FDC (UGANDA) Condemns Dr. Besigye's arrest

[miguna]

PRESS STATEMENT, Monday, November 14, 2005 3:46 PM

On Monday 14th November 2005, at 13.00 hours at Busega, a suburb of Kampala, the Forum for Democratic Change Party President Col. (Rtd) Dr. Kiiza Besigye, was unlawfully detained and later arrested and prosecuted in Court at Buganda Road.

Col.(Rtd) Dr. Kiiza Besigye has been charged with the following;

1. Rape in 1997;
2. Treason;
3. Mistreason.

FDC condemns, in the strongest terms, the arrest of its Party President as politically motivated. His successful tour of the country side has prompted government to craft his arrest.

In 2001, Col (Rtd) Dr. Kiiza Besigye contested for President of Uganda in an election which was highly irregular, fraudulent and proved stolen in the Supreme Court. He was politically trailed, harassed and prosecuted hence his resultant move into exile. On the 26th October 2005, Dr. Besigye returned to Uganda, was elected Party President and Presidential candidate for FDC in a historic Delegate's Conference. He had embarked on a nation wide tour. He had completed successful tour of the Northern and Western regions of Uganda. He, without doubt, has commanded overwhelming support from all regions of this country and is headed for victory in the 2006 Presidential Elections.

The party has received reliable information that this arrest has been prompted by fear in the up coming elections. The operation is said to have been organized and commanded by General Tinyefuza. Two omnibuses of specially trained Commandos to harass FDC were trailing Col (Rtd) Dr. Kiiza Besigye's convoy from Rukungiri. Their mission was to kidnap him but this was foiled and failed by the public support and solidarity. It is likely that attempts will be made to Court Martial him.

As the leadership of FDC we,

1. Demand the immediate and unconditional release of the Party President, Col (Rtd) Dr. Kiiza Besigye;

2. Demand an explanation from government of the attempted kidnap/murder of the Party President, Col (Rtd) Dr. Kiiza Besigye; and

3. Demand respect for FDC and its leadership as a lawful and registered Political Party by all organs of the state.


The Party urges all its supporters and members across the country and abroad to remain firm and determined in the pursuit of real transformation to democracy. All party activities particularly, the grassroots elections should continue as scheduled.

The Party requests all its supporters and members to carry out peaceful, (non-violent) demonstrations countrywide in support of the Party President and as a reflection of our demand for true democracy in Uganda. All democrats and supporters are called to be at Buganda Road Court by 9:00 a.m on Tuesday 15th November 2005 in solidarity.

In the Spirit of, `One Uganda, One People' we should strive for a free and better Uganda for all


Salaamu Musumba Proscovia, MP
Deputy President,
Forum for Democratic Change.


LET US STAND IN SOLIDARITY WITH FDC!


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[miguna]

Wananchi:

I've posted this in solidarity with our Ugandan compatriots. For those in support, please post your messages, which I shall relay to FDC. For those in opposition, I humbly request that you may find better things to do than celeberate at another person's suffering.

For those who consider themselves Pan-Afrikanists, we are in this together. One day, Afrika shall be free - completely free of political/military dictatorship, oppression and economic survitude.

Peace. [unedited]
-Miguna-

[job]

Miguna,
Could it be that Museveni's military dictatorship is soon driving Uganda into another civil war?
With civilians stockpiling food & other rations, and violent protests rocking Kampala & its environs, Uganda could be smelling war.

CAN BESIGYE'S ARREST HELP OPPOSITION PARTIES WIN?
*********************************************
Gawaya Tegulle
-----------------------

Push has certainly come to shove in Uganda's electoral politics following the arrest and detention of Rtd Col Dr. Kizza Besigye, leader of the Forum for Democratic Change, FDC.

Next year's presidential election that had already promised heat with the return of aspirant Besigye from South African exile now threatens to burn with fire and brimstone after his incarceration on charges of rape and treason.

"We're just sending a clear signal that nobody should think they can be above the law," says National Resistance Movement (NRM) Spokesman Ofwono Opondo, adding that Besigye was "a belligerent who overrated himself".
Bail

Even though the maximum remand period (before mandatory bail) for capital offences was amended from one year to 120 days, this would work against Besigye by ruling him out of the nominations and therefore, candidature.

Democratic Party lawyer Erias Lukwago says barring the 120 days, Besigye would have to plead (and prove) exceptional circumstances to be granted bail: advanced age (ruled out, since he is not yet even 50), grave illness (certified by a government doctor and report endorsed by the Commissioner of Prisons) and a letter from the Director of Public Prosecutions (DPP) consenting to the bail application.

All these options depend a lot on the magnanimity of Government and there is little that Besigye may do to his own advantage.
Broadly, what should observers read into the arrest of Besigye?

