Chief Justice Alfonse Owiny-Dollo. Photo | Abubaker Lubowa
Though in the previous months the pressure had been mounting for the Supreme Court to deliver a judgment on the legality of trying civilians in the General Court Martial (GCM), Chief Justice (CJ) Alfonse Owiny-Dollo, sources say, remained unfazed.
The Judiciary headquarters had become a scene of anti-military justice activists. Late last year, Kampala Lord Mayor Erias Lukwago, acting as Dr Kizza Besigye’s lawyer, who has been facing charges such as treachery at the GCM, had led a team of lawyers keen to have a face-off with Owiny-Dollo for allegedly dragging his feet. They didn’t get to meet the Judiciary head.
When the GCM summarily imprisoned Eron Kiiza, Dr Besigye’s lawyer, for nine months, activists led by Agather Atuhaire once again tried to meet the CJ, only to be confronted by mean-looking police officers at the Judiciary headquarters. On the other hand, Isaac Kimaze Ssemakadde, the Uganda Law Society (ULS) president, had indicated that he would seek a second interface with CJ Owiny-Dollo to get to the bottom of why the Attorney General’s appeal against Michael Kabaziguruka’s victory at the Constitutional Court—where the trial of civilians at the GCM was annulled—was still on the back burner.
Yet this pressure—per sources close to the CJ—couldn’t make him hurry the other six justices: Mike Chibita, Catherine Bamugemereire, Night Percy Tuhaise, Elizabeth Musoke, Monica Mugenyi, and Faith Mwondha.
According to several sources who spoke on condition of anonymity, Owiny-Dollo said yielding to the pressure would have resulted in delivering half-baked judgments. The CJ’s thinking, according to sources, was that even if his court took time to deliver the much-awaited judgment, coming during an electioneering year, what mattered most was that it should come when it’s thorough.
“The judgment has consequences: You can’t just panic the justices. They need time to analyze the issues well,” a source close to the CJ told us.
The first recorded attempt at stopping the trial of civilians in the GCM that went all the way to the Supreme Court was Hadijah Namugerwa versus the Director of Public Prosecutions (DPP) and the Attorney General. Namugerwa, who was represented by human rights lawyer Ladislaus Rwakafuuzi, filed a Habeas Corpus seeking the release of her brother, Mohamed Ssali, from Kigo prison on the account that he wasn’t subject to military law since he was a civilian.
In 2011, Ssali, along with two others, had been charged before the GCM with aggravated robbery and two other offenses relating to the Firearms Act.
The charge sheet drawn up against him had three counts. Count one was aggravated robbery, contrary to Sections 285 and 286(2) of the Penal Code Act. The particulars of this count were that Ssali and two others, on January 14, 2011, at about 10:30 PM at Makindye in Kampala District, robbed Edison Nuwamanya of a motorcycle using a pistol, which is ordinarily a monopoly of the Defense Forces.
At the High Court, Justice Vincent Zehurikize tossed out the application, saying that since Ssali had what was essentially a monopoly of the army, he was rightly before the Court Martial under Section 119(1)(g) and (h) of the UPDF Act.
Section 119(1)(g) and (h) of the UPDF Act stipulates:
“...every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offense; and (h) every person found in unlawful possession of (i) arms, ammunition, or equipment ordinarily being the monopoly of the defense forces; or (ii) other classified stores as prescribed, is subject to military law, and can be tried in military courts as appropriate.”
This section has given the circumstances in which the GCM has been having jurisdiction over civilians, and appeals against the decisions of the GCM lie to the Court Martial Appeal Court, which is the final appellate court, excluding cases where the wrongdoer is penalized with death or life imprisonment.
Namugerwa dashed to the Court of Appeal, where Justices Alice Mpagi-Bahigeine, Augustine Nshimye, and Stella Arach-Amoko weren't successful, either. Namugerwa still went to the Supreme Court, where Justice Jotham Tumwesigye offered anti-military justice activists some blunt advice. Challenge Section 119 in the Constitutional Court, he counseled, or the army would continue to prosecute civilians.
