At Monday's hearing, which ended in the eighth adjournment, lawyers argued that the International crimes division [ICD] of the High court has no jurisdiction to try the 32 persons accused of killing Muslim clerics in 2014.
The court, which follows the template of the International Criminal Court (ICC) was set up to try perpetrators of war crimes, crimes against humanity and genocide including commanders of the Joseph Kony-led LRA and other rebel groups. Although it was set up eight years ago, during the three preliminary hearings spanning the last eight months, it became glaringly clear that judges and lawyers are not so conversant with procedural issues of the court.
The trial, the first of its kind in Uganda, involves Sheikh Yunus Kamoga, the leader of the Tabliq sect, and 31 others who are believed to have directed systematic attacks against Shia and Tabliq Muslims, leaving many dead including Sheikh Mustafa Bahiga at Bwebajja who was gunned down along Entebbe road; Sheikh Abdulkadir Muwaya who was killed in Mayuge district; and Sheikh Hassan Kirya who was killed in Bweyogerere, Waksio district.
When the case came up again on Monday, defense lawyer Fred Muwema asked the three judges, led by Justice Ezekiel Muhanguzi, to first pronounce themselves on whether court had jurisdiction to handle the matter. The other two judges are Percy Tuhaise and Jane Kiggundu.
"This court deals with charges such as crimes against humanity, genocide and war crimes ... We need to be shown first how the accused persons individually attacked the Shia or Tabliq community in a systematic way as per the Rome statute," Muwema said, adding, "Murder, terrorism and treason can be tried in the ordinary High court. This court [ICD] should first find out whether prosecution has not picked domestic crimes and brought them to ICD which is restricted to international crimes. Not everything that is thrown to ICD is processed," Muwema said.
In respect to the charge of crimes against humanity, which the ICD can try, Muwema accused the judges of going ahead with the trial without conducting a pre-trial hearing.
"Under the Rome statute which puts in place the International Criminal Court [ICC] before the case comes before the three judges, it is put before a single judge who evaluates if the evidence is enough to support the charges but in this case we haven't had such a session. So, we simply cannot proceed," Muwema said.
In April, High court judge Duncan Gaswaga held what he called "a pretrial" session but instead of evaluating the prosecution's evidence, he only fixed a hearing date. Another challenge was raised by defense lawyer Ladislaus Rwakafuuzi, who said the rules governing the court were not yet printed, yet lawyers must understand them.
Principal state attorney Lino Anguzu requested an adjournment because he had just taken over the file from Charles Kaamuli and needed time to study the case. He asked judges to wait for the court's rules before handling the issue of jurisdiction.
Justice Muhanguzi then advised Muwema to file a formal application challenging the jurisdiction of the court. Muhanguzi adjourned the case for the eighth time to August 9 when the rules will be available to enable them determine the jurisdiction of the case and entertain the expected amended charges.
In April, the director of public prosecutions discontinued charges of terrorism, murder, crimes against humanity and treason against the Australia-based cardiologist Dr Aggrey Kiyingi.
The remaining accused persons include Siraje Kawooya, Abdul Salaam Sekayanja, Sematimba Abdul Hamid Mubiru, Rashid Jingo, Twaha Sekkitto, Yusuf Kakande, Sheikh Murta Mudde Bukenya, Hakim Kinene Muswaswa, Sheikh Muhamda Yunus Kamoga, Muzamilu Kasawuli, Arafat Serunjogi, Badru Bukenya, Alax Okot, Joseph Olanya, Amir Kinene, Aisha Nakasibante, Charles Okidi, Sheikh Fahad Kalungi, Arajab Mubaje and Issa Matanda.
Others are Hajji Abdul Byamukama, Asadu Ssemwogerere, Solomon Kibirige, Safiyi Wadwali, Hamuza Kasirye, Yusuf Sentamu, Robert Bampikye, Muhamadi Kalodo, Musa Isa Mubiru, Ismail Ssentongo and George William Iga.
They are also charged with the murder of Sheikh Hassan Kirya and the attempted murder of Sheikh Haruna Jemba last year. Save for a few relatives, most members of the public in Islamic attire were blocked from entering court, and camped at the Constitution square.
Defence lawyers have repeatedly accused the police of taking suspects out of prison and promising them money and property if they pin Kamoga and Kiyingi.
Source: The Observer.