Uganda Law Society (ULS) president Isaac Ssemakadde meets Chief Justice Alfonse Dollo-Owiny (left). PHOTO | FILE | UGANDA LAW SOCIETY
Months after the Supreme Court pulled the proverbial plug on trying civilians in military tribunals, the Uganda Law Society (ULS) has dashed to the East African Court of Justice on account that the country’s apex court left some nuts loose, which need to be tightened.
In the case where the Attorney General has been attached as a respondent, the ULS concedes that, while the Supreme Court judgment made a significant step forward in protecting civilians from military courts, it fell short of fully addressing the systemic issues and ensuring the highest standards of the rule of law, human rights protection, and democratic accountability envisaged by the East African Community or EAC Treaty.
The first loophole the ULS cites is that the Supreme Court failed to explicitly abolish the practice of trying civilians in military tribunals, regardless of the circumstances. In so doing, the ULS says, the Supreme Court ignored not only the Ugandan Constitution but also Uganda’s troublesome experience of military injustice meted out on civilians and the condemnation of such trials internationally, including by the African Commission for Human and People’s Rights.
The ULS isn’t happy with the “advisory opinion or advisory orders” the Supreme Court gave in the now famous Micheal Kabaziguruka case.
The Bar Association for lawyers in Uganda has gone on to call the advisory orders “superfluous because they imply that the military courts can still try civilians if given the proper jurisdiction and other machinery through amendments, which is inconsonant with the highest standards of the rule of law, human rights protection, and democratic accountability envisaged by Articles 6(d), 7(2) and 8(1)(c) of the EAC Treaty.”
ULS’ claim comes after the NRM caucus recently voted in favour of new amendments to the UPDF Act, including a provision allowing the trial of civilians who illegally acquire specified firearms in the court martial. The caucus decision followed a high-level meeting at State House Entebbe, where members resolved to withdraw the UPDF Amendment Bill 2024 from Parliament.
The Bill had originally sought to reform the Uganda People’s Defence Forces Act by aligning it with evolving government policies, changes in command structures, and new administrative provisions.
Additionally, it aimed to improve the welfare of defence forces personnel by addressing gaps in healthcare services, transferring their pension from the Ministry of Public Service to the Ministry of Defence and Veteran Affairs, and strengthening disability compensation mechanisms for military officers and enlisted personnel. However, the Supreme Court’s decision rendered some aspects of the Bill legally untenable, necessitating a review before it could proceed in Parliament.
Still, the ULS says this is not enough because the Supreme Court’s decision to apply prospective annulment instead of retrospective annulment ignores past injustices and denies victims access to effective remedies contrary to Articles 2, 20, 21, 23(7), 28(1), 28(7) and 126(2)(c) of the Uganda Constitution, and also contrary to international human rights treaties ratified by Uganda, including Articles 2(3) and 9(5) of the International Covenant on Civil and Political Rights and UN General Comments on the Right to Liberty.
The ULS accuses the Supreme Court of giving open-ended directives such as transferring cases from military tribunals to the civilian courts. It further contends that these have enabled the Office of the Director of Public Prosecutions (ODPP) and other state agencies to undertake this transfer process indefinitely and without following any known decision-to-charge guidelines. This, per the ULS, has resulted in unfair treatment and has undermined the integrity of the judicial process.
In her affidavit that supports the case, Ms Christine Awori, the ULS chief executive officer, says ULS has received reports from various actors that there has been significant and intentional delay by organs of the respondent state, including the military authorities, the ODPP, and the Uganda Prison Services, in taking meaningful steps to implement the positive aspects of the Supreme Court decree, such as the transfer of cases.
“That the applicant is further aware of public pronouncements and indications suggesting that the Respondent intends to pursue legislative or other measures aimed at re-establishing the jurisdiction of military courts over civilians, which the applicant believes constitutes defiance of the spirit of the Supreme Court decision and a further infringement of Articles 6(d), 7(2) and 8(1)(c) of the EAC Treaty,” Awori says.
When the Supreme Court stopped the trial of civilians in the General Court Martial on grounds that a fair trial couldn’t be guaranteed in a tribunal presided over by military men with no legal background and are remote-controlled by the army’s high command, Gen Muhoozi Kainerugaba, the chief of defence forces, called the judgment “ very unfortunate” and “quite unacceptable.”
The first son added that the judgement “could lead to a national security crisis, threatening effective command, control, and administration of the defence forces.”
The army has since threatened to court martial Opposition supporters who wear clothes that are similar to those of the military.
“Our message is very clear. If you don’t want to be tried by the court martial, then don’t behave like a soldier. You behave like a soldier; you qualify yourself to be tried by the court martial,” Brig Felix Kulayigye, the army spokesperson, said.
