A major ruling in Uganda

On November 8, 2018, the Court of Appeal of Uganda handed down the unanimous decision in Ogwang v. Uganda, Crim. App. No. 107 of 2013 [2018] UGCA 82 (Uganda Ct. App. 2018). The accused, an Army junior officer, had been convicted in 2010 by a court-martial of murder and robbery as service offenses (i.e., offenses under civilian law that may be tried in a military court). The Court of Appeal overturned the 2013 judgment of the Court Martial Appeal Court on the ground that one of the members of the court-martial panel had participated in the investigation and the accused's arrest, and had been replaced by another member in mid-trial. The Court of Appeal indicated that it would ordinarily have sent the matter back for retrial before a court-martial, but instead referred it for civilian prosecution on the ground that the court-martial lacks independence. According to the decision:

37. . . . The judges of an independent court cannot be under the administrative control of the authority that brings the charges. In order to secure the independence of the courts the courts are placed under a different arm of the state known as the Judiciary with security of tenure and insulation from control of the Executive which originates criminal charges with the exception of private prosecutions which are brought by private individuals.

38. Military Courts, appointed by the High Command, are basically organs of the Army intended to ensure operational efficiency and discipline of officers and militants of the Uganda Peoples Defence Forces. That is the purpose and thrust of military justice. For that reason service offences are created under the Uganda Peoples Defence Forces Act under Part VI of the Act over which Military Courts exercise jurisdiction.

The court held that the effect is to profoundly (and unconstitutionally) transform courts-martial from courts of limited jurisdiction to courts of general jurisdiction. "The military courts are not independent of the Executive. They belong to the Executive." The court also pointed out that the absence of any guidance as to which court system -- military or civilian -- would try civil offenses as to which there is concurrent jurisdiction impermissibly opens the door to arbitrary decision making.

The decision, which is subject to further appellate review, is pertinent to court-martial subject matter jurisdiction issues that are currently pending in Canada.