Rude climax
---------------
Obviously, it is a rude climax to what was perceived as a season of healing, in which President Museveni had been at his sober best, allowing the all-expenses paid return and burial of the remains of his bitter enemy and predecessor, Dr. Apollo Milton Obote in October.

When he promised to reconsider his position on the remains of Idi Amin, and then let Besigye return from his South African exile untouched, many people thought this was a good time to be in Uganda.
Now they most probably do not think so anymore, as a season that began with such fine promise is turning nasty and shameful.


Could arrest be turning point? FDC president Kizza Besigye
Secondly, by disrupting the healing process that Ugandans had begun on, it therefore undermines broader social cohesion by widening political rifts; sending the country wider into polarisation and unnecessary tension and uncertainty.

The skill (malice?) with which alleged skeletons have been pulled out of Besigye's closet suggests there may be those who will stop at nothing to pay President Museveni in similar currency as soon as he leaves office - something that will further undermine social cohesion.

Civil war
*******

The decision by many Kampalans to stockpile food "just in case we go into prolonged civil war" shows how much confidence in the Museveni administration is beginning to wane.

This brings in the other unpleasant reality: civil war. The riots of unprecedented brutality that followed Besigye's arrest show that Uganda is learning the wrong lessons from CNN news. Peaceful demonstrations have been fast replaced by burning of cars, looting of shops and beatings with the kind of brutality that even the French youths (who currently take the cake in this regard) would respect.

Civil unrest can easily be translated into civil war in a country that has learnt the art of violence from decades of war with itself and its neighbours.
Thirdly, this is potentially a public relations disaster for President Museveni, a man whose statesmanship had already come into question by his decision to amend the Constitution he himself engineered into existence, to make way for him to continue in power for a third term.

The sighs and head-shaking among the diplomatic community probably reflect the mood on the international scene: "gosh, we didn't think he could go this far". The popular expectation had been that the President would portray himself as above petty, underhand methods of stifling his opponents.

What does the arrest of Besigye mean in terms of electoral politics in this country?
First, as Lukwago points out, the opposition in general may have to go back to the drawing board, to review whatever calculations they may have made, which in all likelihood had factored in Besigye.

"The possibility of a coalition candidate has always been there and is still there, but it is a process," says Lukwago. "If circumstances warrant that we get one candidate we shall do so."

Now, that candidate may not be Besigye after all; the one man who is sure to give President Museveni a few sleepless nights if left to prowl freely on the turf, seeking votes.

Fresh start
--------------

This could make more feasible the suggestion of Gulu Municipality MP Norbert Mao, himself a presidential hopeful, to cultivate consensus among the opposition.

"We have to start from the premise that an acceptable democratic process should precede the selection of the opposition flag bearer," says Mao. "We need G6 primaries and any contender must be ready to compete. Process and outcome are linked."
But for Besigye's party, the implication could be deeper.

"Besigye has been a central figure in opposition politics," says Lukwago. "If he does not get bail, certainly he will be out of the picture. FDC will have to go back to the drawing board to pick another candidate. It's not a simple exercise for a party to choose a candidate. Besigye has got that charisma to garner support for the opposition. If he is put out of action it will greatly affect the opposition's chances."
Failure by the opposition to react appropriately will mean that President Museveni will sip his coffee quietly on the lawns of State House.

And he will go to bed each night secure in the knowledge that the one man who would have knocked down the gates of State House is safely tucked away and the rest are simply knocking timidly rather than politely, at gates he has no intention of opening.
However, this arrest, if handled nicely by the opposition, meaning that they stop the fret and fuss and come out sober and strong to solicit for support, could work a sympathy vote for the opposition.

Opposition’s chance
-------------------------

Already many people, especially the neutrals in the Movement camp, have expressed disgust at the seemingly malicious and highly suspect way in which Besigye has been relieved of his liberty and have openly vowed to think again about the wisdom of casting their ballot in favour of Museveni. They see this latest move as a rather primitive, underhand way of muzzling opposition and one that in every way breaks the rules of fair play.

Therefore the neutrals and the undecided could swing their vote to the opposition.
But that can only happen if the opposition come out with a unified position and a credible alternative figurehead to Besigye.. and Museveni.

That means the opposition ought to use this as a galvanising opportunity; an excellent time for them to come together as one against the NRM.
After the Besigye debacle, the only logical way forward is unity for the opposition; rather than looking to strengthen their individual positions.

