The Independent Uganda: You get the Truth we Pay the Price
Kampala, Uganda | THE INDEPENDENT | The Supreme Court, led by Chief Justice Alfonse Owiny-Dollo, has proposed eight significant recommendations to the Executive and Parliament, aiming to reform the military court system in Uganda. The reforms arise from a long-awaited judgment in the unsuccessful appeal filed by Attorney General Kiryowa Kiwanuka, seeking to maintain the trial of civilians in the court martial.
However, after dismissing the government’s appeal and finding that the trial of civilians in the court martial was unconstitutional, the Supreme Court made several proposals in the case that was originally filed in the Constitutional Court by Michael Kabaziguruka, the former Nakawa West Member of parliament.
He had initially been charged with treachery in 2016 but he challenged the trial since he was a civilian and the Constitutional court agreed with him, thus, an appeal by the government. To begin with, Owiny-Dollo suggests establishing the General Court Martial (GCM) as a division of the High Court, handling capital criminal cases involving both military officers and civilians. Magistrates within the division would handle offenses falling under their jurisdiction.
Another recommendation is to limit the functions of Unit Disciplinary Committees (UDCs) and Summary Trial Authorities (STAs) to handling strictly disciplinary offenses, with no power to impose imprisonment sentences. The Chief Justice also proposes utilizing the existing magistracy to handle criminal cases, except disciplinary offenses, committed in Uganda. Subordinate military courts would handle cases at the level of Chief Magistrate’s Courts.
Additionally, Owiny-Dollo recommends appointing civilians with professional legal qualifications to serve as judicial officers in subordinate military courts, with the advice of the Judicial Service Commission. Other options include amending the Constitution to establish superior courts within the military court system, providing for the High Court to sit as a Court Martial, and making provisions in the UPDF Act for the trial of civilians in military courts under limited circumstances.
“The current military courts operate in violation of the constitutionally enshrined and securely protected rights to a fair hearing that are equally recognized universally in Conventions and other instruments. Thus, there is a need for a robust legislative intervention to ensure the UPDF Act is by the cherished aspirations of the people of Uganda as was unmistakably captured in the Odoki Commission Report”, said Owiny-Dollo.
Furthermore, Owiny-Dollo suggests making provisions in the UPDF Act for appeals from military courts and tribunals, corresponding to appeals in ordinary courts. Lastly, the Chief Justice emphasizes that in each of the options suggested, the jurisdiction of UDCs and STAs must be limited to handling strictly disciplinary offenses, with no power of detention or imprisonment, as is the case with other disciplined forces such as the Police and Prisons.
“However, this special exercise of jurisdiction must not infringe on the soldiers’ rights to a fair hearing. The State needs to act to ensure that the character of military courts and tribunals meet the democratic standards and aspirations of the people, which are enshrined in the Constitution”, said Owiny-Dollo.
Chief Justice Alfonse Owiny-Dollo has appealed to the lawyers and general public to avoid non constructive criticism saying that attacking the Chief Justice or the Judiciary is like attacking yourself. He said the citizens need the judiciary (Judiciary) because whenever they get problems, they always run to the Judiciary. According to Owiny-Dollo, constructive criticism is always welcome when it is done professionally by either writing to him formal complaints or going to his office to find out what is happening.
He said they took an oath to decide the cases without fear or favor and that bad criticism is like a monkey burning a forest where it stays. Owiny-Dollo welcomed those who stepped on his toe telling them not to fear coming to him and to learn to say sorry. He explained that the criticism was caused by delayed judgment yet they lost two Supreme Court, Justices Rubby Opio Aweri and Stellah Arach Amoko who were part of the panel and again when they reconstituted it, two other Judges retired thus suffering a major setback on timely delivery.
Prior to making these recommendations which he described as advisory and not mandatory for Parliament and Cabinet to adopt, the Supreme Court led by Owiny-Dollo declared that the Summary Trial Authority (STA) and the Unit Disciplinary Committee (UDC) are respectively lawfully established under the UPDF Act, as military tribunals. The provision of section 197 (now section 195) of the UPDF Act, establishing the General Court Martial as a competent court, is constitutional. The General Court Martial, created under section 197 (now section 195) of the UPDF Act, is a subordinate court of law; but with specialized jurisdiction.
He also ruled that the declaration of the Constitutional Court that section 119(1) (g) (now Section .117 (1) (g)) of the UPDF Act, which provides that any person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offense is constitutional, is hereby set aside. “All charges, or ongoing criminal trials, or pending trials, before the courts martial involving civilians must immediately cease and be transferred to the ordinary courts of law with competent jurisdiction”, held the Supreme Court.
The Court also ruled that the judgment shall have no retrospective effect on any conviction made, and sentences imposed, prior to the date of this judgment; save where the conviction and sentence is being challenged in a Court of law. All pending trials, or partly heard criminal cases, that fall under the civil law courts jurisdiction, which are against members of the UPDF who are subject to service law must be transferred to the civil Courts with competent jurisdiction.
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