Court Martial ruling: A positive for criticised Constitutional Court

Justices of the Constitutional Court hear the case challenging the removal of the presidential age limit in Mbale Town in 2018. PHOTOS/ FILE

What you need to know:

Analysis. Formed 26 years ago, Uganda’s Constitutional Court for quite some time has been deemed to be more malleable to the Executive, but following the judgment in which it barred trial of civilians in the military courts, Derrick Kiyonga and Joel Mukisa examine if that court is on course to revival.

In a space of four months, the Constitutional Court has outlawed judges from being appointed by President Museveni to undertake other duties without first resigning from the Judiciary and also outlawed the practice of trying civilians in military courts.
Though these two landmark judgments might be overturned by the Supreme Court, which is now deemed to be more malleable the Executive, the feeling within legal circles is that the two judgments give hope of revival of the Constitutional Court which for years now has been dogged with case backlog, squabbling among judges and luck of progressive judgments, prompting many to query its relevance. 
When the Judiciary announced the results of its national court census results in January 2017, the Constitutional Court had about 359 pending cases, out of which 213 cases were backlog representing 59 per cent of the cases. 
The accumulation of unheard cases is quite the opposite of what Article 137(7) demands: “Upon a petition being made or a question being referred under this article, the Court of Appeal [Constitutional Court] shall proceed to hear and determine the petition as soon as possible and may, for that purpose, suspend any other matter pending before it.”  
In fact, Rule 10 that governs constitutional petitions provides: “The court shall sit from day-to-day and may, for the purposes of hearing and determining the petition, sit during Saturdays, Sundays and on public holidays where the court considers it necessary for ensuring compliance with Article 137(7) of the Constitution...”   

Complying with such laws has been impossible with the Judiciary citing lack of human resources as the main challenge but the disappointment among court users has been louder and louder. 
“The Court for years hasn’t been hearing cases,” Mr Peter Walubiri, a constitutional law expert says. “The Court was supposed to handle constitutional matters expeditiously but it has failed.”  
Backlog aside, the biggest disappointment with the Court has been its failure to check government with many tracing it back to 2013 when now-retired Deputy Chief Justice Steven Kavuma took over as its head.

The Court got itself in the limelight for issuing injunctions in most cases handed down by Justice Kavuma, sitting as a single judge, leaving a bitter taste. 
“I’m not the only constitutional scholar, activist and practitioner who has written off the constitutional carcass: an apt metaphor of this graveyard of constitutional petitions (due to its appalling backlog statistics), or the Judiciary having been irreparably tainted by the tattered legacy of its former leader, retired Deputy Chief Justice Steven Kavuma,” says Isaac Kimaze Ssemakadde, the chief executive of Legal Brains Trust, a Kampala-based democracy and human rights watchdog.

“Our history shows clearly that the Constitutional Court stands for nothing, and it produces nothing, compared to its peers on the continent. It’s a graveyard of constitutionalism. It’s s stage of shameless judicial careerists to exhibit their loyalty to the king over the people. It’s the modern-day equivalent of a Russian Gulag to which awake citizens and constitutional litigants are condemned to labour in vain. Many lawyers pride in advising their clients to avoid it, whenever possible.”

The General Court Martial chaired by Lt Gen Andrew Gutti (R) during a session.

The Constitutional Court could have become a subject to ridicule, but in 2004 it caused a political storm when justices Galdino Okello, Alice Mpagi Bahigeine, George Engwau, Amos Twinomujuni and Christine Kitumb invalidated the referendum on political systems held in 2000, following a constitutional petition lodged by Paul Kawanga Ssemogerere, who was the DP president general at the time.  
The judgment meant the Movement system, which President Museveni had championed, and which was the political system under which Uganda had been governed for three years after the 2000 referendum, was a nullity, thus sending the country into political uncertainty.
On June 29, 2004, two days after the judgment had rattled the political establishment, Mr Museveni, dressed in military fatigues, appeared on TV and promised to “deal” with the judges.
“This is not acceptable, it simply will not work and I would like you the people to know this and simply don’t get unduly worried about such irrational decisions,” a tough-sounding Museveni said, scarcely concealing his disenchantment with the judgment. 

