobedience oflawful orders resulting in loss oflife. (g)

The Unit Disciplinary Committee has powers to impose any sentence authorised by law. It refers cases of complex nature to Division Court Martial.

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The second in the hierarchy is the *Field Court Martial* composing of the Field Commander of the Operation as the Chairman and eight other members appointed in writing by the deploying authority before departure. *(See S. 77 (])) K* Field Court Martial only operates in circumstances where it is impracticable for the offender to be tried by a Unit Disciplinary Committee or Division Court Martial. - See 77 (2).

The third is the Division Court Martial established for each Division and with unlimited jurisdiction to try any offence under the Statute.

The fourth is The General Court Martial which has both original and appellate jurisdiction over all offences and persons under the Statute - See Section 80 (1).

At the apex is the Court Martial Appeal Court - See S. 83 (1). This court hears and determine appeals from persons who have been tried and convicted by a General Court Martial - See S. 84.

**10** The punishments which military courts can impose are set out in S. 92 ofthe Statute. This include sentence of death.

Under regulation 17(1) of *The National Resistance Army (Court Martial Appeal Court) Regulations, 1994 (S. 1. 1994 No. 260)* the decisions of the Court Martial Appeal Court is final except where it confirms or upholds an appeal against a conviction involving a sentence of death or life imprisonment, when there is a further right of appeal to the Supreme Court.

It is clear fi'oiu the above that apart from Field Court Martial, the NRA Statute has made provision for a court system with full appellate structure. According to Barishaki, the reason why Field Court Martial is not included in the appeal structure is that both the NRA Statute and the Constitution recognise it as special court. It is therefore necessary to examine the argument in support ofthat proposition.

Field Court Martial is not part of the Courts ofJudicature. With respect, we It was first contended by Mr. Barishaki that both articles 22 (1) and 132 of the Constitution refer to Courts ofJudicature and has submitted that a

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disagree. Under article 129 of the Constitution, Courts of Judicature of Uganda consist of: -

- The Supreme Court, **(a)** - The Court of Appeal, (b) - The High Court, and (c) - Such subordinate courts as Parliament may by law establish, including Qadhis Courts of marriage, divorce, inheritance of property and guardianship. (d)

**<sup>10</sup>** In our view a Field Court Martial is one of the subordinate courts established by Parliament by virtue of S. 77 (1) of the NRA Statute. It is therefore one of the Courts of Judicature and consequently it is a court of competent jurisdiction as envisaged in article 22 (1) ofthe Constitution.

The next question to resolve is whether it is a special court exempt from the provision ofthat article. From the provisions of Section 77 of NRA Statute, a Field Court Martial is established for the trial of both service men and women who commit service offences in a field of operation where it is unpredictable for the offender to be tried by a Unit Disciplinary Committee or a Division Court Martial. The Court is established before the soldiers depart for the operations they are involved in. It is disbanded when the operation is completed. The soldiers then return to their Units or Divisions. Its primary objective, as explained in the affidavits of the respondents, is to administer instant justice and instil discipline among the men and women at the front line. To that extent, we agree that, a Field Court Martial, is a special court which should not be bogged down by appeal procedures.

Article 137 (5) of the Constitution also recognises the special nature of a Field Court Martial, in that if a question as to the interpretation of a provision of the Constitution arises in any proceedings before it, such a question cannot be referred to the Constitutional Court for a decision.

Again by clause 6 of Article 121 of the Constitution the provisions in that article relating to Prerogative of Mercy do not apply to convictions and sentences imposed by a Field Court Martial.

It is clear from the above that the Constitution itself regard a Field Court Martial as a special court which is only established to maintain law and order and military discipline in a field of operation where to employ the normal courts structures would create problems for the Field Commanders.

We, therefore, agree with argument of Mr. Barishaki that Parliament never intended that article 22 (1) would apply to Field Court Martial. We therefore think that, on the evidence before us, there is no probability that the petitions would succeed.

With regal'd to the second segment, we agree with Mi'. Karugaba that death is final and it puts an end to everything. But one has to balance it with higher objective the punishment is intended to achieve. The affidavits ofthe respondents have amply demonstrated the necessity for the death sentence in a field of operation. These have not been rebutted in anyway. We agree that in a field of operations tough decisions and actions are sine qua non.

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Therefore, on balance of convenience, we think it would not be proper to suspend the operation of the section.

With regard to whether we should follow our earlier decision in Dr. Rwanyarare's case, we only wish to point out that it is not right to mix up civilian political matters, with security and military matters. To that extent, our decision in that case is not relevant in this application as the circumstances in the two are not the same and that it would be wrong to apply the same yardstick to them.

In the result, the application is refused. We make no order as to costs. Dated at Kampala this . .. day of....'A. Ss.'<sup>C</sup> ..2003.

G. M. Okello

Justice **ofAppeal.** A.--E. N. iVfpiigi-BahigejJne

Justice of Appeal.

Justice of Appeal.

S. G. **En^au-**

Justice of Appeal.

C. N. B. Kitumba

Justice of Appeal.

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