[miguna]

Job:

Thanks for the feedback. I am wary of trying to predict the future of Uganda, or of any other country for that matter, especially on such a terrible thing as an outbreak of a civil war. However, Uganda has been under a civil war for more than twenty years. I may be in the minority, but I hold the view that despite Museveni's claims to the contrary, Northern Uganada has been ravaged and decimated by both his forces and those of various "gangs" for a very long time. If another "front" opens to Uganda's North West (ot the DRC/Rwandan side) as the Museveni regime would want the world to be believe, this would be a tragedy. There is no guarantee that an outright "war" might not nreak out. But everything depends on how Museveni plays his cards. I read elsewhere that his official spokesperson has stated that Dr. Besigye will be granted bail and that the government will allow him to run against Museveni in the forthcoming elections. That is very good news for both Uganada and the rest of Afrika. It will also be good for democracy. Let us watch and see. As some founding members of the FDC say, "it is a long journey."

-Miguna-

[miguna]

Besigye bail case set for Thursday
Saturday, 19th November, 2005

By Anne Mugisa, Hillary Nsambu and Maurice Okore
FDC party president Col. Dr. Kizza Besigye is expected in the High Court on Thursday when his bail application will be heard.

The date for the bail hearing was decided on yesterday by the Principal Judge, James Ogoola, the Director of Public Prosecution, Richard Buteera and the lawyers representing Besigye in the treason and rape cases.

The meeting started early afternoon at the High Court. Besigye’s team of lawyers was led by Sam Njuba, who is also FDC vice-president.

Besigye’s lawyers rejected the DPP’s request for an expeditious trial, saying they wanted time to prepare his defence adequately.

By yesterday evening, however, the production warrant for Besigye had not been made. The warrant is presented to the Prisons authorities to bring a prisoner to court.

Besigye applied for bail on Wednesday, a day after he was arrested and charged with treason over alleged links with the People’s Redemption Army (PRA), a rebel force said to be fighting to overthrow the government.

Besigye was also charged with raping a woman in 1997, which, like treason, is also a capital offence.

In his affidavit to support the bail application sworn at Luzira upper prison where he is remanded, Besigye said, “Once I am granted bail, I will abide by all the conditions the honourable court will give. I have substantial sureties to stand for me and guarantee that I shall turn up to answer the charges.”

He also stated that when he reported to the police, he was not told of the rape charge and had, therefore, not made a statement on the charge.

“When I reported to Police, I was not told of the charge of rape and I did not make any statement on this charge and deny that I ever committed any act of rape,” Besigye stated. Besigye was arrested and charged with treason and rape on Monday afternoon. He was committed to the High Court for trial on Tuesday.

During his arrest, many shops were looted, cars burnt and other property vandalised in Kampala city as his supporters protested his arrest.

Besigye said, “The arrest and detention has adversely affected my capacity to work for my party and presidential candidacy, as well as society. On November 14, when I was returning from a tour of the north and west regions, I was informed at Busega, Natete that I was required at Central Police Station Kampala and I drove there voluntarily,” the affidavit said.

“I have publicly maintained my innocence and denied all links to the alleged People’s Redemption Army and its existence. While still in South Africa, I received a letter from Kampala in which President Museveni stated that I might be charged of some criminal offence,” the affidavit said.
Ends

[miguna]

NEWS

Chaos as Besigye is released

Story by MONITOR Team
Publication Date: 1/3/2006

Uganda's opposition leader Kizza Besigye walked to freedom yesterday after the High Court ordered his immediate release.

The move sparked public celebrations, which turned sour when anti-riot police engaged his supporters in running battles.


Mr besigye
Police fired tear gas at crowds in Kampala streets and beat up others as they chanted anti-government slogans.

The Forum for Democratic Change leader was driven from the court by his wife, Winnie Byanyima, in a Pajero.

A sea of people jammed the roads to catch a glimpse of the presidential candidate, who has been in jail since his arrest on November 14 on treason and rape charges.

Mr Justice John Bosco Katutsi had ruled that Mr Besigye had been in illegal detention since November 25 when the remand warrant issued by a court martial expired.

"If sanity is to be regained, the applicant must be given his freedom to be on bail as granted by the Principal Judge," he said.

"The total sum of my holding is that the continued detention of the applicant at Luzira is illegal and unlawful. He should be released forthwith unless held on other lawful orders– I order accordingly."

The court martial, where Mr Besigye is facing charges of terrorism and illegal possession of firearms had purportedly renewed his remand from November 25, to December 19, and January 3, but the judge said the written notes on the warrant – did not amount to a renewal as the State claimed.

Moreover, the judge added, the Court Martial had no business renewing the remand warrant when the High Court had on December 2 ordered a stay of its proceedings.

Judge Katutsi said a "wise inquisitive bystander seeing the chairman of the General Court Martial order for further remand of the applicant would ask in shock: and the question would be pertinent: If you have stayed your proceedings against the applicant, what right do you have to purport to extend his warrant on remand?"

