KAMPALA, Uganda| The Criminal Division of the High Court has ruled that detaining someone without trial is unconstitutional. This came after a civilian was detained for 4 years without trial after being charged with murder before the General Court Martial.

Tumwesigye Enock was detained at the General Court after being arrested on 4th September 2019 in Rubanda, charged with murder under CRB 33212019. The charges were withdrawn by the Director of Public Prosecutions (DPP) on 9th December 2019. On 1st January 2021.

Tumwesigye was re-arrested on 22nd March 2021, and he was arraigned before the General Court Martial and charged with murder, despite being a civilian. He remained in detention without committal for a period exceeding 1500 days from the date of his application.

Counsel for the applicant submitted that the General Court Martial lacks jurisdiction over the applicant, as the applicant relied on the Attorney General v. Hon. Michael Kabaziguruka and Gen. David Sejusa, which affirmed that military courts lack jurisdiction over civilians and that the High Court has supervisory jurisdiction to intervene.

Counsel also submitted that the applicant’s detention for over 1,500 days without trial far exceeds the constitutional threshold of 180 days under Article 23(6)(c) of the 1995 Constitution and Section 15(2) of the Trial on Indictments Act, entitling him to mandatory bail.

The respondent, who is the attorney general, opposed the application, raising these arguments against the grant of bail: the seriousness of the offence of murder, which carries a maximum penalty of death, warrants the applicant’s continued detention; there is a likelihood that the applicant (Tumwesigye) may abscond if released on bail, given the gravity of the charge; and they may interfere with witnesses or obstruct the course of justice if granted bail but failed to adduce supporting evidence.

”The applicant, a civilian charged before the General Court Martial in proceedings subsequently declared illegal by the Supreme Court, has been on remand for over four years without trial or any committal proceedings. There is uncertainty as to when his file will be transferred to the civil courts and about his continued detention.” Muwata ruled.

Muwata further ruled that inherent powers the High Court are invoked in very rare and exceptional
circumstances. These powers are resorted to where no statutory law exists to address a legal dispute. In such scenarios, the inherent powers of the court may be invoked to fill the lacuna created, ensuring a just outcome.

Justice Isaac Muwata ruled that the applicant’s four-year detention without trial was unconstitutional, granted mandatory bail with a cash bond of UGX 2,000,000, required monthly reporting to the deputy registrar, and warned against delays in prosecuting cases involving fundamental rights.