Justice Owiny-Dollo’s legacy as Chief Justice could hinge on this case. PHOTO | FILE
In the wake of back-to-back Constitutional Court judgements annulling the trial of civilians in military courts, the Supreme Court will, on Friday, have a say in a judgement that will perhaps define the legacy of Chief Justice Alfonse Owiny-Dollo, who will hang up his wig early in 2026.
Justice Owiny-Dollo’s legacy as Chief Justice could hinge on this case because ever since he took over the reins of the Supreme Court in 2020 no life-changing judgment has come out of the highest court of the land. He had a chance to determine the presidential petition challenging President Museveni’s victory but he couldn’t because the petitioner, National Unity Platform ( NUP) principal Robert Kyagulanyi Ssentamu popularly known as Bobi Wine withdrew the petition citing bias of the supreme court bench. While it’s hard to determine which other critical cases the Chief Justice will determine before he retires in January of 2026 it’s hard to imagine a case with graver ramifications than this one.
The timing of this judgement puts this Supreme Court panel that includes Justice Owiny-Dollo, Faith Mwondha, Percy Night Tuhaise, Mike Chibita, Monica Mugenyi, Elizabeth Musoke and Catherine Bamugemereire under immense pressure. Pressure was first piled on the Constitutional Court when it first annulled the trial of civilians in the military courts in 2021 following a 2016 petition filed by former Nakawa Member of Parliament Michael Kabaziguruka, who was facing treason charges and thus facing the possibility of the death penalty.
The Attorney General quickly got a Supreme Court injunction staying the implementation of the judgement. In the same year, the panel that included Alfonse Owiny-Dollo, Stella Arach-Amoko, Rubby Opio Aweri, Faith Mwondha, Prof Lillian Tibatemwa, Ezekiel Muhanguzi and Mike Chibita heard the appeal filed by the Attorney General. But before the judges could write judgements, Muhanguzi retired. To compound matters, Opio Aweri and Arach Amoko passed on in 2022 and 2023 respectively.
Court Martial and civilians
Yet in 2023 the Constitutional Court piled more pressure when it shot down section 119 of the UPDF acts which defined the circumstances under which the General Court Martial (GCM) can try civilians. The key aspect in this law section that the military has been invoking to try civilians is that the Civilians who help military members commit service offences are also subject to military law but the Constitutional Court was having none of that.
"In my view, however, to the extent that Parliament under Section 119 (1 ) (h) extended application of military law to persons not members of the military, it acted unconstitutionally. This is because Article 210 of the 1995 Constitution, under which parliament derived authority provides that parliament may only enact the UPDF Act, expressly 16 move under that provision to legislate on matters concerning members of the armed forces," Justice Musoke ruled.
"…therefore, the impugned provisions of section 119 (1) (h) and 11g (1) (g) of the UPDF Act, are to that extent inconsistent with the 1995 Constitution and therefore null and void. Section 119 of the UPDF Act allows the Court Martial to try civilians on the account of abetting members of the military to abet crimes comes into sharp focus when you consider how the military has gone about the charges preferred against opposition doyen Dr Kiiza Besigye and his long-term political ally Obeid Lutale Kamulegeya.
Besigye’s trial
The duo was charged before a seven-member Court Martial panel led by Brigadier Robert Freeman Mugabe of having taken a pistol to Nairobi, Kenya, Athens, Greece, and Geneva, Switzerland. But it what looked as an afterthought, as this year started, the military added another layer to this case when they not only added the charge of treachery - which upon conviction resulted in the death penalty – but also added a UPDF soldier Captain Dennis Oola, who belongs, to the armoured brigade on Besigye’s charge sheet. This to many legal analysts will be one of the things for the Supreme Court to decide tomorrow: What to do with civilians who are charged alongside UPDF soldiers? Should they remain in the Court Martial or should their files be taken to the civilian court, say the High Court’s Criminal Division?
As usual, the defiance has been led by Besigye, who retired from the army in 2000 amid acrimony and has told Mugabe and his colleagues he can’t take a plea in a military tribunal because he isn’t a serving military officer.
"Mr Chairman, I decline to take a plea," said the sixty-five-year-old.
The Luweero bush war veteran who has challenged Museveni’s hold onto power both at the ballot box and through street protests Besigye’s litany of lawyers during this process have been caught between a stone and a hard place. On one hand, they made it clear that they knew the Court Martial already determined Besigye’s fate since it was remotely controlled by the High command led by President Museveni.
