Besigye: Who Is Responsible For Continued Incarceration Of Army Court Victims?

On January 30, 2025, the Supreme Court outlawed the General Court Martial and directed that all cases and convicts from thereof be remitted to the High Court for further handling.

The country’s highest appellate court directed that pending trials before the army court involving civilians must immediately cease and be transferred to the ordinary courts with competent jurisdiction for further management.

The court decision created excitement and hope for possible immediate release of veteran opposition politician, Dr (Rtd Col) Kizza Besigye and his counterpart Hajji Obeid Lutale.

Many people expected an immediate release of Besigye and others but the legal process requires formal transfer and review by the High Court.

Following the ruling, the lawyers representing Dr Besigye and Hajji Lutale instead sought their release in the effort to ensure the Supreme Court decision was implemented. Among the efforts was the meeting with the Commissioner General of Prisons, Dr Johnson Byabashaija where the Besigye lawyers demanded for the release of their client.

The lawyers led by Martha Karua told the prison boss that it was illegal to hold Dr Besigye without a valid warrant.

These together with other demands were followed by petitions by the medical practitioners to the Prison authorities and other organisations and politicians seeking for the release of Dr Besigye citing illegalities and health grounds.

Because of the efforts and demands to have Dr Besigye and his co-accused released following the ruling, the media has also been awash with the same information short of the fact that the Supreme Court directed that the courts below shall handle all cases including those where the prisoners are convicts.

It is from this scenario that I wish to state that it is not within the powers of the prison authorities to release prisoners. It (prisons) only acts based on orders of the courts that issued the remand warrant for the said person or a superior court above.

The Uganda Prisons are not clothed with the power to release an accused person without a court order.

The incident of Dr Besigye is not the first of its kind. In October 2006, the military court then chaired by Gen Ivan Koreta suspended the trial of the suspected People’s Redemption Army rebels; among them Dr Besigye to await the position of the superior courts on their case.

The High Court then ordered for the release of the veteran opposition leader, Besigye on bail, after a judge ruled his detention by the military was illegal.

In this same case, the firm belief would be that Besigye’s lawyers would run to the High Court to seek a similar order for him to be released.

For the record, Dr Besigye and Hajji Lutale are not the only prisoners affected by the Supreme Court decision. There are 432 prisons both on remand and convicts in prisons across the country following orders of the Military court.

Of course these minus those jailed for disciplinary cases in the army.

In this case it is not true to state that Uganda Prison Service is continuing to incarcerate people without lawful basis. The Prisons service is at the tail end in the justice system and their mandate is to keep those until such orders expire. The only mandate on releasing people in prison is when the person has been serving and their term has expired.

Much as the Attorney General can guide the Prison authorities on how to proceed legally as well as any other entity in government including the president, it remains that the order to release anyone has to come from court, except the convict whose jail term has ended.

In my opinion, it is better that Ugandans look for ways of securing all those persons affected by the Supreme Court judgement in addition to Dr Besigye. If we are genuinely fighting for human rights, let the rights be for all by mobilizing resources and any legal personnel interested in seeing those people reclaiming their freedom by filing applications for review.

I saw cases being handled after the Susan Kigula case and courts made orders relieving convicts of the death penalty to life in prison among other punishments.

The ruling of the Supreme Court affects multiple stakeholders; the judiciary, the Attorney General, law enforcement and the executive. Being at the tail end of the criminal justice system, Uganda prisons must wait for clear guidance from all relevant government entities before taking any action.

How the court ruled

The Supreme Court declared that it was unconstitutional for civilians to be tried in the military courts, especially if they have not subjected themselves to the military system.

 The General Court Martial was declared unconstitutional in handling civilian cases and all cases were ordered to be transferred to civilian courts.

The Supreme Court ruling was made in response to an appeal by the AG, challenging the 2021 decision of the Constitutional Court. The Constitutional Court had declared Sections 2, 119, and 179 of the Uganda People’s Defence Forces (UPDF) Act unconstitutional.

 The writer is a concerned citizen