COURT .
Yasiin Ssekitolejo commonly known as Machete ,a supporter of opposition National Unity Platform (NUP) will spend unspecified period in incarceration after the High Court in Kampala rejected his bail application ,citing lack of jurisdiction .
The youthful activist is facing charges of treachery and unlawful possession of firearms.
To Machete’s dismay , his fellow activist and lawyer Eron Kiiza was a few months ago granted bail by the same and he was released on cash bail of Shs20m.
Machete has spent more than four years on remand without being committed to the High Court for trial. He sought release through mandatory bail, which allows suspects to be admitted on bail after spending 180 days on remand without trial.
Through his lawyer George Musisi, Ssekitoleko argued that the Supreme Court’s landmark judgment earlier this year directed that files of civilians previously before the General Court Martial be transferred to civilian courts for management.
On January 31, the Supreme Court ruled that it is unconstitutional to try civilians before military courts. It was on this basis that Ssekitoleko asked to be granted bail by the High Court.
However, presiding judge Andrew Khaukha ruled that his court lacks jurisdiction to hear a bail application originating from the army court.
“From the above provisions of the law, all criminal proceedings are supposed to be initiated in the Magistrates’ Courts by laying a charge before a magistrate. Thereafter, if an accused person is desirous of applying for bail, the magistrate or the High Court will determine whether the offence is bailable,” Justice Khaukha held on August 20.
He continued: “While the Kabaziguruka case decision mandates the transfer of civilian cases from the Court Martial to the civilian courts, it does not create an exception to the established procedural requirements for acquiring jurisdiction in civilian courts. The constitutional requirement that civilians cannot be tried by military courts creates an exceptional circumstance but cannot justify sidestepping normal procedural safeguards.”
The judge further noted that criminal proceedings before the military court had been instituted by the convening authority. “In the instant application, several procedural deficiencies are evident as the case transferred from the Court Martial lacks the proper procedural foundation that committal proceedings provide under civilian law. This court therefore finds that it lacks jurisdiction to entertain the present bail application.”
This position stands in contrast to a ruling in April this year when the same High Court, presided over by Justice Michael Elubu, entertained a bail application by lawyer Eron Kiiza and released him.
Mr Kiiza had spent 87 days in detention after being summarily convicted by the General Court Martial on January 7 and sentenced to nine months imprisonment for contempt of court. At the time, he was among lawyers representing Dr Kizza Besigye before the now-frozen military court, prior to the transfer of his case file to Nakawa Court.
While granting him bail, Justice Elubu reasoned that Kiiza’s appeal against his conviction was unnecessarily delayed due to the transfer of files from the military courts. “By the time his appeal is disposed of, he might have fully served his sentence,” Justice Elubu said, describing Kiiza’s situation as a “legal limbo.”
He added: “It is pertinent that the applicant has already served a third of the sentence. In the event bail is denied, there is the possibility that he could serve out his sentence before the formal transfer of his case from the Court Martial to the civilian court is concluded. This counts in his favour. In the result, I find that the applicant, Eron Kiiza, qualifies for admission on bail pending appeal.” It remains to be seen whether the same court will grate Machete bail when he makes a second attempt through another judge .