President Museveni
The lawyers claim that there is a possibility that the President is seeking to influence the outcome of a contentious matter before the Supreme Court on whether the General Court Martial is clothed with jurisdiction to try civilians.
The sub-judice rule is a legal principle that prevents the public and any persons from discussing ongoing legal proceedings in a way that could prejudice the outcome of the case, which is intended to protect the integrity of the legal process.
For instance, the President claimed that the military courts are at the same level as other courts of judicature.
“I have seen the arguments in the paper by some lawyers regarding the correctness of some civilians being tried in the [General] Court Martial. I want to affirm that, that move was correct and useful and it has contributed to the stabilisation of Uganda. Why? 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,” Mr Museveni argued in a letter, which comes on the heels of a combustible debate about the trial of civilians in military courts.
The trial of civilians in military courts has stoked resentment on the basis that proceedings are outside the purview of the standards of a fair trial — which is non-derogable in the Constitution, and sacrosanct in the dispensation of justice, according to international human rights law.
The prosecutors at the court martial have also been accused of lacking elementary legal skills in evaluating the complexities of evidence.
The President’s comments coincide with the appearance of his foe, Dr Kizza Besigye, in the General Court Martial in Makindye after the Opposition doyen was recently arrested in Nairobi, Kenya, and renditioned to Kampala.
But the Uganda Law Society (ULS) president and other lawyers accused Mr Museveni of using the presidential pulpit to pontificate through a letter, which clashes with the rule of sub-judice, the doctrine of separation powers, and is in contempt of court decisions.
Separation of powers is the doctrine and practice of dividing powers of government among different branches to guard against abuse of authority.
Among the objectives that resulted in the promulgation of the 1995 Constitution were the need to recognise and demarcate the division of responsibility among the State organs of the Executive, Legislature and Judiciary and create viable checks and balances between them.
The ULS president, Mr Isaac Ssemakadde, in his response, claimed that the President’s letter is “repugnant and a blatant assault on the rule of law, which is the handiwork of... Attorney General, Kiryowa Kiwanuka. It also jeopardises the achievement of the objectives of the Jumuiya treaty, whose anniversary you celebrated last month in Arusha.”
Mr Ssemakadde opined further: “With great respect, your position disregards at least two judgments of the Uganda Constitutional Court and an excruciatingly delayed constitutional appeal in the Supreme Court. Article 99 and 128 of the 1995 Constitution require you to use the presidential pulpit to promote respect for court and processes, especially those that conflict with NRM policy, ideology or laws.”
On December 15, 2022, the Constitutional Court delivered a ruling in the case involving retired Capt Amon Byarugaba and others versus the Attorney General.
Byarugaba spent more than 10 years on remand on charges of treason and concealment of treason after he was accused of being part of the alleged Peoples’ Redemption Army (PRA)—an alleged rebel outfit based in the Democratic Republic of Congo (DRC).
In 2015, Byarugaba was found guilty by the court martial and sentenced to one year in prison.
Justice Elizabeth Musoke, who wrote the lead judgment, said: “The framers of the 1995 Constitution permitted Parliament to create such subordinate courts as it would deem fit.”
Whereas the Deputy Chief Justice, Richard Buteera and Justice Monica Mugenyi, dissented, Musoke opined further: “Accepting, as I do, that this is the true construction of Article 129 of the 1995 Constitution, it is, in my view, incontrovertible that military courts are not courts of judicature in terms of Article 126 (t) and 129 (1)(i) and that as a general rule, such military courts have no role in the administration of justice for civilians. They are neither superior courts nor subordinate courts.”
In a related case, which has similar issues and facts to the Byarugaba case, former Nakawa MP Michael Kabaziguruka petitioned the Constitutional Court in 2016, challenging the trial of civilians in military courts after being arraigned before the Makindye-based army court on allegations of attempting to overthrow the government.
He refused to take plea and to apply for bail before the military court arguing that his trial was unconstitutional and he was denied the right to a fair hearing, which is non-derogable as provided in Article 44 of the Constitution.
In 2021, the majority of the coram of the Constitutional Court justices comprising the late Kenneth Kakuru, Hellen Obura, and Remy Kasule (with Madrama and Musota dissenting), ruled that though 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 retrial or handling as the court deems fit.
However, the Attorney General appealed the ruling at the highest appellate court.
The Supreme Court in its ruling on August 5, 2021, okayed the prayers of the Attorney General and ordered a stay of execution.
This meant that the military courts would continue prosecuting civilians until the determination of the main appeal which is now still pending delivery.
The Kabaziguruka case was heard in 2021 but two justices; Stella Arach-Amoko and Ruby Opio Aweri died, and Justice Faith Mwondha retired in 2024.
However, in 2023, another coram was empaneled and the matter was heard but the judgment is yet to be delivered in what some lawyers have claimed is a travesty of justice.
Lawyer George Musisi’s views bore parallels with the response of the ULS president.
“The letter raises strong issues of sub-judice, as the country awaits the Supreme Court decision, commentary on a case before court coming from the highest office in the land can certainly have the effect of influencing the judgment,” Musisi argued. “The President doesn't seem to know that the Constitutional Court has loudly pronounced itself on this matter. For him to continue asserting the legality of the trials is certainly contemptuous of the court. The comments are meant to sanitise the continued unlawful trials of civilians and empower the army to continue on this unlawful trend. The Supreme Court should boldly stand against these intended prejudices.”
Lawyer Peter Walubiri told Daily Monitor that it would be unfair to judge the President by the standards of what is expected in a country that respects the rule of law and the fair trial of suspects.
“Well, Mr Museveni has been very consistent in his contempt for civilian courts and his preference for military tribunals. He has never believed in the rule of law and fair trial. He believes he is the law; he is not a rational leader. He has contempt for court and every institution,” he says.
Mr Walubiri says the President falsely claimed that military courts expeditiously dispense justice.
“Ask those [NUP supporters] who were arrested in 2021 some of whom were forced to confess in the court-martial, how long they were detained before trial. His statement is not based on facts, his argument is very hollow. This is absurd,” he says.
Mr Museveni argued that the civilian courts were clogged with many court cases including ‘murders, rape, assaults, robbery, land matters, and divorce matters, among others.
“They [civilian courts] could therefore not handle these gun-wielding criminals. Yet for stabilisation, you need speed. Moreover, these individuals, although not soldiers, voluntarily and with evil intentions acquired killing instruments that should be the monopoly of armed forces, governed by the relevant law. That is why the law provided that since you became a soldier, albeit an illegal one, be tried by a court-martial because it is the only one that deals with guns,” the President says.
However, Mr Ssemakadde says: “Your justifications—citing clogged courts, and the need for speed - are transparent excuses to circumvent due process and undermine the integrity of Uganda's Judiciary. Recourse to a referendum is no defence for an unconstitutional act: See Article 92 of the Constitution. Twenty years ago, the courts nullified the Referendum Act through which you had sought to entrench the Movement system. They will swiftly do the same to your attempts to validate this repugnant militarism.”
