BIG INTERVIEW: Supreme Court judgment on Military Courts marks turning point for judicial practice in Uganda -Lawyer Karuhanga

The recent landmark decision by the Supreme Court on military courts has ignited widespread discussion within the legal community. The decision brings much-needed clarity, but questions remain on the practical steps forward. Now, the focus shifts to implementing this decision and ensuring its effect reaches those impacted.

In an interview, Elison Karuhanga, a Senior Advocate and Partner at Kampala Associated Advocates, provided insightful commentary on the Supreme Court’s landmark decision regarding military trials in Uganda.

He discussed the implications of the court's decision, emphasizing the necessity of fair trials and the distinction between military and civilian justice.

Karuhanga also highlighted the ongoing efforts of the legal profession, including the Uganda Law Society, in ensuring the implementation of the judgment and advocating for justice for those affected.

Excerpts below;

 The Supreme Court has spoken. The question now is: what can be done? As the saying goes, "The lion has roared what can you do but comply?

The first step will be the transfer of case files. However, proactive advocates will immediately begin filing applications for reviews, releases, and other legal remedies. The legal strategy will depend on the specifics of each case. But ultimately, the next steps will be crucial, as the Supreme Court did not issue direct orders for the release of individuals.

Was that an oversight?

No, the court was very deliberate in its ruling. It did not overturn past decisions nor apply retrospective annulment. Instead, it annulled certain trials but transferred cases. The ruling was clear it addressed the jurisdiction of the military court but did not delve into individual cases.

There have been arguments that, under the Constitution, any action contrary to it is null and void to the extent of the inconsistency. The Law Society, to its credit, raised this concern. They asked: "Now that the ruling has been made, how do we ensure its effect reaches every individual impacted?" Implementing this decision will require significant effort mostly behind the scenes. Lawyers and the Law Society will have to put in long hours to translate this ruling into actual relief for affected individuals.

Given that over a week has passed since the decision, I assume significant legal efforts have already been initiated?

Yes, but the real work is just beginning. The Supreme Court’s decision was a ‘high mountain’ moment, much like Moses seeing the Promised Land. Now, the legal fraternity must act like Joshua, leading people into that land.

This is where the practical aspects come in: How do we implement the ruling for individuals? How do we ensure justice, fairness, and liberty? How do we balance this with law and order? This period will be both fascinating and demanding for lawyers tasked with bringing the fruits of litigation to those affected.

Where does this decision? leave the army as an institution?

The military now has clarity. This decision was not against the army but rather in favor of the Constitution. It benefits everyone, including the military, because it clearly distinguishes between military discipline and civilian justice. This ruling prevents these two areas from being conflated.

While the military may have initially been surprised by the ruling, it now has the opportunity to adapt and align its processes accordingly. The Supreme Court even suggested amendments to the Uganda People’s Defence Forces (UPDF) Act, which establishes the Court Martial. This highlights the need for trials to be fair and just.

Ultimately, this ruling reinforces a fundamental principle: trials must be fair. Every accused person must have a fair hearing before an independent and impartial tribunal. This decision strengthens the Constitution’s principles, benefiting not just civilians but also the military. It is a victory for the rule of law, not a threat to security. If we compromise liberty and the rule of law for security, we risk losing both.

How has Isaac Ssemakadde’s election as Uganda Law Society President and his ‘radical new bar’ approach, which challenges traditional norms in the legal profession, influenced the court’s decision on military trials and shaped Uganda’s judicial landscape?

It certainly had an impact. Ssemakadde campaigned strongly on the need for demilitarization of the legal system, and many people initially did not understand what he meant. However, he has since made the issue of the General Court Martial a cornerstone of his advocacy.

Beyond that, there was growing frustration within the legal community about how long it took for the court to deliver its decision. For four years, we have been waiting for constitutional guidance on this matter. In his judgment, the Chief Justice was visibly displeased with criticisms regarding the delay, arguing that various panel changes and procedural issues contributed to it. Nevertheless, justice delayed is justice denied.

In those four years, individuals were tried, convicted, and sentenced without the constitutional guidance that was long overdue. This is why the radical new bar was effective not necessarily because they influenced the ruling’s content, but because they continuously called for a resolution. They emphasized that the court needed to rule, regardless of the outcome.

Just to make a decision?

Exactly. The legal fraternity was stuck in a state of uncertainty, and everyone—from government lawyers to private practitioners was growing frustrated. Even those representing the state likely shared this frustration, as they needed clear legal guidance. The circumstances within the judiciary itself likely contributed to the delays, but this case highlights a broader issue: the problem of delayed justice in Uganda.

Delayed justice is a pressing issue. How can we ensure timely justice for all? What steps can be taken to shift from delay to delivery and make the judicial system more responsive to the people?

