The Supreme Court has put to rest the debate on whether civilians can be tried in military courts.
In an almost unanimous decision, the seven judges of the Supreme Court with a little variance ruled that military courts are not vested with the competency to try civilians.
Chief Justice Alfonse Owinyi-Dollo held that Court Martial judges do not have any requirement of having legal training and equated it to sending a person to the theatre to operate a patient when that person doesn’t have the requisite qualifications to do an operation.
Owiny-Dollo held that even though court martial judges don’t have any legal qualifications, they try everything and anything including treason yet their decisions can’t be appealed.
The Chief Justice also held that in the court martial even junior officers and bodyguards can also sit on the panel to try persons accused of all manner of offences such as treason.
Owiny-Dollo sounding comical went on to say that even himself who is fairly educated cannot be picked and taken to Mulago Hospital to conduct a childbirth operation or be picked to be a brigade, Commander.
The Chief Justice also took the pain to explain the difference between being a service member, a former service member and those retired and the chain of command saying that there is a stark contrast between those and therefore, they can’t be treated in the same way.
Owiny-Dollo also had an issue with how the members of the military court are chosen by the President on very short terms of one year which denies them the security of tenure that allows them to dispense justice without fear or favour.
Hence the lack of security of tenure naturally denies them the ability to be independent from the appointing authority like judges in the judiciary.
The Chief Justice therefore noted that the fact of appointing officers of court without giving them security of tenure is unconstitutional.
On the other hand, Owiny-Dollo noted that the Court Martial cannot provide adequate facilities for the preparation of defence by those appearing before them.
He noted that being able to prepare for a defence is part of a fair hearing and any court that can’t guarantee that, can’t claim to be a court.
On the other hand, because the decisions of the Court Martial can’t be appealed outside the court-martial, Owiny-Dollo held that this makes them unlawful because any law that doesn’t give people a right to appeal is unconstitutional and as such can’t stand.
He further ruled that even the soldiers tried by the Court Martial their rights shouldn’t be violated by being tried by tribunals that lack the competency especially if the cases tried attract either a death sentence or a life imprisonment.
He blamed Parliament for the overzealous by creating laws that seem to attract conflicts among institutions of government.
Consequently, he declared Sections of the UPDF Act that give military courts powers to try civilians are unconstitutional and therefore null and void.
He directed that all the hearings in the Court Martial are unconstitutional and therefore should cease henceforth.
Before Owiny-Dollo read his ruling, four other Justices had already found that military courts not only lack the independence required of courts but are also not part of the courts of judicature.
Monica Mugenyi, Catherine Bamugemereire, Elizabeth Musoke and Percy Night Tuhaise, all held that the military courts are not independent courts of judicature that can fairly dispense justice.
Like Owiny-Dollo, the four pointed out that the way the judges of the military courts are appointed, their lack of legal background and the security of their tenure is inadequate to guarantee independence.
In 2016, then Nakawa Division Member of Parliament Michael Kabaziguruka was arrested and charged in the General Court Martial for crimes related to illegal possession of firearms and conspiring against the security of the defence forces.
He challenged his trial in the General court martial in the Constitutional Court arguing that as a civilian, it was illegal to charge him in a military court. The court issued its decision in July 2021.
In their ruling which was decided by three justices to two, the court held that there were many impediments to the court martial making fair and independent judgements.
Justices Kenneth Kakuru [RIP], Remmy Kasule [retired] and Hellen Obura held that the military courts not only lack the independence that is required of any court but also assumed powers that the constitution gave to the judicial branch of government.
Kakuru who wrote the lead judgement observed that the aim of the UPDF Act was meant for those in active military service and should never have been expanded to include civilians.
“The UPDF Act in my view was never intended to be an Act of general application. It is a statute of special and limited application.
Article 210 of the Constitution from which Parliament derived the power to enact the impugned law, is itself very restrictive. That power only relates to UPDF and UPDF alone.
It does not extend to regulation or adjudication of crime set out under other legislation.
Those functions are provided for in other Articles of the Constitution that establish the Judiciary, the Police and Prisons Service and the Directorate of Public Prosecutions among others… Section 197 of the UPDF Act clearly states that “there shall be a Court Martial for the defence forces,” Kakuru’s judgement reads in part.
It is this judgement that the Attorney General who was sued in his capacity as the representative of government appealed in the Supreme Court arguing that the judges of the Constitutional Court have erred in law and fact in holding as they did that military courts are not clothed with powers to try civilians.
Today’s judgement is going to come as a relief to Dr Kizza Besigye, Obeid Lutale and other National Unity Platform supporters who are being tried in the military courts.
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