[1994] UGHC 114

THE RElWLIJ^ OF. UGANDA IN. THE nijHT\_COURT"OF UGANDA . AT KAMPALA. J-S.secause no ^j. of. .199.4

IN THE MATTER OF SEC. OF THE JUD. ACT

AND

IN THE MATTER OF CAPTAIN MIKE KOMAKECII MWAKA - APPLICANT

AND

IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CARPUS AD SUB.

BEFORE: THE H0NCU1ABIE. MR... . JUSTICE. I. . IJUEANZA.

# RUL. ^I N G-. :.-

The Applicant Captain Mike Komaloch Mwaka applied for a writ of Habeas Corpus and Subjiciendum to be issued and the sane was issued. The writ directed the commandant of the militaz. ' police Tiakindyo to produce the said Captain Mike and enquire into the circumstances pertaining to his detention in Makindye military police and to show cause for his continued dotention therein.

On 1st November 1994 at around 9.00.a.m. the said Applicant was produced before this court. The Applicant was being represented by Nr. Kwosiga of Mr. Kwosiga and Co. Advocates whereas Mr. <Dusa.be> from the Attorney General chambers appeared for the respondent. At that tine Mr. Dusabo applied for an adjournment for a few hours to enable him got the return from the prosecutor of the general court/martial. The application was granted -after being opposed by Mr. Kwesiga.

Thcnat around 11.00 d.m. when the court resumed the learned counsel submitted that he had boon able to obtain the papers for the return. He produced a copy of the proceedings of the court martial end a charge sheet. All of the:?, showed that the applicant appeared before the court martial under case No. NRA/ GCM/OO5/94. . \_\_\_\_\_\_/2,.

A copy of the 'oreco . Hings show that he appeared on 25th 0. ctober 1994 and a copy of the same was passed over to his learned friend.

Mr. Kwesiga on the other hand submitted that he had studied the returns and his instructions to pray this court to quash the returns and to order for the discharge of the Applicant on the ground that the charging of the applicant was just m afterthought which, was prompted by the writ of habeas corpus served upon the commandant of the military police in Makindye, That assertion was reflected in the sequence of events. The records show that the applicant was arrested on 18 th August 1994 and after service upon the commandant of military police on 20th October 1994 the application was fixed for hearing on 26th October 1994. The person detaining the applicant hurriedly conven the General court martial on 25th. October 1994 jvt a day before the application is scheduled for hearing. That was a very clear intention on the part of the Resistance Army to defeat the purposes of the application. There is no good \ explanation why the applicant was never charged since 18th August ¹⁹⁹⁴ when he was arrested and detained. The charging of the V applicant was also not proper. He was charged in a court which did not have the jurisdiction under the circumstance. He should have been in the unit disciplining court and if the matter was serious he should have gone to the Divisional court martial. Therefore that rendered the proceedings attached to the returns defective. That even a brief glance at the proceedings portrays lack of justice. The Applicant was a sick man. The medical record was submitted in court. The prosecutor apparently had no objection to his admission on bail and yet the applicant was dtr''oted to be further conf od in the milix .ry police once ho left Liulago Hospital. His detention was illegal

....../3..

and shelid be discharged. Alternatively s mitted that the is a proper case where a prisoner's liberty should be restored on grounds of his extreme ill health even if the trial in the court martial would proceed as it is stated. He further submitted the charge sheet annexture $\Lambda$ to the return clearly shows that those are minor and bailable offences. He prayed the Honourable court directs that the prisoner upon production of substantial sureties be released on bail as recommended by the medical people.

-۲

In reply Mr. Dusabe reiterated his earlier submission and cited some authorities.

hs already indicated above a return was deposited in this court. There was an affidavit sworn by Lt. Richard Ziwa of the HRA Headquarters Hbuya which was to certify that the applicant was charged and remanded by the General Court Martial and that hearing of the cast began on the 2nd day of Nevember 1994. Some of the salient points in the said affidavit were as follows para 3.

> "That I was the prosecutor to the general court martial at the time the applicant Captain Mike Konakech Mwaka and others were charged with three counts of embezzlement, causing financial loss and abuse of office and were remanded by the General Court Martial on the 25th day of October 1994. I duly signed the charge sheet as the officer preferring the charge. A copy<br>of the charge is attached and marked annexture $\mathbf{u} \Lambda \mathbf{u} \bullet$ $\cdots \quad \ \ \, \cdots \quad \ \ \, \cdots$

#### Para 4

That on that day counsel for the applicant applied for bail for his client on medical grounds and I objected to the bail a plication on the grounds that the applicant didn't have original modical documents.

#### Para $5$

That the court muled that it will consider the bail application when he produces original or certified copies of the medical documents. The case was adjourned to

$. . . . . / 4 . .$

# 27th October 1994.

#### Para. *6*

That on 27th October the applicant produced certified nodical documents paid the court ruled that since he is still admitted in Kulago Hospital, on discharge from the Hospital he will stay in the, ilakindye officars mes.s.

