5 THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: OWINY-DOLLO, CJ; MWONDHA; TUHAISE; CHIBITA; MUSOKE; BAMUGEMEREIRWE; MUGENYI; JJ.S.C

CONSTITUTIONAL APPEAL NO. 02 OF 2021

(Arising from Constitutional Petition No. 45 of 2016)
10
ATTORNEY GENERAL ………………..……………… APPELLANT/ CROSS RESPONDENT

VERSUS

15 HON. MICHEAL A. KABAZIGURUKA …………….. RESPONDENT/ CROSS APPELLANT

[Appeal from the decision of the Constitutional Court (Kakuru, Obura, Kasule JJ.A; and
Madrama, Musota JJ.A. dissenting) at Kampala dated 1st July 2021 in Constitutional Petition
No. 45 of 2016.]

20 JUDGEMENT OF OWINY – DOLLO, CJ.

Introduction
This appeal arises out of a petition instituted under Article 137 (1) & (3) in
the Constitutional Court. In essence, the appeal and cross appeal are against
the majority decision of the learned Justices of the Constitutional Court
25 regarding the competence of the military Courts, their ability to render a fair
hearing, offences triable in military Courts, and persons subject to the
jurisdiction of the military Courts in Uganda.

Background
When he filed Constitution Petition No. 45 of 2016 in the Constitutional
30 Court, the Respondent was a civilian and Member of Parliament representing
the people of Nakawa Municipality, Kampala Capital City Authority (KCCA) in
the 10th Parliament, and shadow Minister for KCCA. He filed the petition

1
5 against the backdrop of events following his arrest, whereupon he was
arraigned before the General Court Martial (GCM), and charged, along with
others, with offences under the Uganda People’s Defence Force (UPDF) Act; to
wit, offences relating to security contrary to section 130 (1) (f) with the
particulars thereof being that he contrived a plot with others to overthrow
10 the government of Uganda, and Treachery contrary to section 129 (a) with the
particulars thereof being that he infiltrated the UPDF or was an agent of a
foreign power or any force engaging in war or war-like activities against the
government of Uganda. He objected to his trial in the GCM, contending that
he was not subject to military law as he had no military connection and that
15 the GCM was not a competent Court under the Constitution to try any of the
offences with which he was charged; but, the GCM overruled his objection.
He filed the petition in the Constitutional Court challenging the provisions of
the UPDF Act No. 7 of 2005, which he singled out in the petition, and acts of
the UPDF of arresting, detaining and remanding him to prison in relation to
20 the charges against him, as being inconsistent with the Constitution. The
proceedings in the GCM against the Respondent were stayed by an order of
the Constitutional Court. In essence he alleged in the petition that:

(i) Section 197 of the UPDF Act 2005 is inconsistent with Articles 28 (1),
126 (1), 129 (1) and 257 (1) (d) of the Constitution to the extent that
25 it purports to create a Court of law without constitutional authority.
(ii) The General Court Martial and other military Courts established
under Part VIII of the UPDF Act are not Courts of law within the
meaning of Art 126 (1), 129(1), 210 and 257 of the Constitution of
the Republic of Uganda.

2
5 (iii) Sections 2, 179 and 119 (1) (g) & (h) of the UPDF Act are inconsistent
with and in contravention of the Constitution of the Republic of
Uganda to the extent they define a service offence to mean any
offence under the laws of Uganda, and conferring jurisdiction unto
the Court Martial to try any offence including both capital and non-
10 disciplinary offences, and jurisdiction over every person.
(iv) The act of arraigning and/or charging the Respondent before the
GCM holden at Makindye is inconsistent with and in contravention
of his rights of a fair hearing under Arts 28 (1) of the Constitution of
the Republic of Uganda.

15 He prayed for a permanent injunction to restrain the Appellant from

continuing those proceedings. The Constitutional Court, partly allowed the
appeal in its majority decision where it inter alia held that as a civilian, the
Respondent was not subject to military law; and could only be lawfully tried
by a military Court if he were charged under s. 119 (1) (g) of the UPDF Act as
20 an accomplice to a principal who was subject to military law, and the
principal was so named in the charge sheet. There being no principal named
in the charge sheet, the Court held that the charges brought against him were
null and void; and of no effect. The Court also declared section 119 (1) (h) of
the Act, which allowed military Courts to try persons for offences provided
25 for under other laws outside the scope of the UPDF Act, unconstitutional.

According to the Court, Parliament never intended that the UPDF Act should
be an Act of general application since it is a statute of special and limited
application. Hence, the unlimited and original jurisdiction of the GCM,
referred to in the UPDF Act, only apply to offences under that Act. Last, the

3
5 Court examined the nature of the military Courts and held that, first, Military
Courts lack all the tenets of an ordinary Court established under Chapter 8 of
the Constitution; particularly under Art. 28 (1). Second, they are tribunals;
and third, they are not part of the Judiciary. The Court accordingly ordered
that the Petitioner be released forthwith. The Appellant was dissatisfied with
10 the decision of the Constitutional Court; hence it appealed to this Court. The
Respondent for his part, cross appealed against the decision allowing
civilians, in certain cases, to be tried in the Military Courts.

Grounds of Appeal.
The grounds of appeal are;
15 1. The learned majority Justices of the Constitutional Court erred in law in finding
that ss. 2 and 179 of the UPDF Act are in contravention of Articles 28 (1) and 44 (c)
of the 1995 Constitution and that the GCM is only competent to try military
disciplinary offences under Part VI of the UPDF Act.
2. The learned majority Justices of the Constitutional Court erred in law and fact in
20 determining that the GCM cannot be impartial or independent; is inconsistent with
Art 28 (1) of the 1995 Constitution of Uganda, and does not apply the principles
therein to persons subject to military law.
3. The learned majority Justices of the Constitutional Court erred in law and fact in
determining that charging and arraigning the Petitioner before the GCM was
25 inconsistent with Art 28 (1) and 44(c) of the Constitution.
4. The learned majority Justices of the Constitutional Court erred in law in finding
that section 119 (1) (h) of the UPDF Act is inconsistent with Art. 28 (1) and 44 (c) of
the Constitution.
The Appellant prayed that the appeal be allowed, the decisions of the learned
30 Majority Justices of the Constitutional Court cited be set aside, and the
Appellant be awarded costs of the appeal.

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5 The Cross appeal
The Respondent cross appealed on the following ground:
1. That the learned majority Justices of the Constitutional Court erred in law
in holding that a civilian can be charged before Military Courts as an
accomplice together with a person subject to military law.

10 He thus prayed that the cross appeal be allowed, and part of the decision of
the majority Justices that he has impugned be set aside or reversed.

Representation
At the hearing of the Appeal on 30th September 2021, the Appellant was
represented by Kirwoowa Kiwanuka the Attorney General appearing with Mr.
15 Martin Mwambusya, Director Litigation; Mr Phillip Mwaka, Ag. Commissioner,
Directorate of Civil Litigation; Mr Richard Adrole, Principal Sate Attorney; Mr.
Brian Musota, State Attorney; and Mr. Franklin Uwizera, State Attorney.
The Respondent was represented by Counsel Caleb Alaka, Hon. Medard
Ssegona and Mr. Jonathan Elotu. Counsel on each side had earlier on filed
20 written submissions. Both sides made oral clarifications in Court on their
submissions.

The matter came up for rehearing upon reconstitution of the panel, on 13th
May 2024. Counsel Medard Lubega Segona represented the Respondent; while
George Kalemera, Geoffrey Madette and Brian Musota appeared for the
25 Appellant. Neither side had any new submissions. However, Counsel for the
Respondent urged the Court to also consider a recent Constitutional Court
decision in Rtd. Cpt. Amon Byarugaba & 169 Ors v A.G - Const. Pet. No. 44 of 2015 as
relevant.

5
5 Submissions of the parties.

Ground 1. The learned majority Justices of the Constitutional Court erred in

law in finding that ss. 2 and 179 of the UPDF Act are in
contravention of Art. 28 (1) and 44 (c) of the 1995 Constitution,
and the GCM is only competent to try military disciplinary offences
10 under Part VI of the UPDF Act.
The impugned sections incorporate all offences under other enactments
within the jurisdiction of the GCM. Under this ground, Counsel for the
Appellant challenged the Constitutional Court’s finding that the GCM and
military Courts in general are not Courts under the Constitution; but are
15 tribunals with a limited jurisdiction, and only competent to try military
offences rather than ordinary civil offences provided for in other enactments.
Counsel submitted that, in enacting s. 2 and s. 179 of the UPDF Act 2005,
Parliament acted within its Constitutional mandate in Art. 210 to legislate on
matters of regulation of the UPDF including discipline and removal from the
20 UPDF. He argued that this mandate extended to legislation on related matters
such as creating the Courts Martial as Courts of law to imbue discipline in the
army; delineate the scope and operation of the Courts Martial; and to enforce
the law.

Regarding the wide jurisdiction of the GCM over civil offences and capital
25 offences in particular, Counsel argued that the GCM was already deemed
competent to handle offences under the Part VI of the UPDF Act, which attract
the death sentence. He also additionally submitted that Parliament was alive
to the reality that soldiers in the battle field are fallible to other offences not
expressly listed in the UPDF Act, but are covered under other enactments,

6
5 such as rape or murder under the Penal Code Act; and cited the need to
quickly and firmly deal with the soldiers to maintain discipline. Counsel
submitted that the Constitutional Court created an absurdity whereby UPDF
soldiers who commit such offences during military expeditions outside
Uganda cannot be tried by the GCM or civilian Courts which would have no
10 territorial jurisdiction to hear these matters. He argued that it was not
necessary for Parliament to re-enact all offences into the UPDF Act s.2 and
s.179 were sufficient.

On the other hand, Counsel for the Respondent/Cross Appellant submitted

that the learned Majority Justices were right in finding that ss. 2 and 179 are
15 unconstitutional. He argued that a service offence under s. 2 is wide and
limitless to include all offences to which a person is chargeable under civil
statutes that have nothing to do with the military; therefore, affording the
UPDF to usurp the powers of the Judiciary and become a jack of all trades. He
argued that the UPDF Act is not an Act of general application, but one of
20 special and limited application; and the power of Parliament in regulating the
UPDF was to regulate the UPDF only within the four corners of Art 210 of the
Constitution. This excludes the general adjudicatory function and the
corresponding wide jurisdiction over all offences, bestowed on the Judiciary
under Art. 126.

25 According to him, Parliament also overstepped its legislative mandate

granted by Article 79 of the Constitution for good governance because even
the power to legislate on ‘related matters’, that appears in the long title to the
UPDF Act, cannot be read to include the mandate of the Judiciary of
adjudication and administration of justice provided for in Chapter 8 of the

7
5 Constitution; but falls outside the scope of Art 210. He opined that conferring
that jurisdiction on the military Courts, had the effect of amending the
Constitution without following the due procedure for so doing under Art 259.
He also submitted that Chapter 12 and in particular, Art 210 (a) - (d) only
relates to the functioning of the UPDF and what the UPDF does outside that
10 generic string such as the exercise of the overly wide jurisdiction over subject
matter outside is ultra vires. In this line of argument, he further argued that
the impugned sections 2 and 179 of the UPDF Act illegally confer criminal
jurisdiction upon Courts Martial instead of limiting jurisdiction only to
jurisdiction over disciplinary offences; yet military law concerns military
15 discipline and other rules governing the armed forces.

In rejoinder, Counsel for the Appellant submitted that the rule of harmony
and exhaustiveness should be kept in mind while interpreting the provisions
of the Constitution, and that the Constitution must be read as a whole with
no particular provision destroying the other. He argued that Art 209 only
20 broadly sets out the functions of the UPDF; and that all laws made under Art
210 must be made with the sole purpose of ensuring each of these functions
in Art 209 are fully realized. In that light, the provisions of Art 210 only serve
to particularize what the laws should expressly include but are not
exhaustive. Thus, Parliament used this power to legislate on what amounts to
25 service offences and the jurisdiction of military Courts in the UPDF in order
to ensure that all related matters required for the proper functioning of the
UPDF are covered.

Ground 2: The learned majority Justices of the Constitutional Court erred in law
and fact in determining that the GCM cannot be impartial or
30 independent; is inconsistent with Art 28(1) of the 1995 Constitution

8
5 of Uganda, and does not apply the principles therein to persons
subject to military law.

Counsel submitted that the majority Justices erred in finding that the GCM is
neither independent nor impartial and therefore its existence is in
contravention of Art 28(1) of the Constitution. He submitted that jurisdiction
10 is a creature of statute and the GCM, as established under Art 210 (b) of the
Constitution and s. 197 of the UPDF Act, is an independent and impartial
Court. He defined “impartial and independent” as meaning “even headed and
not subject to the control of the appointer”. For this, he referred to Petition No.
13 of 2014 consolidated with Petition No. 36 of 2014 Robinson Malombo T/A O.M Robinson

15 & Co Advocates vs The Disciplinary Tribunal of the Law Society of Kenya & A.G. He also
cited RDS vs Her Majesty the Queen [1997] 3 S.C.R 484 to 548 at p 486 for the assertion
that impartiality is a state of mind in which the adjudicator is disinterested
in the outcome and is open to persuasion by evidence and submissions.

By analogy, Counsel submitted that since, the UPDF is enjoined under Art 221
20 to observe and respect human rights and freedoms in the performance of
their functions, it can be concluded that, even though it is composed of
military officers, the GCM is also mandated to do the same as regards the
principles that pertain to a Court of law including the right to a fair hearing.
He referred to Commander Lesotho Defence & 4 others vs Second Lieutenant Setho
25 Maluke C of A (CIV) No. 30/2014 CIV/APN/83/2014. He submitted that the finding
of the majority of the Justices of the Constitutional Court that the GCM is not
independent or impartial is an absurdity because it presupposes those
military personnel do not enjoy fundamental rights and freedoms enshrined
in the Constitution. Further, even though the Petitioner’s affidavit showed

9
5 that he objected to the GCM’s competence to try him when he was arraigned
before it, it did not suggest that the GCM did not act as an impartial and
independent Court. This makes the Constitutional Court’s finding in this
regard, speculative, and as such, it arrived at the wrong decision.

Counsel also submitted that independence of the Court cannot be premised

10 on the structure and constitution or appointment of the members of the Court
because regardless of that, under Art 221, they are required to observe
fundamental rights and freedoms. He emphasized that what should be
considered is not who the appointing authority is, but whether the members
of the GCM and the Chairman are under the influence of the Appointing
15 Authority during their deliberations, before they reach a verdict. He asserted
that there was no evidence on record that the appointing authority has power
to get involved in the judicial function of the Court Martial (see 2nd Lt. Rantso
Josias Sekoati & 48 others vs the President of the Court Martial (Lt. Col. G.P Lekhanyaye)
& 2 others CIV/APN/82/99.

20 Counsel also argued that members of the Courts Martial take the oaths and
affirmations for Members and Chairman of the Court under the 6th Schedule
to the UPDF Act (Rules of Procedure). Lastly, Counsel pointed out the fact that
in the past, in the exercise of their appellate jurisdiction, Courts of Judicature
have appraised and considered the evidence and the process of the trial
25 before the GCM and upheld decisions of the GCM leading to the conclusion
that it is an impartial Court under Art 28(1). He referred to RA/LFK016PTE
Eruaga Moses v Uganda Criminal Appeal No. 0530 of 2014.

In reply to the submissions of Counsel for the Appellant on the ground that
the ‘Court erred in holding that the GCM cannot be independent and impartial

10
5 in line with Art 28 (1) and neither does it apply the principles therein to persons
subject to military law,’ Counsel for the Respondent disagreed that the
Constitutional Court made such holding and as such the ground as phrased
misrepresents the majority holding of the justices. He maintained that the
gist of the holding was that the GCM as established under s. 197 of the Act is
10 a ‘competent Court’ within the meaning of Art. 28 (1) and 210, but only for
purposes of disciplinary offences under Part VI of the UPDF Act and not for
criminal trials generally. This stems from their military and command
structure as well as the oath taken by military officers.

However, it was his submission that courts martial are not even competent to
15 try military officers with offences not of a military nature. He referred to
Professional Training Series No. 9 Human Rights in the Administration of Justice: A
Manual on Human Rights for Judges, Prosecutors and Lawyers. Counsel agreed with
the majority Justices of the Constitutional Court and explained that Article
28 has two limbs: first is competence as established by law, and second,
20 impartiality and independence. Regarding the first, the Courts Martial are not
envisaged under Art 126 and generally Chapter 8, and are thus tribunals for
disciplinary purposes. He argued that there is no plausible reason to create a
parallel Court outside the Court system in the Constitutional framework that
clearly provides for the Courts of record and subordinate Courts. He argued
25 that it is by design that the Executive powers are reserved for the Executive
while hearing is for the Judiciary; and this helps to avoid anarchy.

He submitted that allowing the army to take over judicial work is a vote of no
confidence in the judicial arm; yet there is no parallel legislature or parallel
Executive within our Constitutional framework as it stands. He referred to

11
5 Ambrose Ogwang (supra), and ULS V A.G SC Const. Appeal No 1 of 2006 (supra). As
regards the second limb, Counsel elucidated on the importance of the
requirement of independence and impartiality under Art 28 (1) for both
Courts of law and tribunals as an integral part of a fair hearing. Counsel
reasoned that Courts martial fall short of this because: (i) the command
10 structure of the UPDF as an army and component of the Executive arm cannot
guarantee the rights associated with the two tenets of independence and
impartiality; (ii) the command structure is both military and political as, for
instance, the panel even includes a political commissar provided for under s.
197 (1) (d) of the UPDF Act; and whose job is political education and
15 organization, and loyalty to the Government; (iii) it constitutes a violation of
the principle of separation of powers; and (iv) the absence of competent
specialized officers.

Arguing in essence that the military Courts are unfair even to persons subject
to military law, counsel challenged the notion of ‘voluntary assumption of
20 risk’ by persons subject to military law on the basis that a person can only
assume the discipline but not the illegality and unfairness as the same is not
envisaged and can never be condoned. Counsel also further submitted that
the powers of the Court Martial are an interference with the office of the
Director of Public Prosecutions (DPP) operations. He reasoned that
25 interference with the DPP’s office destroys the root of our democracy and
offends the right to fair hearing which does not begin with Court; but with
the decision making process on whether, and how, to prosecute a person. He
explained that the Constitution is by design intended to achieve a particular
purpose to avoid abuse, and promote orderliness; and the DPP is an
30 independent body specialized body, acting as a sieve for penal prosecutions,

12
5 intended to take professional and fair decisions before arraignment; unlike
the military which is subject to direction.

In rejoinder, as for the first limb of competence under Art 28 (1), Counsel
submitted that the argument that the Courts Martial are not envisaged under
Art 126 of the Constitution is without merit because in A.G. v Uganda Law Society
10 – S.C. Const. Pet. No. 1 of 2006, this Court held that the General Court Martial is a
competent subordinate Court under Art 129 (d) of the Constitution; hence, it
is comparable to the Industrial Court (see: Asaph Ruhinda Ntegye & Anor v A.G.
Const. Pet. No. 33 of 2016). Second, Counsel submitted that Courts martial are
capable of being fair and impartial because; (i) they are bound under Art 221
15 of the Constitution to respect human rights and freedoms of all persons
including those of civilians who appear before them; (ii) as evidence that they
are capable of respecting the rights to a fair hearing, their past decisions have
been upheld by the Courts of Judicature on appeal; (iii) its members take an
oath to serve in their different capacities and are bound by the Constitution;
20 and (iv) in terms of qualifications, some of the members of the Courts martial,
like the prosecutor and advocate are specialized legal officers.

Ground 3. The learned majority Justices of the Constitutional Court erred in

law and fact in determining that charging and arraigning the
Petitioner before the GCM was inconsistent with Art 28 (1) and 44
25 (c) of the Constitution.
This ground related to the status of the Respondent as a civilian appearing
before a military Court for offences in the UPDF Act. Counsel argued that, as
regards Arts 28(1) and 44(c), arraigning and charging the Respondent before
the GCM together with other members subject to military law was in

13
5 pursuance of the law; to wit a law passed by Parliament as empowered by the
Constitution. He referred to A.G. vs Uganda Law Society S.C. Con. Appeal No.1 of
2006; and Namugerwa Hadijah vs A.G (supra) for the proposition that, “[F]or an
offence under the Act other than the UPDF Act to be within the jurisdiction of the
GCM, it must have been committed by a person subject to military law.” Counsel
10 submitted that s. 2 of the Act clearly excludes civilians from trial in the GCM
except those who aid and abet a person subject to military law or civilians
who voluntarily possess arms, ammunitions or equipment ordinarily the
monopoly of the UPDF under s. 119 (1)(h) & (g). He referred to S.C.C.A No. 4 of
2012 Namugerwa Hadijja Vs The DPP & A.G.

15 To cement his argument, he submitted that this position of law is similar to

that of the United States, Canada, United Kingdom, Ghana and Kenya. For this,
he referred to Reid v Covert - U.S Supreme Court 354 U.S.1 (1957) ; S.166 of the
Canada Defence Forces Act; Schedule 3 of the Armed Forces Act 2006 UK; s.12
(1)(e ), (f) & (g) of the Armed Forces of Ghana; and s.55(1) Kenya Defence Forces
20 Act No. 25 of 2012. According to Counsel, the respondent fell within the ambit
of s. 119(1) (g) the moment he was charged with 22 other persons with
offences under the Act of contriving a plot to overthrow the Government of
Uganda by force of arms. In other words, not naming him as an accomplice
in the charge sheet was not fatal or necessary for the charge against the
25 Respondent to conform to Art 28(12). He further argued that, since the
offences in the charge sheet have accompanying penalties, breach of Art 28
(12) does not arise. Counsel concluded that trying serving military officers
and civilians under s. 119 (1) (g) & (h) of the UPDF Act, is consistent with Art
28 (1) and 44 (c) of the Constitution because the GCM is bound to observe the

14
5 right to a fair hearing and other human rights under Chapter 4 of the
Constitution.

In reply, and agreeing with the majority decision of the Constitutional Court,
Counsel for the Respondent submitted that charging and arraigning the
Respondent, a civilian, on a charge that did not name him as an accomplice
10 to a disclosed principal named in the charge sheet was unconstitutional.
Counsel argued that indeed the charge sheet did not state that the
Respondent aided or abetted any offence; thus the trial was inconsistent with
Articles 28 (12) and 44 (c); hence, the Constitutional Court was right to hold
as they did. He however further raised new arguments, which were not the
15 basis of the Constitutional Court decision - that the offence is similar to
treason under the Penal Code, which is triable by the High Court. He also
alluded to the unfairness of the proceedings that lacked impartiality and
independence by pointing out that the Respondent is a political leader in the
opposition charged with a political offence of attempting to remove the
20 government to which the ‘court’ officials are answerable. He asked this Court
to perform its duty of defending Constitutional individual rights threatened
by congressional legislation. He referred to Cheborion Barishaki JA’s
judgment in Human Rights Network Uganda & 4 others v Attorney General Const.
Petition No 56; and Earl Warren CJ in Trop v Dulles US (1956), cited therein.

25 In rejoinder, Counsel for the Appellant/Cross Respondent argued that the

UPDF (Rules of Procedure S.I 307-1) already makes provision for a Court
Martial to satisfy itself that a civilian as an accused person is one subject to
military law and that the charge sheet/ indictment is correct. He pointed out
that before taking plea, the accused is also given a right to object to the

15
5 charge on the ground that it is not correct in law or not properly framed in
accordance with the regulations, as specifically provided for under rule
25(1)(f) & (g) and rule 35 (1). In response to the submission on interference
with the DPPS’s office, Counsel submitted that Art 120 (3)(b) specifically
excludes the DPP from instituting criminal proceedings in a court martial
10 which further highlights the competence of the GCM to ensure that one is
being charged in accordance with the Act.

Ground 4
The learned majority Justices of the Constitutional Court erred in law in finding that
section 119 (1) (h) of the UPDF Act is inconsistent with Art 28 (1) and 44 (c) of the
15 Constitution.

Counsel challenged the finding of the Constitutional Court that s. 119 (1) (h)
is unconstitutional. He submitted that the impugned s. 119 (1) (h) which
grants the GCM jurisdiction over persons found in unlawful possession of the
ammunitions, arms or equipment and other stores ordinarily in the
20 possession of the UPDF is prescribed by Parliament and Constitutional. No
right to a fair hearing under Art 28(1) is contravened as it applies only to
those who voluntarily bring themselves within that provision, who then
become subject to military law. He alluded to the importance of s.119 (1) (h)
which can be seen from the seriousness of the charges that may arise under
25 it by referring to Namugerwa Hadijjah v The A.G (supra) where the Appellant’s
brother was found with the ‘Black star’ pistol ordinarily a monopoly of the
UPDF and remanded to Kigo prison. He also submitted that the GCM
comprises persons with sufficient training, exposure and experience in
military matters who are best suited to adjudicate on matters of this nature
30 in comparison to the civil Courts. With these submissions, Counsel for the

16
5 Appellant prayed that this Court allows the appeal and sets aside the decision
of the learned Majority Justices of the Constitutional Court and award costs
to the Appellant.

On the other hand, Counsel for the Respondent concurred with Kasule JA’s
dissenting opinion that section 119 (1) (h) is unconstitutional. According to
10 Counsel, this provision is an entry point into the Court martial route away
from civilian courts’ jurisdiction. Alternatively, he reiterated the need for fact
finding as a preliminary point, whenever a civilian is to appear before a
military Court, to establish if the military Court has jurisdiction over such a
person before the jurisdiction of the military Court is activated. According to
15 Counsel, the finding that an accused was in possession of military stores
should be made by the Judiciary in a prehearing; otherwise an accused person
will be found guilty by a court martial, of possession, on proof only of this
first ingredient of possession. He argued that suspicion in such a case, is not
enough to bestow jurisdiction and to derogate on the right to a fair hearing.

20 In rejoinder, Counsel for the Appellant submitted first that s. 119 (1) (h) does
not require a pre-hearing on a double fact-finding before the civil Court as
submitted by Counsel for the Appellant. He argued that the burden to
establish the ingredient of the offence of whether one is subject to the UPDF
Act for purposes of trial lies upon the prosecution. He further argued that
25 criminal jurisdiction is a creature of statute and as the law stands, the GCM
assumes such jurisdiction once a person is charged with a service offence
provided for under the UPDF Act. He pointed out that rule 40(1) of the Rules
made under the UPDF Act mandates the accused to take plea on a charge; the
accused is provided an opportunity to defend themselves in line with Art 28.

17
5 Lastly, he argued that the Respondent did not submit any evidence that s.
119 (1) (h) is inconsistent with the Constitution.

The cross appeal

In the cross appeal, Counsel for the Respondent/Cross Appellant argued that
a civilian cannot be tried with a person subject to military law, under the
10 Constitution. He submitted that military discipline, not civilians, is the focus
of the UPDF Act. He pointed out first that it was intended, from the restrictive
nature of article 210, that service offences should apply only to the military.
This intention of Parliament is in consonance with the definition of ‘service’
in s. 2 where it is defined to mean ‘service in the Defence Forces or means a
15 component of the Defence forces enumerated in s.3 (2) including land, air any
other prescribed by Parliament.’ Second, the purpose and effect of legislation
is relevant while interpreting the Constitution to ascertain the
constitutionality of the impugned provisions.

He referred to A.G v Salvatori Abuki S.C Constitutional Appeal 1 of 1998; Constitutional

20 Petition No. 56 of 2013 Human Rights Network Uganda & 4 others v Attorney General. He
argued that in this case, the effect of s. 2 and s.179 that a civilian could be
charged in a military court was not the intention of the drafters of the
Constitution and Parliament. He also reiterated his argument on ground one
and two that the UPDF Act is a restrictive Act; and the courts martial are
25 comparable to other professional organs established by the Prisons Act,
Police Act, the Dental Practitioners’ Act and the Nurses and Midwives Act to
deal with only their members, and not the entire public who have not opted
to be part of the organization. He prayed that the cross appeal be allowed
with costs, part of the decision of the learned majority justices of the

18
5 Constitutional Court be set aside/reversed, and the appeal be dismissed with
costs.

In response to the cross appeal, Counsel for the Appellant agreed with the
finding of the majority justices of the Constitutional Court that s. 119 (1) (g)
is consistent with the Constitution. According to him, the Supreme Court in
10 Namugerwa Hadijja v A.G S.C. Civ. Appeal 4 of 2012 had already held that a civilian
can be tried alongside military officers for offences under the UPDF Act if
they have aided and abetted the same. It is thus only civilians who voluntarily
subject themselves to the jurisdiction of the GCM in the circumstances
provided in 119 (1) (g) who are subject to its jurisdiction; this can be likened
15 to volenti non fit injuria. In comparison, he also pointed out that even the
Advocates Act empowers the Law Council to discipline any person who carries
out the work of a nature normally performed by an advocate or who purports
to act or pretends to be an advocate. He explained that the import of s. 119
(1)(g) is because military laws are designed with special interest of national
20 security and it is therefore possible for a civilian to commit acts which affect
national security ordinarily committed by persons subject to military law. He
urged this Court to consider the rationale of creation of offences in the UPDF
Act, which includes the secrecy and integrity of operational matters of the
defense forces under powers vested upon the UPDF by virtue of Art 209 of
25 the Constitution; under this the Courts Martial are clothed with jurisdiction.

CONSIDERATION AND DETERMINATION OF THE APPEAL

This appeal first came up for hearing in this Court in 2022. From that time,
to its final disposal today, it has suffered an unprecedented affliction by a
host of adversities. There is thus, an imperative need to clarify on what

19
5 transpired within that period. The grave and persistent series of events that
characterized the lifespan of this appeal began with fire gutting the Chambers
of the Chief Justice on the Supreme Court building at Kololo on 27thApril,
2022; followed by water flooding parts of the building. This resulted in a
condemnation of the Kololo Supreme Court Building as being unfit for
10 occupation; thereby leaving the Justices of the Court with no office
accommodation. Thereafter two Justices of the Court, namely Justice Paul
Mugamba and Justice Ezekiel Muhanguzi, who were part of the panel for this
appeal, retired. This therefore necessitated a reconstitution of the panel.

In November 2022, the Court was able to secure a temporary home, and more
15 Justices were appointed to the Court. The Court then embarked on the
process of reconstitution of the panel, with a view to sitting by December that
year to re-hear the appeal. However, that December, we suffered the
devastating demise of Justice Rubby Aweri Opio who had been on the panel
for this appeal. This necessitated awaiting the appointment of additional
20 Justices to this Court for the requisite reconstitution of the Coram to take
place. However, in only six months thereafter,yet another tragedy struck this
Court with the demise of Justice Stella Arach-Amoko in June, 2023. It was
until January 2024 when two more Justices were appointed to the Supreme
Court; where after, the Court was able to reconstitute the panel for this
25 appeal. The appeal came up before the reconstituted panel on 13th May, 2024,
in the new Supreme Court Building at the Judiciary Headquarters; upon which
the learned Justices reserved judgment to be delivered on notice. Notice has
been served on the parties for delivery of the judgment on 31st January, 2025;
which is eight months from the date the appeal was reheard.

20
5 The Appellant has called upon this Court to clarify on the issue of
constitutionality of several aspects of the law regarding military trials. While
the contentions by the parties hereto gravitate around trials in the General
Court Martial (hereinafter referred to as the GCM), the issues raised radiate to
the entire military Court system. I note that the four grounds of appeal, as
10 well as the one in the cross appeal raise cross cutting issues; which explains
why some submissions by both Counsel on a particular grounds transcend
such grounds and extend to other grounds. All the grounds raised contain an
element of counter to the challenge raised against the competence of the GCM
and, or, its status as a Court of law.

15 Whereas the standing of the GCM as a Court of law was not raised as a separate
ground in this appeal, and yet it was a separate question for determination in
the Constitutional Court, upon which the Court rendered a decision declaring
them to be tribunals, it was implicit in all the grounds of appeal that it was
an issue. In determining this appeal, therefore, I adopt an integrated
20 approach, where a ground may be disposed of in the course of considering
another ground. For instance, the status of the GCM as a Court has a bearing
on the resolution of grounds 3 and 4, which entail the determination of the
issues of personal and subject matter jurisdiction of the Court, respectively.

In this regard, I shall deal with Ground 1 of the appeal, and concentrate on
25 whether the GCM is a Court of law. I will then deal with Ground 2 on the
fairness and impartiality of the GCM; followed by Grounds 3 and the Cross
Appeal, as they concern the personal jurisdiction of the Court (whether it
includes trial of civilians). Last, I will deal with Ground 4 that relates to the

21
5 subject matter jurisdiction of the GCM in terms of whether persons subject
to military law should be tried in the GCM for both civil and service offences.

Rules of Constitutional interpretation.

It is necessary to first deal with the rules of Constitutional interpretation I
consider relevant for the resolution of the issues raised in these grounds.
10 These have been laid down in several decisions of this Court, other
Commonwealth jurisdictions, and as well, authoritative legal opinion.

1. The Constitution is the Supreme law of the land and forms the standard
upon which all other laws are judged. Any law that is inconsistent
with or in contravention of the Constitution is null and void to the
15 extent of the inconsistency (see Article 2 (2) of the Constitution); (Also
see Presidential Election Petition No. 2 of the 2006 (SC) Rtd Dr. Col. Kiiza Besigye
v. Y. K. Museveni).
2. In determining the constitutionality of a legislation, its purpose and
effect must be considered. Any legislation is always animated by an
20 object the Legislature intends to achieve. This object is realized
through the impact produced by operation and application of the
legislation. Thus, both purpose and effect are relevant in determining
constitutionality; hence, an unconstitutional purpose or effect can
invalidate legislation (see Attorney General v. Salvatori Abuki Constitutional
25 Appeal No.1 of 1998 (SC); The Queen v Big Drug Mart Ltd (1996) LRC (C0nst.) 332).
3. The rule of harmony, completeness and exhaustiveness has to be taken
into account. This rule is to the effect that the entire Constitution has
to be read together as an integral whole, with no particular provision
destroying the other but each sustaining the other. (see P. K. Ssemwogere

22
5 and Another v. Attorney General Constitution Appeal No. 1 of 2002 (SC), and The
Attorney General of Tanzania v. Rev Christopher Mtikila (2010) EA 13).
4. A constitutional provision containing a fundamental human right is a
permanent provision intended to apply for eternity; therefore, it should
be accorded dynamic, progressive, liberal, and flexible, construction;
10 keeping in view the ideals cherished and approved of by the people, as
well as their social, economic, and political cultural values so as to
extend the benefit of the same to the maximum possible; (see Okello
Okello John Livingstone and 6 others v. The Attorney General and Another
Constitutional Petition No 1 of 2005), and South Dakota v. South Carolina 192,
15 USA 268. 1940).
5. Where words or phrases are clear and unambiguous, they must be
accorded their primary, plain, ordinary or natural meaning. The
language used must be construed in its natural and ordinary sense.
6. Where the language of the Constitution or a statute sought to be
20 interpreted is imprecise or ambiguous, a liberal, generous, or
purposeful interpretation should be given to it; (see Attorney General v
Major David Tinyefunza Constitutional Appeal No. I of 1997 (SC).
7. The history of the country and the legislative history of the
Constitution is also relevant and useful guide to constitutional
25 interpretation; (see: Okello John Livingstone and 6 others v. Attorney General
and Another - (Supra).
8. The National objectives and Directive principles of State policy are an
imperative for the interpretation of the Constitution. Article 8A of the
Constitution as amended is instructive for the applicability of these
30 objectives. It provides thus:

23
5 (i) Uganda shall be governed based on principles of national interest
and common good enshrined in the national objectives and
directive principles of state policy.
(ii) Parliament shall make laws for purposes of giving full effect to
clause (1) of this Article.

10 In interpreting provisions of the Constitution, regard shall also be had to the

obligations under international treaties to which Uganda has acceded as a
dualist State by virtue of ratifications; and those that apply by virtue of Art.
287 of the Constitution, which provides:

“287. International agreements, treaties and conventions.

15 Where—
(a) any treaty, agreement or convention with any country or
international organisation was made or affirmed by Uganda or the
Government on or after the ninth day of October, 1962, and was
still in force immediately before the coming into force of this
20 Constitution; or
(b) Uganda or the Government was otherwise a party immediately
before the coming into force of this Constitution to any such treaty,
agreement or convention;
the treaty, agreement or convention shall not be affected by the coming into
25 force of this Constitution; and Uganda or the Government, as the case may be,
shall continue to be a party to it.”

Objective XXVIII is also instructive as to the direction Uganda should take in

her move as a democracy. It provides as follows:

24
5 “XXVIII . Foreign policy objectives.

(i) The foreign policy of Uganda shall be based on the principles of—
(a) promotion of the national interest of Uganda;
(b) respect for international law and treaty obligations;
(c) peaceful coexistence and nonalignment;
10 …
(ii) Uganda shall actively participate in international and regional
organisations that stand for peace and for the well-being and progress of
humanity.
(iii) The State shall promote regional and pan-African cultural, economic and
15 political cooperation and integration.” (Emphasis added)

Uganda is a party to a number of Conventions such as the Universal

Declaration of Human Rights (UDHR), International Charter on Civil and
Political Rights (ICCPR) and the African Charter on Human and Peoples Rights
(African Charter) and is bound to uphold their provisions as well, by virtue of
20 Art. 287 of the Constitution. The decisions and recommendations made by
bodies or Commissions such as the Human Rights Committee and Special
Rapporteurs in promoting observance of these Conventions, though not
binding, are of great relevance.

It is worthy to note that Uganda has unique obligations under treaties she is
25 party to within the African Union (AU) framework. Uganda is a member of the
African Union (AU) by virtue of its accession to the Organisation of African
Unity (OAU) Charter in 1963. By virtue of the OAU Constitutive Act, 1999, the
OAU was renamed the African Union; and the Court of Justice of the AU was
established. One of the most notable treaties touching on human rights

25
5 established under the AU is the African Charter on Human and Peoples’ Rights
(the Banjul or African Charter), (Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 Rev.
5, 21 I.L.M. 58 (1982), Entered into Force 21 October 1986). That Charter established
the African Commission to oversee its implementation.

Then in 1998, a protocol created The African Court on Human and People’s
10 Rights that became operational in 2006, to complement the African
Commission by curing the lacuna of the absence of legally enforceable
judgments. A Malaba Protocol of 2014 merged the African Court on Human
and People’s Rights and the Court of Justice of the African Union into ‘The
African Court of Justice and Human Rights’ as the forum of human rights
15 litigation and interpretation of the OAU Charter and its other instruments.
The recommendations of the African Commission are thus of immense
weight; and the decisions of The African Court of Justice and Human Rights are
binding on Uganda. In interpreting our Constitution, effect is given to its
provisions; several whereof are mirrored within the African Charter itself.

20 There are also other International Conventions with bodies created there
under; to which Uganda is not a party, but are relevant for persuasive best
practices. Such conventions include, among others, the American Declaration
of the Rights and Duties of Man; the American Convention on Human Rights
and its Inter-American Commission on Human Rights; and the European
25 Convention on Human Rights with its European Court of Human Rights.

Counsel for both parties have cited several authorities - some even conflicting
- to support their respective arguments. Such authorities include 2nd Lt. Ogwang
Ambrose v A.G Court of Appeal Criminal Appeal No. 107 of 2013 and Sgt Paul Kalemera

26
5 v A.G Supreme Court Criminal Appeal No. 18 of 1994 (unreported). The source of the
conflict, leading to the dissenting decisions in the Constitutional Court, is
that one of these cases was an ordinary criminal appeal in the Court of Appeal
where the Court was not exercising the power of interpretation under Article
137 of the Constitution to declare certain sections or acts unconstitutional;
10 while the Supreme Court in the other was merely applying the substantive
law as it is, to the facts before it with no concern as to their constitutionality.
Other relevant authorities that have since been delivered since the hearing of
this appeal and upon which Counsel in this petition have had no opportunity
to submit are; Rtd. Capt. Amon Byarugaba & 169 Ors Const. Petition No. 44 of 2015 delivered

15 on 15th Dec 2022 and 2nd Lt Ogwang Ambrose v Uganda SC Crim Appeal No. 48 of 2021 delivered
on 11th Dec 2024 . The appeals to this Court in these cases, if any, have not yet
been disposed of in this Court. The latter was still an ordinary appeal. It is in
the former that the Constitutional Court considered and declared itself
explicitly, albeit on only two of the issues arising in this appeal. These are;
20 the jurisdiction of the military courts under s. 119 (1) g & (h) of the UPDF Act
to try civilians; and violation of Art 28 (1) of the Constitution by the absence
of fair trial minimum guarantees. Since the appeal in the current petition has
a wider purview, its determination has a direct bearing on all these cases.

It thus falls on this Court to ensure certainty in the application of the law; by
25 clearly spelling out the principles that should guide on how to structure
and/or handle matters concerning discipline in the UPDF. This will ensure
that the provisions of Art. 209 of the Constitution are given effect to, without
affecting other provisions of the Constitution. It will also ensure the
enforcement of the provisions of Chapter 4 of the Constitution.

27
5 I note that the appeal turns on four broad issues. First, is whether military
courts are ‘courts’ or ‘tribunals’. Second, is subject matter jurisdiction, hence,
what offences are triable in military Courts. Third, is personal jurisdiction;
thus who can be charged before military courts. Fourth is whether military
Courts are fair and impartial. With regard to the first three issues, the
10 majority Justices of the Constitutional Court based their analysis of the
nature of military Courts vis-à-vis the ordinary or civil Courts provided for in
Chapter 8 of the Constitution. They held that military Courts are mere
tribunals; and also held - which is the basis of ground 2, that military Courts
are not clothed with the requisite competence, independence, and
15 impartiality provided for under Art 28(1) of the Constitution, to handle
criminal cases under ss. 2, 179, and 119 (1) (h) of the UPDF Act.

They also relied on a restricted interpretation of Art 210 in holding that the
creation of the military Courts with power to try, not just military offences
dealing with military discipline, but even civil offences under other
20 enactments for both civilians and persons subject to military law is
unconstitutional. In essence, the majority Justices of the Constitutional Court
held that the persons who are liable for trial in courts Martial, are only those
who are subject to military law owing to their having submitted themselves
to the jurisdiction of the Court by virtue of the oath they have taken in that
25 regard. However, even then, such liability is strictly only for disciplinary
offences provided for under part VI of the UPDF Act.

The specific issues for this Court to resolve, arising out of the Constitutional
Court decision, the grounds of appeal, and cross appeal are:

28
5 1. Whether the Courts Martial are Courts established under the Constitution
or are mere tribunals.
2. Whether the Courts Martial can be/or are independent and impartial
within the meaning of Art 28 (1) of the Constitution.
3. Whether civilians can legally (i.e. without offending the Constitution), be
10 liable to face trial in the Courts Martial for disciplinary offences
(hereinafter called military, disciplinary or service offences), stipulated
in Part VI of the UPDF Act.
4. Whether civilians can constitutionally or legally be tried in the Courts
Martial for civil offences not comprised in Part VI of the UPDF Act; but
15 are instead provided for in other legislations.
5. Whether it is constitutional for persons subject to military law to be tried
in the Courts Martial, for offences outside the UPDF Act (herein after
called civil offences).
6. Whether it is constitutional for civilians to be tried by the Courts Martial
20 as principals for offences under s. 119 (1) (h) of the UPDF Act; yet these
also exist as civilian offences?

During the period after hearing this appeal, the laws of Uganda were revised;
and while this did not affect the content of the Act, it affected both the
citation and arrangement of the sections of the Act. Thus, the UPDF Act, 2005,
25 is now cited as the UPDF Act Cap 330; while the impugned sections 2, 119 (1)
(g) & (h), and 179, have changed to sections 1, 117 (g) & (h), and 177,
respectively. The impugned section 197, which established the GCM has
changed to section 195. Otherwise, there is no change in the content.

29
5 Ground 1.
This ground faults the Constitutional Court for its finding that the GCM is not
a Court of law, but a specialized tribunal that should limit itself to
disciplinary offences within the UPDF Act. Accordingly, the Court nullified
sections 2, 179, and 119 (1) (h) of the UPDF Act, for extending its jurisdiction
10 to jurisdiction that has been conferred on the Judiciary by the Constitution.
This question was raised in the Constitutional petition in the terms of
whether “S. 197 [now 195] of the UPDF Act 2005 is inconsistent with Articles
28(1), 126(1), 129(1) and 257(1) (d) of the Constitution to the extent that it
purports to create a court of law without Constitutional authority.” That
15 section establishes the GCM and provides for its structure, jurisdiction, and
revisionary powers. The Court resolved this issue together with the issue of
the independence, fairness and impartiality of the Courts Martial.

In my considered view, I find the two issues to be distinct and independent

of each other. The GCM’s legal status as a ‘Court’, its structure and procedures
20 (‘fairness, independence and impartiality’), and its competence in terms of
jurisdiction, are distinct from each other. Its status as a Court arises from its
establishment as such, by law; but not its composition, or the manner of its
operation. Similarly, its status as a Court is not determined by its exercise of
judicial power; as in some cases, tribunals also exercise some judicial power.
25 I will advert to this in the course of this judgment.

Is the GCM lawfully established as a Court of law?

This requires a scrutiny of the relevant Constitutional provisions and Act

establishing the GCM. The Constitution establishes the superior and
subordinate Courts in Uganda. Article 129 of the Constitution provides:

30
5 “129. The courts of judicature.
(1) The judicial power of Uganda shall be exercised by the courts of
judicature which shall consist of—
(a) the Supreme Court of Uganda;
(b) the Court of Appeal of Uganda;
10 (c) the High Court of Uganda; and
(d) such subordinate courts as Parliament may by law establish,
including qadhis’ courts for marriage, divorce, inheritance of
property and guardianship, as may be prescribed by Parliament.”

It is clear from the above provisions of the Constitution that Parliament has
15 the power under Art. 129 (1) (d) to establish other courts of law. The other
provision of the Constitution under consideration in the interpretation of
whether the GCM is validly established as a court of law is Article 210 of the
Constitution; which vests Parliament with the power to regulate the UPDF,
thus:

20 “210. Parliament to regulate the Uganda Peoples’ Defence Forces.

Parliament shall make laws regulating the Uganda Peoples’ Defence Forces
and, in particular, providing for—

(a) the organs and structures of the Uganda Peoples’ Defence Forces;
(b) recruitment, appointment, promotion, discipline and removal of
25 members of the Uganda Peoples’ Defence Forces and ensuring that
members of the Uganda Peoples’ Defence Forces are recruited from
every district of Uganda;

31
5 (c) terms and conditions of service of members of the Uganda Peoples’
Defence Forces; and
(d) the deployment of troops outside Uganda.” (emphasis added)

Article 209 provides for the function of the UPDF. It provides thus:

“209. Functions of the defence forces.

10 The functions of the Uganda Peoples’ Defence Forces are—
(a) to preserve and defend the sovereignty and territorial integrity of
Uganda;
(b) to cooperate with the civilian authority in emergency situations and
in cases of natural disasters;
15 (c) to foster harmony and understanding between the defence forces and
civilians; and
(d) to engage in productive activities for the development of Uganda.”

The parties hereto are in agreement that it is only through enactment of a law
that Parliament can exercise the mandate conferred upon it under Art. 129 of
20 the Constitution to establish Courts of law. To determine whether Parliament
fulfilled this mandate when it established the GCM as an organ of the UPDF
under the UPDF Act, one has to give consideration to a number of things.

