Chief Justice Alfonse Owiny-Dollo. Photo | Abubaker Lubowa
The country’s apex court yesterday belatedly addressed itself to an appeal by the country’s chief lawyer, Attorney General (AG) Kiryowa Kiwanuka, that contested the Constitutional Court’s ruling on the trial of civilians in military tribunals.
In a 3:2 decision back in 2021, the Constitutional Court ruled that while the General Court Martial is a legally recognised court, its remit is limited to serving officers of the Uganda People’s Defence Forces (UPDF). This was much to the consternation of AG Kiwanuka, who appealed to the Supreme Court.
Chief Justice (CJ) Alfonse Owiny-Dollo yesterday regretted a perfect storm that has contrived to stop the Supreme Court from delivering the eagerly-anticipated judgement. CJ Owiny-Dollo cited a fire that swept through his erstwhile chambers in the leafy Kampala suburb of Kololo.
There were also, he added, sledgehammer blows inflicted by the deaths of justices Ruby Opio Aweri and Stella Arach-Amoko.
Then Justice Faith Mwondha hit retirement age early last year. Thankfully, this was not before she had written her judgement on AG Kiwanuka’s appeal. She concurred with CJ Owiny-Dollo’s ruling, adding: "I have nothing useful to add."
The Chief Justice, inter alia, came to the conclusion that the provisions of the General Court Martial “do not guarantee their impartiality.” In his majority judgement, CJ Owiny-Dollo also declared thus: "All trials and pending trials of civilians in military courts must cease."
Left to right: Justices of the Supreme Court Catherine Bamugemereire, Persy Tuhaise, Chief Justice Alfonse Owiny -Dollo, Michael Chibita, Elizabeth Musoke and Monica Mugenyi during the court’s ruling on trying civilians in the General Court Martial, at the Supreme Court in Kampala yesterday. PHOTO | ABUBAKER LUBOWA
Mr Caleb Alaka, speaking on behalf of the respondents, described the majority judgement as a "bold decision."
Speaking to the media after court proceedings ended, Mr Alaka said it means Opposition leader Kizza Besigye, who is currently on remand in Luzira at the behest of the General Court Martial, "should leave prison today (yesterday)."
Michael Kabazigurka, who challenged the General Court Martial in the Constitutional Court, said yesterday that the military tribunal has hitherto been "used as a tool to silence the Opposition."
Here are some of the excerpts of nuggets from rulings of the seven-member bench of the Supreme Court:
MONICA MUGENYI
The General Court Martial is a competent court of jurisdiction that tries service offences committed by UPDF serving members. Any member of the public who aids and abets a service against UPDF to commit an offence automatically subjects themselves to the jurisdiction of the court martial.
Section 117.1 of the UPDF Act is void for vagueness and, therefore, inconsistent with the right to a fair trial as enshrined in Article 28.12 of the Constitution. Service offences are not at cross purposes with objectives of the UPDF or the legislative mandate of Parliament. I would respectfully propose the following additional advisory order for consideration.
The court martial is substantially composed of civilian judges, who are directly appointed thereto by the Judicial Service Commission (JSC) in accordance with the Constitution as is presently done in respect of judges of the Industrial Court, and the members of the court martial from within the military should be appointed in consultation with the JSC.
CATHERINE BAMUGEMEREIRE
The set up of the General Court Martial cannot give an assurance that they will deliver an independent and impartial judgement. They are all serving army officers who report to their superior. A soldier who commits an ordinary offence should be arraigned before the Civil Appeal as opposed to the military court. In its current form, the court martial is not in a position to guarantee a free and fair trial.
MIKE CHIBITA
The General Court Martial is a subordinate court under Section129 of the Constitution. I would agree that trial of civilians be remitted to civilian courts for review. Applies the principle of prospective annulment and holds that earlier decisions of the court martial should not be interfered with.
NIGHT PERCY TUHAISE
The General Court Martial (GCM) would be competent if it were a court of law with requisite structures to conduct a fair hearing.
