By Aggrey Baba
The Supreme Court has delivered a decisive ruling that permanently bars the General Court Martial (GCM) from trying civilians, declaring such trials unconstitutional.
The long-awaited judgment, delivered by Chief Justice Alfonse Owiny-Dollo, on January 31, 2023, upholds a 2021 Constitutional Court ruling that struck down sections of the Uganda People’s Defence Forces (UPDF) Act, which had allowed civilians to be prosecuted by military courts under certain circumstances.
This ruling brings to an end years of legal battles, with several human rights activists and politicians from tje opposition, arguing that military trials of civilians were illegal and unfair.
Among those who played a key role in this fight was former Nakawa MP Michael Kabaziguruka, whose case set the stage for this landmark decision.
The fight against the prosecution of civilians in military courts gained momentum in 2016 when Michael Kabaziguruka, a strong opposition figure and former MP, was arrested and charged before the General Court Martial.
He was accused of plotting to overthrow the government and was subjected to a military trial, despite being a civilian. Kabaziguruka challenged the military’s jurisdiction over his case, arguing that as a non-member of the armed forces, he should not be subjected to military law.
His petition to the Constitutional Court was a turning point, leading to the 2021 ruling that declared military trials for civilians unconstitutional. The government, through Attorney General Kiryowa Kiwanuka, appealed this ruling, seeking to maintain the military’s authority over civilian cases.
However, the Supreme Court has now put the matter to rest, reinforcing the principle that only civilian courts have jurisdiction over civilians.
Justice Elizabeth Musoke, concurring with the ruling, emphasized that military courts exist solely for the discipline of UPDF personnel and do not have the authority to try civilians. “The General Court Martial is not a civilian court, and its jurisdiction cannot extend beyond military personnel,” she stated.
Justice Percy Night Tuhaise reinforced this position, declaring that all criminal cases should be handled by the Director of Public Prosecutions (DPP). “Justice must not only be done but must be seen to be done,” she said, warning that military courts lack the independence required for fair trials.
Justice Catherine Bamugemereire went further, criticizing the structure of military courts, saying they are neither impartial nor independent and can’t guarantee fair judicial processes.
With this ruling, the Supreme Court has now ordered that military courts can only try UPDF personnel for disciplinary offenses. Any cases requiring imprisonment must be forwarded to the DPP for prosecution in a civilian court.
Chief Justice Owiny-Dollo used the occasion to respond to critics who have accused the judiciary of delaying politically sensitive cases. Dismissing claims that the ruling had taken too long, he stated, “If you know mathematics well, you will see that this judgment took eight months, not four years.” He called for constructive criticism of the judiciary rather than personal attacks on judicial officers.
This ruling is a major victory for human rights activists who have long challenged the prosecution of civilians in military courts.
However, attention now turns to whether the government and military will comply with the judgment.
Several civilians remain imprisoned by the General Court Martial, including opposition leader Dr. Kizza Besigye, his associate Obeid Lutale, and their lawyer Eron Kiiza, who was sentenced to nine months by the military court. With the Supreme Court’s decision now clear, pressure is mounting for their immediate release.
Meanwhile, DPP Frances Abodo told Parliament recently, that her office does not have the legal mandate to take over cases from the Court Martial. “I can’t institute and I can’t take over cases under the Court Martial. I just want to stay in my lane,” she stated, reinforcing the need for legal reforms to clarify the transition of military court cases.
The Supreme Court’s ruling has delivered a significant blow to the government’s legal position, setting a new precedent that restores civilian authority over civilian cases.
While the decision marks a turning point, the real test lies in its implementation. The coming days will reveal whether the authorities will respect the ruling or attempt to bypass it through legal maneuvers. (For comments on this story, get back to us on 0705579994 [WhatsApp line], 0779411734 & 041 4674611 or email us at mulengeranews@gmail.com).