“...it is clear to me that civilians in Uganda can become subject to military law, and once they become subject to military law, they will be tried by the General Court Martial,” Justice Tumwesigye further noted, adding, “Therefore, until Section 119(1)(g) and (h) of the UPDF Act is repealed or declared to be unconstitutional by a competent court, it will remain valid, effective, and enforceable regardless of the misgivings of human rights advocates about it.”
But still, the legal jockeying didn’t stop.
One of the issues that have consistently emerged is the Court Martial presenting itself as parallel or alternative to the Judiciary in administering justice in Uganda. President Museveni has perpetuated this narrative. Late last year, at the height of the debate on the legality of subjecting civilians to military laws, Mr. Museveni equated the GCM to the Judiciary when he gave this military tribunal a Kinyankore term— Ekyokyeero (reinforcement).
Justice Owiny-Dollo, in his lead judgment, said:
“I would therefore hold that the General Court Martial is not merely a complementary court to ‘civil’ courts. It is established as a court, which is, however, seized with a specialized jurisdiction. I will advert to this in this judgment. Suffice to note here that the complementary nature of the GCM and military courts, in general, stems from the unique functions of the UPDF as reflected in Article 209 of the Constitution and the unique needs of the military.”
The CJ, who will be hanging up his wig early next year as Uganda goes to the polls, would later use flowery language:
“Anyone without any professional training can become a judge in army courts, which is akin to picking any lawyer in town and taking them to the theater to operate on patients, yet the lawyer might not even know the difference between a kidney and a liver.”
Justice Musoke on Friday made it clear that since members of the UPDF who preside over the GCM aren’t trained lawyers, they can’t preside over cases like treason, treachery, and murder that could potentially result in the death penalty.
“The General Court Martial is limited to hearing matters of the army, and it has limitations like lack of independence and lack of training of its members in legal matters,” Justice Musoke ruled, a position akin to what Justice Remmy Kasule ruled when the case was at the Constitutional Court.
Abridged reaction of President Museveni to Supreme Court ruling
"I was sorry to hear of the wrong decision by the Supreme Court in the matter of the fire-arms armed civilians being tried by the Military Court Martial. This is a method which we, the freedom fighters, support because it reinforces the Civilian Judicial System to defend the lives of our people against criminals armed with guns.
If you are not a soldier, why do you arm yourself with guns and, moreover, for criminal purposes and illegally, that are a monopoly of the Armed Forces?
There appears to be some positive movement among our foreign-oriented judges even in this matter.
First, Justices Chibita and Mugyenyi sided with the logic that we, the simple people, understand and supported the guns-armed criminals being tried in the Court Martial. Salutations to those two judges.
Secondly, even the CJ ruled that the Court Martial could be used if adjustments are done here and there. I salute that contribution. Even the others who ruled against us had some interesting comments that will be followed up, which point towards the need for some rationalisation in the procedure of trying civilians in the Military Courts.
Somebody wondered why even a soldier should be tried in a Military Court for rape. We shall analyse all that. However, one of the aims of the military courts is to protect the Army against crime and to ease procedures.
How easy will it be to try soldiers who have stolen Army rations in civilian courts because stealing is an offence in the penal code? Why not try them in the military court with a right to appeal to the higher National Courts if you are not satisfied?
The Military Courts helped us to discipline Karamoja. We cannot and will not abandon this useful instrument for stability. Civilian magistrates were even fearing to go to Karamoja.
The Military Courts have pacified Karamoja and also saved the thousands of Karachunas (warrior youths) that are now guests of the State in the Prisons, who could probably be dead by now in their confrontations with the Army.
Anyway, the country is not governed by the judges. It is governed by the people—all of us Ugandans that are old enough to vote. In the matter of the Constitution and other legislations, we govern ourselves by having referenda or Constitutional amendments or amendments of the laws by Parliament.
The judges interpret the laws. Let, therefore, the Attorney-General propose the amendments to the Constitution of the laws to help our judges in the future from interfering with this useful self-protection instrument for the Country and also remove any irrationalities, if any.
If jurisdictions in the Western Countries can provide that a man can marry another man or a woman another woman, why can’t ours provide that a criminally minded civilian that acquires a gun for criminal intentions be tried in a Military Court?
Back to some of our Judges, the rape, corruption, etc., cases are tried in Military Courts to protect the institution of the Army. The guns-armed illegal operators should be tried, initially, in Military Courts to protect the society."