Sections 2, 119 and 179 of the UPDF Act are inconsistent with the Constitution and, therefore, null and void. The arraignment of [Michael] Kabaziguruka before the GCM was unconstitutional since he was not at the time a member of the UPDF. The GCM is established under Article 210(b) of the Constitution and, therefore, is not a subordinate court since it is not subject to the supervision of any of the superior courts, including the Supreme Court. The GCM lacks the features of a competent court in terms of competence and impartiality of its officers.
The GCM cannot hold a fair trial due to several deficiencies due to its setup. Its members are incompetent due to lack of legal knowledge. The deficiencies highlighted above render it impossible for the GCM to accord a fair trial to the people who fall within its jurisdiction. It is inappropriate to grant the military courts powers to try offences beyond the discipline of soldiers as all those matters that fall outside that should be tried by courts of judicature. I make the following declarations:
The GCM is not a subordinate court but a disciplinary tribunal; its jurisdiction is limited to matters involving disciplinary offences committed by UPDF members; hearing of civilians offences is not the GCM role; hearing UPDF members cases that attracts imprisonment or death falls within the jurisdiction of courts of judicature.
The GCM is a specialised court established to administer military justice in respect of disciplinary and criminal military offences. While the Constitution sets up the court of judicature directly under Article 129 of the Constitution, the GCM is established by Parliament under the UPDF Act. Legal qualification is not a basis for appointment of members of the GCM.
This is in contrast with the appointment requirements for the courts of judicature where judicial officers are required to have legal qualifications. The legal principle is that any court with jurisdiction to impose a serious penalty should be presided over by qualified persons in order to accord a fair trial under Article 28 of the Constitution and international law principles.
The GCM cannot accord a fair trial. The GCM is not competent to hear criminal matters other than matters relating to discipline of soldiers.
ELIZABETH MUSOKE
I find that the General Court Martial (GCM) is established as a military organ of the UPDF to instill discipline in members of the Force and the nature of the punishment is limited to disciplinary sanctions i.e. dismissal with disgrace.
The GCM exceeds its jurisdiction by trying offences that attract life imprisonment and death. Article 210 restricts the jurisdiction Parliament may confer on the court martial. The jurisdiction must be confined to military disciplinary offences and the imposition of disciplinary sanctions.
The jurisdiction is overstretched by trying civilians who aid and abet the commission of service offence. The jurisdiction of the GCM as currently conferred by the UPDF Act exceeds the constitutional limits under Article 210(b) of the Constitution. Non-members found in possession of prescribed UPDF attire and stores is an overstretch of the jurisdiction of the military courts.
Section 179 of the UPDF Act exceeds the constitutional limits in as much as it confers jurisdiction on the GCM to impose punishment beyond what is contemplated under the Constitution. The GCM is not supervised by any superior courts.
The GCM lacks legal competence of its officers found in other subordinate courts. The provisions of the UPDF Act, which empowers the GCM to try civilians, are unconstitutional and inconsistent with Article 210(b) of the Constitution.
Section 2, 119 and 179 of the UPDF act are inconsistent with the constitution and, therefore, null and void. The arraignment of [Michael] Kabaziguruka before the GCM was unconstitutional since he was not at the time a member of the UPDF.
The GCM is established under Article 210(b) of the Constitution and, therefore, is not a subordinate court since it is not subject to the supervision of any of the superior courts, including the Supreme Court. The GCM lacks the features of a competent court in terms of competence and impartiality of its officers. The GCM cannot hold a fair trial due to several deficiencies due to its setup. Its members are incompetent due to lack of legal knowledge.
The deficiencies highlighted above render it impossible for the GCM to accord a fair trial to the people who fall within its jurisdiction. It is inappropriate to grant the military courts powers to try offences beyond the discipline of soldiers as all those matters that fall outside that should be tried by courts of judicature.
I make the following declarations: The GCM is not a subordinate court but a disciplinary tribunal; its jurisdiction is limited to matters involving disciplinary offences committed by UPDF members; hearing of civilians offences is not the GCM role; hearing UPDF members cases that attracts imprisonment or death falls within the jurisdiction of courts of judicature.
