The paradox of trying civilians in military courts

Attorney General Kiryowa Kiwanuka has never been known for publicly admitting doubts over anything. He has defended questionable Uganda’s human rights record at the United Nations in Geneva, Switzerland. He defended the controversial coffee agreement government signed with Vinci Coffee Company Limited, the company owned by Enrica Pinetti.  He also passionately defended the government’s $200m (Shs730b) deal it signed with the Export-Import Bank of China [Exim] to renovate Entebbe airport, insisting Uganda will meet the contractual obligations.  

READ: Examining the military’s place in judicial processes

Yet recently, Mr Kiwanuka said he is confused as to what exactly to do with civilians being charged in military courts. With a number of Opposition supporters currently languishing in jail over charges that are before the General Court Martial (GCM), Mr Kiwanuka has come under pressure to implement the recent Constitutional Court judgment that essentially outlawed the practice. 

Whereas there’s the Constitutional Court judgment, Mr Kiwanuka says those pressing him are forgetting a Supreme Court judgment passed 14 years ago, which he says, greenlighted the trial of civilians in the GCM under specific conditions. 

“The president of the Uganda Law Society (ULS) mentioned the recent case of the Court of Appeal on the trial of civilians at military courts. Now I’m at pains because everyone is quoting the recent judgment, but I have a Supreme Court judgment. So how do I advise?” Mr Kiwanuka said during the recent New Law year function after ULS president Bernard Oundo raised the issue. 

“Do I follow the Court of Appeal judgment?” He asked referring to the Constitutional Court judgment.  Or do I follow the Supreme Court judgment? The Supreme Court judge said it is okay. You can do it because you can follow these rules - the rules of precedence, the rules that govern our practice,” he said.  

For years, Ugandan courts have grappled with Section 119 (1) g and h of the Uganda People’s Defence Forces (UPDF) Act No7/2005, sub-sec (g). It 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 defence forces; or (ii) other classified stores as prescribed, is subject to military law, and can be tried in military courts as appropriate.” This section gives the circumstances in which the GCM has jurisdiction over civilians and appeals against the decisions of the GCM lie with the Court Martial Appeal Court, which is the final appellate court excluding cases where the culprit is penalised to death or life imprisonment.

Repeal offending sections

Retired Supreme Court Judge Justice Jotham Tumwesigye offers human rights activists some blunt advice; challenge Section 119 in the Constitutional Court or the army will 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 says. 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,” he says.

But the Supreme Court case that Mr Kiwanuka was referring to that aids the trial of civilians in the GCM is Attorney General Vs Uganda Law Society (ULS).  The petition filed by ULS at the Constitutional Court stemmed from Opposition activist Dr Kizza Besigye’s tribulations of 2005. 

Dr Besigye, who had returned from exile to stand in another presidential election, was, with 22 others, charged with treason and concealment of treason at the High Court. When the High Court gave them bail on November 16, 2005, they were re-arrested by a security outfit that came to be known as Black Mamba and they were later charged with offenses of treason, terrorism, and unlawful possession of firearms. 

ULS, through public interest litigation, decided to take up the matter and one of the issues framed was the legality of trying civilians in the GCM. Justice Leticia  Kikonyongo, then the Deputy Chief Justice, who headed the Constitutional Court panel of five justices, didn’t agree with ULS’s legal team that trying civilians in military courts is unconstitutional. 

“Due to the importance of national security, it appears it is generally accepted that those members of society who assist in any way the commission of a military offense or aid and abet military offenders or those holding arms and ammunition unlawfully should be answerable in military courts. It is presumed that they had a common criminal intention with military offenders when the alleged offenses were committed,” Justice Kikonyogo said, adding that civilians could be tried before military courts “as long as the principles of the rules of natural justice and the rules of evidence and procedure were strictly observed.

Justice Constance Byamugisha, another member of the panel, was in agreement with Justice Kikonyogo, insisting that civilians can be prosecuted before a court martial if the prevailing law gives permission – the court martial has jurisdiction over those civilians and the offenses they committed.  

Justice Byamugisha argued that Section 119(1)(g) and (h) of the UPDF Act were not contrary to Articles 129(1)(d) and 210 of the Constitution, and also held that “the trial of civilians with members of the UPDF for offenses under the UPDF Act is not inconsistent with Articles 28(1), 126(1) and 210 of the Constitution. 
This position secured a majority when Justice Steven Kavuma agreed that Section 119(1)(g) and (h) were not inconsistent with the Constitution, and that the trial of civilians before military courts did not violate the accused’s right to a fair trial.

Did Parliament exceed its powers in establishing military courts?
In the ULS case, there are constitutional justices who dissented on this issue of civilians being tried in military courts.

Justice Galdino Okello attacked Section 119 of the UPDF Act and held that by granting military courts jurisdiction over civilians, Parliament exceeded its powers under Article 210 of the Constitution.  
He said under Article 210, Parliament could establish a court or tribunal as an organ of UPDF only for the purpose of enforcing military discipline.  

