Chief Justice Alfosne Owiny-Dollo/ PHOTO/ ABUBAKER LUBOWA
At 3:30pm Friday, Chief Justice Alfonse Owiny-Dollo dropped a bombshell by pronouncing a majority judgment of the Supreme Court nullifying with immediate effect all ongoing prosecutions of civilians in the General Court Martial and the military courts as unconstitutional.
According to the justices of the court, the General Court Martial, the Division Court Martial, and the Court Martial Appeal Court don’t exhibit “independence and fairness” while dispensing justice since they derive their powers from the High Command, yet the Constitution which is the supreme law of the land, demands a fair and impartial trial for every citizen.
“All charges, or ongoing criminal trials, or pending trials, before the courts-martial involving civilians must immediately cease and be transferred to the ordinary courts of law with competent jurisdiction,” Chief Justice Dollo ruled in the majority judgment receiving a thunderous uproar from the curious opposition politicians and human rights activists present in court.
Justice Elizabeth Musoke. PHOTO/ ABUBAKER LUBOWA
Adding: “The provisions of the UPDF Act constituting and providing for the trial procedure of the GCM, the Division Court Martial, and the Court Martial Appeal Court, do not contain any or sufficient constitutional guarantees and safeguards for them to exercise their judicial functions with independence and impartiality, which is a prerequisite for fair hearing provided for under Arts. 21, 28(1), 44(c), and 128(1) of the Constitution.
"Imagine me, the Chief Justice of Uganda who has never done any military training to lead a battlefield and defend the country against an enemy."
The Chief Justice clarified that the judgment of the court shall have no retrospective effect on any conviction made, and sentences imposed, prior to the date of this judgment; save where the conviction and sentence are being challenged in a court of law.
The much-awaited verdict of the highest court in the land will now among others see former four-time presidential candidate Dr Kizza Besigye, his aide Hajj Obeid Lutale, lawyer Eron Kiiza, hundreds of opposition supporters especially the youth found wearing the Red beret of the National Unity Platform (NUP) and Karamoja warriors out of the death jaws of the military courts.
The landmark judgment of the court didn’t only bring smiles onto the faces of civilians being tried before the military courts but also to soldiers who face criminal cases that fall under civilian jurisdiction.
“This judgment shall have no retrospective effect on any conviction made, and sentences imposed, prior to the date of this judgment; save where the conviction and sentence are being challenged in a Court of law. All pending trials, or partly heard criminal cases, that fall under the civil law courts jurisdiction, which are against members of the UPDF who are subject to service law must be transferred to the civil Courts with competent jurisdiction,” held the Chief Justice.
The other justices who concurred with the Chief Justice are Mike Chibita, Catherine Bamugemereire, Night Percy Tuhaise, Faith Mwondah, and Elizabeth Musoke.
Justice Monica Mugenyi is the only judge who dissented.
Shortly after the rendering of the decision, ululations filled the Supreme Court premises mainly by the opposition politicians and human rights activists.
Justice Night Percy Tuhaise. PHOTO/ ABUBAKER LUBOWA
MP Medard Sseggona, one of the defense lawyers to former MP Michael Kabaziguruka, the petitioner in this matter, said the scarecrow that the current regime used to use against the opposition is now down.
“This (military court) has been used as a scarecrow to suffocate descent in this country. If you knew the hundreds of young men detained in various prisons and those alive ones who didn’t die, detained in various prisons for wearing a red beret. So at least as of today, which has been crashed. That scarecrow has been brought down and we thank the justices for the bold decision they have rendered,” Mr Sseggona said.
Adding: “It was a bold decision because when Museveni speaks, people must run away. So never stop trying. We pray for those who suffered injustice at the hands of court-martial. We have been consistently referring to this outfit as a kangaroo establishment,”
Mr Erias Lukwago, one of the defense lawyers of incarcerated Besigye, said the Monday re-convening of the General Court Martial will be illegal, before calling upon the concerned authorities to free his client immediately.
L-R: Lawyers Erias Lukwago, Caleb Alaka, Medard Lubega Sseggona and Samuel Mulindwa Muyizi celebrate after the Supreme Court ruling on the jurisdiction of the military court to try civilians on January 31, 2025. PHOTO/ ABUBKAER LUBOWA
Background
The decision of the court arose when former Nakawa East MP Kabaziguruka petitioned the Constitutional Court challenging his arrest and trial before the General Court Martial alongside others with offenses under the Uganda People’s Defence Force (UPDF) Act; with offenses relating to security and treachery to overthrow the government by force of arms.
The state had claimed that Mr Kabaziguruka infiltrated the UPDF or was an agent of a foreign power or any force engaging in war or war-like activities against the government.
Justice Mike Chibita. PHOTO/ ABUBAKER LUBOWA
He objected to his trial in the General Court Martial, contending that he was not subject to military law as he had no military connection and also that the military court was not a competent Court under the Constitution to try any of the offenses with which he was charged.
