A landmark decision in Uganda

The Supreme Court of Uganda today decided that civilians may not be tried by court-martial. The case is Attorney General v. Kabaziguruka, Const. Appeal No. 2 of 2021 (per Alphonse C. Owiny-Dollo, C.J.). "The State needs to act in order to ensure that the character of military courts and tribunals meet the democratic standards and aspirations of the people, which are clearly enshrined in the Constitution" [p. 197]. Opinions by other justices will be posted when they become available. 

The Chief Justice offered the following recommendations:

(a) Administratively establish the General Court Martial (GCM) as a division of the High Court without the need to create a new Court, with jurisdiction to handle capital criminal cases involving both military officers and any civilians who would exceptionally fall within its ambit; with Magistrates within the division handling offences falling under their jurisdiction.

(b) Limit the functions of Unit Disciplinary Committees (UDCs) and Summary Trial Authorities (STAs) to handling strictly disciplinary offences, with no power of imposing sentences of imprisonment.

(c) Utilize the existing magistracy to handle the rest of the criminal cases (other than disciplinary offences) committed in Uganda (which are currently falling within the docket of the UDCs). The subordinate military Courts can handle criminal cases at the level of Chief Magistrate’s Courts (for offences attracting life imprisonment and below). Or;

(d) With the advice of the Judicial Service Commission (JSC), appoint civilians with the requisite professional legal qualifications to serve as judicial officers in the current subordinate military courts. They would 30 exercise jurisdiction over offences triable by subordinate courts. They should have the same privileges and safeguards as their counterparts in the civil courts. Or;

(e) Amend the Constitution to establish superior Courts within the military Court system under Art 129; and clothe them with the requisite jurisdiction and guarantee of independence and impartiality to try specific military offences of a capital nature and all other capital offences under existing laws, committed by military personnel. Or;

(f) Provide in the UPDF Act for the High Court to sit as a Court martial with power to try all criminal capital offences within the High Court jurisdiction, and those unique to the military that attract a maximum of life and death sentences. Grant the Chief Justice powers to assign Judges to the military courts. A select number of military personnel can act as assessors. Appeals to the Court Martial Appeal Courts would follow the same format, with the Court of Appeal sitting as such. Magistrate’s Courts would assume the jurisdiction over all other offences of a subordinate Court.

(g) Make provision in the UPDF Act for trial of civilians in military courts to be only under limited circumstances; and only after the State has concretely demonstrated to the court by verifiable facts, and by objective and serious reasons, the need and justification for recourse to the military court. This must only apply where in relation to the specific class or category of persons and offences in question, ordinary courts are not in position to undertake such trial.

(h) Make provision in the UPDF Act for appeal from military courts and tribunals, corresponding to appeals in ordinary Courts.

In each of the options suggested above, the jurisdiction UDCs and STAs must be limited to that of tribunals; handling strictly disciplinary offences, with no power of detention or imprisonment, as is the case with other disciplined Forces such as the Police, and Prisons. [pp. 198-200]

Comments on the decision are welcome. Real names only, please.