A.G v Kabaziguruka

ATTORNEY GENERAL  APPELLANT/CROSS RESPONDENT

VERSUS

HON. MICHAEL.A.KABAZIGURUKA…….RESPONDENT/CROSS APPELLANT Constitutional Appeal 2 of 2021 2025 UGSC 1

In the Supreme Court of Uganda at Kampala, judgement was delivered on January 31 2025 by Chief Justice Owiny-Dollo plus Justices Mwondha, Tuhaise, Chibita, Musoke, Bamugemereire, and Mugenyi.

Introduction.

Simply put this case handled issues surrounding the infamy of military courts trying civilians within the state of Uganda. Having seen how the matter was handled internationally, this case provided an understanding of the matter to even those that do not fall under the legal profession within the country. It’s significance comes from providing answers that surround the issues of military jurisdiction over civilians within Ugandan context. In the case, with serious deliberation. Former Chief Justice Owiny Dollo directly addresses issues to do with court martial jurisdiction in Uganda, whether they can be considered courts in the first place and of course if civilians can fall under court martial jurisdiction amongst other things. On June 28,2016, Hon. Michael Kabaziguruka, a civilian and Member of Parliament for Nakawa, got hauled before the military General Court Martial (GCM), accused of plotting against the government and “treachery” under the Uganda People’s Defence Forces (UPDF) Act. His defence was that the military court had no business trying civilians like him and wasn’t a real court under the Constitution. The GCM disagreed, so he went to the Constitutional Court[1], challenging sections of the UPDF Act and the jurisdiction of the General Court martial over civilians like him. In its ruling in 2021, the Constitutional Court mostly sided with him—it said civilians can’t be tried by military courts, and the charges were invalid. It also struck out section 119(1)(h) of the UPDF Act as unconstitutional. The Attorney General appealed to the Supreme court, dissatisfied with the ruling of the Constitutional Court and Kabaziguruka cross-appealed on the issue of civilians being tried as accomplices.

 The Legal Questions.

The Supreme Court boiled the whole dispute down to six questions:

Issue 1: Whether military Courts Martial are “courts” under the Constitution, or just tribunals?

Issue 2: Whether Courts Martial are really independent and impartial, as required by Articles 28(1) and 44(c)[2]?

Issue 3: Whether civilians can be tried by military courts for “service offences” under the UPDF Act?

Issue 4: Whether civilians be tried by military courts for civil offences from other laws, using sections 2, 179, and 119(1)(h) of the UPDF Act[3]?

Issue 5: Whether people subject to military law can be tried by Courts Martial for ordinary civil crimes?

Issue 6: Whether Kabaziguruka’s trial as a civilian before the GCM was constitutional?

For the purposes of this case summary that focuses on the issues of civilians and military trials I shall focus on issues one through four only.

Arguments Presented.

Appellant’s Arguments.

Represented by Attorney General, Kirwoowa Kiwanuka, the appellant had four grounds of appeal. It is ground 1 and 2 which I will discuss as they form the basis of why this case is important. The appellant argued that the learned justices of the Constitutional Court erred in law in finding that the General Court Martial is only competent to try military disciplinary offences under the UPDF Act. He submitted that soldiers are fallible to offenses such as rape and murder and therefore the wide jurisdiction of the GCM was necessary to maintain order and discipline within army folk. He further challenged the finding that stated that the GCM was incapable of impartiality and independence by stating that it should not be considered who the appointing authority is, but rather whether members of the GCM and the Chairman are under the influence of the appointing authority during their deliberations. He also stated that oaths and affirmations by these members are taken under the 6th schedule of the UPDF Act (rules of procedure). Simply put, the Attorney General argued the GCM is a valid, independent court created under the Constitution and needed broad jurisdiction to keep order, especially on foreign missions. He said its members swear an oath and can be impartial, and that trying civilians who help the military break the law makes sense for national security.

Respondent’s Arguments.

In response, Kabaziguruka stated offering a wide jurisdiction to the GCM is ultravires. It essentially confers criminal jurisdiction on court martial instead of limited jurisdiction over disciplinary offenses. On the matter of the independence and impartiality of the General Court Martial, the respondent stated that the GCM falls short because 1)the command structure of the UPDF as an army and component of the executive arm of government cannot guarantee the rights associated with the two tenets of independence and impartiality and 2)the command structure is both political and military. There was also a cross appeal where counsel for the respondent argued that a civilian cannot be tried with a person subject to military law, under the constitution. The UPDF Act, being of a restrictive nature that is meant to supervise military discipline, should apply only to the military.

 Court’s Reasoning and Analysis.

Chief Justice Owiny-Dollo led the majority. The Court looked at international human rights, decisions from other countries, and Uganda’s legal history.

They said the General Court Martial is a subordinate court under Articles 129(1)(d)[4] and 210 of the Constitution, not just a tribunal. The court cited Attorney General v Tumushabe[5] where it held that the GCM is a court albeit one subordinate to the high court. But just being a court isn’t enough — it must also be competent to hold fair trials.