The reality is that justice cannot be delayed indefinitely. If it is, then it ceases to be justice at all. The situation must shift from delay to timely resolution. It is concerning to hear that the Supreme Court was closed for an extended period due to a lack of premises. We need to move away from the idea of a court as merely a physical building and instead view it as a service. Justice should not be an institution that imposes its will on people but rather one that serves them. Our Constitution states that judicial authority is derived from the people and must be exercised in their name according to their norms, wishes, and aspirations.

While these ideals are easy to express, the challenge lies in their practical implementation. {Michael}Kabaziguruka was fortunate to receive competent legal representation. From the moment of his arrest, he had access to legal avenues: securing bail from the High Court, obtaining a stay from the Constitutional Court, arguing his case at the Constitutional Court, and eventually seeing his matter resolved at the Supreme Court. But how many others have the resilience and resources to endure such a lengthy and complex process? Many would simply resign themselves to their fate, believing it to be less costly in time and effort. One notable outcome of the Supreme Court’s decision was the issue of legal costs. The court awarded costs to lawyers in both the Supreme Court and lower courts, recognizing the extensive work put in by legal professionals. This marked a shift from the outdated notion that lawyers should serve the justice system like priests who have taken a vow of poverty. Often, public interest litigation cases result in each party bearing its own costs, implying that the case was a private struggle rather than a public concern. However, in the case of Kabaziguruka , the ruling impacts thousands and provides critical guidance on military justice.

The Supreme Court did not rule against the military; rather, it set out principles for ensuring fairness in military courts. If military courts are to exist, they must operate fairly and in accordance with constitutional standards. This ruling provides necessary direction, not just for those in the military but for the entire legal system.

Another important aspect is making justice more accessible to the public. We must acknowledge the contributions of groups like the Radical New Bar, which have played a significant role in pushing this issue to the forefront. Their advocacy was instrumental in ensuring that the judiciary addressed the matter in a timely manner.

 You mentioned a moment of reflection, particularly for the judiciary and the Chief Justice. Would you say this decision marks a turning point for judicial independence?

Absolutely. The judiciary has faced criticism over its independence and ability to assert itself against other arms of government. This ruling demonstrates that the courts can stand their ground and fulfill their constitutional mandate. It is a significant step forward in reinforcing the judiciary’s role as an independent arbiter of justice.

Let’s talk about the evolving relationship between the bench and the bar. We have seen shifts in dynamics, but other legal battles are still ongoing. What are your thoughts on these continuing contests?

The legal landscape is constantly shifting, with ongoing struggles shaping the future of judicial practice and access to justice. For the first time in a long while, we are witnessing a strong push for accountability and reform within the legal profession and the judiciary.

With the electoral processes underway, many seek guidance on managing election-related disputes. Considering past studies of court-handled complaints, how should Uganda prepare to ensure an effective, efficient, and timely electoral dispute resolution process throughout this election cycle?

We are in a state of constant electoral reform, and with technology evolving rapidly, there will always be opportunities for improvement. However, we must also address the backlog of cases and ensure timely justice. Thousands of people currently rely on the courts to realize the principles of electoral justice.

As this is happening, we are heading into a democratic election period. This raises an important question: What happens to non-election-related cases? What about individuals involved in divorce cases, land disputes, or criminal trials?

We need a comprehensive approach to delivering justice whether it is electoral justice, family justice, land justice, or criminal justice. Article 142 of the Constitution provides guidance on this. The Judicial Service Commission has the authority to advise the President to appoint temporary judicial officers as a stopgap measure.

Although this mechanism has not been widely utilized, it could help alleviate the burden on the judiciary. In England, for instance, they have deputy judges who assist in managing caseloads. Instead of appointing a new judge with a full salary, car, pension, and security, a qualified lawyer could be temporarily designated to handle specific cases.

 That would certainly be a practical way to increase access to justice. But how do we ensure that this solution is effectively implemented?

We need to rethink how justice is delivered. Courtrooms should not be seen as mere buildings; they should be considered services. Technology can play a significant role in making justice more accessible. For example, mobile courts could be introduced for election disputes at the local level. If a dispute arises in a district or sub-county, hearings could be conducted under a mango tree rather than waiting for an available High Court judge.

If we lack enough judges, the Judicial Service Commission could recommend that qualified individuals be temporarily commissioned to hear cases in underserved areas. They would be compensated for their work and return to their practice afterward. This system would help identify competent legal minds while ensuring that justice remains a service rather than a privilege.

 Are you suggesting that justice is currently a privilege for some?

Yes, and not due to any individual’s fault. The Court of Appeal, for instance, is handling over 12,000 cases. Many judges across the country have dockets with thousands of pending cases. They work long hours under immense pressure. Some even face health issues due to the workload.

