The Uganda Peoples’ Defence Forces General Court Martial held at Makindye, Uganda has asked that a lawyer representing Col. Kiiza Besigye (Rtd) in case no: UPDF/GCM/040/2024 Mr. Kiiza Eron, Esq to prison for 9 months for misconduct. It was recorded that on the 10th day of December 2024, Mr. Kiiza Ekron, Esq appeared before the court representing Col (Rtd) Dr. Kiiza Besigye and another and expressed gross professional misconduct and was warned that such conduct is contempt of court.
It was also recorded that on the 7th day of January 2025, when the lawyer entered the court and confronted the court orderly who was directing him where to sit and banged the angle bars of the entrance of the court. According to the Chairman of the General Court Martial, Brig Gen RE Mugabe, he said “We warned him of the misconduct yet the disturbance increased while he enjoyed the cheers from the audience. This court held that the lawyer’s conduct amounts to contempt of court and found him guilty of contempt of court and sentenced him to nine (9) months imprisonment to be served in Kitalya Government prison.”
Courts generally exercise caution before imprisoning lawyers for imprisonment to preserve the independence of the legal profession and the right of individuals to robust legal representation. A general military court-martial does not have jurisdiction over civilians save for persons employed by Armed Forces subject to military law or for cases of espionage or contempt.
The Ugandan Defense Forces Act 2005 provides for the prosecution of military personnel and associated civilians under court martial. Punishment for contempt of court in Uganda is guided by the Judicature Act and precedents. The penalty is at the discretion of the court but the award of a 9-month sentence is arbitrary.
One significant case where a scenario like this occurred is the case of United States v Maj. David Frakt, the accused was the lead defence of the detainees at Guantanamo Bay, Military Tribunal in Cuba. Although no lawyer was directly detained, the defence attorney faced repeated warnings for challenging the tribunal’s legitimacy and procedures. The defendant was accused of disrespecting the court for openly criticizing the fairness of the military commission system. While he was not detained, the military judge warned that persistent derogation of the procedural rules could lead to contempt charges.
In Nigeria, the power of the court to punish for contempt derives from the Constitution and it is vested in the court to preserve its dignity. Section 133 of the Criminal Code, a court of law is vested with wide powers to punish for various types of contempt. Contempt can either be in facie curiae or ex facie curiae in the face of the court or outside the court respectively. For contempt committed in the face of the Court, may arise as a result of disrespectful conduct or comments made in the Court room by a contemnor when proceedings are going on and which is seen and heard by the judge, which undermines the dignity of the Court or which interferes with the administration of justice.
Under this class of contempt, there is no need to call for evidence of what transpired, because it happened in the presence of the judge and his staff. The judge is thus an eyewitness to everything that transpired. It is imperative to mention that it is not all discourtesy to the Court by Counsel that amounts to contempt. In the case of INEC & Anor v. Oguebego & Ors7, the Supreme Court whilst considering the instance when words or actions used in the face of the Court or in the course of proceedings can be deemed contemptuous, held as follows “For words or actions used in the face of the Court, or in the course of proceedings, to be contempt, they must be such as would interfere with the course of justice. A superior Court of record has the inherent jurisdiction to deal with contempt in facie curiae and punish for the offence summarily. It must once again be emphasized that the summary power of punishing for contempt should, however, be used sparingly and only in serious cases….”
Section 133(9) of the Criminal Code Act 1990 of Nigeria states that “Any person who commits any act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being heard or taken is guilty of a simple offence and liable to imprisonment for three months”. Before an alleged contemnor can be committed to prison for contempt ex facie curiae (done in the open court), there are laid down procedures that must be complied with to ensure that the alleged contemnor is given a fair hearing. There is a standard procedure for conviction for contempt. It starts with putting the alleged contemnor in the accused box, explaining to him what he did before the court and asking to show cause why he must not be punished.
Not every action or word used in the face of the Court amounts to contempt. It must be such as would interfere with the course of justice. Whilst it is undisputed that a Judge has both the inherent and statutory powers to punish for contempt in facie curie, he/she should exercise the powers in a bid to uphold and ensure the effective administration of justice and not for personal glory. In the case of Adeyemi Candid-Johnson v. Mrs Esther Edigin (1990) 11 NWLR (pt. 129) CA. 659, the Court of Appeal condemned the actions of the Chief Magistrate and held that she went beyond her powers when she cited a counsel for contempt merely because the counsel insisted that his submissions before the Court should be placed on record and also refused to answer a question on his year of call which was put to him by the Court.
By: President Aigbokhan and David Omotola of FOI Counsel. They can be reached via info@foicounsel.com