MASAKA: Lawyers for MPs Muhammad Ssegirinya and Allan Ssewanyana have asked the High Court’s International Crimes Division to send their case file to the Constitutional Court so that legal questions can be answered.
The legislators are jointly charged with a string of charges, including murder, attempted murder, and aiding and abetting terrorism, stemming from their alleged involvement in the killings that 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. In a separate case, they are accused of killing Joseph Bwanika, who lived in Kisekka Sub-county in the Lwengo District. This case is being heard in Masaka.
As part of the trial, the International Criminal Court’s Justice Alice Komuhangi Khauka approved a request by the prosecution to protect 15 witnesses they plan to use to bring charges against the accused.
The judge stated that protecting witnesses, limiting the number of people who have access to their information, and keeping a log of who has access to their information will not result in an injustice to the accused. She also said that if her court agrees with the charges against the accused, the names and addresses of all witnesses will be made public at least 15 days before the trial starts.
But today, their lawyer, Caleb Alaka, asked the court to send the case to the Constitutional Court to see if the way the International Criminal Court protects witnesses doesn’t go against constitutional articles about the right to a fair trial.
Alaka now wants the Constitutional Court to determine whether the decision does not contravene articles 28 and 42 of the Constitution, which call for a right to a fair hearing before an independent and impartial court and guarantee 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 the just and fair treatment of suspects.
The defense lawyers also want the Constitutional Court to decide if the fact that similar charges and similar facts are being tried in parallel courts at the High Court in Masaka and the International Crimes Division does not cause double jeopardy and a miscarriage of justice.
Alaka said that the upper Constitutional or Supreme Court has never tested the International Crimes Division’s rules, especially when it comes to the rights of the accused, like protecting witnesses and letting them know who they are.
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 had 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 them 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 also said that the defense lawyers knew that lawyer Male Mabirizi had filed an application about a similar issue, but they chose to ignore it because Mabirizi was a vigilante and his application didn’t concern them.
Mabirizi wanted the proceedings to stop until his constitutional petition was heard. In the petition, he questioned whether it was legal to charge the same people in two different files with similar facts.
Prosecutors say that the applicants are now raising questions about how the Constitution should be interpreted because they know that the state is ready to start the pre-trial proceedings again.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 where the prison authorities will decide where to take him.