Kiroywa Kiwanuka, in a speech at the opening of the New Law Year 2023, said he’s now confused and doesn’t know how to offer legal advice to government in regards to the matter.
“The president of the Uganda Law Society mentioned the recent case of the Court of Appeal on the trial of civilians at military courts. Now I’m in pain. Because everyone is quoting the recent judgment, but I have a Supreme court judgement. So how do I advise?” wondered Kiryowa.
“Do I follow the Court of Appeal judgment? Do I follow the Supreme court judgment? Because the Supreme court judge said it is okay. You can do it because you can follow these rules – the rules of precedence, the rules that govern our practice,” he said.
Kiryowa claims due to the contradictions between the two judgments, he has resorted to the rules that govern the court practice.
“Because once the court gives me a clear signal of what it expects as the answer, that is the opinion that you expect from the attorney general’s chamber,” he said
In December 2022, the Constitutional court in a judgement said it was illegal to try civilians in military courts. The judges, in a majority decision of 3-2 said under the 1995 Constitution, the trial of civilians is the role of civilian courts of judicature.
“I would declare that the UPDF Act, 2005 to the extent that it may be understood as conferring jurisdiction on military courts to try civilians is unconstitutional and therefore null and void,” justice Elizabeth Musoke, who wrote the lead judgment noted.
It was the second time that the Constitutional court was delivering a judgment barring courts from trying civilians. Uganda Law Society president Bernard Oundo again voiced concerns over the continued trial of civilians in military courts despite the judgments by the Constitutional court. He demanded that the military courts be retained only for soldiers and civilians only be tried in civilian courts.
The trial of civilians by the military has been criticized at local, regional, and international levels. Human Rights Watch in a report, “Righting Military Injustice: Addressing Uganda’s Unlawful Prosecutions of Civilians in Military Courts,” documents the pattern of trials of civilians before military courts, the ways in which such trials violate international legal principles, and the steps Uganda should take to address these fair-trial violations.
Uganda is among some of the countries in Africa which have been criticized by the African Commission on Human and People’s Rights over trials of civilians by the military under the UPDF Act. The African Commission has emphasized the fact that military courts should respect the guarantees of the right to a fair trial.
The African Commission has held that “military tribunals must be subject to the same requirements of fairness, openness, justice, independence and due process as any other process” Ugandan courts have grappled with the questions of whether the General Court Martial has jurisdiction over civilians; whether the courts-martial are independent and impartial courts in the meaning of Article 28(1) of the Constitution.
Is AG running away from responsibility?
Kiwanuka’s utterances attracted murmurs among some of the lawyers who were in attendance at the High court. Makerere University law don Dr Ronald Naluwayiro, who is also an expert on military justice and human rights was seemingly not convinced by the argument raised by the attorney general.
“But he is the attorney general, and he knows the hierarchy of courts. The Supreme court decision takes precedence. The two decisions by courts have to be seen in the light of Uganda’s international obligations. I draw your attention to the reports of the African Commission of Human and People’s Rights,” said Naluwayiro, who has published several articles about military courts and human rights.
Justices Kenneth Kakuru, Geoffrey Kiryabwire and Elizabeth Musoke held in 2022 that by enacting the UPDF Act, parliament acted beyond its powers and created courts that were never envisaged in the Constitution.
“It becomes clear that the framers of the 1995 Constitution intended that, as a general rule, only the courts spelt out under Article 129(1) would be involved in the administration of justice for civilians. These courts are the Supreme court, the Court of Appeal, and the High court as superior courts of record.
“The framers of the 1995 Constitution also permitted parliament to create such subordinate courts as it would deem fit… it is in my view, incontrovertible that military courts are not courts of judicature…that as a general rule, such military courts have no role in the administration of justice for civilians. They are neither superior courts nor subordinate courts,” Musoke held.
According to justice Musoke, the framers of the 1995 Constitution intended to establish an armed force, whose chief function is to defend the sovereignty of Uganda, and they allowed the UPDF to exercise additional functions, but these functions did not extend to the field of administration of justice for civilians.
A similar judgment was delivered in July 2021 in the famous Michael Kabaziguruka petition. The judges held that military courts were not courts of judicature that the Constitution talks about. The lead judgment written by justice Kakuru and joined by justice Remmy Kasule and Hellen Obura observed that the UPDF Act was never intended to be an Act of general application.
The court in 2022 ordered that all files of civilians in military courts should be transferred to the High court in 14 days under the stewardship of the DPP.
The UPDF Act provides for circumstances in which the General Court Martial has jurisdiction over civilians. For example, section 119(1) of the UPDF Act provides that “persons subject to military law” include serving military officers and: (g) 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; and (h) every person found in unlawful possession of (i) arms, ammunition or equipment ordinarily being the monopoly of the defence forces; or (ii) other classified stores as prescribed.
On the basis of section 119(1)(g) and (h), many civilians have been prosecuted before the Army court for offences such as the unlawful possession of firearms or ammunition, aiding and abetting soldiers to commit offences, and treason.
inarticle} inarticle}