JUDGEMENT: How Each Supreme Court Justice Ruled on Trial of Civilians in Military Courts

The Supreme Court of Uganda has delivered its verdict in a case involving the trial of civilians in military courts as filed by former MP Michael Kabaziguruka and a ruling on the same in the Constitutional Court appealed by the Attorney General.

The ruling of the Supreme Court came at the time of the trial, which is already ongoing in the general court martial, of opposition leader Dr Kizza Besigye, his aide Obeid Kamulegeya, and several political prisoners.

Here is a summary of each Supreme Court justice’s ruling as provided by Denis Kusaasira, Senior Partner at ABMAK Associates:

Monica Mugenyi JSC

Upholds the unconstitutionality of s.117(1)(h), formally 119(1)(h) of the UPDF Act . Basically she upholds the decision of the Constitutional Court.

Upholds the holding of the Constitutional Court that the CM is not an independent, impartial or fair court as envisaged under Art 28(1) of the Constitution.

Modifies the orders in the lead judgment of the Constitutional Court.

The effect of her judgment is that the trial of civilians in the CM is still an ongoing debate since s.117(1)(h) may be amended to cure the defects. Secondly, the procedure for appointment of membere of the CM can be amended to bring it in comformity with Art 28(1) of the Constitution.

Catherine Bamugemereire JSC

Agrees with the Constitutional Court on the restrictive nature of the jurisdiction of the Court Martial. The jurisdiction of the Court Martial is invoked where a disciplinary or military offence is committed.

Holds that the GCourt Martial as currently set up can’t accord a fair trial and its exercise of judicial powers over civilians is unconstitutional. The members of the Court Martial are not independent.

Does not agree that civilians can be tried by Court Martial even for aiding and abetting of military offences. This a departure from the judgement of the Constitutional Court which saved the jurisdiction of the Court Martial under s. 117(1)(g).

Suspends all trials of civilians in the Court Martial and orders sentences for those already convicted should be subjected to judicial review by civil courts, except those sentences which have been served.

Mike Chibita JSC

The General Court Martial  is a subordinate court under s.129 of the Constitution.

S.117(1)(g) is unconstitutional and null and void.

Applies the principle of prospective annulment and holds that earlier decisions of the Court Martial  should not be interfered with.

Percy Night Tuhaise JSC

The General Court Martial is a specialized court established to administer military justice in respect of disciplinary and criminal military offences. This is a slight departure from Musoke JSC who has held that the jurisdiction of the Court Martial is restricted to disciplinary offences.

While the Constitution sets up the court of judicature directly under Art 129, the Court Martia is established by Parliament under the UPDF Act. Legal qualification is not a basic for appointment of members of the General Court Martial. This is in contrast with the appointment requirements for the courts of judicature where judicial officers are required to have legal qualifications. The legal principle is that any court with jurisdiction to impose a serious penalty should be presided over by qualified persons in order to accord a fair trial under Article 28 of the Constitution and international law principles. General Court Martial cannot accord a fair trial.

General Court Martial, in its current state, lacks competence to try criminal offences, and cannot accord a fair trial under. It can only handle matters related to disciplinary offences under the UPDF Act.

The Appeal fails, save for the establishment of the General Court Martial as a court of law.

Allows cross appeal and Awards costs to the Respondent/Cross-appellant

Elizabeth Musoke JSC

Article 210 restricts the jurisdiction Parliament may confer on Court Martial. The jurisdiction must be confined to military disciplinary offences and imposition of disciplinary sanctions.

The jurisdiction of the Court Martial as currently conferred by the UPDF Act exceeds the constitutional limits under Article. 210(b) of the Constitution.

Section 179 of the UPDF Act exceeds the constitutional limits in as much as it confers jurisdiction on the Court Martial to impose punishment beyond what is contemplated under the Constitution.

The provisions of the UPDF Act which empowers the Court Martial  to try civilians are unconstitutional and inconsistent with Article 210(b) of the Constitution.

Sections 2, 119 and 179 of the UPDF Act are inconsistent with the Constitution and therefore null and void.

