The Supreme Court of Uganda has on Friday, January 31, 2025, ruled that it is unconstitutional to try civilians in military courts. The following is an introduction to the judgement, and the recommendations made by Chief Justice Alfonse-Owiny Dollo.
Introduction
This appeal arises out of a petition instituted under Article 137 (1) & (3) in the Constitutional Court. In essence, the appeal and cross appeal are against the majority decision of the learned Justices of the Constitutional Court 25 regarding the competence of the military Courts, their ability to render a fair hearing, offences triable in military Courts, and persons subject to the jurisdiction of the military Courts in Uganda.
Background
When he filed Constitution Petition No. 45 of 2016 in the Constitutional 30 Court, the Respondent was a civilian and Member of Parliament representing the people of Nakawa Municipality, Kampala Capital City Authority (KCCA) in the 10th Parliament, and shadow Minister for KCCA.
He filed the petition against the backdrop of events following his arrest, whereupon he was arraigned before the General Court Martial (GCM), and charged, along with others, with offences under the Uganda People’s Defence Force (UPDF) Act; to wit, offences relating to security contrary to section 130 (1) (f) with the particulars thereof being that he contrived a plot with others to overthrow 10 the government of Uganda, and Treachery contrary to section 129 (a) with the particulars thereof being that he infiltrated the UPDF or was an agent of a foreign power or any force engaging in war or war-like activities against the government of Uganda.
He objected to his trial in the GCM, contending that he was not subject to military law as he had no military connection and that 15 the GCM was not a competent Court under the Constitution to try any of the offences with which he was charged; but, the GCM overruled his objection.
He filed the petition in the Constitutional Court challenging the provisions of the UPDF Act No. 7 of 2005, which he singled out in the petition, and acts of the UPDF of arresting, detaining and remanding him to prison in relation to 20 the charges against him, as being inconsistent with the Constitution….
… In the premises, I would make the following recommendations to the Executive and Parliament for consideration as viable alternatives for the establishment, and or creation, of military courts in Uganda:
Administratively establish the General Court Martial (GCM) as a division of the High Court without the need to create a new Court, with jurisdiction to handle capital criminal cases involving both military officers and any civilians who would exceptionally fall within its ambit;
with Magistrates within the division handling offences falling under their jurisdiction.
Limit the functions of Unit Disciplinary Committees (UDCs) and Summary Trial Authorities (STAs) to handling strictly disciplinary offences, with no power of imposing sentences of imprisonment.
Utilize the existing magistracy to handle the rest of the criminal cases (other than disciplinary offences) committed in Uganda (which are currently falling within the docket of the UDCs). The subordinate military Courts can handle criminal cases at the level of Chief Magistrate’s Courts (for offences attracting life imprisonment and below). Or;
With the advice of the Judicial Service Commission (JSC), appoint civilians with the requisite professional legal qualifications to serve as judicial officers in the current subordinate military courts. They would exercise jurisdiction over offences triable by subordinate courts. They should have the same privileges and safeguards as their counterparts in the civil courts. Or;
(e) Amend the Constitution to establish superior Courts within the military Court system under Art 129; and clothe them with the requisite jurisdiction and guarantee of independence and impartiality to try specific military offences of a capital nature and all other capital offences under existing laws, committed by military personnel. Or;
Provide in the UPDF Act for the High Court to sit as a Court martial with power to try all criminal capital offences within the High Court jurisdiction, and those unique to the military that attract a maximum of life and death sentences. Grant the Chief Justice powers to assign Judges to the military courts.
A select number of military personnel can act as assessors. Appeals to the Court Martial Appeal Courts would follow the same format, with the Court of Appeal sitting as such. Magistrate’s Courts would assume the jurisdiction over all other offences of a subordinate Court.
The full judgement, 200-page long, is Here
The summary of the judgement as written by a top Ugandan lawyer is Here.
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