Why MPs sent civilians back to court martial

The Supreme court last month delivered a landmark ruling prohibiting the trial of civilians in Uganda’s military courts, declaring the General Court Martial a tribunal lacking the independence and impartiality required for fair trials.

This decision, handed down last month, has significant legal and political implications, leading to immediate moves by the ruling National Resistance Movement (NRM) parliamentary caucus to amend the Uganda Peoples’ Defence Forces (UPDF) Act.

Following the ruling, the NRM caucus voted recently in favor of new amendments to the UPDF Act, including a provision allowing the trial of civilians who illegally acquire specified firearms in the Court Martial. Government chief whip Denis Obua confirmed this resolution.

“We resolved that misconduct by serving military personnel will first be tried by the General Court Martial, with the right to appeal through civilian courts. Similarly, civilians who illegally acquire specified firearms will also be tried first by the Court Martial, with the right to appeal through civilian courts,” said government chief whip Denis Obua in a brief statement.

NRM CAUCUS AND THE UPDF AMENDMENT BILL

The caucus decision followed a high-level meeting at State House Entebbe, where members resolved to withdraw the UPDF Amendment Bill 2024 from Parliament. The bill had originally sought to reform the Uganda Peoples’ Defence Forces Act by aligning it with evolving government policies, changes in command structures, and new administrative provisions.

Additionally, it aimed to improve the welfare of defence Forces personnel by addressing gaps in healthcare services, transferring their pension from the ministry of Public Service to the ministry of defence and Veteran Affairs, and strengthening disability compensation mechanisms for military officers and enlisted personnel.

However, the Supreme court’s decision rendered some aspects of the bill legally untenable, necessitating a review before it could proceed in Parliament.  The Supreme court’s ruling stemmed from a constitutional appeal filed by former Nakawa Municipality MP Michael Kabaziguruka, who challenged the military courts’ authority over civilians.

The court found that the General Court Martial lacked the constitutional mandate to try civilians and that its structure and procedures violated Uganda’s constitutional guarantees of fairness and impartiality. Justice Catherine Bamugemereire, in her ruling, asserted that the General Court Martial is not an independent judicial body but a military tribunal whose primary function is to enforce military discipline.

She argued that allowing it to try civilians undermined the fundamental principles of justice and due process. She further emphasized that military personnel accused of committing offenses against civilians should be tried in civilian courts, ensuring proper legal safeguards.

Justice Monica Mugenyi argued that the military court system lacked the neutrality and structural independence necessary for fair trials. Chief Justice Alfonse Owiny-Dollo concurred, highlighting that the military tribunal’s structure did not provide adequate legal protections to ensure impartial justice.

“I find that the military court system in Uganda lacks the independence and impartiality required under the Constitution to guarantee a fair trial. The respondent’s concerns about the General Court Martial’s objectivity were justified,” stated Chief Justice Owiny-Dollo.

The court ruled that sections of the UPDF Act granting blanket jurisdiction to military courts over civilians were unconstitutional. Specifically, it struck down sections 2, 179, and 119(1)(h) and (g) of the UPDF Act, which had empowered the General Court Martial to try individuals subject to military law for civil or non-disciplinary offenses.

The justices declared that this overreach contravened Articles 209 and 210 of the Constitution, which define the role and functions of Uganda’s armed forces.

IMPLICATIONS FOR UGANDA’S LEGAL AND SECURITY FRAMEWORK

The Supreme court’s decision significantly altered Uganda’s legal landscape, reinforcing the principle that civilians should be tried in civil courts regardless of the nature of their offenses. The ruling sets a precedent for the limitation of military jurisdiction and strengthens constitutional protections for fair trials.

However, the NRM caucus’ swift response to push for legislative amendments suggests that the government seeks to retain some form of military jurisdiction over civilians in specific cases, particularly those involving firearms possession. This proposal could face further legal challenges, as any provision allowing civilians to be tried in military courts may be seen as undermining the Supreme court’s ruling.

SUPREME COURT ORDERS TRANSFER OF CIVILIAN CASES

The Supreme court issued a decisive ruling mandating the immediate transfer of all cases involving civilians from military courts to civilian courts with proper jurisdiction. The decision effectively ended the long-standing practice of trying civilians in military tribunals, reinforcing the principle that civil courts have exclusive jurisdiction over non-military offenses.

In its ruling, the court stated that all pending or partially heard criminal cases that fall within the jurisdiction of civilian courts, including those involving UPDF personnel subject to service law, must be transferred to civil courts with competent authority. This directive is aimed at ensuring that all individuals, regardless of their association with the military, receive trials in independent judicial institutions that guarantee fairness and due process.

RESTRUCTURING THE GENERAL COURT MARTIAL

Beyond ordering the transfer of civilian cases, the Supreme court directed the executive and Parliament to restructure the General Court Martial (GCM) by integrating it into the High court as a specialized division. Under this proposed framework, magistrates within the military division would preside over cases within their jurisdiction, ensuring that legal proceedings adhere to judicial standards applied in civilian courts.