Still in the early 2000s, the same court had moved to stop the State from trying accused persons in both civil courts and military courts when they tried to do it with Dr Kizza Besigye and 22 others who had been charged with conspiring with rebels of the Joseph Kony-led Lord’s Resistance Army, the People’s Redemption Army [PRA], and other rebel groups to topple Museveni’s government.

“We cannot stand by and watch prosecutions mounted and conducted in the midst of such flagrant, egregious and mala fide violations of the Constitution and must act to protect the constitutional rights of the petitioners in particular and the citizens of Uganda in general as well as the rule of law in Uganda by ordering all the tainted proceedings against the petitioners to stop forthwith and directing the respective courts to discharge the petitioners,” ruled justices Mpagi Bahigeine, Engwau,  Twinomujuni, Constance Byamugisha and Augustine Nshimye.
But as time has gone by, faces to have changed since Mpagi-Bahigeine, Engwau, Nshimye have retired while Twinomujuni and Byamugisha have passed on and the Constitutional Court has gone through a lot of transformation which critics have insisted has favoured Mr Museveni more than the Opposition.  
One of the biggest legal conundrums Uganda’s judicial system has for years grappled with is the mingling of civil rule with martial law which Mr Museveni has propagated, insisting that’s better because it’s faster and corruption-free.

“The Human Rights Committee (HRC) and the African Commission on Human and People’s Rights have consistently stressed the need to limit the jurisdiction of military courts to offences of purely military nature,” Dr Ronald Naluwairo, a lecturer at Makerere University’s law school, wrote in his 2019 paper entitled ‘Sustainable development goal 16 and the militarisation of the administration of justice in Uganda’. 

“In its concluding observations on national periodic report of Guatemala under Article 40 of the international covenant on civil and political rights, the HRC expressed serious concern about the broad jurisdiction of military tribunals. It asked Guatemala to amend the law to limit the jurisdiction of the military courts to the trial of military personnel who are accused of crimes of an exclusively military nature.”

Problems over the years
The recent judgement highlights the problems that have bedevilled this court over the years. It was filed in 2016 by Forum for Democratic Change’s (FDC) Michael Kabaziguruka when he had just been elected Nakawa MP, but judgment was delivered five years later, after he lost his seat sparking off questions of justice being delivered as the former MP has spent these years having treason charges hovering over his head.

The last time he appeared at the military court in 2016, Kabaziguruka, who gave the much-feared court a dose of defiance, had made it clear that as a civilian the court had no mandate over him. 
“I’m a civilian who should be tried in a civilian court. I have the capacity to hire a private lawyer but I can’t because I am in the wrong court. If you force me to be tried here, I prefer to represent myself,” Mr Kabaziguruka said, triggering a thunderous ovation from FDC supporters who had crammed the courtroom. 

The time the court has taken to deliver the judgment can’t be downplayed because lawyer Ladislaus Rwakafuuzi, who has for years argued against civilians being tried in military courts, was healthy when Kabaziguruka gave him instructions to lead his legal team to file the petition but by the time the case came up last year, for final submissions, he was sick having suffered a stroke. 
“I couldn’t be there because I was sick,” Rwakafuuzi said in a phone interview “It took really a long time.”

The army has defended the habit of charging civilians in their court citing Sections 119(1) g and h of the UPDF Act No7/2005, sub-sec (g), which stipulates: “…. every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence; and (h) every person found in unlawful possession of (i) arms, ammunition or equipment ordinarily being the monopoly of the defence forces; or (ii) other classified stores as prescribed, is subject to military law, and can be tried in military courts as appropriate.”
Justice Remmy Kasule who joined justices Kenneth Kakuru and Hellen Obura in outlawing civilian trials in military courts, was very particular about sections 119 (1) g and h. 
“The practical effect of all this is that by operation of Sections 119 (1) g and h of the UPDF Act, the General Court Martial and any other military courts under the said Act, are purported to be vested with jurisdiction to try anyone in Uganda, whether a member of UPDF or not for any crime under the Penal Code Act or any other enactment. All that is required for this to happen is to allege that one who is a civilian aided and abetted one subject to military law to commit that crime,” Justice Kasule, who retired in 2018 but has been working on contract, wrote in his judgment. 