“I’m satisfied that those civilians who fall under Sections 119(1)(g) and (h) could be adequately dealt with in the civil courts where they expect to get a fair trial,” Justice Okello said, adding that military courts have no general jurisdiction over civilians  because  Article 210 does not empower Parliament to make laws that would give such court’s jurisdiction over civilians or non-members of the UPDF. 

Justice George Engwau,  the fifth judge on the panel, agreed with Justice Okello that sections 119(1)(g) and (h) of the UPDF Act were unconstitutional. Justice Engwau, in his dissenting judgment, was also very unambiguous; military courts are not courts of judicature and, consequently, they do not have jurisdiction in cases of the joint trial of civilians and persons subject to military law.  

When the case eventually found its way to the Supreme Court, the highest court only outlawed concurrently trying the suspects in separate courts on charges arising out of the same facts exposed as this would put accused persons at risk of double jeopardy, but it didn’t outlaw trial of civilians in military courts.

Court martial not part of Judiciary
But as time goes by, the issues of civilians being tried in the military courts have found their way into the courts as Parliament hasn’t retracted Article 119 since there is no political will to do so. 

Forum for Democratic Change’s (FDC) Michael Kabaziguruka, who was charged with treason at the GCM in 2016, led the recent fight against civilians being tried in military courts. The Constitutional Court would have summarily dismissed the case under the pretext that the Supreme Court has already determined it but it went ahead to hear the petition and agreed with the former Nakawa MP that the GCM is strictly for servicemen. 

Justice Kenneth Kakuru, who was joined by Justices Remmy Kasule and Hellen Obura, said the GCM was simply a specialised court set up by Parliament and clearly is not part of the Judiciary. The GCM, Justice Kakuru said, is part of the Executive arm of government established under Chapter 12 of the Constitution, which provides for the country’s defence and national security. 

“Several attempts by the Executive to place the GCM on the same footing as courts of judicature has, in my view, originated confusion and discord among jurists, legal practitioners, and scholars. It’s simply trying to fit a square peg in a round hole,” Justice Kakuru said.

Though Justice Kakuru didn’t mention President Museveni by name, it is well known that Mr Museveni has been one of the biggest proponents of civilians being tried in military courts instead of civilians’ courts.  The President argued that military courts are the best to try hardcore criminals since they are swift and also hand out severe punishments but in the Kabazigurka petition, the Constitutional Court said military courts can’t go that far.  

“By the GCM extending its jurisdiction to try civilians, who are not members of the UPDF in respect of all offenses under the Penal Code Act and other enactments, it subjects ordinary civilians to criminal prosecutions that have no safeguards of a fair trial and proper administration of justice, the ensuring of which is a constitutional duty of the Director of Public Prosecutions (DPP). This is inconsistent and in contravention of the intent, purpose, and overall spirit of articles 28(1), 126(1), and 210(b) of the Constitution,” Justice Kasule said.

Parliament faulted 

The Constitutional Court ordered that the military court should hand over all files of civilians to the High Court’s Civil Division, but the Attorney General secured an injunction of the Supreme Court staying the orders of the Constitutional Court as the appeal is being determined.  

This gave the State the green light to continue trying civilians in the military courts but the Constitutional Court wasn’t done. 

Mr Amon Byarugaba and hundreds of other petitioners, had filed a constitutional petition in 2015 before Mr Kabaziguruka could even file his.   

Mr Byarugaba had served in the National Resistance Army (NRA), which morphed into UPDF. 
In 2003, after Mr Byarugaba had retired from active military service, he was charged in the GCM with treason but it collapsed.  

Mr Hasibu Kasiita, one of Mr Byarugaba’s co-petitioners, stated to be a civilian, in 2002, was charged in the GCM with murder.  Although Mr Museveni says military courts are quick, Mr Kasiita says his trial took nine years to be concluded after which he was convicted and sentenced to 10 years imprisonment.   This set of petitioners asserted that military courts may be linked to the discipline of members of the armed forces, not to the discipline of civilians yet Parliament, when purporting to proceed under Article 210, created military courts and gave them judicial powers to try non-members of armed forces. 

Justice Elizabeth Musoke, who was joined by Justices Kakuru and Kiryabwire, shot down Section 119 of the UPDF Act.  

“In my view, however, to the extent that Parliament, under Section 119 (1) (h), extended application of military law to persons not members of the military, it acted unconstitutionally. This is because Article 210 of the 1995 Constitution, under which Parliament derived authority, provides that Parliament may only enact the UPDF Act, expressly move under that provision to legislate on matters concerning members of the armed forces,” Justice Musoke ruled. “…therefore, the impugned provisions of Section 119 (1) (h) and 11g (1) (g) of the UPDF Act, are to that extent inconsistent with the 1995 Constitution and, therefore, null and void.”

Two justices – Richard Buteera and Monica Mugenyi - dissented and this gives the state hope as the country awaits the decision by the Supreme Court.