By Mulengera Reporters
Bad news coming Gen Museveni’s way this Friday is that the military tribunals, which he controls through the High Command of his UPDF, will never have lawful power to try civilians. From today on, such military tribunals can only try civilians criminally and never under any law because the Supreme Court, which has pronounced itself on the same, is the highest of its kind beyond which one has nowhere else to appeal.
In their ruling under the AG vs. Micheal Kabaziguruka constitutional appeal, the Supreme Court Justices held that the General Court Martial and others below it aren’t courts under the provisions of the Constitution under Articles 28(1) and 44(c). These referenced provisions respectively provide for the right to fair hearing being non-derogable; meaning that the right to fair trial can never be deprived under whatever circumstances.
The Justices ruled or held that, given the circumstances through which its established, constituted and gets its work to be supervised, there is no way the General Court Martial can meet the minimum requirements relating to independence, impartialty and the competence levels that are envisaged under Articles 28(1) and 44(c) of the Constitution.
In otherwords, such military courts aren’t adequately independent, competent and impartial so as to ensure the fair hearing as is mandatorily required under the above referenced provisions of the constitution.
Chief Justice Alfonse Owinyi-Dollo went a step further to shine a torch of scrutiny on lack of even the most basic legal education among members who constitute such military courts or tribunals. He wondered how such people can constitute a court or tribunal to hear all manner of cases including those that attract the maximum sentence of death.
In what Gen Museveni will most likely be pushing back against, Justices like Catherine Bamugemereire and even Dollo himself went as far as diminishing the power of such military courts to preside criminal cases or matters involving officers and men of the UPDF (beyond disciplinary cases).
Bamugemereire made it clear that for criminal offences committed against civilians, and not just the institution of the military or the state of Uganda, soldiers committing them ought to be prosecuted by the DPP and in Courts of Judicature as established under Chapter 8 of the Constitution.
Owinyi-Dollo also made reference to provisions of the Constitution under Article 21 and concluded that there is no way some Ugandans can or should be excluded from the protection bestowed under Articles 28(1) and 44(c) simply because they chose to serve their country in the category of being soldiers.
This simply means that soldiers too are entitled to full protection of the Constitution and more so those provisions that make the right to a fair hearing non-derogable. Some other Justices, on the 7 member panel, concurred with this and said as much; totally unbothered with the extent to which such a holding will most likely be intriguing Gen Museveni and provoking him into a fight. Gratefully, there isn’t much the veteran from Rwakitura can do to the Honorable Justices who have merely done their work.
In order to further impeach their ability to do judicial work impartially, independently and competently, Chief Justice Owinyi-Dollo also asserted that lack of basic legal education on part of members constituting such military tribunals is very disqualifying.
He proposed several reforms in the way the military justice system operates in Uganda including making it a requirement for members of such military tribunals or a fraction of them to have basic legal training. This is neccessary to ensure that even soldiers, over whom they have disciplinary authority, are not unfairly deprived of their right to procedural justice and fair hearing.
It was all televised live on TV and on online platforms and remarkably, Justices Mike Chibita, Bamugemereire and Monica Mugenyi stood out for the clatity with which they spoke and delivered their judgments.
Chibita even had the modesty to publicly apologize to the Ugandan public over the circumstances under which the long-awaited Kabaziguruka judgment delayed. Chibita implied that the people of Uganda were right to become anxious over the delay because justice delayed is justice denied. On the contrary, his boss Dollo (belligerent and paranoid as always) became defensive and quarreled as to why lawyers incited the public against his Supreme Court over the delay.
Sounding eloquent and fluent as always, Bamugemereire instantly won admiration of millions of Ugandans following the ruling delivery online when she didn’t mince words and spoke plainly about the imprudence of trying civilians under military tribunals.
She actually caused many social media users to realise that Dr. Kizza Besigye’s lawyer Eron Kiiza was right to refer to them as nothing but mere tribunals. Some Ugandans ended up asserting that even characterising them as a tribunal was too much honor.
Wowed by the clarity with which Bamugemereire pronounced herself and delivered her judgment, some Ugandans on social media concluded that what Dr. Besigye and Sheikh Obed Kamulegeya have been appearing before is nothing but a mere disciplinary committee of the army comprised of decorated UPDF officers.
Besides raising a red flag on authority overreach and the urgent need to reform how the army tribunals operate, Bamugemereire boldly concluded that there is no basis for civilians to be tried before such a body that is incapable of operating competently, impartially and independently.
She directed that all civilian trials in army courts be halted or suspended for DPP to take over and have the cases tried before the courts of Judicature as is stipulated and provided for under Chapter 8 of the Constitution.
Bamugemereire’s colleague Monica Mugenyi (the two professional colleagues are personal friends and were simultaneously posted to Supreme Court in January 2024) specifically proposed reforms in the military court justice that would see Parliament amend the UPDF Act so that the Justice Service Commission (JSC) plays some role in the recruitment of officers and men to constitute military courts.
Other Justices on the panel included Elizabeth Musoke and Night Percy Tuhaise both of whom disallowed the AG Kiwanuka Kiryowa appeal and held in favor the respondent Mike Kabaziguruka in whose favor even costs were awarded. Justice Faith Mwonda, who has since retired from the Supreme Court on the account of age, had also been part of the panel and her judgment was proclaimed by Owinyi-Dollo. (For comments on this story, get back to us on 0705579994 [WhatsApp line], 0779411734 & 041 4674611 or email us at mulengeranews@gmail.com).
