Uganda Supreme Court halts trial of civilians in military courts

The Supreme Court in Kampala has halted the trial of civilians before the General Court Martial and ordered that the cases be transferred to ordinary courts of law with competent jurisdiction.

"All ongoing trials involving civilians in the court martial must immediately cease and be transferred to ordinary courts of law," Chief Justice Alfosne Owiny-Dollo said in the majority ruling of the panel of seven justices.

According to the judges, the military courts (Field Court Martial, the General Court Martial and the divisional military courts) are lawfully-established specialized courts whose jurisdiction/ powers are restricted to offences concerning discipline of Uganda People’s Defence Forces (UPDF).

However, due to its composition which has serving army officers who draw orders from their appointing authority with no competence in legal issues, the military courts are neither independent nor impartial to render a fair trial.  

“Imagine myself, the Chief Justice of Uganda who has never done any military training to lead a battle field and defend the country against an enemy,” said Owiny-Dollo before emphasizing how important professionalism at something is, especially in administering justice.

Citing other instances where the General Court Martial is incompetent, the Supreme Court said its decisions are by majority opinions of members who are advised by a Judge Advocate whose opinion is only advisory and equated to that of an assessor in ordinary court trials, thus unbinding to court.

“The oath taken by serving military officers binds them to answer to the High Command which makes it difficult for members to be impartial. These untrained persons can issue sentences of life imprisonment and death which is outside their mandate,” the Chief Justice said.

The Supreme Court opines that the appointment of members of the military courts should be in conformity with the Judicial Service Commission which identifies competent personnel and their terms of services provide a sense of security of tenure. 

“The military courts cannot over stretch their mandate to try civilians as that is the duty of civilian courts/ courts of judicature.  The military courts do not have competence to try criminal offences whose punishments is an imprisonment term or death - even when the suspect is a military personnel”

According to the Supreme Court, a soldier deserves fair hearing in a component court of law and doesn't cease to be a citizen when they are accused of committing crimes. 

“Punishments that can be passed by a military courts are; dismissal with disgrace, severe reprimand and dismissals since other custodial or death penalties imposed cannot be appealed to the Supreme Court,” the court held.

Six justices of the Supreme Court upheld a Constitutional Court decision that nullified the trial of civilians in military courts. 

According to the Supreme Court, the Court Martial should not try serving military officers for offences that attract death penalty until Parliament amends its jurisdiction.  

The Supreme Court judgment comes days after remanded veteran opposition politician Dr Kizza Besigye and his aide Obeid Lutale who were in November 2024 abducted from Nairobi, Kenya and arraigned before the General Court Martial in Makindye, Kampala declined to take plea, arguing that military courts in Uganda do not have powers to try civilians.

Their decision followed a 2021 Constitutional Court ruling which indicated that the General Court Martial has no power to try civilians.

The Constitutional Court declared that it was unconstitutional for civilians to be tried in the military courts, especially if they have not subjected themselves to the military system.

“The General Court Martial’ s jurisdiction is only limited to trying offenses specified under the Uganda People’s Defence Force (UPDF) Act, only in respect of persons subject to the military law,” the court ruled.

The constitutional Court judges then directed that the case files involving civilians before the army court be transferred to civilian courts on the advice of the Director of Public Prosecutions (DPP) for further management within 14 days from the date of judgment.

The Attorney General, however, petitioned the Supreme Court challenging the Constitutional Court decision and asked for stay of execution of its orders which was granted.

The Attorney General faulted the judges for determining that the jurisdiction of the General Court Martial was only limited to trying military offences and service officers.

“The learned majority justices of the Constitutional Court erred in law in finding that the General Court Martial is not impartial or independent and is inconsistent with Article 28 (1) of the Constitution,” reads in part the notice to appeal.

The Constitutional Court decision arose from former Nakawa MP, Michael Kabaziguruka’s case where he argued that the military court is partial on grounds that it is attached to the Executive arm of government which is appointed by the High Command and chaired by the head of state, who has powers to hire and fire them.

Mr Kabaziguruka alongside 20 UPDF officers, were at the time being tried before the General Court Martial in Makindye over offences of treachery and others related to security.

The State had accused Mr Kabaziguruka and group of plotting to infiltrate Defence and overthrow the government by use of firearms.

The offences were allegedly committed between February and June of 2016 in Kampala, Wakiso and Luweero.

A seven-member panel led by the Chief Justice, Alfonse Owiny –Dollo in their Friday (January 31, 2025) majority ruling said their four-year delay in pronouncing their decision in the AG's appeal was partly because the  Supreme Court building caught fire on April 27, 2022 and the justices who also included Faith Mwondha, Night Percy Tuhaise, Mike Chibita, Monica Mugenyi, Catherine Bamugemereire and Elizabeth Musoke were left without office for about a year. 

Two of the Justices on the earlier Supreme Court panel died and others retired from service.  This would require re-constitution of a new panel, according to the CJ.

At the time of delivering of the judgement (January 31), the panel was less by one judge---Faith Mwondha--- who retired in July last year. Her majority  judgement was read to court by the CJ. 

The Chief Justice appealed to all critics who have been bashing him in the media to  at least apologise given that he explained the cause of the delay.