Supreme Court judges rebuke UPDF Court Martial as ‘incompetent,’ ‘insubordinate’

Uganda’s Supreme Court has delivered a landmark ruling, sharply criticising the UPDF General Court Martial’s handling of civilian cases. 

In a scathing rebuke, five justices declared the army court incompetent to try civilians, raising serious questions about its fairness, independence, and constitutional standing.

The ruling came in response to a petition filed by former Nakawa MP Michael Kabaziguruka, who in 2016 rushed to the Constitutional Court to challenge his trial before the military tribunal.

The appellate court ruled in his favour but the Attorney General challenged the decision before the Supreme Court.

The Supreme Court's delay to deliver a decision in the matter attracted public outcry.

It was, however, explained that the death of two judges on the panel that initially heard the appeal, and the retirement of another, caused the delay.

Today’s decision is expected to have significant implications for ongoing civilian trials before the Court Martial, including that of opposition leader Col Dr Kizza Besigye.

Justice Faith Mwondha ruled that while the General Court Martial is recognised as a subordinate court under Article 129(1)(d) of the Constitution, its structure violates fundamental rights to a fair trial. She stated:

The General Court Martial’s jury membership under Section 195 of the UPDF Act undermines its independence and impartiality and is inconsistent with the fundamental rights to a fair trial enshrined in Articles 121 and 44 of the Constitution.

She further declared Section 117(1)(h) of the UPDF Act void for vagueness, reinforcing that Kabaziguruka’s arraignment before the military court was a violation of his constitutional rights.

Justice Monica Kalyegira Mugenyi also weighed in, arguing that the Court Martial should primarily consist of civilian judges appointed by the Judicial Service Commission. She asserted:

Leading up to the 1995 Constitution, the Constituent Assembly did not envisage granting the army court jurisdiction over civilians.

Court Martial Overreaching Its Mandate

Justice Catherine Bamugemereire declared that while Section 197 of the UPDF Act legally establishes the General Court Martial, its application to civilians is an overreach. She pointed out that sections of the Act unfairly subject non-military individuals to army laws.

For creating such vulnerabilities, I would declare Sections 1, 117, and 117(h) unconstitutional. I would forthwith suspend all operations of the courts-martial, save for the hearing of disciplinary matters pertaining to serving officers.

Justice Elizabeth Musoke echoed these concerns, stating that the structural deficiencies of the Court Martial diminish its ability to function as an independent and objective judicial body.

Implications for Besigye and Other Civilians Facing Military Trials

The ruling is a major development for civilians currently on trial before the Court Martial, including Col Dr Kizza Besigye and his co-accused, Obeid Lutale. 

The military court had resisted their lawyers’ demands for a trial in a civilian court, arguing that the Supreme Court had not yet ruled on the matter.

With the Supreme Court now declaring the Court Martial structurally flawed and lacking independence, there is renewed hope that Besigye and others may have their cases transferred to civilian courts.

At the time of publication, Chief Justice Alphonse Owiny-Dollo was still delivering his 200-page judgment, which is expected to go on late into the night. 

His final pronouncement is expected to further shape the future of military courts and their jurisdiction over civilian matters in Uganda.