By Emmanuel Kirunda
In a landmark decision, Uganda’s Supreme Court has ruled that the General Court Martial (GCM) does not have jurisdiction over civilians, declaring such military trials unconstitutional.
The ruling, delivered by Chief Justice Alfonse Owiny-Dollo, along with six othe justices of the supreme court affirms a 2021 Constitutional Court ruling that had already invalidated the practice of trying civilians in military courts. This decision is a significant blow to the government, which had long maintained that the GCM’s jurisdiction over civilians was necessary for national security reasons.
The case arose from a legal battle initiated by former Member of Parliament and opposition politician, Hon. Micheal Kabaziguruka, who challenged the constitutionality of the military court system. Kabaziguruka’s case prompted the highest court in the land to clarify the limits of military jurisdiction, particularly regarding civilian trials.
Chief Justice Owiny-Dollo also took the opportunity to address public criticism of the judiciary, particularly accusations of judicial inefficiency in politically charged cases.
“If you know arithmetic very well, you will see that these have been eight months, not four years,” he said, dismissing claims that the judgment had been unduly delayed.
He defended the judiciary’s independence, stating, “Insulting and attacking judicial officers is no way to engage in discourse. Criticism should aim to improve the system, not undermine trust in institutions.”
The ruling is expected to have far-reaching implications, with legal experts urging the government to undertake necessary reforms to align the military justice system with constitutional provisions.
The Supreme Court also awarded costs to the respondents, a decision seen as a strong rebuke of the government’s stance.
BREAK DOWN OF DIFFERENT JUSTICES RULINGS
Justice Catherine Bamugemereire ruling
Justice Catherine Bamugemereire suspended all proceedings in the General Court Martial (GCM), declaring the military tribunal’s jurisdiction over civilians unconstitutional.
Her ruling set the stage for urgent legal reforms in Uganda’s military justice system, particularly concerning the trial of civilians.
Justice Bamugemereire found that the GCM, as it stands, lacks the constitutional mandate to try civilians, stating that its structure and procedures violate the principles of fairness and impartiality guaranteed under Uganda’s Constitution.
“Judicial power, as per the law, is vested in the judiciary, and the General Court Martial is subordinate to the judicial system,” she said.
“It is an overreach to create an offense making civilians liable for crimes under military law.”
In her order, Justice Bamugemereire suspended all ongoing civilian trials in the General Court Martial, except for cases involving military personnel.
She emphasized that soldiers who commit offenses against civilians should be tried in civilian courts, rather than in military tribunals, in line with constitutional provisions.
She also directed that all cases pending trial in the General Court Martial be suspended and subject to judicial review, with an injunction placed on further proceedings.
Justice Monica Mugenyi Ruling
The ruling closely follows an earlier judgment delivered by Justice Monica Mugenyi, who, along with a coram of seven justices, upheld the unconstitutionality of section 117(1)(h) of the Uganda People’s Defence Forces (UPDF) Act, which had allowed civilians to be tried in military courts.
Justice Mugenyi’s judgment echoed similar concerns about the impartiality and independence of the General Court Martial, declaring it inconsistent with the Constitution.
“The General Court Martial is not an independent and impartial court and is inconsistent with the Constitution,” Justice Mugenyi stated in her ruling, which also found section 117(1)(h) of the UPDF Act to be vague and unconstitutional.
She further called for reforms to ensure military courts operate with greater independence, proposing that the appointment of General Court Martial judges be made in consultation with the Judicial Service Commission to guarantee their legal expertise and impartiality.
Justice Mugenyi’s decision modified the orders of the Constitutional Court, leaving room for amendments to the UPDF Act, but also reiterated that the trial of civilians in military courts is a matter that requires further debate.
The ruling signals a shift toward greater judicial oversight, ensuring that civilians are not subjected to military justice in violation of their constitutional rights.
Together, these judgments represent a crucial step in addressing the legal and constitutional concerns surrounding military trials for civilians.