Consider the Chief Justice’s position he must oversee and ensure that justice is delivered under difficult circumstances. The courts struggle with limited resources and judicial manpower. Why should criminal trials or other civil cases be delayed due to election disputes? The judiciary needs additional support, and one way to provide it is by allowing qualified lawyers to assist as temporary judges.

 You mention the issue of resource constraints. Can you expand on that?

The justice system is stretched thin. For example, URA has clearing and forwarding agents, and the military has reserve forces to handle extra demands. Similarly, the legal system should have a mechanism to mobilize additional resources when necessary. As we approach the elections, most court activity will focus on electoral petitions. While it is crucial to resolve these cases, it is equally important to ensure that other cases are not sidelined. People wait years—sometimes a decade—for decisions on land disputes. For instance, I have an appeal on a production-sharing agreement that has been pending since 2012.

 There has been progress, though. The judiciary has increased the number of courts and appointed more judges. Hasn’t this helped?

Yes, there has been notable progress. More court circuits have been established, and judicial funding has increased significantly. However, we must continue improving the system. We should explore innovative solutions, such as appointing temporary judicial officers, to ease the backlog.

In South Africa and England, deputy judges step in when courts are overwhelmed. In Uganda, we could implement a similar system to support full-time judges. Last December, the Court of Appeal heard 63 cases in a single day. While this demonstrates efficiency, it also highlights the immense pressure on judicial officers. We need a structured approach to distribute the workload.

Wouldn’t appointing temporary judges require legal reforms?

Not necessarily. The existing Judicial Service Act allows for magistrates to be appointed under this system, and the Constitution permits similar appointments for High Court, Court of Appeal, and Supreme Court judges. This provision has been in place since 1995 but has not been effectively utilized. Now is the time to implement it.

As election petitions flood the courts, we must ensure that other litigants—those with ongoing cases in family, land, and criminal courts are not unfairly disadvantaged. Delays in justice erode public confidence in the legal system.

What role do lawyers play in all this?

Lawyers are already part of the judicial system. Many apply to become magistrates and judges. However, some experienced lawyers are hesitant to join the bench due to financial considerations. To address this, we should allow lawyers to serve as temporary judges when the judiciary is overwhelmed.

One argument raised is whether Parliament overlooked key aspects when drafting the legislation governing military trials. Was it necessary at the time, or did they miss the point? How can we correct this, and what is the process?

It is interesting because, at the time, the provision was drafted during a period when criminality and governance were tightly linked. There was a need to take action quickly, but it has clearly ended up being abused. It is also a product of its time. The Supreme Court has provided guidance on what needs to be done, and fortunately, the UPDF Act is already being reviewed. Even the military had realized that there are gaps in the current framework for the modern world. The military has even proposed amendments. The Supreme Court’s decision isn’t focused solely on the technical amendments proposed; it’s about upholding the timeless principles of justice like the right to a fair trial before an independent and impartial tribunal. The presumption of innocence is key; in this country, every person is presumed innocent until proven guilty.

"But the public often presumes someone’s guilt, even before trial. If someone is arrested and accused of terrorism, society quickly labels them guilty. How do you respond to this?"

That is true. Even if someone is later proven innocent, society often assumes guilt. The judicial system must be the safeguard between an individual and the state’s power. The Chief Justice rightly pointed out that the judicial system must look at the accused impartially, assuming innocence, and place the burden of proof on the accuser. This principle is crucial because it protects liberty, ensures fairness, and upholds justice."

 Would you say that the decision clarifies the contradiction between military and civilian trials?"

Absolutely. The Supreme Court has clarified that civilians should not be tried in military courts. If they must be, there need to be exceptional circumstances, clearly outlined in the law. The military justice system can never replace civilian courts. Prior to this decision, there was confusion, with some judges allowing civilians to be tried in military courts, and others not. Now, the rule is clear: civilians cannot be tried in military courts. This clarity is essential, and it’s something that should be taught in law schools as a basic principle.

Does it mean that those previously tried in military courts need to be released, or is there still some uncertainty?"

There is still some uncertainty. The Constitution states that anything done in contravention of it is null and void to the extent of its inconsistency. I sympathize with that argument, but the Supreme Court didn’t go as far as declaring all such cases null and void. What’s more important now is whether individuals can continue to be held without charge. If they were not properly charged in a military court, can they still be detained? There’s an argument that they should not be held without charge. Our legal system sometimes suffers from formalism, but for many of these individuals, there’s a need for official orders to release them.

And that is where the Uganda Law Society stepped in, pushing for immediate action?"

Yes, immediately after the judgment, the Law Society called for action, asking for lists of people currently held. While it will be easier to release high-profile individuals, we must ensure the decision affects everyone. Justice needs to be swift and fair, and we need the government to act quickly, although historically, the government has been slow to respond.