When courts do not do politics

After a long agonising wait, the Supreme Court in Kampala yesterday delivered a unanimous decision on the trial of civilians in military tribunals.

The decision was welcomed with a sigh of relief by legal minds and activists who always held that the harrowing historical injustice had left a bloody stain on the history of the country. In a seven-member panel led by Chief Justice (CJ) Alfonse Chigamoy Owiny-Dollo, the court ruled on six grounds of the State’s appeal of the decision of the Constitutional Court in Michael Kabaziguruka vs Attorney General where the former Nakawa lawmaker challenged his trial before the General Court Martial (GCM) on grounds of illegality and that the court lacked jurisdiction to try civilians.

Mr Kabaziguruka was tried with others for allegedly attempting to overthrow the government of Uganda by force of arms. He went to the Constitutional Court to challenge his trial before the GCM. The former lawmaker prevailed in a 3:2 decision of the Constitutional Court back in 2021.

This prompted an appeal to the Supreme Court by Attorney General (AG) Kiryowa Kiwanuka. This came with a stay of the decision of the Constitutional Court and, with it, the prolonging of the misery of hundreds of citizens who continued to face the wrath of the military trials. Yesterday’s court session started at about 10.30am and went until 3.26pm.

CJ Owiny-Dollo was accompanied by other members of the panel, including Lady Justice Percy Night Tuhaise, Lady Justice Catherine K Bamugemereire, Lady Justice Monica Kalyegira Mugenyi, Justice Mike Chibita, Lady Justice Elizabeth Musoke as well as now-retired Lady Justice Faith Essy Mwondha, whose judgment was read in absentia by the Chief Justice.

Judgment

The court, in a unanimous decision, dismissed the entirety of the AG Kiwanuka’s appeal; save for one ground on the establishment of the military court. At the centre of contention were questions as to whether military courts are part of Courts of Judicature. In the lead judgment read by CJ Owiny-Dollo, the limited jurisdiction of military tribunals was made apparent.

The court further said the creation of a subordinate court doesn’t require amendment of the Constitution, adding that the Constitution envisages the creation of the Court Martial. The court further said in any democratic society, judicial power must be exercised by a competent court, staffed with qualified competent people. CJ Owiny-Dollo likened the trial of citizens before military men and women with- out legal qualifications to asking him, a non-medical practitioner, to operate on patients in Mulago or to fly a Boeing 747.

The court further held that Unit Disciplinary Committees (UDTs) and Summary Trial Committees (STCs) cannot exercise judicial power and if they do, it is unconstitutional. It also repeatedly emphasised the non-derogable right to a fair hearing as couched in Articles 28 and 44 of the Constitution.

It also said this right can’t be denied to military men by dint of their career choice. The Chief Justice said thus: “A soldier being subject to military law, doesn’t cease to be a citizen.” He finished reading the lead judgment at 3.26 pm with a few paragraphs of advice for the State. These were interspersed with threats to throw out a jubilant court audience in the respondents’ corner.

Joy unconfined

The court’s decision was greeted with relief, ululation and effusive praise for the judges. One of the respondent’s lawyers, Caleb Alaka, thanked the court for this “bold decision.” He apologised for remarks made by some lawyers, which the Chief Justice had previously criticised for undermining the court. He said they were so grateful for the bold step the court had taken.

“This decision means freedom. It means civilians shouldn’t be tried in military courts. It means Dr Besigye comes out [of jail],” Mr Alaka beamed. Mr Kabaziguruka,the respondent, wearing a blue suit, white shirt, plaid tie and matching pocket square was inundated with congratulatory hugs.

Visibly elated, he said: “First and foremost, today isn’t my day. It’s a day for the people of Uganda. It’s not about me. I’d like to thank the judges of the Supreme Court for delivering a judgment that upholds the laws of Uganda. What the Supreme Court judges did today is exactly what we expected.”

The former Nakawa lawmaker thanked Ugandans for being resilient and applauded them for winning freedom from the shackles of the military courts and military trials.

“Personally, I feel relieved that I won’t be sent back to the CGM which had no jurisdiction against me. When I was dragged before then-Chairman Andrew Guti, I told him he didn’t have the competence to try me. What the Supreme Court just did today isn’t for me, it’s for democracy in the country. It’s for the rule of law. Even the military can’t be tried in the GCM for criminal matters,” he said.

