Court-Martials Not A Monopoly Of The UPDF
Oct 29, 2002
Last Friday <em>The New Vision</em> reported on page seven that the Principal Judge, Herbert Ntabgoba, while meeting the Parliamentary Committee on Legal and Parliamentary Affairs, questioned the jurisdiction of ‘Operation Wembley court’ to hear capit
The Jurisdiction Of The Court-Martial, High Court Or Any Other Court Is Created By A Statute
By Fox Odoi
Last Friday The New Vision reported on page seven that the Principal Judge, Herbert Ntabgoba, while meeting the Parliamentary Committee on Legal and Parliamentary Affairs, questioned the jurisdiction of ‘Operation Wembley court’ to hear capital offenses.
First of all there exists no court by the name ‘Operation Wembley Court,’ as alleged in the said article. The suspects arrested under ‘Operation Wembley’ are being tried by a Court known as ‘The General Court Martial’ of the UPDF. It was appointed and convened pursuant to the Appointment and Convening Order for the General Court-Martial of the Uganda Peoples’ Defence Forces Order of 2002. This is not the first time a court of this kind is operating in Uganda in particular and in other countries with similar and comparable jurisdictions. Court Martials are not a monopoly of the UPDF. They exist even in western democracies like the US and UK for trial of both military people and civilians governed by military law.
It is interesting to note that the provisions of the NRA Statute are substantially identical with the Army Act of 1955 of England in which court-martials are provided. Court-martials are vital for helping to adjudicate in unique circumstances where the ordinary Courts would find difficulty.
Jurisdiction of the Court-Martial, the High Court or any other Court is created by a Statute. This important fact must be borne in mind when discussing the issue raised by the judge on the competence of the General Court martial to try capital offenses as alleged in the article.
Ordinary Courts are created by the Constitution and conferred jurisdiction by various statutes such as the Judicature Act, the Penal Code e.t.c. Similarly, the Court Martial is created and conferred upon Jurisdiction by the Constitution in Article 210 and the National Resistance Army Statute No. 3/92, which establishes a General Court Martial (s. 80, 81 and 82) and provide for its jurisdiction, composition plus its appointment. Article 273 of the Constitution preserved and continued the force of the NRA Statute. The Penal Code defines ‘Court’ to mean “a Court of competent Jurisdiction.†It does not restrict ‘Court’ to High Court only.
Under s.80 of the National Resistance Army Statute, a General Court-Martial has both original and appellate jurisdiction over all offenses and persons under the statute. However, the jurisdiction of the Court-Martial over Officers and men of the UPDF is not in question. What appears to be under challenge is the jurisdiction of the Court-Martial over civilians. Under s.14 of the NRA Statute 1992, the following categories of civilians are triable by the Court-Martial:
(a) “Every person found in unlawful possession of arms, ammunition, equipment and other prescribed classified stores ordinarily the monopoly of the Army.â€
(b) Every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence.
(c) Every person, not otherwise subject to military law, who in respect of any service offence committed or alleged to have been committed by him, is in civil custody (in police custody) or in service custody (military custody).
The three instances above give circumstances under which civilians are triable by the General Court-Martial. An act or omission, which violates both the NRA Statute and local criminal law, foreign or domestic, may be tried by a court-martial or by a proper civilian tribunal, foreign or domestic. The jurisdiction of a Court-Martial is largely penal or disciplinary. A suspect or accused does not have a right to choose a judge to try them or which tribunal their case will be heard in.
The Constitution in Article 121 (5) recognises death sentences passed by both the ordinary Civil Courts and Tribunals. The General Court-Martial is one such Tribunal. The General Court Martial has jurisdiction over all offences and persons under the Statute (see s.80).
It also has jurisdiction to try offences under the Penal Code or any other law whether the said offences are committed within or outside Uganda (See s.68 (1) of the NRA Statute). As such it has jurisdiction to try the capital offences created by the Penal Code, namely Treason (s. 25 of the Penal Code) Rape (s.117 & 118 of the Penal Code), Defilement (s. 123 of the Penal Code) Murder (s. 183 and 184 of the Penal Code) and Aggravated Robbery (using a deadly weapon like a fire arm) see s.273 (2) of the Penal Code.
As already stated, jurisdiction is a creature of a Statute. Accordingly, different laws have provided for the jurisdiction of the various Courts as follows:
The Constitution (Article 139 (1), and the Judicature Statute confer the High Court with unlimited jurisdiction to try all matters in Uganda.
The trial on indictments Decree governs the Jurisdiction of the High Court in trial of cases before it.
The Magistrates Courts Act, 1970 governs the jurisdiction of the Magistrates.
The NRA Statute confers jurisdiction on Court Martials.
As such it is not surprising to find that both the High Court and the General Court Martial enjoying the same competence and powers in respect of the offences created by the Penal code.
The creation of the court martial should be seen as one of the moves of decongesting the high court by creating special courts to try specialised cases like the examples below:
Commercial of Courts to handle commercial disputes.
Children's Courts to handle family, children and related matters.
Land tribunals to handle land related matters.
the Non Performing Assets Recovery Tribunal (NPART) to handle the non-performing assets of UCB.
The Industrial Court to try Labour Disputes;
All the above disputes were previously being handled by the High Court. But the alternative courts have made both the bench and bar acquire more specialisation leading to delivery of more qualitative and faster services to the general public. The trial of the ‘Wembley suspects’ by the Court-Martial should be seen in the same light.
