In a historic ruling, the Supreme Court of Uganda, led by Chief Justice Alfonse Owiny-Dollo, has barred the trial of civilians in military courts, declaring the practice unconstitutional.
The court ordered the immediate cessation of all ongoing cases involving civilians before the General Court Martial (GCM) and directed that they be transferred to competent civilian courts.
Delivering the ruling in Constitutional Appeal No. 2 of 2021, Attorney General v. Hon. Michael Kabaziguruka, Chief Justice Owiny-Dollo reaffirmed the constitutional principle of judicial independence, stating that military courts lack the authority to try civilians.
“The General Court Martial is a specialized tribunal established to handle military discipline within the Uganda People’s Defence Forces (UPDF). It is not an independent and impartial court of law, as required under our Constitution, to adjudicate cases involving civilians,” he declared.
This judgement follows a petition by former Nakawa MP Michael Kabaziguruka, who was charged with treachery and prosecuted before the General Court Martial. In 2021, the Constitutional Court ruled in his favor, finding the trial unconstitutional. The government subsequently appealed to the Supreme Court, which has now upheld the lower court’s judgment.
Chief Justice Owiny-Dollo affirmed that the Summary Trial Authority (STA) and the Unit Disciplinary Committee (UDC) are lawfully established under Sections 191 & 192 (now Sections 189 & 190), and Section 195 (now Section 193) of the UPDF Act as military tribunals. However, their jurisdiction is strictly confined to military discipline.
“The existence of military tribunals is not in question. What is unconstitutional is their assumption of judicial power over civilians,” he ruled.
The Chief Justice upheld that the General Court Martial (GCM), created under Section 197 (now Section 195) of the UPDF Act, is a subordinate court with specialized jurisdiction. However, he clarified:
“The General Court Martial remains a lawful court but must restrict itself to matters of military discipline. Its jurisdiction does not extend to civilians.”
The Supreme Court struck down Sections 179(1) & (2) (now Sections 177(1) & (2)) of the UPDF Act, which granted military courts the power to try capital offenses.
“Granting subordinate military courts jurisdiction over capital offenses contravenes Articles 129(1)(d) and 126(1) of the Constitution,” the Chief Justice ruled.
The Supreme Court ruled that Sections 191(3)(a) (now Section 189(3)(a)), and Sections 195(3) & (4) (now 193(3) & (4)), which allowed military tribunals to order detention and imprisonment, were unconstitutional.
“The power of detention and imprisonment is a judicial function reserved for courts of law under Articles 23, 126(1), and 129(1)(d) of the Constitution. Military tribunals cannot exercise these powers over civilians,” Owiny-Dollo stated.
The court found that the UPDF Act does not contain adequate constitutional safeguards to ensure the independence and impartiality of military courts.
“The trial procedure in the General Court Martial, the Division Court Martial, and the Court Martial Appeal Court lacks the constitutional guarantees necessary for fair hearings,” ruled the Chief Justice, citing Articles 21, 28(1), 44(c), and 128(1) of the Constitution.
The Supreme Court ruled that Section 119(1)(g) (now Section 117(1)(g)) of the UPDF Act, which was used to prosecute civilians, violates constitutional rights.
“This provision, which allows civilians to be tried by military courts for aiding or abetting military offenses, contravenes Articles 28(1), 44(c), and 21 of the Constitution,” Owiny-Dollo declared.
He further struck down Section 119(1)(h) (now Section 117(1)(h)), which granted blanket jurisdiction to military courts over civilians.
“The broad jurisdiction conferred by these sections is unconstitutional. The prosecution of civilians falls under the mandate of civilian courts,” he ruled.
The Supreme Court clarified that while all ongoing civilian trials in military courts must cease immediately, the ruling does not apply retroactively to past convictions, unless those convictions are currently under appeal.
“This judgment shall have no retrospective effect on any conviction made, and sentences imposed, prior to the date of this ruling, except where the conviction and sentence are being challenged in a court of law,” the Chief Justice noted.
The five-member panel of Supreme Court justices unanimously agreed that the trial of civilians in military courts violates fundamental rights enshrined in the Constitution of Uganda.
Justice Monica Mugenyi ruled that military courts do not meet the constitutional standards of independence required for fair trials.
“The General Court Martial operates within the military command structure and does not offer the judicial safeguards necessary to ensure an impartial trial,” she stated.
She further criticized Section 117(1)(h) of the UPDF Act, describing it as “vague and unconstitutional”, and called for legislative reforms to clarify the jurisdiction of military courts.
Justice Percy Night Tuhaise underscored that criminal prosecutions should be the exclusive responsibility of the Director of Public Prosecutions (DPP).
“The General Court Martial is incompetent to handle judicial matters concerning civilians. The Constitution vests prosecutorial powers in the civilian legal system, and this must be respected,” she asserted.
Justice Elizabeth Musoke emphasized that the General Court Martial should not overstep its mandate by handling cases beyond military discipline.
“The jurisdiction of the General Court Martial is confined to offenses committed by persons subject to military law. Any extension of this jurisdiction to civilians contravenes the Constitution,” she noted.
Justice Catherine Bamugemereire issued a direct order for the suspension of all ongoing civilian trials in the military courts, directing that they be immediately transferred to the appropriate civilian courts of law.
“There is no legal basis for civilians to be subjected to military trials. This judgment must be implemented without delay, ensuring that all affected individuals receive a fair hearing before civilian courts,” she ordered.
The Supreme Court’s decision has far-reaching implications, particularly for individuals currently facing charges before military tribunals. Among the most notable cases affected is that of opposition figure Dr. Kizza Besigye, who has been facing treachery charges before the General Court Martial.
In its judgment, the Supreme Court issued the following directives:
- Civilians can no longer be tried in military courts.
- All ongoing civilian cases before the General Court Martial must be halted immediately.
- Pending civilian trials must be transferred to civilian courts with competent jurisdiction.
- The General Court Martial remains a lawful institution but only for the trial of military personnel.
- Provisions of the UPDF Act granting military courts jurisdiction over civilians are unconstitutional.
- Convictions and sentences previously handed down by military courts remain valid unless under appeal.
- Pending trials of UPDF personnel for civil offenses must be moved to civilian courts.
- Hon. Michael Kabaziguruka is awarded legal costs.
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