AN ANALYSIS OF MILITARY JURISDICTION OVER CIVILIANS IN UGANDA AND ITS EFFECT ON JUDICIAL INDEPENDENCE.

INTRODUCTION.

On May 20^th of 2025, the Parliament of Uganda passed the Uganda People’s Defence Forces (Amendment) Bill. This legislation, which allows civilian trials in military courts under certain circumstances, was signed into law by President Yoweri Kaguta Museveni.

Nonetheless, Uganda’s military justice system was not and is not a newly established phenomenon. In an article by Ronald Naluwairo, this system has evolved from ; “ military justice during the colonial era ( 1895-1962), to a military justice in the immediate post-independence period (1962-1971), to a military justice during the Amin era ( 1971-1979) followed by military justice under the NRA codes of conduct (1986-1992), and then the military justice under the 2005 Uganda People’s Defence Forces Act (2005 to date)[1] ”.

Military jurisdiction, no matter the era, seems to have one question or issue in common, the right to a fair hearing. For whatever reason, be it the military oversight in military courts or the different set of standards military personnel are expected to adhere to, military justice at the surface of it seems to be governed under a different set of rules as compared to ordinary courts thus raising the tension between military jurisdiction and the right that is a fair trial.

This essay therefore aims to argue that military jurisdiction over civilians in Uganda disregards the independence of the judiciary. The argument will be covered through the legal framework, the judicial interpretation, human rights implications, ‘security’ justification and recommendations.

THE LEGAL FRAMEWORK.

The legislation for this essay will be centred around the International Covenant for Civil and Political Rights, the Constitution of the Republic of Uganda[2] , the Uganda People’s Defence Forces Act[3] and the Uganda People’s Defence Forces (Amendment) Act, 2025.

Uganda being a former protectorate under British rule means that most of the laws we have, even today, are a product of that period. The International Covenant for Civil and Political Rights (ICCPR)[4] is one of the laws adapted from said rule. Article 14[5] of the covenant provides for standards for which a fair hearing can be said to have occurred. For example it provides that, “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law, everyone charged with a criminal offence shall be presumed innocent until proved guilty, everyone convicted of a crime shall have a right to have his or her conviction or sentence reviewed by a higher tribunal,” and so on and so forth.

The Constitution of the Republic of Uganda[6] took up article 14 of the ICCPR where it provides for the right to a fair hearing and reiterates points of, “a fair and public hearing before an independent and impartial tribunal established by law, presumption of innocence, the accused to be informed of the nature of his or her offence in a language they understand  amongst others.” Needless to say, the spirit behind article 14 of the ICCPR is reimagined within article 28 and article 45 of the Uganda’s Constitution which is the supreme law of the state[7].

“In 1995 the Republic of Uganda adopted a new constitution under which the 2005 Uganda People’s Defence Forces (UPDF) Act was enacted.[8] ” This same act underwent amendment in 2025 to make it operational once again after certain sections were found to be unconstitutional. Former issues as to the independence of the martial court are now addressed under Section 202C[9] which provides for the independence of the judiciary. However, the question of the competency of these military courts remains unaddressed by the section which states only the ‘independence and impartiality’ of the courts. Furthermore, the fact that appointment of judicial officers for the different court martials is still up to the Commander-in-Chief[10] raises a need to examine the ‘independence’ of the courts. With Article 126[11] providing for judicial power being derived from the people for the case of civil courts, should we assume the same for military courts on account of Section 207[12] which provides that, ‘the principles of civil court are to be observed generally’ , because if not, from whom is military judicial power derived?

At it’s core, the UPDF Act was established to govern people in the military, should the UPDF (Amendment) Act then not govern the matters related to military personnel alone? To include civilians begins to blur the lines between layman and soldier.

JUDICIAL INTERPRETATION.

Understanding how this law has been interpreted and applied in the decision-making of Ugandan courts provides a deeper understanding as to why military jurisdiction over civilians in Uganda disregards the judiciary’s independence and human rights of the people.

The infamy surrounding military jurisdiction stems from doubts as to whether court martials are established with the capability to be truly independent. The independence of these courts was discussed in the case of Attorney General v Michael Kabaziguruka[13]. Former Chief Justice Alfonse Owiny Dollo framed an issue that stated, “whether a fair-minded and informed observer would conclude that the safeguards for a fair hearing at the court-martial were adequate to guarantee the independence and impartiality of the court-martial.” To answer the question, Justice Owiny Dollo considered the legal qualifications of court-martial judicial officers, the manner of their appointment, the security of their tenure, the convening and prosecuting authorities and the right of appeal in these courts. Afterwards, he rightly stated that given consideration of the factors that would pre-empt an objective mind from stating that the court martial was objective, he could find no reason to find these courts independent and impartial. Law Office of Ghazi Suleiman v Sudan[14], similarly to Uganda, had issues with the appointment of the military court because the judges were carefully chosen by the President. Appointment alone, however, would not be enough to create speculation as far as the court-martial is concerned. Full examination of the factors or lack thereof reveals that the factors discussed by Justice Owiny Dollo do not guarantee a fair hearing, which ensures the independence of these courts.

