The African Commission's military justice jurisprudence

Prof. Ronald Naluwairo

Prof. Ronald Naluwairo of Makerere University in Kampala, Uganda, has written Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence of the African Commission on Human and Peoples’ Rights, 19 African Hum. Rgts. L.J. 43 (2019). He concludes:

This article has summarised and appraised the jurisprudence of the African Commission concerning the administration of justice through military courts. Most of the Commission’s jurisprudence in this area is concentrated on the jurisdiction of military courts, acts and omissions of military courts that amount to violations of the African Charter, and what can be done to ensure that the administration of justice through military courts complies with international standards of administration of justice. From the above analysis it is fair to conclude that the African Commission has done relatively well, especially with respect to articulating principles, rules and making recommendations aimed at improving the administration of justice by military courts in Africa.

What is contestable is whether these principles, rules and recommendations have translated into actual legal, policy and practice reforms in the way in which military courts in the different African countries administer justice. For instance, as highlighted earlier, in its 2009 Concluding Observations and Recommendations on Uganda’s third periodic report the African Commission expressed concern that the government had not introduced measures to prohibit the trial of civilians in military courts as it had recommended in 2006. To date (13 years since the African Commission first made this recommendation) Uganda’s military courts retain jurisdiction over many categories of civilians beyond what is acceptable in international human rights law. Consequently, in order to fully appreciate the contribution by the African Commission in improving the administration of justice by military courts in Africa, the impact of its jurisprudence on national military court systems and practices needs to be studied in detail.

Also, given its mandate with respect to the promotion and protection of human rights on the African continent several things remain that the African Commission can do to improve the way in which military courts administer justice in the different African countries. First, there is a need for the Commission to undertake or commission studies on different thematic issues concerning military courts and the administration of justice. Second, the Commission should consider organising a high-level multi-stakeholder symposium or conference on the issue of administration of justice through military courts in Africa. Third, although it is appreciated that decisions of the African Commission are not binding, it should at least inquire into and attempt to find out from the respective states why its decisions and recommendations aimed at improving the administration of military justice by military tribunals are not enforced or implemented.