### ^HPara*ⁱ ^t '\*»*7*ft\**

That the case was adjourned to the 2nd day of November 1594 when the prosecution will adduce evidence against the applicant and others. I

#### Para 8

That the proceedings of this trial were taken down by the court stenographer Ivliss Teddy Akollo who availed the typed copy to me for purposes of the Habeas Corpus Application. They are attached •here'o and marked Annexture "B".

# Para. 9

That I an competent person to swear this affidavit since I was a party to the proceedings". ^I

I have given my anxious consideration to the submissions of the learned counsels appearing for the parties and I would this now endeavour to dispose of /<. application. Section 33(1 ) of the Judicature Act cap provides as follows

The High Court

"It may at anytime where a person is deprived of his personal liberty otherwise than execution of a lawful sentence (or order) imposed on him by a competent court, upon complaint being made to the High Count by or on behalf o'? that person and if it appears by

affidavit made in that behalf that tiese is a renoonable pround for such complaint award under the seal of the court, a writ of Habeas Corpus and subjiciendum directed to the person in whose custody the person deprived of his liberty is, and when the reburn is unade the judge before. whom such writ is returnable. shall inquire into the truth of the facts set out in the affidavit and may make an order as the justice of the case requires".

According to the provisions of the above law this court is enhowered on the return of the writ of Habeas Corpus and on the production of the applicant who claims to be unlawfully detained to find out whether the said person is being unlawfully detained and if so to ensure his invedicte release as the court may down fit in the circumstances.

In the instant case there is uncontroverted evidence by It. Richard Ziwa that in fact criminal charges have been preferred against the Applicant in the General Court martial of the National Resistance Army and this is clearly indicated in the return. There is the charge sheet Annexture A signed by the prosecutor and there is also the proceedings of the said General Court martial Annexture B. I do not agree with Mr. therefore Kwesiga/that the General Court martial had no jurisdiction to handle this nation. Section 80)1) of the National Resistance Army provides that the General Court martial shall have both original and appellate jurisdiction over all offences and persons under the statute.

And in the case of Godfrey Carahwe 1979 HCB 233 it was held that where criminal charges have been preferred recently against the Applicant the latter is not entitled to be released.

$.../6...$

$\mathsf{S}$

However section 74(1). of tho National Resistance Army statute (statute 3 of 1992 provides

> ''Where a perse:, triable under military law has been placed under arrest for service offence and remains in custody for seven days without trial by a military court commanding officer shall make a report to the convening authority of the military court supposed to try the person stating the reasoi'fe for delaying the trial and similar report shall be forwarded in the same manner after every seven days until trial\*

## S2.states^

"A person held in custody in the circumstances mentioned in subsection (l) of this section who has been continously so held for a pericd of 23 days without being- tried by a military court nay at the expiration of that period petition the president or such other authority as the president nay appoint in writing for the purpose to be released from custody or for the disposal of the case\*

3.3 states - ¹

"A person held in custody in the circumstances mentioned in sub section (l) of this section shall be freed by his commanding officer when a period of ninety days continous custody from the time of arrest has expired unless military court supposed to try him has been ordered to convene"\*

Section 108 of Act 3 of 1992 defines service offence as an offence under this statute or any other statute for the tine being in force committed by a person while subject to military law\*.

In the instant case the applicant is alleged to have commits ,d the offences with which he was a charge while

$\cdot$ subject to military law. He was arrested on 18th August 1992 and was remanded by the General Court martial on 25th day of It would appear his commanding officer never October 1992. made a report to the authorities supposed to try the Appellant after he had been in custody for 7 days without trial by the military court supposed to try him or every seven days thereafter.

In fact after being in custody for 28 days continously without being tried the applicant would have petitioned the president or any authority appointed by the president after the expiration of that period for release from custody. $It$ could appear the Applicant never made use of the provisions. of the law.

As I stated earlier on the Applicant was arrested on 18.8.1994 remanded by the General Court martial on 25.10.94. Before le was charged with the offences allegedly committed by him he had been on remand for less than 90 days continous custody so his commanding officer could not release him. In the premises I do not subscribe to the submission of Mr. Kwesiga that failure to prefer charges against the applicant on 18.8.94 or before 25.10.94 rendered the return defective. Well in view of the remedy sought there was no legal restraint by the respondent see R. An Application by Barbara Simpson Howison 1959 EA page 568. The Applicant was detained in legal custody.

With regard to the release of the Applicant on bail. The learned counsel submitted that in case the return is quashed this court directs the General court martial to release the Applicant on bail because of his ill health. With respect I do not think this court has power to direct the General court martial to release the Applicant or anybody $.18.$ elso on bail.

$\overline{7}$

The National Resistance Army ^f statute provides for the Establishment and Regulations of the Army and for other Hatters connected thereof, I do not think that our courts have a say in the running of their courts and as such this court cannot order the applicant to be released on bail by the General court martial

In the end result the applicant is being lawfully detained commandant in custody by the / • of the military police Makindye and the writ therefore fails. The applicant is to meet costs for this application.

> yfbj-«. v-. <, I. MUICA11ZA JUDGE 15.11.1994.

15^J.1^122A.

Mr. Kwesiga for the Applicant - present Mr. Dusabe for the Respondent - present Applicant - present

Ruling is read and signed.

JUDGE]. I. MUKA. 15.11.1994