Attorney General Kiryowa Kiwanuka (AG) defends the proposals in the UPDF (Amendment) Bill, 2025 that seeks to have civilians taken to the military courts again, at Parliament yesterday. PHOTO | IBRAHIM KAVUMA
A section of lawmakers on two parliamentary committees yesterday clashed with the Attorney General, and Defence minister on proposals in the Uganda Peoples Defence Forces (Amendment’) Bill, 2025, to try civilians in military courts.
The committees of Legal and Parliamentary Affairs, and that of Defence and Internal Affairs, commenced scrutiny of the Bill yesterday, but disagreed with Attorney General Kiryowa Kiwanuka, and Defence minister Jacob Oboth Oboth as the framers of the Bill. The MPs argued that the government had misinterpreted the January 31 Supreme Court landmark ruling, which banned military courts from trying civilians.
But the AG countered that the Supreme Court ruling did not stop the trial of civilians in the court martial, but only questioned how these courts had been constituted, at the time, to try civilians. “We were happy with what the court martial was doing until a few cases showed that we are having a problem. I hear some people saying they are happy with the court martial. You are saying you are not happy with the court martial. I think together we can sit down and say what is it we do not like? What can we do to make it better? I don’t think it is wise to throw out the child with the bath water because of a problem,” Mr Kiwanuka said.
Concerns
But Nyendo-Mukungwe MP Mathias Mpuuga, and his Erute County South counterpart Jonathan Odur, said the government misunderstood the January 31 landmark ruling of the Supreme Court that banned the trial of civilians in the military courts. Mr Mpuuga said: “The Supreme Court ruling, which has been deemed as advisory and, therefore, motivating all these amendments, was very clear on what makes a court, and it’s not merely personnel, it all must also be existing within the law, and the law is Article 129.”
“I want the learned Attorney General to help me place this amendment because I will give an example. Honourable chair and colleagues, when the International Crimes Division (ICD) was being formed as a branch of the High Court, clearly the parameters that formed it were under Article 129 and was deemed the High Court,” he added.
Mr Mpuuga insisted: “The amendments provided by the AG and the Defence minister still contradict what the Supreme Court ruled. And at no time did I envisage the ruling as advising the military or the minister to go and try to be creative and even try to strip civilians of their status and bring them under the armpit of the military to suit that ruling.
The objective of the ruling was to strengthen Article 28, which talks about a fair hearing.” Mr Odur, in a comeback, said: “There was one court decision that it is unconstitutional – do not try civilians before a court martial. I want to find out where in this Bill you have aligned that question, which was answered by majority, unanimously, so that I can trace it. So far, I have failed to see it, the mover seem to have gone and created his judgment, his own decision, his orders, and then it is being used here. I would be very happy if that is pointed out to me.”
Mr Odur also raised concerns about who exactly determines the “exceptional circumstances” under which civilians can be tried by the military courts that comprise Unit Court Martial, Division Court Martial, and General Court Martial. Mr Naboth Namanya, the Rubabo County MP, then joined the fray to quiz Attorney General Kiryowa Kiwanuka, and Defence minister Oboth Oboth. He said: “The Supreme Court ruling stated that civilians should not be tried in a court martial.
They said civilians, and now here you are saying, under certain exceptional circumstances, civilians should be tried in a court martial. What has changed that the court martial has been doing with the civilians in trying them in court martial now that they seek to change and try them, because here the ruling says civilians?”
The AG, to bolster his defence insisted: “Without any fear of contradiction, the Supreme Court did not at any one point say, civilians cannot be tried in the General Court Martial. Different judges went through it in different ways and concluded that the Court Martial, as it was constituted, and the way it had been set up in the law, was not constitutionally set up to try civilians.”
Similarly, Defence minister Oboth Oboth maintained: “Civilians can invite themselves to a Court Martial by working together with the army to commit an offence. Only those who do so will be welcome to Makindye or any other designated areas.”
Military wear concerns
The MPs also expressed concerns about the kind of military wear that has been described in the Bill, which they said would affect a big section of population. Mr Derick Nyeko, the Makindye East MP, said the trial of civilians in the court martial on account of military wear would affect a lot of people, including those creative industry and the Opposition, whom he said are being witch-hunted by the ruling NRM government.