The writer is the Legal Assistant to H.E. the President of Uganda, Yoweri Kaguta Museveni
By Fox Odoi
Last Friday The New Vision reported on page seven that the Principal Judge, Herbert Ntabgoba, while meeting the Parliamentary Committee on Legal and Parliamentary Affairs, questioned the jurisdiction of ‘Operation Wembley court’ to hear capital offenses.
First of all there exists no court by the name ‘Operation Wembley Court,’ as alleged in the said article. The suspects arrested under ‘Operation Wembley’ are being tried by a Court known as ‘The General Court Martial’ of the UPDF. It was appointed and convened pursuant to the Appointment and Convening Order for the General Court-Martial of the Uganda Peoples’ Defence Forces Order of 2002. This is not the first time a court of this kind is operating in Uganda in particular and in other countries with similar and comparable jurisdictions. Court Martials are not a monopoly of the UPDF. They exist even in western democracies like the US and UK for trial of both military people and civilians governed by military law.
It is interesting to note that the provisions of the NRA Statute are substantially identical with the Army Act of 1955 of England in which court-martials are provided. Court-martials are vital for helping to adjudicate in unique circumstances where the ordinary Courts would find difficulty.
Jurisdiction of the Court-Martial, the High Court or any other Court is created by a Statute. This important fact must be borne in mind when discussing the issue raised by the judge on the competence of the General Court martial to try capital offenses as alleged in the article.
Ordinary Courts are created by the Constitution and conferred jurisdiction by various statutes such as the Judicature Act, the Penal Code e.t.c. Similarly, the Court Martial is created and conferred upon Jurisdiction by the Constitution in Article 210 and the National Resistance Army Statute No. 3/92, which establishes a General Court Martial (s. 80, 81 and 82) and provide for its jurisdiction, composition plus its appointment. Article 273 of the Constitution preserved and continued the force of the NRA Statute. The Penal Code defines ‘Court’ to mean “a Court of competent Jurisdiction.†It does not restrict ‘Court’ to High Court only.
Under s.80 of the National Resistance Army Statute, a General Court-Martial has both original and appellate jurisdiction over all offenses and persons under the statute. However, the jurisdiction of the Court-Martial over Officers and men of the UPDF is not in question. What appears to be under challenge is the jurisdiction of the Court-Martial over civilians. Under s.14 of the NRA Statute 1992, the following categories of civilians are triable by the Court-Martial:
(a) “Every person found in unlawful possession of arms, ammunition, equipment and other prescribed classified stores ordinarily the monopoly of the Army.â€
(b) Every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence.
(c) Every person, not otherwise subject to military law, who in respect of any service offence committed or alleged to have been committed by him, is in civil custody (in police custody) or in service custody (military custody).
The three instances above give circumstances under which civilians are triable by the General Court-Martial. An act or omission, which violates both the NRA Statute and local criminal law, foreign or domestic, may be tried by a court-martial or by a proper civilian tribunal, foreign or domestic. The jurisdiction of a Court-Martial is largely penal or disciplinary. A suspect or accused does not have a right to choose a judge to try them or which tribunal their case will be heard in.
The Constitution in Article 121 (5) recognises death sentences passed by both the ordinary Civil Courts and Tribunals. The General Court-Martial is one such Tribunal. The General Court Martial has jurisdiction over all offences and persons under the Statute (see s.80).
It also has jurisdiction to try offences under the Penal Code or any other law whether the said offences are committed within or outside Uganda (See s.68 (1) of the NRA Statute). As such it has jurisdiction to try the capital offences created by the Penal Code, namely Treason (s. 25 of the Penal Code) Rape (s.117 & 118 of the Penal Code), Defilement (s. 123 of the Penal Code) Murder (s. 183 and 184 of the Penal Code) and Aggravated Robbery (using a deadly weapon like a fire arm) see s.273 (2) of the Penal Code.
As already stated, jurisdiction is a creature of a Statute. Accordingly, different laws have provided for the jurisdiction of the various Courts as follows:
The Constitution (Article 139 (1), and the Judicature Statute confer the High Court with unlimited jurisdiction to try all matters in Uganda.
The trial on indictments Decree governs the Jurisdiction of the High Court in trial of cases before it.
The Magistrates Courts Act, 1970 governs the jurisdiction of the Magistrates.
The NRA Statute confers jurisdiction on Court Martials.
As such it is not surprising to find that both the High Court and the General Court Martial enjoying the same competence and powers in respect of the offences created by the Penal code.
The creation of the court martial should be seen as one of the moves of decongesting the high court by creating special courts to try specialised cases like the examples below:
Commercial of Courts to handle commercial disputes.
Children's Courts to handle family, children and related matters.
Land tribunals to handle land related matters.
the Non Performing Assets Recovery Tribunal (NPART) to handle the non-performing assets of UCB.
The Industrial Court to try Labour Disputes;
All the above disputes were previously being handled by the High Court. But the alternative courts have made both the bench and bar acquire more specialisation leading to delivery of more qualitative and faster services to the general public. The trial of the ‘Wembley suspects’ by the Court-Martial should be seen in the same light.
The writer is the Legal Assistant to H.E. the President of Uganda, Yoweri Kaguta Museveni