He went on: "Once a matter is stayed as seen above, it ceases to operate. The moment the General Court Martial stayed their proceedings, everything including the power to order the remand of the applicant ceased. From the 2nd of December 2005 when the order of Justice Remmy Kasule was signed, the General Court Martial ceased to have anything to do with the applicant."

Judge Katutsi’s ruling followed an application of a writ of habeas corpus filed by Mr Besigye’s lawyers last week. Such an application generally involves a request for a judicial order to a prison authority to produce an inmate and explain his or her detention.

Mr Besigye’s lawyers argued that it was illegal for prison authorities to continue detaining him when the commitment warrant issued by the military General Court Martial (GCM) against him expired on November 25. A commitment warrant is a signed document issued by court indicating the period that a prison should keep a suspect on remand.

Major Asingura Kagoro said in a sworn affidavit presented by Mr Joseph Matsiko, the acting civil litigation director, to the judge last week that the court martial had extended Mr Besigye’s warrant of commitment on remand from November 25 to December 19 and later to January 3. But Mr Besigye’s lawyers argued that the extensions were illegal given the December 2 High Court order stopping the army court from proceeding with his case until his petition challenging the legality of the army court was decided.

Mr Besigye, who faces charges of treason, concealment of treason, and rape, had been granted temporary bail by the High Court, but was sent back on remand at Luzira prison in respect of the charges of terrorism and unlawful possession of firearms that he faces in the army court.

Mr Matsiko maintained before Mr Justice Katutsi last week that Mr Besigye was legally remanded at Luzira. He said there was no court order for his release and the army court’s remand warrant was proper. In his affidavit, Mr Kagoro said that because of the likelihood of Mr Besigye’s escape "and in the interests of national security", he "does not deserve to be released."

In a New Year message to the nation, Mr Besigye dismissed the allegations of his escape as a "joke". He said: "I bought air tickets for my wife, sons and myself well knowing that I would be arrested.

"I returned to face those trumped up charges. I am not going to run away. What I am asking for is the independence of the courts.

After the court ruling, Mr Besigye who was in a jovial mood, said he was not shaken and that he was going to carry on "the fight."

[miguna]

News | January 3, 2006

Besigye free at last !
MONITOR TEAM
KAMPALA
Opposition Forum for Democratic Change leader Kizza Besigye walked to freedom yesterday after the High Court ordered his immediate release.

However, the public celebrations after his release was announced turned sour when the riot police engaged Besigye’s supporters in running battles. Police fired tear gas at crowds on Kampala Road and beat up others as they chanted and sang.
At about 3:30p.m, Besigye left the court, where his rape trial began earlier in the day, atop his Wife’s Pajero.

A sea of people jammed the roads to catch a glimpse of the presidential candidate who has been in jail since his arrest on November 14 on treason and rape charges.
Earlier Justice John Bosco Katutsi had ruled that Besigye had been in illegal detention since November 25 when the remand warrant issued by the General Court Martial expired.

The government immediately filed a notice of an intention to appeal against the ruling.
“If sanity is to be regained, the applicant must be given his freedom to be on bail as granted by the Principal Judge,” Justice Katutsi said. “The total sum of my holding is that the continued detention of the applicant at Luzira is illegal and unlawful. He should be released forthwith unless held on other lawful orders. I order accordingly.”


WELCOME: Thousands jammed Entebbe Road yesterday following the release of FDC leader Kizza Besigye by the High Court. Photo by John Nsimbe
The General Court Martial, where Besigye is facing charges of terrorism and illegal possession of firearms, had purportedly renewed his remand from November 25, to December 19, and January 3, but the judge said the written notes on the warrant “matter adjourned” did not amount to a renewal as the State claimed.

Moreover, the judge added, the Court Martial had no business renewing the remand warrant when the High Court had on December 2 ordered a stay of its proceedings.

Katutsi said a “wise inquisitive bystander seeing the Chairman of the General Court Martial order for further remand of the applicant would ask in shock and the question would be pertinent: If you have stayed your proceedings against the applicant, what right do you have to purport to extend his warrant on remand?”

Said Katutsi, “Once a matter is stayed as seen above it ceases to operate. The moment the General Court Martial stayed their proceedings, everything including the power to order the remand of the applicant ceased. From the 2nd of December 2005 when the order of [Justice Remmy Kasule] was signed, the General Court Martial ceased to have anything to do with the applicant.”

But Mr Joseph Matsiko, the acting Director of Civil Litigation, told Daily Monitor that the government had immediately filed a notice of appeal with the High Court registry.
He did not disclose the grounds of the appeal.

