Uganda’s military courts must respect the jurisdiction of the nation’s superior civilian courts, Human Rights Watch said today.
On January 17, the head of Uganda’s General Court Martial, General Elly Tumwine, said that on January 31 a military tribunal would begin the trial of 22 people who were charged along with opposition candidate Dr. Kizza Besigye, despite a High Court order staying those military proceedings. The civilian High Court ruled earlier this month that the military courts had no authority to continue to detain Besigye, and he was released. Besigye is the main opposition presidential candidate in next month’s elections. On December 2, the High Court ordered a stay of the military trials of Besigye and his co-defendants until the Constitutional Court decides whether they can be tried by a military court.
Uganda’s Constitutional Court has ruled that the military courts are subordinate to the High Court, most recently in a 2003 decision that the government did not appeal.
“Uganda’s Constitutional Court will decide whether the military court can proceed with this trial,” said Paul Simo, advocacy director for Africa at Human Rights Watch. “A nation cannot claim to be operating under the rule of law if its military tribunals ignore the orders of civilian courts.”
Besigye, along with 22 other defendants, was charged with treason and terrorism in the civilian and military courts last November. Besigye and his co-defendants petitioned Uganda’s Constitutional Court, challenging the military court’s jurisdiction to try civilians, as well as their prosecution in two different courts – civilian and military – based on the same facts.
“The Ugandan military’s defiance of the High Court further undermines the rule of law in Uganda and could jeopardize the electoral process,” said Simo. “It is up to President Museveni to make clear to the military that they must respect and comply with the rulings of superior civilian courts.”
Background
Uganda’s first multiparty elections in 20 years are scheduled for February 23. The main challenger to President Yoweri Museveni and his National Resistance Movement is Dr. Kizza Besigye and the Forum for Democratic Change party. Upon Besigye’s return from exile in South Africa last year, he was arrested and charged with rape. With 22 others, he was also charged with treason and terrorism.
Besigye was nominated by his party as a presidential candidate while in detention. On January 2, he was released on bail by the High Court. General Tumwine, the chairman of the General Court Martial, did not challenge the High Court ruling that released Besigye, but asserted the military court’s independence from, and concurrent jurisdiction with the High Court. The question of concurrent jurisdiction is pending before the Constitutional Court, but on the question of subordination of military courts to civilian courts, the Constitutional Court has ruled previously that the High Court is supreme. It did so most notably in Joseph Tumushabe v. Attorney-General in 2003, a decision that Uganda’s attorney-general did not appeal.
The practice of trying civilians before military tribunals raises numerous fair trial issues under international law. The Human Rights Committee—the body authorized to interpret and monitor compliance with the International Covenant on Civil and Political Rights—has stated that the trial of civilians by military courts should be very exceptional and occur only under conditions that genuinely afford full due process.
The Ugandan government’s arrest and prosecution of members of the political opposition has increased dramatically in the run-up to the February elections.
