KAMPALA, Uganda — The Supreme Court on Friday outlawed the trial of civilians in military courts, citing violations of the Constitution and the need to uphold the rule of law.
The court’s majority judgment declared that the trial of civilians in military courts is unconstitutional, specifically pointing to provisions in the UPDF Act that grant subordinate military courts jurisdiction over capital offenses.
These provisions, the court ruled, contravene Articles 129(1)(d) and 126(1) of the Constitution. The court also found that the Summary Trial Authority (STA) and the Unit Disciplinary Committee (UDC) operate under inconsistent provisions established in violation of the Constitution.
The STA and UDC’s power to detain and imprison civilians was also deemed unconstitutional. The court ruled that the provision of section 191(3) (a) (now s.189 (3) (a), and s.195 (3) & (4) (now 193) (3) & (4)) read together with s.179 (now s.177) of the UPDF Act, which grant the STA and the UDC the exercise of judicial power of detention and imprisonment of any person tried by them, contravene Arts. 23, 126(1), and 129 (1)(d) of the Constitution.
The provision of s.119(1) (g) (now s. 117 (1) (g)) which tries, in the court martial, civilians who have allegedly aided and abetted the commission of a service offense, or ordinary criminal offense, in which a person subject to military law is a principal offender, was also declared unconstitutional.
This provision has been the major reason why many civilians have been charged before the General Court Martial.
The court ordered that all charges, ongoing criminal trials, or pending trials, before the courts Martial involving civilians must immediately cease and be transferred to the ordinary courts of law with competent jurisdiction.
The judgment shall have no retrospective effect on any conviction made, and sentences imposed, prior to the date of this judgment; save where the conviction and sentence is being challenged in a Court of law.
The Chief Justice also noted that all pending trials, or partly heard criminal cases, that fall under the civil law courts’ jurisdiction, which are against members of the UPDF who are subject to service law, must be transferred to the civil Courts with competent jurisdiction.
The court also issued advisory orders, stating that the current military courts operate in violation of the constitutionally enshrined and securely protected rights to a fair hearing.
The Executive was ordered to generate policy, and Parliament to pass legislation, which addresses and cures the injustice occasioned by the unconstitutional provisions of the UPDF Act, which have now been quashed.
The court suggested establishing the General Court Martial (GCM) as a division of the High Court, handling capital cases involving military officers and civilians.
The court also recommended limiting the functions of Unit Disciplinary Committees (UDCs) and Summary Trial Authorities (STAs) to handling strictly disciplinary offenses, with no power of imposing sentences of imprisonment.
The ruling was welcomed by Hon. Michael Kabaziguruka, the respondent in the appeal, and his lawyers. Lawyer Medard Ssegona commended Kabaziguruka for fighting for the rule of law.
The court ordered the immediate release of Hajji Obeid Lutale, Dr. Kiiza Besigye, and young people in prison.
“The seating of Monday has been declared a nullity; they don’t have powers to convene again, in short, it has been disbanded and it can’t seat again. They have to go back and reconstitute it again as per the orders of Court,” Lord Mayor Erias Lukwago said.
Hon. Michael Kabaziguruka, the respondent in this appeal by the Attorney General, thanked all those that stood with him through this period as he was fighting for the rule of law to prevail in the country.
The six majority justices who outlawed the trial of civilians in the General Court Martial included Alfonse Owiny Dollo, Elizabeth Musoke, Mike Chibita, Catherine Bamugemereire, Faith Mwondha, and Percy Night Tuhaise. Justice Monica Mugenyi came up with a dissenting judgment.
