Why courts rejected military trials for civilians

The controversy surrounding the trial of civilians in Uganda’s General Court Martial has reignited debates over the legal and constitutional validity of such proceedings.

The Observer revisits key rulings from the Supreme court and Constitutional court that have consistently nullified sections of the Uganda People’s Defence Forces (UPDF) Act, granting military courts the authority to try civilians. These courts have repeatedly emphasized that military tribunals were established to serve members of the UPDF and maintain discipline within the armed forces—not to prosecute civilians.

SUPREME COURT’S LATEST RULING

In a landmark ruling last week, five Supreme court judges unanimously held that military courts were inadvertently established as disciplinary mechanisms for active UPDF members.

This pronouncement arose during the hearing of an unrelated case involving Lt Ambrose Ogwang, a UPDF officer convicted of murder by the Court Martial and sentenced to death. Ogwang’s conviction was overturned by the Court of Appeal, but the government appealed to the Supreme court.

The director of Public Prosecutions objected to the Court of Appeal’s jurisdiction over military court rulings, and the Supreme court upheld this objection. Justice Lillian Tibatemwa-Ekirikubinza, leading the panel of judges, provided clarity on the jurisdiction and role of military courts.

She stated, “The UPDF courts were better placed to address discipline issues within the rank and file of the armed soldiers… It appears to have been contemplated that the UPDF courts should hold soldiers accountable through a parallel judicial framework, distinct from the courts of judicature.”

Her statement, supported by fellow judges Mike Chibita, Catherine Bamugemereire, Christopher Izama Madrama, and Stephen Musota, underscored the intention of the legislature to confine military courts to UPDF-related cases.

A PENDING SUPREME COURT RULING

This ruling comes as the Supreme court prepares to issue a decision in another pivotal case—an appeal by the Attorney General challenging a Constitutional court ruling that declared the trial of civilians in military courts unconstitutional.

The case was heard in May 2024 by a panel led by Chief Justice Alfonse Owinyi-Dollo and justices Faith Mwondah, Percy Night Tuhaise, Mike Chibita, Monica Mugenyi, Elizabeth Musoke and Catherine Bamugemereire. The forthcoming ruling is expected to provide definitive guidance on this contentious issue.

HISTORICAL RULINGS AGAINST MILITARY COURTS TRYING CIVILIANS

The courts’ stance against the trial of civilians in military courts is not new. In 2016, former Nakawa division member of parliament Michael Kabaziguruka was charged in the General Court Martial with illegal possession of firearms and conspiring against the security of the defence forces. Kabaziguruka challenged his trial in the Constitutional court, arguing that military courts lacked the jurisdiction to try civilians.

In July 2021, the Constitutional court ruled in his favor, highlighting systemic issues within military courts. Justices Kenneth Kakuru (now deceased), Remmy Kasule (retired), and Hellen Obura argued that the General Court Martial lacked the independence required of any judicial body and had unlawfully assumed powers reserved for the judiciary.

The court held that civilians could not be tried in military courts, as doing so violated principles of judicial independence and fair trial enshrined in the Constitution.

Justice Kakuru’s ruling on the scope of the UPDF Act provided a detailed critique of the General Court Martial’s authority, emphasizing its intended limitation to military matters alone. He argued that the Act, which establishes the court-martial, was never meant to have broad application beyond the military, and should not extend to trying civilians.

THE PURPOSE AND LIMITATIONS OF THE UPDF ACT

Justice Kakuru pointed to the UPDF Act as a statute of “special and limited application,” designed solely for the regulation and discipline of UPDF members. He cited Article 210 of the Constitution, which provides parliament with the authority to legislate specifically for the UPDF.

According to Kakuru, this authority is narrowly confined to military matters, and does not include adjudicating crimes outlined in other legislation, such as those under the Penal Code Act. Quoting from the ruling, Kakuru stated: “Section 197 of the UPDF Act clearly states that ‘there shall be a Court Martial for the defence forces.’”