“This is grossly unconstitutional since Article 210(b) [of the Constitution] restricts the General Court Martial and any other military court to exercise jurisdiction as to discipline over only members of the UPDF.”
“By the General Court Martial extending its jurisdiction to try civilians who are not members of the UPDF in respect of all offences under the Penal Code Act and other enactments, it subjects ordinary civilians to criminal prosecutions that have no safeguards of a fair trial and proper administration of justice, the ensuring of which is a constitutional duty of the DPP. This is inconsistent and in contravention of the intent, purpose and overall spirit of articles 28(1), 126(1), and 210(b) of the constitution.”

The main argument by activists and the Opposition has been that court martial isn’t an independent tribunal since President Museveni directly controls it, something the majority of the justices agreed with.   
“The General Court Martial, therefore, is a specialised court set up by Parliament and clearly is not part of the Judiciary. It is part of the Executive arm of government established under Chapter 12 of the Constitution which provides for the country’s defence and national security,” Justice Kasule, who has defined himself as a maverick ever since he joined the court in 2013, wrote. 
“Several attempts by the Executive to place the General Court Martial on the same footing as courts of judicature has in my view originated confusion and discord among jurists, legal practitioners and scholars. It’s simply trying to fit a square peg in a round hole.”    
The judgment triggered celebrations from Opposition politicians led by Dr Besigye who were charged before the military court, but legal experts have been cautious, insisting this judgment might be a one-off or doesn’t go too far.

“I, therefore, think that the much-feted Kabaziguruka decision doesn’t depict a revival or resurrection of the constitutional carcass. The so-called revival is a passing fad and well-calculated response to a military junta on steroids. We are witnessing merely another episode of judicial politics of Uganda, this time characterised by a revolt against presidential interference in the career progression of some senior judges,” Ssemakadde says.
Walubiri echoes more or less similar sentiment, explaining that the judgement showed how there are progressive elements at the court, but still there are judges still stuck in past.  

One has to look at the dissenting judgment in which Justice Christopher Madrama relied on the previous precedent to uphold the idea that civilians can be tried under martial law.   
Justice Madrama cited the Supreme Court case of Hadijah Namugerwa vs the Director of Public Prosecutions (DPP) and the Attorney General. 

Deputy Chief Justice Richard Buteera.

A private citizen, Namugerwa in 2012, challenged the trial of her brother Mohamed Ssali, a civilian, in the military court. Unlike Kabaziguruka who went through the Constitutional Court, Namugerwa used the High Court route which proved unsuccessful.  
Both the High Court and Court of Appeal didn’t see merit in her case and she took the battle to the Supreme Court, where she wasn’t successful either.  
“…it is clear to me that civilians in Uganda can become subject to military law and once they become subject to military law, they will be tried by the General Court Martial, ” Justice Jotham Tumwesigye, who has since retired, wrote in the lead judgment.
“Therefore, until Section 119(1) (g) and (h) of the UPDF Act is repealed or declared to be unconstitutional by a competent court, it will remain valid, effective and enforceable regardless of the misgivings of human rights advocates about it.”

Justice Madrama, whose minority judgement was supported by Justice Stephen Musota, didn’t see any need to strike down section119 (1) (g) and (h) as Kabaziguruka had asked them. 
“In my view, any civilian who is subject to military law can commit a service offence whether under the UPDF Act or any other act,” Justice Madrama ruled. “I’m unable to see any exemption of civilians from the application of section 179 of the Act once they become subject to military law under section 119 (1) (g) and (h)of the Act. Ordinarily, civilians who are not involved in fighting wars should be tried by civilian courts, not military courts. Therefore, section 119(1)(g) and (h) of the UPDF Act is rather usual, However, the constitutionality of this section was upheld by the Constitutional Court in Uganda Law Society Vs Attorney General.”

Going by the majority judgment, it also clear that there are situations where even after these judgments civilians might be tried under the military court. 
In their final orders, the justices said Section 119(1)(g) of the UPDF Act is not unconstitutional provided the person not otherwise subject to military law is tried as an accomplice together with a person who is subject to military law as the principal offender on the same charge sheet. 

“The Constitutional Court should not be applauded for delivering what is essentially a juristic counterfeit that will continue to expose civilians to the dreaded dungeons of the NRA military junta through arbitrary classification as ‘an accomplice’ of a person subject to military law,” says Ssemakadde.