The Supreme Court on Friday, by majority judgement, outlawed the trial of civilians in Military Courts and issued a number of orders and declarations which must be put in place to ensure that the rule of law prevails in the country.
On outlawing the trial of civilians in Army disciplinary tribunals, the Court ruled that the Unit Summary Trial Authority (STA) and the Unit Disciplinary Committee (UDC) are respectively lawfully established under the law; however, they operate under inconsistent provisions which were established in violation of the Constitution.
“The provisions of s.179 (1) & (2) (now 177(1) & (2)) of the UPDF Act, read together with sec 197 (2) (now s.195 (2)), which grant the Subordinate military courts jurisdiction over capital offences, contravene Art. 129(1) (d) and Art. 126(1) of the Constitution; hence they are unconstitutional.”
The Court also ruled that the provision of section 191(3) (a) (now s.189 (3) (a), and s.195 (3) & (4) (now 193) (3) & (4)) read together with s.179 (now s.177) of the UPDF Act, which grant the STA and the UDC the exercise of judicial power of detention and imprisonment of any person tried by them, contravene Arts. 23, 126(1), and 129 (1)(d) of the Constitution; hence, they are unconstitutional.
The provision of s.119(1) (g) (now s. 117 (1) (g)) which tries, in the court martial, civilians who have allegedly aided and abetted the commission of a service offence, or ordinary criminal offence, in which a person subject to military law is a principal offender, was also declared unconstitutional.
This provision has been the major reason why many civilians have been charged before the General Court Martial.
Orders
The Court ordered 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 offence, is unconstitutional and thereby be 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.
- This 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.
The Chief Justice also noted that 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.
Advisory Orders
Court also issued orders which the government has to consider and put into consideration.
“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 in accord with the cherished aspirations of the people of Uganda as was unmistakably captured in the Odoki Commission Report.”
The Executive was ordered to generate the policy, and Parliament to pass the legislation, which addresses and cures the injustice occasioned by the unconstitutional provisions of the UPDF Act, which have now been quashed, by providing for military courts that are clothed with the constitutional safeguards of independence and impartiality that are accorded the ordinary Courts.
“In order for this to be applicable to the military courts, the article would have to be modified in such a way as to give the courts independence and impartiality without compromising their military nature. The army would have a parallel judiciary with legally trained soldiers to professionally man the courts. In order to be impartial, the court must have security of tenure and other privileges enjoyed by the other judicial officers in the Uganda judiciary. It should be noted that the definition of judicial officer contained in article 151 does not exclude persons exercising judicial power in military courts.”
Dollo cited the recommendation given to the Executive by the court in the ULS & J. Karugaba v A.G (supra).
Advice to Executive and Parliament
Court suggested that there is a need to establish the General Court Martial (GCM) as a division of the High Court without the need to create a new Court, with jurisdiction to handle capital criminal cases involving both military officers and any civilians who would exceptionally fall within its ambit; with Magistrates within the division handling offences falling under their jurisdiction.
Here is the rest of the text with only grammatical errors corrected:
“Limit the functions of Unit Disciplinary Committees (UDCs) and Summary Trial Authorities (STAs) to handling strictly disciplinary offences, with no power of imposing sentences of imprisonment.”
That acting with the advice of the Judicial Service Commission (JSC), appoint civilians with the requisite professional legal qualifications to serve as judicial officers in the current subordinate military courts, these would exercise jurisdiction over offences triable by subordinate courts.
Court asked Parliament and Executive to make provision in the UPDF Act for trial of civilians in military courts to be only under limited circumstances; and only after the State has concretely demonstrated to the court by verifiable facts, and by objective and serious reasons, the need and justification for recourse to the military court.
The Friday judgment was greatly welcomed by Hon Michael Kabaziguruka (the respondent in the appeal), his lawyers, as well as the members of the general public.
“It has been a long journey, it has been used as a scarecrow to scare away government opponents. If you knew the hundreds of young men detained in various prisons for wearing a red beret, you would be scared. We thank the justices for this bold decision.”
Remarked Lawyer Medard Ssegona, one of the respondents’ lawyers, after court.
He commended Kabaziguruka for having taken on the mantle to save many suffering Ugandans by the illegal activities of the General Court Martial.
Court ordered the immediate release of Hajji Obeid Lutale, Dr Kiiza Besigye, and young people in prison.
“The seating of Monday has been declared a nullity; they don’t have powers to convene again, in short, it has been disbanded and it can’t seat again. They have to go back and reconstitute it again as per the orders of Court,” remarked Lord Mayor Erias Lukwago as he addressed the press after court.
Hon Michael Kabaziguruka, the respondent in this appeal by the Attorney General, thanked all those that stood with him through this period as he was fighting for the rule of law to prevail in the country.
The six majority justices who outlawed the trial of civilians in the General Court Martial included Alfonse Owiny Dollo, Elizabeth Musoke, Mike Chibita, Catherine Bamugemereire, Faith Mwondha, and Percy Night Tuhaise. Justice Monica Mugenyi came up with a dissenting judgment.
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