The Supreme Court in Kampala has cleared the General Court Martial to continue trying civilians until an appeal in which the Attorney General challenged a Constitutional Court ruling against the same.
Owing to a 2016 petition by then Nakawa Municipality MP Michael Kabaziguruka who was facing treachery charges, the Constitutional Court on July, 1, 2021 in a majority decision of 3:2 held that it is unconstitutional for the army courts to try civilians since they are not part of the military.
“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,” Justice Kenneth Kakuru said.
“The General Court Martial is therefore not a competent court within the meaning of Article 28. 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. Military law under the UPDF Act must be construed to exclude laws that are the preserve of the civil courts of judicature established under Chapter eight of the Constitution.”
The Constitutional Court consequently 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
However, the Attorney General appealed against the judgment and consequently applied for the stay of the execution of the judgment.
On Thursday, the panel of five justices of the Supreme Court led by the Chief Justice Alfonse Owiny Dollo allowed the application for stay of execution until the appeal is disposed of.
“There is irreparable injury and damage the applicant (Attorney General) will suffer if a stay of execution is not granted assuming the affidavit he deponed upon which explains the need to preserve the status quo is to go by,” the justices said in a ruling read by the court’s registrar, Didas Muhereza.
The Court also ordered that execution of the orders by the Constitutional Court is now halted until the appeal by the Attorney General in the case is heard and disposed of.
The Supreme Court also ordered that owing to the matter in contention for which an appeal has been filed, it should be accorded urgency since it is a matter of public importance.
“The appeal shall be accorded urgency and shall be immediately fixed for hearing.”