The Constitutional Court in Kampala has ruled that is wrong for the General Court Martial to try civilians.
In 2016, the then Nakawa Municipality MP Michael Kabaziguruka who was facing treachery charges petitioned the Constitutional Court, seeking it to declare the General Court Martial and other military courts unconstitutionally established and could not try civilians.
In a majority 3:1 judgment, the Constitutional Court ruled that the General Court Martial was set up to discipline UPDF soldiers and that trying civilians is wrong.
“The composition and power of appointment of the Court Martial members by the UPDF High Command emphasize its restrictive nature. Parliament clearly intended that the jurisdiction of the General Court Martial extends to only UPDF. The General Court Martial is, therefore, a specialized court set up by parliament for purposes of dealing with military discipline within the UPDF,” Justice Kenneth Kakuru said in his judgment.
“The Court-Martial is clearly not part of the judiciary. It is part of the executive arm of government established under chapter 12 of the Constitution which provides for the country’s defence and national security.”
The judge explained that several attempts by the executive to put the army court under the same footing as courts of judicature has originated confusion and discord among legal practitioners, scholars and jurists but noted it is simply trying to fit a square peg in a round hole.
“I find as did the Court of Appeal that the Court Martial established under the UPDF Act is not an independent and impartial court within the meaning of Article 28 of the Constitution. There cannot be a fair trial within the meaning of Article 28(1) before a court that is not independent and impartial. The General Court Martial is therefore not a competent court within the meaning of Article 28,” Justice Kakuru ruled.
The no-nonsense judge said the jurisdiction of the General Court Martial is limited and only applicable within the confines of the UPDF Act and therefore has no jurisdiction over persons who are not subject to military law.
“In the same vein, the General Court Martial has no jurisdiction to try any offences other than those set out in the UPDF Act as service offences under that act.”
Persons subject to military law
According to Section 119 of the UPDF Act, every person found in unlawful possession of arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or other classified stores as prescribed, is subject to military law and can be tried in military courts as appropriate.
The act also stipulates that every person, not otherwise subject to military law but aids or abets a person subject to military law in commission of a service offence, they automatically qualify to be tried by the army court.
However, in his judgement, Justice Kakuru ruled that persons subject to military law must be only those who have voluntarily agreed to subject themselves to military law.
“The persons subject to military law only subject themselves to the jurisdiction of the General Court Martial in respect of only service of offences set out in the UPDF Act. The term service offence in my view therefore must relate to only those offences that are purely military in nature or offences under military law which are not offences under ordinary criminal law,” Justice Kakuru said.
The judge said that section 119(g), (h) of the UPDF Act attempts to bring civilians or persons not subject to military law to be tried by the army court which he noted was wrong.
He noted that section 119 of the UPDF Act is unconstitutional.
The Constitutional Court directed that all persons not subject to military law and are currently before the military court should have their cases transferred to civil courts under the direction of the Director of Public Prosecutions within 14 days.
The court also directed that all persons who are currently serving sentences emanating from trial by the General Court Martial should have their cases files transferred to the High Court criminal division for re-trial or to be dealt with as court may direct in 14 days but they will remain in custody until their cases are transferred.