ARE LAWYERS STILL SAFE REPRESENTING CLIENTS IN UGANDA’S GENERAL COURT MARTIAL? A QUESTION OF CONTEMPT FOR JUSTICE OR CONTEMPT OF COURT?

Law and politics are deeply intertwined. As Keith Whittington aptly observed in Law and Politics: Critical Concepts in Political Science, “Law is an essential tool of government action, an instrument with which government tries to influence society. Law is also the means by which government itself is structured, regulated and controlled. It is no surprise, then, that law is an important prize in the political struggle and that law shapes how politics is conducted.”

Today's events at the General Court Martial in Makindye raise an urgent question: Are lawyers safe within this legal arena, or has politics taken precedence over the rule of law? The troubling trends we see today paint a grim picture of justice hanging by a thread.

Law as a Shield, Not a Sword

Lawyers are the custodians of justice, tasked with defending the principles of the rule of law. However, when lawyers themselves become targets of arbitrary and illegal actions, one must ask: Is the law being used as a shield to protect, or as a sword to intimidate?

Take the case of Dr. Kizza Besigye, a four-time presidential contender, outspoken opposition leader, and a prominent critic of the NRM regime, who was arrested in Kenya last year on charges of unlawful possession of a firearm outside Uganda—a charge so ludicrous it defies credibility.

Dr. Kizza Besigye, who, like every Ugandan, has the constitutional right to legal representation of his choice. This right is a cornerstone of the rule of law, ensuring fair hearing and the presumption of innocence until proven guilty. Yet, the General Court Martial’s attempt to muzzle Dr. Besigye’s lawyers smacks of political interference and undermines these fundamental rights. Such actions are not only morally bankrupt but legally indefensible.

A Slippery Slope: Contempt of Court or Contempt for Justice?

The sentencing of advocate Eron Kiiza for contempt of court by the General Court Martial, without issuing a charge sheet, or according him legal representation is a prime example of the General Court Martial acting as both judge and jury.

This is not just a slippery slope; it’s a freefall into lawlessness. By flagrantly disregarding Sections 214(9), 171(1)(g), and 171(2) of the UPDF Act Cap. 330, which limit contempt penalties to a maximum of 30 days, the military court’s nine-month sentence for Mr. Kiiza was as illegal as it was draconian. Such actions send a chilling message: dissent will not be tolerated, even within the confines of legal advocacy.

It is said that "justice delayed is justice denied," but in this case, justice was not just delayed; it was derailed altogether. When the rule of law is trampled, the scales of justice tip dangerously toward chaos.

The Bedrock of Democracy Cracks

The rule of law is the backbone of any democratic society. When it is compromised, the entire structure begins to wobble. Without adherence to legal principles, governance devolves into a game of cat and mouse, where might makes right, and the end justifies the means.

In Uganda, the selective application of the law and the use of military courts to settle political scores have created a precarious environment where no one is truly safe.

As the saying goes, "when elephants fight, it is the grass that suffers." In this context, the grass is the ordinary Ugandan, whose faith in the justice system continues to erode.

Let us not forget that "A society that abandons the rule of law invites instability, cynicism, and despair."

Any lessons from Kabaziguruka v Attorney General?

The landmark case of Kabaziguruka v Attorney General (Constitutional Petition No. 45 of 2016) provides a crucial reminder of the limits of military jurisdiction. The Constitutional Court ruled that the General Court Martial (GCM) is constitutionally established to address military discipline for members of the Uganda People’s Defence Forces (UPDF) only. Civilians, it held, fall outside its ambit.

Sections 2, 119(1)(g), and 179 of the UPDF Act, which sought to extend military jurisdiction to civilians, were declared unconstitutional for violating fair trial guarantees under Article 28 of the Constitution.

Justice Kenneth Kakuru (RIP) noted that civilians can only be tried by the GCM if they are accomplices to a principal offender who is subject to military law and is clearly named in the charge sheet.

The General Court Martial Has Decided to Walk on A Tightrope of Rule of Law

The General Court Martial’s disregard for established legal boundaries is akin to walking a tightrope over a pit of anarchy.

The men and women in uniform who serve on the bench must remember that their primary allegiance is to the law, not to politics.

"Time is the best judge," and history will not absolve those who use the law as a political weapon.

As legal practitioners, we must remain steadfast in our commitment to the rule of law, for it is the lifeblood of justice and the bedrock of democracy.

Let us call a spade a spade: the General Court Martial must adhere to legal principles, not political whims.

A Call to Action It is high time we confronted the elephant in the room. The safety of lawyers in the General Court Martial and the integrity of the justice system are non-negotiable.

Today's events in Makindye are a stark reminder that the price of liberty is eternal vigilance. We must hold the line, for when the rule of law falters, it is not just the lawyers who suffer—it is every Ugandan.

Let us ensure that justice is not just done but is seen to be done, for as the adage goes, "a stitch in time saves nine." The General Court Martial must return to its constitutional mandate, and politics must take a back seat to the rule of law. By Waboga David A Firm Believer in the Rule of Law