NUP supporters in the dock at the General Court Martial in Makindye, Kampala. PHOTO/ FILE
When, in late January, the Supreme Court ended the trial of civilians in military tribunals, saying the politically charged High Command was remotely controlling them, there was a quick rebuff from the Chief of Defence Forces (CDF), Gen Muhoozi Kainerugaba, and his surrogates within the army.
Before the official army mouthpiece, Maj Gen Felix Kulayigye, could react, Col Chris Magezi, who is Gen Muhoozi’s communication officer, fired the first shot by insisting that the Supreme Court would be ignored.
Col Magezi, in a communication titled UPDF official statement, insisted that the General Court Martial (GCM) would continue to try anyone who conspired to murder the President, commits armed rebellion against Uganda and engages in terrorism against the people of Uganda.
In specific terms, Col Magezi said under no circumstances would Opposition doyen Dr Kizza Besigye—who had been battling wide-ranging charges at the GCM, including being in possession of a pistol—be released unless he faces the full extent of martial law. Col Magezi’s last sentence was that President Museveni would have the final say on Dr Besigye’s fate; not the Supreme Court.
While Dr Besigye’s file was transferred to the High Court’s division after he went on a hunger strike, the government has so far refused to release or transfer files of many civilians who had been charged in the GCM. Col Magezi’s boss, Gen Muhoozi, supported the foot-dragging, going as far as asking the Supreme Court to offer him an apology for the judges for clipping the wings of military tribunals.
“If I don’t get that apology quickly, other things will follow,” Gen Muhoozi wrote on X (formerly Twitter). As if that wasn’t enough, in February, when Gen Muhoozi was giving his speech during the Tarehe Sita celebrations in Kyotera District, he beseeched his father—President Museveni—to move fast on the issue of the GCM.
“I will not go into details. We shall discuss this in the High Command. But Your Excellency, this development is very unfortunate and quite unacceptable. It could herald a national security crisis threatening the effective command, control, and administration of defence forces,” Gen Muhoozi said.
President Museveni commissions a book during the 44th Tarehe Sita anniversary in Kyotera District on February 6, 2025. Looking on is first son and military chief Gen Muhoozi Kainerugaba. PHOTO/COURTESY/PPU
Gen Muhoozi added that he was working with the Attorney General and the Ministry of Defence to come up with amendments in the Uganda Peoples’ Defence (UPDF) Act that would see that civilians are tried in the GCM after fixing issues raised by the Supreme Court.
A case for the GCM
The much-awaited amendments were finally tabled in Parliament this past week by Mr Jacob Oboth-Oboth, the Defence minister, who was flanked by Attorney General (AG) Kiryowa Kiwanuka. The AG insisted that during the Supreme Court hearings, there was no actual proof that the court martial was not independent or impartial.
Mr Kiwanuka told the Supreme Court that the fairness in the court martial is assured because the members of this military court take an oath to uphold the Constitution and administer justice. Though Chief Justice (CJ) Alfonse Owiny-Dollo agreed with AG Kiwanuka on the role of oath taking, the former clarified that this subjective undertaking of exercise of duty is only truly guaranteed when it operates alongside objective safeguards. The safeguards in question can satisfy a reasonable person that the appearance of partiality is eradicated.
Back then, CJ Owiny-Dollo said military courts had no legally qualified personnel on their Coram; yet their jurisdiction is not limited only to disciplinary breaches. It also extends to crimes or offences that are also triable by the civil courts. He said these included serious offences that attract a custodial sentence of over six months, and the death penalty. “In our jurisdiction, the absence of legally trained personnel in the exercise of judicial power in the GCM and the other military courts or tribunals is at variance with the situation obtaining in the civil courts,” CJ Owiny-Dollo said.
He added: “The civil courts are competent as they meet the standards laid down in the Constitution; while the courts martial function in sharp converse thereto, and this is inimical to the right to a fair hearing before an independent and impartial court. Hence, it adversely discriminates against persons who appear before the courts martial. The consequence of this is that it renders the functioning of the courts martial unconstitutional.”
To fix CJ Owiny-Dollo’s queries, the amendments provide that the head of the GCM shall be a person qualified to be appointed a judge of the High Court. What is problematic to many legal gurus Monitor spoke to is that the person in question will still be a soldier ranking not below the level of a brigadier.
Still, to fix the illegalities pointed out by the Supreme Court, the amendments provide that two members of the GCM shall be advocates of the High Court who will be at least at the rank of colonel.
Hajj Obeid Lutale and his co-accused Dr Kizza Besigye in the dock at the General Court Martial in Makindye, a Kampala suburb on December 2, 2024. PHOTO/ ABUBAKER LUBOWA
Another layer in the amendments intended to fix issues raised by the Supreme Court proposes that officers who adjudicate matters in the court martial be accountable to what is termed as Disciplinary Committee.
The said committee shall be constituted by the High Command in consultation with the Judicial Service Commission (JSC)—which is constitutionally charged with recruiting judicial officers in civil courts.
Not convinced
Several legal experts have, however, insisted that the amendments aren’t enough to fix the loopholes detected by the Supreme Court. “Military courts may try civilians only in rare, exceptional, and strictly justified cases. Even in a case where civilian and military personnel have committed a crime, both should be tried in civil courts....The State must strengthen ordinary courts, not bypass them,” Mr Denis Kusaasira, a partner with ABMAK advocate, opined. Clause 30 of the Bill purports to define exceptional circumstances for military trials of civilians.
These include civilians found in possession of firearms, civilians accused of committing robbery, murder, treason, and other crimes, civilians accused of cattle rustling, kidnapping, and found in possession of a UPDF uniform, inter alia.
Chief Justice Alphonse Owiny-Dollo (C) speaks during a Supreme Court session to deliver a landmark ruling on the trial of civilians in military courts in Kampala on January 31, 2025. PHOTO/ABUBAKER LUBOWA
Mr Kusaasira insists that this does not satisfy the special circumstances described by the Supreme Court. When he appeared before the parliamentary committee in defence of fast-tracking the amendments, AG Kiwanuka equated the court martial to a baby who needed to be saved.
“Without any fear of contradiction, the Supreme Court didn’t at any point say that civilians can’t be tried in the court martial. Different judges went through it in different ways and concluded that the court martial... was not constitutionally set up to try civilians,” he said. Yet, when he concluded his judgment, CJ Owiny-Dollo said the court martial should be restricted to disciplinary cases only, even when it comes to soldiers.