What happens next?

Following the ruling, lawyers wasted no time in calling for the immediate release of all people held on charges before the military courts. Dr Kizza Besigye’s lawyer Elias Lukwago said: “For all intents and purposes, the military court has been disbanded and all people scheduled to appear before it should be discharged.”

Dr Besigye was supposed to appear before the GCM on Monday. According to Merdard Ssegona, another of the respondent’s lawyers, “this has been a journey from way back in 2005 when Dr Besigye was dragged before the military court.” He even called the GCM “that thing.”

To other observers, this victory had been long overdue, spanning more than 52 years. It feels like ages back now when, in January 1973, then President Idi Amin appointed his bloodthirsty, irascible loyalist, Juma Ali Oka Rokoni (aka Juma Butabika), to try citizens he deemed in Opposition to his rule. Human rights lawyer Ladislaus Rwakafuuzi, the foremost civil rights lawyer, who has previously argued many cases against the trial of civilians in military tribunals, congratulated judges for taking“a pro-people stand.”

Mr Rwakafuuzi said judges must have remembered that they exercise their power on behalf of the people. He stated that this decision has finally resolved a longstanding issue that has troubled the justice system for decades. Mr Rwakafuuzi said while things have been“ so bad in this country, this victory is a bright spot in all the darkness.”

Seated in his wheelchair, the recuperating Rwakafuuzi expressed hope of recovering soon and resuming his legal practice.

Alfonse Owiny-Dollo's unanimous judgement

• Military courts (Field Court Martial and the General Court Martial) are lawfully established specialised courts whose jurisdiction/powers are restricted to offences concerning discipline of the UPDF.
• However due to its composition of serving army officers who draw orders from their appointing authority, incompetence in legal issues, military courts are neither independent nor impartial to render a fair trial. To drive this point home, the court has drawn an inference, where a civilian like the Chief Justice of Uganda who has never done any military training to lead a battlefield and defend the country against an enemy.
• Other instances that show incompetence of the General Court Martial are decisions by majority opinions of members who are advised by a Judge Advocate, whose opinion is equated to that of an assessor in a criminal trial that is unbinding to court.
•  The oath taken by serving military officers binds them to answer to the High Command, which makes it difficult for members to be impartial.
• These untrained persons can issue sentences of life imprisonment and death, which is outside their mandate.
• It has been now opinionated by the court that the appointment of members of the military courts should be in conformity with the Judicial Service Commission, which supports competent personnel and their terms of services provides a sense of security of tenure.
• The military courts cannot overstretch their mandate to try civilians as that is the duty of civilian courts/Courts of Judicature.
• The military courts do not have competence to try criminal offences whose punishment is an imprisonment term/death—even when the suspect is a military personnel. According to [the] court, a soldier doesn’t cease to be a citizen.
• Punishments that can be passed by a military court are dismissal with disgrace, severe reprimand and dismissals since other custodial or death penalties imposed cannot be appealed to the Supreme Court.
• Therefore, six justices of the Supreme Court have upheld a Constitutional Court decision that nullified the trail of civilians in military courts.
• [When it comes to] aiding and abetting commission of service offence/accomplices and those found in unlawful possession of arms/military stores, failing to name the principle or accomplice makes this section of the UPDF unconstitutional.
• The trial of civilians for criminal offences in the military courts must be under exceptional circumstances. For example, when the State proves that civilian courts are incompetent to do so.
• The trial of civilians in the military courts is unconstitutional as should be done by courts of judicature.
• [The] Court Martial should not try offences that attract death penalties until Parliament amends its jurisdiction. l Where an accused was convicted of a nullified law and served his sentence to conclusion, the matter is taken to be concluded.
• Those being charged, undergoing trial and those serving sentences, these will take full benefit from the judgment.
• All ongoing trials involving civilians in the Court Martial must immediately cease and be transferred to ordinary courts of law.
• It has no effect on sentences imposed where there is no appeal.
• Civil matters against soldiers [are] allowed.
• Costs awarded to [Michael] Kabaziguruka here and in [the] Constitutional Court.