Practice Relating to Rule 100. Fair Trial Guarantees
Uganda’s Geneva Conventions Act (1964) punishes “any person, whatever his nationality, who, whether within or without Uganda commits or aids, abets or procures the commission by any other person of any grave breach of the [1949 Geneva] Conventions”.
In the Kotido Field Court Martial case in 2008, Uganda’s Constitutional Court unanimously ruled that accused persons in Field Court Martials were entitled, as of right, to appeal through the Military Courts system up to the Supreme Court. In the lead judgment, Twinomujuni J stated:
On the afternoon of the 25th March 2002, at exactly 12.50 pm they [the two accused soldiers] were indicted before a Field Court Martial presided over by Col. Sula Semakula and eight other soldiers. They were tried, convicted and three hours after their indictment, they were sentenced to death and executed by a firing squad. The issue is whether this was the FAIR AND SPEEDY HEARING envisaged in article 28(1) of the Constitution. In order to understand the meaning of this mandatory requirement, we have to look at relevant provisions in the whole Constitution, but also the entire provisions of articles 22 [Protection of right to life], 28 [Right to a fair hearing] and 44(c) [Right to fair hearing] of the Constitution. Can what is required to be done under those articles be accomplished in a matter of just three hours? Surely when considering the requirement of a speedy trial, speed must be measured against the requirement that the trial must be fair in all other aspects spelt out by the Constitution.
Speed must be “reasonable”
speed measured against the overall objective of achieving a fair trial. In my opinion, this trial was not conducted in accordance with article 28(1) of the Constitution. The process was a clear contravention of that article.
[emphasis in original]
Twinomujuni J further stated:
I have discussed in this judgment at length whether the accused were accorded protections provided for under articles 28(1), 28(3) and 44 (c) of the Constitution. I came to the conclusion that the accused were denied those protections and that they were not accorded a fair hearing at all. It follows, therefore, that the answer as to whether they had a fair trial is in the negative. They did not receive a fair trial as required by articles 28, 22 and 44(c) of the Constitution.
In 2003, in its initial report to the Human Rights Committee, Uganda stated that there are “certain Rights that cannot be derogated from and these include … the right to fair hearing”.
The report further stated:
473. It is important to note that … there are areas where derogation is not acceptable under whatever circumstances. They are under article 44.
474. Article 44 of the Constitution of the Republic of Uganda (1995) states that:
Notwithstanding anything in this Constitution, there shall not be derogation from the enjoyment of the following rights and freedoms:
(a) freedom from torture, cruel, inhuman or degrading treatment or punishment;
(b) freedom from slavery or servitude;
(c) right to fair hearing;
(d) right to an order of habeas corpus