Still, within the case of Kabaziguruka, was the matter of subjecting civilians to military trial. Attorney General v Uganda Law Society[15] clearly stated that, “For an offence under an act other than the UPDF Act to be within the jurisdiction of the General Court Martial, it must have been committed by a person subject to military law.” The Kabaziguruka case also provided clear purpose of the military courts which is to “deal with the discipline and regulation of the army.” The learned Justice quoted Ronald Naluwairo[16] when he said, “First, since the existence of military courts in many countries is largely justified by the need to maintain military discipline, it makes sense to restrict their jurisdiction to only acts and omissions and only committed by those individuals whose acts and omissions can negatively impact on military discipline. For the most part these acts and omissions are military offences and the individuals whose acts and omissions mainly impact on military discipline are serving military personnel. Second, it is arguable that the other reason why the African Commission does not accept the trial of civilians by military courts is because of their bad track record as far as respecting the right to a fair trial and other human rights is concerned.”

The court’s thinking on the matter of civilians being tried in military courts seems to be against the very notion. It provides for the lack of independence and impartiality of these courts and comes up with a hesitancy to put civilians through such an unfair situation. The concept of putting a layman at the same level as military personnel who adhere to a different set of rules simply does not seem rational or something done with pure or even neutral intentions. Legal precedent shows that civilians should not be tried under the military, so why continue to do so?

Critics and opposition members within the state have stated that the law was hurriedly passed after it was declared unconstitutional to try political dissidents. Those who stand with the Act state that it was passed to handle violent criminals that regular courts cannot handle effectively. Regardless, the law, along with its ratio decidendi, is clear: civilians should not be tried in court martials.

CONCLUSION.

What recourse then is left?

Regular courts (high court, court of appeal, supreme court) should be given the authority to handle cases where civilians are intertwined with military matters. As they already have an established sense of independence from the executive arm of government, giving them this authority would reassure the public, in whose hands judicial power rests.

Additionally, the UPDF Act plus its amendment should undergo a referendum process with the people of Uganda involved in deciding what they would like the act to state so as to inspire a sense of transparency and confidence in the process. This would further encourage the objective person that there is, in fact, a sense of independence within the judiciary since decisions as to what laws should govern the people are not only discussed within parliament.

In the exceptional cases that are provided for under the UPDF Act[17], trusted media should be allowed to cover cases that involve civilians to ensure that the courts are handling them without external interference. Although caution should be exercised[18] to maintain morality, public order and national security.

This article is concerned with looking at the jurisdiction of court martials as far as civilians are concerned. At its core, the topic aims to pick at the independence and impartiality of these courts, those being the most important aspects of civilian trials. The UPDF Act claims that the courts operate under independence[19], however, judicial interpretation provides something different altogether. The Kabaziguruka case states valid concerns with the proven lack of independence and impartiality of court-martials. The amendment of the UPDF Act quickly followed after the decision of the court in Attorney General v Michael Kabaziguruka. Changes were hurriedly made following some of the points stated in Justice Owiny Dollo’s decision in the case. These changes however, do not change the fact that civilian trials under court-martials remain questionable with infamy about their nature surrounding them. The independence of these courts is something yet to be seen and with the current track record of issues surrounding these courts, there remains doubt as to whether anything will ever change.

BIBLIOGRAPHY.

Constitution of the Republic of Uganda, 1995, as amended.

Uganda People’s Defence Forces (Amendment) Act Cap 330.

Ronald Naluwairo, The development of Uganda’s military justice system and the right to a fair trial: old wine in new bottles? (2018).

The International Covenant for Civil and Political Rights.

Attorney General v Michael Kabaziguruka Constitutional Appeal No.02 of 2021.

Law Office of Ghazi Suleiman v Sudan (2003) AHLR 134 (ACHPR 2003.

Attorney General v Uganda Law Society Constitutional Appeal no.1 of 2006.

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 43-61.

[1] Ronald Naluwairo, The development of Uganda’s military justice system and the right to a fair trial: old wine in new bottles? (2018) page 1.

[2] 1995, as amended.

[3][3] Cap 330

[4] International Convenant for Civil and Political Rights , United Nations, 1967.

[5] International Covenant for Civil and Political Rights

[6] Article 28

[7] Article 2

[8] Ronald Naluwairo, The development of Uganda’s military justice system and the right to a fair trial: old wine in new bottles? (2018) Page 13.

[9] Uganda People’s Defence Forces (UPDF) (Amendment) Act Cap 330, as amended in 2025.

[10] Ibid Section 192(3), section 193(3), section 195(2)

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

[12] UPDF (Amendment) Act Cap 330, as amended in 2025

[13] Attorney General v Michael Kabaziguruka Constitutional Appeal No.02 of 2021

[14] (2003) AHLR 134 (ACHPR 2003)

[15] Attorney General v Uganda Law Society Constitutional Appeal no.1 of 2006

[16] 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

[17] Section 117A, Cap 330

[18] Constitution of the Republic of Uganda, 1995, as amended. Article 28(2)

[19] Section 202C