The General Court Martial is established under Article 210(b) of the Constitution and therefore  not a subordinate court since it is not subject to the supervision of any of the superior courts, including the Supreme Court. The General Court Martial lacks the features of a competent court in terms of competence and impartiality of its officers. She departs from the decision which had held that the General Court Martial is a subordinate court under Article 129 of the Constitution.

The alignment of Kabaziguruka before the General Court Martial was unconstitutional since he was not at the time a member of the UPDF.

The deficiencies highlighted above render it impossible for the General Court Martial to accord a fair trial to the people that fall within its jurisdiction.

Orders that going forward, only cases relating to disciplinary offences by members of UPDF Act should be tried by Court Martial. Where the Court Martial determines that the offence entails the imposition of a serious punishment, the case should be transferred to a competent court of judicature.

Awards costs of the appeal and the courts below to the respondent.

Alfonse Owiny-Dollo CJ/JSC:

Explained the delay of delivery of judgment to be partly due to the fire that gutted the Supreme Court building that led to the condemnation of the said building. Secondly, the retirement of justice Muhanguzi and the unfortunate death of Justices Ruby Opio Aweri and Arach-Amoko. Since the appointment of new justices to the Supreme Court, the panel was reconstituted and eight months later the judgment is now delivered.

Frames the issues as: Whether the Court Martial  are courts of law or tribunal, whether the Court Martial  are independent, whether civilians can be legally tried by Court Martial  for criminal offences under the UPDF Act, whether civilians can be legally tried by Court Martial  for offences outside the UPDF Act, and whether civilians can be legally tried as accomplices by the Court Martial .

The General Court Martial  is part of courts of judicature under Chapter 8 albeit with limited jurisdiction. They are subordinate courts under Article 129 of the Constitution.

The Unit Disciplinary Committees (UDCs) and Field Courts Martial (FCM) are tribunals.

All persons, including military officers, are entitled to a fair trial. Trial by military court does not of itself render the trial unfair.

Apart from the Court Martial AC, there is no requirement for members of Court Martials to be qualified lawyers. The judge advocate’s role is merely advisory and not binding on the members of the Court Martial . The members of the Court Martial  are not appointed by an independent institution. The members are military persons and no right of appeal to ordinary courts exists, yet Court Martial  can infringe on the liberty of citizens. The untrained persons can issue decisions on question of law. The absence of legally trained persons present parallel and contrasting standards between Court Martial  and civil courts, and discriminatory to persons appearing before the Court Martial s. The consequences is that this renders the operation of Court Martial s unconstitutional.

The presence of military personnel as members of Court Martial s is not of itself an indication of lack of independence. However, the oath  taken by the members binds them to the allegiance of the high command and the commander in chief. The manner of appointment of members of the Court Martial  who are members of the military does not necessarily render the Court Martial  partial. However, if understood together with other factors such as appointment a renewable contracts and lack of protection of security of tenure means that there is no guarantee of independence.

The institution of charges and prosecution is all rolled in one since the one who appoints the members of the court also institutes the charges. This violates the constitutional right of fair trial.

Court Martial s also do not guarantee adequate time for preparation of defense by the accused, and foreclose the right of appeal to ordinary courts. This is inimical to the right to a fair hearing under article 28 of the constitution. Ground 2 of the appeal fails.

Agrees with decision of the Constitutional Court that failure to name the principal offender who was a military person rendered the arraignment of the Respondent unconstitutional.

To try civilians in military courts the state must prove that it is inevitable under Article 43 of the Constitution, and the civil courts lack the competence to try the offence. The military courts must guarantee the right to a fair trial.

Trial of civilians whether as accomplices or otherwise is unconstitutional. Ground 3 of the appeal fails and the cross-appeal succeeds.

Trial of military officers in Court Martial  for offences other than disciplinary offences unconstitutional. It violates Art 28 of the Constitution.

It would be wrong for parliament to confer on the Court Martial  to try offences triable by other courts. 14. Court Martial s are subordinate to the High Court.

It should be remembered that President Yoweri Museveni, who appoints the justices of the Supreme Court, has made a strong argument for the trial of civilians in the military courts, attracting equally strong criticisms. (See Details Here, There and Over There).

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