Army court has no power to try civilians – Constitutional court

Kampala, Uganda | THE INDEPENDENT | The Constitutional court has for the second time in less than two years ruled that military courts have no power to try civilians. In a majority ruling written by now Supreme Court Justice Elizabeth Musoke, the court held that military courts are not courts of judicature as defined by the constitution and therefore, can’t try anybody beyond those in military service.

In a petition filed by 167 people led by Among Byamugisha, a retired captain of the National Resistance Army, they contended that although the UPDF Act contains certain provisions that give military courts jurisdiction to try civilians for criminal offenses in some instances, these provisions are unconstitutional because they are contrary to the dictates of a number of provisions in the 1995 Constitution.

The petitioners contended that the basic objective of the UPDF is to preserve and defend the sovereignty and territorial integrity of Uganda and therefore has no role in dispensing justice to the civilian population. They also added that even if the UPDF had powers to try civilians, the bar set by the constitution to what constitutes a fair trial is too high to be met by the military courts. They said the military courts cannot be independent and impartial because the members of the court lack security of tenure as they are appointed for a period of one year and they dissolve anytime at the discretion of the convening authority.

They argued that members of the military court are appointed by the High Command whose chairperson is the president, a politician who may convene the court to achieve political objectives, and that they are not separate from the executive but are an extension of it and they try cases investigated by the military and prosecuted by the military contrary to natural justice, that an accuser should not be a judge in his cause.

The petitioners also contended that because the military court panels are made of people who are not lawyers, they face a problem of appreciating complex issues of evidence. They therefore implored the court to rule unconstitutional, several sections of the UPDF Act that relates to trying civilians in military courts.

In her ruling joined by Justices; Kenneth Kakuru and Geoffrey Kirwabwire, Musoke held that by parliament enacting the UPDF Act, it acted beyond its powers by creating 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 spelled 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.

She added that the framers of the 1995 Constitution intended to establish an armed force, whose chief function is to defend the sovereignty of Uganda, and that they allowed the UPDF to exercise additional functions, but these functions did not extend to the field of administration of justice for civilians.

“The framers permitted Parliament to make laws for the regulation of the UPDF, but these laws…couldn’t relate to the functions of the UPDF, and not purport to venture into a realm of functions which could not be exercised by the UPDF…Parliament was authorized to make a law to regulate the discipline of members of the armed forces. The Military Courts may be linked to the discipline of members of the armed forces, not to the discipline of civilians. Yet Parliament, when purporting to proceed…, created Military courts and gave them judicial powers to try nonmembers of the armed forces,” Musoke ruled.

Having found that military courts have no jurisdiction to try civilians, the court ordered all files currently under consideration to be remitted to the Director of Public Prosecution for onward management.

“The petitioners propose that this court orders that civilians who have been charged and are awaiting trial in Military Courts, and those whose trials have been partially completed, should have their cases transferred to civilian courts and taken over by the Director of Public prosecutions. In my view, this court is obligated to make this order, which flows from the finding that Military Courts have no jurisdiction to try civilians. I would therefore order that cases in which civilians have been charged before the Military Courts but have not been tried, and those in which trial has been partially completed, should immediately be transferred to a competent civilian Court of Judicature,” Musoke ruled.

She however declined the petitioners’ other prayer of annulling all the convictions that the military courts handed over to civilians in the past.  “In the present case, Military Courts were exercising a lawful mandate under the UPDF Act, when they tried, convicted, and sentenced several civilians for criminal offenses prior to the date of this decision. Considering that this Court has only found that mandate unconstitutional, it follows that applying the principle of prospective annulment, the relevant convictions, and sentences rendered prior to this decision shall remain valid. However, any trial, conviction, or sentencing of a civilian in a Military Court henceforth shall be rendered null and void ab initio,” Musoke ruled before awarding Byarugaba, the lead petitioner costs.

The Court’s ruling is not different from that which was issued on July 1, 2021, in which it also held that military courts were not courts of judicature that the constitution talks about. The 2016 challenge to the UPDF Act which creates Court martial, was brought by then Nakawa Division Member of Parliament Michael Kabaziguruka. In the lead judgment written by Justice Keneth Kakuru and joined by Justice Remmy Kasule and Hellen Obura, the court observed that the UPDF Act was never intended to be an Act of general application.

“It does not extend to regulation or adjudication of crime set up under other legislation. Those functions are provided for in other Articles of the Constitution that establish the judiciary, the Police and Prisons Service, and the Directorate of Public Prosecutions among others. The General Court Martial, therefore, is a specialized Court set up by Parliament to deal with military discipline within the UPDF….it lacks all the tenets of an ordinary Court of law established under chapter eight of the Constitution. The Court-Martial is not part of the judiciary. It is part of the executive arm of government established under chapter Twelve of the Constitution which provides for the country’s Defense and National security,” the judgment reads in part.

It also 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 Attorney General who is sued on behalf of the government disagreed with the ruling and appealed it in the Supreme Court which is yet to determine it. In that judgment Justices; Christopher Madrama and Steven Musota dissented; ruling that for as long as civilians are subject to military law for example in the case of being found with military hardware, a preserve of the armed forces, then the Court Martial has powers to try them.

This thinking is also echoed in the present ruling of Justice Monica Mugenyi who was joined by Deputy Chief Justice Richard Butera in dissent. In her leading dissent, Mugenyi held that “The circumstances under which this may arise cannot be identical with each nation-state but they must of necessity be spelled out succinctly in a public law… I find no merit in the assertion that the investigation and prosecution of matters before military courts by military persons renders the said courts an extension of the Executive branch of government. ln the same vein, it seems to me that a legal aid service that is well versed with military processes may be more astute for purposes of courts-martial than those with a legal background,” Mugenyi held.

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