The General Court Martial overruled his objection.
This prompted him to petition 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 over the charges against him, as being inconsistent with the Constitution.
Justice Monica Mugenyi. PHOTO/ ABUBAKER LUBOWA
In the majority decision of 3:2, the justices of the Constitutional Court (the late Kenneth Kakuru, Hellen Obura, and Remmy Kasule with Christopher Madrama and Stephen Musota dissenting) ruled that although the Court Martial is a competent court, its powers are limited to serving officers of the Uganda People’s Defence Forces (UPDF).
The justices ordered that the files for all civilians facing trial before the General Court Martial be transferred to civil courts through the office of the Director of Public Prosecutions (DPP) within 14 days.
They also ordered that all civilians serving sentences imposed by military courts have their files transferred to the High Court criminal division for either retrial or handling as the court deems fit.
However, the Attorney General, being dissatisfied, appealed the ruling at the Supreme Court and also asked for a stay of the implementation of the aforementioned Constitutional Court orders, which prayers were granted.
This gave the military courts a sigh of relief and continued to prosecute civilians until Friday (January 31, 2025) afternoon when the final court in the land declared that it was unconstitutional to try civilians in military courts.
Chief Justice’s advisory orders
The Chief Justice, in his advisory orders, said the people of Uganda pronounced themselves in the course of the making of the 1995 Constitution, expressing their fervent desire to break from the ugly past that characterized life in our country, especially the grave abuse of human rights by the military.
He added that the Ugandan military has since been transformed into a professional force; and it has made a remarkable contribution to ensuring regional peace, security, and stability.
“It is rather contradictory and rather disconcerting for a military Force built on new and commendable professional dispensation to operate under the same legal framework that failed to check or avert military abuse of power; with unspeakable ramifications,” he advised
Adding: “The 1995 Constitution provided the new wine, which the UPDF Act has instead, through the impugned provisions of the Act, sought to store in old Wine skins as it were. This is in blatant negation of the aspirations, desire, hope, and wishes of the people of Uganda,”
Leader of Opposition in Parliament, Joel Ssenyonyi (C) shakes hands with former Nakawa MP Michael Kabaziguruka as NUP secretary general, David Lewis Rubongoya (L) looks on as they waited for the Supreme Court judgment on the jurisdiction of military court in trying civilians. PHOTO/ ABUBAKER LUBOWA
Reacting to the landmark decision, the Uganda Law Society said the Supreme Court has now settled a 25-year judicial rigmarole regarding the trial of civilians in military courts.
“Justice delayed has been justice denied for countless Ugandans who have suffered under the dark shadow of military justice. The wounds inflicted by this system –particularly in regions like Karamoja, will require more than just judicial proclamations to heal,” Mr Isaac Ssemakadde, the president of the lawyers said last evening.
Equally, the Leader of Opposition in Parliament, Mr Joel Ssenyonyi said: “I sought to move a Private Members Bill to make changes to the UPDF Act. The amendments are before the committee and what I was seeking to amend is something very slight and related. So the government should run very quickly through the AG to bring these amendments to the UPDF Act. It is no longer an issue of the private member wishing it is an order of the Supreme Court.
UTILITY
In his judgment, the Chief Justice went on to make several recommendations to the Executive and Legislative arms of government for consideration as a viable alternative in the establishment of the military courts;
(a) 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 offenses falling under their jurisdiction.
(b) Limit the functions of Unit Disciplinary Committees (UDCs) and Summary Trial Authorities (STAs) to handling strictly disciplinary offenses, with no power to impose sentences of imprisonment.
Justice Catherine Bamugemereire. PHOTO/ ABUBAKER LUBOWA
(c) Utilize the existing magistracy to handle the rest of the criminal cases (other than disciplinary offenses) 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 offenses attracting life imprisonment and 25 below). Or;
(d) 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 offenses triable by subordinate courts and 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 offenses of a capital nature and all other capital offenses under existing laws, committed by military personnel. Or
(f) Provide in the UPDF Act for the High Court to sit as a Court-Martial with the power to try all criminal capital offenses within the High Court jurisdiction, and those unique to the military that attract a maximum of life and death sentences. Grant the Chief Justice the 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 offenses of a subordinate Court.
The General Court Martial chaired by Brig Gen Freeman Mugabe during proceedings recently
(g) Make provision in the UPDF Act for the trial of civilians in military courts to be only under limited circumstances; and only after the State has concretely demonstrated to the court by verifiable facts, and by objective and serious reasons, the need and justification for recourse to the military court. This must only apply where in relation to the specific class or category of persons and offences in question, ordinary courts are not in a position to undertake such a trial.
(h) Make provision in the UPDF Act for appeals from military courts and tribunals, corresponding to appeals in ordinary Courts.