This provision underscores that the General Court Martial is a specialized tribunal for military discipline. Kakuru argued that this exclusivity is further reinforced by the composition and appointment of its members, which are controlled by the UPDF High Command.

THE GENERAL COURT MARTIAL AS AN EXECUTIVE ARM

Justice Kakuru asserted that the Court Martial, by its design, is not part of the judiciary but, rather, a body within the Executive arm of government, as defined under Chapter Twelve of the Constitution, which deals with defense and national security. He explained:

“The General Court Martial, therefore, is a specialized court set by Parliament to address military discipline within the UPDF. It lacks all the tenets of an ordinary court of law established under Chapter Eight of the Constitution.”

This distinction, Kakuru noted, invalidates the court-martial’s jurisdiction over civilians, as it is neither independent nor impartial.

LACK OF JUDICIAL INDEPENDENCE AND IMPARTIALITY

A key concern raised by Justice Kakuru was the inherent lack of independence in the General Court Martial. He highlighted that military courts are staffed by UPDF personnel, including judges, prosecutors, and defense counsel, all of whom remain under the command structure of the military.

This structure, he argued, compromises their ability to deliver fair trials as required under Article 28(1) of the Constitution:

“Military courts are not independent of the Executive. They belong to the Executive. The charges are brought by the Army, the institution to which they belong.”

Kakuru further emphasized the conflict between the UPDF Oath and the Judicial Oath. The former obliges personnel to obey commands from superior officers, which undermines the independence required for judicial impartiality:

“It is self-evident that members of the UPDF cannot constitute an independent and impartial court under the terms of Article 28 of the Constitution. They are persons under command and cannot exercise the independence of judgment required.”

INCONSISTENT APPLICATION OF MILITARY JURISDICTION

Justice Kakuru criticized the selective use of military courts for civilians, contrasting the case of Thomas Kwoyelo, a former Lord’s Resistance Army (LRA) commander, with that of Michael Kabaziguruka, a civilian. Kwoyelo was tried in a civilian court despite his militant background, whereas Kabaziguruka, who had no military ties, was charged in the General Court Martial. This inconsistency, Kakuru argued, further highlights the misuse of military jurisdiction.

JUSTICE OBURA’S CONCERNS ABOUT ALLEGIANCE

Justice Hellen Obura supported Kakuru’s critique, particularly regarding the allegiance of military court members. She noted that members of military courts swear to uphold the UPDF Act, not the Constitution, making their impartiality questionable:

“Unlike in the Judicial Oath, the Chairman and members of the military courts swear to administer justice not according to the Constitution but according to the UPDF Act. Their allegiance is to the UPDF High Command and the President as Commander-in- Chief.”

Obura argued that this dual allegiance undermines the principles of fair trial and judicial independence. She also raised concerns about the influence of superior commands on military court decisions, stating:

“The vow to truly try the accused according to the evidence is subject to the commands the Chairman and members may receive from officers set over them. This completely dilutes the impartiality required.”

IMPLICATIONS FOR JUDICIAL INTEGRITY

Both Kakuru and Obura’s rulings highlight fundamental flaws in the Court Martial’s claim to jurisdiction over civilians. They argue that military courts were never intended to function as parallel judicial systems, and lack the independence and impartiality necessary to adjudicate cases fairly.

These rulings call for a re-evaluation of the use of military courts and reinforce the constitutional principle that all individuals are entitled to independent and impartial trials. Justice Remmy Kasule’s position on the trial of civilians in military courts was unambiguous: he disagreed with the view that aiding and abetting a person subject to military law makes a civilian eligible to be tried by a military court. In his ruling, he asserted:

“A civilian who is alleged to aid or abet a person subject to military law does not become a serving member of the Uganda People’s Defence Forces to be tried by a military court. It is the civilian courts that have jurisdiction over such a person.”

