Injustice in camouflage: the looming legalisation of armed judicial authority

At the start of last week, news broke that the Uganda People’s Defence Forces (Amendment) Bill 2025 was set to be tabled in parliament.

This development ignited a range of opinions from concerned citizens and astute military law academics regarding the propriety of the clauses, the haste in consultations, and its overall ramifications.

The object of the bill is couched in a language of reform; however, the provisions regarding the proposals for the reconstruction and re-establishment of the court martial represent a dangerous reconfiguration of civilian subordination to military authority.

The bill presents perhaps the most recent and insidious encroachment on the rights of the people and an attack on judicial authority. To be fair, there are positive aspects of the bill, such as disability compensation, which may be commendable.

However, this bill will solely focus on clauses that portend the erosion of judicial authority, undermine civil liberties, and threaten democracy. It is essential to recognize from the outset that military courts worldwide operate under different standards of evidence and procedure, prioritizing efficiency and discipline over the rights of the accused.

While this divergence is understandable within the strict confines of military discipline, it becomes perilous when applied to civilians. Military courts are designed to maintain order within the rigid hierarchy of the armed forces, where obedience is paramount, and due process often takes a backseat.

In Uganda, before its disbandment, the court martial was used as a tool to circumvent civilian courts, particularly in politically-sensitive cases involving dissent, treason, or civil unrest.

This was not merely an administrative convenience; it represented a judicial circumvention and usurpation in disguise. Today, we find ourselves yet with another attempt to cloak militarized justice in the camouflage of innocuous legislative deception.

The bill vaguely defines a service offence as one under it, creates a rather broad and undefined exceptional list of other persons subject to military law under clause 30. Clause 35 introduces the Unit Court Martial, provides a new role for the Judicial Service Commission, stipulates that members of the defence forces must be current serving personnel, and vests it with broad jurisdiction to try any offenses under the UPDF Act with penalties not exceeding five years under any written law.

Furthermore, it grants the chairperson final authority on legal and procedural matters. Clause 36 regarding the Division Court Martial proposes that the chairperson be an advocate and delineates the role of the Judicial Service Commission.

It also emphasizes the finality of the chairperson’s decision. Most confoundingly, it vests the Division Court Martial with the jurisdiction to try any offense under the UPDF Act or any other written law, except for offenses where the maximum penalty is death.

Clause 38 also establishes the General Court Martial (GCM). It specifies that the chairperson must be qualified to be appointed as a High court judge and provides that the chairperson and members shall be serving members of the defence forces.

The GCM is granted sweeping authority to try any offenses under the UPDF Act and any other written law. Clause 45 introduces the Judicial Oath for members of the court martial and, interestingly, establishes their independence from command. Clause 57 allows appeals but does not affect court martial sentences, except death sentences.

Drawing from this summary, the bill creates an unnecessary fusion of judicial and military functions by establishing military judicial roles and implying the integration of the military judicial system into the hierarchical framework of the formal civilian judicial system, with the GCM equivalent in jurisdiction to the High court, with parallel and competing jurisdiction.

While advocates argue that military courts are needed for swift adjudication of offenses unique to military life, such as desertion or insubordination, the exercise of judicial functions within these courts raises profound concerns about justice and fairness.

The encroachment of military authority into civilian judicial territory strengthens the grip of the armed forces over civilian life. It tilts the balance of power away from civilian institutions and judges and towards the closed, command-driven world of the military elite.

If the bill passes, it won’t be long before military servicemen are appointed into the judiciary; after all, what would stop a ‘military judge’ under clause 38 from appointment? Regarding the independence of the members of the court-martial, there seems to be a conflation of impersonality with impartiality, as well as a mechanical interpretation of independence, as if it were merely defined by a written document.

How can one be independent yet they are part of the armed forces, and by extension, the executive? The justifications for these proposals are shallow and ring hollow. Military courts cannot deliver this kind of justice.

They are designed to command, not to deliberate; to punish, not to protect rights. Military courts are staffed by personnel who remain under the command structure of the UPDF, despite whatever oath they take, be they uniformed judges, prosecutors, or defence counsel.

This dual role compromises their ability to act impartially, as military judges and officers are bound by an oath to obey superior officers, potentially conflicting with the judicial oath to deliver unbiased justice.

The lack of independence is starkly at odds with constitutional guarantees of fair trials, as military courts are effectively extensions of the executive branch rather than autonomous judicial bodies.

The writer is a lawyer.

dominicadeeda3@gmail.com