The Supreme Court has settled the long-standing debate over whether civilians can be tried in military courts, ruling decisively that military tribunals lack the legal authority to prosecute civilians.
In a near-unanimous decision, a panel of seven judges determined that the court martial is not a competent judicial body for civilian trials. Chief Justice Alfonse Owinyi-Dollo emphasized that military courts lack the necessary legal expertise, likening the practice to allowing an unqualified person to perform surgery.
Owinyi-Dollo highlighted that court martial judges, who often lack formal legal training, preside over serious cases, including treason, without the right to appeal. He pointed out that even junior officers and bodyguards can sit on military court panels, which undermines the integrity of the judicial process.
Expressing concerns over the appointment process, he criticized the fact that military court judges are selected by the President for short one-year terms, denying them judicial independence. He further noted that the court martial does not provide adequate facilities for the preparation of legal defense, violating the fundamental right to a fair hearing.
The ruling also found that military courts fail to uphold appeal rights, rendering them unconstitutional. Owinyi-Dollo argued that even soldiers should not face tribunals that lack judicial competence, especially for serious charges like treason, which carry life imprisonment or the death penalty.
As a result, the Supreme Court declared sections of the Uganda People’s Defence Forces (UPDF) Act that allow military courts to try civilians unconstitutional, null, and void. All ongoing civilian trials in military courts must cease immediately.
Before the Chief Justice delivered his verdict, Justices Monica Mugenyi, Catherine Bamugemereire, Elizabeth Musoke, and Percy Night Tuhaise had already concurred, ruling that military courts lack both independence and the legal framework to function as part of the judiciary.
The case originated from former Nakawa MP Michael Kabaziguruka’s 2016 petition challenging his trial in a military court. In 2021, the Constitutional Court ruled 3-2 against the military’s authority to try civilians, prompting an appeal by the Attorney General.
Justice Kenneth Kakuru (RIP), who wrote the lead judgment in the Constitutional Court case, argued that the UPDF Act was never intended to apply beyond the military. He stated that Article 210 of the Constitution only grants Parliament authority to regulate the armed forces, not to extend military jurisdiction over civilians.
The Supreme Court ruling is a significant victory for political figures like Dr. Kizza Besigye and other opposition supporters who have faced prosecution in military courts. The decision reaffirms the judiciary’s authority over civilian legal matters and limits the overreach of military tribunals.