The long title to the UPDF Act provides thus:

“An Act to provide for the regulation of the Uganda Peoples’ Defence Forces in
25 accordance with article 210 of the Constitution, to repeal and replace the
Armed Forces Pensions Act and the Uganda Peoples’ Defence Forces Act, and
for other related matters.” (emphasis added)

32
5 Structure of the courts martial as established.

The structure of the Courts martial is provided for under Part VIII of the UPDF
Act, titled ‘Military Courts’. That part is further sub titled ‘Summary Trial
Authority’ (s. 189-191) on the one hand, and ‘Unit Disciplinary Committees [UDCs]
and Courts Martial’ (s. 192-202) on the other. Whereas one could draw the
10 inference from the first title to that part that it establishes only ‘Courts’, the
further differentiation between the Summary Trial Authority (STA) on the one
hand and Unit Disciplinary Committees (UDCs) and the Courts Martial in the
subsequent sub heading on the other hand, indicates that Parliament
provided for Unit Summary Trial Authorities (STAs) and Disciplinary
15 Committees (UDCs) as separate organs from the Courts Martial; thus, they are
tribunals.

The Act establishes two tribunals under the Summary Trial Authority;
nanmely, (i) Trial by Commanding Officer or Officer Commanding and (ii)
Trial by Superior Authority. The first tries junior officers or militants for
20 offences provided for under the Act and regulations made thereunder; and
the highest sentence it can pass is detention for a period not exceeding six
months. Others are forfeiture of seniority, severe reprimand, reprimand, a
fine not exceeding basic pay for one month, and minor punishments as may
be prescribed. The second tries those who are equal to or lower in rank than
25 the superior authority; and can pass any sentence ‘in which any one or more
of the punishments listed there are included’; namely, forfeiture of seniority,
severe reprimand, reprimand or fine. Section 193 (now s. 191) of the Act,
provides that the offences which may be tried by a summary trial authority
shall be as specified in Schedule 8 to the Act.

33
5 The schedule lists 31 offences which include; offences relating to guard
duties (s.130, now s.129), disobeying lawful orders in circumstances not
involving a sentence of death (s.132, now s.131), failure to execute ones
duties in circumstances not involving a sentence of death (s.133, now s.132),
violence to a superior officer (s.134, now s.133), insubordinate behavior
10 (s.135, now s.134), malingering or maiming (s.137, now s.136), drunkenness
(s.138, now s.137), abuse of and violence to inferiors (s.140, now s.139), false
accusation (s.141, now s.140), quarrels and disturbances (s.142, now s.141),
improper use and driving of vehicles (ss.157 & 158, now ss.156 & 157),
disorders (s.143, now s.142), escape from custody (s.167, now s.166), and
15 conspiracy (s.179, now s. 178).

As already noted, albeit that the UDCs are grouped together with Courts
martial, separate from the STAs, they are not expressly established by
Parliament as Courts. My conclusion is that they are tribunals as well, and I
treat them as such. The UDCs have the power to try any non-capital offence
20 under s. 193 (3) (now s.195 (3)) of the UPDF Act; and to impose any sentence
authorized by law (see s.193(4), now s.195(4). By virtue of the impugned
provisions of the Act, the UDCs can try military personnel and their alleged
civilian accomplices with virtually any offence triable by magistrates Courts;
and pass any sentence that magistrates can.

25 The Courts Martial listed are the Division Court Martial established under s.
196, (now s.192), the General Courts Martial under s.197 (now s.195, the
Court Martial Appeal Court established under s.199 (now s. 197), and the Field
Court Martial under s.200 (now s.198). Since the focus is on the GCM, I

34
5 consider it prudent to, fully, set out the provisions section 195 of the Act,
which establishes the GCM, thus:

“195. General Court Martial.

(1) There shall be a General Court Martial for the Defence Forces,
which shall consist of—
10 (a) a Chairperson who shall not be below the rank of Lieutenant
Colonel;
(b) two senior officers;
(c) two junior officers;
(d) a Political Commissar; and
15 (e) one non-commissioned officer,
all of whom shall be appointed by the High Command for a period
of one year.
(2) The General Court Martial shall have unlimited original
jurisdiction under this Act and shall hear and determine all
20 appeals referred to it from decisions of Division Courts Martial and
Unit Disciplinary Committees.
(3) The General Court Martial shall have revisionary powers in respect
of any finding, sentence or order made or imposed by any
Summary Trial Authority or Unit Disciplinary Committee, to be
25 exercised in accordance with the provisions of Part XIII of this Act.
(4) The General Court Martial may sit at any place.”

Counsel for the Respondent argued that the establishment of a Court Martial
as a Court could not be done under Art 210; but only under Article 129, and
30 by an amendment to the Constitution under Art 259 and/or a referendum

35
5 under Art 260 because it in effected amounted to an amendment of Art 128
(1) of the Constitution. Article 128(1) provides for the independence of the
Judiciary. Regarding the first argument, it is clear that the long title provides
that the Act is passed under Art 210. However, I do not consider that failure
to indicate Article 129, instead of 210 as was done in the long title of the
10 UPDF Act alone, is enough to take away the Parliament’s power given to create
a court under Art 129(1) (d). The GCM is part of the courts of judicature
referred to under Chapter 8- albeit with a special limited jurisdiction. By
analogy, the Industrial Court established under the Labour Disputes
(Arbitration and Settlement) Act 8 of 2006 is a special court established under
15 Art 129; albeit that Art. 129 is not referred to in the Act. However, it would
do well for Parliament to indicate Art 129 (1) (d) when creating a Court.

The second argument for consideration is whether the creation of a court

under Art. 129(1) (d) requires an amendment of the Constitution and/or a
referendum. Under Article 259 of the Constitution, an amendment of the
20 Constitution can only be done by an Act of Parliament whose sole purpose is
the amendment of the Constitution, and pursuant to the requisite
Parliamentary procedure for such amendment. It provides:

“259. Amendment of the Constitution.

(1) Subject to the provisions of this Constitution, Parliament may

25 amend by way of addition, variation or repeal, any provision of
this Constitution in accordance with the procedure laid down in
this Chapter.
(2) This Constitution shall not be amended except by an Act of
Parliament—

36
5 (a) the sole purpose of which is to amend this Constitution;
and
(b) the Act has been passed in accordance with this
Chapter. ”

Article 260 provides for circumstances that require a referendum for an

10 amendment to be effected, and the requisite Parliamentary quorum that must
be satisfied. It provides as follows:

“260. Amendments requiring a referendum.

(1) A bill for an Act of Parliament seeking to amend any of the

provisions specified in clause (2) of this article shall not be taken
15 as passed unless—
(a) it is supported at the second and third readings in
Parliament by not less than two-thirds of all members of
Parliament; and
(b) it has been referred to a decision of the people and approved
20 by them in a referendum.
(2) The provisions referred to in clause (1) of this article are—
(a) this article;
(b) Chapter One—articles l and 2;
(c) Chapter Four—article 44;
25 (d) Chapter Five—articles 69, 74 and 75;
(e) Chapter Six—article 79(2);
(f) Chapter Seven—article 105(1);
(g) Chapter Eight—article 128(1); and
(h) Chapter Sixteen.” (Emphasis added)

37
5 The relevant provision here is Art. 128 (1); which falls under Chapter Eight of
the Constitution, which covers the Judiciary. It provides that:

“[I]n the exercise of judicial power, the courts shall be independent and shall
not be subject to the control or direction of any person or authority.”

I have duly given consideration to these provisions. Article 129 that

10 establishes the Courts of Judicature, Art. 128 that provides for the
independence of the Judiciary, then Arts. 259 and 260 quoted herein above
in extenso, do not stipulate that the creation of a Court per se requires an
amendment of the Constitution. Article 129 merely lists the Courts of record
and provides that the creation of other subordinate Courts shall be as
15 established by laws made by Parliament. The UPDF Act is one of those laws;
and s. 195(1) thereof establishes the GCM. It is also evident from Article 257,
which is the interpretation provision of the Constitution, that the
Constitution contemplates the existence of the Courts martial. There, it is
provided that:

20 “(2) In this Constitution—

(a) unless the context otherwise requires, a reference to an office in
the public service includes—
… ... …
(i) a reference to the office of Chief Justice, Deputy Chief Justice,
25 Principal Judge, a justice of the Supreme Court or a justice of
Appeal, or a judge of the High Court and the office of a member
of any other court of law established by or under the authority of
this Constitution, other than a court-martial, being an office the

38
5 emoluments of which are paid directly from the Consolidated Fund
or directly out of monies provided by Parliament; and
(ii) a reference to the office of a member of the Uganda Police Force,
the Uganda Prisons Service, the education service and the health
service;” (Emphasis added)

10 Article 120 (3) of the Constitution also specifically provides that the function
of the DPP is to “institute criminal proceedings against any person or authority
in any Court with competent jurisdiction, other than a Court martial.”

It was thus contemplated that owing to the unique nature of the military,
issues of military discipline should be handled by special Courts (courts
15 martial) and military tribunals (UDCs and STAs). Counsel for the Appellant
made extensive submission on this; arguing that due to the need to swiftly
and firmly deal with disciplinary issues in a way that enhances the functions
of the UPDF as is provided for under Article 209 of the Constitution, the
military courts have been created to exercise the judicial powers the UPDF
20 Act has conferred on them.

I have also considered the recent Constitutional Court decision in Rtd. Cpt.
Amon Byarugaba & 2 Ors. v A.G (supra). I noted earlier that the status of a Court
is distinct from the issue of its independence, impartiality or jurisdiction. In
her lead judgment in Rtd. Cpt. Amon Byarugaba & 2 Ors. v A.G (supra), Musoke JCC,
25 as she was, with whom the majority of the panel concurred, stated thus:

“In the present case, the 1995 Constitution places limits on Parliament’s
Legislative power with regards to establishment of courts of judicature to
try civilians to the circumstances stipulated under Article 129, namely

39
5 power to establish a subordinate court of judicature. The other courts of
judicature were established by the framers and listed under Article 129(1),
and these are the Supreme Court, the Court of Appeal and the High Court.
In my view, Article 129 (1) sets out an exclusive list of courts which may
exercise judicial power with regards to civilians. Therefore, for that
10 purpose, Parliament has no power to establish a court under another
provision of the 1995 Constitution. Certainly, it could not proceed to do so
under Article 210, which concerns the UPDF, for the framers of the 1995
Constitution never intended for the UPDF to be vested with judicial functions
in respect of civilians.

15 Therefore, the question whether military courts have jurisdiction to try

civilians, must be answered in the negative.”

The learned Justices of the Constitutional Court merged the issue of

establishment by law, with the jurisdiction to try civilians and the exercise of
judicial power; and thereby came to the conclusion that the GCM was a
20 tribunal, and not a Court. I consider it prudent to determine the issue on
jurisdiction raised under Grounds 3 and 4 and the cross appeal, separately.

Parity with other courts

The issue whether the GCM is a court, was conclusively settled in A.G v
Tumushabe - Constitutional Court Petition No.18 of 2005, and A.G. vs Uganda Law Society
25 - S.C. Const. Appeal No. 1 of 2006; where this Court decisively held that the General
Court Martial is a court, albeit that it is subordinate to the High Court. In A.G.
vs Uganda Law Society (supra), Mulenga JSC who delivered the lead judgment
faulted the Constitutional Court, and noted thus:

40
5 “As correctly submitted by learned counsel for the respondent, in Joseph
Tumushabe’s case (supra), this Court upheld the majority decision of the
Constitutional Court in that case that the General Court Martial is a
subordinate court. However, in the instant case the Constitutional Court had
earlier held by majority of 3 to 2 that its decision in Joseph Tumushabe’s
10 case (supra) was wrong and refused to follow it. Clearly that holding cannot
be sustained since the final decision of this Court in Joseph Tumushabe’s
case (supra) must prevail. That alone should be sufficient to dispose of the
cross-appeal as finally presented by the learned counsel for the
respondent.” (Emphasis added)

15 It is quite clear that Mulenga JSC faulted the Constitutional Court for its
decision, made in utter disregard for the rule of precedence, since this Court
had already authoritatively pronounced itself on the specific point of law
under consideration by the Constitutional Court. In A.G vs Tumushabe Supreme
Court Const. Appeal No. 3 of 2005 and A.G vs ULS Supreme Court Const. Appeal No. 1 of
20 2006, this Court reiterated its holding that the GCM is a subordinate court to
the High Court. Under the cardinal rule of precedent and stare decisis, a Court
of law is under duty to uphold its previous decision on a particular matter;
save in exceptional cases, where the previous decision is distinguishable, or
has been overruled by a higher Court on appeal, or was arrived at per
25 incuriam (i.e. without taking into account a law in force, or a binding
precedent).

The Supreme Court being the highest Court of the land may, and should
indeed, depart from its previous decision when it finds it is the proper thing
to do in the interest of justice. I wish to be emphatic in holding the view that

41
5 these two decisions of A.G v ULS (supra) and A.G v Tumushabe (supra) are still
good law on the status of the GCM as a court. As I have already noted with
regard to creation of Courts, it is clear from a proper reading and better
appreciation of Article 129 of the Constitution that in addition to the Courts
created by the Constitution, Parliament has the power to create only
10 subordinate Courts. It would do well if Parliament clearly stipulates in the law
enacted, the status of a Court created; namely that it is a subordinate Court,
as the Magistrates Courts Act does. This would avoid such questions as those
that arose in the A.G v ULS and A.G v Tumushabe cases (supra).

I note that in A.G vs Tumushabe - S.C Const. Appeal No. 3 of 2005, this Court came
15 to the conclusion that since the GCM exercised judicial power, it must be a
court. To arrive at this position, this Court did not base its decision on the
provisions of Art. 129 or Art. 210, which empower Parliament to establish
military courts. In holding that the General Court Martial is a Court, Mulenga
JSC, with whom the others agreed, stated thus:

20 “Judicial power under Art 126 is derived from the people and shall be
exercised by courts established under the Constitution in conformity with
the law, values, norms and aspirations of the people. This principle
embraces all judicial power exercised by civilian courts and military courts.
………
25 While the Parliament established the courts martial as organs of the UPDF,
the authority to vest them with judicial power must be construed as derived
from this Constitutional principle, for only ‘courts established under the
Constitution have that mandate.” (My emphasis)

42
5 The Court further held that:

“Therefore although the Courts Martial are a specialized system to

administer justice in accordance with military law, they are part of the
system of courts that are, or are deemed to be established under the
Constitution to administer justice in the name of the people. They are not
10 parallel but complementary to the civilian courts, hence the convergence at
the Court of Appeal.” (Emphasis added)

The use of the phrase “deemed to be established” is noteworthy. The inference

one can draw from it is that this Court (per Mulenga JSC) treated the matter
as if there was no clear grounding in the Constitution for the establishment
15 of such a court; and yet, as I have already specifically pointed out, the
provisions of the Constitution, under which the GCM is established, is
unmistakably clear.

In the A.G vs Tumushabe case (supra), this Court also seized the fact of
convergence of appeals from the Court Martial Appeal Court and the High
20 Court, at the Court of Appeal, to buttress its finding regarding the
complementary nature of the Courts Martial to that of the civil Courts. I
believe the fact of convergence of the appeals in the Court of Appeal was a
wrong premise to base the complementarity of the Courts Martial to the civil
Courts. It is equally noteworthy that the case of A.G v Tumushabe (supra) was
25 decided before the UPDF Act 2005 came into force. As was recently pointed
out in the Court of Appeal decision in PTE Muhumuza Zepha v Uganda Criminal
Appeal No. 31 of 2016, since the right to appeal is a creature of statute, the right
of appeal from the Court Martial Appeal Court to the civilian Court of Appeal

43
5 is no longer available following the repeal of the National Resistance Army
(Court Martial Appeal Court) Regulations and the Judicature Statute; which
had respectively granted this right of appeal under r. 17 (2), and section 14,
thereof. Thus, I am unable to agree that the convergence of the military Court
with the civil Court, at the Court of Appeal, is a material legitimate basis for
10 justifying the establishment of the GCM as a complementary court, or even
as a court for that matter. I reiterate my view that the procedure and appellate
jurisdiction of a Court differs from the issue of its establishment as a Court
of law.

I would therefore hold that the General Court Martial is not merely a
15 complementary court to ‘civil’ Courts. It is established as a court; which is
however seized with a specialized jurisdiction. I will advert to this in this
judgment. Suffice to note here that the complementary nature of the GCM and
military courts in general stems from the unique functions of the UPDF as
reflected in Art 209 of the Constitution; and the unique needs of the military.
20 The legality of the establishment of the GCM is based on the authority
conferred on Parliament under Art. 129 of the Constitution to create a
subordinate Court of law, and the provision of Art. 210 thereof to create the
organs of the UPDF; both of which mandates, Parliament has duly executed.

Exercise of judicial power & tribunals

25 Before I take leave of this issue, I would like to address myself to the aspect
of the exercise of judicial power by courts and military tribunals, upon which
the learned Justices of Appeal based their decision in Rtd Capt. Amon Byarugaba
(supra). As a general rule, in a democratic society or dispensation, every
aspect of judicial power must be exercised by a competent authority

44
5 established by law. In this regard, ordinarily, a unique characteristic or
attribute of Courts, as contradistinguished from tribunals, is the former’s
mandate to exercise judicial powers, as contrasted with the quasi-judicial
powers exercised by the latter.

Judicial power, exercised by the judicial arm of government as an institution,

10 as is provided for in the Constitution, refers to the authority vested in the
Courts of Judicature whose judicial officers interpret and apply the law,
resolve disputes, and administer justice generally. Article 257 of the
Constitution - the interpretation provisions - defines judicial power as
follows:

15 “257. Interpretation.
(1) In this Constitution, unless the context otherwise requires—
(a) “Act of Parliament” means a law made by Parliament;
………
………
20 (p) “judicial power” means the power to dispense justice among persons
and between persons and the State under the laws of Uganda;”

It involves hearing cases, interpreting laws, issuing judgments, and, in some

cases, determining the constitutionality of laws or government actions. In
this sense, judicial power is characterized by jurisdiction over all aspects of
25 human life. The judiciary's primary function as one of the three arms or
branches of government in a typical democratic system, alongside the
executive and legislative arms or branches, is to ensure that laws are applied
fairly and consistently, uphold individual rights, and settle legal disputes
according to established legal principles and procedures. Due to the

45
5 importance of this power, more safeguards are usually in place to ensure that
the Judiciary exercises it with impartiality and fairness during proceedings;
which, usually, are more that those possessed by a tribunal. It extends, inter
alia, to elements such as the structure, procedures and composition of the
Court. These hallmarks usually exist to ensure that the Court and the judicial
10 arm of government as a whole adjudicates disputes with fairness; which is
the subject of Ground 2 of the appeal.

In a narrower sense, judicial power generally uniquely involves an exercise

of power to interfere with the personal liberty of persons who appear before
it; and this usually falls exclusively within the realm of ordinary Courts of
15 law, although there is no express bar to criminal exercise of jurisdiction by
some tribunals. As a characteristic, the moment an entity can hear criminal
cases and give custodial sentences or detain its suspects during hearing, the
entity exercises judicial power regardless of its title as a court or tribunal. In
other words, the exercise of judicial power is not in all cases what
20 differentiates a court from a tribunal. The jurisdiction of Courts and tribunals
to exercise judicial power in a matter usually depends on the law. In our
jurisdiction, it would appear that this is the position provided for in Article
28 (1) of the Constitution; which states as follows:

“(1) In the determination of civil rights and obligations or any criminal charge,
25 a person shall be entitled to a fair, speedy and public hearing before an
independent and impartial court or tribunal established by law.” (emphasis
added)

46
5 This is also reflected in the International Covenant on Civil and Political Rights
(ICCPR), wherein Article 14, paragraph 1, states that:

"All persons shall be equal before the courts and tribunals … [and] [i]n the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
10 hearing by a competent, independent and impartial tribunal established by
law". (emphasis added)

When it comes specifically to the military, judicial power may be exercised

by civilian manned specialized military Courts, or separate military Courts
and/or military tribunals; depending on the jurisdiction or country in
15 question. For instance, the USA has both military Courts and military
tribunals, but they serve different purposes and operate under different
circumstances and under different legal frameworks. Military Courts, known
as courts-martial, are established within the military justice system to handle
disciplinary matters and criminal cases involving members of the armed
20 forces under the Uniform Code of Military Justice (UCMJ). There are three
levels of courts-martial; namely, summary, special, and general. The Courts-
martial are the military's Courts of original jurisdiction, with appellate review
taking place in Military Service Courts of Criminal Appeals and the United
States Court of Appeals for the Armed Forces. Decisions of the United States
25 Court of Appeals for the Armed Forces are then reviewable by the U.S.
Supreme Court.

Similar to the United States, military Courts in Canada handle matters related
to the military, including cases involving military personnel accused of

47
5 offenses as provided under the National Defence Act. They follow procedures
specific to the military justice system and are distinct from the civilian Court
system. The Court Martial Appeal Court of Canada (CMAC) is a specialized
appellate Court; and the highest military appellate Court in the Canadian
military justice system. However, the judges who sit on the CMAC are civilian
10 judges appointed from the superior Courts of various Canadian provinces.
Despite the civilian nature of its judges, the CMAC's jurisdiction is specific to
military matters, and it operates within the framework of military law.

A hybrid military Court system, involving trial of both military personnel and
civilians, is that of the UK. Military law in the UK is primarily governed by the
15 Armed Forces Act, which sets out offenses, procedures for trials, and
sentencing guidelines specific to military personnel. The UK Military Court
Service provides a criminal Court for the Royal Navy, Army, and Royal Air
Force, in the Court Martial, and as well in the Summary Appeal and Service
Civilian Court. Decisions of the Court Martial can be appealed to the Court
20 Martial Appeal Court, which consists of civilian judges. Trials involve a Judge
Advocate who is legally qualified and oversees proceedings, along with a
board of military personnel (for Court Martial cases) or a single Judge
Advocate (for Summary Hearings).

Israel, on the other hand, operates a specialized military Court system. The
25 military Courts have jurisdiction over offenses committed by members of the
military; but they operate within the framework of the civilian legal system,
and are subject to oversight by the Israeli Supreme Court, which helps ensure
compliance with constitutional and human rights standards. Egypt is an
example of a country where a separate military judiciary as opposed to

48
5 civilian Courts have been historically used to try military officers and
civilians. The Egyptian military judiciary is now a division of the armed
forces; but has in the past faced much criticism internationally for trying
civilians and lacking basic tenets of a fair hearing. As per Article 3 of the
Military Judiciary Law, as amended in 2010, military judges now have legal
10 immunity against dismissal, as is the case with civilian judges, as is
stipulated in the last paragraph of the 2014 Constitution; which states that:

“Members of the military judiciary shall be independent and may not be

dismissed. They shall have all the guarantees, rights and duties stipulated for
members of the judiciary.”

15 Aside from Military Courts, many other countries also utilize military
tribunals as part of their military justice systems, each with its own set of
laws and procedures governing the conduct of these tribunals. In the US, for
instance, Military tribunals are designed to judicially try members of enemy
forces during wartime, operating outside the scope of conventional criminal
20 and civil proceedings. Military tribunals are distinct from Courts-martial; and
are an inquisitorial system based on charges brought by military authorities,
prosecuted by a military authority, judged by military officers, who can pass
sentence against a member of an enemy army. The judges are military officers
and fulfill the role of jurors. They are convened in extraordinary
25 circumstances, such as during times of war or in cases involving enemy
combatants. Military tribunals thus often involve non-civilian defendants and
are designed to address legal matters that fall outside the jurisdiction of
civilian Courts.

49
5 Accordingly, it follows that judicial power may be exercised by ordinary
Courts, or specialized military courts or tribunals; depending on the law of
the land in question. Further, the military justice set up of any State depends
a lot on the legal, institutional, societal considerations of the particular State.
Different countries adopt different approaches based on their legal
10 traditions, institutional structures, and societal values. Of course, whether
the set up meets the standards of justice in a democratic society would be
another matter. Of indispensable imperative in the exercise of judicial power
by any entity in a democratic society, be it Courts or tribunals, the crucial
factors will be its establishment under the law, and the safeguards that ensure
15 independence, fairness, and impartiality, in the exercise of the judicial power.

I am concerned in the instant appeal with the Ugandan laws, institutional

structures, and societal values, to which I will restrict myself in the
determination of the issues before this Court; albeit that I may make
reference to international covenants and other jurisdictions for purposes of
20 benefitting from best practices therefrom. Under the UPDF Act the Courts
martial, and even the Unit Disciplinary Committees (UDCs) and Summary Trial
Authorities (STAs) that are tribunals, have the jurisdiction to try offences; and
sentences that they can impose range from caution to custodial sentences.
The UDC has powers under (s. 193 (3), now s.195 (3) to try any person for a
25 non-capital offence, and can under s. 193 (4), now s.195 (4) impose any
sentence authorised by law. The STA consists of two tribunals; with one
having a commanding officer or officer commanding conducting summary
trial, while the other has a Superior Authority conducting trial.

50
5 The maximum sentence a Commanding officer or officer commanding can
impose is detention for a period of up to six months. Section 191(3) (now
s.189 (3)) of the Act, and Schedule 8 thereto list the offences triable by a STA.
It is thus clear that the powers of the courts martial, the UDCs and STAs can
properly be called judicial power; even though not all of them are established
10 as courts. The issue whether the UDCs and STAs as tribunals are exercising
the judicial power fairly and impartially will be determined by the resolution
of the issue regarding independence and impartiality of the GCM in the light
of the requirements specified under the provisions of Arts. 289 (1) & 44 of
the Ugandan Constitution. This involves the consideration as to whether they
15 are granted the power by the Constitution to do so, even if they are not
established as courts of law. Tribunals that exercise judicial power, as
opposed to quasi-judicial power, would be an exception.

I have already pointed out that Art 28 (1) of the 1995 Constitution appears to
envisage the exercise of judicial power by both tribunals and Courts.
20 However, the same Constitution limits the categories of entities that can
restrict the liberty of any person in their exercise of judicial power, in the
narrower sense explained above. This is discernible from Article 23 of the
Constitution, which only expressly allows Courts to interfere with the right
to personal liberty, through Court orders; where it provides thus:

25 “23. Protection of personal liberty.

(1) No person shall be deprived of personal liberty except in any of the
following cases—
(a) in execution of the sentence or order of a court, whether
established for Uganda or another country or of an

51
5 international court or tribunal in respect of a criminal
offence of which that person has been convicted, or of an
order of a court punishing the person for contempt of court;
(b) in execution of the order of a court made to secure the
fulfilment of any obligation imposed on that person by law;
10 (c) for the purpose of bringing that person before a court in
execution of the order of a court or upon reasonable
suspicion that that person has committed or is about to
commit a criminal offence under the laws of Uganda;
………
15 ………
(6) Where a person is arrested in respect of a criminal offence—
(a) the person is entitled to apply to the court to be released on
bail, and the court may grant that person bail on such
conditions as the court considers reasonable;
20 (b) in the case of an offence which is triable by the High Court
as well as by a subordinate court, the person shall be
released on bail on such conditions as the court considers
reasonable, if that person has been remanded in custody in
respect of the offence before trial for sixty days;
25 (c) in the case of an offence triable only by the High Court, the
person shall be released on bail on such conditions as the
court considers reasonable, if the person has been remanded
in custody for one hundred twenty days before the case is
committed to the High Court.”

30 Article 126 (1), of the Constitution also provides that:

52
5 “Judicial power is derived from the people and shall be exercised by the courts
established under this Constitution in the name of the people and in conformity
with the law, values, norms and aspirations of the people.”

Under Arts. 23, 126 (1), and 129 (1), of the Constitution, it is only the Courts
that are granted the mandate to interfere with personal liberty in the sense
10 of custodial sentences or any legal detention of a suspect for an extended
period of time during a hearing. Therefore, in the Ugandan framework of
military courts, it is only the courts martial that are established as courts of
law under the Constitution that can properly or legally be said to exercise
judicial power when hearing offences criminal or disciplinary, with the power
15 to impose custodial sentences and detain suspects. The UDC is not
established as a court under Arts 210 or 129 of the Constitution. The UDC
and STAs are in fact tribunals; hence, whatever judicial powers they exercise
are unconstitutional, as they do so without lawful authority.

Ground 2.
20 The main issue in Ground 2 of the appeal is whether the GCM in its current
setting, is indeed independent and impartial as required of a court. Its
resolution delves into the requirement of independence and observance of
the right to a fair hearing and impartiality by any authority exercising judicial
power in Uganda. It requires this Court to examine the legal structure and
25 procedures of the military Courts as established by Parliament under the
UPDF Act 2005 and regulations made thereunder to determine whether it
offers a fair hearing to those who appear before it; or whether its hearings
are in contravention of Art 28(1) and 44 (c) of the Constitution.

53
5 I first give a brief background to and break down the structure of military
courts in Uganda in more detail. This is also relevant in answering all the
grounds of appeal. As I have already explained, under the disciplinary
structure of the UPDF Act there are organs established as courts of law; and
tribunals that are not referred to as court, but exercise judicial power. These
10 are respectively the Court Martial Appeal Courts (CAMA), the General Court
Martial (GCM), (Division Court Martial (DCM) on the one hand; then the Unit
Disciplinary Committees (UDCs) and the Summary Trial Authorities (STAs), on
the other hand.

I already laid down the structure of the courts martial, UDCs and STAs. There
15 is not much change in the structure of the military Courts and tribunals from
the situation obtaining prior to the 1995 Constitution. The Report of the Uganda
Constitutional Commission, published by the Government of Uganda, Uganda
Printing and Publishing Corporation, Entebbe (herein referred to as ‘The Odoki
Commission Report’) at page 375, explains the system of military Courts. I note
20 that the UDCs also appear under Courts in this Report:

“14:83 There are five levels of court specified. They are unit disciplinary
committee, division court martial, general court martial, field court
martial and court martial appeal court. The unit disciplinary committee
25 and division court martial deal with matters arising within particular
units at battalion and division levels respectively, while a field court
martial handles matters arising during a military operation where it is
impractical to involve the unit committee or division court martial…
Each of these courts comprises a chairman of a specified rank and other
30 members from a mixture of ranks (some senior officers, junior officers

54
5 and non-commissioned officers). The general court martial has both
original and appellate jurisdiction over all offences and persons subject
to the military law. It can sit anywhere in Uganda. The members are
appointed by the High Command of the NRA to hold office for a period
of one year. At any proceeding of this military court, there must be a
10 secretary to record the proceedings; army legal officer to advise on the
law and procedure; and a prosecutor, who may be an intelligence or
security officer. The court martial appeal court hears and determines all
appeals to it under the statute from decisions of the general court
martial.”

15 Noting some changes as regards the composition of the military Court, and
specifically the role of the Judge Advocate, The Odoki Commission Report further
explained thus:

“14:84 In any military court, the verdict is by majority opinion. A

significant difference between the existing military courts and those
20 replaced by statute No. 3 of 1992 (the Armed Forces Act of 1964) is that
a military court was previously presided over by a judge advocate who
was appointed by the Chief Justice and consisted of not less than three
officers of the armed forces. The current structure has decentralised
military courts so that they are accessible to the soldiers and are presided
25 over by the army officers.” (Emphasis added)

This new dispensation still obtains in the 1995 Constitution; as not all Courts
have the Judge Advocate as the presiding officer in them anymore. In terms
of current legislation, the UPDF Act lays out the structure and procedure of

55
5 the Courts martial and the regulations made thereunder. The Division Court
Martial (DCM) is established under s.194 (now s.192) of the UPDF Act, with
unlimited original jurisdiction. Its membership comprises a chairperson of
the rank of Major or above; two senior officers; two junior officers; a political
commissar and one non-commissioned officer. All these are appointed by the
10 High command for a period of one year. The General Court Martial (GCM)
established under s.197 (now s.195) of the Act consists of a Chairperson of
the rank of Lieutenant Colonel and above, two senior officers, two junior
officers, two junior officers, a political commissar, and one non-
commissioned officer; also appointed by the High Command for a period of
15 one year.

The GCM’s jurisdiction is similar to that of the DCM, except that the GCM also
hears appeals from both the DCM and has revisionary powers over findings,
orders or sentences imposed or made by any STAs and UDCs. When hearing
an appeal in a capital offence, the quorum of the DCM and GCM is all
20 members, while in all other cases, it is five members. The Court Martial
Appeal Court established under s.199 (now s.197) of the Act handles only
appeals from the GCM. Its membership comprises a chairperson who is an
advocate qualified to be appointed a high Court Judge of Uganda, two senior
officers of the UPDF, and two advocates who are members of the UPDF. The
25 Registrar of that Court is a legally qualified person also appointed by the High
Command. When hearing an appeal in a capital offence, the quorum of the
CMAC and GCM is five members, while in all other cases, it is three members.

The convening authority for these Courts is the High Command or any other
authority as may be authorized by the High Command under s. 196 (now s.

56
5 194); and also Regulation 22 of the UPDF (Rules of Procedure) Regulations
307-1 on appointment of members and chairman by the High Command. The
High Command is established under s.15 (now s.14) of the Act; and
comprises:
(i) The President of Uganda who is the Chairperson;
10 (ii) The Minister of Defence;
(iii) Members of the High Command as at 26th January 1986 whose names
are set out in the 2nd Schedule to the Act;
(iv) The Chief of Defence Forces;
(v) The Deputy Chief of Defence Forces;
15 (vi) All Service Commanders;
(vii) The Chief of Staff;
(viii) All Service Chiefs of Staff;
(ix) All Chiefs of the Services of the Defence Forces;
(x) All Commanders of any formations higher than a Division, which the
20 president may, in consultation with the High Command establish;
(xi) All Division Commanders and officers commanding equivalent units
of the Defence Forces;
(xii) The Commandant of the General Headquarters, and such other
commanders and experts, as are from time to time co-opted by the
25 President to advise the High Command.

Their mandate includes advising the President in emergencies, at war or

perform any other duties conferred by the High Command or as the President
may direct.

57
5 The Courts martial (and UDCs) reach their decisions by majority opinion that
is binding on all the members of the Court (see: s.201, now s.199 of the Act).
Section 209 (now s.207) provides that the Courts procedure should ‘as far as
practicable’ be the same as those in civil Courts; except where it is expressly
provided to the contrary under the UPDF Act, or regulations made thereunder.
10 What is manifest from the foregoing, with regard to Courts martial, is that:

(i) With the exception of the CMAC, there is no legal requirement for a
person qualified in law, to form part of the Coram.
(ii) The Judge Advocate’s role is wholly advisory, as he or she does not
form part of the Court that deliberates on the verdict and sentence.
15 (iii) Decisions are by majority opinion of members of the Court.
(iv) The Courts are convened, and the members are appointed, by the High
Command or some other authority delegated by the High Command.
(v) The Courts comprise military men with no differentiation as to whether
they are active, about to retire, or retired.
20 (vi) Junior members and a political commissar form part of the quorum.
(vii) No right of appeal is created to the ordinary Courts under the Act.
(viii) The UDCs and STAs exercise judicial power under the law; as they have
jurisdiction to pass custodial sentences, and thus infringing on the
liberty guaranteed under Article 23 of the Constitution.
25
Every Court established under the Constitution must meet the criteria for a
fair hearing. Similarly, tribunals entrusted with judicial power, have to apply
the principles that ensure a fair hearing; and to this extent, the classification
as Courts or tribunals serves no purpose.

58
5 Right to a fair hearing

The right to a fair hearing is one of the fundamental human rights that are
considered an imperative in any trial. Art 28(1) of the Constitution of the
Republic of Uganda 1995 as amended provides as follows:

“Article 28 Right to a fair hearing.

10 (1) In the determination of civil rights and obligations or any criminal
charge, a person shall be entitled to a fair, speedy and public hearing
before an independent and impartial court or tribunal established by
law.”

Thereafter, it also provides a list specifying certain guarantees of the right to

15 a fair hearing that all tribunals and Courts should provide or adhere to. Art
44 (c) of the Constitution of Uganda provides that the right to a fair hearing
provided under Article 28 thereof is non-derogable. It states that:

“Notwithstanding anything in this Constitution, there shall be no derogation

from the enjoyment of the following rights and freedoms-
20 (c) the right to a fair hearing;”

It is thus clear that with regard to courts or tribunals, the cardinal right to a
fair hearing is one that is fundamental in ensuring that justice is done.

The right to a fair trial is not peculiar to the Constitution of Uganda. There is
a corpus of international conventions that similarly provide for the
25 protection of the rights as is contained in our Constitution. Article 10 of the
UDHR provides:

59
5 “Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him.”

Article 14, paragraph 1, of the ICCPR provides that:

"All persons shall be equal before the courts and tribunals [and] [i]n the
10 determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law".

Article 14 also lists the minimum guarantees for the right to a fair hearing. A
15 fair hearing connotes several elements including, among others, an
independent Court or tribunal, right of appeal, right to legal representation,
fair and impartial decision makers, fair legal procedures of trial that include
an opportunity to prepare one’s defence. Although the ICCPR does not
explicitly refer to military Courts, it is accepted that Article 14 nonetheless
20 constitutes the backbone of the Human Rights Committee's doctrine on
military Courts. In the Human Rights Committee (HRC), General Comment No. 32 on
the Right to a fair trial, the HRC points out that the guarantees of the right to a
fair trial provided for in Art 14 of the ICCPR applies to: “all courts and
tribunals including military and other specialized courts.”

25 The Draft principles governing the administration of justice through military tribunals:
Report presented by the Special Rapporteur of the Sub-Commission on the promotion and
protection of Human Rights, Emmanuel Decaux (Report E/CN.4/2006/58) of the United
Nations (also known as the Decaux Principles), though not binding, is instructive

60
5 with regard to the general international legal trend. Principle No. 2 thereof
provides for respect for the norms of international law in the following terms:

“Military tribunals must apply internationally recognized standards and

procedures guaranteeing a fair trial in all circumstances, including the
rules of international humanitarian law."

10 The requirement for a fair hearing applies to all stages of the due process,
from investigation to trial. Principle No. 13 provides:

“The organization and functioning of military courts must fully ensure the
right of every person to a competent, independent and impartial tribunal,
during all stages of the procedure, both the investigation and the trial.”

15 Article 7 of the African Charter states:

1. Every individual shall have the right to have his cause heard. This
comprises … (d) The right to be tried within a reasonable time by an
impartial court or tribunal.”

In its Principles and guidelines on the right to a fair trial and legal assistance in Africa ,
20 the African Commission adopted the Dakar Declaration and Recommendations on
the Right to a fair trial in Africa in which it emphasized that while exercising their
functions military Courts should respect fair trial standards. This provision
is in line with that of the Human Rights Committee. As already noted, Art. 7
of the African Charter provides for a right to a tribunal that is competent and
25 impartial. Art. 26 thereof also provides that all states parties should ensure
that their courts and tribunals are independent.

61
5 Judicial power, even though it is limited in jurisdiction, has been devolved to
the military Courts to be exercised in line with the Constitution, while
respecting the fundamental rights and freedoms of individuals appearing
before them. It goes without saying therefore that all persons, including
military personnel or persons subject to military law are entitled to the non-
10 derogable right of a fair hearing. The Constitution (see: Article 21) and the
three Conventions referred to, all provide for the principle of equality of
persons before the law. The right to a fair hearing thus applies to all and
sundry; including civilians or persons subject to military law. A person does
not, therefore, by joining the army, forfeit this right. As noted by Prof. Marita
15 Carnelly in “The South African Military Court system - Independent, Impartial and
Constitutional? Scientia Militaria, South African Journal of Military Studies, Vol 33, No. 2,
2005, that:

“[A]lthough a soldier becomes subject to the military system, he does not

cease to be a citizen and his rights, as a citizen remain relevant, albeit in
20 an amended form. But whatever legislation is applicable, it must still be
interpreted in light of the supreme law.”

According to Halsbury’s Laws of England (Vol 3) 2019, at para 203:

“It is one of the cardinal features of the law of England that a person does
not, by enlisting in or entering the armed forces, thereby cease to be a
25 citizen, so as to deprive him of his rights or to exempt him from his liabilities
under the ordinary law of the land. He does, however, in his capacity as a
member of those forces, incur additional responsibilities, for he becomes
subject to service law.”

62
5 Thus, military personnel do not submit to the military tribunals at their own
risk. It is the duty of the State to ensure at all times that all Courts and
tribunals that are established meet the criteria of a fair hearing (See: Art 20
of the Constitution). These rights apply to a member of the forces just as it
applies to a civilian; except that the characteristics of military life must be
10 considered (see: R v Spear [2002] UKHL 31 at 4-5; R (on the application of Smith) v
Secretary of State for Defence [2010] UKSC 29, [2011] AC 1, [2010] 3 All ER 1067; and
Engel v Netherlands (1976) 1 EHRR 647 at [54], EctHR.

In R v Spear & Anor; R v Boyd; R v Williams & other appeals and applications [UKHL] 31,
the House of Lords considered the import of Art 6-1 of the Convention, which
15 is similar to Art. 28(1) of the Constitution, and came to a similar conclusion.
Indeed, it noted that while disciplinary rules and procedures may vary from
State to State, there are three principles that command acceptance in any
liberal democratic dispensation that adheres to the rule of law. I find the
principles expounded by Lord Bingham of Cornhill, persuasive, and quite
20 applicable in the instant case; hence, I restate it here in extenso:

“First, a man does not by becoming a soldier cease to be a citizen. On

becoming a soldier he subjects himself to duties and exposes himself to the
risk of penalties to which a civilian is not subject or exposed. But he remains
subject to almost every law, including the criminal law, which binds other
25 citizens and continues to enjoy almost all the same rights, including the
right (if a charge of serious misconduct is made against him) to a fair trial
before an independent and impartial tribunal

... … … … … … … … …

63
5 Thirdly, and whatever the practice in former times, a modern code of
military discipline cannot depend on arbitrary decision-making or the
infliction of savage punishments, nor can it depend on inherited habits of
deference or gradations of class distinction. Such a code must of course
reflect the hierarchical structure of any army and respect the power of
10 command. But an effective code of military discipline will buttress not only
the respect owed to their leaders by those who are led but also, and perhaps
even more importantly, the respect owed by leaders to those whom they lead
and which all members of a fighting force owe to each other.” (Emphasis
added)

15 The requirement for a fair hearing transcends boundaries and applies to all
Courts wherever they belong; including the Field Court Martial. Lord Bingham
pronounced himself on this point in R v Spear (supra) as follows:

“[15] … But a court-martial either is or is not an independent and impartial

tribunal. If it is, it can properly try civil as well as purely military offences.
20 If it is not, it cannot, compatibly with art 6(1), try military offences, which
may carry a severe sentence of imprisonment or detention. Nor, leaving
aside issues concerning the territorial reach of the convention, and leaving
aside also the special conditions in which a field general court-martial may
be held, can it be compatible with the standard required by art 6(1) to
25 subject service personnel accused of civil offences committed abroad to trial
by court-martial if such is not an independent and impartial tribunal.”
(Emphasis added)

I therefore consider the impugned provisions in light of the principle of

equality. This also fits into my earlier finding that all tribunals and Courts

64
5 that exercise judicial power are duty bound to adhere to the right to a fair
hearing.

Can a military court be independent, fair & impartial?

A military Court can be independent, fair, and impartial. Thus, trial of a

person by Courts Martial does not ipso facto occasion a violation of the
10 person’s right to a fair hearing provided for under Art 28 (1) of the
Constitution. That provision does not specify the composition of or
procedure adopted by such a Court or tribunal, other than listing the
procedural safeguards required for a fair hearing. However, as noted earlier,
Article 128 (1) of the Constitution also imposes a requirement as to objective
15 independence of the Courts or tribunals exercising judicial power as a
safeguard to a fair hearing. In Morris v United Kingdom 34 EHRR 1253, at 1274, para
59, the European Court explicitly held as follows:

“… [the court] recalls its own case law which illustrates that a military court
can, in principle, constitute an 'independent and impartial tribunal' for the
20 purposes of article 6(1) of the Convention. For example, in the above-
mentioned Engel v The Netherlands (No 1) case, the court found that the Dutch
Supreme Military Court, composed of two civilian justices of the Supreme
Court and four military officers, was such a tribunal. However, the
Convention will only tolerate such courts as long as sufficient safeguards
25 are in place to guarantee their independence and impartiality.” (Emphasis
added)

Commenting on this holding in Morris v UK (supra), Lord Roger stated in R v

Spear (supra), thus:

65
5 “While it is perhaps possible to detect some lack of enthusiasm in the use of
the term “tolerate”, the passage shows clearly that, in principle, a military
court can constitute an independent and impartial tribunal in terms of art
6(1). What is required is that there should be sufficient safeguards of the
independence and impartiality of its members.”

10 This position is similar to that taken by Canada, the European Court of Human
Rights, and the United Kingdom. Lord Bingham exhaustively explained this in
R v Spear (supra) as follows:

“[6] The practice of other states is not dissimilar to our own. So much
appears from such decisions as MacKay v The Queen (1980) 114 DLR (3rd) 393 at
15 413-414, 416-418, 419-421, 423-426; In re Tracey, Ex p Ryon (1989) 166 CLR 518 at
543-544; R v Généreux (1992) 88 DLR (4th) 110 at 135-136, 156-157. That there is a
rational basis for the practice is made plain in those decisions, and in the
statement of Air Chief Marshal Sir Anthony Bagnall, the Vice Chief of the
Defence Staff which is before the House. In Findlay v United Kingdom (1997) 24
20 EHRR 221 the defendant was charged with a number of offences of which the
more serious were offences against the ordinary criminal law.

The European Court of Human Rights found serious breaches of art 6 (1) of
the convention in the structure and procedure under which courts-martial
were then conducted, and a number of changes were made in the Armed
25 Forces Act 1996. The effect of these changes was well summarised by Laws
LJ in the first of the judgments under appeal: R v Spear; R v Boyd [2001] EWCA
Crim 3, [2001] QB 804, [2001] 2 WLR 1692 at pp 812-813 of the former published
report, para 18.

66
5 There is, however, nothing in the judgment of the European Court in Findlay,
or in the earlier case of Engel v The Netherlands (No 1) (1976) 1 EHRR 647 or in
the more recent case of Morris v United Kingdom (2002) 34 EHRR 1253, to suggest
that trial by court-martial … necessarily involves a violation of rights
protected by art 6(1).
10 [7] Lord Thomas of Gresford QC directed his initial challenge on behalf of
the second group of Appellants to the terms of s 70 of the Army Act 1955,
which he criticised as incompatible with art 6(1). The short answer to this
point is that given by Mr Havers QC, that this section does not engage art
6(1) at all. While the section provides that persons subject to military law
15 who commit civil offences shall (save in the case of certain offences) be
guilty of offences against the section, it makes no provision governing the
constitution of the tribunal by which such persons shall be tried nor the
procedure to be followed.” (Emphasis added)

Historical context & Art 8A.

20 While I take into consideration the position of the law obtaining in other
jurisdictions, the historical context in which the 1995 Constitution was made,
which is clearly laid down in the National Objectives and Directive Principles
of State Policy now a provision of Art. 8A of the Constitution as amended, is
an imperative in the determination of this appeal. The backdrop to the
25 creation of the UPDF as a democratic people centered force in Uganda is an
important narrative. It affords an understanding of the context in which it
was established; and the creation of the military Courts. After independence
in 1962, the military was instrumental in the determination of political power
disputes. Its intervention was decisive in the removal and installation of

67
5 governments; and it was often cited in massive violation of human rights. For
this reason, prior to the making of the 1995 Constitution, views of Ugandans
were sought; and taken into consideration. According to the Report of the
Uganda Constitutional Commission: Analysis and Recommendations, 28 th May 1993 (The
Odoki Commission Report), at page 359:

10 “The military has played a major role in Uganda since independence and at
times that role has not been positive in terms of the progress of
democratization and the promotion of the rule of law.”

