Turning 75

No, not the Editor (been there, done that); the UCMJ. Some Reforms to Consider as the Uniform Code of Military Justice Turns 75 This Spring, over at Just Security.

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.

Mark your calendar

The Supreme Court of Uganda has given notice that it will decide the long-pending challenge to the trial of civilians by court-martial at 9:30 a.m. on January 31, 2025. The Constitutional Court had held years ago that civilians could not be tried by court-martial except if they were accomplices of military personnel. Both sides appealed to the country's top court. Much of the delay is attributable to the government's failure to promptly fill seats on the court that became vacant due to deaths and retirements. Details here and here.

The issue of trying civilians in military court is also pending before the Supreme Court of Pakistan, which has found a variety of ways to put off the moment of truth.

New military law and IHL center in India

The Indian Society of International Law (ISIL) has established a Centre for Advanced Study in International Humanitarian Law and Military Law. ISIL's new Secretary General is longtime Global Military Justice Reform contributor Wing Commander (ret) Dr. U C Jha. Congratulations!

Time's up in Kampala

Isaac Ssemakadde, president of the Uganda Law Society, has written this important op-ed in the Kampala Observer. Excerpt:

Forty-two (42) Justices in the Court of Appeal/Constitutional Court of Uganda and the Supreme Court of Uganda have spent 25 years examining whether section 119(1)(g)(h) of the UPDF Act is inconsistent with Articles 28(1), 126(1), and 210 of the Constitution—in simple terms, whether the trial of civilians in military courts is unconstitutional.

*  *  * 

Due to the Supreme court’s delay in delivering the Kabaziguruka judgment, our Supreme court is now perceived as an enabler of military repression of political opponents, stifling dissent and perpetuating a culture of fear.

For the sake of vulnerable communities like those in Karamoja at risk of continued military repression and human rights abuses, the Supreme court of Uganda must act with urgency and humanity to deliver the judgment in AG v. Michael Kabaziguruka.

It is therefore crucial that our meeting with the chief justice should result in a judgment date, to arrest public anger and curb long-term harm to our judiciary. We are aware that all appellate judges are in retreat in Mbarara from January 13-17, and from February 3-7 they will attend another calendar retreat known as the Judges’ Annual Conference.