[2014] UGHCCD 89
The court held that all applicants are in lawful custody as the General Court Martial has jurisdiction to try civilians found in possession of firearms or ammunition, pursuant to Section 119 of the UPDF Act. The whereabouts of the applicants are known, and they are detained in gazetted centers. Habeas corpus is not...
Source-derived case information.
- Citation
- [2014] UGHCCD 89
- Parties
- Applicant: Okumu Brian; Respondent: Attorney General
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Misc. Cause No.163 of 2013
- Procedural Posture
- Miscellaneous Cause / Ruling
- Outcome
- applications dismissed
- Legal Topics
- Habeas Corpus, Jurisdiction of General Court Martial, Unlawful Detention, Possession of Firearms, Rights of Civilians, Application of Updf Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Okumu Brian
Applicant
Attorney General
Respondent
Procedural Posture
Miscellaneous Cause / Ruling
Legal Issues
- 1 Whether the applicants are in lawful custody under the jurisdiction of the General Court Martial.
- 2 Whether habeas corpus is available to applicants detained under the UPDF Act.
- 3 Whether possession of firearms by civilians brings them under the ambit of the General Court Martial.
Ratio Decidendi
The court held that all applicants are in lawful custody as the General Court Martial has jurisdiction to try civilians found in possession of firearms or ammunition, pursuant to Section 119 of the UPDF Act. The whereabouts of the applicants are known, and they are detained in gazetted centers. Habeas corpus is not available in these circumstances as the applicants have not demonstrated unlawful detention. The constitutionality of the proceedings under the UPDF Act cannot be determined by this court and must be referred to the Constitutional Court. Therefore, the applications for habeas corpus lack merit and are dismissed.
Court Disposition
applications dismissed
Orders
- All applications listed are dismissed for lack of merit.
- Applicants who are entitled may apply for bail before the court.
Full Case Text
Judgment text and source record
16 paragraphs
**THE REPUBLIC OF UGANDA**
**IN THE HIGH COURT OF UGANDA AT KAMPALA**
**CIVIL DIVISION**
**MISC. CAUSE NO.163 OF 2013**
**OKUMU BRIAN :::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**
**VERSUS**
**ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::: RESPONDENT**
**BEFORE: HON. JUSTICE STEPHEN MUSOTA**
**RULING:**
I have perused the following applications:- 16/13, 205/13, 50/13, 170/13, 20/13, 69/13, 195/13, 107/13, 78/13, 139/13, 111/13, 112/13, 197/13, 140/13, 23/13, 194/13, 79/13, 10/13, 18/13, 33/13, 204/13, 207/13, 34/13, 26/13, 76/13, 53/13, 77/13, 211/13, 183/13, 164/13, 143/13, 186/13, 162/13, 159/13, 157/13, 146/13, 141/13, 137/13, 115/13, 57/13, 58/13 and 61/13, the submissions by respective counsel and the returns and found that something common runs across the information in the Returns filed by the respondent and that is, that the applicants were either charged with armed robbery and or murder using fire arms a monopoly of the defence forces or being in possession of fire arms, a monopoly of the defence forces. Some of them are convicts while others were still on remand.
From the multiplicity of rulings I have been making I have held the view and still hold the same view that such applicants are in lawful custody since the General Court Martial has jurisdiction to try them in view of the provisions of S. 119 of the UPDF Act. The whereabouts of all the applicants is known since they are being kept in gazetted detention centers. The General Court Martial derives its jurisdiction from S. 197 (ii) and S. 119 (i), (h), (g) of the UPDF Act. If a civilian brings himself/ herself under the jurisdiction of the General Court Martial, he/she can be tried even if he/she is a civilian. This can occur when they use or are found in possession of weapons, the monopoly of the Defence Forces. (**Hadijah Namugerwa** case refers)
It should be noted that a right of habeas corpus is not automatic and that whoever applies for it is given the order. The applicants have to prove the purpose for the application i.e production of a person in an unlawful detention to courts of law. Habeas corpus is not meant to challenge the proceedings from which the applications originate. Constitutionality of such proceedings can only be determined on reference to the Constitutional Court since S 119 (i) (g) and (h) of the UPDF Act has never been declared unconstitutional.
Whether the weapons are a monopoly of the defence forces is a matter of evidence which cannot be determined by this court in these proceedings. It is a triable issue. Whereas S. 119 (i) (g) and (h) does not create an offence, it is an unusual section which brings civilians under the ambit of the General Court Martial if found in possession of not only fire arms but ammunitions the monopoly of the defence forces. That law has never been repealed and is still effective and in force regardless of the misgivings of the Human Rights advocates. All the applicants listed above in the above applications are in lawful custody and are not entitled to the prayers sought respectively. Those still entitled may apply for bail before the court. Therefore the applications as listed have no merit and they will be dismissed respectively.
**Stephen Musota**
**J U D G E**
**03.07.2014**