At page 364, it is noted thus:

“It is against this sad background discussed in the previous section where
15 the military has over a period of many years not only molested its people
but also installed unpopular governments and sustained them in power that
the people gave their views and concerns about the principles they believe
should govern the military in future.”

At p.36, the Report considers what transpired in Uganda owing to the role of
20 the military in the politics of the country. It is recollected thus:

“From the mid-1960s, civilian governments depended heavily on army

support, and as a result the army became an ever more important political
actor. Under Amin’s regime, army personnel dominated the political scene,
and even took important administrative positions, as district commissioners
25 and even local administration chiefs. Army personnel did not have training
or experience for such political and administrative roles and were often
intent on self enrichment. As a result, terrible abuses occurred and the

68
5 democratic rights of the people were often totally ignored. Many people are
therefore concerned that the future role of the army should be strictly
limited.

Lack of discipline:
14.28 In general, the people believe that for most of the period since 1971,
10 the army has suffered a severe lack of discipline … Low morale and clear
lack of a clear sense saw many soldiers commit offences of all kinds with
impunity. They used their guns to terrorise innocent people and enrich
themselves.”

The army was implicated in various human rights violations; and so extensive
15 was the trauma that some people felt the army should be abolished
altogether. At p. 368 the Report continues:

“Section 3: Analysis of and recommendations on proposals on the army

14.45 The commission accepts that abolition of the army is not possible
because Uganda, like any other country, has borders to defend. Government
20 has a duty under the Constitution to defend its citizens and their properties
from any aggression, be it internal or external and to guarantee peace and
stability within the country. To do so it requires an organ enabling it to use
force when necessary and that organ is the army. National defence, peace
and stability are, after all pre-requisites to democracy and economic
25 development.”

Military Courts are also bound by the Constitution; and the Constitution
represents the will of the people. According to the Odoki Report at p. 365, it
is stated:

69
5 “Respect for the constitution.
14.38 Elsewhere in this report we have emphasized the fundamental
principle derived from the people’s views that the people are sovereign. All
governmental and political power comes from the people, and the
constitution itself is a statement of the people’s will. The army provided for
10 by that Constitution must always respect the Constitution and act within the
limits set by it. It must always respect the democratic principles and the
fundamental rights of the people provided for in the Constitution.”

The preamble to the 1995 Constitution, as amended, is reflective in this

regard, and is cognizant of the political instability Uganda has gone through
15 since she attained independence from colonial Britain. It provides:

“The Preamble.

WE THE PEOPLE OF UGANDA:

RECALLING our history which has been characterised by political and

constitutional instability;

20 RECOGNISING our struggles against the forces of tyranny, oppression and

exploitation;

COMMITTED to building a better future by establishing a socio-economic and

political order through a popular and durable national Constitution based on
the principles of unity, peace, equality, democracy, freedom, social justice and
25 progress;

70
5 EXERCISING our sovereign and inalienable right to determine the form of
governance for our country, and having fully participated in the Constitution-
making process;

NOTING that a Constituent Assembly was established to represent us and to

debate the Draft Constitution prepared by the Uganda Constitutional
10 Commission and to adopt and enact a Constitution for Uganda:

DO HEREBY, in and through this Constituent Assembly solemnly adopt, enact

and give to ourselves and our posterity, this Constitution of the Republic of
Uganda, this 22nd day of September, in the year 1995.
FOR GOD AND MY COUNTRY.”

15 Thus, in interpreting the provisions of the Constitution and the UPDF Act, I
urge that care is taken to keep our history in mind to ensure that there is no
recurrence of our experience of the past, by putting in place laws and rules
that will make the military accountable to the people, and military Courts are
effective. This can be assured in part, if there is in place an independent and
20 impartial Court as is required under the Constitution. First, I would like to
clarify on the issue before the Court. The Attorney General insisted that there
had been no actual proof that the Court that tried the Respondent was not
independent or impartial. The Respondent however, challenged the
independence and impartiality not only of the actual individual proceedings
25 in which he took part but the whole system of military Courts; that the
structure of the GCM or certain aspects of it cannot enable these Courts to
provide a fair hearing.

71
5 The argument of Counsel for the Appellant cannot stand; and this is not a
novel issue. In a Constitutional petition, the structure of a Court can be
challenged without such actual proof. A similar issue was raised in R v Spear
(supra) where Lord Roger stated:

“[41] Lord Thomas's submission that the Appellants' rights under art 6(1)
10 had been infringed did not depend on any specific circumstances relating
to their trials or to the individuals who had made up the courts-martial:
rather, his was a general challenge to the system of trial of civil offences
allegedly committed in the United Kingdom by courts-martial duly set up in
accordance with the legislation. [He submitted that,] [i]n such cases courts-
15 martial did not constitute an independent and impartial tribunal.”

An individual who challenges the independence of a tribunal need not prove

an actual lack of independence (see: R v Genereux) (supra). Similarly, this is an
objection to the system of trial within the GCM in its current structure. I have
already noted that under the Constitution, the right of any person, civilian or
20 soldier, to be accorded a fair hearing before an independent and impartial
Court or tribunal, is non–derogable. Military Courts must respect this right.
Article 221 of the Constitution enjoins the UPDF to observe the fundamental
rights and freedoms in Chapter Four, when it states thus:

‘[I]t shall be the duty of the UPDF and any other armed force established in
25 Uganda … to observe and respect human rights and freedoms in the
performance of their functions.”

International bodies and soft law also recognize this need for the observance
of human rights and freedoms as already explained.

72
5 Test for independence and impartiality

What may be considered to pass the test for independence and impartiality,
and thus ensure a fair hearing in military Courts, has been a subject of wide
consideration and discourse. Courts within the Commonwealth jurisdictions,
and the European Court of Human rights, have been categoric on what
10 qualifies a Court to be considered to be independent, and impartial. In our
case, Art 28(1) of the Constitution is the point of reference because it has
provisions for legal safeguards to ensure that a fair hearing takes place.

Independence
The provision for the independence of the Court, as I have pointed out, is
15 contained in Art. 128(1) of the Constitution; which is that: “[I]n the exercise of
judicial power, the courts shall be independent and shall not be subject to the
control or direction of any person or authority. Clauses 128 (2) to (8) are all
geared towards ensuring and maintaining this independence. To determine
whether the Courts Martial or the persons manning the Courts are
20 independent in the exercise of their judicial powers requires an examination
of the laws and procedure under which the Courts operate. From this, one can
then determine whether a reasonable person, familiar with the Constitution,
the laws setting up the military Courts, and their structure, would perceive
and be satisfied that these Courts are independent.

25 In R v Genereux (supra) Michel Généreux was a corporal in the Canadian Forces.

He was charged with drug possession for the purpose of trafficking in
violation of section 4 of the Narcotics Control Act and for desertion in
violation of section 88(1) of the National Defence Act. In the General Court
Martial he was convicted for both offences, which was upheld in the Court

73
5 Martial Appeal Court. The issue before the Supreme Court was whether the
GCM was independent and impartial for the purpose of s. 11(d) of the
Canadian Charter of Rights and Freedoms. The Court explained that:

“The first step in our inquiry, therefore, must be to consider whether the
proceedings of the General Court Martial infringed the appellant's rights
10 under s. 11(d) of the Charter. The status of a General Court Martial, in an
objective sense, as revealed by the statutory and regulatory provisions which
governed its constitution and proceedings at the time of the appellant's trial,
must be examined to determine whether the institution has the essential
characteristics of an independent and impartial tribunal. In the course of this
15 examination the appropriate test to be applied under s. 11(d) should be borne
in mind: would a reasonable person, familiar with the constitution and
structure of the General Court Martial, conclude that the tribunal enjoys the
protections necessary for judicial independence?” (Emphasis added)

The Court also emphasized that independence of the Court has nothing to do
20 with the good faith of the members of the Court martial; but rather with
regard to the available protections accorded judicial officers that promote
independence and objective impartiality. The Court further explained thus:

“I emphasize, however, that the independence of a tribunal is to be

determined on the basis of the objective status of that tribunal. This objective
25 status is revealed by an examination of the legislative provisions governing
the tribunal's constitution and proceedings, irrespective of the actual good
faith of the adjudicator. Practice or tradition, as mentioned by this Court

74
5 in Valente (p. 702), is not sufficient to support a finding of independence where
the status of the tribunal itself does not support such a finding.”

Counsel for the Appellant emphasized that fairness in the GCM is assured
because the members of the GCM take an oath to uphold the Constitution and
administer justice. Indeed, it is the norm that judicial officers take an oath to
10 render justice; and this places the duty on the respective judicial officer to
exercise the judicial power with independence of mind, and impartiality. The
recognition of the importance of the oath in ensuring that there is
independence and impartiality of the members of the Courts Martial, or any
other Court, is universal; and cannot be overstated. Lord Roger stated in Rv

15 Spear (supra), noted at para 67-68, as follows:

“The European Court too has recognised that the jurors' oath, to faithfully
try the case and to give a true verdict according to the evidence, and their
obligation to have regard to the directions given by the presiding judge will
generally be sufficient to safeguard their independence and impartiality.
20 This is so even in cases where there is reason to believe that one or more
members of the jury may actually be prejudiced against the accused. I refer
to the well-known decisions in Pullar v United Kingdom (1996) 22 EHRR 391, 405,
para 40, and Gregory v United Kingdom (1997) 25 EHRR 577, 593–595, paras 43–
48.
25 [68] In the cases under appeal these particular safeguards were present.
The oath taken by the members of the court required them to well and truly
try the accused “according to the evidence” and to do justice according to
the relevant 1955 Act “without partiality, favour or affection”.

75
5 Indeed oath taking instils in the person taking the oath, and reminds such a
person of solemnity of, and the need for, the duty to do justice; which can
only be achieved when the person acts independently and impartially.
However, this subjective undertaking of exercise of duty is only truly
guaranteed when it operates alongside objective safeguards that can satisfy
10 a reasonable person that the appearance of partiality is eradicated; and the
judicial officer is acting with an independent mind, and is insulated from
extraneous factors such as undue influence.

Impartiality- both subjective and objective.

On the issue of impartiality, the South African Court stated in The President of
15 the Republic of South Africa & others v South African Rugby Football Union & others- 1999
(4) S.A. 147 (C.C.) (the SARFU case) that an impartial mind is one, which is: “…
open to persuasion by the evidence and the submissions of counsel.”
Impartiality is determined by the absence of bias, objective or perceived. In
this regard, objective impartiality is akin to independence. On this, the
20 Human Rights Committee stated in General Comment No. 32, para 21, as follows:

“The requirement of impartiality has two aspects. First, judges must not
allow their judgment to be influenced by personal bias or prejudice, nor
harbor preconceptions about the particular case before them, nor act in
ways that improperly promote the interests of one of the parties to the
25 detriment of the other. Second, the tribunal must also appear to a
reasonable observer to be impartial.” (Emphasis added)

Principle 13 of the Decaux Principles recommends that:

76
5 “Regarding the concept of an independent and impartial tribunal, a large
body of case law has spelled out the subjective as well as the objective
content of independence and impartiality. Particular emphasis has been
placed on the English adage that “justice should not only be done but should
be seen to be done.” It is also important to emphasize that the Human Rights
10 Committee has stated that “the right to be tried by an independent and
impartial tribunal is an absolute right that may suffer no exception."
(Emphasis added)

This Court enunciated the test for impartiality in the case of In Re: An
application for recusal of Hon. Justice Alfonse Chigamoy Owiny – Dollo, C.J. -
15 Miscellaneous Application No. 03 of 2021 (Arising from Presidential Election Petition No.
01 of 2021 – Kyagulanyi Ssentamu Robert vs Yoweri Kaguta Museveni Tibuhaburwa & 2
Ors.), where I explained that the test for bias is:

“… whether a reasonable, objective and informed person, acting on the

correct facts, would reasonably apprehend that the Judge has not or will
20 not bring an impartial mind to bear on the adjudication of the case.”

See also the SARFU case (supra), and Porter v Magill [2001] UKHL 67. It is clear
that in impartiality, appearances are of importance in order to satisfy the
subjective requirement (see also R v Spear (supra), and Findlay v United Kingdom
(supra).

25 In the instant case before this Court, the Respondent makes no allegation that
the members of the tribunal were actually biased. I would thus recast the
issue of independence and impartiality of the members of the Court, as
follows:

77
5 “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 Courts martial.”

The Canadian case of R v Geneureux (supra), the United Kingdom case of Findlay
v U.K., and decisions from other Commonwealth countries, as well as European

10 Courts of Human Rights, have pointed out provisions of the law that vitiate
the independence and impartiality of the Court. The safeguards that ensure
independence and objective impartiality of the Court are, inter alia, the
manner of appointment of members of the Court, appointment of legally
qualified persons thereto, and security of tenure as provided for in the terms
15 of office. Other safeguards include independence from influence within the
military hierarchy, and freedom from influence emanating from outside. Lord
Roger noted in R v Spear & Anor (supra) that:

“… in substance, the court-martial must be guarded from the risk of

influence by the prosecution and guarded from the risk of influence by the
20 relevant Service authorities, especially superior officers who might wish to
secure some particular result, supposedly in the interests of the morale or
discipline of the Service or of some particular unit.”

R. Naluwairo in his work:“Improving the administration of justice by military courts

in Africa: An appraisal of the jurisprudence of the African Commission on Human and
25 People’s rights” (2019)19 African Human Rights Law Journal 43-61 has, flowing from
an examination of the instruments and documents of the African Commission
and UN Human Rights Committee, classified the determinants for a fair
hearing into four key factors, as follows:

78
5 “First … it is critical to ensure that they are truly independent of the
executive branch of government. This requirement is in line with the
doctrine of separation of powers, which in context demands a separation of
judicial from executive functions and powers in order to have a proper
system of checks and balances. Second, the critical aspects to consider in
10 determining whether military courts are truly independent from the
executive are the method of appointment/designation of their members; the
length of their tenure; the existence of protection against external pressures;
and the issue of real or perceived independence.

Third, having legally qualified persons as members of military courts is an

15 important measure not only in guaranteeing the independence of military
courts, but also their competence and impartiality. Fourth, in the particular
context of trials of civilians in military courts staffed with and presided over
by active servicemen, because active servicemen are part and parcel of the
executive, and under their military codes they are obligated to respect the
20 military chain of command. Where these military personnel are adequately
insulated from obeying orders and the command influence when
performing their judicial functions, the threat of not being impartial can
largely be reduced.” (Emphasis added)

Principle 13 of the Decaux Principles also presents some of the safeguards for
25 independence and objective impartiality in the following terms:

“The persons selected to fulfill the functions of magistrate in military courts

must be of integrity and competence and demonstrate the necessary
training and legal qualifications. The statute of military magistrates must

79
5 guarantee their independence and impartiality, in particular in relation to
the military hierarchy …” (Emphasis added)

In Marcel Wetsh’okonda Koso & Ors v DRC (Koso case) (2008) AHRL 93 (ACHPR 2008), the
African Commission noted that independence of a military Court refers to
independence vi-a-vis the executive. It also observed that as is the case with
10 civil Courts, in determining the independence of military Courts,
consideration should be given to the:

“mode of designation of its members, the duration of their mandate, the

existence of protection against external pressures and the issue of real or
perceived independence.”

15 Similarly, in Findlay v United Kingdom (1997) 24 EHRR 221 at 244-245, para 73, the
European Court of Human Rights noted thus:

“The court recalls that in order to establish whether a tribunal can be

considered as 'independent', regard must be had inter alia to the manner of
appointment of its members and their term of office, the existence of
20 guarantees against outside pressures and the question whether the body
presents an appearance of independence.

As to the question of 'impartiality', there are two aspects to this requirement.

First, the tribunal must be subjectively free of personal prejudice or bias.
Secondly, it must also be impartial from an objective viewpoint, that is, it
25 must offer sufficient guarantees to exclude any legitimate doubt in this
respect.

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5 The concepts of independence and objective impartiality are closely linked
and the court will consider them together as they relate to the present case.”

It is noteworthy that following these decisions, the respective countries

amended their Military laws to provide for sufficient safeguards to ensure a
fair hearing.

10 With the benefit of these authorities and instruments enunciating the law on
the issue of independence and impartiality of Courts Martial, I proceed to
examine the structure and procedure of the Courts Martial in Uganda; to
assess how they fare in this regard.

(a) Legal qualification

15 It is an imperative and a legal requirement that anyone who sits in a Court to

dispense justice is legally trained, if they are to truly render justice; as it is
done with regard to the ordinary Courts. It is from the legal training that a
judicial officer gains the competence to properly evaluate the evidence before
Court, and correctly apply the relevant or applicable law thereto, with
20 impartiality and independence of mind. Indeed, the international standards
as expounded by the Human Rights Committee in General Comment No. 32 of
2007 and the UN Basic Principles on the independence of the judiciary provide for
similar requirements. It has defined independence of the Courts, with regard
to legal qualification of the adjudicators, in the following terms:

25 “[It refers] to the procedure and qualifications for the appointment of

judges, and guarantees relating to their security of tenure… the conditions
governing promotion, transfer, suspension and cessation of their functions,

81
5 and the actual independence of the judiciary from political interference by
the executive branch and legislature.” (emphasis added)

In his work, regarding the need for legally qualified adjudicators, R. Naluwairo
(2019) (supra), has made the same point; noting that:

“[I]t is arguable that legally qualified members of military courts are less
10 likely to be influenced by external factors. They are more likely to
adjudicate cases based on the law and fact, unlike members who are
ignorant of the law.”

Principle 10 of the UN Basic Principles of the Judiciary provides for qualifications,

selection and training of persons exercising judicial power recommends as follows:

15 “10. Persons selected for judicial office shall be individuals of integrity and
ability with appropriate training or qualifications in law. Any method of
judicial selection shall safeguard against judicial appointments for
improper motives. In the selection of judges, there shall be no discrimination
against a person on the grounds of race, colour, sex, religion, political or
20 other opinion, national or social origin, property, birth or status, except that
a requirement, that a candidate for judicial office must be a national of the
country concerned, shall not be considered discriminatory.” (emphasis added)

Marcel Wetsh’okonda Koso & Ors v DRC (Koso case) (2008) AHRL 93 (ACHPR 2008), was a
request to the African Commission to declare that by a mere submission of
25 their case to a military Court, the majority of whom had no legal qualification,
Art 26 of the Charter had been violated. The military Court comprised five
members; only one of whom had the necessary legal training. The
Commission emphasized in its decision that the ability of a Court to offer

82
5 justice depends on the competence and quality of its members; it urged the
DRC to introduce measures to guarantee independence of such Courts.
Relying on Amnesty International & Ors v Sudan (2000) AHRLR 297 (ACHPR 1999), the
Commission held that depriving Courts of qualified staff to guarantee their
impartiality constitutes a violation of Article 26 of the African Charter.

10 In Law Office of Ghazi Suleiman v Sudan (2003) AHRLR 134 (ACHPR 2003) , the
Commission held that: “depriving the court of qualified staff to ensure its
impartiality is detrimental to the right to have one’s cause heard by competent
organs”. In The President of the Republic of South Africa & others v South African Rugby
Football Union & others- 1999 (4) S.A. 147 (C.C.) while examining the test for bias,
15 the Court considered the significance of legal training in the judicial office.
The Constitutional Court noted at para 39-44, thus:

“Before looking at the manner in which the test is applied, it is necessary to

mention two considerations built into the test itself. These are the nature of
the judicial office and the character of bias in this context.
20 ………
In applying the test for recusal, courts have recognized a presumption that
judicial officers are impartial in adjudicating disputes. This is based on the
recognition that legal training and experience prepare judges for the often
difficult task of fairly determining where the truth may lie in a welter of
25 contradictory evidence.

………

The test should be applied on the assumption that a reasonable litigant

would take these considerations into account. A presumption in favour of

83
5 judges’ impartiality must therefore be taken into account in deciding
whether such a reasonable litigant would have a reasonable apprehension
that the judicial officer was or might be biased.” (emphasis added)

Currently, the General Court Martial, Division Court Martial and even the
UDCs and STAs as tribunals exercising judicial power have no legally
10 qualified personnel on their Coram; yet their jurisdiction is not limited only
to disciplinary breaches, but extends to crimes or offences that are also
triable by the civil Courts. This includes serious offences that attract
custodial sentence of over six months, and the death penalty. These
untrained persons can issue decisions on questions of law and fact. The
15 decision of the Judge Advocate in the Court Martial Appeal Court, who in any
case is not a full member of the Court, is merely advisory; as it is not binding
on the panel. This loophole was recognized and pointed out in Uganda Law
Society & Jackson Karugaba v A.G Constitutional Petition No. 2 of 2002 & 8 of 2002,

where after considering the guarantees of independence of a Court under Art

20 128 of the Constitution, Twinomujuni JA had this to say about the GCM:

“My conclusion here is that military courts must be manned by soldiers.

Being appointed by the President to perform judicial functions is not of its
self-such a big deal as long as they are professionally trained to perform
such duties and they are accorded protections and privileges as all other
25 judicial officers in civilian courts to enable them perform their judicial
function independently and impartially.” (Emphasis added)

Mulenga JSC also noted in A.G v Uganda Law Society – Supreme Court Constitutional
Appeal No. 1 of 2006, as follows:

84
5 “There is no doubt that military courts are special courts. But they are all
the same, and in a court, justice must not only be done, but must be seen to
be done. The military criminal justice system like any other criminal justice
system is a legal system and should be entrusted to those who are learned
in the art of administration of criminal justice so that the job of adjudication
10 can be thoroughly administered … … In other words, the system needs those
who are first of all lawyers (learned and experienced in adjudication) before
they are service personnel”

He alluded to the options available; and cited some jurisdictions that use the
jury system, where adjudication is still controlled by a military judge who is
15 a lawyer while the jury consists of members of the armed force. The other,
was a system where the military may have a special commissioning of
magistrates and judges to do a proper job of administration of justice. In that
scenario, the Chief Justice allocates the judicial officers to the military
tribunals. Another option, is a system manned by military officers; but the
20 Judge advocate’s opinion on matters of law prevails, and is binding. Last, a
standing Court Martial, which is separate from the army and military
prosecuting arm, and is an integral part of the Judiciary, is another option.

In our jurisdiction, the absence of legally trained personnel in the exercise of

judicial power in the GCM and the other military Courts or tribunals, is at
25 variance with the situation obtaining in the civil Courts. This presents two
parallel and contrasting standards in the administration of justice. The civil
Courts are competent as they meet the standards laid down in the
Constitution; while the Courts martial function in sharp converse thereto, and
this is inimical to the right to a fair hearing before an independent and

85
5 impartial Court. Hence, it adversely discriminates against persons who
appear before the Courts martial. The consequence of this is that it renders
the functioning of the Courts Martial unconstitutional.

(b) Composition of the court by military personnel

Counsel for the Respondent argued that the composition of the court that
10 includes army personnel who are answerable to their superiors is a
derogation of the right to a fair hearing by in essence creating the appearance
of bias or objective partiality. As already noted, previously, military courts
were presided over by a judge advocate who was appointed by the Chief
Justice and consisted of not less than three officers of the armed forces. That
15 changed with the enactment of Statute No. 3 of 1992; and this was captured
in the 1995 Constitution.

This issue gives rise to two distinct questions. First, whether a parallel system
of military courts or tribunals, staffed by members of the military who are
aware of and sensitive to military concerns, by its very nature, inconsistent
20 with Art 28 (1) of the Constitution. Second, if the answer to the first question is
in the positive, whether that is the end of the matter. However, if it is in the
negative, then the next question is whether the General Court Martial, as
constituted at the time the Respondent was charged under the UPDF Act and
regulations made thereunder, is an independent tribunal for the purposes of
25 Art 28 (1). Various jurisdictions have taken different positions in this regard.
Some Commonwealth jurisdictions have found that having military officers or
a mixture of both civilians and members of the military exercising adjudicatory
role in a military Court does not contravene their Constitutions; but only if

86
5 there are sufficient safeguards in place that ensure the members of the Court
are independent and impartial.

In R v Genereux (supra), the Canadian Court held that the answer to the first
question is in the negative. In MacKay v The Queen [1980] 2 SCR 370 (supra),
Mackyntire J explained the advantages of having military personnel on the
10 Coram, thus:

“It is said that by the nature of his close association with the military
community and his identification with the military society, the officer is
unsuited to exercise this judicial office. It would be impossible to deny that
an officer is to some extent the representative of the class in the military
15 hierarchy from which he comes; he would be less than human if he were
not. But the same argument, with equal fairness, can be raised against those
who are appointed to judicial office in the civilian society. We are all
products of our separate backgrounds and we must all in the exercise of the
judicial office ensure that no injustice results from that fact. I am unable to
20 say that service officers, trained in the ways of service life and concerned
to maintain the required standards of efficiency and discipline – which
includes the welfare of their men – are less able to adjust their attitudes to
meet the duty of impartiality required of them in this task than are others.”

The Court denied that this difference created inequality when compared with
25 the civilian counterparts who appeared in ordinary Courts when it noted that:

“Furthermore, the problems and the needs of the armed services, being in
many respects special to the military, may well from time to time require
the special knowledge possessed by officers of experience who, in this

87
5 respect, may be better suited for the exercise of judicial duty in military
courts than their civilian counterparts. It has been recognized that wide
powers of discipline may be safely accorded in professional associations to
senior members of such professions. The controlling bodies of most
professions such as those of law, medicine, accountancy, engineering,
10 among others, are given this power. I am unable to say that the close
identification of such disciplinary bodies with the profession concerned,
taken with the seniority enjoyed by such officers within their professional
group, has ever been recognised as a disqualifying factor on grounds of bias
or otherwise. Rather it seems that the need for special knowledge and
15 experience in professional matters has been recognized as a reason for the
creation of disciplinary tribunals within the separate professions.

It must also be remembered that while this appeal concerned only the armed
services serving in Canada, the position of forces serving abroad not being
in issue, it must be recognized that in service abroad the officers must
20 assume the judicial role by reason of the absence of any civil legal processes.
The character of the officer for independence and impartiality will surely
not vary because he is serving overseas. The practical necessities of the
service require the performance of this function by officers of the service
and I find no offence to the Canadian Bill of Rights in this respect. I would
25 add that there now exists a Court Martial Appeal Court, a professional Court
of Appeal with a general appellate jurisdiction over the courts martial. This
is, in my view, a significant safeguard and its creation is a realistic and
practical step toward the provision of that protection which is required in
the circumstances.” (Emphasis added)

88
5 It is however vital to note that a decision in the Canadian Court system is
subject to supervision by a military Court staffed with civilian judges as
already pointed out. It is also important to note that there were two dissenting
voices in that appeal; to which I will advert. This reasoning was adopted by
the United Kingdom in R v Spear & Anor (supra) where, at para 57, Lord Roger
10 explained that:

“[A]rt 6 does not require that the members of the tribunal should not share
the values of the military community to which they belong any more than
it requires that the judge or members of the jury in a civil court should be
divorced from the values of the wider community of which they form part.
15 What matters is that, while sharing the values of the Service community, the
members of the court-martial should put aside any prejudices which they
may have and act – and be seen to act – independently and impartially in
deciding the issues in the case before them.”

In R v Genereux (supra), the Court noted that the special status of the military
20 allows for military personnel to sit in the military Courts. The Judge observed
as follows:

“This, in itself, is not sufficient to constitute a violation of s. 11(d) of

the Charter. In my opinion the Charter was not intended to undermine the
existence of self-disciplinary organizations such as, for example, the Canadian
25 Armed Forces and the Royal Canadian Mounted Police. The existence of a
parallel system of military law and tribunals, for the purpose of enforcing
discipline in the military, is deeply entrenched in our history and is supported
by the compelling principles discussed above. An accused's right to be tried by

89
5 an independent and impartial tribunal, guaranteed by s. 11(d) of the Charter,
must be interpreted in this context.

In this regard, I agree with the conclusion reached by James B. Fay in Part IV
of his considered study of Canadian military law ("Canadian Military Criminal
Law: An Examination of Military Justice" (1975), 23 Chitty's L.J. 228, at p. 248):

10 ‘In a military organization, such as the Canadian Forces, there cannot ever
be a truly independent military judiciary; the reason is that the military
officer must be involved in the administration of discipline at all levels. A
major strength of the present military judicial system rests in the use of
trained military officers, who are also legal officers, to sit on courts martial
15 in judicial roles. If this connection were to be severed, (and true
independence could only be achieved by such severance), the advantage of
independence of the judge that might thereby be achieved would be more
than offset by the disadvantage of the eventual loss by the judge of the
military knowledge and experience which today helps him to meet his
20 responsibilities effectively. Neither the Forces nor the accused would
benefit from such a separation.’”

However, the European Court has taken a strict approach in a recent case of
Mustafa v Bulgaria Request No. 1230/17, decided on 28th November, 2019, when it
rejected trial of civilians by military judges. In that case, civilian judges were
25 appointed to the military Courts where they were incorporated into the army
and assigned a rank. In holding that the judges in military Courts should be
civilians without any military ranks, the Court noted as follows:

90
5 “It is true that, with regard to the status of military judges, the Bulgarian
law provided for a regime very similar to that of the statute of civil judges
(see paragraphs 13 and 16 above). In addition, the same procedural rules
apply in cases examined by military courts and in those dealt with by
ordinary criminal courts. However, elements such as the submission of
10 military judges to military discipline, their formal membership in the
military body, as well as the status of military tribunal jurors, who are by
definition army officers, suggest that military courts in Bulgarian law
cannot be considered as equivalent to ordinary courts. The Court considers
that these characteristics of courts military personnel are likely to raise
15 certain doubts as to their independence and impartiality …”

The Court then concluded that there had been breach of the right to a fair
hearing; and held thus:

“49. In view of the aforementioned elements, examined in particular in the

light of the developments at the international level set out above (see
20 paragraphs 17-20 above), the Court considers that the doubts harbored by
the applicant as to the independence and impartiality of military courts may
be regarded as objectively justified (see, mutatis mutandis, Maszni, cited
above, § 59, Ergin, cited above, § 54, and Incal, cited above, § 72 in fine).
50. Accordingly, there has been a violation of Article 6 § 1 of the
25 Convention.”

The African Commission has taken a stance similar to the European Court.
The jurisprudence of the African Commission is clear that the Courts should
not be composed of active servicemen. In Law Office of Ghazi Suleiman v Sudan

91
5 (2003) AHRLR 134 (ACHPR 2003) (Law office case), where a military Court
established by a Presidential decree, comprising four members three of whom
were in active service, tried civilians. The contention was that the military
Court was neither independent nor impartial, as the members thereof had
been carefully chosen by the President. According to the Commission, at para
10 64, the composition of the military Court alone was evidence of partiality. It
held that trying civilians in military Courts presided over by active
servicemen still under military regulations violated the right to a fair trial
because the military Court was dominated by servicemen who were part and
parcel of the executive.

15 Similarly, in the case of Constitutional Rights Project in respect of Lekwot & Ors) v
Nigeria (2000) AHRLR 183 (ACHPR 195) para 14 (Lekwot case), the special tribunal
was composed of one judge and four members of the armed forces. The
Commission observed that the composition of the commission alone created,
“the appearance, if not actual lack, of impartiality.” The tribunal did not
20 appear to be impartial, as it was ‘composed of persons belonging to the
executive branch that passed the civil Disturbance Act’ in addition to the fact
that the three active servicemen remained subject to the military chain of
command; hence, it had violated the principle that provides for a fair trial
without actual or perceived bias. In Marcel Wetsh’okonda Koso & Ors v DRC (2008)
25 AHRL 93 (ACHPR 2008) (Koso case), civilians and soldiers accused of theft of fuel
were tried together in a military court. The African Commission held:

“85. Furthermore, in its ruling on the Media Rights Agenda v Nigeria case [(2000)
AHRLR 262 (ACHPR 2000) para 66], the Commission decided as follows: ‘It could

not be said that the trial and conviction of Malaolu by a special military

92
5 tribunal presided over by a serving military officer … took place under
conditions which genuinely afforded the full guarantees of fair hearing as
provided for in article 7 of the Charter.’”

This position is similar to that taken by Laskin CJ and Estey J in their

dissenting judgment in Mackay v The Queen (supra) cited above. This case was
10 in respect of trial of service men in the military Court, for civil offences. The
contention was that special treatment and special provision for the regulation
of the armed forces, in their character as such, represents a reasonable
classification, which so long as there is positive discrimination in the
regulation, may well be compatible with the Bill of Rights. Laskin CJ
15 understood the contention to be that in respect of s. 120 of the National
Defence Act, there was a clear departure from an internal military code by the
provision for prosecution of offences under the ordinary criminal law, by
military tribunals, but without putting the accused members of the armed
forces in the same position under that law as other members of the public
20 are, when similarly charged. He noted thus:

“It is fundamental that when a person, whatever his or her status or

occupation, is charged with an offence under the ordinary criminal law and
is to be tried under that law and in accordance with its prescriptions, he or
she is entitled to be tried before a court of justice, separate from the
25 prosecution and free from any suspicion of influence of or dependency on
others. There is nothing in such a case, where the person charged is in the
armed forces, that calls for any special skill of a superior officer, as would
be the case if a strictly service or discipline offence, relating to military
activity, was involved. There has therefore, been a breach of s. 2(f) of the

93
5 Bill of Rights in that the accused, charged with a criminal offence, was
entitled to be tried by an independent and impartial tribunal.” (emphasis
added)

At page 374, he went ahead to hold that the Appellant had not been treated
equally. He said:

10 “The appellant is also entitled to succeed on the ground that he was denied
equality before the law, contrary to s. 1(b) of the Bill of Rights. There cannot
be in this country two such disparate ways of trying offences against the
ordinary law, depending on whether the accused is a member of the armed
forces or not. In the Drybones case it was Indians and here it is members of
15 the armed forces who were under disabilities; treated differently, in short,
from other persons in respect of the application to them of the same law.
Section 120 of the National Defence Act must be held to be inoperative in so
far as it subjects members of the armed forces to a different and, indeed,
more onerous liability for a breach of ordinary law than are other persons
20 in Canada who are also governed by that law.”

I consider the stance by the African Commission and the dissenting opinion
of Laskin CJ to be in consonance with our Constitution and as a better way to
move away from our turbulent past as noted in our history earlier
enumerated. It is in line with Art 21 of our Constitution, which provides for
25 equality of all under the law.

I am bound to follow the route that will ensure an impartial and fair trial both
objectively and subjectively viewed by any reasonable person. Active service
men are under the chain of command and maybe influenced through the

94
5 chain of command. The law and history shows us how influential the chain
of command is on justice in military courts. See: R. Naluwairo (supra) on courts
martial during the government of Idi Amin. Furthermore, the oath taken by
the members of a military court under r. 27 of the UPDF (Rules of Procedure)
Regulations binds them to their chain of command. The oath of allegiance
10 taken by the military is in the 5th Schedule thereof; and provides for allegiance
to the President who is also a member of the High Command and convener of
the military Courts. It reads:

“I, ........................, Swear by the almighty God/do solemnly and sincerely

declare and affirm that I will be faithful to and bear true allegiance to the
15 President and the Republic of Uganda and that I will, as in duty bound, honestly
and faithfully defend him/her and the Constitution of the Republic of Uganda
against all enemies, and I will observe and obey all lawful orders of the officers
set over me. I promise to teach and uphold in all officers and militants that
may from time to time be placed under my command good discipline, bravery
20 and trust in the Country, so help me God.” (Emphasis added)

In stark contrast, the Judicial Oath in the Oaths Act Cap 19, which is taken by
a judge appointed to the civil Court reads as follows:

“I, ____________swear in the name of the Almighty God/solemnly affirm that I

will well and truly exercise the judicial functions entrusted to me and will do
25 right to all manner of people in accordance with the Constitution of the
Republic of Uganda as by law established and in accordance with the laws and
usage of the Republic of Uganda without fear or favour, affection or ill will.
(So help me God.)” (Emphasis added)

95
5 I find that the presence of military personnel as members of the Courts
martial is not, by itself, evidence of the Court’s lack of independence and
impartiality. However when viewed by an objective reasonable person, there
is a difference between active servicemen under the chain of command, and
former servicemen who are in retirement, or about to retire, and are therefore
10 not influenced by any hope of promotions. This is exacerbated by the lack of
provisions in the law, which would operate to reduce the pressure of outside
influence; and, as well, the lack of other safeguards, e.g. security of tenure
(see R v Spear; Findlay v United Kingdom; Morris v United Kingdom (supra). This, taken
together with the non-inclusion of a legally qualified judge on the panel to
15 rule on legal issues, denies the Courts martial the independence and
impartiality, which would have clothed them with competence.

There is a difference between a military Court presided over by a qualified

judge, with military officers akin to jurors or assessors, and one having only
military officers who are in active service, with no legal training whatsoever,
20 and are subject to the chain of command. I hold the view that the right to a
fair hearing applies to all persons without discrimination; hence, military
personnel in active service do not lose these rights merely by reason of
serving in the army. The military Courts or tribunals before which anyone
appears for trial must be independent and an impartial Court of law or
25 tribunal duly established to exercise judicial power in accordance with our
Constitution. The trial by military personnel gives a perception of bias or
partiality; especially due to the fear that the active service men or women
who are members of the GCM can be easily influenced by being subject to the
chain of command. Therefore, GCM and the other Courts martial in our
30 jurisdiction, in their current respective composition are evidently neither

96
5 independent nor impartial; hence, subjecting any person to trial by any of
them is unconstitutional.

(c) Manner of appointment of its members.

I have alluded to this in my analysis of the composition of the Court by

10 military personnel. JSC Twinomujuni JA held in Law Society & Jackson Karugaba
v A.G Constitutional Petition No. 2 of 2002 & 8 of 2002 that mere appointment of the
members of the Court by the High Command is not in itself sufficient to
deprive a Court of the requisite impartiality and independence that is an
imperative in its function. I reproduce what the learned Justice said:

15 “My conclusion here is that military courts must be manned by soldiers.

Being appointed by the President to perform judicial functions is not of its
self-such a big deal as long as they are professionally trained to perform
such duties and they are accorded protections and privileges as all other
judicial officers in civilian courts to enable them to perform their judicial
20 function independently and impartially.”

I agree with the learned Justice; but only in part. There is the military
personnel sitting on a tribunal that handles purely disciplinary matters, and
only imposes such punishment as reprimand, demotion, dismissal,
compensation, on the one hand, and military personnel sitting in a Court,
25 which has the competence to try persons for crimes, which attract such
penalties such as custodial sentence, or even the death sentence. I am of the
opinion that there is need to distinguish between the two in determining the
issues concerning the Courts martial. Appointment to the service disciplinary
organs, is normally limited to administrative matters, whereby the fact of the

97
5 presiding officers being subject to the chain of command does not occasion
any miscarriage of justice; unlike with the appointment to the Courts martial
handing substantive judicial matters where it could occasion injustice.

Second, the provisions for the appointment of personnel on the Courts

martial must be in conformity with the provisions for the appointment of
10 judicial officers in the civil Courts; and thereby avoid having two parallel
Court systems pursuing the same or similar subject matters. Third, the effect
of the appointment must be considered alongside other safeguards, such as
the term of office, and security of tenure. Admittedly, the President who is
the Commander in Chief appoints the judicial officers of the civil Courts.
15 However, these judicial officers do not take oath of allegiance to the
President; but to the Constitution. Furthermore, they are not bound to take
orders from the President. It is the safeguards provided for in Art. 128 (8) (1)-
(9) of the Constitution that insulates them from external influence or
consequences; thus guaranteeing their independence.

20 I would therefore hold that the appointment of an officer on the Courts

martial by the President or the High Command might not necessarily suffice
to deprive the Court of the requisite independence for the exercise of judicial
power. However, this must be taken together with the provisions for other
safeguards for the promotion and guarantee of the independence of the
25 Courts martial; and then determine the effect of such appointment on the
independence and impartiality of the members of the Court.

98
5 (d) Term of office (security of tenure)

This relates to the appointment of the members of the court including the
Judge Advocate. The appointment of members of the courts martial is by the
High Command and for a period of one year only though eligible for
reappointment. There are also ‘waiting members’ who are appointed and can
10 be called upon to sit in court as and when needed to realize Coram. See r. 21
& 23 of the UPDF Act (Rules of Procedure). This term of office is relatively
short and the members do not have protections of security of tenure available
to civil judges in Art 128. In R v Geneureux (supra), the considerations taken
into account in relation to a Judge Advocate who was appointed for a short
15 period only were examined. The Court noted:

“Unlike the situation of the ordinary courts, a judge advocate is appointed to

sit on a General Court Martial on an ad hoc basis. This temporary
appointment reflects the nature of the General Court Martial, which is
convened when necessary to deal with a breach of the Code of Service
20 Discipline. At the conclusion of this type of court martial, the judge advocate
and members return to their usual roles within the military. For the members
of the General Court Martial, this means a return to their regular duties as
officers. For the judge advocate, it means a return to legal duties within the
Office of the Judge Advocate General.”

25 The fact that a member of the Court is appointed only for a short period of
time, and on an ad hoc basis, means that such a person may have no cushion
against external influence by the one who appoints him or convenes the Court.
Indeed the Court went ahead in the R v Geneureux case (supra), to note as follows:

99
5 “It is my conclusion that this arrangement does not guarantee a judge
advocate sufficient security of tenure to satisfy the requirements of s. 11(d) of
the Charter. The National Defence Act and regulations fail to protect a judge
advocate against the discretionary or arbitrary interference of the
executive. The Judge Advocate General, who had the legal authority to
10 appoint a judge advocate at a General Court Martial, is not independent of
but is rather a part of the executive. Indeed, the Judge Advocate General
serves as the agent of the executive in supervising prosecutions.

Furthermore, under the regulations in force at the time of the appellant's trial,
15 the judge advocate was appointed solely on a case by case basis. As a result,
there was no objective guarantee that his or her career as military judge
would not be affected by decisions tending in favour of an accused rather
than the prosecution. A reasonable person might well have entertained an
apprehension that a legal officer's occupation as a military judge would be
20 affected by his or her performance in earlier cases. Nothing in what I have
said here should be taken to impugn the integrity of the judge advocate who
presided at the appellant's trial, nor to suggest that judge advocates in fact
are influenced by career concerns in the discharge of their adjudicative
duties.

25 The point is, however, that a reasonable person could well have entertained
the apprehension that the person chosen as judge advocate had been selected
because he or she had satisfied the interests of the executive, or at least has
not seriously disappointed the executive's expectations, in previous
proceedings. Any system of military tribunals which does not banish such
30 apprehensions will be defective in terms of s. 11(d). At the very least,

100
5 therefore, the essential condition of security of tenure, in this context, requires
security from interference by the executive for a fixed period of time. An
officer's position as military judge should not, during a certain period of time,
depend on the discretion of the executive.” (Emphasis added)

I find this proposition of the law quite persuasive; and therefore reach the
10 conclusion that the provisions of the law governing the Courts Martial do not
guarantee their independence or impartiality. This owes to the fact that the
members of the Court have only occasional short term of office, with no
security of tenure, and are appointed by senior military officers who, out of the
Court, are their direct supervisors; unlike what obtains in the civil Courts
15 presided over by civilian judges.

(e) Convening authority & prosecuting authority

The convening authority performs an important role in the Court Martial

judicial process, because the law grants it the dual role of the Court and that
of the DPP. Under the powers conferred on it by r.21 of the UPDF Regulations,
20 this authority, amongst other things, determines the charges to be preferred,
appoints the prosecutor, issues a convening order, determines the time of
trial, and procures attendance of the witnesses. The role that is performed by
the convenor, does not usurp the role that would otherwise be the purview of
the DPP; because, Article 120 (3) of the Constitution specifically provides that
25 the function of the DPP is to “institute criminal proceedings against any
person or authority in any Court with competent jurisdiction, other than a
Court martial.”

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5 In providing for a separate prosecuting body for the Courts martial, the
framers of the Constitution must have had in mind, the peculiar
circumstances of the military; necessitating the creation of a special
prosecuting body. Nonetheless, as has been held in other jurisdictions, in
criminal prosecutions it is an imperative that the convening authority lies
10 with Court; which enjoys guarantee of institutional independence from the
body prosecuting cases in Court. See: Colonel Thomas Allotey in: Comparative
Study: The Military Justice System In Ghana And The United States (Pretrial Through Post-
Trial): Need For Reforms In Ghana's Military Justice System, 2001, where the author
advances the proposition that:

15 “In the case of a court martial, a convening authority may exercise unlawful
influence through various ways including: selection of panel members;
comments or statements by the convening authority; and arbitrary
discharge of panel members. Post-trial comments by commanders or other
senior officers on how a particular case has been determined are likely to
20 impact on potential court members and defence witnesses.”

The Inspectorate of Government, just like the DPP, exercises prosecuting

powers in the civil Courts; but there is guarantee that in its prosecution of
crimes before the civil Courts, it does not usurp the convening powers that
vests in the Courts. This offers guarantee of the independence and
25 impartiality of the Courts in the conduct of trials.

However, with regard to the Courts Martial, the situation is wholly different.
The military appoints the convener of the Court from within its ranks; and
similarly does so, for the prosecutor of the Court. It also appoints officers
who are under its command to preside over the Court; but accords them no

102
5 security of tenure in the exercise of their function as members of the Court.
This situation does not portray or manifest an impartial and independent
Court. Lamer CJ noted in R v Geneureux case (supra), in respect to the convening
authority, as follows:

“I agree with the essence of Décary J.'s observations. An examination of the

10 legislation governing the General Court Martial reveals that military officers,
who are responsible to their superiors in the Department of Defence, are
intimately involved in the proceedings of the tribunal. This close involvement
is, in my opinion, inconsistent with s. 11(d) of the Charter. It undermines the
notion of institutional independence that was articulated by this Court
15 in Valente. The idea of a separate system of military tribunals obviously
requires substantial relations between the military hierarchy and the military
judicial system. The principle of institutional independence, however,
requires that the General Court Martial be free from external interference
with respect to matters that relate directly to the tribunal's judicial
20 function. It is important that military tribunals be as free as possible from
the interference of the members of the military hierarchy, that is, the persons
who are responsible for maintaining the discipline, efficiency and morale of
the Armed Forces.

In my opinion, certain characteristics of the General Court Martial system

25 would be very likely to cast into doubt the institutional independence of the
tribunal in the mind of a reasonable and informed person. First, the authority
that convenes the court martial (the "convening authority") may be the
Minister, the Chief of the Defence Staff, an officer commanding a command,
upon receipt of an application from a commanding officer, or another service

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5 authority appointed by the Minister (art. 111.05 Q.R. & O.). The convening
authority, an integral part of the military hierarchy and therefore of the
executive, decides when a General Court Martial shall take place.

The convening authority appoints the president and other members of the
10 General Court Martial and decides how many members there shall be in a
particular case. The convening authority, or an officer designated by the
convening authority, also appoints, with the concurrence of the Judge
Advocate General, the prosecutor (art. 111.23 Q.R. & O.). This fact further
undermines the institutional independence of the General Court Martial. It is
15 not acceptable, in my opinion, that the convening authority, i.e., the executive,
who is responsible for appointing the prosecutor, also have the authority to
appoint members of the court martial, who serve as the triers of fact. At a
minimum, I consider that where the same representative of the executive, the
"convening authority," appoints both the prosecutor and the triers of fact, the
20 requirements of s. 11(d) will not be met.”

