The recent ruling by the Supreme Court of Uganda in the case of Attorney General vs. Hon. Micheal Kabaziguruka (Constitutional Appeal No. 02 of 2021) marks a significant milestone in the ongoing struggle to uphold constitutionalism and the rule of law in Uganda.
At the heart of the case was the contentious issue of whether military courts have the constitutional mandate to try civilians. The court decisively ruled that military courts such as the General Court Martial (GCM), are not courts of law within the meaning of Articles 126 and 129 of the Constitution.
Instead, they are specialized tribunals designed to handle internal military disciplinary matters. The ruling declared sections of the Uganda People’s Defence Forces (UPDF) Act, particularly Section 119 (1) (g) and (h), unconstitutional for permitting the trial of civilians in military courts, arguing that such provisions violate the right to a fair trial guaranteed under Article 28 of the constitution.
In its judgment, the Supreme court underscored that military courts lack the structural and functional independence required to guarantee impartial justice, especially in matters involving civilians.
The court emphasized that subjecting civilians to military jurisdiction infringes upon the fundamental principles of natural justice, particularly the right to be tried by an independent and impartial tribunal.
Moreover, the judgment highlighted that military courts are part of the executive branch and, therefore, cannot exercise judicial powers over civilians without breaching the doctrine of separation of powers.
This landmark ruling reaffirmed the judiciary’s role as the guardian of constitutional rights, reinforcing the idea that constitutional supremacy cannot be undermined by legislative or executive actions that contravene fundamental freedoms.
President Yoweri Museveni’s response to the Supreme court’s ruling reveals a deep-rooted tension between the executive and judicial arms of government in Uganda. In his public statement, the president expressed clear discontent with the court’s decision, labelling it as a “wrong decision” and suggesting that it was influenced by “foreign-oriented” judicial thinking.
Museveni defended the role of military courts as essential tools for maintaining national security, particularly in cases involving civilians found in illegal possession of firearms. He argued that civilians who voluntarily engage in activities involving military-grade weapons should be subjected to military jurisdiction.
The president praised the dissenting judges who supported the military’s position, while simultaneously advocating for constitutional amendments to overturn the ruling and reinforce military courts’ authority over civilians. President Museveni’s statement raises significant concerns about the independence of the judiciary and the broader implications for Uganda’s democratic governance.
His assertion that “the country is not governed by judges” but by the people through parliament reflects a dismissive attitude toward the judiciary’s constitutional role as an independent arbiter of justice.
By suggesting that the attorney general should propose constitutional amendments to counteract the court’s decision, the president signals a willingness to undermine judicial authority through legislative means. This poses a serious threat to the principle of separation of powers, which is a cornerstone of democratic governance.
It also sets a dangerous precedent where the executive can override judicial decisions, eroding public confidence in the judiciary as a check on governmental power. The implications of both the Supreme court’s judgment and the president’s response are profound for the rule of law
in Uganda.
The judiciary’s firm stance against the trial of civilians in military courts represents a victory for constitutionalism, human rights, and the protection of civil liberties. It reaffirms the idea that justice must be administered by independent courts, free from executive influence.
Conversely, the president’s reaction highlights the fragility of these democratic gains, as it reflects an executive tendency to prioritize state security over individual rights and constitutional safeguards.
Museveni’s reference to the military courts’ role in pacifying regions like Karamoja further underscores how security concerns are often used to justify the erosion of fundamental freedoms From a democratic perspective, the president’s remarks and proposed legislative changes risk entrenching authoritarian tendencies in Uganda.
The call for constitutional amendments to counter judicial decisions undermines the democratic process and the principle of constitutional supremacy. It also threatens civil liberties, particularly for opposition leaders, activists, and ordinary civilians who may face politically-motivated prosecutions under military jurisdiction.
The judiciary’s independence, which is essential for upholding the rule of law, is weakened when the executive openly challenges court rulings and seeks to alter the legal framework to serve its interests.
In conclusion, the Supreme court’s judgment in this case represents a bold assertion of judicial independence and a critical defence of constitutional rights in Uganda. However, the president’s reaction exposes the enduring struggle between the judiciary and the executive over the interpretation and application of the law.
This confrontation reflects broader challenges facing Uganda’s democracy, including the erosion of judicial authority, the manipulation of constitutional processes, and the tension between security imperatives and human rights.
The outcome of this legal and political battle will have lasting implications for the rule of law, the separation of powers, and the future of democratic governance in Uganda.
The author is a research fellow at the Advocates Coalition for Development and Environment (ACODE).
jmbabazi@acode-u.org
Of course many of the Pan African legal intellectual brains were seeing this sort of affairs coming up again. One believes that the financial gain was too much for the rich and powerful individuals of Uganda to try and stop such authoritarian governance to make a come back. Look at that scientist Frankestein and the monster he did experiments with and created it to make it fit into human society. Unfortunately when society shunned the bloody thing, it turned its revenge against the brainy scientist. For Uganda, it is now very clear that the African hunters are these days becoming the African hunted at greater cost to this poor African country! No wonder the traditional Ganda tribes people have an amazing saying! Ssengavuddemu, Ngazeemu!