Yet on the other hand, they weren’t sure if a civilian court, like the High Court’s civil division, which they accuse of being littered with regime carders, would intervene to wrestle the file from the military court. Pouring salt into the wound, the Court Martial summarily gave a nine-month sentence to Besigye’s lawyer Eron Kiiza accusing him of contempt.
Kiiza, a civilian, who has for many years challenged the trial of civilians in the Court Martial had entered into an altercation with military officers after they blocked him from representing Besigye and Kamulegeya. Now in Kitalya prisons, his path to freedom, as things stand, will be determined by an Appeals tribunal of the military.
Supreme Court should act
With Besigye’s lawyers at sixes and sevens, the President of Uganda Law Society (ULS), Isaac Kimaze Ssemakadde, made a case that it’s only the Supreme Court that can salvage the situation.
"For the sake of venerable communities like those in Karamoja at risk of continued military repression and human rights abuses, the Supreme Court of Uganda must act with urgency and humanity to deliver the judgement in AG vs Michael Kabaziguruka," said Ssemakadde, who added by asking: "why should the General Court Martial reconvene on February 2025 without the guidance of the Supreme Court?"
The response by the Supreme Court has been that it will deliver the judgement tomorrow but this comes after President Museveni’s son General Muhoozi Kainerugaba, the Commander – of - Defence Forces (CDF), who knew that Besigye was facing a charge in the court martial that can result into a death penalty - used his X ( formerly Twitter) account to send an ominous warning that the regime would hang KB ( Besigye’s initials) on Heroes’ Day.
What is also at stake here is Museveni’s reputation because, for the umpteenth time last year, he made it clear that trying civilians in the military court that he christened Eyokyeero make sense.
"It is the NRM that in the year 2005 enacted this law through Parliament. This was because of the rampant activities of criminals and terrorists that were using guns to kill people indiscriminately," Museveni said.
This is why that law provided that since you became a "soldier," albeit an illegal one, be tried by a court-martial because it is the one that deals with guns.
Colonial history
The military Justice system in Uganda can be traced to the British colonial rule and this started in 1902 when the Imperial Parliament passed the King‘s African Rifles Ordinance in which regiment was instituted and charged with defending East Africa, Uganda, British Central Africa and Somaliland – but when it came to discipline and military justice, two systems applied to the Uganda battalions depending on the situation. When on active service, within the meaning of the Army Act of the Imperial Parliament, the native officers, non-commissioned officers and privates were subject to that Act and Articles of War of the United Kingdom. But when found guilty of any offence under the Army Act of the Imperial Parliament, any native, non-commissioned, or private officer could be punished as provided for under the King‘s African Rifles Ordinance.
When not on active service, a different justice system applied: this consisted of a summary trial by the commanding officer and a trial by courts-martial where the commanding officer deemed it fit. Throughout colonial times and in the aftermath of independence the military courts were preserved for serving military officers but this changed in 1973, when Idi Amin, then the President of Uganda, had increased the jurisdiction of military tribunals to include the trial of civilians accused of committing capital offences.
Ronald Naluwairo, a lecturer at Makerere University’s School of Law who has done a lot of research on the military justice system in Uganda, insists that the most abominable courts-martial in Uganda‘s post-independence history, especially as far as upholding the right to a fair trial is concerned, were those established during Idi Amin‘s regime. Contending that Amin’s tribunals were staffed with illiterate individuals who did not have any basic understanding of the law. Naluwairo says that the unfairness of Amin’s military tribunal can only be compared to Museveni‘s military tribunals under the NRA) Codes of Conduct. If Amin’s military tribunals were unfair then the situation was aggravated when civilians were added to their jurisdiction kickstarting the idea of military tribunals trying civilians, moreover of offences that were not military. When Museveni took over power in 1986 his administration abolished the Court Martial Appeal Court and established the General Court Martial as the supreme trial organ of the military justice system.
"...despite attempts at reform, Uganda‘s current military justice is in many ways still stuck in its colonial origins and falls far too short of complying with the right to a fair trial as understood in international human rights law," Dr Naluwairo says. Now all this will be determined by Justice Owiny-Dollo led tribunal which has been accused of underperforming.