Katutsi’s ruling followed a writ of habeas corpus filed by Besigye’s lawyers last week. A habeas corpus application generally involves a request for a judicial order to a prison authority to produce an inmate and explain his or her detention.

Besigye’s lawyers argued that it was illegal for prison authorities to continue detaining him when the commitment warrant issued by the military General Court Martial against him expired on November 25.

A commitment warrant is a signed document issued by court indicating the period that a prison should keep a suspect on remand.
Maj. Asingura Kagoro, said in a sworn affidavit presented by Matsiko, to the judge last week that the Court Martial had extended Besigye’s warrant of commitment on remand from November 25 to December 19 and later to Jananuary 3, 2006. But Besigye’s lawyers argued that the extensions were illegal given the December 2 High Court order stopping the army court from proceeding with his case until his petition challenging the legality of the army court was decided.

Besigye had been granted temporary bail by the High Court, but he was sent back on remand at Luzira in respect of the charges of terrorism and unlawful possession of firearms in the army court.

After the court ruling, Besigye who was in a jovial mood, said he was not shaken and that he was going to carry on “the fight”.
He said, “I can’t say what awaits me outside there. All I can say is that we shall struggle by all means to see that Uganda goes back on the democratic path.”

Besigye added, “There is now every evidence to show that this government does not respect the rule of law and its own institutions. This has already been demonstrated in the statements in this court.”

Exclusive interview

In an exclusive interview with Daily Monitor’s Simon Kasyate and Hussein Bogere at his home in Mbuya, Besigye spoke about life in jail and his plans.

Q: How was life in jail?
A: It was obviously very depressing considering that my freedom was taken away at a time I needed it most. It was also depressing at a personal level because my family was worried. The prison authorities tended to do more than just keeping me. They stopped me from any kind of correspondences. I was being condemned by [President] Museveni as his political opponent.
But on the other hand I was psychologically and physically prepared even at the time of returning [from exile in South Africa] for this kind of treatment. It was therefore not surprising.

Q: The government is set to appeal against your release today, what’s your take?
A: That is in their right to do so. I am sure they must be disappointed that I have regained my freedom. I am happy that they would appeal and not act unlawfully and drag me back. If they want to follow the law then we are buddies; you know, this whole thing was to distract us from engaging fully in the campaign to dislodge the dictatorship.

Q: Museveni goes to Rukungiri on Wednesday. What kind of reception would you rather he is accorded?
A: While I was in Rukungiri just before I was arrested, I told the people there about the injustices the President had occasioned my family, and me. And I told them that in spite of all that I personally forgave Museveni for all his transgressions and declared that publicly and I appealed to them to forgive him too. When he goes there, he should be received like any other political leader, given an opportunity to talk to them. They (people of Rukungiri) are expecting a response from him on what I told them about him. They want to know if he is still the same or he is ready to embrace reconciliation and allow a smooth transition.

Q: So where to tomorrow?
A: I don’t know.

**REPORTED BY SOLOMON MUYITA SIMON KASYATE SIRAJE LUBWAMA, LYDIA MUKISA, HUSSEIN BOGERE & FRANK NYAKAIRU

[miguna]

News | January 3, 2006

Katutsi’s ruling on Besigye’s detention

The applicant having successfully applied for a writ of habeas corpus ad Subjiciendum has been brought before me and Mr Matsiko learned counsel for the respondent has put forward a strong case defending the detention of the applicant at Luzira.

There are two affidavits sworn on behalf of the respondent. The first affidavit is sworn by Major Kagoro Asingura said to be a Major in the Uganda peoples defence forces (updf) and an advocate of the High Court and all courts subordinate thereto. The relevant paragraphs in his affidavit run as follows:

"2. ThatI am a prosecutor with the General Court Martial, as presently convened and constituted.
"4. That the applicant rtd. Col. Dr. Kiiza Besigye is kept at Luzira Upper Prison by virtue of warrant of commitment on remand issued by the General Court Martial of the Uganda Peoples Defence Forces (updf), on 24th November 2005.

5. That the said warrant of commitment on remand arose from criminal Case no. Updf /gcm/075/05 before the said General Court Martial in which the applicant is charged with terrorism contrary to the Anti- terrorism Act, and unlawful possession of firearms contrary to the Firearms Act.

7. That the said warrant of commitment on remand was extended to 19th December 2005 by the said General Court Martial, and the applicant was required to appear on that day before the General Court Martial.
8. That on the said 19th December 2005, the applicant was also required to appear before the High Court in criminal case No. 955 of 2005 where the applicant is on trial for charges of treason, mis-prision of treason and rape.