Justice Elizabeth Musoke ruling
Justice Elizabeth Musoke judgment further reinforced the boundaries of the General Court Martial (GCM) and its jurisdiction over civilians.
Justice Musoke concurred with the other justices, who declared sections of the Uganda People’s Defence Forces (UPDF) Act unconstitutional.
However, Musoke took the matter further, emphasizing that the General Court Martial is a military organ with strictly limited jurisdiction.
“The cases that may be tried here are limited to discipline, and the nature of punishment is limited to disciplinary sanctions,” she asserted.
Musoke stated that the General Court Martial does not qualify as a subordinate court and lacks the necessary features—such as independence and impartiality—that are required for a court of law.
She referred to the military tribunal as an organ that functions exclusively for military discipline, underscoring its inability to handle civilian criminal matters.
“It is erroneous to expand its jurisdiction beyond its disciplinary scope,” Justice Musoke stated, affirming that the GCM has no jurisdiction over civilians.
“It’s inappropriate to grant the GCM powers to try civilians. All criminal matters ought to be handled by courts of judicature.”
Her judgment directly overruled previous interpretations, including the JC Murenga case, which had previously suggested a broader role for the General Court Martial.
Justice Musoke further clarified that the GCM was not created by Parliament to perform general judicial functions and is constitutionally limited to disciplinary actions concerning UPDF personnel.
The judgment also highlighted the deficiencies within the General Court Martial system, noting that the court lacks independence, impartiality, and legal competency, as its members are not required to have legal qualifications.
She ruled that for criminal trials, civilians must be tried before competent courts of judicature, with fair trial guarantees provided under Uganda’s Constitution.
In terms of procedural orders, Justice Musoke ruled that only cases involving UPDF members and disciplinary offenses could be heard by the General Court Martial.
Furthermore, she outlined that if the GCM determines a sentence of imprisonment for a military officer, the case file must be transferred to the Director of Public Prosecutions (DPP) for judicial review.
Justice Musoke also declared sections 119 and 179 of the UPDF Act unconstitutional, asserting that they extended the GCM’s jurisdiction beyond disciplinary offenses and improperly allowed the trial of civilians.
“The General Court Martial cannot guarantee the right to a fair trial,” she concluded, reinforcing the need for comprehensive reforms in the military justice system.
Justice Persy Night Tuhaise ruling
Justice Persy Night Tuhaise ruled that the General Court Martial (GCM) is constitutionally unqualified to prosecute civilians, reinforcing the Constitutional Court’s earlier decision and recommending that all criminal offenses be prosecuted by the Directorate of Public Prosecutions (DPP).
“The members of the General Court Martial must hold qualifications in legal matters to ensure that justice is not only done but seen to be done,” Justice Tuhaise stated.
“As it stands, the General Court Martial is not equipped to deal with judicial matters involving civilians.”
Her decision upholds the Constitutional Court’s declaration that military courts lack the necessary legal qualifications and independence to try civilians, a stance that has drawn increasing scrutiny as civilians have faced charges in military courts in recent years.
Justice Tuhaise’s ruling further emphasized the constitutional mandate of the DPP, recommending that the prosecution of all criminal cases, especially those involving civilians, be handled by civilian courts under the jurisdiction of the DPP.
She noted that prosecuting civilians in military courts is an overreach and violates constitutional principles, especially the right to a fair trial.
“The General Court Martial does not have the legal foundation to try civilians, and therefore the appeal must fail,” Justice Tuhaise ruled, awarding costs to the respondent.
Justice Tuhaise’s ruling reinforces the need for a separation between civilian and military judicial systems, with calls for reforms to address the growing concerns over the prosecution of civilians in military courts.
Meanwhile, Justice Michael Chibita and lady justice Faith Mwondha’s rulings were not any much different from that of the Chief Justice Owiny Dollo so they aligned themselves to the same.
