Justice Persy Night Tuhaise of the Supreme Court has concluded that the General Court Martial (GCM) is constitutionally unqualified to prosecute civilians, reinforcing the Constitutional Court’s earlier decision and recommending that all criminal offenses be prosecuted by the Directorate of Public Prosecutions (DPP).
The ruling came as part of an ongoing case involving an appeal filed by the Attorney General, seeking to reverse a Constitutional Court decision that quashed the military’s power to try civilians.
In her judgment, Justice Tuhaise firmly rejected the appeal, declaring the GCM incompetent to handle judicial matters.
“The members of the General Court Martial must hold qualifications in legal matters to ensure that justice is not only done but seen to be done,” Justice Tuhaise stated.
“As it stands, the General Court Martial is not equipped to deal with judicial matters involving civilians.”
Her decision upholds the Constitutional Court’s declaration that military courts lack the necessary legal qualifications and independence to try civilians, a stance that has drawn increasing scrutiny as civilians have faced charges in military courts in recent years.
The judgment is the fourth in a series of decisions delivered by a coram of seven justices, and it follows a similar stance taken earlier by Justices Monica Mugenyi, Catherine Bamugemereire, and Elizabeth Musoke, who collectively emphasized the lack of independence and impartiality of the GCM.
Justice Tuhaise’s ruling further emphasized the constitutional mandate of the DPP, recommending that the prosecution of all criminal cases, especially those involving civilians, be handled by civilian courts under the jurisdiction of the DPP.
She noted that prosecuting civilians in military courts is an overreach and violates constitutional principles, especially the right to a fair trial.
“The General Court Martial does not have the legal foundation to try civilians, and therefore the appeal must fail,” Justice Tuhaise ruled, awarding costs to the respondent.
The ruling comes amidst a broader debate over the role of military courts in prosecuting civilians, a matter that has gained traction in recent months, especially with rising concerns about the fairness of such trials.
Earlier this year, the DPP, Frances Abodo, reaffirmed her office’s stance against taking over cases from the General Court Martial.
She clarified that her mandate, as defined under Article 120 of the Constitution, does not extend to military courts, and as such, she is unable to intervene in or prosecute cases before the GCM.
“I can’t institute and I can’t take over cases under the Court Martial. We have looked at it, and I just want to stay in my lane,” Abodo explained during a presentation to the Legal and Parliamentary Affairs Committee.
She declined to comment on ongoing cases, citing the sub judice rule due to the pending Supreme Court case.
Justice Tuhaise’s ruling reinforces the need for a separation between civilian and military judicial systems, with calls for reforms to address the growing concerns over the prosecution of civilians in military courts.
The decision sets a significant legal precedent and could have wide-reaching implications for future cases involving military jurisdiction in Uganda.
