The Supreme Court of Uganda has ruled that the Military General Court Martial lacks the authority to prosecute civilians.
In a significant decision announced by Chief Justice Alfonse Owiny Dollo, alongside other justices, the court instructed for an immediate halt to all civilian trials in the General Court Martial, directing that all cases be moved to civilian courts that have the appropriate jurisdiction.
“All trials in the General Court Martial, involving civilians, must immediately cease and be transferred to civil courts of law with competent jurisdiction,” Owiny-Dollo noted while reading the ruling.
This decision comes at a time when Col. Dr. Kizza Besigye, a four-time presidential candidate turned political activist, along with his associate Obedi Lutale, are facing trial in the same court.
Their legal team, which includes former Chief Justice of Kenya Martha Karua and Kampala City Lord Mayor Erias Lukwago, among others has been vocal in their protests against the proceedings.
Besigye was apprehended in Kisumu, Kenya, in November while attending a book launch for Martha Karua.
He faces charges related to the possession of a pistol and ammunition, along with various security-related offenses at the Military’s General Court Martial.
Following the ruling, Lukwago stated that if the military respects the rule of law, Besigye, who was scheduled to appear in court on Monday, February 3, 2025, should be moved to a proper court.
The Supreme Court determined that the General Court Martial lacks jurisdiction over civilians, declaring it a tribunal rather than a legitimate court, thus rendering its trials unconstitutional.
All judges emphasized that the members of the Military Court do not have the legal qualifications to conduct criminal trials fairly and impartially, as mandated by the constitution.
The ruling was prompted by a challenge from former Member of Parliament and opposition figure Michael Kabaziguruka, who questioned the legality of the military court system’s jurisdiction over civilians.
The case of Kabaziguruka led the nation’s highest court to define the boundaries of military jurisdiction, especially in relation to civilian trials.
Lady Justice Catherine Bamugemereire expressed her views by stating, “I would immediately halt all activities of the courts martial, except for addressing disciplinary issues involving active officers.”
She emphasized that the framework and processes of military courts contravene the principles of fairness and impartiality enshrined in Uganda’s Constitution.
She stressed that the judicial authority, according to the law, resides within the judiciary, with the General Court Martial operating under this judicial framework, which must be respected.
Justice Monica Mugeny pointed out that the General Court Martial lacks the independence and impartiality expected of a court, making it inconsistent with constitutional standards. She advocated for reforms to enhance the autonomy of military courts, suggesting that the selection of judges for the General Court Martial should involve the Judicial Service Commission to ensure their legal qualifications and neutrality.
Justice Elizabeth Musoke reiterated that the General Court Martial is a military entity with a narrowly defined jurisdiction, asserting that it does not meet the criteria of a subordinate court and is deficient in essential characteristics like independence and impartiality.
She emphasized that civilians accused of crimes should be tried in competent judicial courts, with the right to a fair trial as guaranteed by Uganda’s Constitution.
Regarding procedural matters, Musoke ruled that only cases involving members of the UPDF and disciplinary infractions could be adjudicated by the General Court Martial.
She also deemed sections 119 and 179 of the UPDF Act unconstitutional, arguing that they improperly expanded the GCM’s authority beyond disciplinary matters and allowed for the prosecution of civilians.
Justice Persy Night Tuhaise recommended that all the prosecution of criminal offenses should be done by the Director of Public Prosecution (DPP).
She noted that justice cannot only be done but also seen if the members of the General Court Martial hold qualifications in legal matters and therefore, pronounces the GCM incompetent to handle judicial matters.
Similarly, all other judges concurred that the military court is not constitutionally authorized to prosecute civilians.