To further enhance judicial independence, the court ruled that judicial officers presiding over military courts must be civilians with legal qualifications, appointed through the Judicial Service Commission (JSC). These officers would enjoy the same privileges, protections and tenure security as their counterparts in civil courts.

This move aimed to eliminate undue military influence over judicial proceedings and uphold constitutional guarantees of impartiality. In addition to recommending institutional reforms, the court advised parliament to amend the Constitution to create superior courts within the military justice system under Article 129.

These courts, if established, would have specific jurisdiction over military offenses of a capital nature, as well as other capital offenses committed by military personnel under existing laws. The proposed constitutional amendment seeks to grant military courts the necessary authority to handle internal disciplinary matters while maintaining a clear distinction between military and civilian judicial processes.

By embedding these military courts within Uganda’s broader judicial system, the reforms would address concerns about due process while preserving the military’s ability to enforce discipline among its ranks.

The NRM caucus’ recent resolution to amend the UPDF Act, allowing civilians found in possession of certain firearms to be tried in military courts, has sparked widespread criticism from legal and human rights experts. Many argue that the move undermines the recent Supreme court ruling, which declared the trial of civilians in the General Court Martial unconstitutional.

COURT MARTIAL AS A POLITICAL TOOL

Human rights lawyer George Musisi emphasized that the issue is not solely legal but deeply political. He argued that the military court system has long been weaponized to target political opponents, particularly given its direct subordination to the commander-in-chief.

Musisi criticized the increasing use of the court martial against opposition supporters, arguing that many cases lack credible evidence. He pointed to the National Unity Platform (NUP), stating that over the past five years, numerous supporters have faced military trials despite not being found in possession of weapons.

“For instance, if you look at the National Unity Platform (NUP) over the last five years, many of its supporters have been subjected to court martial proceedings, yet none have been caught with weapons. The charges often involve allegations such as possession of attire resembling army uniforms or other trivial accusations, including having water bottles, T-shirts or caps,” he noted.

He further alleged that authorities have gone as far as planting evidence. He cited the case of NUP’s Eddie Mutwe and others who were arrested in Kalangala on December 30, 2020, during election campaigns. Despite being in detention, they were later charged on January 3, 2021, with possession of four bullets in Makerere.

“How could they have been found with bullets in Makerere when they were all detained in Masaka at the time? Yet they remained in prison for six months on such charges,” Musisi questioned.

He noted that the court martial’s low evidentiary standards make it an easy tool for suppressing political opposition.

WARNINGS AGAINST ABUSE OF POWER

Bob Kirenga, executive director of the National Coalition of Human Rights Defenders, predicted that the proposed amendment would inevitably pass, given the NRM’s parliamentary majority.

He criticized the ruling party’s MPs, saying, “Unfortunately, we have a House run by 21st-century illiterates—not because they cannot read or write, but because they have failed to learn, relearn and unlearn. They have ignored history, yet they may soon fall victim to the very laws they are pushing through.”

Kirenga expressed deep distrust in the military court system, arguing that it has been systematically used to prosecute civilians over political disagreements.

“Once someone is perceived as a threat to the political system, they are charged in the court martial, where due process is frequently bypassed. It is a convenient shortcut,” he said.

He urged policymakers to reflect on why the public mistrusts military courts.

“It is not enough to claim that someone was found in possession of military equipment. Civilians should be tried in civil courts, and the burden of proof should rest on the accuser,” he stated.

Kirenga emphasized that military tribunals should be reserved for military personnel, given the fundamental differences in how soldiers and civilians are trained and disciplined.

“In the military, orders are absolute and not to be questioned, whereas in civilian law, one can challenge an order as unlawful. This difference makes it unjust to subject civilians to military trials,” he explained.

Kirenga further highlighted instances where authorities have allegedly tampered with government stores or planted evidence to frame civilians.

“If someone comes to search your house and suddenly, outside your view, a magazine of AK-47 bullets appears, the burden unfairly shifts to you to explain its presence,” he warned.

He also criticized members of parliament for allowing executive influence to dictate their decision-making.

“The fact that MPs were summoned to State House to discuss this as a caucus is a clear indication that the bill will pass. Why couldn’t they deliberate independently in parliament without the president’s involvement?” he asked.

He linked the timing of the bill to Uganda’s approaching electoral period, suggesting that many politicians were aligning themselves with the president to secure resources and political survival.

“No one wants to oppose him, and that is the biggest challenge we face. Instead of strengthening institutions, we are weakening them. These amendments will not serve the ordinary citizen,” he lamented.

Busiro East MP Medard Lubega Sseggona, one of the lead lawyers in the constitutional petition that led to the Supreme court ruling, insisted that any new legislation must comply with the Constitution and align with the Supreme court’s guidance.

He accused NRM MPs of acting in bad faith, arguing that their push for the amendment directly violates Article 92 of the Constitution, which prohibits parliament from passing laws that overturn court decisions.

“Article 92 clearly states that parliament cannot enact laws to override or nullify court decisions. We shall challenge this with vigor,” Sseggona asserted.