THE CONSTITUTIONAL BOUNDARIES OF MILITARY COURTS

Kasule’s perspective aligns with other rulings that have consistently underscored the constitutional limitations on the jurisdiction of military courts. In a significant decision authored by Justice Elizabeth Musoke, now a Supreme court justice, the court reaffirmed that military courts cannot exercise judicial powers over civilians.

This ruling arose from a case involving retired Captain Amon Byarugaba, Hasibu Kasiita, Mathias Rugira, and 167 others previously tried in the General Court Martial. Justice Musoke’s interpretation of the Constitution was clear:

“The framers of the 1995 Constitution intended that, as a general rule, only the courts outlined under Article 129(1)—the Supreme Court, the Court of Appeal, the High Court, and subordinate courts— would administer justice for civilians. Military courts are not courts of judicature in terms of Articles 126 and 129.”

Musoke, joined by Justices Kenneth Kakuru and Geoffrey Kiryabwire, argued that the UPDF was created to defend the sovereignty of Uganda and manage military discipline, not to administer justice for civilians. She emphasized that parliament lacks the authority to establish courts outside the framework of the Constitution.

DISSENTING VIEWS ON MILITARY COURTS

However, Deputy Chief Justice Richard Butera and Justice Monica Mugenyi dissented. Mugenyi defended the jurisdiction of military courts over civilians who contravene Section 119(1) of the UPDF Act, stating that such individuals subject themselves to military law.

She argued: “It seems to me that a civilian who runs afoul of Section 119(1) of the UPDF Act would, unfortunately, subject themselves to the limitations on appeal that come with the special nature of military trials.”

Mugenyi also dismissed the argument that military courts are inherently incompetent due to their composition, which often includes judges without formal legal training. She contended:

“There is no evidence in this case that the composition of Uganda’s General Court Martial includes individuals without legal expertise. Moreover, the Petitioners have not demonstrated that the complexities of Section 119 of the UPDF Act require only judges with a legal background.”

PRESIDENT MUSEVENI’S DEFENSE OF MILITARY COURTS

President Yoweri Kaguta Museveni recently weighed in on the debate, defending the role of the Court Martial in ensuring national stability. He highlighted its utility in swiftly handling cases involving gun-related crimes and terrorism, which civilian courts, burdened by extensive caseloads, could not address efficiently.

Museveni stated: “The NRM enacted this law in 2005 because of the rampant activities of criminals and terrorists using guns to kill people indiscriminately. Civilian courts were clogged with cases and could not handle these gun-wielding criminals quickly. For stabilization, you need speed. These individuals, although not soldiers, voluntarily acquired killing instruments, which should be the monopoly of the armed forces.”

Museveni credited the Court Martial with helping stabilize Uganda, noting its effectiveness in cases involving individuals who misuse firearms.

IMPLICATIONS FOR POLITICAL AND JUDICIAL STABILITY

The debate over the jurisdiction of military courts is poised to resurface, particularly as Uganda approaches the 2026 general election. Historically, the Court Martial has played a contentious role in dealing with politically charged cases.

In 2020, during the lead-up to the 2021 elections, the Court Martial faced intense scrutiny for its handling of cases involving opposition figures and supporters. This year, it sentenced four National Unity Platform (NUP) supporters to four years in prison for crimes related to possession of military hardware and treachery.

The Court Martial’s continued involvement in political cases raises questions about its impartiality and the broader implications for judicial independence and human rights. Critics argue that the military court’s perceived alignment with the executive arm undermines public confidence in its ability to deliver fair and impartial justice.

THE ROAD AHEAD

As Uganda prepares for another election cycle, the debate surrounding military courts’ jurisdiction over civilians will likely intensify. While proponents, including President Museveni, argue that military courts are vital for national security and swift justice, critics highlight the constitutional and ethical concerns of trying civilians in military tribunals.

The juxtaposition of these views underscores the need for comprehensive judicial reforms to address both the efficiency of the justice system and its adherence to constitutional principles. This ongoing debate will continue to test the balance between maintaining security and upholding the rule of law in Uganda.

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