The Court recommended that to avoid concentrating in the hands of the

military, the power to appoint the various persons who have roles in the
operation of the Court martial, the powers of the convening authority that
appoints officers of the Court, especially the judge advocate, should vest in the
25 Judiciary. This would ensure independence and impartiality of the Court
Martial. In this regard, the Judge stated thus:

“… To comply with s. 11(d) of the Charter, the appointment of a military

judge to sit as judge advocate at a particular General Court Martial should be
in the hands of an independent and impartial judicial officer. The effective

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5 appointment of the judge advocate by the executive could, in objective terms,
raise a reasonable apprehension as to the independence and impartiality of
the tribunal. However, as I have concluded above, I consider that the new arts.
4.09 and 111.22 of the amended Q.R. & O. have largely remedied this defect
to the extent required in the context of military tribunals.
10 ………
It is not necessary, under normal circumstances, to try alleged military
offenders before a tribunal in which the judge, the prosecutor, and the triers
of fact, are all chosen by the executive to serve at that particular trial. Nor
can it be said to be necessary that promotional opportunities, and hence the
15 financial prospects within the military establishment, for officers serving on
such tribunals should be capable of being affected by senior officers'
assessments of their performance in the course of the trial. I note again that
the amendments to the Q.R. & O. which came into affect after the appellant's
trial have alleviated this latter problem. However, this appeal falls to be
20 decided on the constitutionality of the structure of the General Court Martial
in place at the time of trial.

In short, the structure of the General Court Martial with which we are here
concerned incorporated features which, in the eyes of a reasonable person,
could call the independence and impartiality of the tribunal into question, and
25 are not necessary to attain either military discipline or military justice. This
structure, therefore cannot be said to have impaired the appellant's s. 11(d)
rights "as little as possible". The proportionality test prescribed in Oakes is
thus not satisfied.” (Emphasis added)

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5 In Morris v UK Application (supra), the Court also considered the position of
convening officer assumed by the General Officer Commanding to whom the
president and four members of the Court were ultimately answerable. They
were all, subordinate in rank to the Commanding officer; and served in units
stationed within the London Department. None of them had legal training.
10 The Applicant alleged he and been denied a fair hearing before an
independent and impartial tribunal on account of the structural defects in the
Court martial system. The Court agreed with him. See also: Findlay v UK
(supra).

I find the authorities I have cited herein above, quite persuasive in the
15 proposition of the law they have expounded. Since the military courts or
tribunals in this case are exercising judicial power, albeit specialized one,
they should conform to the basic character of the ordinary Courts in terms of
safeguards to independence and impartiality enumerated in Art 128. The
wide powers of the convening authority over members of the court for a
20 particular trial does not provide protection of the members of the military
court from outside influence. Currently, the wide powers of the convening
authority allows that authority to appoint members with no legal training,
and for short terms in office without security for tenure, and the appointment
of the prosecutor and judge advocate. Objectively viewed, it is evident that
25 the Court lacks independence; hence, it cannot be seen to be impartial.
Accordingly then, its constitution and exercise of judicial function is
unconstitutional, as it violates Art 28 (1) and 44 (c) of the Constitution.

106
5 (f) Existence of other guarantees against outside pressures (also objective
impartiality).

Most of the determinants of independence and impartiality of Courts have

been institutional. The other aspect of fair hearing is the legal procedure
available to a suspect who appears before the GCM. Procedures of fair trial
10 are to be observed by all Courts and tribunals that are an integral part of the
judicial system. Principle 5 of the UN Basic Principles on the Independence of the
Judiciary states in para 3 that everyone:

“… shall have the right to be tried by ordinary courts or tribunals using

established legal procedures” … … “tribunals that do not use the duly
15 established procedures of the legal process shall not be created to displace
the jurisdiction belonging to the ordinary courts or judicial tribunals.”

Para. 8 of the Basic Principles enjoins States that have military Courts or special
criminal tribunals for trying criminal offenders, to ensure that such Courts
or tribunals are an integral part of the general judicial system; and that such
20 Courts apply due procedures that are recognized according to international
law as guarantees of a fair trial, which includes the right to appeal against
conviction and sentence. In our jurisdiction, provision for fair legal process
is contained under Art. 28 of the Constitution; which I restate here below:

“28. Right to a fair hearing.

25 (1) In the determination of civil rights and obligations or any criminal
charge, a person shall be entitled to a fair, speedy and public hearing
before an independent and impartial court or tribunal established by
law.

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5 (2) Nothing in clause (1) of this article shall prevent the court or tribunal
from excluding the press or the public from all or any proceedings before
it for reasons of morality, public order or national security, as may be
necessary in a free and democratic society.
(3) Every person who is charged with a criminal offence shall—
10 (a) be presumed to be innocent until proved guilty or until that person
has pleaded guilty;
(b) be informed immediately, in a language that the person understands,
of the nature of the offence;
(c) be given adequate time and facilities for the preparation of his or her
15 defence;
(d) be permitted to appear before the court in person or, at that person’s
own expense, by a lawyer of his or her choice;
(e) in the case of any offence which carries a sentence of death or
imprisonment for life, be entitled to legal representation at the expense
20 of the State;
(f) be afforded, without payment by that person, the assistance of an
interpreter if that person cannot understand the language used at the
trial;
(g) be afforded facilities to examine witnesses and to obtain the
25 attendance of other witnesses before the court.
(4) Nothing done under the authority of any law shall be held to be
inconsistent with—
(a) clause (3)(a) of this article, to the extent that the law in question
imposes upon any person charged with a criminal offence, the burden of
30 proving particular facts;

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5 (b) clause (3)(g) of this article, to the extent that the law imposes
conditions that must be satisfied if witnesses called to testify on behalf
of an accused are to be paid their expenses out of public funds.
(5) Except with his or her consent, the trial of any person shall not take
place in the absence of that person unless the person so conducts himself
10 or herself as to render the continuance of the proceedings in the presence
of that person impracticable and the court makes an order for the person
to be removed and the trial to proceed in the absence of that person.
(6) A person tried for any criminal offence, or any person authorised by
him or her, shall, after the judgment in respect of that offence, be
15 entitled to a copy of the proceedings upon payment of a fee prescribed
by law.
(7) No person shall be charged with or convicted of a criminal offence
which is founded on an act or omission that did not at the time it took
place constitute a criminal offence.
20 (8) No penalty shall be imposed for a criminal offence that is severer in
degree or description than the maximum penalty that could have been
imposed for that offence at the time when it was committed.
(9) A person who shows that he or she has been tried by a competent
court for a criminal offence and convicted or acquitted of that offence
25 shall not again be tried for the offence or for any other criminal offence
of which he or she could have been convicted at the trial for that offence,
except upon the order of a superior court in the course of appeal or
review proceedings relating to the conviction or acquittal.
(10) No person shall be tried for a criminal offence if the person shows
30 that he or she has been pardoned in respect of that offence.

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5 (11) Where a person is being tried for a criminal offence, neither that
person nor the spouse of that person shall be compelled to give evidence
against that person.
(12) Except for contempt of court, no person shall be convicted of a
criminal offence unless the offence is defined and the penalty for it
10 prescribed by law.”

Other provisions for a fair trial are contained in other articles, and refer to
rights such as the right of appeal in capital cases, the right to be free from
torture during the trial process, among others; which is enjoyed by civilians
in ordinary trials. These provisions for fair trial apply, without exception, to
15 all institutions exercising judicial power. Thus, the GCM and other military
Courts are obliged to strictly adhere to them in the exercise of their judicial
function. This is in pursuit of the cardinal rule for non-derogation from the
right to a fair hearing and the requirement for equal treatment of all persons
who appear before the Courts and tribunals; and free from any discrimination
20 that is not sanctioned by the Constitution.

Non-adherence to a fair hearing has a double-edged effect. The obvious one

is the denial of an accused person the right to the due process. The other may
have an adverse effect on the public. Mulenga JSC pointed out in A.G v ULS
(supra) that:

25 “It is not only that breach of a fair hearing works injustice on the accused
person but some accused person may also escape punishment under the
guise that they were not given fair hearing. Now is the time to attend to the
military Court justice system and carry out a holistic reform therein.”

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5 Out of the minimum guarantees for a fair hearing in Article 28, I will only
consider a few. One of these is the right to adequate time and facilities for
the preparation of a defense and to be tried without undue delay. The other
is the foreclosure of the right of appeal.

Right to adequate time and facilities for the preparation of a defense and to be
10 tried without undue delay

It is clear from the Odoki Commission Report (supra) that informed the
promulgation of the 1995 Constitution that Ugandans expressed concern and
fears about military Courts; and reasons for this, included the denial of the
right to legal representation of one’s choice. This was captured in the Report,
15 at page 375, thus:

“Problems with the military courts.

14:85 Some people have expressed dissatisfaction and fears about the
military courts in their views submitted to the Commission. They observe
that although such courts have jurisdiction to hear capital offences and give
20 punishments ranging from caution (warning) to death, the accused is not
allowed legal representation of his or her own choice. It is normally the
military court that appoints a legal advocate to advise the accused during
trial. Such advocates are army members; civilian advocates are not allowed
in the military tribunals.” (Emphasis added)

25 The UPDF Regulations provide that a defending officer or advocate shall be

appointed to defend an accused who has been remanded for trial by court-
martial, unless the accused states in writing that he does not wish such an
appointment to be made; in which case, the accused will be allowed to

111
5 procure his own advocate and at his or her own expense. The provision at
first glance appears to go over and above what is required in criminal
proceeding sin civil courts, which only procure advocates for those facing
trial for offences attracting the death penalty or imprisonment for life.
According to a Report by the Human Rights Watch, “Righting Military injustice:
10 Addressing Uganda’s unlawful prosecution of civilians in Military Courts”, 27 th July 2011,
the situation is not as good as it seems:

“Although persons tried before military courts are legally entitled to be

represented by a UPDF lawyer, or at their own expense by another lawyer
of their choosing, the capacity to exercise the right to a defense is minimal.
15 The UPDF defense lawyer is an active member of the armed forces, who has
responsibility for all the files before a specific military court. Before they
appear in court to enter a plea, defendants are often not provided with
details of the charges against them, or information about the evidence
against them. Nor do they have the opportunity to discuss a defense with
20 their lawyer. Resources provided to mount a defense are minimal. Civilians
before courts martial are routinely denied bail, and often spend months,
even years, awaiting trial.”

They give an example of one instance out of their trial observation notes of
General Court Martial, June 29, 2010 “… here an accused inquired in open
25 court to at least know the name of his UPDF lawyer whom he had never met.
The judge advocate told the accused not to question the State.” This situation
ensues in addition to the fact that there is limited Judiciary oversight over
the activities of the Courts martial.

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5 The conclusion is that a fair trial under the GCM is not guaranteed under this
head since the procedure applied therein contravenes the provision of Art 28
of the 1995 Constitution on the minimum guarantees requisite for fair trial;
and there is limited avenue for complaint by accused, and limited civilian
court oversight over its activities.. Owing to this, the procedure of trial under
10 the GCM is unconstitutional flowing from the lack of the right of appeal to
civilian courts.

Foreclosure of the right of appeal

There is international consensus that military laws and other legislations

should never foreclose the right of appeal from decisions of military Courts.
15 Article 7 (1) (a) of the African charter provides that: ‘[e]very individual shall
have … (a) the right to appeal to competent national organs against acts of
violating his fundamental rights as recognized and guaranteed by
conventions, laws, regulations and customs in force.” (See: Media Rights Agenda
v Nigeria (2000) AHRLR 262 (ACHPR 2000) (herein otherwise referred to as Media
20 Rights Case), and Law Office of Ghazi Suleiman v Sudan (2003) AHRLR 134 (ACHPR
2003) (herein otherwise referred to as Law office case). A general foreclosure
of the right of appeal to ordinary Courts, inclusive of convictions for non-
capital offences, is by any legal standard unacceptable; and is, in our
jurisdiction, clearly unconstitutional.

25 In Canada, the Court Martial Appeal Court of Canada established under the
National Defence Act is manned by civilian judges. The civil Court of Appeal
of Canada also sits as the Canadian Military Court of Appeal, and is the final
Court of appeal in military matters. The decisions of the Court Martial Appeal

113
5 Court of Canada may be appealed to the Supreme Court of Canada from
conviction, acquittal or sentence, as of right, where a justice of the Court
Martial Appeal Court of Canada dissents on a question of law. Otherwise,
leave to appeal must be granted before one appeals. The guarantee for fair
trial here is that a person convicted by a military Court has access to a Court
10 manned by civilian or common law judges.

Second, when it comes to capital offences, the Constitution provides for the
right of appeal up to the highest Court of appeal. Questions as to what the
highest court of appeal in military matters was debated and was a concern in
before promulgation of the 1995 Constitution. The Odoki Commission Report
15 notes this as a concern of the people at p. 376:

“14:87 There is overwhelming support from those commenting on the issue

that in cases of capital offences the accused should have the right to appeal
not only to the court martial appeal court but also to the supreme court …”
14:90 Recommendation:
20 (a) Military courts and disciplinary tribunals should exist in army units
and security organs
(b) The field court martial should be abolished in order to give the
accused a fair and just trial by giving him or he time to prepare his
or her defence.
25 (c) All members of the army and the members of the military courts in
particular should be educated about military law and members of
military courts should receive introductory courses in administration
of justice before any court starts its duties.

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5 (d) Any soldier convicted of a capital offence should have the right to
appeal to the Supreme Court.”

Article 22 of the 1995 Constitution as amended provides:

“No person shall be deprived of life intentionally except in execution of a

sentence passed in a fair trial by a court of competent jurisdiction in respect
10 of a criminal offence under the laws of Uganda and the conviction and
sentence have been confirmed by the highest appellate court.”

The Constitution lists the Courts of record from the highest to the lowest;
with the highest appellate Court referred to in the Constitution being the
Supreme Court. There is no parallel judicial system with its own separate
15 highest appellate Court when it comes to capital offences; especially due to
the seriousness of the penalty, which involves the taking of life - the very
bedrock and building block of all other rights. For the pronouncement on the
application of the Constitution to the military courts in Uganda including the
Field Court Martial, see the case of ULS & Karugaba v A.G Constitutional Petitions
20 No. 02 0f 2002 and 08 of 2002.

In some countries such as Canada, the military Courts do not even have
jurisdiction over capital offences. Their broad criminal and military law
jurisdiction exists for alleged offences committed within Canada. However,
for the offences of murder, manslaughter, and abduction of a minor, if it is
25 alleged to have been committed in Canada by military personnel, then the
accused person must be tried in civil Courts.

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5 I have also already held that the military Courts are Courts of law. However,
they do not satisfy the requirements for Courts to handle capital cases,
moreover as final Courts. I will revert to this later. The right of appeal in
capital offences equally applies to civilians and persons subject to military
law. Accordingly then, denying persons subject to military law the right of
10 appeal infringes on their right to a fair hearing; and would thus be
unconstitutional.

It has recently been held by the Court of Appeal that the right of appeal to
the ordinary Courts from military Courts is unavailable since the UPDF Act
does not provide for it (See: PTE Muhumuza Zepha v Uganda Court Appeal Criminal
15 App. No. 31 of 2016 (supra) delivered in February 2020. The Court also noted
that:

“The expression “highest appellate court” does not necessarily mean the
Supreme Court of Uganda or the Court of Appeal of Uganda but the highest
appellate court prescribed by Parliament. For purposes of the Uganda
20 People’s Defence Forces Act, the highest appellate Court is the Court –
Martial Appeal Court unless otherwise prescribed by Parliament in future.”

I cannot agree with this construction given the clear provisions of Art 22 of
our Constitution, and the construction I have already given to it. Besides s.
6(1) of the Law Revision (Penalties In Criminal Matters) (Miscellaneous
25 Amendments) Act, 2021 provides as follows:

“Confirmation of a sentence of death. (1) Where court passes a death of death

on any person, the registrar of that court shall, where the convicted person
does not appeal the sentence within the prescribed time, transmit to the

116
5 Supreme Court a copy of the judgment and proceedings of that court within
thirty days after the conviction for confirmation.”

This provision should be read together with section 6 (7) and 6 (6) (a) of the
same Act, which grants the Supreme Court as the highest appellate Court in
the land a supervisory role over the death penalty. Section 6(7) provides “a
10 sentence of death imposed by a court of judicature or a court or tribunal
established under the U.P.D.F Act, 2005 shall only be carried out after it has
been confirmed by the highest appellate court and upon an order of the
President issued under subsection 6(a).” As a matter of interpretation,
‘Supreme Court’ in section 6(1) of the Law Revision (Criminal Penalties)
15 (supra) as opposed to ‘supreme court’ clearly refers to the one Supreme Court
of Uganda under the 1995 Constitution. The interpretation that ‘highest
appellate court’ does not refer to the Supreme Court limits the rights of
military personnel as compared to civilians in capital cases, in a way that is
not justified under Art 43.

20 In the case at hand the Respondent/Cross Appellant was charged in the GCM,
with offences that are all capital offences, for which, on conviction, a person
is liable to be sentenced to the penalty of death. There is currently no right
of appeal from the courts martial to the Supreme Court. Any law where there
is no provision for the right of appeal to the Supreme Court for a person who,
25 upon trial and conviction, is liable to suffer the penalty of death, is inimical
to the right to a fair hearing; hence, it contravenes Arts. 22 (1), 21, 28. and 44
of the Constitution.

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5 Conclusion.

Having regard to what I have discussed above on this issue in the light of the
rights to a fair trial enshrined in our Constitution, I find that the safeguards
for independence and impartiality of the military Court system in Uganda,
and their procedures for trial do not guarantee a fair trial. It is evident that
10 the GCM lacks the independence and impartiality required under the
Constitution for it to subject the Respondent to a fair trial. The misgivings of
the Respondent that the General Court Martial was not objectively
independent and impartial was justified. This situation is precisely what
Twinomujuni JA addressed in ULS & Karugaba v A.G (supra) when he stated thus:

15 “In my humble opinion, 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.”

Therefore, in the light of my finding that the GCM is not a fair and impartial
Court, the arraignment of the Respondent before the GCM, to face trial
20 therein, is unconstitutional as it contravenes Arts. 128, 28, and 44 (c) of the
Constitution. I am therefore in full concurrence with the Constitutional Court
in this regard; and accordingly, Ground 2 of the appeal fails.

The next two grounds concern the competence of military courts.

Competence is used in various contexts. According to Black’s Law Dictionary,
25 Bryan A. Garner, 8th Edition at p. 302, competence refers to “the capacity of an
official body to do something.” It is also defined as a “basic or minimal ability
to do something.” In terms of military courts, I will consider competence in
terms of their jurisdiction; which falls in two categories. First, which is

118
5 covered under Ground 3 of the appeal, and the cross appeal, is the personal
jurisdiction. This is with regard to the persons that can lawfully be tried by
these courts. Second, which is covered under Ground 4 of the appeal, is the
subject matter jurisdiction. This pertains to the offences triable by these
courts.

10 Ground 3, and the Cross-Appeal.

The issue touching on the competence of the GCM raised in Ground 3, the
cross appeal, and to some extent Grounds 1 and 4 of the appeal, pertains to
persons who can be lawfully arraigned and tried before the GCM or what I
15 also termed personal jurisdiction. This is pursuant to the wide jurisdiction
accorded the GCM, to try civilians both for military and civil offences;
whether as accomplices under the impugned s. 119 (1) (g) (now 117 (1)(g)) of
the UPDF Act, or as principals under s. 119 (1) (h) (now 117(1)(h)) of the Act,
for unlawful possession of the items specified therein. Both sections of the
20 Act derive legitimacy from the impugned sections 2 (now s. 1) and 179 (now
s.177) of the UPDF Act.

I have already found that the provisions for the Military Courts do not have
the requisite safeguards that would ensure fairness and impartiality in the
exercise of their judicial function. I should point out that even if they passed
25 the test for fairness and impartiality, it would still be incumbent on this Court
to determine whether, or not, it is constitutional to try civilians in the GCM
or other military courts/tribunals. The question whether or not civilians
should be triable in the military tribunals or ‘courts’ should be determined

119
5 both by the Constitutional provisions in that regard, and best practices
obtaining in a democratic society.

I will first set out the impugned provisions. Under the UPDF Act, only persons
subject to military law can be subjected to trial in a Court Martial for a service
offence. A service offence is defined in section 2 of the Act thus:

10 “service offence” means an offence under this Act or any other Act for the
time being in force, committed by a person while subject to military law;”

In A.G v Uganda Law Society (supra), Mulenga JSC authoritatively espoused the
position of the law regarding personal jurisdiction of the Court Martial, as
follows:

15 “I agree that the appellant’s contention is untenable. 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. In the instant case it was not alleged, let alone shown, that the accused
persons committed either of the two offences while they were subject to
20 military law. Without that link neither of the two offences can be called a
service offence within the meaning of the said definition.” (Emphasis added)

Persons subject to military law are listed under the impugned section 119 (1)
(g) & (h) (now 117 (1) (g) & (h) ) of the UPDF Act, as follows:

“119. Persons subject to military law.

25 (1) The following persons shall be subject to military law-
(a) every officer and militant of a Regular Force;

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5 (b) every officer and militant of the Reserve Forces and any
prescribed force when he or she is—
(i) undergoing drill or training whether in uniform or
not;
(ii) in uniform;
10 (iii) on duty;
(iv) on continuing full time military service;
(v) on active service;
(vi) in or on any vessel, vehicle or aircraft of the Defence
Forces or any defence establishment or work for
15 defence;
(vii) serving with any unit of a Regular Force; or
(viii) present, whether in uniform or not, at any drill or
training of a unit of the Defence Forces;
(c) subject to such exceptions, adaptations, and modifications
20 as the Defence Forces Council may by regulations, prescribe,
a person who under any arrangement is attached or
seconded as an officer or a militant to any Service or force
of the Defence Forces;
(d) every person, not otherwise subject to military law, who is
25 serving in the position of an officer or a militant of any force
raised and maintained outside Uganda and commanded by
an officer of the Defence Forces;
(e) every person, not otherwise subject to military law, who
voluntarily accompanies any unit or other element of the
30 Defence Forces which is on service in any place;

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5 (f) every person, not otherwise subject to military law, while
serving with the Defence Forces under an engagement by
which he or she has agreed to be subject to military law;
(g) every person, not otherwise subject to military law, who aids
or abets the commission of a service offence;
10 (h) every person found in unlawful possession of—
(i) arms, ammunition or equipment ordinarily being the
monopoly of the Defence Forces; or
(ii) other classified stores as prescribed. (Emphasis added)

Both paragraphs (g) and (h) of section 117 (1) of the Act are wide enough to
15 encompass civilians within its purview.

Section 117 (1) (h).

This provision does not provide for the penalty a person found in unlawful
possession of the items listed therein. However, section 179 (now s.177) of
the Act cures this by bringing the penalty provisions in other enactments into
20 application, by providing thus:

“179. Service trial of civil offences.

(1) A person subject to military law, who does or omits to do an act—
(a) in Uganda, which constitutes an offence under the Penal
Code Act or any other enactment;
25 (b) outside Uganda, which would constitute an offence under
the Penal Code Act or any other enactment if it had taken
place in Uganda, commits a service offence and is, on
conviction, liable to a punishment as prescribed in
subsection (2).

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5 (2) Where a military court convicts a person under subsection (1), the
military court shall impose a penalty in accordance with the
relevant enactment and may, in addition to that penalty, impose
the penalty of dismissal with disgrace from the Defence Forces or
any less punishment prescribed by this Act.”

10 With regard to the penalty for the offence of unlawful possession under
section 119 (1) (h),by virtue of s.179, reference can thus be made to the
penalty in the Firearms Act and the Penal Code Act, on unlawful possession
of firearms and government stores respectively. By virtue of the provision of
section 4 of the Firearms Act Cap 320, as amended, a civilian convicted of
15 unlawful possession of arms and equipment specified under s. 117 (1) (h) of
the UPDF Act is liable to 10 years imprisonment or to a fine not exceeding 60
currency points. Under section 296 of the Penal Code Act Cap 128, the offence
is a misdemeanor, which attracts a penalty of not more than 3 years
imprisonment. Section 117 (1) (h) of the UPDF Act is also operationalized by
20 the Uganda Peoples' Defence Forces (Arms, Ammunition And Equipment
Ordinarily The Monopoly of The Defence Forces) Regulations, No. 13, 2006,
which lists the arms and equipment s. 119 (1) (h) of the UPDF Act refers to.

Section 119(1) (g).

When section 119 (1) (g) of the Act is read together with sections 1 and 179
25 of the Act, they have the effect of providing that a civilian is liable, as an
accomplice to a person subject to military law; whether for an offence falling
both within and outside the UPDF Act. A key ingredient for the sustenance of
the charge against a suspect as an accomplice is the naming, in the charge
sheet, of a principal alleged to have committed the offence; which the person

123
5 charged together with the principal allegedly aided or abetted. This is clearly
what the ordinary meaning of the words used in the provision mean. I would
accordingly agree with the majority decision of the Constitutional Court that
in failing to name, in the charge sheet, the principal to whom the Respondent
was allegedly an accomplice, rendered his being charged before the Court
10 Martial under the provisions of the then s. 119 (1) (h) of the UPDF Act,
unlawful, for being defective. However, should it be determined that the
military court has no jurisdiction to determine matters involving civilians at
all, this finding will be of no effect.

It is important to note that hitherto, the issue of the lawfulness of trial of a

15 civilian in a Court Martial has not been directly considered in this Court.
Admittedly, a similar issue was raised in the Supreme Court case of Attorney
General vs ULS (supra); albeit that it was not argued. In that case, the charges
against the accused persons before the General Court Martial were, unlike the
instant one, not offences under the UPDF Act, but those incorporated from
20 other enactments pursuant to the provision of s. 179 of the UPDF Act 2005.
One of the offences was terrorism contrary to section 7(1) (b) and (2) (j) of the
Anti-Terrorism Act, 14, of 2002; while the other, which was in the alternative,
was the offence of “Unlawful Possession of Firearms contrary to section the
then 3 (1), and (2) of the Firearms Act. The Supreme Court noted that an issue
25 had been raised in that case in the Constitutional Court, in Constitutional Petition
No. 18 of 2005, thus:

“(4) Whether the joint trials of civilians and members of Defence Forces in
military court for offences under the UPDF Act is inconsistent with Articles
28 (1), 126 (1) and 210 of the Constitution”.

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5 However, that issue was abandoned in the Supreme Court. It has now
presented itself before this Court again, affording the Court the opportunity
to pronounce ourselves on the matter; and bring closure thereto.

Regarding the instant appeal before this Court, the divergence in opinion
within the Constitutional Court on the lawfulness of trial of civilians in the
10 Courts Martial, hinged on two decisions: Namugerwa Hadijah v The DPP & A.G
Supreme Court Civil Appeal No. 04 0f 2012 (The Namugerwa case) and 2nd Lt. Ambrose
Ogwang v Uganda Court of Appeal Criminal Appeal No. 107 of 2013 (The Lt. Ogwang
case). It is thus important to set them out here in more detail. The appeal in
the Namugerwa case originated from a habeas corpus application made by the
15 Appellant in the High Court for the release of her brother from detention. The
contention in the High Court was that the detainee was a civilian over whom
the General Court Martial had no jurisdiction; hence, he was being unlawfully
detained. The application and subsequent appeal to the Court of Appeal
failed; hence her appeal to the Supreme Court.

20 The Supreme Court found that a proper reading of s. 119 (1) (g) and (h), s. 179
(1) and s. 2 of the UPDF Act, showed that they do not exempt civilians from
trial in military Courts. The Court observed as follows:

“From the above cited provisions, it is clear to me that civilians in Uganda

can become subject to military law, and once they become subject to
25 military law they will be tried by the General Court Martial. I am unable to
see any exemption of civilians from the application of section 179 of the Act
once they become subject to military law under section 119 (1) (g) and (h)
of the UPDF Act.”

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5 The Court had however realized the troubling nature of the provisions of
sections 119 (1) (g) and (h) of the UPDF Act; which allow trial of civilians in
military Courts as accomplices, and for other civil offences under any
enactment. The Court felt obliged to apply the law as it is; but it noted as
follows:

10 “Ordinarily civilians who are not involved in fighting wars should be tried
by civilian courts, not military courts. Therefore, s. 119(1) (g) and (h) of the
UPDF Act is rather unusual. However, the constitutionality of this section
was upheld by the Constitutional Court in Uganda Law Society vs. Attorney
General (supra) and when its decision was appealed to this court the
15 constitutionality of the section was not raised and argued by the cross
appellant (Uganda Law Society), and so this court did not address.
Therefore, until section 119 (1) (g) and (h) of the UPDF Act is repealed or
declared to be unconstitutional by a competent court, it will remain valid,
effective and enforceable regardless of the misgivings of human rights
20 advocates about it.” (Emphasis added)

In the 2nd Lt Ogwang case, the Appellant was tried and convicted by Divisional
Court Martial, of murder; and was sentenced to suffer death. His appeal to
the GCM and to the Court Martial Appeal Court (CMAC) under the repealed
UPDF Act Cap 307, failed. He then appealed further to the Court of Appeal;
25 which held that the military Courts were not Courts as provided for under
Cap. 8 of the Constitution, but were tribunals otherwise known as quasi-
judicial bodies. The Court held that the Courts Martial were incompetent to
try civilians due to the fact that they are not clothed with the independence
or impartiality guaranteed under Art. 28 (1) of the Constitution. The Court

126
5 further held that quasi-judicial bodies must observe certain principles of law;
and must have limited jurisdiction, similar to that of the disciplinary courts
of the Police Force, and other bodies with such courts.

As I have already pointed out, I concur with Madrama Izama JCC in his
dissenting judgment in the constitutional petition that has given rise to the
10 instant appeal, that the cases of 2nd Lt Ogwang and Namugerwa Hadijah being
ordinary appeals, the decisions therein were not binding on the
Constitutional Court; hence, it is up to the Supreme Court to clarify on this
issue. Therefore, it means that 2nd Lt Ogwang was decided per incuriam. The
question in this issue is therefore whether, or not, in a typical progressive
15 democratic society, civilians may be tried in the military courts. In considering
the constitutionality of the impugned sections, 2, 179, and 119 (1) (h) & (g) as
revised, I will consider our international obligations under the International
Conventions, our Constitution, our history, international State practices, and the
purpose and effect test.

20 International jurisprudence & conventions

While there is no international treaty, to which Uganda is a party, which

contains an express provision prohibiting the trial of civilians by military
courts, there is nonetheless international consensus that the jurisdiction of
such courts needs to be restricted. Three reasons are discernible for this
25 proposition. First, is the general rule that it is ordinary courts that guarantee
a fair and impartial hearing that should have general jurisdiction over
civilians. Second, is that military discipline mostly concerns acts or
omissions of military personnel, which specialized military courts are set up

127
5 to handle. Third, is the complaints to international human rights bodies over
violation of the rights to a fair hearing in military courts or tribunals.

Ordinary courts guarantee a fair and impartial hearing.

There is global advocacy for civilians to be tried only in ordinary Courts. This
view is in line with the expert opinion of the United Nations (See: Human Rights
10 Report of the Working Group on Arbitrary Detention, 30th June 2014). On the
competence of military courts to try civilians, Principle No. 5 of the Decaux
Principles (supra) states as follows:

“Military courts must, as a matter of principle, be incompetent to try

civilians. In all circumstances, the State ensures that civilians accused of a
15 criminal offense, whatever its nature, are tried in civil courts."

At the sixty-eighth session of the UN General Assembly held on August 7,

2013, the Secretary-General of the United Nations transmitted to the
Assembly the report of the Special Rapporteur on the independence of judges
and lawyers for consideration. The relevant paragraphs of this report read as
20 follows:

“The Special Rapporteur wishes to stress that trying civilians before military
or special tribunals raises serious doubts as to the independence of the
judiciary declared by military tribunals and respect for the guarantees set
out in article 14 of the Covenant. It therefore considers that the competence
25 of military courts should be restricted to strictly military offenses committed
by members of the personnel of the armed forces. (...)
V. Conclusions (...)

128
5 It appears from the case law on military tribunals by the Committee on
human rights and international and regional human rights mechanisms
that the independence and impartiality of these courts, the trial of civilians
or soldiers accused of serious human rights violations and the guarantees
of a fair trial before these courts are a serious problem. (...)
10 100. All military tribunals must try only members of the armed forces
who have committed a military offense or a breach of military discipline.
101. The trial of civilians by military courts should be prohibited,
subject to the sole exception provided in paragraph 102 below. Any military
tribunal established on the territory of a State may in no case exercise its
15 jurisdiction over civilians accused of a criminal offense in that territory.”

This view is also similar to that of the European Court of Human Rights. See:
Mustafa v Bulgaria Request No. 1230/17, decided on 28th November, 2019. In Mustafa v
Bulgaria (supra) the European Court of Human Rights reasoned that:

“Situations in which a military tribunal exercises jurisdiction over a civilian

20 for acts directed against the armed forces may give rise to reasonable
doubts as to the objective impartiality of such a tribunal (Ergin, cited above,
§ 49). The Court considers that this is all the more so when it comes to
common law offenses, taking into account, in particular, the evolution of
the conception of the role of military tribunals at the international level …
25 A judicial system in which a military court is called upon to try a non-
military person can easily be seen as destroying the necessary distance
between the court and the parties to criminal proceedings, even if there are
measures of sufficient protection to guarantee the independence of this
jurisdiction (Ergin, cited above, § 49).

129
5 The Inter-American Commission on Human Rights (IACHR) is an autonomous
organ of the Organization of American States (OAS) whose mission is to
promote and protect human rights in the American hemisphere. It
investigates human rights violations, monitors the human rights situation in
member states, and advocates for the protection of human rights throughout
10 the region.

In its 1997 and 1998 reports, the IACHR noted that:

“Citizens must be judged pursuant to ordinary law and justice and by their
natural judges. Thus civilians should not be subject to Military tribunals.
Military justice has merely a disciplinary nature and can only be used to try
15 armed forces personnel in active service for misdemeanours or offences
pertaining to their function.”

See also: Annual Report of the Inter-American Commission on Human Rights - 1997.
Organization of American States document OEA/Ser.L/V/II.98, doc.6, 17 February 1998,
Chapter VII, Point 1; and Annual Report of the Inter American Commission on Human
20 Rights - 1998. Organization of American States document OEA/Ser.L/V/II. 102, doc. 6 rev.,
16 April 1999, Chapter VII. See also Cantoral Benavides v Peru - Judgment of 18th August
2000 Series C No. 69 para 112-113.

The IACHR restated this position in Castillo Petruzzi et al v Peru - Judgment of 30th
May 1999 Series C No. 52, para 128-130 that:

25 "[a] basic principle of the independence of the judiciary is that every person
has the right to be heard by regular courts, following procedures previously
established by law".

130
5 Citing the United Nations Basic Principles on the Independence of the
Judiciary, the Court said that:

"States are not to create '[tribunals that do not use the duly established
procedures of the legal process [...] to displace the jurisdiction belonging to
the ordinary courts or judicial tribunals."

10 See also: The Annual Report of the Inter-American Commission on Human Rights – 1996;
Organization of American States document OEA/Ser. L/V/II.95, doc. 7 rev., 14 March
1997, Chapter VII, that:

“Member states that have not already done so take the legislative and other
measures necessary, pursuant to Article 2 of the American Convention, to
15 ensure that civilians charged with criminal offences of any kind be tried by
ordinary courts which offer all the essential guarantees of independence
and impartiality, and that the jurisdiction of military tribunals be confined
to strictly military offences.”

The position of the Inter-American Commission of Human Rights (IACHR) is

20 similar to that of the African Commission. Some of the relevant principles
currently governing military trials within the African Region, which
discourage civilian trials in military courts, are:

(i) Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa.
25 (ii) Principles and Guidelines on Human and Peoples Rights While
Countering Terrorism in Africa.
(iii) Resolution on the Right to a Fair Trial and Legal Assistance in Africa.
(iv) Resolution on the Right to Recourse and Fair Trial.

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5 (v) Resolution on the Respect and Strengthening of the Independence of
The Judiciary.

In adopting the Dakar Declaration and Recommendations on the Right to a Fair Trial
in Africa, at its 26th ordinary session held in November 1999 in Kigali, Rwanda,
the African Commission stated that:

10 ‘[T]he purpose of military courts is to determine offences of a purely military

nature committed by military personnel … [They should not in any
circumstances whatsoever have jurisdiction over civilians.’

It has also stated this position in its Principles and Guidelines on the Right of a Fair
trial and Legal Assistance in Africa, adopted in 2003 and has maintained this
15 position in its individual communications, concluding observations, and
recommendations in periodic state reports. In the Media Rights Agenda v Nigeria
(2000) AHRLR 262 (ACHPR 2000), the Commission found that the arraignment,
trial and conviction of a civilian by a special military tribunal, presided over
by serving military officer, was a violation of Article 7 of the African Charter and
20 Principle 5 of the UN Basic Principles on independence of the Judiciary. Article 7
emphasizes the importance of fair trial guarantees, including the right to
appeal to ordinary courts of law, the presumption of innocence before a
competent court or tribunal, the right to legal representation, and the right
to a trial within a reasonable time by an impartial court or tribunal. See also:
25 Marcel Wetsh’okonda Koso & Ors v DRC (2008) (supra) and Media Rights Agenda v
Nigeria case [(2000) AHRLR 262 (ACHPR 2000); where the African Commission held
that the establishment of a military court whose jurisdiction extended to

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5 hearing of civil acts perpetrated by civilians, was a blatant violation of article
7 of the African Charter.

Purpose of creation.

Military courts or tribunals are created to deal with discipline and regulation
of the army. This rationale is well expressed in ‘R. Naluwairo, “Improving the
10 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’, at page 5, as follows:

“First, since the existence of military courts in many countries is largely

justified by the need to maintain military discipline, it makes sense to
15 restrict their jurisdiction to only acts and omissions and only committed by
those individuals whose acts and omissions can negatively impact 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.”

20 Evidence of violation

In many African countries, like in many other States, it has increasingly been
realized that many civilians have been tried by military courts that lack the
safeguards of independence and impartiality accorded ordinary Courts. Many
African states have previously had poor record with regard to the fairness,
25 independence, and impartiality of military courts. This has been captured in
R. 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, at page 44, where he points out
that:

133
5 “Almost all African countries have military courts alongside civilian or
ordinary courts. The main function of military courts is to administer justice
with respect to military personnel and other persons subject to military law.
This arrangement is mainly for the purposes of maintenance of military
discipline which is considered critical for military efficiency … The
10 administration of justice by military courts … in Africa raises many
concerns that can lead an informed and objective person to conclude that
what many of these courts actually do is to dispense ‘injustice’ rather than
‘justice’, as the case should be. The situation is mainly because military
courts in African countries do not adhere to internationally- accepted
15 principles for the administration of justice, which makes it easy for these
principles to be abused by the executive. For the most part, the … principles
are … what are comprised in the right to a fair trial. The right to a fair trial
is provided for in article 7 of the African Charter on Human and People’s
Rights and article 14 of the International Covenant on Civil and Political
20 Rights (ICCPR).”

Indeed an examination of the African Commission’s jurisprudence paints a

bleak picture of the lack of respect for human rights in the administration of
military justice. For this reason, the African Commission’s position over the
years has inched towards abolition of trial of civilians in military courts. R.
25 Naluwairo in his work: “Improving the administration of justice by military courts in
Africa …” (supra), at p. 58, has attempted to explain the reason for the
subsequent change in decision of the Commission as follows:

“A question may be posed at this point: Why did the African Commission
depart from its decision in the Civil Liberties case now rigidly to insist that

134
5 military courts should not have jurisdiction over civilians? 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
10 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
15 trial and other human rights is concerned.

As some of the cases analysed in the article have demonstrated, incidents of

violations of fair trial rights by military courts in African countries are
numerous. These range from staffing military courts with legally
incompetent serving military personnel; holding trials in camera; adjudging
20 accused persons guilty until proven otherwise; denying accused persons
their right to counsel of their choice; and foreclosing possibilities of appeal
from their decisions. In many cases the military courts also employ
arbitrary procedures. In some countries, such as Uganda, for instance
during Amin’s regime, military courts could even conduct trials in the
25 absence of accused persons, who would simply be informed of the court’s
decision and sentence. (Emphasis added)

It is clear that in international jurisprudence, even if the move is generally to

restrict civilian trial in military courts and tribunals, the practice oscillates
between complete abolition of civilian trial in military courts and trial of

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5 civilians only in a certain category of cases as an exception. These categories
include employees and dependants accompanying military personnel abroad,
among others. In the United States of America, that category has been further
limited in Reid v Covert, 354 U.S. 1 (1957); Kinsella v United States ex re. Singleton, 361
U.S 23 (1960); McElroy v Unites States ex rel. Guagliardo, consolidated with Wilson v
10 Bohlender, 361 U.S 281(1960); Grisham v Hagan 361 US 278 (1960) ; where the Court
held that employees and dependants cannot be tried in military courts for
both capital and non-capital offences.

Trial of civilians is sometimes permitted under International humanitarian

law, declaration of martial law in a State, and those civilians who are
15 assimilated in the military. The legal position in the United Kingdom is that a
category of assimilated civilians are liable to trial in the military courts.
Halsbury’s Laws of England (Volume 3, 2019) explains in para 203 as follows:

“The disciplinary provisions of these codes are largely contained in the

Armed Forces Act 2006, which provides a uniform service disciplinary code
20 for the Royal Navy, the Army, and the Royal Air Force. This code of discipline
for the armed forces is part of the ordinary law of the land, although it is
applicable only to persons expressly made subject to it, either as members
of the Royal Navy, the Army or the Royal Air Force, or as belonging to
certain specified categories of civilians associated with the armed forces. It
25 is not to be confused with what is called martial law, which comes into
operation only when a state of actual war, or of insurrection or rebellion
amounting to war, exists.”

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5 However, it should be remembered that in the UK, civilians can be tried in
military Courts. However, unlike in Uganda, they have safeguards within their
military structure since they have the courts martial, and the service civilian
court with the power to try civilians.

There has been a move to find a middle ground that justifiably limits the
10 category of civilians triable in military courts or tribunals. See: The Yale Draft
Principles for Governing Administration of Justice through Military Tribunals; and The
Human Rights Committee observed in paragraph 22 of its General Comment No. 32 that
the trial of civilians by military or special courts should be done only in
exceptional circumstances. Trials by military courts should be limited to
15 cases where the State party to the Covenant can demonstrate in concreto that
recourse to such courts is necessary and justified by “objective and serious
reasons” and only where, in relation to the specific class or category of
persons and offenses in question, ordinary civil courts are not in a position
to undertake such trials. It is therefore incumbent on the State party, which
20 seeks to try civilians before military courts to demonstrate, in relation to the
specific category of persons in question that:

(a) The ordinary courts are not competent to hear the case.
(b) Other alternative forms of special or high-security civilian courts are
inadequate for the task; hence, recourse to military courts is
25 unavoidable.
(c) Referral to military courts guarantees full respect for the rights of the
accused, as prescribed by article 14 of the Covenant.

137
5 Ugandan jurisprudence and the History of Uganda

Purpose and effect test

In the face of these divergent views, I find guidance in the principles of

constitutional interpretation, one of which is the purpose and effect of
creation of the military courts. The objective of any legislation has to be
10 unmistakably clear; and the statement of purpose should, to the extent
possible, be kept separate from the means adopted to achieve it (See R v
Moriarity [2015] 1 R.C.S 485 at 498). Court can examine the text, context and
scheme of legislation in order to infer its purpose.

The purpose and effect test in principles of Constitutional interpretation is

15 vital in determining the constitutionality of legislation. In The Queen v Big Drug
Mart Ltd (1996) LRC (C0nst.) 332, in expounding on the importance of both the
purpose and effect, Dickson J who delivered the judgment of the Court noted
thus:

“In my view, both purpose and effect are relevant in determining

20 constitutionality; either an unconstitutional purpose or an unconstitutional
effect can invalidate legislation. All legislation is animated by an object the
legislature intends to achieve. This object is realised through the impact
produced by the operation and application of the legislation. Purpose and
effect respectively, in the sense of the legislation's object and its ultimate
25 impact, are clearly linked, if not indivisible. Intended and actual effects
have often been looked to for guidance in assessing the legislation's object
and thus, its validity.”

He further explained:

138
5 “In short, I agree with the respondent that the legislation's purpose is the
initial test of constitutional validity and its effects are to be considered when
the law under review has passed or, at least, has purportedly passed the
purpose test. If the legislation fails the purpose test, there is no need to
consider further its effects, since it has already been demonstrated to be
10 invalid. Thus, if a law with a valid purpose interferes by its impact, with
rights or freedoms, a litigant could still argue the effects of the legislation
as a means to defeat its applicability and possibly its validity. In short, the
effects test will only be necessary to defeat legislation with a valid purpose;
effects can never be relied upon to save legislation with an invalid purpose.”

15 The purpose of the military courts provided for under the Constitution and
the UPDF Act, as is discernible from the several decisions, principles and
recommendations, I have cited or referred to above, is to promote and ensure
discipline in the military. Courts martial, or tribunals, are specialized courts
meant to serve the functions provided for in Art. 209 of the Constitution; for
20 which they require the highest form of discipline. This is abundantly clear
from the powers conferred on Parliament under Art. 210 of the Constitution
to create organs of the UPDF that would promote the intended discipline.
Therefore, with regard to the military, as can be seen from their structure,
rules and procedures, conducting trial of civilians generally does not fit
25 within their mandate.

The current effect of trial of civilians in the military courts for criminal
offences is that they will not partake in the rights enjoyed by their civilian
counterparts who appear in the civilian Courts for the same offences. This
includes the right to a fair hearing discussed in the resolution of ground 2

139
5 under Art 28 (1) and as provided in the International Covenants discussed
above. Worse still, such persons can face trial for offences whose trial are
within the purview of the ordinary Courts; with the military courts having the
right to impose the death penalty, and yet the law as it stands does not avail
the convict the right to appeal to the Supreme Court. Is this limitation on
10 their rights to appear before a civilian Court justifiable under Article 43 of
this Constitution?

Article 43 provides that certain rights can be restricted in the public interest
as justified in a democratic society. It states thus:

“43. General limitation on fundamental and other human rights and freedoms.
15 (1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no
person shall prejudice the fundamental or other human rights and freedoms
of others or the public interest.
(2) Public interest under this article shall not permit—
(a) political persecution;
20 (b) detention without trial;
(c) any limitation of the enjoyment of the rights and freedoms prescribed
by this Chapter beyond what is acceptable and demonstrably justifiable in a
free and democratic society, or what is provided in this Constitution.”

The yardstick is that the limitation must be acceptable and demonstrably

25 justifiable in a free and democratic society. See: Charles Onyango Obbo & Anor.
vs Attorney General – Supreme Court Constitutional Appeal 2 of 2002. Therein Mulenga
JSC observed:

“… [by] virtue of the provision in clause (1), the constitutional protection of

140
5 one’s enjoyment of rights and freedoms does not extend to two scenarios,
namely: (a) where the exercise of one’s right or freedom “prejudices” the
human right of another person; and (b) where such exercise “prejudice” the
public interest. It follows therefore, that subject to clause (2), any law that
derogates from any human right in order to prevent prejudice to the rights or
10 freedoms of others or the public interest, is not inconsistent with the
Constitution. However, the limitation provided for in clause (1) is qualified by
clause (2), which in effect introduces “a limitation upon the limitation”. It is
apparent from the wording of clause (2) that the framers of the Constitution
were concerned about a probable danger of misuse or abuse of the provision
15 in clause (1) under the guise of defence of public interest.