9. That it was not practicable for the applicant to be produced before two courts at the same time and for this reason the said warrant of commitment on remand was produced before the said General Court Martial and it was extended to 3rd January 2006.... "
“11. That I am informed by the office of the Solicitor General, which information I verily believe, that the High Court ordered for stay the said court martial from proceeding with the trial of the accused but did not stop the said court martial from extending the said warrant. "

In his equally forceful submission Mr. Mbabazi learned counsel for applicant attacked the warrant of commitment on remand on which the respondent relies in keeping the applicant at Luzira Upper Prison.

The thrust of his attack if I did understand him correctly, is that the said warrant expired on 25th November 2005 and has not been extended, what is endorsed at the back of this warrant annexture "a" is "adjourned" and not "extended". He referred to this as an "error on the face of the warrant."

The second line of attack by mr. Mbabazi is that the proceedings before the General Court Martial were stayed. Here he paused a philosophical question viz:

"If proceedings are stayed, how do you extend a commitment warrant on remand?"
For his part Mr. Matsiko, learned counsel for the respondent, argues that the commitment warrant on remand annexture "a" is a valid warrant and is in respect to proceedings before the General Court Martial. He urged court to read word "extended" to refer to the warrant i.e. annexture "a" to the affidavit of Munanura. On the question of "stay of proceedings" before the general court-
Martial mr. Matsiko argues that what is stayed is the "proceedings" and not the Status quo. The following is my ruling in the matter.

That the writ of habeas corpus is inviolable is an uncontestable fact. It is to be found in Article 23, Clause 9 of the Constitution, which reads; " The right to an order of habeas corpus shall be inviolable and shall not be suspended.
Decided cases on the subject State to the effect that once the commissioner general of prisons makes a return to the writ it is for the detained person to prove, supposing it is a warrant. That it is invalid.

See Rex.vs. Secretary of State for House Affairs, Green (1942) i k.b 87.
In his opening remarks Mr. Matsiko learned counsel for respondent stated: "The grounds in the notice of motion and the events that followed do not justify an order of release of the applicant. I rely on 2 affidavits filed in lieu of a return of writ. The affidavits of Munanura and Major Kagoro sworn on 23, 12, 05, contain valid and lawful grounds for the continued detention of the applicant in Luzira."

With the greatest respect i think Mr. Matsiko stated his case too widely. In the affidavit of Major Kagoro I find matters that are of no concern to this inquiry.
The following are but just examples; "13. That I know as a prosecutor of the general court martial which is an office under the chieftancy of military intelligence, that there were credicle intelligence reports to the effect that a group of terrorists including those who burnt cars and looted shops in kampala when the applicant was arrested had planned to attack the high court premises to rescue the applicants co-accused so as to make them escape the course of justice. "

"14. That because of the circumstances described herein above and the likelihood of the applicant's escape and in the interests of national security, the applicant does not deserve to be released.

"15. That the General Court Martial is not a court of judicature subordinate to the High Court, and it cannot be subjected to the control and direction of the High Court when the said General Court Martial is exercising its jurisdiction or at all. "

Section 34 of the Judicature Act provides as follows; "34. The High Court - A) may, at any time, where a person is deprived of his or her personal liberty otherwise than in execution of a lawful sentence(or order) imposed on that person by a competent court, upon complaint being made to the High Court by or on behalf of that person and if it appears by affidavit made in support of the complaint that there is a reasonable ground for the complaint, award under the seal of the High Court a writ of habeas corpus ad subjiciendum directed to the person in whose custody the person deprived of liberty is; and when the return is made, the judge before whom the writ is returnable shall inquire into the truth of the facts set out in the affidavit and may make any order as the justice of the case requires;

B) May award a writ of habeas corpus ad testificandum or habeas ad Respondendum for bringing up any prisoner detained in any prison before the court, a court martial, an official or special referee, an arbitrator or any commissioners acting under the authority of any commission from the President for trial or, as the case may be, to be examined touching any matter to be inquired into by or pending before a court, a court martial, an official or special referee, an arbitrator or the commissioners. "

From the above it is clear that the scope of my duty is to "inquire into the truth.
Of the facts set out in the affidavit". Now what are the facts set out in the affidavit? These are to be found in the affidavit sworn by Winnie Byanyima said to be the spouse of the applicant.