He contended: “There is no way you can tell me that a boot, a black boot or any other clothing that does not have a symbol should be attached and gazetted to be a uniform of the military. I believe this is going to affect many. Even the creatives and this is something that many of our supporters of the National Unity Platform (NUP) party are being arrested for. One is arrested because he or she is wearing a red beret that specifically has a symbol of the People Power, one that is gazetted and accepted by the Electoral Commission, different from that of the army.”
Core criminals
Mr Abdul Katuntu, the Bugweri County MP, said the Bill would have made sense if it was targeting the core criminals, but the recent arrests and torture of people who merely wears clothes like red berets make it bad. “If there is a civilian found with grenades, artillery pieces, why would anybody have objections to such a person being tried by the court-martial? Because that is the purpose of the court-martial. These are weapons that ordinarily should be a monopoly of the UPDF. But if you start to pick a person wearing a beret, you are vulgarising the issue,” he reasoned. But Mr Kiryowa Kiwanuka countered and said only civilians who commit an offence with illegal military stores or with the aid of a military officer can be tried in a court martial. On military wear, Kiryowa Kiwanuka said, “The law is talking about similarity, that if I looked at it from a distance, what I would think that person is? If, for example, a person is running out of this building, putting on this uniform, wouldn’t you ordinarily think that is for the soldier,” he said.
But Mr Brandon Kintu, the Kagoma North MP and NRM party parliamentary caucus spokesperson, wondered why the government does not just strengthen the capacity of the already existing civilian courts, which are already trying high-profile criminals like Jamil Mukulu, rather than reintroducing the court martial.
“We have competent civilian courts that are trying people for murder, aggravated robbery, but now you are saying they shouldn’t. Why don’t we look at strongly empowering these courts?” he queried. “Are we now disempowering the civilian courts? We know some people hold guns lawfully and are trained. Yes, we need to be protected, and we appreciate it, but we still have courts that are competent enough to handle this,” he added. But Labwor County MP Jimbricky Norman Ochero supported the Bill, citing his Karamoja area that had been embroiled in instability caused by illegal possession of guns. “If we allow people to manipulate UPDF and they walk away, this is dangerous. It is good we put them on the hook so that everybody fears to go near the gun because the gun has been misused in this country. Some of these laws are based on our history,” he said.
Inside the bill
Under the UPDF (Amendment Bill), 2025, the government proposes to insert a Clause 117A into the existing UPDF Act, 2005, to try a certain category of civilians in military courts. Among these is a person found with one of the 38 equipment or 26 ammunition, which is ordinarily the monopoly of the defence forces prescribed in Schedule 7A and 7B of the Act. A person found with this equipment and ammunition outside the country shall also be tried according to the proposals. Another category to be subjected to this law is a person who will be found in possession of, sells or wears a uniform of the Defence forces without permission. Any person who will be found aiding or abetting or conspiring with another using the military equipment to commit murder, aggravated robbery, kidnapping with intent of murder, treason, misprision of treason, and cattle rustling will be subjected to this trial under the military courts. The Bill further proposes to try a civilian who commits the offence while accompanying the unit or defence forces during the mission as a military officer who is on the rank of Private.
Background
The government was moved to table the Bill following the January 31 landmark ruling. A panel of seven Supreme Court judges led by Chief Justice Alfonse Owiny-Dollo unanimously banned the military courts from trying civilians. The judges asserted that the military courts don’t exhibit “independence and fairness” while dispensing justice since they derive their powers from the High Command, yet the Constitution, which is the supreme law of the land, demands a fair and impartial trial for every citizen. Owiny-Dollo advised the Executive and Parliament to amend the Constitution and make certain changes if the court martial and other military courts were to try civilians.
The recommendations included establishing superior courts within the military court system under Article 129; and clothing them with the requisite jurisdiction and guarantee of independence and impartiality to try specific military offences of a capital nature and all other capital offences under existing laws, committed by military personnel.
The amendments, Owiny-Dollo said, should also provide in the UPDF Act for the High Court to sit as a Court-Martial with the power to try all criminal capital offences within the High Court jurisdiction, and those unique to the military that attract a maximum of life and death sentences.