Looking at independence and impartiality, the court recast the issue as whether a fair minded and informed observer would conclude that the safeguards for a fair hearing in the court martial were adequate to guarantee the independence and impartiality of members of the Court Martial. Using the “fair-minded observer” test, it found the GCM seriously lacking. Ronald Naluwairo’s work[6] was cited as providing key factors which determining fair hearing (which is a vital ingredient for independence and impartiality) as follows; it is critical to ensure that they are truly independent of the executive branch of government, also the method of appointment, the length of their tenure, the existence of protection against external pressure, the issue of real or perceived independence and having legally qualified persons as members of military courts. At the time this case was heard, before the amendment, the UPDF Act did not provide for any of its members to be legally trained, yet they could give out death sentences. All members were military officers, tied closely to the executive and under a strict command chain. The same military brass who appointed the judges could also choose the prosecutor and bring the charges. That much power in one place, the court said, ruins independence, violating Articles 28(1) and 44(c).

On civilians being tried by the GCM, the court made it clear: military courts can’t try civilians. The UPDF Act provides that only persons under military law can be subject to trial in a court martial. In the 2nd Lt Ogwang case cited by this court it was held that the court martial was incompetent to try civilians due to the fact that they are not clothed with independence or impartiality guaranteed under Article 28(1)[7] . The purpose of military courts is discipline and regulation of the army[8], not regular criminal justice. The global consensus, and Uganda’s Constitution, say civilians should be tried in ordinary courts. The sections of the UPDF Act that allowed these blanket trials were struck out as unconstitutional.

As for subject-matter jurisdiction, the court said military courts should stick to disciplining soldiers for military offences. Giving them power over all civil crimes (like murder or rape) goes too far and means soldiers don’t get equal justice. The missing appeal route to Uganda’s Supreme Court for capital cases sealed it: unconstitutional.

The Decision.

The Attorney General’s appeal was dismissed while the respondent’s cross-appeal was allowed. The Supreme Court backed up the Constitutional Court and took it even further.

The main legal takeaways were; the General Court Martial, with its current structure, is too tied to the executive to be truly independent or impartial. It cannot constitutionally exercise judicial power, trying civilians in military courts — whether they’re the main offender or just an accomplice — violates their right to a fair and impartial hearing and isn’t justified under Article 43, military courts should not have general power to try civil offences — it is unconstitutional and goes beyond their role.

In light of these findings, court ordered that all trials of civilians by Courts Martial stopped immediately and moved to ordinary courts, criminal cases against UPDF soldiers that belong in civil courts also moved, no effect on finalized convictions unless still under challenge and the respondent got his legal costs.

Critical Thoughts.

This judgment, though wide, carries significant weight in defining and expounding on what impartiality and independence means in courts especially military courts. It strengthens Uganda’s Constitution and keeps military power in check. The court’s reasoning, through a deep drawing on local history, international law, and the Constitution clearly explains why military courts cannot be trusted to competently and effectively handle matters involving civilians. Using the “fair-minded observer” test laid out a clear principle for evaluating judicial impartiality.

There was, though, some disagreement among the Justices. Justice Mugenyi, for example, thought civilians could be tried as accomplices. These split opinions could cause confusion about what military courts can or can’t do moving forward. Also, ending these trials so abruptly puts a lot of pressure on the civil courts, with no real plan for the transition. In addition to that, the immediate amendment of the UPDF Act after this case raises curiosity to see how judges will reconcile its passing with this case that so clearly calls the Act unconstitutional.

Conclusion.

In the end, Attorney General v Kabaziguruka[9] changed everything. The Supreme Court said the General Court Martial, with its current setup, just cannot deliver the independence and fairness the Constitution promises. While it is a legitimate court, it does not have the right jurisdiction over civilians or soldiers charged with civil crimes. This stops military courts from trying civilians and civil offences, restoring the ordinary courts’ authority. This case also gained popularity with most of the people of Uganda standing by its decision. The question remains though, with this case that clearly calls for the unconstitutionality of the UPDF Act, how will judges determine future cases that come to appeal concerning the UPDF (Amendment) Act?

Reference(S):

[1] Kabaziguruka v Attorney General (Constitutional Petition No. 45 of 2016)

[2] Constitution of the Republic of Uganda, 1995, as amended.

[3] Now section 1, 177 and 117(1)(h) respectively under the UPDF(Amendment)Act.

[4] Provides for courts of judicature giving parliament the power to establish other courts.

[5] Constitutional Court petition no.18 of 2005

[6] Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence of the African Commission on Human and People’s rights” (2019)19 African Human Rights Law Journal 43-61

[7] Constitution of the Republic of Uganda, 1995, as amended.

[8] Ronald Naluwairo, Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence of the African Commission on Human and People’s rights” (2019)19 African Human Rights Law Journal 43-61at page 5.

[9] Constitutional appeal no.2 of 2021