These run as follows:
"2. That the applicant was granted bail and the bail forms are annexed hereto and marked "a ".
"3. That before being granted bail, the applicant was charged before the General Court Martial under criminal case No. Updf/gcm/075 / 05...."
"4. The warrant of commitment issued on 24th November, 2005 remanding the applicant till 25th November, 2005 expired and cannot be reversed."
"5. That the High Court in Misc. Cause No. 151 and Misc. Cause No. 155 ordered for a stay of proceedings of the General Court Martial Criminal Case No. Updf / gcm / 075 / 05.... "

"6. That i know of no reason why the prison authorities are holding the applicant in detention and any continued detention is illegal and unlawful and in contempt of the High court to release the applicant on bail. "

Now, annexed to the affidavit of Munanura the officer in charge of Uganda government prison, upper prison luzira where the applicant is detained is a document which on the face of it is a warrant of commitment on remand. It shows plainly and clearly that Col. (rtd.) Kiiza Besigye was remanded till 25th day of November 2005 and authorised and commanded the Superintendent of Prisons to receive Col. (rtd) Kiiza Besigye in his custody and to produce him in the court at 0900 am on the day named, that on 25th November 2005.

At the back of this warrant is found the following endorsements:
"25/11/05. The matter adjourned to 19/12/05. And "19/12/05 the matter adjourned to 03/01/06.

It is trite that the meaning which words ought to be understood to bear is not to be ascertained by a process akin to speculation; the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur. In this case it is stated plainly that: "the matter adjourned";
Webster's new world college dictionary defines "matter" inter alia as; "something is the subject of discussion, concern, action etc, "

To say that in "matter" at the back of the warrant refers to the warrant creates an absurdity. A warrant cannot be a subject of discussion, concern, action e.t.c. the matter here must refer to the proceedings before the court martial. In that context, matter makes sense the same dictionary defines the word to "'adjourn" inter alia as: "to put offer suspend until a future time. To close a session or meeting for a time"

The same dictionary then states: "adjourn is applied to the action of a deliberate time body in bringing a session to a close, with the intention of resuming at a later date." Again here to say that the word "adjourn" referred to a commitment warrant on remand would create an absurdity. It would actually mean that the warrant of commitment on remand was being closed till a future date. That would surely mean that the warrant was put into abeyance.

In the Fitgerald's case (1869), l.r.5 q. B. I. Mellor j at p. 10 said: "the word ''adjourn' must be construed with reference to the object of the context. And with reference to the object of the inquiry. What might in certain acts of Parliament require a technical interpretation, wher adjournments are well understood, as for instance, relating to courts of justice, does not apply to inquiries of this nature...when the power of holding those meetings is given...the word 'adjourn' must be taken as used in the popular sense of deferring or postponing the inquiry to a future day"

In the same case Lush j at p. 12 said: "The word 'adjourn' is not used in its technical sense, as it is used when applied to proceedings of courts of justice, where the authority is holding a meeting is on a day, but where the law implies an authority to create, as it were, a special extension of that period when it is needful for the "purpose of completing the business for which the meeting is held. Where that is done, the whole period is regarded as being one day, and the meeting or sitting as one meeting. If in such a case the day has been suffered to expire without adjournment then nothing can be done to keep alive the function of the body, and their authority necessarily expires. "

Mr. Matsiko learned counsel for the respondent invited me to read the word 'Adjourn' as 'extend'. With the greatest respect to do so would be to commit a terrible assault on the English language. The court-martial is deemed to know what to "adjourn" means. It must take its natural meaning. I hope I will be acquitted of discourtesy if I decline the invitation. My holding on this issue is that the commitment warrant on remand expired on 25th November and has never been extended.

But not only that. There is another fact to inquire into. This is the fact of stay of the proceedings before the General Court Martial the case of Joseph Tumushabe vs Attorney General Constitutional petition No 6 of 2004 is authority for the proposition that the General Court Martial is subordinate to the High Court.

In his ruling made on 2nd December 2005, Kasule ag.j made an order staying the proceedings in respect of the applicant then going on in the general court martial. The law is clear. This is that a judgement made by a competent court of law remains in force until it is overturned or reversed by a superior court or Parliament repeals the law. The case of Joseph Tumushabe supra is good law and binding on this court and indeed the General Court Martial.

Therefore the ruling of Kasule made on 2nd December 2005 still stands till reversed by a superior court in this case the Court of Appeal as a Constitutional Court.
What then is the effect of the order staying the General Court Martial Proceedings?
The shorter oxford English Dictionary on historical principles defines 'stay' inter alia as:

"The action of stopping or bringing to a stand or pause; the fact of being brought to a stand or delayed; a stoppage Or suspension of action; acheck, setback LAW: suspension of a judicial proceeding.. .a version of progress or action; a pause, halt...to cease moving, halt. To cease going
forward, to stop, halt; to arrest ones course and standstill. To cease or desist from some specified activity.

The authors go on to quote a verse from the Bible on the word 'stay': "and the sunne stood still, and the moone stayed, until the people had avenged themselves upon their enemies,." Josh v.i 3 In his affidavit and by paragraph 17 thereof Major Kagoro avers: "17. That I know that the General Court Martial decided to stay its proceedings in criminal case no. Updf/gcm/0 75/05 against the applicant pending the decision of the Constitutional Court on whether or not the General Court Martial has jurisdiction to try the applicant. "

From this bold and loud averment from no lesser person than the prosecutor in the General Court Martial, what other evidence does the applicant need to advance that he is indeed in illegal detention?

