Authored By: Daisy Wagaba
Uganda Christian University
The respondent ,Hon.Micheal Kabaziguruka is a civilian and member of parliament who was arrested and tried in the General Court Martial for numerous allegations in 2016.These included treachery, conspiring to overthrow government all contrary to sections in the Uganda People’s Defence Forces Act (UPDF ACT).The respondent challenged the General Court Martial’s jurisdiction arguing that they do not have the authority to try civilians in military courts as he is not even connected to the military itself. The General Court Martial overruled his objection which coerced him to file a petition in the Constitutional Court. The Constitutional Court ruled in favour of the respondent stipulating that civilians cannot be tried in military courts unless they are charged as accomplices to military personnel who is subject to the military law. The Attorney General then went ahead to appeal against this judgement and Hon Micheal cross appealed against the ruling that civilians could be tried in military courts
KEY ISSUES
Whether the General Court Martial is a competent court of law or mere tribunal
Whether the General Court Martial is an independent and impartial court within the meaning of Article 28(1).
Whether sections 2 and 179 of the UPDF Act are constitutional
Whether the trial by civilians in a martial court violates Article 28 of the Constitution
Law Applicable
The case was decided based on the following primary legal provisions;
Article 28(1): Guarantees a right to fair hearing before a court of competent jurisdiction
Article 44(c): Lists a right to fair hearing as one of the non derogable rights in Uganda
Article 126: Establishes the judiciary and the powers conferred in it
Article 129: Establish the hierarchy of courts such as is the Supreme Court, Court of Appeal, High Court, and subordinate courts.
Article 210: Empowers Parliament to regulate the UPDF, including its discipline and the establishment of military courts.
UPDF Act 2005 (Sections 2, 119, 179, 197): Define who is subject to military law and the jurisdiction of military courts.
The African Charter on Human and Peoples’ Rights: Cited as persuasive authority regarding the limitations of military court jurisdiction over civilians.
Dakar Declaration: Persuasively cited to emphasise the exclusive nature of military trial courts to military personnel
Analysis
The Court observed that while the General Court Martial is a court of law and a subordinate court under Article 129, it lacks the full independence of ordinary courts because it is part of the military’s executive command structure. Members of the GCM are active-duty officers without security of tenure or mandatory legal training, which compromises their perceived impartiality.
The Court analysed the purpose test which explained the purpose of military law which is to maintain discipline within the armed forces. Trying civilians for ordinary crimes does not further this goal. It was further noted that current provisions sections 2 and 179 of the UPDF Act were ultra vires because they allowed military courts to usurp the jurisdiction of the High Court and specialized courts like the Anti-Corruption Court. The learned judges highlighted that the right to a fair hearing is non-derogable. For a military court to try a civilian, the state must demonstrate exceptional circumstances and compelling reasons which cannot be met by simply citing a law in abstract. The Court criticized the current structure where military personnel who are subject to orders and promotions from the executive act as judges that is to say lack of a legally qualified judge on the panel to rule on legal issues was found to deny the court the independence required for constitutional competence. According to international principles like the Dakar Declaration, which was cited, the purpose of military courts is solely to maintain internal military discipline and therefore should not in any circumstances have jurisdiction over civilians.
OUTCOME
The Supreme court generally upheld that civilians are not to be tried in military courts of law.The learned judges stated that military courts are specialised tribunals for militarily affiliated individuals only. Justice Owiny Dollo went ahead to highlight that sections 2,119 and 179 of the UPDF Act were unconstitutional contrary Article 28(1) ,126 and 129 of the Constitution of the republic of Uganda because they permitted military courts to try any offence under the Ugandan law which created blanket jurisdiction and disrupted the operation of court hierarchy. The Chief Justice issued an advisory opinion suggesting that if Parliament intends for military courts to handle capital cases or try civilians in exceptional circumstances, it must reform the law to ensure these courts meet constitutional standards of independence, impartiality, and provide a clear right of appeal to civilian courts of record. The trial of Hon. Kabaziguruka was declared unconstitutional, and the Court affirmed his release.
REASONING
Chief Justice Owiny Dollo held that civilians could not be tried in military courts backing his decision with the rationale that they are not subject to military laws unless charged as accomplices to someone subject to such laws.
