‘Should civilians be tried in Military Courts?’

Kampala, Uganda | THE INDEPENDENT | The Supreme Court will deliver its judgment on notice in the case where the government is challenging the Constitutional Court’s decision barring military courts from trying civilians. This pending case was filed as an appeal by the Attorney General following a successful petition by Former Nakawa Member of Parliament Michael Kabaziguruka.

In 2021, the Constitutional Court Majority of Justices, comprising the Kenneth Kakuru, Hellen Obura, and Remy Kasule (with Madrama and Musota dissenting), ordered that the files for all civilians facing trial before the General Court Martial be transferred to civil courts through the office of the Director of Public Prosecutions within 14 days.

Kabaziguruka first petitioned the Constitutional Court in 2016, challenging the trial of civilians in military courts after being arraigned before the Makindye General Court Martial on charges of treachery, alleging an attempt to overthrow the government of Uganda. He argued that his trial before the military court was unconstitutional and that he had been denied the right to a fair hearing.

Based on this, the Majority of the Constitutional Court justices ruled that although the Court Martial is a competent court, its powers are limited to serving officers of the Uganda People’s Defense Forces. They ordered that all civilians serving sentences imposed by military courts have their files transferred to the High Court Criminal Division for either retrial or handling as the court deems fit. The same justices ruled that a civilian can then be charged as an accomplice.

However, the Attorney General challenged these orders and filed an appeal in the Supreme Court seeking to nullify the Constitutional Court’s decision. The Attorney General also requested a stay of execution, arguing that the appeal challenging the decision would be rendered useless if the Constitutional Court’s orders and declarations were implemented before the appeal’s determination, hence civilians continuing to be tried in military courts.

On Monday, the matter came before a Panel of Seven Supreme Court Justices, including Alfonse Owiny-Dollo Chigamoy, the Chief Justice, Faith Mwondha, Percy Night Tuhaise, Mike Chibita, Monica Mugenyi, with Elizabeth Musoke and Catherine Bamugemereire appearing on Zoom. Kabaziguruka’s lawyer, Medard Lubega Sseggona, stated that the matter was heard after they received summons from the Supreme Court to appear today, but it had reached the judgment stage.

He said they made oral and written submissions, and the matter was left for judgment. In response, the Attorney General, represented by the Commissioner for Civil Litigation George Kallemera and State Attorneys Geoffrey Madette and Brian Musota, agreed with Sseggona, noting that the appeal was heard on September 30th, 2021. “We were allowed to highlight our submissions in court, and it was adjourned for judgment on notice,” said Kallemera.

Chief Justice Owiny-Dollo acknowledged the delays in the case, attributing them to unfortunate circumstances such as the deaths of two justices and the retirement of two others, which necessitated reconstituting the panel. “We had to reconstitute and hear the matter afresh since we had no control over the matters. We will deliver the judgment sooner than later,” said Owiny-Dollo.

Col Moses Wandera, Deputy Chief of Legal Services in UPDF, Col Raphael Mugisha, Director of Prosecutions at the General Court Martial, and Major Edgar Musasizi, Director of Civil Affairs in UPDF, were present in court following the proceedings on behalf of the Army.

In the appeal, the Attorney General argues that the learned majority justices of the Constitutional Court erred in law and fact by finding that Sections 2 and 179 of the UPDF Act contravene Articles 28(1) and 44 C of the 1995 Constitution and that the General Court Martial is only competent to try disciplinary offenses.

The Attorney General also faults the justices for finding that the General Court Martial is not impartial or independent and does not apply the provisions of fair hearing to persons subject to military law. “The learned majority justices of the Constitutional Court erred in law and fact in determining that charging and arraigning the petitioner before the GCM was inconsistent with Article 28 (1) and 44 (c) of the Constitution,” reads the Appeal.

The Attorney General argues in submissions that arraigning and charging a civilian before the General Court Martial together with other members subject to military law is in pursuance of the law passed by Parliament as empowered by the constitution.

The government maintains and agrees with the Constitutional Court that a civilian can be charged as an accomplice and that the jurisdiction over persons found in unlawful possession of ammunition, arms, or equipment and other stores ordinarily in the possession of the UPDF or prescribed by Parliament in the contested section 119(1)(h) of the UPDF Act.

Kabaziguruka also filed a cross-appeal, saying that the learned majority justices erred in law in holding that a civilian can be charged before military courts as an accomplice together with a person subject to military law. Through his lawyer Ssegona, he asked that his cross-appeal be allowed with costs and part of the decision of the majority justices that so held be set aside and reversed.

Speaking to Our Reporter after the court session, Sseggona said that President Yoweri Kaguta Museveni continues to use military courts only to suppress his political opponents. But he is not using the Courts Martial in line with the purposes for which they were created.

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