"If you have stayed your proceedings against the applicant, what right do you have to purport to extend his warrant on remand?" A wise inquisitive by stander seeing the chairman of the general court martial order for further remand of the applicant would ask in shock: and the question would be pertinent.

In all honesty Mr.Matsiko learned counsel for the respondent would I hope nod in agreement with the question paused by our wise inquisitive by stander. Once a matter is stayed as seen above it ceases to operate. The moment the General Court-martial stayed their proceedings everything including the power to order the remand of the applicant ceased. From the 2nd of December 2005 when the order of Kasule ag.j was signed, the general court martial ceased to have anything to do with the applicant. That being the view I take of the law from the 25th November 2005 applicant has been in illegal detention. If sanity is to be regained the applicant must be given his freedom to be on bail as granted by the Principal Judge. The total sum of my holding is that the continued detention of the applicant at Luzira is illegal and unlawful. He should be released forth with unless held on other lawful orders. Applicant will get the costs of this application.
I order accordingly.
Judge















© 2005 The Monitor Publications Ltd.

[miguna]

Sunday January 8, 2006

How would M7 want to be remembered?
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Njeri Kabeberi-Kanene

Should Kenyans be interested in what is happening next door in Uganda to a possible future President?

Yes! If what I hear — that three presidents of East Africa, without consulting their people agreed on an East African Federation by the year 2010 — is true, do we as Kenyans want to be part of a federation that is obviously abusing the rule of law, using trumped up charges against its citizens and court martial trials against civilians?

The case of Col (rtd) Dr Kizza Besigye should challenge any human rights activist, and especially Kenyan human rights activists, into doing something.

More so because as a country we have experienced our fair share of trumped up charges against human rights activists for a period that spanned two decades, during which time Kenyans developed human rights organisations which consistently and successfully challenged the government and related institutions.

Yet I feel the deafening silence on Dr Besigye. Human rights are universal and inherent to every human being.

I now realise more and more the critical role organisations like Amnesty International — my former employer — play in internalising the fact that human rights have no borders and that in fact the more they occur the busier the volunteer membership across the world gets to challenge the establishment and help reverse the situation.

As we struggle to strengthen our own country in the fields of democracy, good governance and human rights, we must be alert to the happenings across the region, especially in our immediate borders.

Ugandans are our brothers and sisters. Those who went to school in the 80s and 70s remember the many teachers exiled from Uganda due to the ongoing military war and previously the gross human rights abuses in that country.

We housed our brothers and sisters then as a country; we must not sit and watch them roll back the gains they have made over the years because inevitably, they shall affect us.

The formidable force of Dr Besigye and his wife Winnie Byanyima has definitely and obviously caused panic in Museveni’s presidential campaign.

Putting away your opponent at a time of election campaign can only signify dread towards defeat.

Holding your opponent on multiple charges at the most crucial period of election campaigns signifies not just a high level of confusion but a desperate interest to retain power at any cost.

The general trend to have a maximum of two presidential terms entrenched in constitutions is the only way to deal with this type desperation that causes untold suffering.

How can a president be proud of ruling when the only way he can stick to is through the manipulation of the process? Is power truly that sweet?

Knowing that politicians in power pull all stops to remain in power, even we in Kenya must be constantly vigilant to make sure that the rules of the game are clearly protective of all citizens that we never again have to jail our political opponents for fear of defeat. Key Uganda institutions must be congratulated for showing their independence and indeed presenting and offering hope to not only Ugandans but to East Africans.

The Electoral Commission of Uganda, despite a December 7, letter from the country’s Attorney General requesting it to bar Dr Besigye’s nomination on grounds that it would be "tainted with illegalities", refused to interfere with the nomination.

The courts, despite obvious intimidation by the dreaded ‘Black Mamba’ — Museveni’s special counter-terrorism security force — refused to bend to this level of pressure and twice granted bail to Besigye.

How desperate can a president be to make sure that the most serious capital punishment cases are heaped on the opponent one after another and that the full machinery of the law and security systems in a country is used to keep an opponent away?

Ugandans — and other East Africans — want to remember President Museveni for his greatness in the struggle to free Uganda from a reign of terror as narrated in his autobiography Sowing the Mustard Seed.

We do not want to remember the Museveni of recent years, who despite having fought for freedom and saddled his country in peace and a miraculous economic recovery, has chosen to abrogate this freedom only for those who can’t stand up to him.