For avoidance of that danger, they enacted clause (2), which expressly prohibit
the use of political persecution and detention without trial, as means of
preventing, or measures to remove, prejudice to the public interest. In
addition, they provided in that clause a yardstick, by which to gauge any
20 limitation imposed on the rights in defence of public interest. The yardstick is
that the limitation must be acceptable and demonstrably justifiable in a free
and democratic society. This is what I have referred to as “a limitation upon
the limitation”. The limitation on the enjoyment of a protected [right] in
defence of public interest is in turn limited to the measure of that yardstick. In
25 other words, such limitation, however otherwise rationalised, is not valid
unless its restriction on a protected right is acceptable and demonstrably
justifiable in a free and democratic society.”

This case, therefore, brings out the point we know that the curtailment of the
enjoyment of fundamental and other human rights and freedoms by Art 43

141
5 (1) of the Constitution is not without limitation. Its application is itself
fettered by being limited to what is acceptable in a free and democratic
society. According to Note 7 (supra) in a report prepared by the Special
Rapporteur on the independence of judges and lawyers for consideration at
its sixty-eighth session, it was emphasized that:

10 “103. The burden of proving the existence of these exceptional

circumstances lies with the State, these circumstances having to be
established on a case-by-case basis, since it is not sufficient to refer certain
categories of offenses to military courts by law in abstract.”

It is therefore incumbent on the Appellant to demonstrate that the trial of

15 civilians by the military courts is connected to the purpose in Articles 209
and 210 of the Constitution in a way that is justifiable under Art 43 of the
Constitution.

I take cognizance of the crucial need for military courts for the maintenance
of discipline in the military; which thereby ensures the defence of, and
20 security in, Uganda. I also take note of the fact that that there may be need to
extend jurisdiction of the military courts to cover civilians who fall within
the few exceptions in the application of the law as it obtains in other
jurisdictions. However, extending the jurisdiction of the military courts to
cover civilians in a blanket manner, whether they are alleged to be
25 accomplices or alleged to have been found in possession of military store, is
unacceptable. This is because it would turn out to be an unfettered limitation
on the enjoyments of the rights and freedoms enshrined in Article 43 of the
Constitution; which would therefore negate the letter and spirit of the

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5 restraint imposed on the enjoyment the enjoyments of the rights and
freedoms enshrined in Article 43 of the Constitution.

The general rule is that ordinary Courts alone have jurisdiction to try
civilians. I am unable to find any rational or justifiable link between the need
to maintain discipline in the army or the maintenance of security of the
10 Ugandan borders, and trial of civilians in the military tribunals generally. This
position is bolstered further in the light of my findings that trials in the
courts martial are devoid of independence, fairness, and impartiality in the
conduct of proceedings therein, and the reasons given by the various
Commissions referred to that discourage trials of civilians by military courts.

15 The account in the Odoki Commission Report (supra) of the history of military
trials in Uganda is not any better compared to the observations of the African
Commission. That Report succinctly noted at page 376 that:

“14:87… It is also alleged that military courts tend to be more harsh with
soldiers than ordinary courts are in dealing with civilians. While a soldier
20 and civilian may commit the same criminal offence e.g armed robbery, the
soldier will usually be heavily punished while the civilian will often receive
a lighter sentence. There is even a suggestion that civilian courts are more
careful in dealing with evidence and in considering technicalities so that
more defendants are acquitted for lack of evidence. To some people, there
25 are double standards involved. They suggest that where an offence involves
both a civilian and a soldier, both defendants should be tried under the
same law an in the same court. A soldier could thus be tried in either the

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5 ordinary court or the court martial depending on whether a civilian co-
defendant is involved.”

At page 375, under the heading ‘military courts’ the Report does not indicate
that the members of the Odoki Commission exhaustively discussed or gave
much thought to the issue of trial of civilians. However even then, it is clear
10 that at that time, only a limited category of civilians working closely with the
military were triable in the military courts. The Report continues:

“14.82 In most countries, special courts deal with disciplinary and other
offences occurring among members of military forces. Uganda follows this
pattern, and the NRA Statute (Statute No. 3 of 1992) provides for military
15 courts that have jurisdiction to deal with a range of matters concerning not
only members of the army but also civilians working closely with or
entrusted with the secrets of the army. The statute stipulates the
composition and responsibilities of military courts at different levels of the
army.” (emphasis added)

20 It is apparent that the provisions of the UPDF Act, constitute a departure from
the previous position where civilians were generally not triable before the
courts martial. It is also worth noting at this point that Uganda has been on
the watch list of the African Commission for trial of civilians.

The African Commission had long condemned the trial of civilians in Uganda.
25 See: The African Commission Concluding Observations and Recommendations on
Uganda’s third periodic report, 2009; where the Commission noted with concern
that Uganda had not introduced measures to limit the many categories of
civilians triable in its military courts and tribunals to what is acceptable in

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5 international human rights law; which was contrary to what the Commission
had recommended in 2006.

I am fortified in my view because the offences we are concerned with here

are among those that could be classified as ‘political offences’ where the State
has a special interest since the charge against the accused person is that he
10 sought to overthrow the lawful government of Uganda. This has been
recognized in the treason trial of Castillo Petruzzi et al v Peru Judgment of 30th May
1999 Series C No. 52, para 128-130, where the IACHR held unequivocally as
follows:

"[I]n the case under study, the armed forces, fully engaged in the counter-
15 insurgency struggle, are also prosecuting persons associated with
insurgency groups. This considerably weakens the impartiality that every
judge must have …"

Even in the Ugandan setting, the Odoki Commission Report documents people’s
concerns over the military’s involvement in the political persecution of
20 civilians. It noted as follows:

“Politically sensitive offences

14.40 Although the army should not be a political actor, it should be
politically educated and sensitive. People’s views agreed that the army has
25 often been manipulated by major political actors. A politically aware army
would be more conscious of the dangers of such manipulation happening in
the future.
14.39 The people want the army to be the servant of the people. Hence, it
must always be firmly under the direction of the people’s representatives,

145
5 namely the elected civilian authorities. It should never seek to usurp that
authority or to become actively involved as a major political force.”

The result of my finding is that in a case where a civilian and military

personnel have committed a crime, both should be tried in the civil courts.
This position was also recommended In Mustafa v Bulgaria Application 1230/17
10 delivered on 28th November 2019, the Applicant was charged with organizing and
leading a criminal group with the aim of obtaining financial advantages as
well as illicit cross border trafficking of goods and objects of great value for
commercial purposes. Owing to the fact that one of the presumed members
of the group had been a member of the armed forces at the time, all the
15 members of the group were subjected to trial by a military court. The relevant
provision of the Bulgarian 2006 Code of Criminal Procedure (ccp) provided as
follows:

“1. The military courts are competent to hear offences committed by:
(1) Soldiers (…)
20 (2) Military Courts are also competent to hear (…) cases offences
committed jointly by military personnel and civilians.”

The Applicant maintained that his appearance, as a civilian, before courts

composed exclusively of military personnel, in itself constituted a violation
of Article 6 § 1 of the Convention, the relevant parts wherefore, in the
25 circumstance of the instant appeal before this Court, read as follows:

"Everyone has the right to have their case heard fairly (...) by an independent
and impartial tribunal, established by law, which will decide (...) on the merits
of any criminal charges brought against them." The Court said:

146
5 ““32. The Court observes that it cannot be argued that the Convention
absolutely excludes any jurisdiction of military courts to hear cases
involving civilians. However, it considers that the existence of such a
competence should be examined in particular.”
………
10 47. The Court accepts that the considerations relating to the connection
between offenses and aiding and abetting militates in favor of the trial of
all the accused by the same court. However, the need to have the case tried
by a military tribunal cannot be taken as absolute. Indeed, in some cases, it
could be considered to try all the accused by a civil court. Consequently, the
15 Court cannot agree with the argument put forward by the Government that
these considerations are in themselves sufficient to constitute in the present
case “compelling reasons” justifying the judgment of a civilian by a military
criminal court ... … …

Coincidentally, this position is in congruence with the popular views

20 expressed by the people of Uganda during the process that preceded the
framing and promulgation of the 1995 Constitution. The Odoki Commission
Report (supra) states at page 376 thereof that:

“14:87 … They suggest that where an offence involves both a civilian and a
soldier, both defendants should be tried under the same law an in the same
25 court. A soldier could thus be tried in either the ordinary court or the court
martial depending on whether a civilian co-defendant is involved.”

The special place occupied by the army in the constitutional organization of

democratic states must be limited to the domain of national security; with

147
5 the judiciary, in principle, falling within the domain of civil society. With the
existence of special rules governing the internal organization and hierarchical
structure of the armed forces, the power of military criminal justice should
extend to civilians only where there are compelling reasons justifying such a
situation, based on a clear and predictable legal basis. The existence of such
10 reasons justifying the extension of trials in military courts to civilians must
in each case, be demonstrated to be concrete.

There is danger in attribution, in the abstract, of certain categories of

offenses to the military courts by the national legislation (See para 46 of
Mustafa v Bulgaria (supra); because such an attribution could place the affected
15 civilians in a position markedly different from that of citizens tried by
ordinary Courts. Although military courts could respect Convention
standards to the same extent as ordinary courts, the differences in treatment
relating to the nature and purpose of such courts can give rise to the problem
of inequality before the courts; which should, as much as possible, be
20 avoided.

From the peculiar facts of the instant case, as is discernible from the record
of appeal, it is clear that:

(i) There were no exceptional conditions recognized, such as those

provided for under international humanitarian law.
25 (ii) The ordinary Courts were not shown to be incapable of trying these
offences.

148
5 (iii) There was no assessment of the individual circumstances apart from
the fact that one of the accused was military personnel at the
material time.
(iv) There was no claim that the Respondent was assimilated in the army
or in active service;
10 (v) There are in existence other special or high-security civilian courts
such as the High Court with jurisdiction to try such offences as those
falling under the Anti-Terrorism Act, which have the competence to
try the Respondent; hence, even if such trial were permissible with
some limitation, the circumstance of this case did not warrant
15 recourse to military courts.

In conclusion, the provisions for the blanket trial of civilians in the military
courts either as principals in s. 117 (1) (h) or as accomplices in s. 117 (1) (g)
does not satisfy the limitation requirements of Article 41 of the Constitution.
They are unconstitutional. Likewise, the act of the trial of civilians in the
20 civilian Courts under those provisions is unconstitutional. Civilians include
retired military service men. Ground 3 of the appeal would fail; while the
cross appeal succeeds.

Before I take leave of this matter, I would like to comment on and discount
some arguments or rationale raised and advanced for the grant of jurisdiction
25 to military courts over civilians to try some serious offences. One of these is
that military courts are more efficient in determining cases and these could
be very important to the security of the country. Indeed, Counsel for the
Appellant urged this Court to be mindful and consider the need to firmly deal
with such acts in the military courts, when they happen. This seems to

149
5 indicate that the military courts are more efficient in doing so. This argument
is not sound. The State can establish lawful special military courts within the
framework of the Constitution with the necessary minimum guarantees and
resources necessary to undertake those judicial duties. Further, the State also
has a duty to strengthen the ordinary Courts and thus empower them to
10 function at an optimal capacity.

Grounds 1 and 4: Jurisdiction over subject matter.

The impugned sections of the UPDF Act under Grounds 1 and 4 of the appeal,
are: s.2 (now s. 1), s.179 (now s.177), and s.119 (1) (h) (now s.117 (1) (h)). The
Appellant vehemently defends and justifies the competence of military
15 courts to try offences under all enactments. The majority decision of the
Constitutional Court from which this appeal arises is that Courts martial are
only competent to handle those disciplinary offences under Part VI of the
UPDF Act; as they are offences concerning the maintenance of discipline in
the military. This was also their decision in the more recent case of Rtd. Cpt.
20 Amon Byarugaba & 3 Ors v A.G Const. Petition No. 44 of 2015, which is pending before
this Court on appeal; and which Counsel for the Respondent/Cross Appellant
urged this Court to consider. This Court’s decision in this appeal therefore
has a direct effect thereon.

I notice that the terms ‘military offence’, ‘disciplinary offence’ or ‘service

25 offence’ are used in some texts to refer to military disciplinary offences
within the military court or tribunal system. In this judgment, I use these
terms interchangeably to refer to those offences listed under Part VI of the
UPDF Act. Section 2 (now s.1) of the UPDF Act defines a ‘service offence’ to

150
5 mean:“… an offence under this Act or any other Act for the time being in force,
committed by a person while subject to military law.” (Emphasis added)

Section s. 119(1)(h) (now s.117 (1)(h)), provides for the offence of unlawful
possession of arms, ammunition, or equipment, ordinarily being the
monopoly of the Defence Forces, or other classified stores, as may be
10 prescribed. The penalty for this offence is not provided for within that
section but in s.179 (now s.177) which allows the military court to impose
any penalty provided for under any other enactment; in this case the Penal
Code Act and the Firearms Act. Section 2 (now s.1), together with s.179 and
s.119(1)(h) (now s.177 and 117 (1)(h) respectively) of the UPDF Act are the
15 basis for concurrent jurisdiction of the military and civilian courts in criminal
offences. I need to draw attention to the provision of section 204 of the UPDF
Act; which provides as follows:

“204. Jurisdiction of civil court

Nothing in this Act shall affect the jurisdiction of any civil court to try a person
20 for an offence triable by that court.”

Notwithstanding that section 204 of the UPDF Act does not exclude the
jurisdiction of the civil Courts, there are no objective criteria for determining
which of the two Courts should try a person for an offence where Courts
Martial and civil Courts have concurrent jurisdiction. The practice that has
25 been demonstrated in Uganda, is that the military establishment prefers to
try both the military personnel and non-military persons in military courts,
even if the offence they are accused of is only remotely related to matters of
the military. Even without going into the question of the competence of the

151
5 military courts, this selective lopsided choice of the court that should
exercise jurisdiction, naturally gives rise to justifiable discontent and
challenge.

The Appellant indeed recognizes that the provisions are wide and renders
nearly every offence subject to prosecution within the military justice
10 system. Indeed, by virtue of the impugned sections, they include all criminal
offences. Thus, it is apparent that ‘Service offence’ under the UPDF Act is
wider than the disciplinary offences provided for under part VI of the UPDF
Act. This jurisdiction extends to cases reserved for specialized Courts, such
as the Anti-corruption Court under the Anti-corruption Act, International
15 Crimes Division under the Anti-Terrorism Act; and as well jurisdiction over
disciplinary offences under the UPDF Act that duplicate offences falling under
these Acts. The expansive scope of jurisdiction of the Courts Martial under
the impugned provisions was disapproved of by the Constitutional Court in
2nd Lt Ambrose Ogwang v Uganda - Court of Appeal Criminal Appeal No. 107 of 2013 (Lt
20 Ogwang case) where the Court stated that:

“The effect of s. 179 is to turn all criminal offences into service offences for
persons subject to military law. The section grants jurisdiction to military
courts to try all civil offences under any law rather than creating military
offences.”

25 The question here, for consideration, is the constitutionality of this

provision, in the light of Arts. 28 (1) and 44 (c) of the Constitution, which the
Respondent contends requires trial of criminal offences in ordinary Courts
before civil judges. Article 28 provides:

152
5 “28. Right to a fair hearing.
(1) In the determination of civil rights and obligations, or any criminal
charge, a person shall be entitled to a fair, speedy and public hearing
before an independent and impartial court or tribunal established by
law.”

10 Article 44 provides thus:

“44. Prohibition of derogation from particular human rights and freedoms.

Notwithstanding anything in this Constitution, there shall be no
derogation from the enjoyment of the following rights and freedoms-
………
15 (a) the right to a fair hearing;”

The argument of Counsel for the Respondent on the provision of the UPDF
Act regarding this issue is in accord with the arguments in Ground 2 of this
appeal, that these provisions bring civilians within the purview of military
courts in usurpation of the powers granted to the judiciary by the
20 Constitution. Having found that the Courts martial should not generally try
civilians, I would narrow the issue at hand thus:

‘Should military officers be tried in the Courts martial for all civil offences
in addition to disciplinary offences?’ Does their trial in the Courts Martial
for civil offences contravene Arts. 28 (1) and 44 (c) of the Constitution?

25 Article 28(1) of the Constitution does not expressly bar trials of military
personnel in a specialized military court, which meet the criteria discussed
in ground 2. This is because judicial power can properly be given to
specialised courts. However, I have already determined that every person has

153
5 a right to appear before the ordinary or civil Courts in criminal as opposed to
purely disciplinary offences. Judicial power generally has been given to the
Judiciary under Art 126(1). Only exceptionally are they granted to the military
courts. Does that exception include trial of military personnel for crimes
under other enactments?

10 I find the answer to this narrower issue in the determination of the purpose
and effect of the impugned provisions. Counsel for the Appellant, contending
that the continued trial by the GCM of both criminal and civil offences is
Constitutional, argues that these sections are necessary and serve the
purpose of maintaining discipline in the army by quickly dealing with any
15 indiscipline arising within the UPDF irrespective of the Act where the offence
is prescribed or offence committed. For convenience, I will restate the
provisions of the Constitution and UPDF Act that provide for the objective of
the impugned sections. Article 209 provides for the function of the UPDF,
thus:

20 “209. Functions of the defence forces.

The functions of the Uganda Peoples’ Defence Forces are—
(a) to preserve and defend the sovereignty and territorial integrity of
Uganda;
(b) to cooperate with the civilian authority in emergency situations
25 and in cases of natural disasters;
(c) to foster harmony and understanding between the defence forces
and civilians; and
(d) to engage in productive activities for the development of Uganda.

The long title of the UPDF Act states that it is:

154
5 “An Act to provide for the regulation of the Uganda Peoples’ Defence Forces in accordance
with article 210 of the Constitution, to repeal and replace the Armed Forces Pensions Act
and the Uganda Peoples’ Defence Forces Act, and for other related matters.”

Article 210 of the Constitution confers on Parliament the authority to enact

laws regulating the UPDF, as follows:

10 “210. Parliament to regulate the Uganda Peoples’ Defence Forces.

Parliament shall make laws regulating the Uganda Peoples’ Defence Forces
and, in particular, providing for—
(a) the organs and structures of the Uganda Peoples’ Defence Forces;
(b) recruitment, appointment, promotion, discipline and removal of
15 members of the Uganda Peoples’ Defence Forces…” (Emphasis added)

The importance of a disciplined army as a vital requirement was recognised

at p.374 of the Odoki Commission Report (supra) thus:

“Discipline and control.

14.79 An army should be a disciplined body. It requires mechanisms for
20 control on the use of arms and to enforce discipline and accountability
within the institution. As already discussed, people have expressed deep
concern about lack of discipline in the army over the last 25 years. The
Armed Forces Act of 1964 which was supposed to regulate the discipline
of the army was almost of no effect.
25 ………

But what is most important is to have a disciplined force because even if

barracks are moved into the country side, if they are undisciplined the
soldiers will inconvenience the people they find there. The important

155
5 thing is to educate ordinary soldiers about their role to ensure that they
know and believe in their strict code of conduct. The command structure
must be willing to enforce the code and to do so in military courts where
necessary.
14.81 Recommendation

10 All soldiers should be taught the Military Code of Conduct which should
be vigorously enforced.”

The word “discipline” is neither defined in the Constitution, nor in the UPDF
Act. However, Oxford Dictionary of English, 2nd Edition, 2003, OUP, defines the word
(noun) ‘discipline’ as:

15 “the practice of training people to obey rules or a code of behaviour, using

punishment to correct disobedience; the controlled behaviour resulting from
such training; activity that provides mental or physical training; a system
of rules of conduct.”

The Oxford Advanced Learner’s Dictionary, International Student’s Edition, 2006

20 defines the word as:

“The practice of training people to obey rules and orders and punishing
them if they do not; the controlled behavior or situation that results from
this training; to punish somebody for something they have done; to train
somebody … to obey particular rules and control the way they behave.”

25 The world over, because military personnel often put themselves at risk of
injury or death in the performance of their duties within and outside the
State, the military justice system puts a premium on the necessity for

156
5 discipline and for cohesion of military units (See: R v Moriarity [2015] 1 R.C.S 485
at 505). Indeed, it is widely accepted in all democratic societies that discipline
in the military establishment is an imperative, due to the critical role it plays
in the life of a nation. In R v Spear & Anor; R v Boyd; R v Williams & other appeals and
applications [UKHL] 31 at para 3, Lord Bingham explained as follows:

10 “Since the dawning of the modern age the defence of the state against the
threats and depredations of external enemies has been recognised as one of
the cardinal functions of government. To this end most countries have over
time established regular armed forces, in this country a navy, then an army,
and then in due course an air force. The effectiveness of such forces has
15 been recognised to depend on their being disciplined forces: that is, forces
in which lawful orders will be obeyed, the law will be observed and
appropriate standards of self-control and conduct will be shown.”

The Court also pointed out three principles widely accepted in democratic
societies; the second of which is that:

20 “… the maintenance of the discipline essential to the effectiveness of a

fighting force is as necessary in peacetime as in wartime: a force which
cannot display the qualities mentioned above in time of peace cannot hope
to withstand the much more testing strains and temptations of war.”

From the provision of the Constitution, and the proposition above, I would
25 hold that the maintenance of discipline is a valid purpose of the impugned
provisions of the UPDF Act.

157
5 The next question is whether the restriction in the rights of the military
personnel to appear before ordinary courts is justifiable under Art 43 of the
Constitution (See Charles Onyango Obbo & Ors v A.G (supra). The proponents of
the inclusion of other criminal offences within the purview of military courts
justify it on the imperative need to ensure public order and welfare. Canadian
10 military courts enjoy wide jurisdiction, just like the one conferred by the
impugned provisions of the UPDF Act. In R v Genereux [1992] 1 S.C.R 259 the
Canadian Court alluded to the other function of the Code of Service
Discipline, being the preservation of public order and welfare. It held at para
1 that:

15 “Although the Code of Service Discipline is primarily concerned with

maintaining discipline and integrity in the Canadian Armed Forces, it also
serves a public function by punishing specific conduct which threatens
public order and welfare, including any act or omission punishable under
the Criminal Code or any other Act of Parliament.”

20 The specific objective noted in R v Genereux (supra) on the public order and
welfare is not a compelling consideration I need to take into account. In my
considered view, since the functions of the UPDF provided in Article 209 of
the Constitution do not include the maintenance of public order and welfare,
it would be wrong to bring in such a consideration. Second, with regard to
25 the Canadian jurisdiction, unlike the Ugandan experience, the outstanding
feature that can give justification for the making of such additional
consideration is the fact that its appellate military courts are manned by
competent civilian judges who are appointed pursuant to, and clothed with

158
5 the same safeguards and guarantees accorded to the judges exercising
jurisdiction over ordinary Courts.

Third, history shows that discipline and public order and cohesion may result
from other reasons other than the mechanism for crime and punishment. This
is clear from the Odoki Commission Report (supra), which states at p. 365 thereof
10 that:

“In general, the people believe that for most of the period since 1971, the
army has suffered a severe lack of discipline. Low pay, poor morale and
lack of clear sense of purpose saw many soldiers commit offences of all
kinds with impunity. They used their guns to terrorise innocent people and
15 enrich themselves. Criminals in uniform were rarely apprehended let alone
charged or tried for the offences they committed.”

In some instances, it is not the indiscipline within the army, but rather
extraneous factors such as the manipulation of the military from outside of
its ranks, which is the source of the problem. The Report notes at p. 365 that:

20 “Anti people and anti-democratic behaviour.

14:30 There is concern about the general role played by the army over long
periods since independence when it was an instrument for oppression of the
people. Governments which had little popular support sought to stay in
power through the use of terror. The people’s rights to democratic
25 participation were thereby suspended, and in the process, many other
fundamental rights of people abused. The people want to be assured that
never again will its national army behave this way.”

The Report went further to state that:

159
5 “People expressed the view that lack of discipline and terrorising of the
people in part flowed from the fact that most - even at senior levels - were
uneducated. They were ignorant about the world, human rights and
freedoms and about the role a national army and patriotic soldiers should
play.”

10 Fourth, there are already mechanisms in place to exercise this public function
such as the presence of the Police, the Prisons, the specific enactments
against criminal conduct, and the presence of the Ordinary Courts to
adjudicate and enforce them. In my view, the punishment of specific conduct
outside what is provided for in the UPDF Act, but which threatens public
15 welfare and order, cannot be construed to warrant grant of jurisdiction to try
“every criminal conduct” provided for in every enactment. Otherwise, it
would result in the military courts usurping the function granted to the
ordinary Courts by the Constitution for the trial of those offences. It is only
when it comes to trying military personnel abroad for offences committed
20 abroad could there be a plausible argument in support for the wide
jurisdiction of offences.

Even then, it would be a clear violation of the Constitution to try military

personnel in a legal regime where there is no recourse to the civilian Courts
by way of appeal. This has the danger of potentially plunging the country into
25 the type of chaos that ensued when the military conducted what was a
summary trial when it charged, tried, convicted and executed some of its
military men in Karamoja within three days, for a capital offence; but without
according them the right to appeal at all (See The Uganda Law Society & Jackson

160
5 Karugaba vs The Attorney General - Constitutional Petitions Nos. 02 Of 2002 and 08 Of
2002).

I otherwise make the well-considered finding that the purpose of the

provisions in the UPDF Act including disciplinary offences that do not fall
within the jurisdiction of the civil courts for trial by the courts martial,
10 accords with the overall system of military justice; namely to maintain the
discipline and efficiency of the military in the execution of its Constitutional
mandate to preserve and protect the territorial integrity of Uganda. In R v
Spear 2002] UKHL 31 at 4-5, Lord Bingham of Cornhill rightly stated that:

“The dual status of the soldier, as both soldier and citizen, raises no issue
15 where he is said to have committed a purely military offence, that is, an
offence which could not be committed by anyone who was not a soldier.
Some such offences are potentially very serious: mutiny, desertion, absence
without leave, striking a superior officer are examples. Since these are
offences which cannot be committed by those not subject to military
20 discipline, it is unsurprising that they cannot be tried in the ordinary courts
of the land and can only be tried in a military tribunal.

This purpose is in my opinion firmly anchored in the legislative text, when

understood in its full context. It keeps the objective and means provided for
in the enactment distinct; albeit that it is expressed in succinct terms and
25 with some generality. I find that with regard to purely disciplinary offences,
this is a valid purpose, whose effect I do not find useful to venture into. I will
however proceed to consider the effect of the trial of military personnel for
criminal offences falling within other enactments.

161
5 With regard to the effect of the legislation, it has to be shown first, that the
provisions affect the liberty of persons subject to military law, and second,
that this liberty is put to risk in a way not connected to their purpose. Put
differently, it must be shown that the impugned sections of the UPDF Act,
enacted pursuant to Art 210 (b) of the Constitution, are overbroad in a manner
10 that is not connected with their purpose; but instead go beyond the
promotion of discipline and achievement of the functions under Art 209 and
Art 210 of the Constitution.

On the liberty or rights, it is clear that the jurisdiction over civil offences
granted to the military courts puts the liberty of these military personnel at
15 risk because they carry the risk of some sort of punishment including fines,
imprisonment and even death penalty when they are tried for these civil
offences. In R v Genereux (supra), Wigglesworth J. noted as follows:

“It is clear to me that the proceedings of the General Court Martial in this case
attract the application of s. 11 of the Charter for both reasons suggested by
20 Wilson. Although the Code of Service Discipline is primarily concerned with
maintaining discipline and integrity in the Canadian Armed Forces, it does
not serve merely to regulate conduct that undermines such discipline and
integrity. The Code serves a public function as well by punishing specific
conduct which threatens public order and welfare.
25 ………
In any event, the appellant faced the possible penalty of imprisonment in this
case. Even if the matter dealt with was not of a public nature, therefore, s.
11 of the Charter would nonetheless apply by virtue of the potential
imposition of true penal consequences.” (Emphasis added)

162
5 Further, for persons subject to military law, post-trial possibilities of review
or appeal by a person found guilty in a military court and sentenced, may
differ from the ones available to those who appear in the ordinary courts.
Perhaps it is important to set out that there are certain differences between
trial before military courts and ordinary or civil courts; to wit, certain aspects
10 of procedure, court composition, sentences available, limited right of appeal
among others, some of them I have already dealt with in Grounds 1, 2 and 3
of this appeal. I therefore find that the impugned sections 2, 179 and 119 (1)
(a) of the UPDF Act adversely affect the liberty interest of all persons subject
to military law.

15 The effect of the impugned provisions of the Act, therefore, is that all persons
subject to military law will face trial in courts that are markedly different
from the ones their civilian counterparts are subjected to for the same
offences. According to the Appellant’s Counsel, such persons who are subject
to military law will be rightly denied the right to appear before a judge in the
20 ordinary courts, owing to their having given their consent on account of their
chosen profession. This, learned counsel referred to as a case of “volenti non
fit injuria.” It is therefore incumbent on this Court to pronounce itself on
whether this restriction on their right to appear in the civil courts before a
common law judge is justified in a democratic society, or not.

25 In order for the impugned sections of the Act to pass the test for
constitutionality, as alleged by the appellant, it has to be shown that the
impugned provisions are not overbroad as regards the restriction on the
enjoyment of rights provided for in Article 43 of the Constitution. Article 43
provides that certain rights can be restricted in the public interest as justified

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5 in a democratic society. This second leg of the effect is what I will dwell upon;
and which regard I now proceed to resolve the questions raised.

I note that the life of a soldier generally differs from that of a civilian; and
this difference, where it is justifiable, is not necessarily discriminatory as to
contravene the Constitution. In the South African case of Minister of Defence v
10 Potsane 2002 1 SA (CC), the point was made that the difference between the
treatment accorded soldiers, and that accorded civilians, is not an
infringement on the soldiers’ rights to equality of treatment under the law. It
is justified when it is rational, and is founded on the legitimate purpose of
establishing a viable military justice system. This Court must therefore
15 determine whether the unlimited jurisdiction accorded military courts by the
UPDF Act, which in essence limits the soldiers’ rights to face trial before the
ordinary Courts even for the civil offences, is justifiable in a democratic
society, as is contended by learned counsel for the Appellant.

The text of the UDHR, ICCPR and African Charter are not instructive on the
20 specific jurisdiction of military tribunals. Upon review of reports, decisions
and recommendations of international bodies created to guide States in their
implementation of the Conventions, I find that there is a strong inclination
towards strictly limiting the jurisdiction of military courts to trial of ‘military
offences’. The Decaux Principles (supra) provide an insight into this. As I have
25 noted, these Principles are the result of the efforts of the Commission on
Human Rights under the Economic and Social Council, in fulfilment of the
resolution of the Commission that “the integrity of the Judicial system should
be observed at all times.” Principle No. 8 thereof, concerning the functional
competence of military courts, provides that:

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5 “The jurisdiction of military courts must be limited to strictly military offenses
committed by military personnel. The military courts can try persons
assimilated to military status for offenses strictly related to the exercise of their
assimilated function."

In 2013, the Secretary-General of the United Nations transmitted to the

10 General Assembly a report prepared by the Special Rapporteur on the
Independence of Judges and Lawyers for consideration at its sixty-eighth
session. See: Note of 7 August 2013, from the Secretary-General of the United Nations
transmitting the report of the Special Rapporteur on the independence of judges and
lawyers (A / 68/285) . The relevant paragraphs of this report read as follows:

15 “89. In so far as their specific purpose is to try offenses related to the

military function, the military courts must exercise their jurisdiction only
with regard to members of the armed forces perpetrating a military offense
or a disciplinary fault, and only when the offense or fault does not
characterize a serious violation of human rights. This principle can only be
20 waived in exceptional circumstances and for the sole purpose of judging
civilians abroad who are assimilated to armed forces personnel.”

The Note was also instructive as to what criminal offences should be tried as
disciplinary offences in military courts. It emphasized that these offences
should be strictly disciplinary in nature, or should affect the legally protected
25 interest of the military. It stated:

“98. Jurisdiction ratione material military tribunals, jurisdictions

specialized in meeting the specific disciplinary needs of the armed forces,
must be limited to criminal offenses "of a strictly military nature" or, in

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5 other words, to offenses which, by their very nature, affect the legally
protected interests of the military, military order, such as desertion,
insubordination, or abandonment of post or command.”

It was emphasized that for ordinary or civil offences, the military officers
should appear before the ordinary Courts; except for those committed
10 outside the jurisdiction of the state. This was the subject of para 99 of Note 7
of August 2013 (supra); which states as follows:

“99. States should not invoke the concept of acts related to office to deprive
the ordinary courts of their competence in favor of military courts. Ordinary
criminal offenses committed by members of the armed forces must be tried
15 before ordinary courts, unless the latter are unable to exercise their
jurisdiction due to the particular circumstances of the offense (exclusively
in the case of offenses committed outside the territory of the State), these
cases must be expressly provided for by law.”

Even on the regional legal plane, the African Commission has discouraged the
20 trial of civil offences by military or specialized courts, or tribunals. Section
L(c) of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in
Africa provides that the jurisdiction of Special Tribunals and military courts
should not include offences over which ordinary Courts have jurisdiction.
The Legislature is, thus seen as breaching its duty where it establishes
25 tribunals and Special Courts that have similar jurisdiction to the ordinary
Courts. In Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000), the African
Commission held that the setting up of a special military tribunal and
clothing it with jurisdiction to try treason and other related offences which

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5 fell within the jurisdiction of the ordinary courts of Nigeria was unacceptable
as it infringed on the independence of the Judiciary. The rationale for this
has been explained by R. Naluwairo in “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, at page
10 56 that:

“Besides infringing on the independence of the judiciary, the practice of

giving special tribunals and military courts the jurisdiction that belongs to
ordinary courts undermines the authority of ordinary courts that cherishes
democracy and the rule of law.”

15 In its Concluding observations on Columbia, the Human Rights Committee

under the United Nations framework observed that:

“the competence of the military courts [should be] limited to internal issues
of discipline and similar matters.”

To the Dominican Republic where the police had their own courts, the
20 Committee commented that:

“the National Police has its own judicial body, separate from that
established by the Constitution, to try crimes and offences by its members.
This is incompatible with the principle of equality before the law protected
by articles 12 and 2, paragraph 3, of the Covenant.”

25 It urged them to ensure that the jurisdiction of police tribunals is restricted

to internal disciplinary matters. See: Columbia, UN document CCPR/C/79/Add.2, 25

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5 September 1992, paragraphs 5 and 6; Dominican Republic, UN document
CCPR/CO/71/DOM, 26 April 2001, paragraph 10.

The Inter American Court of Human Rights noted in Castillo Petruzzi et al v Peru
Judgment of 30 May 1999, Series C No. 52, paragraph 128, as follows:

“When a military court takes jurisdiction over a matter that regular courts
10 should hear, the individual’s right to a hearing by a competent, independent
and impartial tribunal previously established by law and, a fortiori, his
right to due process are violated. The right to due process, in turn, is
intimately linked to the very right of access to the Courts.”

As I have already noted, Uganda is not bound by these recommendations

15 since the Conventions do not specifically deal with military courts’
jurisdiction. Nonetheless, they are immensely persuasive because they fortify
and give meaning to the Ugandan constitutional provisions, as well as the
provisions in the African Charter or decisions of the African Human Rights
Court on fair trial.

20 Counsel for the Appellant set out examples of States where the courts martial
or military tribunals have jurisdiction to try both criminal and disciplinary
offences. While this is true, I need to point out that such a route must be
taken with utmost caution; as it must meet the criteria for what is justifiable
in a democratic society. It must be so done with due regard to the
25 constitutional provisions on protection of rights. With the self-caution above
in mind, it is indeed important to also note that there are indeed countries
that have ratified either the UDHR, ICCPR and African Charter but have chosen
to include civil offences within the purview of offences triable by military

168
5 courts when committed by military personnel. It is noteworthy that in many
of these jurisdictions, this obtains within the context of robust safeguards
put in place for the protection of the rights to a fair trial. The National
Defence Act, 1985 of Canada provides as follows in respect of jurisdiction
over subject matter:

10 “130. (1) An act or omission,

(a) that takes place in Canada and is punishable under Part VII, of the
criminal code or any other Act of Parliament … is an offence under this
Division and every person convicted thereof is liable to suffer
punishment as provided in subsection (2).”

15 In the Canadian case of MacKay v The Queen 114 DLR (3d) 393, 426 McIntyre J said,
at pp 420-421:

“With the greatest deference for those who hold opposing views, I am unable
to conclude that a trial by court martial under the provisions of the National
Defence Act of criminal offences, which are also offences at civil law,
20 deprives the defendant of a fair hearing by an independent tribunal. From
the earliest times, officers of the armed forces in this and, I suggest, all
civilized countries have had this judicial function. It arose from practical
necessity and, in my view, must continue for the same reason.”

However, most important to note is that unlike the case of Uganda, Canada’s
25 Court Martial Appeal Court of Canada (CMAC) is a military court that exists
within the ordinary court system manned by civilian judges. It operates
independently from the military chain of command to ensure independence,
impartiality, and fairness in the appeals process. It hears appeals from

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5 decisions made by military courts martial, which are part of the military
justice system. In the United Kingdom, the Armed Forces Act 2006 sets out
the offences against military law and these include both discipline offences
and criminal conduct offences. Criminal conduct offences cover anything
done anywhere in the world that, if done in England and Wales, would be
10 against the civilian criminal law. The sentence that can be imposed is similar
to that of the civilian Courts. The relevant section provides as follows:
“42 Criminal conduct.
(1) A person subject to service law, or a civilian subject to service discipline,
commits an offence under this section if he does any act that—
15 (a) is punishable by the law of England and Wales; or
(b) if done in England or Wales, would be so punishable.”

The UK is a signatory to the ICCPR. The Court Martial therein has global
jurisdiction over all Service personnel and civilians subject to Service
discipline such as family members, civilian contractors, teachers and
20 administrative staff when serving abroad. A Judge Advocate arraigns each
defendant and conducts the trial, which is broadly similar to a civilian Crown
Court trial in all cases, even when dealing with a minor disciplinary or
criminal offence. The Judge Advocate General is the Judicial Head of the
Service Courts and has a team of Assistant Judge Advocate Generals (AJAGs).
25 All the judges are civilians, appointed through the independent Judicial
Appointments Commission from the ranks of experienced barristers or
solicitors in the same way as Circuit Judges. Hence, the law provides concrete
safeguards against any possible abuse of the rights of those subjected to trial
by a military court. This explains the holdings in cases such as R v Spear
30 (supra). The issue in R v Spear (supra) was whether a trial by a court martial in

170
5 the UK of an offence against the ordinary criminal law of the land is
compatible with the Art 6-1 of the European Convention, either generally or
in cases where the offence in question had been committed in the UK. Lord
Rodger also explained the rationale for trial of both civil and military offences
by military courts; which I understand to be the ability of that Court to accord
10 safeguards to a fair trial. He rejected the argument that such a trial violated
the right to a fair hearing. He said:

“Applying that approach, I would reject Lord Thomas's submission that, of

its very nature, trial of civil offences by court-martial is incompatible with
art 6(1). In principle such a trial can fully satisfy the requirements of art 6
15 that the tribunal should be independent and impartial and that the accused
should have a fair trial.

[51] That being so, it is not necessary to “justify” trial by court-martial,

whether by reference to the history of the system here and in many other
countries or by reference to the situation of the Services today. Lord Thomas
20 suggested that the Government and the armed forces wished to retain
courts-martial for civil offences for no other reason than that the system
exists and the staff are there to run it. I should therefore not wish to leave
unmentioned the substantial arguments that can be advanced in favour of
a system of trial by court-martial that covers both military and civil
25 offences.”

Keeping in mind our turbulent political and military history in which the
military had a hand; and the fact that I have already found that the
independence, fairness and impartiality of our military courts and tribunals

171
5 are lacking, I do not find this decision persuasive. It is thus necessary to
justify the trial in the military court pursuant to the provisions of Article 43
and in the light of Uganda’s specific circumstances and history.

It is indeed a given that the need to maintain discipline in the army is an

imperative. However, this must be done with limitation. The connection of
10 the objective is not overbroad, and is only favourable, in a society where the
courts martial or military tribunals act with fairness and impartiality, as I
have already discussed when dealing with Ground 3 of this appeal; especially
where the military courts are manned by civilian judges, clothed with the
safeguards of independence presiding over them; for instance, such as in the
15 Israel military court is part of the civilian court system. Both the UK and
Canada, which allow trials of all offences by the courts martial, have civilian
Court oversight over the courts martial; which Uganda does not have. Further,
the UK has a special civilian court within its military court system.

In furtherance of his contention, Counsel for the Appellant referred to s. 12

20 of the Ghana Armed Forces Act 1962 as an example of the provisions of the
law of another State that has such a wide jurisdiction regarding service
offences to cover civilians as well. I do not agree with this position. Section
12 of the Armed Forces Act 1962 of Ghana provides as follows:

“Part II- PERSONS SUBJECT TO CODE OF SERVICE DISCIPLINE, SERVICE

25 OFFENCES, ETC.

12. (1) The following persons, and no others, shall be subject to the Code
of Service Discipline:
(a) every officer and man of each Regular Force.

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5 ….
(e) every person not otherwise subject to the Code of Service Discipline,
who is serving in the position of an officer or man of any force raised
and maintained out of Ghana and commanded by an officer of the
Armed Forces.
10 (f) Every person not otherwise subject to the Code of Service Discipline,
who accompanies any unit or other element of the Armed Forces that
is on service in any place.
(g) Every person, not otherwise subject to the Code of Service Discipline,
who in respect of any service offence committed or alleged to have
15 been comitted by him, is in civil custody or in service custody; and
(h) Every person, not otherwise subject to Service Discipline, while
serving with the Armed Forces under an engagement whereby he
agreed to be subject to that Code.”

These sections are not in pari materia with s. 119 (1) (g) & (h), and do not
20 justify the trial of civilians or military personnel in military courts for all
criminal offences; hence, they are not comparable or applicable. However, I
have perused other provisions of the Ghana Act and have found that the
definition of service offence in section 98, being the interpretation provision,
is in pari materia with that in section 2 of the UPDF Act that defines a service
25 offence. Section 98 thereof defines a service offence in the following terms:

"Service offence" means an offence under this Act or any other enactment for
the time being in force, committed by a person while subject to the Code of
Service Discipline …”

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5 Be that as it may, it is also clear that this legislation does not put Ghana on
the same footing in terms of the wide jurisdiction as s. 2, 179 and 119 (1)(g)
& (h) of the UPDF Act put Uganda. Under section 79 of the Ghana Armed Forces
Act, there are certain offences for which no person can be tried in a military
court as long as it is committed in Ghana. It provides:

10 “79 (1) Every person alleged to have committed a service offence may be
charged and dealt with and tried under the Code of Service Discipline, whether
the alleged offence was committed in Ghana or out of Ghana:
Provided that a service tribunal shall not try any person charged with the
offence of murder, rape and manslaughter, committed in Ghana” (Emphasis
15 added)

The proviso clearly shows that the jurisdiction of Ghana military courts and
tribunals over criminal offences is not as wide as Counsel submitted. The
rationale for this proviso clearly points to the fact that thy intended that
certain serious criminal offences of a capital nature committed within the
20 jurisdiction of the criminal courts should be tried by the civil courts.

Similarly, I would not take Ghana as the yardstick for the interpretation of the
UPDF Act in the light of the clear provisions of the Ugandan Constitution in
this regard. Ghana also has shortcomings within its own military justice
system (See: Nelson Atanga Ayamdoo’s article in Court Martial Quagmires in
25 Ghana: Court Martial Appeals post Republic v. Lieutenant Oduro, in Military Law and the
Law of War Review Vol. 53, Issue 1 (2014); and Republic v. Lieutenant Oduro [2007-2008]
2 SCGLR 839.)

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5 Counsel for the appellant also referred to s.55 of the Kenya Defence Forces
Act 2012. Section 55 provides for offences not triable by the court-martial in
the following terms:

“55. Offences not triable by a court-martial

(1) A court-martial shall not try any civilian person who is subject to this Act
10 and charged with any of the offences under the Sexual Offences Act, 2006 (Act
No. 3 of 2006) and the law relating to protection from domestic violence where
that offence is committed in Kenya.
(2) Notwithstanding subsection (1), where a person who is subject to this Act
commits an offence referred to under subsection (1) outside Kenya, that person
15 shall be tried and sentenced by a court-martial.”

What is noteworthy from this provision of the Kenyan law is that any
provision of a law excluding civilians from trial by military court should do
so in clear terms. Second, under section 5 of the Kenyan Act, the application
of the Courts martial to civilians is expressly limited. The section provides:

20 “5. Application to civilians

(1) The application of this Act to a civilian shall be limited to a person,
other than a member of the Defence Forces, who—
(a) with the authority of an authorized officer, accompanies a
part, unit or formation of the Defence Force that is—
25 (i) outside Kenya; or
(ii) on operations against the enemy; and
(b) has consented, in writing, to subject himself or herself to this
Act while so accompanying that part of the Defence Forces.”

175
5 It also clarifies in s.5 (3) who a person accompanying a unit or other element
of the Defence Forces that is on service or active service is. Under section
132, a person who aids and abets is subject to the Act. It does not include
just any civilian. A civilian under that section would have to fall under those
described in s. 55 above. Further, the Kenyan Act has more progressive
10 provision than the UPDF Act. They have a legally trained Judge Advocate
whose rulings and directions on law are binding; and has a casting vote in the
decision where there is a stalemate. The Act requires that a Judge Advocate
at each court-martial is a magistrate or an advocate of not less than ten years
standing appointed by the Chief Justice (See Section 160, 165, 175). There is
15 therefore some assurance of fairness in the proceedings. The Chief Justice
has powers to generally regulate the administration and proceedings of the
Courts martial.

The Courts martial have to apply the principles of exercise of judicial

authority enunciated in Art. 159 of the Kenyan Constitution (see s. 161 of the
20 Act). Section 186 of the Act provides for appeal to the High Court of Kenya
from the Courts Martial. Therefore, since the UPDF Act does not expressly
exclude certain offences from the jurisdiction of the Courts martial, the
military courts are conferred with jurisdiction over all offences; which, as I
have pointed out, is dangerous as it leads to grave injustice. Hence, my
25 finding that civilians should not fall within the purview of military courts in
a blanket manner. As already I have already noted, these questions touching
on human rights have to be resolved in line with best practices and
democratic principles. In light of the international jurisprudence and national
jurisprudence already explored in the grounds 1, 2 and 3, interpretation of
30 this Constitution should be grounded not just on the practices of other states,

176
5 but also with regard to the history of Uganda and the values cherished in a
progressive democratic society.

Further, in light of the universal democratic trend, the advice of the African
Commission remains relevant. In the Koso case (supra), the African
Commission noted thus:

10 “84: In many African countries, military courts and special tribunals exist
alongside regular judicial institutions. The purpose of military courts is to
determine offences of a purely military nature committed by military
personnel. While exercising this function, military courts are required to
respect fair trial standards. … … …
15 86. Consequently, in this particular case, the fact that civilians and soldiers
accused of a civilian offence in this instance the theft of drums of diesel
were tried by a military court presided over by military officers was a
flagrant violation of the above-mentioned requirements of good justice.”

