Supreme Court stops military courts trying civilians

KAMPALA - The Supreme Court has ordered that all pending criminal cases before the General Court Martial (GCM) should be stopped.

“Pending trial before the GCM involving civilians must immediately cease and be transferred to the ordinary courts with competent jurisdiction,” Chief Justice Alfonse Owiny-Dollo has directed.

The justices of the Supreme Court declared that section 117 of the Uganda Peoples Defence Forces (UPDF) Act, which provides that a civilian, who aids and abets a person of military law in the commission of service offence is unconstitutional.

Today's (January 31, 2025) decision comes after intense demands from the Uganda Law Society and several lawyers to bring the matter to a close and establish a clear stance on the issue.

Chief Justice Alfonse Owiny-Dollo. (All Photos by Colleb Mugume)

The petition, initially filed by former Nakawa Member of Parliament Michael Kabaziguruka in 2016, challenges the trial of civilians in military courts after he was arraigned before the General Court Martial in Makindye on treason charges.

The ruling was delivered by a panel of seven justices, led by Chief Justice Alfonse Owiny-Dollo. Other justices on the panel were Faith Mwondha, Elizabeth Musoke, Catherine Bamugemereire, Monica Mugenyi, Mike Chibita and Percy Tuhaise.

The State was represented by commissioner civil litigation George Kalemera, senior state attorney Geoffrey Madete and state attorney Brian Musota.

Justice Catherine Bamugemereire

On the other hand, several lawyers led by Medard Lubega Sseggona, represented Kabaziguruka, who filed the petition challenging the constitutionality of trying civilians including him, before the army court.

Kabaziguruka was facing treason charges with Capt. Andrew Ojaa, Private (rtd) Frederick Namara, Private Christopher Omony and Assistant Inspector of Police Ferdinand Obulejo.

It was alleged that five accused persons wanted to overthrow the Government of Uganda but Kabaziguruka argues that his trial before the military court was unconstitutional and that he had been denied a right to a fair hearing.

Justice Percy Tuhaise

AG’s submission  

In his appeal, AG Kiryowa Kiwanuka argued that the Constitutional Court justices erred in law in finding that Sections 2 and 179 of the UPDF Act contravenes Articles 28(1) and 44(c) of the Constitution and that the GCM is only competent to try military discipline offences under Part VI of the UPDF Act.

The justices include Kenneth Kakuru (now deceased), Hellen Obura and Remmy Kasule.

“In analysing the provisions of the UPDF Act and subjecting them to the constitutionality test, it must be borne in mind that the Act intends to facilitate the functions of the Defence Forces as illustrated in the Constitution which is primarily to preserve and defend the sovereignty and territorial integrity of Uganda,” he submits.

Justice Monica Mugenyi

Kiwanuka argued that there was a misconstruction of the application of Section 2 of the UPDF Act to mean that every civilian offence can be prosecuted by the military courts.

“The Act makes provision for specific persons who are subject to military law and not any civilian as was understood by the Constitutional Court,” he noted.

According to Kiwanuka, the position of Ugandan law is that the GCM has jurisdiction to try a certain category of civilians who are subject to military law including those who aid and abet the commission of service offences by persons subject to military law, or civilians who voluntarily unlawfully possess arms and ammunitions ordinarily the monopoly of the UPDF.

The UPDF Director of Public Prosecutions, Col Raphael Mugisha (C) greets former Nakawa Member of Parliament Michael Kabaziguruka.

He also faulted the Constitutional Court justices for determining that the GCM cannot be impartial or independent and is inconsistent with Article 28 (1) of the Constitution and it does not apply principles therein to persons subject to military law.

Kiwanuka submits that the GCM is an independent and impartial court established by Parliament under Article 210 (b) of the Constitution and Section 197 of the UPDF Act.

“It does not mean that because the appointing authority is a member of the executive, the GCM is not independent. What must be considered is whether the GCM members and the chairman are under the influence of the appointing authority during their deliberations before they reach a verdict. Once the appointment has been done, there is no evidence on record to show that the appointing authority has the power to get involved in the judicial function of the Court Martial,” he noted.

Kiwanuka argues that Kabaziguruka was properly charged under provisions of the UPDF Act and since he is accused together with members who are subject to military law, the GCM has jurisdiction to try him.