I will give you this information for free and without fear of contradiction. By the time Eron Kiiza arrived at the General Military Court Martial, his fate was already sealed. His arrival into court and standing up for his rights to sit where he wanted was the much anticipated moment for Freeman Mugabe to implement his instructions.
We all know that sometimes Eron goes a little bit overboard in the way he conducts himself while in court but this time round, even a blind man would see that Eron did nothing wrong. Clearly, there was high handedness in their actions and Eron did not deserve the embarrassment he was subjected to before an outfit he has always rightly referred to as a tribunal.
What happened in court that day changed the narrative and I think the defense team needs to rethink. Balancing the rights of Besigye and Lutale as suspects and working around the clock to rescue Eron Kiiza from that illegal and conviction is a delicate subject. The whole fracas requires wisdom to determine whether to pursue Besigye and Lutale case first or that of Eron.
But Besigye being who he is, am sure his preference would be to first deal with Eron freedom before his own case and I agree with him entirely. I am also aware that lawyers in court I bet are not interested in defending Besigye and Lutale but to push Freeman to appreciate that he does not have a formidable legal backing to justify his actions.
Advocating for the rule of law is every lawyer’s responsibility. These Lawyers are before this kangaroo outfit to remind Freeman who is not a free man himself that he does not have the mandate to try a civilian in a military tribunal and those tramped up charges should be dropped and I know that message Eron Kiiza was emphasizing in the last two sessions.
These lawyers are aware that Besigye and Hajji Lutale will never get justice from an establishment that works on orders from above. By virtue of their training, soldiers are obliged to listen and take orders from their superiors whether the orders make sense or not. That is the predicament Freeman Mugabe and his entire panel of military members is navigating.
Is contempt of court a preserve of court or it can be applied by any other entity such as a tribunal or group of people sitting for purposes of adjudicating upon a matter and are at liberty to invoke the same against those who disobey, disrupt or disrespect their proceedings? The vagueness or the failure to provide clear parameters and definition of contempt is the cause of the hullabaloo.
The dictionary defines contempt of court to mean an act of disobedience or disrespect towards the judicial branch of the government, or an interference with its orderly process. It is an offense against a court of justice or a person to whom the judicial functions of the sovereignty have been delegated. What is confusing is the law under which that punishment is prescribed.
Truth be told, contempt of court is one of those offences that our laws left unclothed save for what it means is in the dictionary. Under Article 28(12), it is provided that except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law which creates a lacuna in our case.
That alone leaves wider powers to whoever wishes to interpret contempt the way they wish and even determine the corresponding punishment. That is why justice Ssekaana gave Male Mabirizi 18 months in Prison for the same offence where a caution would have been sufficient. Other judicial officers have sentenced contemptuous persons to hours, weeks and months.
As for Eron Kiiza, the dynamics are different and it is my thinking that even if there were any act of contempt, the 9 months sentence slapped on him were excessive, gross, emotional, an abuse of court process, a systematic overreach and disproportionate. The decision appears to have been stage managed, ill intentioned and diversionary to delay justice or to create fear.
I can only hope against hope will not point an accusing finger at Eron Kiiza claiming that his antics in court were planned to keep Besigye and Hajji Lutale in prison. When Ronald Iduli was arrested for bogus reasons, we thought it was a joke, now Eron Kiiza is in Kitalya and as for Lukwago, they are blackmailing him for having abandoned his family in preference for hotels.
Those who followed the proceedings at court may have noticed something unusual; the army had planted a court martial orderly to direct Lawyers where to sit yet there was a seat reserved for Kiiza near the core team. Somehow, the court officials knew Eron would want to assume his usual place by all means and when he resisted their unlawful orders; boooom, brutal arrest!
It may be in the readers interests to note that the Court was not yet in session. For contempt to arise, a person must have disrupted a court in session. So where did the Judge Advocate conclude that the actions of Eron in refusing to be deprived of an opportunity to seat next to the lead team for easy consultation was an act of contempt for which he had to be deprived of his liberty?
Recall Eron was handcuffed at 3:28Pm by the military officers in shades and brutally dumped in the dock. Two minutes later at exactly 3:30Pm, the court delivered its typed ruling without allowing Eron to defend or make a mitigating statement. That alone is a ground to challenge the 9 months sentence as it contravenes the very clear principles of natural justice.
For those in agreement with the 9 months sentence, I wish to draw your attention to Sections 214(9), 171(1) (g) and 171(2) of the Uganda People’s Defence Forces Act which provides for limitations in sentences such as contempt to a maximum of 30 days if the offence is committed within the court’s jurisdiction. I don’t think that is too hard to interpret by the Judge Advocate.
If indeed Eron had confronted a court orderly and assaulted him, then the right charge should have been assault, not contempt. Such high handedness is the reason why the court martial is often called a kangaroo establishment for its lack of respect for the rule of law. It appears the January, 7th session was fixed to threaten and intimidate the legal team with all sorts of trivial issues including demanding for written instructions to the lawyers from the accused persons.
At the next hearing on the 17th this month, the prosecution will quickly present an amended charge sheet perhaps drop the Kenyan territory offences and introduce another set of farfetched charges against Besigye. The court Martial will then have an excuse not to deliver its long awaited ruling based on the preliminary objections.
So as the push to free Eron Kiiza continues, I encourage Lutaale and Besigye’s Lawyers to refocus their attention to mounting pressure on Owiny Dollos’s Supreme Court which has deliberately refused to pronounce itself on Kabaziguruka Constitutional Court petition where it was declared that a Court Martial is not a court of Judicature and should not try civilians.
Wadada Rogers is a commentator on political, legal and social issues. wadroger@yahoo.ca