It is already clear that Art 210 of the Ugandan Constitution empowers

20 Parliament to create organs to promote discipline in the army. Whether for
the purpose of promoting discipline in the army, it is necessary to subject
military personnel to trial in courts martial for civil offences, was considered
in the Canadian case of R v Moriarity 2015] 3 R.C.S 485; where the Court took a
broad view of the meaning of discipline. In that case, the sections under
25 scrutiny were s. 130 (1) (a) of the National Defence Act (which is similar to s.
s.179 (now s.177 of the UPDF Act). Section 117(f) of the Canadian enactment
created an offence of fraud (similar to s.119(1) (h) (now s. 117 (1) (h) of the
UPDF Act).

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5 Section 117 (f) of the National Defence Act made it an offence to commit “any
act of a fraudulent nature not particularly specified in sections 73 to 128”
thereof. The Court noted that the effect of section 130 (10) (a) of the Act was
to “extend the jurisdiction of service tribunals in relation to all underlying
federal offences to everyone subject to the CSD [Code of Service Discipline].”
10 The Appellants therein did not contend that there was no military nexus or
direct connection with the maintenance of discipline, efficiency and morale
in the military. They claimed rather that there was a lack of distinction
between offences committed under military circumstances - which to them
were rationally connected to discipline, efficiency, and morale - and offences
15 committed in civil circumstances, which they argued, lack such a connection.

They thus contended strongly that there was no rational connection between
the purpose of the law - which was stated as ‘maintaining discipline, efficiency
and morale of the armed forces’ - and some of its effects which made the
‘armed forces subject to the military justice system in the circumstances in
20 which the offence does not directly implicate the discipline, efficiency and
morale of the forces’. The Court held that the Appellant’s definition of
‘discipline’ was too narrow; and that the impugned sections were rationally
connected to their purpose. In its opinion, read by Crowell J, the Court
adopted a broad definition of ‘discipline’ as follows:

25 “Discipline is a multi-faceted trait, as complex in its nature as it is essential

to the conduct of military operations. At its heart, discipline on the part of
individual members of the [Canadian Armed Forces] involves an instilled
pattern of obedience, willingness to put other interests before one’s own,
and respect for and compliance with lawful Authority.”

178
5 The Court then held that the objective of maintaining ‘discipline, efficiency
and morale’ was rationally connected to dealing with criminal actions
committed by members of the military even when not occurring in military
circumstances. The Court also further considered that such criminal actions
may have an impact on discipline. I find it compelling to reproduce this part
10 of the Court’s views here in extenso:

“For instance, the fact that a member of the military has committed an
assault in a civil context — a hypothetical scenario raised by Sergeant
Arsenault — may call into question that individual’s capacity to show
discipline in a military environment and to respect military authorities. The
15 fact that the offence has occurred outside a military context does not make
it irrational to conclude that the prosecution of the offence is related to the
discipline, efficiency and morale of the military. Consider, as a further
example, an officer who has been involved in drug trafficking. There is a
rational connection between the discipline, efficiency and morale of the
20 military and military prosecution for this conduct. There is, at the very least,
a risk that loss of respect by subordinates and peers will flow from that
criminal activity even if it did not occur in a military context. Similarly, a
member of the military who has engaged in fraudulent conduct is less likely
to be trusted by his or her peers. Again, this risk provides a rational
25 connection between the military prosecution for that conduct and the
discipline, efficiency and morale of the military.”
It is apparent that these examples support a broad understanding of the
situations in which criminal conduct by members of the military is at least
rationally connected to maintaining the discipline, efficiency and morale of
30 the armed forces, even when they are not on duty, in uniform, or on a military

179
5 base. However, I do not find them persuasive enough to warrant the
usurpation of the jurisdiction of the civil courts. To take the example used
by the Court, a criminal offence that occurs in a civil context can well be tried
by a civil court with the desired end-result of maintaining discipline, morale
and efficiency in the army. A military officer, who has been tried and
10 convicted by a civil court can, accordingly, be subjected to military
disciplinary process.

The disciplinary tribunal can take the necessary disciplinary action such as
reprimand, demotion or even dismissal from the forces, in appropriate cases.I
therefore hold the view that the trial of military personnel for criminal
15 offences under other enactments that are not purely disciplinary offences, is
unconstitutional for violating Arts. 28 (1), 44(c), 126 (1), 21 and 128(1) of the
Constitution. It would do well if there was a specialised military court manned
by civilian judges in the courts martial to try military personnel specifically
for criminal offences in order to fulfil the unique needs of the UPDF. Under
20 the principle of separation of powers, such a scenario would maintain the
necessary distance between the courts martial and the Judiciary as the
general wielder of judicial power under Art 126 (1).

There are also other vital reasons militating against trial of persons subject
to military law for all offences. This Court has previously held that there are
25 certain offences that are not triable by the Court martial. This is so where a
particular Act grants jurisdiction under it only to a specific Court. It would
therefore be wrong for Parliament to cause a conflict by conferring on courts
martial jurisdiction to try such an offence. For instance, since terrorism can
only be tried by the High Court, which is an ordinary or civil court, it would

180
5 be contradictory to try it in the military courts as well; and also it would be
self-defeating for an offence similar to terrorism to be created under the UPDF
Act, and then persons are tried under it. In the past, it also certainly
circumvented and defeated the purpose of the grant of an exclusive
jurisdiction to a specific Court; and especially where, as has been pointed
10 out, civilians were subsequently tried under the military court as
accomplices. The Constitutional Court had this to say with regard to the Anti-
Terrorism Act, in Uganda Law Society v A.G Constitutional Petition No. 18 of 2005:

“The Anti-Terrorism Act, 2002 and Fire Arms Act Cap 299 and the Penal
Code Act have offences which are brought under the UPDF Act as part of
15 service offences. However, I do not agree with counsel for the respondent
that by virtue of sections 2, 179 and 197 of UPDF the General Court Martial
is seized with jurisdiction to try the accused in this case for the offences of
terrorism and being in unlawful possession of firearms. In my view, a court
be it civil or military, can only try the accused for an offence where it is
20 seized with jurisdiction. It would not be fair to try an accused person where
jurisdiction is excluded from it. A case in point is the instant petition where
the accused persons are charged with terrorism charges, which are
exclusively triable by the High Court. Section 6 of the Anti-Terrorism Act
reads as follows :-

25 ‘(6) The offence of terrorism and any other offence punishable by more
that ten years imprisonment under this Act are triable only by the High
Court and bail in respect of those offence may be granted only by the
High Court’.

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5 Clearly, the General Court Martial has no jurisdiction to try that case. I am
mindful of the provisions of S. 2 of (supra). It is of no effect because it cannot
give jurisdiction which does not exist. It is immaterial to me whether the
charges preferred against the accused are service offences because where
the law excludes jurisdiction from a particular court, it is not competent to
10 try it. The offence with which the accused are charged carries a death
sentence and is only triable by the High Court.” (Emphasis added)

The Court noted further that offences that require consent of the DPP are also
excluded from the jurisdiction of the Courts Martial. It said:

“Further, section 3 of the Anti-Terrorism Act provides that no person shall

15 be prosecuted for an offence under this Act except with the consent of the
DPP yet Article 120 (3)(b) prohibits the DPP to sign any charges prosecuted
in the General Court Martial. I do not agree that it is not necessary for the
DPP to sign the charge sheet. That clearly confirms the exclusion of trials of
terrorism offences from the Court Martial. I am alive to the provisions of S.
20 2 of UPDF which define "service offence" as including "an offence under any
other Act",... Be that as it may, in my view, jurisdiction can only be extended
to those offences where unlike in terrorism cases, the court's jurisdiction is
not excluded. Giving section 2 of the UPDF Act such wide construction will
end up by extending it to all criminal offences even outside its jurisdiction.
25 I do not believe that by virtue of section 2 of UPDF Act, the General Court
Martial has jurisdiction to try electoral petition offences. In the premises the
General Court Martial, in the instant case, has no jurisdiction to try the
accused for Terrorism as indicted in the charge sheet.” (Emphasis added)

182
5 The Constitutional Court’s position was upheld by this Court in A.G. v Uganda
Law Society - S.C Const. Appeal No. 1 of 2006; in which Mulenga JSC said:

“Furthermore, the statute that created the main offence with which the
accused persons were charged before the General Court Martial expressly
conferred jurisdiction over it in the High Court alone to the exclusion of any
10 other court. Section 6 of the Ant-Terrorism Act provides –

“The offence of terrorism and any other offence punishable by more than
ten years imprisonment under this Act are triable only by the High Court
and bail in respect of those offences may be granted only by the High
Court.”

15 It follows that the proceedings before the General Court Martial were
inherently unconstitutional irrespective of the proceedings in the High
Court.”

I find that this holding by Mulenga JSC is still the correct position of the law
that where jurisdiction is expressly excluded or where the DPP’s consent is a
20 pre-requisite, the courts martial are not competent to handle that matter so
excluded irrespective of the provision to the contrary under the impugned
sections 1, 177, and 117 (1) (g) and (h) of the UPDF Act. It amounts to a
duplication to grant jurisdiction to the courts martial over it, when owing to
gravity of these offences Parliament conferred jurisdiction over them to
25 ordinary Courts. The other issue for consideration is the danger posed by
concurrent jurisdiction; where the military court could try a case that is also
before the ordinary Court. This would necessitate the establishment of a
mechanism between the courts martial and DPP to manage the cases, beyond

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5 the mere provision in the UPDF Act that the jurisdiction of the courts martial
does not take away that of the civilian courts.

Concurrent trials in both military and ordinary courts for a civil offence
would also be prejudicial to an accused for the simple reason that it could
lead to double jeopardy as each court could potentially come up with a guilty
10 verdict. This renders sections 2, 179, and 119(1) (h) (now ss.1, 177, and 117
(1) (h)) of the UPDF Act unconstitutional for duplicating offences triable by
other enactments; and also for providing the military tribunals with judicial
power to try all offences in other enactments that are triable by civilian
Courts. They can lead to a violation of Art 28 which does not allow double
15 jeopardy and also denies some persons the right to appear before the
ordinary or civil courts of law.

Another point alluded to in the Court in A.G. v Uganda Law Society case (supra),
which I would like to emphasize, is that where an offence attracts the death
penalty, a court martial should have no jurisdiction to try it due to the fact
20 that no right of appeal to the Supreme Court is provided for by the UPDF Act.
I have already dealt with this in my resolution of ground 2 and 3. See Art 22
of the Constitution; PTE Muhumuza Zepha v Uganda - Court of Appeal Criminal App.
No. 31 of 2016 ; 2nd Lt Ambrose Ogwang (supra); Sgt Klemera Frank v Uganda Criminal
Appeal No. 18 of 1994 (unreported); Uganda Law Society & Jackson Karugaba v A.G -
25 Const Petitions Nos 2 of 2002 & 8 of 2002 and Law Revision (Penalties in Criminal Matters)

(Miscellaneous Amendments) Act, 2021. Until a right of appeal is created from

sentences for offences attracting life imprisonment and death penalty to the
courts of record as is available to the other persons and provided for by the

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5 Constitution, the trial of criminal offences attracting those penalties is
unconstitutional for violating s.28(1), 44 (c), 21 and 22 of the Constitution.

Additionally, as already noted, the GCM and other military courts are all
subordinate Courts. See A.G V ULS Const. Appeal No. 1 of 2006. However, I do not
agree with Mulenga JSC’s finding where he held that the GCM is subordinate
10 but not lower than the High Court. According to the Black’s Law Dictionary,
Brayan A. Garner, Eight Edition ‘subordinate’ means “Placed in or belonging to a
lower rank, class or position” or “subject to another’s authority or control.”
Assigning the ordinary English meaning to the word ‘subordinate,’ all Courts
martial as subordinate courts created under 129 (1)(d) can only have
15 jurisdiction that is lower than the High Court. Saying that it is surbodinate
but not lower than the High Court is contradictory and has the potential to
create an absurdity when it comes to the hearing of capital offences.

If Parliament desires to grant them the jurisdiction to handle capital cases

then it would need to do so in line with the Constitution. I will return to this
20 later in an advisory opinion to explore the options that could be undertaken
by Parliament to achieve this effect Constitutionally. With this finding, the
hearing by all Courts martial of offences within the jurisdiction of the Courts
of record is unconstitutional under Arts. 28(1), 44(c), 128(1) and 129 91)(d).

Upon examining the objective of the law and the authorities cited, I find that
25 the impugned provisions of the UPDF Act are overbroad, and rationally
connected to the broader purpose. The trend in democratic dispensations,
especially the new democracies such as Uganda, which witnessed gross
human rights violations in the past, and reminds itself of its ugly past in the

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5 Preamble to the Constitution, a sober decision has to be consciously made.
Sections 2 (now 1), 179 (now 177) and 119(1)(h) (now 117 (1) (h)) that allow
the trial of persons subject to military law, for all offences under other
enactments without any qualification is overbroad. The need to maintain
discipline is no justification for the trial of members of the UPDF, who are
10 within the country, by the military courts; and yet there is a functional
judiciary. Any disciplinary action on an officer can be effected after a finding
of guilt by the ordinary Court. I hereby find that sections 2 (now 1), 179 (now
177) and 119(1)(h) (now 117 (1) (h)) of the UPDF Act are unconstitutional in
so far as they, without qualification, allow for trial of persons subject to
15 military law for civil offences within the GCM and other military
courts/tribunals. Basing on this analysis and finding, Grounds 1 and 4 of this
appeal would fail.

Having made the findings that the provisions of the UPDF Act that confer
powers on the military courts to exercise judicial powers are
20 unconstitutional, there arises the consequential issue of the fate of those who
at the time of this decision on unconstitutionality of the UPDF Act are facing
charges, or undergoing trial, or have been tried and convicted before or by
the military courts. This issue was neither raised nor canvassed at the hearing
of the appeal; so, this Court has not had the benefit of Counsel’s opinion on
25 the matter. Nonetheless, it is a matter of great public interest; hence, this
Court has to deal with it. Issues concerning the extent to which judicial
adjudication has retrospective effect, especially regarding a finding that a law
or act is inconsistent with the Constitution is not novel. See: Duke Mabeya
Gwaka v The Attorney General - Const. Petittion No. 36 of 2019, and A v The Governor of
30 Arbour Hill Prison Supreme Court of Ireland 205/2006.

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5 Two rules have been developed; which have gained universal recognition and
application. First is that once a law has been declared unconstitutional, then
applying the principle of direct review, the declaration has the force of
retroactive application. Where however the accused person was convicted
under a law that is later declared unconstitutional, and has either exhausted
10 the appeals or has not pursued any appeal, the matter is taken to have been
concluded. In such circumstance, the declaration of unconstitutionality of the
law has no retrospective application. In retroactive application of new rules,
there is a difference between civil and criminal cases. We are here concerned
with the latter.

15 Whether a decision announcing a new rule should be given prospective or

retroactive effect should be determined at the time of that decision. Thus,
there is a further difference between criminal cases on direct review and
those on collateral review. Direct review concerns those criminal cases where
the person seeking relief arising from the new rule has not yet been tried, is
20 undergoing trial, has been convicted but is still pursuing a direct appeal;
while collateral review refers to those cases where the criminal defendant has
exhausted all direct appeals, if any. See Teague v Lane Director Illinois Department
of Corrections et al 489 US 288 (1989).

In Uganda, the Constitutional Court in Mabeya v A.G (Supra) examined Ugandan

25 (A.G v Susan Kigula & Ors (2009) UGSC 6) and American jurisprudence (Linkletter v
Walker (supra), United States v Johnson, 457 U.S 537 (1982) , Griffith v Kentucky and
Stovall v Denno [1967] 338 u.s 293) and came to the conclusion that retroactivity
should depend on the, (i) the purpose of the new rule, (ii) the extent of
reliance on the new rule, and (iii) the effect on the administration of justice

187
5 of the retroactive application of the new rule. The decisions following
Linkletter (supra), laid down how this rule would apply to pending cases and
and those on appeal, under direct review. The current American position
elucidated in Annotated Constitution prepared by Congressional Research
Service at the Library of Congress, and quoted in A v The Governor of Arbour Hill
10 Prison (supra), stated thus:

“The Court has now drawn a sharp distinction between criminal cases
pending on direct review and cases pending on collateral review. For cases
on direct review, a new rule for the conduct of criminal prosecutions is to
be applied retroactively to all cases, State or Federal, pending on direct
15 review or not yet final. (Griffith v- Kentucky [1987 479 US 314)” Thus, for
collateral review in federal courts of the state courts criminal convictions,
the general rule is that new rules of constitutional interpretation,
announced after a defendant’s conviction has become final will not be
applied. Thus applications for habeous corpus based on a judicial decision
20 subsequent to a conviction becoming final and not otherwise under direct
appeal or review fall into the category of collateral review and therefore
not entitled to rely on new rules of constitutional interpretation.”

This principle is apparently not novel to our modern time; as Cicero is

credited with having coined the maxim: “Summum ius summa iniuria” –
25 variously translated, but classically as: “the strictest application of the law is
the greatest injustice”. This general principle regarding the effect of
declaring a legislation unconstitutional was succinctly stated by Murray CJ
in A vs The Governor of Arbour Hill Prison (supra). thus:

“143. In a criminal prosecution where the State relies in good faith on a

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5 statute in force at the time and the accused does not seek to impugn the
bringing or conduct of the prosecution, on any grounds that may in law be
open to him or her, including the constitutionality of the statute, before the
case reaches finality, on appeal or otherwise, then the final decision in the
case must be deemed to be and to remain lawful notwithstanding any
10 subsequent ruling that the statute, or a provision of it, is unconstitutional.”

The learned CJ explained the meaning of a collateral attack as follows:

“A collateral attack arises where a party, outside the ambit of the original
proceedings seeks to set aside the decision in a case which has already been
finally decided, all legal avenues, including appeal, having been exhausted,
15 for reasons that were not raised in the original proceedings but for reasons
arising from a later court decision on the constitutionality of a statute.”

He made a comparative survey and review of various jurisdictions on the

issue; and found commonality in the decisions taken by them on it. He then
said:

20 “66. The question of retrospectivity in the form raised here is one which is
material to all legal systems. The fact is that at no stage during the course
of the hearing of this case was the Court’s attention drawn to any system
of justice in which a finding that a law is unconstitutional, even where this
is deemed to be so ab initio, meant that previous and final judicial decisions
25 based on such a law must inevitably be considered unlawful and of no
effect in law. I am not aware of any legal system that does so.”

Referring to the situation obtaining in the US, he stated thus:

189
5 “There are … “transcendent considerations” which militate against
complete or absolute retrospectivity. Fundamental interests of public
policy requires limitations on the retroactive effect of judicial decisions.
The legal order and the administration of justice is not one of perfect
symmetry. As Justice Benjamin Cardozo observed at p. 161 in his seminal
10 work The Nature of the Judicial Process (Yale University Press, 1921) “We
like to picture to ourselves the field of the law as accurately mapped and
plotted. We draw our little lines, and they are hardly down before we blur
them.” Although judicial adjudications do have retroactive effect there are
important exceptions and restrictions to that effect. A line must be drawn
15 in the interests of justice.”

He further elucidated on the matter thus:

“127. … a judgment condemning a statute for being inconsistent with or

contrary to the Constitution does not mean that all which was done or
20 decided under that statute prior to the decision on constitutionality is in all
circumstances void and of no effect. It is a principle which is, for the
reasons indicated in the various judicial dicta which I have cited, consistent
with the Constitution as a whole, the common law dimension of our legal
system and the legal systems of many other countries in which the courts
25 have the same or an analogous power of judicial review of the validity of
laws.”

He further explained that:

“84. Certainly, issues concerning the constitutionality of statutes are on a

plane higher than the mere common law, they concern questions

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5 fundamental to the rule of law, the protection of rights and the very
framework within which, in the words of the preamble to the Constitution,
“true social order is attained”. Normally those fundamental constitutional
concepts, such as the rule of law, individual rights, justice and a social
order based on that rule of law blend together so that the principles of
10 constitutional justice to be applied to resolve issues may be readily
deduced. On other occasions some of those considerations may be
competing or even conflicting ones, where the Courts have to balance
those different interests so as to do justice within the framework of the
Constitution.

15 ………

86. In this instance one may say in broad terms that there is a competing
interest between the claim by the applicant that he stands convicted under
a law which has subsequently been found to be inconsistent with the
Constitution as from 1937, and the interests of justice, including the rights
20 of the victim, where he was otherwise lawfully convicted of unlawful carnal
knowledge of a 15 year old girl, in circumstances where, as his counsel
acknowledges, the conviction and sentence were not tainted by any want
of fairness or injustice.

87. Thus the effect of absolute retroactivity for which the applicant
25 argues in a sense raises competing considerations which the Court has
to address having regard to the provisions generally of the Constitution
and what Henchy J. alluded to as transcendent constitutional
considerations, the public interest, the common good and social order.”

191
5 In response to the argument that the declaration that a law is
unconstitutional renders it null and void ab initio, the learned CJ had this to
say:

“91. Absolute retroactivity based solely on the notion of an Act being void
ab initio so as to render any previous final judicial decisions null would lead
10 the Constitution to have dysfunctional effects in the administration of
justice. In the area of civil law it would cause injustice to those who had
accepted and acted upon the finality of judicial decisions. Rights which had
become vested in third parties as a consequence of such decisions would be
put in jeopardy. The application of a principle of absolute retroactivity
15 consequent upon a declaration of unconstitutionality of an Act in the field
of criminal law would render null and of no effect final verdicts or decisions
affected by an Act which at the time had been presumed or acknowledged
to be constitutional and otherwise had been fairly tried. Such unqualified
retroactivity would be a denial of justice to the victims of crime and offend
20 against fundamental and just interests of society.”

I find these authorities quite persuasive and applicable to the current

situation; because the constitutional rules applied therein touch on the
fundamental aspects of a criminal trial in a democratic dispensation. In the
present case, we have those who have been charged, those undergoing trial,
25 those convicted and are in the process of challenging such a conviction as
was the case in the Lt. Ogwang case (supra), and those whose conviction is
final.

This is the situation obtaining with regards to those who have been
defendants in the courts martial. I consider that the first three categories that

192
5 fall under direct review can without any difficulty take benefit from the rules
expounded herein as regards trial in the courts martial. However, for those
whose trial is completed or who are also referred to as those on collateral
review, it is my considered opinion that they fall within the exception
enunciated above.

10 In the event, I would make the following declarations:

(i) The Summary Trial Authority (STA) and the Unit Disciplinary
Committee (UDC) are respectively lawfully established under ss. 191
& 192 (now ss.189 & 190), and s. 195 (now s. 193), of the UPDF Act,
as military tribunals.
15 (ii) The provision of section 197 (now s.195) of the UPDF Act,
establishing the General Court Martial as a competent court, is
constitutional.
(iii) The General Court Martial, created under s.197 (now s.195) of the
UPDF Act, is a subordinate court of law; but with specialized
20 jurisdiction.
(iv) The provisions of s.179 (1) & (2) (now 177(1) & (2)) of the UPDF Act,
read together with s. 197 (2) (now s.195 (2)), which grant the
subordinate military courts jurisdiction over capital offences
contravene Art. 129(1) (d) and Art, 126(1), of the Constitution; hence
25 they are unconstitutional.
(v) The provision of s. 191(3) (a) (now s.189 (3) (a), and s.195 (3) & (4)
(now 193) (3) & (4)) read together with s.179 (now s.177) of the UPDF
Act, which grant the STA and the UDC the exercise of judicial power
of detention and imprisonment of any person tried by them,

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5 contravene Arts. 23, 126(1), and 129 (1)(d) of the Constitution;
hence, they are unconstitutional.
(vi) The provisions of the UPDF Act constituting and providing for the
trial procedure of the GCM, the Division Court Martial, and the Court
Martial Appeal Court, do not contain any or sufficient constitutional
10 guarantees and safeguards for them to exercise their judicial
functions with independence and impartiality, which is a
prerequisite for fair hearing provided for under Arts. 21, 28(1), 44(c),
and 128(1) of the Constitution.
(vii) The provision of s.119(1) (g) (now s. 117 (1) (g)), of the UPDF Act,
15 under which the Respondent, a civilian, was charged and arraigned
in the General Court Martial, contravenes Arts. 28(1), 44 (c), and 21
of the Constitution; hence it is unconstitutional.
(viii) The provision of s.119(1) (g) (now s. 117 (1) (g)) is unconstitutional
to the extent that it permits trial, in the courts martial, of civilians
20 who have allegedly aided and abetted the commission of a service
offence, or ordinary criminal offence, in which a person subject to
military law is a principal offender.
(ix) Sections ss. 2, 179, 119 (1) (h) and (g) (now respectively ss.1, 177,
117 (1) (h) and (g)) of the UPDF Act, are unconstitutional since they
25 confer blanket jurisdiction on Courts Martial to try civilians.
(x) The jurisdiction conferred by ss.2, 179, and 119(1) (h), (now ss.1,
177, and 117 (1) (h), of the UPDF Act, on the GCM to try persons
subject to military law for civil and, or, non-disciplinary offences
committed in Uganda, unconstitutional; as they contravene Articles
30 209 & 210 of the Constitution.

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5 I would accordingly propose the following orders:

(1) The declaration by the Constitutional Court that section 119(1) (g) (now
s.117 (1) (g)) of the UPDF Act, which provides that any person, not
otherwise subject to military law, who aids or abets a person subject to
military law in the commission of a service offence is constitutional, is
10 hereby set aside.
(2) All charges, or ongoing criminal trials, or pending trials, before the courts
martial involving civilians must immediately cease and be transferred to
the ordinary courts of law with competent jurisdiction.
(3) This judgment shall have no retrospective effect on any conviction made,
15 and sentences imposed, prior to the date of this judgment; save where the
conviction and sentence is being challenged in a Court of law.
(4) All pending trials, or partly heard criminal cases, that fall under the civil
law courts jurisdiction, which are against members of the UPDF who are
subject to service law must be transferred to the civil Courts with
20 competent jurisdiction.
(5) Save for the issue of the establishment of the GCM as a Court of Law, this
appeal fails; and is hereby dismissed.
(6) The cross appeal is hereby allowed.
(7) The Respondent is entitled to the costs of this Appeal, and in the
25 Constitutional Court.

ADVISORY ORDERS

Courts martial are not unconstitutional merely by their very nature of being
military courts. The people of Uganda pronounced themselves in the course

195
5 of the making of the 1995 Constitution, expressing their fervent desire to
make a break from the ugly past that characterized life in our country;
especially the grave abuse of human rights by the military. The Ugandan
military has since been transformed into a professional force; and it has made
remarkable contribution to ensuring regional peace, security and stability. It
10 is rather contradictory and rather disconcerting for a military Force built on
new and commendable professional dispensation to operate under the same
legal framework that failed to check or avert military abuse of power; with
unspeakable ramifications.

The 1995 Constitution provided the new wine, which the UPDF Act has
15 instead, through the impugned provisions of the Act, sought to store in old
wineskins as it were. This is in blatant negation of the aspirations, desire,
hope, and wishes of the people of Uganda; which the framers of the 1995
Constitution meticulously enshrined, and in no uncertain terms, in the
Constitution.

20 It is noteworthy that in ULS & J. Karugaba v A.G (supra), the Constitutional Court
observed that the Constitution was unfortunately being ignored; and
recommended that Parliament could amend the Constitution to provide for
any special needs of the military. It said:

“The UPDF is currently being operated under laws and practices which still
25 contain colonial relics in total disregard of the Uganda Constitution. No
attention was paid to this problem when drafting the 1995 Constitution.
This Court has no powers to bend the Constitution in order to accommodate
special needs [whether legitimate or not] of the army. It is only Parliament

196
5 that has the power to amend the laws including the Constitution, to
accommodate such special concerns of the army. So far, it has not done so.
I must, therefore, stick to only such interpretation of the law that is
consistent with the Constitution as it stands now.” (Emphasis added)

The current military courts operate in violation of the constitutionally

10 enshrined and securely protected rights to a fair hearing that are equally
recognized universally in Conventions and other instruments. Thus, there is
need for a robust legislative intervention to ensure the UPDF Act is in accord
with the cherished aspirations of the people of Uganda as was unmistakably
captured in the Odoki Commission Reprot. It is therefore incumbent on the
15 Executive to generate the policy, and Parliament to pass the legislation, which
addresses and cures the injustice occasioned by the unconstitutional
provisions of the UPDF Act, which have now been quashed, by providing for
military courts that are clothed with the constitutional safeguards of
independence and impartiality that are accorded the ordinary Courts.

20 In recognition of the special nature of the military, legislation must be put in

place that establishes and confers on the courts martial and tribunals, the
powers to execute lawful jurisdiction over members of the military; and thus
fulfil the function of the UPDF. However, this special exercise of jurisdiction
must not infringe on the soldiers’ rights to a fair hearing. The State needs to
25 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. It is noteworthy that the Court advised in 2009,
in ULS & J. Karugaba v A.G (supra), that for military Courts to be truly

197
5 independent and impartial, there are desirable changes that the Executive
needs to address. It noted as follows:

“In order for this to be applicable to the military courts, the article would
have to be modified in such a way as to give the courts independence and
impartiality without compromising their military nature. The army would
10 have a parallel judiciary with legally trained soldiers to professionally man
the courts. In order to be impartial, the court must have security of tenure
and other privileges enjoyed by the other judicial officers in the Uganda
judiciary. It should be noted that the definition of judicial officer contained
in article 151 does not exclude persons exercising judicial power in military
15 courts.”

I consider the need for this recommended transformation as relevant today,

as it was then.

In the premises, I would make the following recommendations to the

Executive and Parliament for consideration as viable alternatives for the
20 establishment, and or creation, of military courts in Uganda:

(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;
25 with Magistrates within the division handling offences falling under
their jurisdiction.

198
5 (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
10 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
15 civilians with the requisite professional legal qualifications to serve as
judicial officers in the current subordinate military courts. They would
exercise jurisdiction over offences triable by subordinate courts. They
should have the same privileges and safeguards as their counterparts
in the civil courts. Or;
20 (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;
25 (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
30 act as assessors. Appeals to the Court Martial Appeal Courts would

199
5 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
10 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.
15 (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
20 Forces such as the Police, and Prisons.

Dated at Kampala this 31st day of January 2025.

Alfonse C. Owiny – Dollo

CHIEF JUSTICE

200
 THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: OWINY-DOLLO, CJ; MWONDHA; TUHAISE; CHIBITA; MUSOKE; BAMUGEMEREIRE; MUGENYI;

JJSC

CONSTITUTIONAL APPEAL NO. 02 OF 2021

(Arising from Constitutional Petition No. 45 of 2016)

ATTORNEY GENERAL ……………………….. APPELLANT/CROSS RESPONDENT

VERSUS

HON. MICHEAL A. KABAZIGURUKA …….. RESPONDENT/CROSS APPELLANT

[Appeal from the decision of the Constitutional Court (Kakuru, Obura, Kasule JJ.A;
and Madrama, Musota JJ.A. dissenting) at Kampala dated 1st July 2021 in
Constitutional Petition No. 45 of 2016]

Judgment of Percy Night Tuhaise JSC

I have had the benefit of reading, in draft, the lead judgment by Alfonse C. Owiny –
Dollo, Chief Justice.

I agree with the analysis, decisions, conclusions, and orders that are proposed in his
lead judgment.

The background to the appeal and the respective cases for the parties to the suit
have been ably articulated in the lead judgment and in the other judgments prepared
by my learned sisters and brother in this appeal, which I have also had the benefit of reading,
in draft. It is therefore not necessary to reproduce the same.

I will only add my opinion regarding the issue relating to the capacity of the Court
Martial (GCM) to render a fair trial as envisaged in Article 28 (1) of the Constitution
of Uganda. The jurisdiction and competence of the said court is challenged by the
Respondent in this appeal. The Appellant on the other hand contends that it is a
court of competent jurisdiction as provided for under Article 210 of the Constitution
of Uganda, and section 197 (now 195 Revised Edition 2023) of the Uganda Peoples
Defence Forces Act Cap330), herein referred to as the UPDF Act. The Appellant also,

1
in opposition to the Respondent’s assertions, contends that the establishment of the
GCM does not contravene Articles 28 (1), 126, (1), 129 (1), 210 and 267 (1) (d) of the
Constitution of Uganda.

The GCM, is created under section 197 (1), now section 195 (1) in the revised version
of Laws of Uganda 2023, of the UPDF Act. Its long title reads, among other things,
that it is an “Act to provide for the regulation of the Uganda Peoples Defence Forces
in accordance with Article 210 of the Constitution…and for other related matters.” It
is a specialized court, in the sense that it was created to exercise jurisdiction over
specified matters relating to offences created by the UPDF Act committed by
members of the Military Forces and persons who aid or abet such offences, that is,
to administer military justice in Uganda with jurisdiction to handle offences
specified in that Act, mainly for penal and disciplinary purposes. The GCM was
therefore established as a specialized court of the Military Forces.

On the other hand, the Constitution also establishes Courts of Judicature empowered
to exercise judicial power with various jurisdictions under Article 129 of the
Constitution which states:-

“129. The Courts of Judicature.

(1) The judicial power of Uganda shall be exercised by the courts of

judicature which shall consist of-
(a) the Supreme Court of Uganda;
(b) the Court of Appeal of Uganda;
(c) the High Court of Uganda; and
(d) such subordinate courts as Parliament may by law establish,
including qadhis courts for marriage, divorce, inheritance of
property and guardianship, as may be prescribed by Parliament.
(2) The Supreme Court, the Court of Appeal and the High Court shall be
superior courts of record and shall each have all powers of such a court.
(3) Subject to the provisions of this Constitution, Parliament may make
provisions for jurisdiction and procedure of the courts.”
Both the Courts Martial and the Courts of Judicature, therefore, derive their origins
from the Constitution, save that, while the Constitution directly sets up the Courts

2
of Judicature under Article 129, the Courts Martial are set up by an Act of Parliament
as mandated under Article 129 (1) (d) and 210 of the Constitution.

The criteria for the appointment of members who sit on the GCM, set out under
section 197 (1), now 195 (1) in the revised version of the Laws of Uganda 2023, of
the UPDF Act, is that they should essentially be Army Officers, with the Chairperson
not being below the rank of Lieutenant Colonel. Save for the chairperson of the Court
Martial Appeal Court, who is required to be an Advocate qualified to be appointed
as a Judge of the High Court, legal qualification is not a basis for appointment on
the GCM and the other military courts set up under the UPDF Act. In contrast, under
Article 143 of the Constitution of Uganda, persons qualified for appointment as
judicial officers to the Courts of Judicature, as established under Article 129 of the
Constitution of Uganda must have legal qualifications.

It is to be noted that both the GCM and the Courts of Judicature, particularly the
Superior Courts are, under the respective laws that govern them, as well as the penal
laws, either in exercise of their original or appellate jurisdiction, empowered to pass
the death penalty, which is the maximum punishment a court of law would pass. It
is also to be noted that under Article 120 (3) (b) of the Constitution of Uganda, the
Director of Public Prosecutions (DPP), who is the officer charged with the function
of, among others, instituting criminal proceedings against any person in any court,
is exempted from instituting such criminal proceedings in a court martial.

The contradictory position is that, while, under the UPDF Act, qualification for
appointment to the GCM does not require one to have legal qualifications, persons
qualified for appointment to a Judicial Office in the Courts of Judicature are required
to have legal qualifications under Article 142 of the Constitution. Secondly the
conducting of criminal trials in the GCM, unlike is the case for Courts of Judicature,
is not controlled by the DPP.

The interests of justice and fairness require that, any court that is empowered to
pass a penalty as serious as a death penalty, or even, I dare say, imprisonment,
should be presided over by competent persons with legal qualifications. The
criminal prosecutions conducted before such courts should ideally be controlled by
the DPP. This would be a safeguard for a fair trial envisaged under Article 28 (3) of
the Constitution of Uganda, the International Covenant on Civil and Political Rights,

3
(to which Uganda is signatory), and other international Human Rights Instruments,
binding or persuasive, which have been ably highlighted in the other judgments to
this appeal. In my considered opinion it would not matter whether, in actual fact (de
facto), the members appointed to sit on the GCM, in the wisdom of the appointing
authorities, do possess the legal qualifications as to be competent to adjudicate
criminal matters especially those attracting heavy penalties. As long as the UPDF Act
that creates the GCM does not expressly include legal qualifications as a requirement
for appointment to the GCM (de jure), the competence and capacity of that court to
handle criminal trials would still be questioned, as it is being done in this appeal.
This is based on the cardinal principle in our legal system that, justice must not only
be done, it must be seen to be done.

The GCM would only be competent to adjudicate over criminal matters of not only
civilians, but also military persons as if it were a court of law with the requisite
structures to conduct a fair hearing as envisaged under Article 28 of the Constitution
of Uganda. There can be no fair trial as envisaged in Article 28 (1) of the Constitution
in an incompetent court. It is in that regard, that I would, with respect, not agree
with the Appellant’s contentions that the GCM is a court of competent jurisdiction
to hear criminal matters. In its present state, the GCM, though lawfully set up by an
Act of Parliament, deriving such powers from Article 129 (1) (d) of the Constitution,
is, in its present form, competent only to handle matters relating to discipline of
members of the Armed Forces.

In the result, based on the above, and in addition to the reasons, decisions,
conclusions and recommendations for legal reforms stated in the lead judgment,
which I associate myself with, I would conclude that this appeal fails save for the
issue regarding establishment of the GCM as a court of law. I would dismiss it, to
that extent, and allow the cross appeal. I would award the costs of this appeal to the
Respondent, in this Court and in the court below.

Dated at Kampala, this 31st day of January 2025.

Percy Night Tuhaise

Justice of the Supreme Court.

4
5
 THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT KAMPALA
CONSTITUTIONAL APPEAL NO. 02 OF 2021
ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::APPELLANT
VERSUS
HON. MICHAEL ANDREW KABAZIGURUKA:::::::::::::::RESPONDENT
(Appeal and Cross-Appeal from the decision of the Constitutional Court of Uganda
(Kakuru, Obura, Musota and Madrama, JJCC and Kasule Ag. JCC) in Constitutional Petition
No. 45 of 2016 dated 1st July, 2021)

CORAM: THE. HON. THE CHIEF JUSTICE ALFONSE OWINY-DOLLO

HON. LADY JUSTICE FAITH MWONDHA, JSC
HON. LADY JUSTICE PERCY NIGHT TUHAISE, JSC
HON. MR. JUSTICE MIKE J. CHIBITA, JSC
HON. LADY JUSTICE ELIZABETH MUSOKE, JSC
HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JSC
HON. LADY JUSTICE MONICA K. MUGENYI, JSC

JUDGMENT OF ELIZABETH MUSOKE, JSC

I have had the advantage of reading in draft the respective judgments
prepared by The. Hon. The Chief Justice and Mugenyi, JSC. On my part, I
would dismiss the appeal and allow the cross-appeal for the reasons given
in this judgment.
The grounds of the appeal and the cross appeal are ably set out in the
judgment of The Hon. The Chief Justice, and I need not recount them here.
I only state that in my view those grounds raise the following questions for
this Court’s decision:
“1) Whether the 1995 Constitution places limits on the jurisdiction
that Parliament can confer on the General Court Martial (“GCM)
and the other military Courts and if so, what is the scope of those
limits?

1
 2) Whether the jurisdiction conferred on the GCM and other military
Courts under the UPDF Act goes beyond the applicable
constitutional limits.

3) Whether the GCM is a subordinate Court within the meaning of

Article 129 (1) (d).

4) Whether the GCM had jurisdiction to conduct the arraignment of

the respondent and if so, whether the arraignment contravened
the respondent’s right to a fair trial.

5) Whether the GCM and other Military Courts lack the capacity to
render a fair trial which is a non-derogable right guaranteed under
Articles 28 (1) and 44 (c).

6) What are the appropriate remedies to grant in the present case?”

In this judgment, I give my views on all the above questions. However,

before giving my views, I should say that when the respondent filed his
Petition on 17th November, 2016, he was challenging certain provisions of
the UPDF Act, 2005. Under the 2023 Revised Edition of the Laws, where the
UPDF Act is now Cap. 330, the numbering of many of the impugned
provisions has changed as indicated in the judgment of The Hon. The Chief
Justice. Nonetheless, in this judgment I make reference to the numbering of
the relevant provisions as set out in the respondent’s Petition and the
judgment of the Constitutional Court although, for future purposes, the
numbering contained in the Revised UPDF Act should apply.
Does the 1995 Constitution place limits on the jurisdiction of
military courts?
The case for the respondent, as set out in his Petition, was that Article 210
(b) limits the jurisdiction that can lawfully be conferred to any military Court
to trying only disciplinary offences committed by members of the UPDF.
According to the respondent the military courts cannot lawfully be vested
with jurisdiction to try capital or non-disciplinary offences committed by non-
members of the UPDF as the UPDF Act does.
The appellant’s response was a general denial asserting that the GCM was
established in accordance with any constitutional limits affecting the
2
jurisdiction of the military courts. In paragraph 5 of the appellant’s Answer,
it was stated, in part as follows:
“…that the General Court Martial is a court of competent jurisdiction as
provided by Article 210 (a) of the 1995 Constitution and Section 197 of
the UPDF Act, 2005 and it is established strictly in accordance with the
Constitution.”

The appellant further made a contention in paragraph 6 of his Answer, as

follows:
“…that the establishment of the General Court Martial is in no way a
contravention of Articles 28 (1), 126 (1), 129 (1), 210 and 267 (1) (d) of
the 1995 Constitution.”

Before proceeding to an examination of the opposing contentions, it is

necessary to recall the role of the Constitutional Court, and by extension of
this Court, when determining constitutional appeals. The well-established
role of the Constitutional Court under Article 137 (1) and (3) of the 1995
Constitution is to conduct constitutional interpretation. In the context of a
constitutional petition challenging any legislation, the role of the
Constitutional Court is to consider and define the scope of the applicable
constitutional provision, to consider and define the scope of the challenged
legislation, and make a pronouncement on whether the scope of the
challenged legislation is inconsistent with and/or in contravention of the
scope of the applicable constitutional provision, and if so, to declare the
challenged legislation unconstitutional and proceed to nullify it. This Court’s
role when determining a constitutional appeal is to reappraise the materials
on record and determine whether the Constitutional Court’s decision was
correct in accordance with the duties of a first appellate Court as explained
in Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No.
10 of 1997 (unreported). In essence, when determining a constitutional
appeal, this Court will also conduct constitutional interpretation in the
manner defined earlier.
I will now return to the consideration of whether the 1995 Constitution places
any limits on the jurisdiction that may be conferred on a military Court. I will
begin by observing that, as reflected in the Long Title to the UPDF Act, when
3
Parliament enacted the UPDF Act, it was acting in accordance with its powers
under Article 210 of the 1995 Constitution. Article 210 is located in Chapter
12 of the 1995 Constitution which establishes the Uganda Peoples Defence
Forces (UPDF) as the armed forces of Uganda; Article 208 (1) and provides
for the values of the UPDF as being non-partisan, national in character,
patriotic, professional, disciplined, productive and subordinate to the civilian
authority as established under this Constitution; Article 208 (2). Article 209
lays out the functions of the UPDF to include:
“(a) to preserve and defend the sovereignty and territorial integrity of
Uganda;

(b) to cooperate with the civilian authority in emergency situations and

in cases of natural disasters;

(c) to foster harmony and understanding between the defence forces

and civilians; and

(d) to engage in productive activities for the development of Uganda.”

Because, the framers of the 1995 Constitution could not practicably set out
all the rules related to the UPDF under Chapter 12 of the 1995 Constitution,
they empowered Parliament, under Article 210, to make legislation for the
regulation of the UPDF. Article 210 reads as follows:
“210. Parliament to regulate the Uganda Peoples' Defence Forces

Parliament shall make laws regulating the Uganda Peoples' Defence

Forces and, in particular, providing for-

(a) the organs and structures of the Uganda Peoples' Defence Forces;

(b) recruitment, appointment, promotion, discipline and removal of

members of the Uganda Peoples’ Defence Forces and ensuring that
members of the Uganda Peoples' Defence Forces are recruited from
every district of Uganda;

(c) terms and conditions of service of members of the Uganda Peoples’

Defence Forces; and

(d) the deployment of troops outside Uganda.”

4
Therefore, when Parliament enacted the UPDF Act in 2005 pursuant to its
powers under Article 210, it was expected to legislate only on the matters
envisaged by paragraphs (a) to (d) of Article 210. I must state that whereas
Parliament has powers under Article 79 (1) to make laws on any matter for
the peace, order, development and good governance of Uganda, the
provision sets out an important proviso, that such powers must be exercised
“subject to the provisions of the Constitution.” The effect of the proviso
under Article 79 (1) is that Parliament’s powers are limited by the subject
matter covered by the particular Article under which Parliament proceeds
while making the relevant legislation, and thus Parliament may not, while
moving under the authority of a given Article, make legislation dealing with
an unrelated matter addressed under another Article. This point can be
illustrated with reference to another provision of the 1995 Constitution.
Article 152 (3) reads as follows:
“Parliament shall make laws to establish tax tribunals for the purposes
of settling tax disputes.”

It cannot be reasonably argued that because Parliament has powers to make

laws on any matter, it can make legislation expanding the jurisdiction of a
tax tribunal established under Article 152 (3) to cover matters unrelated to
tax disputes. This illustrates the point that although Parliament has general
legislative powers, its powers are subject to limitations contained in any
constitutional provision applicable to any subject matter upon which
Parliament can legislate.
With regard to Article 210, it will be noted that the said Article empowers
Parliament to pass legislation for the purposes of regulation of the UPDF,
and the Article lays down the subjects that such legislation should regulate.
Most pertinent for purposes of the present case is Article 210 (b) which
empowers Parliament to pass legislation for regulation of the UPDF, and in
particular to provide for:
“…recruitment, appointment, promotion, discipline and removal of
members of the Uganda Peoples' Defence Forces and ensuring that
members of the Uganda Peoples' Defence Forces are recruited from
every district of Uganda.”
5
In so far as relevant to this matter, Article 210 (b) empowers Parliament to
make laws for regulating the “discipline and removal of the members of the
UPDF”. In my view, the words “discipline and removal” must be understood
to refer to separate subject matters, as I will elaborate later in this judgment.
At this point, I observe that in determining the nature of matters falling under
the sphere of discipline and removal of members of the UPDF, the beginning
point is the ordinary definition of the word discipline, and in this regard, I
would adopt the definition set out in the Oxford Advanced Learner’s
Dictionary, 7th ed, where “discipline” is defined as:
“the practice of training people to obey rules and orders and punishing
them if they do not; the controlled behavior or situation that results from
this training.”

