Lawyers representing MPs Muhammad Ssegirinya and Allan Ssewanyana have asked the International Crimes Division of the High Court to refer their case file to the Constitutional Court for interpretation of legal questions.
The legislators are jointly charged with a string of charges including murder, attempted murder, aiding, and abetting terrorism stemming from their alleged involvement in the killings which occurred between March and June 2021, in the greater Masaka region. More than 20 lives were lost.
They were committed to the International Crimes Division of the High Court on November 21, 2021, by the Chief Magistrates court in Masaka where they first appeared for trial, alongside five others; Jackson Kanyike, John Mugerwa, Bull Wamala, Mike Sserwadda, and Jude Muwonge. A separate trial is ongoing in Masaka for another charge in which they are accused of murdering Joseph Bwanika, a resident of Kisekka Sub-county in Lwengo District.
As part of the trial, Justice Alice Komuhangi Khauka of the International Criminal Court allowed an application in which the Prosecution sought to protect 15 witnesses they intend to rely on to prosecute the accused persons in the matter.
The Judge said that the protection of witnesses, limiting the number of people able to access their information and keeping a log of persons handling their information shall not in any case cause an injustice to the accused persons. She added that full disclosure of those witnesses and their identities shall be done not later than 15 days before the commencement of the trial should her court confirm the said charges against the accused persons.
But today, their lawyer Caleb Alaka asked the court to refer the matter to the Constitutional Court to determine whether the protection of witnesses in a manner decided and ordered by the International Criminal Court does not contravene constitutional articles on the right to a fair hearing.
Alaka now wants the Constitutional Court to determine whether the decision does not contravene article 28 of the Constitution which calls for a right to a fair hearing before an independent and impartial court and article 42 which guarantees the fundamental rights of an individual. He also wants the Constitutional Court to determine whether the protection of witnesses in such a manner does not contravene article 44 which calls for just and fair treatment of suspects.
The Defense lawyers also want the Constitutional Court to interpret whether the act of proceedings based on similar charges with similar facts in parallel courts both the High Court in Masaka and the International Crimes Division does not cause double Jeopardy and miscarriage of justice.
Alaka submitted that the rules of the International Crimes Division have never been tested by the upper Constitutional or Supreme Court, especially on matters touching the rights of the accused persons specifically about witness protection and disclosure of their identities.
He said that in the interest of justice, the case file should be referred to the Constitutional Court because they are raising points of law that touch on the tenet of a fair hearing.
But the Prosecution led by Richard Birivumbuka and Joseph Kyomuhendo argued that the decision on the protection of witnesses does not in any way require a constitutional review. They argued that the Prosecution has not barred full disclosure before the trial as insinuated by the defence lawyers
The Court has heard that the Prosecutors have already disclosed some exhibits and statements to the defence and they intend to fully disclose 15-days before the trial, a time that the prosecution believes will be enough for them to exhaustively prepare their defence
Kyomuhendo says the latest application was in bad faith because it does not demonstrate any kind of violation of the articles talked about. He added that the defence lawyers were already informed about an application in which lawyer Male Mabirizi had an almost related issue but they chose to ignore it saying he was a vigilante and that his application doesn’t concern them.
Mabirizi wanted the proceedings halted pending the determination of his 2021constitutional petition challenging the legality of charging the accused persons on two different files with similar facts.
But to the Prosecutors, the applicants are now raising issues of Constitutional interpretation after realizing that the State is ready to resume the pretrial. They have asked the Court to reject their prayers and continue with the pretrial hearing arguing that the referral will only delay the proceedings. The Judge has fixed October 13, 2022, to deliver her decision on the matter.
Meanwhile, the Court has ordered that one of the accused persons Jude Muwonge who has been appearing with the accused persons in court be taken back to Prison and never to be returned before the ICD Court. The Judge said that the Court wrongly issued a production warrant for Muwonge because his name does not appear on the committal papers.
The judge said that under the circumstances, she could neither release him nor order that he should be sent back to Masaka. She said therefore, Muwonge should be returned to Luzira Prison and the Prison authorities will decide where to take him.
By Kukunda Judith for URN