Court further reasoned that the General Court Martial lacks competent jurisdiction to handle civilian affairs more so in non-military related offences.
They also ruled in favour of Hon.Micheal Kabaziguruka because the above-named sections of the UPDF Act were unconstitutional contrary to Article 28,126 and 44 of the Constitution of Uganda.
PRINCIPLES ESTABLISHED
- Separation of powers
The first principle established in this case was that the General Court Martial is a subordinate court[2] with limited jurisdiction intended primarily for military affairs and not general criminal jurisdiction .This also clearly stipulated that as a subordinate court whose rank is lower than that of the High Court ,cannot have superior or equal authority with the High Court. Chief Justice Owiny Dollo went ahead to give the word “subordinate” an ordinary meaning in the interpretation of Article 129(1)(d)[2]to further indicate the confines of military jurisdiction.
Doctrine of Ultra Vires
Secondly, it was established that Sections 2,119 and 179 of the UPDF Act were unconstitutional to the extent that they confer blanket jurisdiction on military courts to try civilians. It was established that a civilian can only be tried under the General Court Martial if he or she is found to be an accomplice to military personnel or as a joint principal offender with anyone subject to military law.
Constitutional Supremacy.
Chief Justice Owiny Dollo emphasised that Parliament cannot legislate away constitutional protections such as the right to fair hearing in a court of competent jurisdiction which is a non derogable right as envisaged in Article 28 and 44 of the Constitution, via the UPDF Act.
NOTABLE OBITER DICTA
The Chief Justice observed that while having military personnel on a panel isn’t inherently biased, an objective reasonable person would distinguish between active-duty servicemen under a chain of command and retired officers who are free from the pressure of seeking promotions, in regard to military court composition. On legal training, he remarked that it is a legal requirement that anyone sitting in a court to deliver justice should be legally trained to properly evaluate evidence and apply the law with independence. On legislative options, he provided an advisory view that if Parliament wishes military courts to handle capital cases, they must grant them jurisdiction in a way that includes the right of appeal to the Supreme Court.
Justice Musoke’s earlier lead judgment in the Constitutional Court case of Rtd. Cpt. Amon Byarugaba & 169 Ors v A.G. was heavily cited as a persuasive authority for the Supreme Court’s findings. On legislative limits, She emphasized that Article 129 of the Constitution places strict limits on Parliament’s power to establish courts. She noted that while Parliament can create subordinate courts, it cannot create a parallel judicial system that bypasses the High Court’s original jurisdiction over civilians. On the specialized nature of military courts, she argued that the General Court Martial is deemed to be established only for specialized military discipline and should not be treated as a court of general application for ordinary crimes.
The Supreme Court explicitly adopted and reaffirmed the strong obiter remarks made by the late Justice Twinomujuni in the case of Uganda Law Society & Karugaba v Attorney General: On structural impartiality, he famously remarked, “it is not possible for Uganda Military Courts to be independent and impartial given the current laws under which they are constituted and the military structure within which they operate”. The Supreme Court used this to justify its finding that the current General Court Martial structure fails the constitutional test for a fair hearing for civilians.
The court referenced Justice Mulenga’s reasoning from Attorney General v. Uganda Law Society (2006) to support the ratio of the case and established that where a specific act like the Anti-Terrorism Act confers exclusive jurisdiction to the High Court, the General Court Martial cannot claim concurrent jurisdiction, as doing so would be inherently unconstitutional.This was reflected in the above holding.
CONCLUSION
Although the justices on the Supreme Court panel (Mwondha, Tuhaise, Chibita, Bamugemereirwe, and Mugenyi) did not provide separate, lengthy written opinions in this specific document, their concurrence solidified the principle that the military’s chain of command is fundamentally incompatible with the independence and impartiality required to try civilians for ordinary crimes under Article 28 of the Constitution.
REFERENCE(S):
[1] Attorney General v Kabaziguruka (Constitutional Appeal 2 of 2021) [2025] UGSC 1 (31 January 2025)
[2] Attorney General v ULS Supreme court constitutional appeal no.1 of 2006