Thus, matters relating to the discipline of the members of the UPDF would
be concerned with establishing rules defining their acceptable conduct such
as those set out in the UPDF code of conduct provided for under Section 118
of the UPDF Act, and making of rules defining unacceptable conduct, such
as the offences set out under Part VI of the UPDF Act. On the other hand,
“removal” relates to the disciplinary sanctions which can be imposed as
punishment for engaging in unacceptable conduct which can be imposed by
the disciplinary bodies of the UPDF, in this case such punishment is restricted
to certain disciplinary sanctions, as will be explained later in this judgment.
It goes without saying that in any democratic society, punishment for
misconduct is arrived at by an independent body, after hearing the evidence
in support and in opposition to the allegations of misconduct and to the
imposition of the charges.
Thus, by their literal interpretation, the provisions of Article 210 (a) and (b)
vest Parliament with powers relating to establishment of an organ of the
UPDF for the purpose of handling matters related to “discipline and removal
of members of the UPDF”. In other words, the purpose for which the military
courts were intended under Article 210 (a) and (b) is to act as disciplinary
bodies responsible for handling matters where it is alleged that a member of
the UPDF committed unacceptable conduct, and if found guilty, to impose

6
disciplinary sanctions, of the nature discussed later in this judgment, as
punishment. Thus, the limitations imposed under Article 210 (a) and (b)
relate to the nature of cases that can be heard by the military courts, and
also to the nature of punishment that can be meted by the military courts.
I am alive to the international literature and foreign cases to which reference
has been made in the respective judgments of the Hon. The Chief Justice
and Mugenyi, JSC. However, it is worth bearing in mind that constitutional
interpretation, in the first place, is concerned with the text adopted in our
Constitution. Therefore, in my view, any contrary position reflected in
international literature and foreign cases cannot form the basis for displacing
the position reflected in the constitutional text. Such international literature
and foreign cases are only useful for comparative purposes and for advocacy
for constitutional reform in light of the standards accepted in other
democratic countries.
Furthermore, and with the greatest of respect, I do not accept the view taken
by Mugenyi, JSC that the jurisdiction of the military courts extends to matters
concerned with “national security” even if such matters are unrelated to the
sphere of “discipline and removal of members of the UPDF,” and my reasons
can be stated shortly. The concept of national security is one for which no
precise definition can be found either in the 1995 Constitution or in an Act
of Parliament. There also appears to be no standard justiciable definition of
the concept of national security given in a decision by a Uganda Court, of a
foreign or international Court; or even in international literature. Although a
definition of the concept of national security has been attempted by some
foreign courts and in international literature, those definitions have been
made in broad and vague terms. In the UK House of Lords decision in
Secretary of State for the Home Department v Rehman [2002] 1
ALL ER 122, Lord Hoffmann defined national security, in broad terms, as
meaning the security of a country and its people. Lord Slynn stated, also in
broad terms, that national security concerns risks or dangers to the security
or well-being of the nation. Lord Slynn, in further elaboration on the
definition of national security, quoted a statement by Professor Grahl-

7
Madsen in The Status of Refugees in International Law (1966),
which reads:
“A person may be said to offend against national security if he engages
in activities directed at the overthrow by external or internal force or
other illegal means of the government of the country concerned or in
activities which are directed against a foreign government which as a
result threaten the former government with intervention of a serious
nature.”

Lord Slynn also made reference to statements by groups of experts in

international law, the Johannesburg Principles on National Security,
Freedom of Expression and Access to Information, as approved on 1
October 1995 in Johannesburg which state:
“(a) A restriction sought to be justified on the ground of national security
is not legitimate unless its genuine purpose and demonstrable effect is
to protect a country’s existence or its territorial integrity against the use
or threat of force, or its capacity to respond to the use or threat of force,
whether from an external source, such as a military threat, or an internal
source, such as incitement to violent overthrow of the government.

(b) In particular, a restriction sought to be justified on the ground of

national security is not legitimate if its genuine purpose or demonstrable
effect is to protect interests unrelated to national security, including, for
example, to protect a government from embarrassment or exposure of
wrongdoing, or to conceal information about the functioning of its public
institutions, or to entrench a particular ideology, or to suppress
industrial unrest.”

Therefore, without attempting to give a conclusive definition, as it is

unnecessary to do so in the present case, the scope of national security
relates to any action required to be taken by the state for the purposes of
dealing with any activity that constitutes a threat to the sovereignty and
territorial integrity of a country, threats to the proper functioning of its
institutions, or threats to the security of its people. It would seem that
activities constituting threats to national security are already addressed by
the civilian offences provided for under enactments other than the UPDF Act.
For example, activities threatening the sovereignty and territorial integrity

8
are criminalized by the offences of treason and other offences against the
state under Part VI of the Penal Code Act, Cap. 128, and activities
threatening the security of the people are criminalized by the offence of
terrorism against Anti-Terrorism Act, Cap. 120 and offences against the
person under Division IV of the Penal Code Act.
Furthermore, the 1995 Constitution addresses the subject of national
security under Chapter twelve which provides for the establishment of
several agencies with functions in the area of national security, and these
include the Uganda Peoples Defence Forces, the Uganda Police Force, the
Intelligence Services, and the National Security Council which, under Article
220 (a) and the National Security Council Act, Cap. 322, is responsible for
national security.
In my view, the 1995 Constitution sets in place an integrated framework in
which different agencies are vested with different functions to guide their
contributions to addressing the different threats to national security. It is
worth mentioning the different acts that can be done to maintain national
security and these include, gathering intelligence and conducting
investigations into activities that threaten national security, apprehending
persons involved in offences against national security, and undertaking
military engagements to address threats to the territorial integrity of the
country. It should be noted that an indirect aspect of national security is
trying and sanctioning persons who commit offences against national
security. Under the 1995 Constitution, this function falls within the sphere of
administration of justice and is vested in the Judiciary under Chapter Eight.
It is also worth stating that the framers of the 1995 did not include
administration of justice in the exclusive list of functions granted to the UPDF
under Article 209 which, in my view, indicates the framers’ intention to
exclude the UPDF from assuming any general function in the administration
of justice. The framers vested the function of administration of justice, even
in cases involving national security, in the Courts of Judicature established
under Chapter 8 of the 1995 Constitution. The UPDF’s contribution to
national security must, therefore, be understood in the context of its

9
functions under Article 209 and should not extend to the administration of
justice.
In concluding this point, it is my finding that the 1995 Constitution limits the
jurisdiction that may be vested on a military court to matters falling within
the sphere of “discipline and removal of members of the UPDF”. This implies
that the nature of cases that may be tried by the military courts is limited to
disciplinary offences, and the nature of punishment is limited to disciplinary
sanctions with the most severe being removal from the UPDF.
Is the jurisdiction conferred on the GCM and other military Courts
in conformity with the above limits?
I note that, under the UPDF Act, the military Courts are conferred with
jurisdiction to try service offences. Under Section 2, service offences include
offences under the UPDF Act, as well as offences created under other Acts,
if committed by a person while subject to military law. Under Section 119
(1), the following persons are subject to military law:
“a) Every member of the UPDF Regular Force.

b) Every member of the Reserve Forces in certain circumstances

listed under Section 119 (b) (i) – (vii).

c) Every person attached or seconded to serve in the UPDF.

d) Every person recruited to serve under the command of an officer

of the UPDF outside the country.

e) Every person who accompanies a unit or other element of the

UPDF.

f) Every person serving in the UPDF under any engagement under

which he/she agrees to be subject to military law.

g) Every other person who aids and abets persons listed under (a-f)
in the commission of a service offence.

h) Every person not falling under any of the foregoing categories who
is found in unlawful possession of arms, ammunition or equipment
ordinary being the monopoly of the Defence Forces; or other
classified stores.”
10
Section 179 introduces further aspects of service offences; it provides:
“179. Service trial of civil offences

(1) A person subject to military law, who does or omits to do an act—

(a) in Uganda, which constitutes an offence under the Penal Code Act
or any other enactment;

(b) outside Uganda, which would constitute an offence under the

Penal Code Act or any other enactment if it had taken place in
Uganda, commits a service offence and is, on conviction, liable to
a punishment as prescribed in subsection (2).

(2) Where a military court convicts a person under subsection (1), the
military court shall impose a penalty in accordance with the
relevant enactment and may, in addition to that penalty, impose
the penalty of dismissal with disgrace from the Defence Forces or
any less punishment prescribed by this Act.”

Section 179 (2) mentions that the person envisaged to be the subject of the
provisions of Section 179 is one who can be dismissed with disgrace from
the UPDF implying that Section 179 was intended to cover only members of
the UPDF described in Section 119 (1) (a) – (f), and it is those persons to
whom Section 179 applies. In other words, only the members of the UPDF
described under Section 119 (1) (a) – (f) were intended to be tried before
the military courts for commission of offences in the Penal Code Act or any
other enactment.

Therefore, under the UPDF Act, the jurisdiction of the military courts extends
to the following categories:
“1) Cases involving Offences under Part VI of the UPDF Act if
committed by members of the UPDF, whether formal or
assimilated, as described in Section 119 (1) (a) – (f).

2) Cases under Section 179 of the UPDF Act involving offences under
the Penal Code Act or other enactments if committed by members
of the UPDF, whether formal or assimilated, as described in
Section 119 (1) (a) – (f).

11
 3) Cases involving offences under Part VI of the UPDF Act committed
by non-members of the UPDF in conspiracy with the members of
the UPDF envisaged in Category 1 as provided under Section 119
(1) (g).

4) Cases involving offences related to unlawful possession of military

equipment as described in Section 119 (1) (h) if committed by
non-members of the UPDF.”

The question that has to be considered next is whether the four categories
described above fall within the sphere of “discipline and removal of members
of the UPDF” within the meaning of Article 210 (b) since only cases falling in
that sphere can fall within the jurisdiction of the military courts. In my view
the offences under category 1 fall within the sphere of “discipline and
removal of the members of the UPDF” in so far as they seek to punish
members of the UPDF (whether formal or assimilated members to borrow
the term used in The Hon. The C. J’s judgment) who engage in unacceptable
conduct during military service. However, it is noted that most of the
prescribed punishments for many of these include imprisonment and the
death penalty in some, yet as I explained earlier, Article 210 (b) limits
punishments that can be meted by the military courts to only disciplinary
sanctions such as: dismissal, dismissal with disgrace, reduction in rank,
forfeiture of seniority, suspension, severe reprimand and caution. Indeed, as
will be shown later in the judgment, many such punishments are listed under
Section 221 which provides for sanctions for commission of disciplinary
offences. It is, therefore, my view that where the punishment prescribed for
an offence by law is imprisonment or a more serious punishment, that
offence goes out of the jurisdiction of the military courts and into the
jurisdiction of courts of judicature which have the power to impose such
serious punishments.

The offences under category 2 also fall within the sphere of “discipline and
removal of the members of the UPDF” to the extent that they involve the
punishment of members of the UPDF, whether formal or assimilated
members, who engage in unacceptable conduct that is contrary to other laws
apart from the UPDF Act. These offences however also fall out of the

12
jurisdiction envisaged under Article 210 (b) to the extent that their prescribed
punishments under the relevant laws include imprisonment or the death
sentence. Accordingly, such offences should be tried by the competent
courts of judicature under Chapter 8 of the 1995 Constitution.
The offences falling under category 3, are provided for under Section 119
(1) (g), and involve the trial of non-members of the UPDF, if they are
accomplices to the members of the UPDF described in Section 119 (1) (a)-
(f) in the commission of an offence under Part VI. This category relates to
non-members of the UPDF and therefore does not fall within the sphere of
discipline and removal of members of the UPDF. In addition, as with the
previous categories, the prescribed punishments include imprisonment and
more serious punishments. Therefore, these offences also go out of the
jurisdiction of the military courts and into the jurisdiction of ordinary courts.
I have considered the submission of counsel for the appellant that sphere of
the “discipline and removal” of members of the UPDF, within the meaning of
Article 210 (b), should also encompass offences under other laws with a
bearing on the proper functioning of the UPDF, such as offences under the
Penal Code Act, Cap. 128 like murder, rape or robbery committed by
members of the UPDF in the course of service, as provided for under the
definition of a “service offence” in Section 2 of the UPDF Act and under
Section 179 of the UPDF Act. However, in my view, this submission does not
conform with the proper construction of Article 210 (b) as explained in my
earlier analysis. Otherwise, the framers could have instead drafted Article
210 (b) to empower Parliament to vest functions relating to the general
administration of justice in the UPDF but they did not do so. Moreover, due
to the lack of capacity of military courts to exercise the function of
administration of justice as described in the judgment of The Hon. The Chief
Justice, with which I wholly agree on this aspect, it is unlikely that the
framers wanted the military courts to try such offences.
In light of the above observations, it follows that the definition of “service
offence” under Section 2 confers unlawful jurisdiction to the GCM in respect
of the offences falling under categories 1, 2, 3 and 4, to the extent described

13
in this judgment. Furthermore, the provisions of Section 119 (1) (g) and (h)
and 179 of the UPDF Act also improperly extend jurisdiction to the extent
described in this judgment. In my view, and contrary to the submission of
counsel for the appellant, Parliament had no power, when it enacted the
UPDF Act, to legislate that persons who commit offences which do not fall
under Article 210 (b) can in some circumstances bring themselves within the
ambit of the GCM. Parliament could only confer jurisdiction to the GCM only
in respect to persons who could squarely fall within the ambit of Article 210
(b).
Furthermore, and as I hinted earlier in this judgment, the Constitution
imposes limits on the nature of punishments that may be imposed by the
military Courts, and as discussed earlier, it is envisaged from a proper
construction of Article 210 (b), that the military courts can only impose
punishments consisting of disciplinary sanctions including removal from the
UPDF, suspension, reprimand, reduction in rank, among others. However,
under Section 221 (1) of the UPDF Act, the military Courts are given powers
to impose other punishments apart from these disciplinary sanctions. Section
222 (1) reads, as follows:
“221. Scale of punishments

(1) The following punishments may be imposed in respect of service

offences—

(a) death;

(b) imprisonment for two years or more;

(c) dismissal with disgrace from the Defence Forces;

(d) imprisonment for a term not exceeding two years;

(e) dismissal from the Defence Forces;

(f) detention;

(g) reduction in rank;

(h) communal labour;

(i) forfeiture of seniority;

14
 (j) suspension;

(k) severe reprimand;

(l) reprimand;

(m) caution;

(n) fine;

(o) stoppages; and

(p) such other minor punishments as may be prescribed.”

In addition, many of the offences under Part VI of the UPDF Act carry
punishments of death sentence and terms of imprisonment. In my view, this
is inconsistent with the constitutional limits on the nature of punishments
that may be imposed by military courts as explained earlier. Therefore, the
provisions of Section 221 (1) (a), (b), (d), (f), (h), (n), (o) and (p) are also
unconstitutional. Only the punishments provided for under Section 221 (1)
(c), (e), (g), (i), (j), (k), (l) and (m) can lawfully be imposed by the military
courts.
Is the GCM a Court of Judicature?
The designation of a body as a Court of Judicature vests it with jurisdiction
to determine a wide range of cases under most laws of Uganda in accordance
with Article 126 (1) which vests judicial power in Courts of Judicature. By
contrast, a body may be vested with powers to determine certain cases and
make certain decisions but it would not qualify as a Court of Judicature if it
is not created pursuant to the authority of Article 129 (1) of the Constitution.
The latter class of bodies includes the Leadership Code Tribunal which is
established under Article 234A and vested with jurisdiction under Section 24
of the Leadership Code Act, Cap. 33 to, among other things, make decisions
relating to breach of the Leadership Code; the Tax Appeals Tribunal
established under Article 152 (3) of the 1995 Constitution and vested with
jurisdiction over tax disputes; and the Public Procurement and Disposal of
Assets Appeals Tribunal which is established under Section 91B of the Public
Procurement and Disposal of Assets Act, Cap. 205 and vested with

15
jurisdiction, under Section 91I, to review decisions of the relevant
Procurement and Disposal Authority.
In terms of Article 129 (1), Courts of Judicature include the superior Courts
such as the Supreme Court, Court of Appeal and the High Court, and
subordinate Courts including the Magistrates Court. Furthermore, Parliament
has the powers to create either a subordinate Court or a Superior Court but
it may only do so in accordance with the provisions of the Constitution. In
order to establish a superior Court of Judicature, Parliament needs to
conduct a Constitutional Amendment in accordance with Articles 259 and
262 to amend Article 129 (1) and provide for the same. Whereas, in order
to establish a subordinate Court of Judicature, Parliament would be required
to enact legislation for the purpose under Article 129 (1) (d).
In relation to the present case, the GCM cannot be said to be a Superior
Court since Parliament did not go through the process to establish it as such,
and neither could it establish the GCM as a subordinate Court, given my
earlier findings concluding that the framers intended the GCM and other
military courts to be established only as disciplinary bodies for members of
the UPDF and not Courts of Judicature with a general judicial function.
In addition, a consideration of the powers conferred on the GCM under the
UPDF Act clearly demonstrate that it is not a subordinate Court. I observe
that the dichotomy between “superior courts” and “subordinate courts” can
be traced to ancient England. In R vs. St Edmundsbury and Ipswich
Diocese (Chancellor) and Another: Ex parte White and Another,
[1947] 2 All ER 170, the England and Wales Court of Appeal described the
existence, in the English Court system, of the King’s Bench as a superior
court to certain inferior Courts, over which it had powers of control which
were exercised through, among other ways, the issuance of a writ of
certiorari to:
“…bring up to the King’s Bench proceedings of courts to which it lay, in
order that the King’s Bench should do what was necessary to be done in
the interests of justice.”

16
In further elaboration on this point, Evershed, L.J quoted with approval the
dictum of Atkin LJ in R vs. Electricity Commissioners ([1924] 1 KB
204) which, in material part, reads as follows:
“Both writs [of prohibition and certiorari] are of great antiquity, forming
part of the process by which the King’s Court restrained courts of inferior
jurisdiction from exceeding their powers. Prohibition restrains the
tribunal from proceeding further in excess of jurisdiction; certiorari
requires the record or the order of the court to be sent up to the King’s
Bench Division, to have its legality inquired into, and, if necessary, to
have the order quashed.”

As can be seen from the above statements, a subordinate court is a court

inferior to a superior court, over which the latter exercises controlling power,
which ordinarily involves powers to demand that the record of the
subordinate court be sent over to the superior court to have its legality
examined. In ancient England, such powers were exercised through the
writ/order of certiorari and are similar to revisionary powers that the High
Court of Uganda exercises over Magistrates Courts. Therefore, it is my view,
that the GCM may only be called subordinate Court if one or more of the
superior Courts established under Article 129 (1) can exercise revisionary
powers over it. But that is not the case. The position under the UPDF Act is
that no superior Court established under Article 129 (1) can call for the
record of the GCM for purposes of revision. On this account alone, it cannot
be stated that the GCM is a subordinate Court.
Moreover, it is also my view, that a body may only qualify as a Court of
Judicature if its fundamental features are in consonance with the features of
the Courts of Judicature provided for under Chapter 8. It would be odd to
say that a body is a Court of Judicature yet, in the same breath, say that
such a body lacks the features of a Court of Judicature. In the present case,
it is recognized that the military Courts lack essential features such as
competence of its officers as legal professionals, lack of independence and
impartiality, which are essential attributes of all Courts of Judicature, and for
that reason the military Courts cannot be characterized as Courts of
Judicature.

17
I am alive to the dictum of Mulenga, JSC in this Court’s decisions in Attorney
General vs. Joseph Tumushabe, Constitutional Appeal No. 3 of 2005
(unreported) and in Attorney General vs. Uganda Law Society,
Constitutional Appeal No. 1 of 2006 in which Mulenga, JSC expressed
the view that the GCM is a subordinate Court within the meaning of Article
129 (1) (d). However, for the reasons I have given in my analysis on this
point, it is my respectful opinion that the views expressed in Mulenga, JSC’s
dictum are erroneous and should be overruled.
Furthermore, it is worth pointing out that in the Joseph Tumushabe case
(supra), this Court was considering a version of the GCM created under the
now repealed UPDF Statute No. 3 of 1992 enacted before the coming into
force of the 1995 Constitution. It is also noteworthy that under Article 274
of the 1995 Constitution, Courts were empowered to make reasonable
constructions to bring existing law within the provisions of the 1995
Constitution. Thus, in the Joseph Tumushabe case (supra), this Court, while
applying Article 274, could arguably be said to have had the powers to
characterize the GCM, as established under the UPDF Statute No. 3 of 1992,
as a subordinate Court within the meaning of Article 129 (1) (d). The same
approach of construction applied to the Magistrates Courts established by
Act 13 of 1970, to bring them within the meaning of subordinate Courts
under Article 129 (1) (d).
It is, however, my humble view, that this Court does not have the same
liberty to characterize the GCM created under the UPDF Act, 2005 which was
enacted after the coming into force of the 1995 Constitution, as a
subordinate Court. This is because following the promulgation of the 1995
Constitution, Parliament can only create a subordinate Court by enacting
legislation designed specifically for that purpose. This was not the case for
the GCM. Instead, when Parliament enacted the UPDF Act which provides
for the current version of the GCM, it could only establish a disciplinary body
for the UPDF under Article 210 (a) and (b).
It is, therefore, my view that the GCM is not a subordinate Court within the
meaning of Article 129 (1) (d).

18
Did the GCM have jurisdiction to conduct the arraignment of the
respondent?
The respondent averred in his Petition that his arraignment in the GCM was
unconstitutional due to lack of jurisdiction of the GCM to conduct the same.
In support of his averment, the respondent contended that the lawful
jurisdiction of the GCM under Article 210 of the 1995 Constitution, is limited
to hearing cases involving members of the UPDF, and since he was not a
member of the UPDF, his arraignment in the GCM was unconstitutional. In
light of the views I expressed earlier as to the lawful nature of the GCM’s
jurisdiction, which is to exercise jurisdiction as a disciplinary body for only
members of the UPDF, I would find that the respondent’s averments in this
regard have merit. Therefore, I entirely agree with The Hon. The Chief
Justice’s views on this point.
Lack of capacity of the GCM and other military courts to exercise a
general judicial function
In my view, there exists several deficiencies in the set-up and operations of
the GCM that diminish its capacity to properly adjudicate cases. These have
been the subject of comprehensive analysis in respective judgments of the
Hon. The Chief Justice and Mugenyi, JSC and include: 1) the objective lack
of independence of both the GCM as a Court, and of its members, as
individuals; 2) the lack of competence of the members of the GCM due to
their lack of legal training and knowledge; 3) the absence of effective
mechanisms for reviewing the correctness of the decisions of the GCM.
It is well-established that our Constitution was put in place to ensure a just,
free and democratic nation. It is for that reason that provision was made
under Chapter IV of the 1995 Constitution for various fundamental rights
which are all aimed at ensuring justice to all people. It is also for that reason
that Courts of Judicature were established under Chapter 8 of the 1995
Constitution to exercise the judicial function fairly and do justice in all cases.
In respect to criminal trials, the needs of justice require that accused persons
are tried before competent Courts or bodies that are capable of guaranteeing
the right to a fair trial. Unfortunately, the deficiencies highlighted above
19
render it impossible for any objective observer to conclude that the GCM can
guarantee the right to a fair trial, and as it is well known, a fair trial is a vital
pre-requisite for ensuring justice in criminal cases. I, therefore, find myself
in complete agreement with the analysis and views of The Hon. The Chief
Justice and Mugenyi, JSC on the deficiencies in the GCM, and how they
render the GCM incapable of according a fair trial to the people that fall
within its jurisdiction.
In light of the GCM deficiencies highlighted above, it is, in my view,
necessary, not only to give a strained construction of the matters that
properly fall within the ambit of “discipline and removal of the members of
the UPDF” but also to ensure that as far as possible offences are tried by
courts of judicature and not the military Courts. It is, therefore, inappropriate
to grant the military courts jurisdiction beyond the trial of members of the
UPDF for disciplinary offences under Part VI and the imposition of disciplinary
sanctions as punishment, for those guilty of disciplinary offences. All other
criminal matters ought to be handled by the Courts of Judicature. However,
even in cases involving disciplinary offences under Part VI, there should be
established mechanisms providing for review/revision of the decisions of the
military courts by the courts of judicature, to ensure that the ends of justice
are met.
In conclusion, for the reasons given in this judgment, I would dismiss the
appeal and allow the cross-appeal. I would make declarations (iv), (v), (vi),
(vii) and (x) and orders 1, 2, 3, 4, 6 and 7 contained in the judgment of The
Hon. The Chief Justice since they are consistent with the findings in my
judgment. I would also commend The Hon. The Chief’s Justice’s advisory
orders to the attention of the learned Attorney General. I would then make
the following separate declarations arising from the findings in this
judgment:
a) The General Court Martial is not a subordinate Court within the meaning
of Article 129 (1) (d) of the 1995 Constitution.
b) The General Court Martial and other military courts are disciplinary organs
of the UPDF established under Article 210 (a) whose jurisdiction is limited
20
 by Article 210 (b) to handling matters related to discipline and removal of
members of the UPDF, including formal and assimilated members of the
UPDF, as stipulated under Section 119 (1) (a)-(f) of the UPDF Act.
c) The jurisdiction of the General Court Martial and other military courts is
under, Article 210 (b), limited to hearing matters involving disciplinary
offences under Part VI of the UPDF Act committed by members of the
UPDF as defined in paragraph (b), and is also limited to the imposition
of disciplinary sanctions to the members of the UPDF found guilty of
commission of disciplinary offences, including: dismissal, dismissal with
disgrace, reduction in rank, forfeiture of seniority, suspension, severe
reprimand, reprimand and caution as provided for under Section 221 (1)
of the UPDF Act.
d) The jurisdiction of the General Court Martial and other military Courts
does not extend to hearing cases involving civilians who are neither formal
nor assimilated members of the UPDF as defined in paragraph (b)
e) The hearing of cases involving civilian non-members of the UPDF falls
within the jurisdiction of Courts of judicature established under Chapter 8
of the 1995 Constitution.
f) The hearing of cases involving members of the UPDF, as defined in
paragraph (b) above, for the commission of offences under Part VI, and
where it is appropriate to impose a sentence of imprisonment or a more
serious sentence, falls within the jurisdiction of the Courts of Judicature
established under Chapter 8 of the 1995 Constitution.
g) The hearing of cases involving members of the UPDF, as defined in
paragraph (b) above, for the commission of general civilian offences
created under any enactment other than Part VI of the UPDF Act falls
within the jurisdiction of the Courts of Judicature established under
Chapter 8 of the 1995 Constitution.
h) Sections 2, 119 (1) (h) and (g) and Section 179 of the UPDF Act, in so far
as, they confer jurisdiction on the General Court Martial and other military

21
 courts, contrary to the constitutional limits described in this judgment, are
unconstitutional and null and void.
I would make the following orders in addition to the ones I adopted from
The Hon. The Chief Justice’s judgment:
1. Going forward, only cases involving members of the UPDF and related to
disciplinary offences under Part VI of the UPDF Act should be tried by the
General Court Martial and other military Courts, and that only the
disciplinary sanctions as described at (c) above can be imposed by the
military courts in those cases.
2. Where a military court determines that the imposition of a more serious
punishment, such as imprisonment or the death sentence is necessary in
addition to removal from service, the military court shall forward the case
file to the Director Public Prosecutions with a recommendation for
institution of criminal proceedings in a competent Court of Judicature.
3. I would award the costs of the appeal and the cross-appeal in this Court
and the costs in the Constitutional Court to the respondent.
Dated at Kampala this …31st ………. day of.…January…………….2025.

…………………………………………………………………
Elizabeth Musoke
Justice of the Supreme Court

22
 THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA AT KAMPALA
Coram: Owiny-Dollo, CJ; Mwondha; Tuhaise; Chibita;
Musoke; Bamugemereire; Mugenyi; JJSC
CONSTITUTIONAL APPEAL NO. 02 of 2021
(Arising from Constitutional Petition No. 45 of 2016)

ATTORNEY GENERAL:::::::::::::::::::::APPELLANT/ CROSS

RESPONDENT
VERSUS
HON. MICHAEL A.
KABAZIGURUKA :::::::::::::::::::::::: RESPONDENT/ CROSS
APPELLANT
[Appeal from the decision of the Constitutional Court in Constitutional
Petition No. 45 of 2016 before (Kakuru, Obura, Kasule JJCC; and
Madrama, Musota JJCC. dissenting) dated 1st July 2021 at Kampala]

JUDGMENT OF CATHERINE BAMUGEMEREIRE, JSC

1. I have had the opportunity to read the draft opinion of
the Hon. The Chief Justice. He ably sets out the
questions for determination before us and has cited the
relevant sections of the UPDF Act CAP 330 (formerly
CAP 307) and related Constitutional provisions which
are said to have been contravened. Please note that
volumes and sections of the law will be cited under the
immediate past Laws of Uganda volumes and the most
recently published edition.
2. I would allow the main appeal, in part.
3. The Attorney General lodged an appeal against the
decision of the Constitutional Court dated 1st July
2021. The respondent had challenged the competence
of the General Court Martial (GCM) to try civilians
1
 under the Uganda Peoples Defence Forces (UPDF) Act,
alleging that the continuance of these trials violates
constitutional provisions, including Articles 28(1),
44(c), and 210(b) of the Constitution.
4. The Constitutional Court being a court of 1st instance
in constitutional matters heard the petition and decided
that the General Court Martial is a constitutionally
established court set up to handle cases of military
discipline for UPDF members but lacks jurisdiction to
try civilians for offences under the Penal Code Act or
other enactments.
5. As a result, sections 2 (now section 1), 119(1)(h) (now
section 117 (1)(h), and section 179 (now 177) of the
UPDF Act, which expand military jurisdiction of the
courts martial to include civilians and classifies civil
offences as service offences, were declared
unconstitutional for violating fair trial guarantees and
exceeding the mandate under Article 210(b). Finally,
the Court found that section 119 (read 117) (1) (g) is not
unconstitutional provided the person not otherwise
subject to military law is tried as an accomplice together
with a person who is subject to military law as the
principal offender on the same charge sheet.

Introduction

6. I will commence by stating that I am abundantly aware of

the tension that exists between ensuring unfettered
military discipline and compliance with the tenets of the
constitutional right to a fair hearing which should be
2
 available to all human beings including men and women
who serve in the military. This entails a delicate balance
on a constitutional landscape which the courts are
obligated to navigate. I give a synopsis of the history of
military justice and courts-martial through the ages and
examine how our current laws and practice fit in the
broader context.

Military Justice through the Centuries

7. The court-martial system is an age-old mechanism which

evolved through the centuries to meet the competing needs
of military discipline and justice. Over the years the
conflict between the interests of justice, on the one hand,
and the demands for an efficient, well-disciplined military,
on the other, have widened. The constitutional safeguards
on individual liberty should ordinarily provide checks on
the power of courts-martial where they are incompatible
with the guarantee of due process rights. In this judgment
I seek to trace the historical evolution of courts-martial
from the Roman Military Tribunals, the British courts of
chivalry, the American Uniform Code of Military Justice to
Uganda’s military legal framework. The reason for going
down the history lane is to illustrate the dark past of
human endeavours and the effect of including due
processes in military justice. The test against which we
should weigh ourselves is whether we meet the highest
standards of constitutionalism and human dignity.

3
 Early Models of Military Court
8. Courts-martial pre-date as far back as before the
emergence of the Roman Empire. While the Roman Empire
is often considered one of the most influential and
impactful empires in history, most historians would not
consider it the "greatest" empire in terms of sheer size. I
will trace the epoch of the Roman Empire. The Romans
are credited with having been able to codify and keep an
accurate record of their occupations, actions, and
decisions. The Roman Empire's legacy of military
discipline continues to echo throughout history. The
Romans’ iron-fisted discipline and punishments were
known to be extreme. They believed in the principle of
decimation. By decimation, one in ten soldiers was
executed for what was known as collective disobedience
such as mutiny, tree-sitting, food-dumping and hijacks.
Annihilation was the extreme measure historically used to
enforce discipline in the rank and file of the Roman army.
This approach, while no longer practiced, highlights the
origins of military justice as a tool for maintaining order
(Schlueter, 1980). As a result of complaints for wrongful
executions, the Romans introduced some forms of military
trials or magistri militum.
9. Needless to add, military justice in Europe began with the
Roman Empire, where tribunals were presided over by
magistri militum or legionary tribunes. These early courts
were focused on maintaining order within the Roman

4
 legions, dealing with offences such as cowardice, mutiny,
and desertion. Roman military codes resultantly
influenced early European military systems.
10. The Salic and Lombard tribes settled in present day
Scandinavia and in Bohemia in Germany. They inhabited
and ruled Italy in the Middle Ages. They are known to have
been a vicious and vindictive people who, influenced by the
Romans, adopted equally retributive laws.
The Normans
11. The Normans were a tribe from Norway, Denmark and
Iceland who conquered parts of France, Sweden and
invaded Wales and Scotland. The Normans who invaded
England came from Normandy. They defeated the English
army in the battle of Hastings in 1066.
12. A notable Norman influence in military discipline was
the trial by combat. The Normans also introduced trial by
combat, which was often used to settle disagreements over
money or land. In this type of trial, the complainant and
the one complained against were engaged in physical fight
until one was killed or was too wounded to battle. The loser
was put to death by hanging owing to the belief that God
had already found such a person guilty. In the 19th
Century winning disputes by duel was outlawed and the
survivor could be charged and tried for criminal offences.
13. The Duke of Normandy became known as William the
conqueror during whose reign, military justice was heavily
influenced by such feudal traditions as duels and trial by
combat. The court of chivalry, introduced by William the

5
 Conqueror, allowed for trial by combat, where disputes
were settled through physical confrontation. At his
coronation, William promised to uphold existing laws and
customs. The Anglo-Saxon shire courts (100s of them)
were made of a local sheriff, local lords, bishops and four
local representatives and administered defence and tax, as
well as justice matters. These remained intact during the
invasion of the Normans as did regional variations and
private Anglo-Saxon jurisdictions. They are probably the
nearest form of trial by jury.
14. Although the practice of shire courts was later
abolished, the principle of resolving disputes within the
military hierarchy persisted, influencing the development
of courts-martial. Today the adversarial system in the
courts of law mirrors the duel only this time it’s a war of
the pen and of words.
15. By the 17th century, King Gustavus Adolphus of Sweden
had formalized military justice with his 167 Articles of War,
introducing regimental and standing courts-martial to
enforce discipline and morality. He disciplined his army
through a strict code of military law, emphasizing rigorous
training, consistent drills, severe punishments for
infractions, and a system of hierarchy where officers were
held accountable for their troops' behaviour, all
contributing to the creation of a highly disciplined and
unified fighting force, considered revolutionary for its
time; his methods were written about in the "Articles of
War" which outlined several regulations. It is worth noting

6
 that the military systems Gustavus Adolphus set up were
credited with fairness and morality, influencing both
European and British military laws.
16. Military Justice in the Soviet Union
17. I will briefly outline military discipline in the Soviet
Union as it then was.
18. Soviet writers, like the late Marshal Grechko, recognized
that discipline was achieved by means of punishment, or
with a system of awards and incentives, and by enhanced
patriotic zeal to boost morale and thereby instil a will to
fight. Be that as it may, the historical record seems to
indicate that a cultural reliance on methods of physical
punishment to impose discipline were rampant. Lenin and
Stalin both demanded severe discipline in the armed forces
to safeguard the regime and to effectively use the
implements of modern war like the tank and the airplane.
19. Soviet soldiers and sailors were supposedly only
permitted to drink when expressly allowed in accordance
with regulations. The Soviet soldier drunk when the
opportunity to drink presented itself in direct violation of
disciplinary restrictions. This included resorting to
drinking eau de cologne or eating shoe Polish when vodka
was unavailable. The development and use of the knout, a
Russian refinement of the cat-o-nine-tails for whippings
and beatings often resulted in death for actual and
perceived offences.
20. One of the most notorious infractions a soldier could
commit was drunkenness. This persistent inspection and

7
 searches of the Soviet military personnel frequently made
it difficult to smuggle alcohol into their garrisons and
posts. Viktor Suvorov, a nonfiction writer, identified
alcohol abuse as the primary cause of disciplinary
infractions in the Soviet armed forces, resulting not only in
drunkenness, but also in theft, bribery, record
falsification, and deliberate equipment damage. Alcohol
was used not only to deaden the senses and allow a period
of escape from the hardships and pressures of daily life, it
was also used to celebrate and commemorate every event.
This contravention though minor could lead to severe
punishment including imprisonment or banishment to
Siberia.

21. The British System and Courts of Chivalry

22. The British military justice system drew heavily from the
medieval court of chivalry, also known as the constable’s
or marshal’s court. Introduced to England by William the
Conqueror, it handled disputes involving military
discipline, honour, and criminal acts. The court followed
military leaders in wartime, rendering swift punishments.
However, the court of chivalry eventually fell into disuse
due to its overreach and inefficiency, paving the way for
more structured tribunals.
23. The Council of War
24. The decline of the court of chivalry led to the rise of
councils of war during the reigns of Edward VI and
Elizabeth I. These temporary tribunals dealt with offences
8
 like mutiny and desertion in both wartime and peacetime.
Over time, these councils became more structured and
served as the foundation for modern courts-martial.
Significantly, these councils protected civilians from
military rule. An example is from 1625 to 1628, Charles I
attempted to use court martial jurisdiction as a lever on
the populace in hopes of obtaining supplies. He was
unsuccessful, and when he sought the necessary funds
from parliament, he was compelled to assent to the Petition
of Right (1628). This petition, among other things,
dissolved the commissions proceeding under military law.
Charles agreed to imprison no one except with due process
of law and to never again subject civilians to court martial
(Schlueter, 1980).

25. The First Mutiny Act

26. The mutiny of 1689 was a revolt by a regiment of
soldiers in England who declined to fight in Holland. The
mutiny led to the passing of the first Mutiny Act in 1688,
which made mutiny a crime punishable by death. The
Mutiny Act of 1689 marked a turning point in British
military justice. It established a legal framework for courts-
martial, ensuring discipline while introducing procedural
safeguards, such as limiting punishments during
peacetime.
27. Key issues in the development of British military law
included: a significant struggle between the Crown and
Parliament over control of the military justice system,
9
 reflecting public reluctance to grant excessive authority to
military courts; the evolution from the court of chivalry
under royal prerogative to one operating under legislative
enactment, showing public endorsement.
28. The British court-martial developed military due
process, moving from trial by combat to granting rights
such as notice, defence, and argument; gradual limitation
of the court-martial's jurisdiction to soldiers rather than
the general populace, with legislative measures curbing
any attempts to expand its power. These formative
centuries established a robust foundation for the American
system, which began in 1775. (Schlueter, 1980)
29. The American Court-Martial System
30. The British military system greatly influenced many of
the British colonies which includes America. Below is an
examination of the first key periods in the evolution of the
American martial law.

31. Formative Years (1775-1800)

32. The American military justice system originated during
the Revolutionary War, drawing heavily from British
military codes. The 1776 Articles of War were largely based
on the British Articles of War.
33. The revision in 1776 resulted from a suggestion by
General Washington. The revising committee included
John Adams, Thomas Jefferson, John Rutledge, James
Wilson, and R.R. Livingston. S.T. Ansell, acting Judge

10
 Advocate General of the Army from 1917 to 1919, harshly
criticized the American system of military justice.
34. According to Ansell, discussing the Articles of War of
1776, John Adams “was responsible for their hasty
adoption . . . to meet an emergency.” Ansell also offers the
following illuminating quotation from the writings of John
Adams:
35. “There was extant, I observed, one system of Articles of
War which had carried two empires to the head of mankind,
the Roman and the British; for the British Articles of War are
only a literal translation of the Roman. It would be vain for
us to seek in our own invention or the records of warlike
nations for a more complete system of military discipline. I
was, therefore, for reporting the British Articles of War
totidem verbis.
36. So undigested were the notices of liberty prevalent
among the majority of the members most zealously attached
to the public cause that to this day I scarcely know how it
was possible that these articles should have been carried.
They were adopted, however, and they have governed our
armies with little variation to this day.” (Schlueter, 1980)
37. The Articles of War introduced general and regimental
courts-martial, emphasizing the right to procedural
fairness.
38. From 1800 to 1900, the American system saw minimal
changes. The 1806 Articles of War expanded procedural
safeguards, such as barring double jeopardy and allowing
accused persons to challenge court members. This period

11
 laid the groundwork for the modern court-martial system
(Schlueter 1980).
39. The Uniform Code of Military Justice (UCMJ), enacted
in 1950, unified military legal systems across U.S. armed
forces. The UCMJ emphasized rights for the accused,
including representation, -speedy trial, appeal, and
protection against self-incrimination. The UCMJ is the
current statutory template for military justice and the
conduct of courts martial.

40. The Evolution of Uganda’s Military Justice System

41. I will now lean into how our own courts-martial has
evolved over time. The development of Uganda’s military
justice system may be categorised into five major stages:
military justice during the colonial era (1895-1962);
military justice in the immediate post-independence period
(1962-1971); military justice in the (1971- 1979); military
justice under the NRA Codes of Conduct (1986-1992); and
military justice under the 2005 Uganda Peoples’ Defence
Forces Act (2005) to date. (Naluwairo, 2011). Prior to
1895, in the area that became Uganda, there existed
various kingdoms and each kingdom had its own army.
42. Military Justice During the Colonial Era (1895-1962)
43. Uganda is a land-locked country measuring 93,263
square miles in land mass. Its size is comparable to the
United Kingdom which measure 94,060 square miles. The

12
 borders as they are known today did not exist in the
current form prior to 1884.
44. Precolonial Uganda was made up of ethnic groupings
which were loosely connected to each other and broadly
divided into larger groupings such as the Nilotics, the
Bantus, the Hamites and the Nilo Hamites. There,
however, existed larger ethnic groupings which were more
organised. Broadly two kingdoms, the Bunyoro Kingdom
and the Buganda Kingdom were known to be highly
organised. The Bunyoro Kingdom which was dissipated
systematically was said to have had superior firepower and
was a threat all around. The Bunyoro kingdom, however,
lost its influence due to both internal but mostly foreign
forces and therefore by the end of the 19th Century it was
no more.
45. Part of Bunyoro’s decline was the power of the foreign
onslaught but more importantly the failure to maintain the
fighting spirit in its ranks. The British gained prominence
thereafter and determined the borders and the trajectory
of Uganda’s military landscape, land tenure and economic
development for a long time.
46. During the colonial era, Uganda's military justice
system was based on British military law. The Uganda
Rifles Ordinance of 1895 established Uganda's national
army. This law, along with subsequent frameworks from
the British Parliament, shaped the origins of Uganda’s
military justice system. The Uganda Rifles Ordinance was
replaced by the Uganda Military Force Ordinance in 1899.

13
 In 1902, the King’s African Rifles Ordinance was enacted,
emphasizing strict discipline and command authority.
47. It is important, though, to observe that military justice
systems of the time including the so-called developed
world were arbitrary and tyrannical in nature. They were
heavily disciplinarian and generally emphasized the iron
hand of discipline over fairness and justice as the core of
military justice. As Sherman rightly observes, “it was after
World War II, and mainly as a result of popular
dissatisfaction with wartime military justice, that many
western nations began to re-examine the arbitrariness of
their military justice systems and started adopting more
judicial approaches and procedures.” (Sherman E, 1973)

48. Military Justice in the Immediate Post-

Independence Period (1962-1971)
49. After independence, Uganda's Parliament retained the
British military justice framework. In October 1963,
Parliament confirmed the continued operation of the 1958
Uganda Military Forces Ordinance. In September 1964,
the Armed Forces Act replaced this ordinance, establishing
a three-tier court-martial system: the general court
martial, the disciplinary court martial, and the court
martial appeals court. (Mujuzi,2022)(Omara-Otunnu,
1987).

14
50. Military Justice the 1971-1979 Era
51. As soon as the military took power after the 1971 coup
de ’tat, the 1967 Constitution was suspended. A Military
Council was appointed, which became the quasi
parliament. It was rule by Decree with close to thirty
Decrees issued in eight years.

52. The 1971-1979 regime projected military strength in

many ways including the use of military justice. Early in
1975, Amin published the Economic Crimes Decree. It
established a military court called the Economic Crimes
Tribunal. Its judges were empowered to punish profiteers,
hoarders and others who acted against the economic
interests of the state. The penalty was death by firing
squad or 10 years in prison.

53. The military was used as a tool for political control, with
widespread unfettered abuse of power leading to human
rights violations. Military tribunals tried civilians and
soldiers alike, and the legal process was often arbitrary,
with little regard for fairness or due process. The military
justice system was politicized. Under the military era,
military tribunals took precedence over civil courts.

15
54. Military Justice Under the NRA Codes of Conduct
(1986-1992)
55. Following the National Resistance Army (NRA) taking
power in 1986, great emphasis was placed on reforming
the military. Codes of Conduct were developed to promote
military discipline and accountability.

56. The Uganda People’s Defence Forces

57. The enactment of the 2005 Uganda Peoples'

Defence Forces (UPDF) Act formalized military justice in
Uganda, providing a legal framework for the operation
of military tribunals. This Act established procedures
for the trial and discipline of military personnel.
Following the enactment of the UPDF Act, the National
Resistance Army metamorphosized into the Uganda
Peoples Defence Forces.

58. In its military institutional frameworks Uganda

borrows heavily from the British and American system
and indeed from the former Soviet States. The Judge
Advocate, Ordnance Surveys to guard the integrity of
the national grid and for protection of a country’s
boundaries and the Political Commissar, a Soviet
creation, are but vestiges of our non-aligned
associations.

16
1. Composition of Military Courts in Uganda

2. The Constitution of Uganda and the Uganda Peoples’

Defence Forces Act (UPDF Act) regulate military courts
in Uganda. Article 210 of the Constitution empowers
Parliament to regulate the Uganda Peoples’ Defence Forces
(UPDF), including establishing and operating military
courts. Under this framework, Parliament enacted the
UPDF Act to operationalize the regulation of military
activities, including the composition and jurisdiction of
military courts.

3. The General Court Martial (GCM)

4. Section 197 of the UPDF Act establishes the General Court

Martial (GCM) as the primary military court. Its
composition includes a Chairperson: Rank not below
Lieutenant Colonel; two senior officers; two junior
officers; a political Commissar; and one non-
commissioned officer. The High Command appoints
them for a term of one year.

5. Jurisdiction

6. The General Court Martial has special jurisdiction over all

offences under the UPDF Act. It has the power to review
decisions from Division Courts Martial and Unit
Disciplinary Committees. The GCM may revise findings,
sentences, or orders from Summary Trial Authorities and

17
 Unit Disciplinary Committees. The GCM may sit at any
location.

7. The General Court Martial has special jurisdiction over

service offences. Section 2 defines a service offence as
an offence under this Act or any other Act for the time
being in force, committed by a person while subject
to military law. Courts have overtime interpreted what
service offences really mean. Attorney General v Uganda
Law Society Constitutional Appeal No. 1 of 2006 [2009]
UGSC 2 is considered but this court may need to rethink
its interpretation of the service and non-service or civilian
offences.

8. Section 119(1) of the UPDF Act defines individuals subject

to military law, including officers and militants of the
Regular Force, officers and militants of the Reserve Force
during training or active service. Service offences as
described by the UPDF Act include the trial of civilians who
aid or abet military personnel in committing service
offences (Section 119(1)(g)); civilians found unlawfully
possessing arms, ammunition, or equipment exclusive to
the Defence Forces (Section 119(1)(h)).

9. Of particular interest to this appeal is section 119(1)(g)

which allows military courts to try civilians who aid or abet
military personnel in service offences and section 119(1)(h)
which allows military courts to try civilians found

18
 unlawfully possessing arms, ammunition, or equipment
exclusive to the Defence Forces.

10. This appeal draws attention to the constitutionality of

UPDF Act in as far as the courts-martial under it try
serving officers and civilians for service and civil offences.
Uganda just like many of its counter parts has introduced
and effected many legal reforms that are geared towards
institutional reforms and a military legal regime in line
with set international human rights standards and
reforms.
11. Of key significance to the discourse today is the
determination whether sections 179 (read s. 177) of the
UPDF Act and sections 119(read s. 117 )(1)(g) and (h) are
in tandem with article 28 and 44 (c) of the Constitution. I
will also make reference to section 2 (read s.1) of the UPDF
Act in as far as it defines a service offence and military law.
Article 210 of the Constitution vests power in parliament
to regulate the Uganda Peoples Defence Forces.

12. To this end, the Parliament of Uganda enacted the UPDF

Act to provide for the regulation of the UPDF in line with
Article 210 of the Constitution. The long Title of the UPDF
Act 2005 stipulates that the UPDF Act is … An Act to
provide for the regulation of the Uganda Peoples’ Defence
Forces in accordance with article 210 of the Constitution…”

13. A determination of the intention of the Legislature is

necessary to find whether they intended to vest the Court

19
 Martial with jurisdiction to try only serving officers who
were accused of committing a service offence or whether
this jurisdiction is extended to try civilians who commit
service offences or who find themselves under the ambit
of military law.

14. What is the position of trying civilians by military courts

in international law?

15. Human Rights Committee doctrine on the trial of

civilians by military courts has developed significantly over
the past fifteen years. Traditionally, the Committee did not
believe that trying civilians was incompatible per se with
the provisions of the International Covenant on Civil and
Political Rights and article 14.

16. The International Covenant on Civil and Political

Rights in article 14 states that "[a]ll persons shall be equal
before the courts and tribunals [and] [i]n the determination
of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a
fair and public hearing by a competent, independent and
impartial tribunal established by law".

17. In its concluding observations to Uzbekistan, the

Human Rights Committee noted "with concern that
military courts have broad jurisdiction. It is not confined
to criminal cases involving members of the armed forces
but also covers civil and criminal cases when, in the

20
 opinion of the executive, the exceptional circumstances of
a particular case do not allow the operation of the courts
of general jurisdiction. The Committee notes that the State
party has not provided information on the definition of
'exceptional circumstances' and is concerned that these
courts have jurisdiction to deal with civil and criminal
cases involving non-military persons, in contravention of
articles 14 and 26 of the Covenant". The Committee urged
the Uzbek authorities to "adopt the necessary legislative
measures to restrict the jurisdiction of the military courts
to trial of members of the military accused of military
offences".
18. (See Concluding observations of the Human Rights
Committee :Uzbekistan, United Nations document
CCPR/CO/71/UZB, 26 May 2001, paragraph 15.)

19. Section 2 (read s.1) of the UPDF Act defines a service

offence to mean an offence under this Act or any other Act
for the time being in force, committed by a person while
subject to military law; The same section defines military
law to mean Parts V to XIV of the Act. Part V of the UPDF
Act provides for persons subject to Military Law. Section
118 (1) of the UPDF Act provides for the Code of Conduct
for the Defence Forces and states that There shall be a
Code of Conduct for the purpose of guiding and disciplining
members of the Defence Forces, as set out in the Seventh
Schedule to this Act.

21
20. Section 119 of the UPDF Act details the persons that are
subject to military law under the Act: (1) Including the
following —(a)every officer and militant of a regular force
(b)every officer and militant of the Reserve Forces and
any prescribed force when he or she is—(i)undergoing drill
or training whether in uniform or not;(ii)in uniform;(iii)on
duty;(iv)on continuing full time military service;(v)on active
service;(vi)in or on any vessel, vehicle or aircraft of
the Defence Forces or any defence establishment or work
for defence;(vii)serving with any unit of a Regular Force;
or(viii)present, whether in uniform or not, at any drill or
training of a unit of the Defence Forces;(c)subject to such
exceptions, adaptations, and modifications as the Defence
Forces Council may by regulations, prescribe, a person
who under any arrangement is attached or seconded as
an officer or a militant to any Service or force of
the Defence Forces;(d)every person, not otherwise subject
to military law, who is serving in the position of
an officer or a militant of any force raised and maintained
outside Uganda and commanded by an officer of
the Defence Forces;(e)every person, not otherwise subject
to military law, who voluntarily accompanies any unit or
other element of the Defence Forces which is on service in
any place;(f) every person, not otherwise subject to military
law while serving with the Defence Forces under an
engagement by which he or she has agreed to be subject
to military law;(g) every person, not otherwise subject
to military law, who aids or abets a person subject

22
 to military law in the commission of a service offence;
and(h)every person found in unlawful possession of—
(i)arms, ammunition or equipment ordinarily being the
monopoly of the Defence Forces; or(ii)other classified
stores as prescribed.
21. The above captioned section provides the extent to
which the jurisdiction of the court martial swings so wide
as to subsume civilians and expand offending. The wide-
ranging offences that such courts-martial can try have
opened wide the door to try any and every person the GCM
would wish to try. Taken as it is, jurisdiction is an
overreach.
22. Reverting to the long title of the UPDF Act, it is clear
that the application of the law was to be restrictive rather
than general as it specifically states that it is an Act to
regulate the Uganda Peoples Defence Forces. To this end,
section 197 of the UPDF Act also states clearly that there
shall be a court martial for the defence forces.
23. The reading of section 119 (1) (g) and (h) of the UPDF
Act brings Civilians under the purview of courts-martial ;
(g)every person, not otherwise subject to military law, who
aids or abets a person subject to military law in the
commission of a service offence; and(h)every person found
in unlawful possession of—(i)arms, ammunition or
equipment ordinarily being the monopoly of the Defence
Forces; or(ii)other classified stores as prescribed.

23
24. Section 179 (read s. 177) and section 180 (read 178) of
the UPDF Act widens the scope of civil offences currently
triable by courts-martial.
25. Section 179 provides as follows:
26. Service trial of civil offences.
27. (1) A person subject to military law, who does or omits
to do an act— (a) in Uganda, which constitutes an offence
under the Penal Code Act or any other enactment.
28. (b) outside Uganda, which would constitute an offence
under the Penal Code Act or any other enactment if it had
taken place in Uganda, commits a service offence and is,
on conviction, liable to a punishment as prescribed in
subsection (2).
29. The language of section 179 (read 177) cited together
with section 180 (read s.177) of the UPDF Act swings from
trial of military or serving officers by the courts-martial to
trial of civilians for offences that are provided for in other
enactments such as the Penal Code Act, the Firearms Act,
the Ant-Terrorism Act and others.
30. Notably, the provisions in section 119 (read s. 117)
& 179 (read s. 177) are at odds with the constitutional
guarantees under Chapter 4 and 8 of the Constitution
of the Republic of Uganda. The current status of courts-
martial in Uganda is that all the officers who sit on the
General Court Martial are serving army officers who are
appointed by the High Command and are men under
authority at all times. This means that the set-up of the
military courts does not follow a process that gives

24
assurances that they will be independent and will
deliver justice without fear or favour. By the very nature
of their appointment, structure and reporting lines, the
courts-martial are firmly under superior command and
possible instruction. Under articles 21 and 28 of the
Constitution which provide for equality before the law
and a free and fair trial, the following guarantees were
envisaged: Equality: That all persons are equal before
the law hence when they appear before a court they
should be treated equally regardless of their race,
gender, age, or other factors. Presumption of innocence:
An accused is presumed innocent until proven guilty.
Burden of proof: The prosecution must prove its case
beyond a reasonable doubt. Independent and impartial
tribunal: the trial is conducted by an impartial tribunal.
Opportunity to present evidence: the accused is granted
the opportunity to present evidence and to challenge
the prosecution's evidence through cross-examination.
Right to an interpreter: the accused has the right to an
interpreter if they cannot understand the language
being used in court. Protection from self-incrimination:
the accused has protection from being forced to
incriminate themselves. Right to a public hearing: that
the trial shall be open to the public. Right to be
represented by a lawyer: that the accused has the right
to be represented by a lawyer of her choice at all stages
of the trial.

25
 31. Determination of the jurisdiction of the courts-
martial attracts the investigation of the legislative
intent. Was it the intention of Parliament to vest the
courts-martial with jurisdiction to try only serving
officers accused of committing a service offense or was
it their intention to extend military jurisdiction to
civilians?
32. It is of necessity that I zoom in on the constitutionality
of section 179 (read s.177) of the UPDF Act and sections
119 (read s.177)(1)(g)and (h) in as much as these vest
courts-martial with jurisdiction to try civilians and those
persons, civilian or not, who are accused of committing
civil offences, a point of contention in the present appeal.
As stated earlier, the UPDF Act is a creature of the Statute
and therefore where any part of it is found to be in
contravention of the Constitution of the Republic of
Uganda, that portion of the Act can be declared
unconstitutional to the extent of its inconsistency.
33. Article 2 of the Constitution provides for the Supremacy
of the Constitution and stipulates:
34. Supremacy of the Constitution.
35. 1) This Constitution is the supreme law of Uganda and
shall have binding force on all authorities and persons
throughout Uganda. In Attorney General v Salvatori
Abuki, Constitution Petition No. 1 of 1998, it was held
that in determining the constitutionality of any legislation,
its purpose and effect must be taken into consideration.
This thus requires this Court to appraise the ideal purpose

26
 and significance of the UPDF Act. Article 28(1) of the
Constitution provides for a right to fair hearing and states
that;
36. (1) In the determination of civil rights and obligations, or
any criminal charge, a person shall be entitled to a fair,
speedy and public hearing before an independent and
impartial court or tribunal established by law.
37. Article 44 states as follows:
38. Prohibition of derogation
39. Notwithstanding anything in this Constitution, there
shall be no derogation from the enjoyment of the following
rights and freedoms—
40. (a) freedom from torture and cruel, inhuman or
degrading treatment; freedom from slavery or servitude; c;
the right to a fair hearing; d; the right to an order of habeas
corpus
41. Article 44 of the Constitution of the Republic of Uganda
1995 provides safeguards against the deprivation of
certain fundamental rights, specifically guaranteeing that
no one can be subjected to torture, cruel, inhuman or
degrading treatment or punishment, slavery or servitude,
and that everyone has the right to a fair hearing and an
order of habeas corpus; essentially establishing these
rights as "non-derogable" meaning they cannot be taken
away even in emergency situations.

42. I would quickly add that article 43 provides that it is in

the public interest to not permit any limitation of the

27
 enjoyment of the rights and freedoms prescribed by the
Constitution beyond what is acceptable and demonstrably
justifiable in a free and democratic society, or what is
provided in this Constitution.

43. According to the latest UN jurisprudence, particularly

from the Human Rights Committee, the trial of civilians by
military courts is generally considered a violation of
international law, as it is seen as a breach of the principle
of a fair trial and the right to an independent and impartial
tribunal, meaning civilians should not be tried in military
courts unless in very limited circumstances and with strict
safeguards in place; essentially, the prevailing view is that
civilian courts are the appropriate venue for trying
civilians. See UN Human Rights Committee General Comment
No. 32.

44. A granular look at the definition of a service offence

under section 2 of the UPDF Act surfaces the desire to
stretch the definition of a service offence to mean not only
an offence under UPDF Act but also vaguely refers to any
other Act. It widens the scope and the jurisdiction of the
GCM and includes service offences beyond what was
envisaged under the UPDF Act. Its import is to make a
liable person to commit a service offence under any other
law other than the UPDF Act. There is a disparity in the
law given that the UPDF Act is primarily established to
regulate the army and its operations and to instil military

28
 discipline within the rank and file, as well as to uphold the
military code of conduct.

45. It goes without saying that trial of civilians before the

military courts has complexities that this Court is
inquiring into. The UPDF Act brings civilians under its
purview through the courts-martial in so far as its
definition of a service offence is interpreted as falling
within the wide scope of civil offences provided for in
sections 119(1)(g) and (h) and section 179 of the UPDF Act.

46. Notably, in Namugerwa Hadijah v Attorney General

SCCA No. 4 of 2012, the Supreme Court found that a
civilian found in unlawful possession of firearms or
classified stores is subject to military law. Court further
held that persons subject to military law would include
civilians under section 119 (1) (g) and (h ) of the UPDF Act.

47. Relatedly in present appeal we are required to answer

the question whether in Hon. Michael Kabaziguruka v
Attorney General Constitutional Petition 45 of 2016)
[2021] UGCC 45 (1 July 2021), the Constitutional Court
acted properly when it held that section 119 (1) (g) is not
unconstitutional provided the person not otherwise
subject to military law is tried as an accomplice together
with a person who is subject to military law as the
principal offender on the same charge sheet.

29
48. In 2nd Lt Ambrose Ogwang v Uganda, Supreme Court
Criminal Appeal No. 48 of 2021, a Uganda People's
Defence Force (UPDF) officer was convicted of murder and
sentenced to life in prison in the courts-martial. He then
went through a trial in the civilian courts and received a
determinate sentence of 29 years and two months’
imprisonment which was affirmed by the Court of Appeal.
Lt Ogwang appealed to the Supreme Court both against
conviction and sentence. The Supreme Court of Uganda,
sitting as the final court of appeal was correct in bringing
to the surface salient issues that the Court of appeal did
not address itself to. The Supreme Court found that the
UPDF Act did not confer any jurisdiction to civilian courts
for them to provide judicial review or to play an appellate
and supervisory role in matters decided in the courts-
martial. As it stands now the UPDF Act has a stand-alone
and parallel judicial structure that is impermeable. The
Court ruled, and correctly so in my view, that the minister
cannot create new appeal pathways through regulations.
The court was correct when it ruled that in Ogwang the
Court of Appeal did not possess the jurisdiction over
appeals from the Court Martial Appeals Court. The
Supreme Court ruled that the UPDF Act creates a separate
judicial system for military personnel which subsumes
civilians as well. The court called for legal reform and
amendment of the UPDF Act for the Courts of Judicature
to be able to exercise their mandate of judicial review over
the courts-martial. In this regard an amendment of

30
 Uganda People’s Defence Forces Act is required to confer
appellate jurisdiction to the courts of Judicature for them
to be able to lawfully entertain appeals from the courts-
martial. The other question Ogwang raises is whether he
committed a service offence for the courts-martial to have
jurisdiction over him. He insists that he ought to have been
tried in a civilian court since the offence was committed
when he was off post and away without pass leave (AWOL).
49. Does the reading of section 119(1) (g) and (h) invoke the
principle of voluntary assumption of risk or should every
person, especially military personnel, expect the courts-
martial to apply the law independently and fairly? We are
sworn to international instruments such as the United
Nations Declaration of Human Rights(UDHR), the
International Covenant on Political and People’s Rights
(ICCPR). It is essential that trials in the courts-martial
under purview here mirror an appreciation of our
constitutional and international obligations.

50. In defining a service offence, in the case of O’ Callahan

v Parker 395 U.S. 258 (1969), the petitioner who was a
United States Army Sergeant while in a civilian attire broke
into a hotel room, assaulted a girl and attempted to rape
her. Following his apprehension, the County police on
learning that the petitioner was in the armed forces
delivered him to the military police.

31
51. Upon interrogation, the petitioner confessed and was
indicted for attempted rape, house breaking and assault
with attempt to rape in violation of articles 80, 130 and
134 of the Uniform Code of Military Justice; was tried by
court martial, convicted on all counts and sentenced. His
conviction was affirmed by the Army Board of Review and
United States Court of Military Appeals. The petitioner filed
for a writ of habeas corpus in the District Court claiming
that the court-martial acted without jurisdiction to try him
on non-military offences committed off post while on an
evening pass. The district court denied the relief. The
Court of Appeals affirmed.

52. On appeal to the US Supreme court, it was held that for

a crime to be under military jurisdiction, it must be service
connected, and since the petitioner’s (O’ Callahan) crimes
were not, he could not be tried by a court martial but was
entitled to a civilian trial with the benefit of an indictment
by a grand jury and trial by jury.

53. Similarly, in Ex parte Milligan (1866, U.S.), the US

Supreme Court ruled that military tribunals cannot try
civilians when civilian courts are operational. In this case
Lambdin P. Milligan, a civilian arrested in Indiana and
tried by a military commission during the Civil War, was
sentenced to death for conspiracy.

54. In Ex Parte Milligan the Court found that the military

commission lacked jurisdiction as civilian courts were

32
 functional, affirming that constitutional rights to due
process and a jury trial cannot be overridden except in
cases of actual warfare.

55. Further comparative jurisprudence on the legality of

trial of civilians before military courts and trial of non-
service offences surfaces the subjectivity of the decision
making of choice of accused persons and forum between
courts-martial and civil courts.

56. The constitutionality of the trial of persons

accompanying the armed forces and charged with non-
capital offences under the uniform code of military justice
was tested in Kinsella v United States, 361 US
234(1960). The appellant contended that the dependant
wife of a soldier can be tried only in a court that affords
her the safeguards of article 3 and the 5th and 6th
Amendments to the Constitution.

57. The court held that article 2(11) of the code was
unconstitutional where it applied to civilian dependants
accompanying the armed forces and charged with non-
capital offences. On appeal to the Supreme Court, it was
held that the Constitution of the United States does not
permit military law to extend to civilians.

58. Presently the question to be answered is whether it is

constitutional to vest courts-martial with jurisdiction to try
civilians. The Constitution of Uganda granted the

33
 Legislature mandate under articles 79 and 210 of the
Constitution to enact laws that regulate the Uganda
Peoples Defence Forces.

59. Constitutionally the body that has the authority to

prosecute civilians or indeed even soldiers is the Office of
the Director of Public Prosecutions (ODPP) under Article
120 (3) of the Constitution. The DPP ensures that an
accused person is subjected to a fair trial by directing
investigations to be carried out by police department, in a
prosecution-led investigation before making a
prosecutorial decision to press or not prefer any charges
against any person.

60. The DPP is obligated to ensure that prosecution of a

person accused of a crime in Uganda is conducted in
accordance with the fundamental rights and freedoms that
ensure a free and fair trial.

61. The structure of the courts-martial raises concerns as

to impartiality and fairness of trial of individuals who are
not subscribed to the military. Given the mode of
appointment of the members of the Panel, the current law
under which they are constituted, the military structure
within which they operate and indeed the reporting lines
of their performance. See Uganda Law Society v Jackson
Karugaba, Constitutional petition No. 2 of 2002. In

34
 Media Rights Agenda and others v Nigeria Comm. No.
224 of 98(2000)

62. The African Commission on Human and Peoples' Rights

addressed the trial of journalist Niran Malaolu by a Special
Military Tribunal. Malaolu’s detention and secret trial for
treason-related charges were found to violate Articles 6
and 7 of the African Charter on Human and Peoples'
Rights. The African Commission found that the tribunal
lacked independence and impartiality, highlighting the
incompatibility of military trials for civilians with
international human rights standards.

63. It has been stated that military courts are best suited to
try military or service offences committed by serving
officers who are subject to the military code of conduct and
attendant military law that governs them. In the Cabrera
García and Montiel-Flores v Mexico, (2010,
IACHR) Judgment of November 26, 2010, the Inter-
American Court of Human Rights held Mexico accountable
for using military courts to try human rights violations.
The Court underscored the principle that military
jurisdiction ought to be limited to service offences
concluding that it was a violation of the InterAmerican
Convention to arrest and subject civilians accused of
contravening environmental rights to torture as this was
abuse of their constitutional rights.

35
64. In the present appeal, it is undisputed that the
respondent-cross appellant was a civilian and member of
parliament representing the people of Nakawa
Municipality in Kampala and was a member of the 10th
Parliament in which he held the responsibility of shadow
Minister for KCCA. He was not a member of the armed
forces subject to military law. He was however arraigned
with others before the General Court Martial and charged
with offences under the UPDF Act which offences the
respondent contends were nonservice offences under the
UPDF Act.

65. The argument for the respondent and cross-appellant

was that as a civilian MP he could not be alleged to have
committed a service offence. My understanding of the
above decided cases is that our courts-martial have
undisputed jurisdiction to try service offences of
individuals serving in the military. This should not include
civilians as civilians are subject to civil courts. Section
2 (read s.1) of the UPDF Act defines a service offence as
one limited to only offences stipulated under the UPDF Act
and is applicable only to persons that are subject to
military law. The jurisdiction of courts martial is properly
vested where there is a demonstrable connection and
causal-link between the service offence alleged to have
been committed and status of the offender as an active-
duty and image-bearer of the armed forces. “Status of the
accused” is pertinent in establishing jurisdiction of

36
 Military Courts. See Military Jurisdiction over
Nonservice connected offences, 27 Wash. & Lee. L.
Rev. 118 (1970) at 119.

66. Common examples of such service offences would

include, desertion, disrespecting superiors,
insubordination, cowardice, collective disobedience such
as mutiny, tree-sitting, drunkenness, war crimes,
espionage, disputes over maggot-infested soup such as
happened in the Potemkin mutiny, and larceny, among
others.

67. In Minister of Defence v Potsane (South Africa,

(2001] ZACC 12, the Constitutional Court of South Africa
upheld the constitutionality of a distinct military justice
system, affirming its necessity for maintaining discipline
in the armed forces. However, it limited military
jurisdiction to service-specific offences.

68. The history of military courts proves they have the

mandate to enforce and instil military discipline in their
rank and file. Whosoever joins the army is presumed to
know that she or he will be subject to military justice
system for any service offence committed.

69. Regarding guarantees against self-incrimination, in

Secretary of the Army v Curry United States Court of
Appeals for the District of Columbia Circuit 595 F.2d.
873 (1979) Robert E. Curry was convicted of two murders

37
 by a general court-martial. After his criminal case
concluded, Curry filed a lawsuit against the Secretary of
the Army (defendant) in a federal district court presided
over by a Judge Advocate.

70. His claim was that court-martial proceedings violated

his Fifth Amendment right to due process or denied him a
right to be heard. The Fifth Amendment to the US
Constitution guarantees that an individual cannot be
compelled by the government to provide incriminating
information about herself – also known as the “right to
remain silent.”

71. When an individual “takes the Fifth,” she invokes that

right and refuses to answer questions or provide
information that might incriminate her. Curry argued that
the court-martial system's structure, including the
convening authority's power to prefer charges and select
court-martial members, was fundamentally at odds with
due process, unconstitutional in the civilian justice
system, and unjustified in the military justice system. The
district court sided with the Army by granting their motion
for summary judgment, prompting Curry to appeal.

72. Curry had argued first that the present structure of the
court-martial is fundamentally incompatible with the Fifth
Amendment guarantee of due process and would be
prohibited in a civilian context. Secondly, he argued that

38
 the military had failed to produce any justification for the
military justice system.

73. Consider the comments of Judge Tamm, writing of the

military court in Curry, facts discussed above beginning
with the unassailable principle that the fundamental
function of the armed forces is “to fight or be ready to fight
wars.” Toth v Quarles, 350 U.S. 11, 17 (1955).
Obedience, discipline, and centralized leadership and
control, including the ability to mobilize forces rapidly, are
all essential if the military is to perform effectively. The
system of military justice must respond to these needs for
all branches of the service, at home and abroad, in time of
peace, and in time of war. It must be practical, efficient,
and flexible.

74. It is an understatement to state that the court-martial

presents a viable means of implementing military justice
in a “practical, efficient, and flexible” manner. (See Toth
supra.

75. The need for national defence mandates an armed force

whose discipline and readiness are not unnecessarily
undermined by the often deliberately cumbersome
concepts of civilian jurisprudence. Yet, the dictates of
individual liberty clearly require some check on military
authority in the conduct of courts-martial. The provisions
with respect to court-martial proceedings represent a
congressional attempt to accommodate the interests of

39
 justice, on the one hand, with the demands for an efficient,
well-disciplined military, on the other.

76. The proposition in Curry (supra) is that the Court of

Appeals in the District of Columbia was comfortable to
confirm Curry’s conviction based on what they found to be
sufficient due process in the courts-martial. Curry (supra)
appears to suggest that the current Military Justice
frameworks obtaining in the United States are so many
times more developed than they were in days of King
Gustavus Adolphus, who by his own standard was more
sophisticated than his predecessors.

77. The true test ought to be directed toward comparing

courts-martial with the contemporary civilian legal forums
since they existed concurrently along with, or in
competition with each other.

78. It is important to note that in the historical

approach I adopted, the true test ought to not be that
military justice today has a semblance of due process.
Rather the true test ought to be whether the current
courts-martial systems can be held up to the highest
standards that offer protections for individuals held in
detention without trial; and that individuals charged
before them ought to be a guaranteed a free and fair
hearing before a just, competent and impartial court.
79. It is constitutional to create and have General Courts
Martial. Historically, the purpose of the General Court

40
 Martial was to instil and maintain discipline in the rank
and file of the armed forces.

80. To the extent that it exists to discipline and bring to

justice its own rank and file who are in conflict with its
laws, processes and procedures, the existence of the
Courts Martial is constitutional.

81. Let me conclude on this note. Courts-martial should be

specialised disciplinary tribunals with restrictive functions
to handle disciplinary matters that are peculiar to and
connected with the discipline and regulation of the Armed
forces. The Constituent Assembly while debating the setup
of the army courts back in 1992 envisaged military courts
as special-purpose-vehicles to enforce discipline within the
military and ensure that there was a battle-ready and
disciplined force anytime they were needed. Up till the
point the of enactment the CA did not support granting the
army jurisdiction over civilians.

82. Leading up to the making of the 1995 Constitution, the

constituent assembly was emphatic about the necessity to
guarantee a free and fair trial and other due process rights
and the critical need for the independence of the courts-
martial, stressing that their role be limited to handling
military-specific offences against military personnel.
(Jamil Mujuzi JD 2022 was useful). The GCM as
currently set up under the UPDF Act is fundamentally
incompatible with the constitutional safeguards for a fair

41
 hearing and is unconstitutional and therefore its exercise
of judicial power is correspondingly unconstitutional. To
re-echo the words in Curry (supra), “the court-martial
system's structure, including the convening authority's
power to prefer charges and select court-martial members,
is fundamentally at odds with due process,
unconstitutional in the civilian justice system, and even
unjustified in the military justice system.”

Declaration
133. Having found as above I hereby make the following
declarations:

1. Judicial power in Uganda is exercised by the courts

of judicature and such subordinate courts as Parliament
may by law establish. The Court Martial system
established under section 197 (read s.195) of the UPDF
Act is therefore one such subordinate court. I would
declare that section 197 (read s.195) of the UPDF Act
which establishes the General Court Martial is not in
breach of the Constitution of the Republic of Uganda.

2. It is an overreach when the UPDF Act creates an

offence that targets persons, not otherwise subject to
military law, making them criminally liable under the
martials-court for offences of aiding or abetting. For
creating such vulnerability, I would declare sections 1,
117 (1) (g) and 177 of the UPDF Act unconstitutional. I
would set aside the decision of the Constitutional Court
in this regard.

42
3. I find sections 1, 177 and 117 (1) (h) of the UPDF Act
in its current form unconstitutional for enabling the
surreptitious prosecution of civilians in military courts.
For clarity, the above sections provide that every person
found in unlawful possession of-(i)arms, ammunition or
equipment ordinarily being the monopoly of the Defence
Forces; or(ii)other classified stores as prescribed is liable
to be prosecuted before a court-martial.

4. I uphold the decision of the Constitutional court to

the effect that the General Court Martial is a
constitutionally established court set up to handle cases
of military discipline for UPDF members but lacks
jurisdiction to try civilians for offences under the Penal
Code Act or other enactments.

5. I would declare that the arrest, detention and

prosecution before the Courts-Martial of the cross-
appellant/ respondent and civilians of equivalence under
section 119 (1) (g) (read 117(1) (g) is in breach of articles
21,28 and 44 of the Constitution of the Republic of
Uganda.

43
For reasons specified stated above, I would make the
following orders:

1. In their current form the courts-martial are not in a

position to deliver a free and fair trial as guaranteed
under article 28(1) and 44 of the constitution of the
Republic of Uganda. I would forthwith suspend all
operations of the courts-martial save for the hearing of
disciplinary matters pertaining to serving officers.

2. All convictions and sentences passed by courts-

martial are hereby suspended. A pathway be put in place
to ensure that all civilians hitherto convicted and
sentenced by military courts-martial have their
convictions and sentences subjected to judicial review
before a civilian court of competent jurisdiction to
determine whether the convict received a free, fair and
impartial hearing. This order shall not apply to persons
who were convicted and sentenced by the courts-martial
and have already served their sentences.

3. For efficiency and proportionality purposes, I invoke

the doctrine of prospective annulment on the decisions,
orders and sentences of the Courts-Martial which have
already been served.

4. That notwithstanding, I would order that all the

cases currently pending trial before all the courts-
martial, be suspended forthwith.

44
5. An injunction doth issue restraining the instigation,
re-opening or continuance of the respondent's trial before
the General Court Martial or other courts-martial.

6. I join issue with the recommendations or advisory

orders proposed by the Hon. The Chief Justice. To these
I wish to propose a 'status of the offender determination'
in civilian courts. When the necessary legislative
amendments are made, it should be imperative that prior
to subjecting a civilian, or a person considered so by color
of right, before future courts-martial, a ‘ status of the
offender determination’ be made to the High Court of
Uganda. Such investigation should be subject to the
highest scrutiny akin to extradition proceedings or
movement of jurisdiction. The courts have to be satisfied
by an explicit demonstration that the interests of justice
cannot be served in the ordinary courts of judicature.
This standard should be applied to matters received in
review or revision.

7. I further refer to the proposal for amendments

raised in 2nd Lt Ogwang Ambrose v Uganda Supreme
Court Criminal Appeal No. 48 of 2021. The Supreme
Court found that the UPDF Act in its current form creates
a separate judicial system with no recourse for appeal or
review to superior courts. The court called for legal
reform and amendment of the UPDF Act in order to
enable the courts of Judicature to exercise their mandate
of judicial review over the courts-martial. In this regard
an amendment of Uganda People's Defence Forces Act is
45
required to confer appellate jurisdiction to the apex
courts for them to be able to lawfully entertain appeals
from the courts-martial.

The other question Ogwang raises is a requirement to

delimit what a service offence is during peacetime. I
propose that a soldier who commits a civilian offence
when he is off-post and away without pass leave, should
be arraigned before the civil courts, as opposed to
military courts.

8. The cross-appeal succeeds. The main appeal

succeeds in part.
9. I would make no order as to costs.
Dated at Kampala this 31st Day of January 2025

Catherine Katami K Bamugemereire

Justice of the Supreme Court

46
 THE
THEREPUBLIC OF UGANDA
REPUBLIC OF UGANDA

THE SUPREME COURT OF UGANDA

AT KAMPALA
(Coram: Owiny-Dollo, CJ; Mwondha, Tuhaise, Chibita, Musoke, Bamugemereire & Mugenyi, JJSC)

CONSTITUTIONAL APPEAL NO. 2 OF 2021

BETWEEN

THE ATTORNEY GENERAL .............................................................................. APPELLANT

AND

HON. MICHAEL KABAZIGURUKA ………………………..........……………. RESPONDENT

[Appeal from the decision of the Constitutional Court (Kakuru, Obura, Musota & Madrama, JCC,
& Kasule, Ag. JCC) in Constitutional Petition No. 45 of 2016 dated 1st July 2021]

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Constitutional Appeal No. 2 of 2021
 JUDGMENT OF MONICA KALYEGIRA MUGENYI, JSC
A. Introduction

1. I have had the benefit of reading in draft the judgment of his lordship the Chief Justice in this matter.
I am in complete agreement with the position adopted therein in relation to Ground 2 of this Appeal.
I do also abide the position in Ground 1 that the General Court Martial established under section 1951
of the Uganda Peoples Defence Forces Act, Cap. 330 (UPDF Act)2 is a subordinate court of
competent jurisdiction under article 129(1)(d) of the Constitution. I would, however, respectfully adopt
a slightly different approach to the scope of service offences under the UPDF Act. I therefore consider
it necessary to provide my perspective to that issue within the context of the entire Appeal.

2. The background to this Appeal; the parties’ respective representations and legal arguments, and the
circumstances under which it was reheard by this Court are very well articulated in the lead judgment
and need not be repeated here. In a nutshell, Mr. Michael Kabaziguruka (‘the respondent’) lodged
Constitutional Petition No. 45 of 2016 in the Constitutional Court challenging his arraignment before
the General Court Martial. That court substantially agreed with the respondent, whereupon the
appellant lodged the present Appeal. The respondent in turn lodged a cross appeal in the matter.

B. Determination

3. The appeal and cross appeal raise two broad questions: the constitutionality of sections 1, 117(1)(g)
and (h) and 1773 of the UPDF Act, which speak to the jurisdiction of military courts, and the
constitutionality of the respondent’s arraignment before the General Court Martial. I therefore
propose to address Grounds 1 and 4 of the appeal, and the sole ground of cross appeal together;
and shall conclude with Grounds 2 and 3 of the Appeal.

4. It is trite law that the onus of proof in challenges to the constitutionality of an Act of Parliament would
rest upon the party that attacks a piece of legislation to demonstrate a clear transgression of
established constitutional principles. See Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar &
Others, AIR 1958 SC 538. Under the Ugandan Constitution, such constitutional principles are
summed up in the National Objectives and Directive Policies of State Policy that inter alia ‘guide all
organs and agencies of the State, all citizens, organisations and other bodies and persons in

1
Formerly section 197 of the UPDF Act, Cap. 330.
2
Formerly the UPDF Act, 2005.
3
Formerly sections 2, 119(1)(g) and (h), and 179 of the UPDF Act.
2
Constitutional Appeal No. 2 of 2021
 applying or interpreting the Constitution.’ See Objective I(i) of the Constitution. Hence, the
National Objectives and Directive Policies of State Policy take on normative value in the interpretation
of the Constitution. The corresponding duty upon a court in constitutional challenges in respect of
an Act of Parliament is to simply interrogate the impugned statutory provisions against the invoked
constitutional provision(s) to ascertain compliance of the former with the latter.

5. Turning to this Appeal, under Grounds 1, 4 and the Cross Appeal, it would appear that the
reasoning that underpinned the lower court’s conclusion that sections 1, 117(1)(g), (h) and 177 of the
UPDF Act are inconsistent with article 28(1) of the Constitution, is the finding by the majority Justices
that courts martial are disciplinary tribunals/ quasi-judicial bodies that are solely charged with the
enforcement of military discipline. With the greatest respect, I take the view that this was an incorrect
premise for the court’s decision, as I shall demonstrate forthwith. For ease of reference I reproduce
the invoked constitutional provisions below.

Article 28(1)) Right to a fair hearing

In the determination of civil rights and obligations or any criminal charge, a person shall be
entitled to a fair, speedy and public hearing before an independent and impartial court or
tribunal established by law.

Article 44(c) Prohibition of derogation from particular human rights and freedoms

Notwithstanding anything in this Constitution, there shall be no derogation from the

enjoyment of the following rights and freedoms—

(a) ............

(b) ............

(c) the right to fair hearing;

6. What would amount to a ‘fair, speedy and public hearing before an independent and
impartial court or tribunal established by law’ under article 28(1) of the Constitution is not readily
discernible using a literal construction of that constitutional provision. In these circumstances,
recourse would be made to a liberal or purposive interpretation. See Attorney General v Maj. Gen.
David Tinyefuza [1998] UGSC 74. Objectives IV(i) and XXVIII(i)(b) of the the National Objectives
and Directive Policies of State Policy impose a dual responsibility upon the State to defend the
independence, sovereignty and territorial integrity of Uganda, and pursue a foreign policy that
3
Constitutional Appeal No. 2 of 2021
 respects international law and the country’s treaty obligations. The constitutional command to
preserve and defend Uganda’s sovereignty and territorial integrity is not only unequivocally stated in
article 209(a) of the Constitution; as one of the core functions of the UPDF, it provides pivotal context
to the operation of military courts in Uganda. Equally important to an understanding of the
functionality of military courts are the various international conventions and treaties to which Uganda
is a party.

7. In the matter before us, the elements of the right to a fair hearing highlighted in article 28(1) of the
Ugandan Constitution are similarly expressed in various international covenants, the pertinent one
for present purposes being the International Covenant on Civil and Political Rights (ICCPR). Article
14 of that Covenant stipulates as follows:

All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law.

8. The United Nations (UN) Human Rights Committee has since pronounced itself on article 14 of the
ICCPR in its General Comment No. 13 of 1984 and General Comment No. 32 of 2007.4 On the right
to a fair hearing before military courts, General Comment No. 13 states:

The provisions of article 14 apply to all courts and tribunals within the scope of that article whether
ordinary or specialized. The Committee notes the existence, in many countries, of military or
specialized courts which try civilians. This could present serious problems as far as the equitable,
impartial and independent administration of justice is concerned. Quite often the reason for the
establishment of such courts is to enable exceptional procedures to be applied which do not comply
with normal standards of justice. While the Covenant does not prohibit such categories of courts,
nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such
courts should be very exceptional and take place under conditions which genuinely afford the full
guarantees stipulated in article 14. The Committee has noted a serious lack of information in this
regard in the reports of some States parties whose judicial institutions include such courts for the
trying of civilians. In some countries such military and special courts do not afford the strict

4
See Human Rights Committee, CCPR General Comment No. 13: Article 14 (Administration of Justice), Equality
before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, 13
April 1984 and Human Rights Committee, General Comment No. 32, CCPR/C/GC/32 dated 23rd August 2007.
4
Constitutional Appeal No. 2 of 2021
 guarantees of the proper administration of justice in accordance with the requirements of article 14
which are essential for the effective protection of human rights.5

9. General Comment No. 13 thus proposes that the trial of civilians in military courts should ensue in
very exceptional circumstances and in conditions that genuinely abide the dictates of article 14 of the
ICCPR. It was in January 2006 supplemented with the Draft Principles Governing the Administration
of Justice through Military Tribunals (hereinafter ‘the Draft Principles on Military Tribunals’), which
sought to guarantee the integrity of State parties’ judicial systems.6 Principle 5 of the Draft Principles
on Military Tribunals seeks to limit the jurisdiction of military courts over civilians as follows:

Military courts should, in principle, have no jurisdiction to try civilians. In all circumstances,
the State shall ensure that civilians accused of a criminal offence of any nature are tried by
civilian courts. (my emphasis)

10. In the more recent General Comment No. 32, the Human Rights Committee further clarified the
prevailing position as follows:

The provisions of article 14 apply to all courts and tribunals within the scope of the article whether
ordinary or specialized, civilian or military. The Committee notes the existence, in many
countries, of military or special courts which try civilians. While the Committee does not
prohibit the trial of civilians in military or special courts, it requires that such trials are in full
conformity with the requirements of article 14 and that its guarantees cannot be limited or
modified because of the military or special character of the court concerned. The Committee
also notes that the trial of civilians in military or special courts may raise serious problems as far as
the equitable, impartial and independent administration of justice is concerned. Therefore, it is
important to take all necessary measures to ensure that such trials take place under conditions which
genuinely afford the full guarantees stipulated in article 14. Trials of civilians by military or special
courts should be exceptional, i.e limited to cases where the State party can show that
resorting to such trials is necessary and justified by objective and serious reasons, and where
with regard to the specific class of individuals and offences at issue the regular civilian courts
are unable to undertake the trials. (my emphasis)

11. It will suffice to observe here that the Draft Principles on Military Tribunals were rooted in the 1984
General Comment No. 13, and must now be construed with due regard for the Committee’s revised
position as encapsulated in the 2007 General Comment No. 32. The latter General Comment

5
Paragraph 4 of General Comment No. 13.
6
See Commission Resolutions 2004/32 and 2005/30.
5
Constitutional Appeal No. 2 of 2021
 demonstrates that the Human Rights Committee does recognize the trial of civilians in military courts,
albeit in exceptional circumstances and within established parameters. It calls upon states parties to
guarantee the fairness (equitability), impartiality and independence of such trials, which in any event
would only be justified in exceptional circumstances and for serious and objective reasons; with
appropriate regard for the suitability of civilian courts for the individuals and offences in question.
That is the universally established command of article 14(1) of the ICCPR.

12. In Uganda, the UPDF Act draws a distinction between military courts and courts martial. Whereas
military courts are defined to include a summary trial authority, unit disciplinary committee as well as
courts martial; courts martial are restricted to field courts martial, the General Court Martial and the
Court Martial Appeals Court. See section 1 of the UPDF Act. I would abide the view that summary
trial authorities and unit disciplinary committees are military tribunals. However, the military court
that is in contention before us presently is the General Court Martial therefore courts martial shall be
the focus of this judgment.

13. It seems to me that by declining to outrightly prohibit the trial of civilians by military courts, General
Comment No. 32 essentially dispels the majority view of the Constitutional Court that the trial of
civilians in the General Court Martial is a somewhat bizarre constitutional misnomer. This is
supported by the constrained prohibition of that practice in Principle 5 of the Draft Principles whereby
recourse to the phrase ‘in principle’ would suggest that there are circumstances under which on
principle the trial of civilians in courts martial would be legally tenable.

14. General Comment No. 32 additionally waters down the finding of the majority in the Constitutional
Court that courts martial are strictly ‘disciplinary courts’ or quasi-judicial bodies, the exclusive function
of which is to enforce discipline among serving military persons. Whereas undoubtedly the
enforcement of military discipline is the mainstay of courts martial, it would be erroneous to consider
it their over-riding function. In Uganda they have indeed been found to address the broader question
of national security as well. See Attorney General v Maj. Gen. David Tinyefuza (supra) and
Attorney General v Joseph Tumushabe, Constitutional Appeal No. 3 of 2005 (unreported). This
position resonates with the normative direction in Objective IV(i), as well as the succinct constitutional
command of article 209(a) of the Constitution, both of which underscore the pivotal function of the
military in Uganda as the preservation and defence of the country’s sovereignty and territorial
integrity. It is within that constitutional framework that the function of courts martial in Uganda can
be deduced.

6
Constitutional Appeal No. 2 of 2021
15. Courts martial are established by the UPDF Act by dint of article 210 of the Constitution to preside
over the service offences defined in section 1 of the UPDF Act, which include the offences enshrined
in Part VI of that Act. The offence of treachery under which the respondent was specifically charged,
for instance, falls under ‘operational offences and offences relating to security,’ and entails the
following ingredients: infiltration of the defence forces as an agent of a foreign (enemy) power or
otherwise; giving classified information to a foreign power without the knowledge or approval of
proper authority, and concealing vital information from such authority. This can hardly be considered
to entail purely disciplinary matters. The intricate nature of the service offences they preside over
thus supports the view that the primary function of courts martial is indeed to foster the efficacy of
the military in securing the country and its borders. The enforcement of discipline within its rank and
file is a vital component of that objective but is certainly not the sole function thereof.

16. Be that as it may, the main bone of contention as far as the jurisdiction of the General Court Martial
is concerned appears to be the status of that military court in the national judicial system. This in
turn begs the question as to what would amount to a competent court (as opposed to a court’s
capacity to perform its adjudicational function, to which I revert later in this judgment). Black’s Law
Dictionary defines a competent court, which is interchangeably referred to as a court of competent
jurisdiction, as ‘a court that has power and authority to do a particular act; one recognized by
law as possessing the right to adjudicate a controversy.’7 (my emphasis)

17. Meanwhile, the golden rule of interpretation espouses the interpretation of legal texts in their most
natural and conventional sense. Words are generally to be understood in their usual and most known
signification in terms of their general and popular use.’8 Stated differently, there is no need to interpret
that which needs no interpretation. However, where words are obscure and equivocal they should
be interrogated within their legislative context, including the sense in which lawmakers used the same
terms in related provisions or legal instruments. This contextual construction was persuasively
espoused in Uganda Law Society v Attorney General (2020) UGCC 4 to require that ‘all
provisions bearing on a particular issue should be considered together to give effect to the
purpose of the instrument.’

7
8th Edition, p. 380
8
See Blackstone, William, 1723 – 1780, Commentaries on the Laws of England, Boston: Beacon Press, 1962,
vol. 1, para.59.
7
Constitutional Appeal No. 2 of 2021
18. In the matter before the Court presently, reference to courts martial is to be found in articles 120(3)(b),
137(5) and 257(2)(a)(i) of the Constitution. The juridical competence of courts martial can be deduced
from the definition of a court in article 257(1)(d) of the Constitution as juxtaposed against those
constitutional provisions. Article 257(1)(d) of the Constitution simply defines a court as ‘a court of
judicature established by or under the authority of this Constitution.’ By implication, the courts
of judicature that are established under article 129(1) of the Constitution would thereby pass
constitutional muster. Needless to say, these include the subordinate courts established under
clause (d) of that constitutional provision. For ease of reference, article 129(1) is reproduced below.

(1) The judicial power of Uganda shall be exercised by the courts of judicature which shall
consist of—
(a) the Supreme Court of Uganda;
(b) the Court of Appeal of Uganda;
(c) the High Court of Uganda; and
(d) such subordinate courts as Parliament may by law establish, including qadhis’
courts for marriage, divorce, inheritance of property and guardianship, as may
be prescribed by Parliament.

19. Meanwhile, article 137(5) places courts martial on the same competence footing as civilian courts in
the following terms: ‘where any question as to the interpretation of this Constitution arises in
any proceedings in a court of law other than a field court martial ...’ The import of that
constitutional provision is to equate a field court martial to a court of law but exclude those particular
courts martial from the practice of constitutional references. Given that a field court martial is
essentially a court martial, the restriction of constitutional references to all other courts of law other
than a field court martial clearly has the effect of equating the other courts martial (the General Court
Martial and Court Martial Appeals Court) to courts of law.

20. I find fortitude for this view in Attorney General v Joseph Tumushabe (supra), where this Court
construed the principle in article 126(1) of the Constitution that ‘judicial power shall be exercised
by the courts established under the Constitution,’ to embrace all judicial power as exercised both
by the civilian courts and courts martial. That construction of article 126(1) was premised on the
Constitution’s recognition, as courts of judicature, of both the superior courts that are established
under article 129(1)(a), (b) and (c) of the Constitution, as well as, the subordinate courts established
by Parliament under article 129(1)(d) thereof. The status of the General Court martial under the
Constitution was then addressed as follows (per Mulenga, JSC):

8
Constitutional Appeal No. 2 of 2021
 The classification between superior and subordinate courts in article 23 only relates to the modes of
establishment of the courts, namely “courts established by the constitution” being the superior courts,
and “courts established by Parliament under the authority of the Constitution” being the subordinate
courts. ... Decisions of the Court Martial Appeal Court, like those from decisions of the High Court,
lie to the Court of Appeal, rendering the Court Martial Appeal Court of the same level, in the appellate
hierarchy of courts, as the High Court. It follows that the General Court Martial (from which
appeals lie to the Court Martial Appeals Court) is both a subordinate court within the meaning
of article 129(1)(d), and lower than the High Court in the appellate hierarchy of courts. (my emphasis)

21. I am alive to the rule of law principles of stare decisis and legal certainty, which enjoin courts to
determine litigation according to binding judicial precedent so as to engender consistency, stability
and predictability in a legal system. Given the pivotal role of an apex court such as the Supreme
Court in ensuring legal certainty, these principles are constitutionally entrenched in article 132(4) of
the Constitution which, while entreating this Court to abide its former decisions does also oblige all
other courts to follow decisions of the Supreme Court on questions of law. I have also carefully
considered the merits of this Court’s decision in Attorney General v Joseph Tumushabe (supra)
above. The finding in that case that the General Court Martial is a subordinate court resonates with
the definition of courts in article 257(1)(d) insofar as that military court is established by dint of article
210 and thus ‘under the authority of (the) Constitution.’ Similar equating of courts martial to courts
of law is to be found in articles 120(3)(b) and 257(2)(a)(i) of the Constitution, which read as follows:

Article 120. Director of Public Prosecutions

(1) .........
(2) .........
(3) The functions of the Director of Public Prosecutions are the following—
(a) ……..
(b) to institute criminal proceedings against any person or authority in
any court with competent jurisdiction other than a court martial;

Article 257. Interpretation

(1) .................
(2) In this Constitution—
(a) unless the context otherwise requires, a reference to an office in the public
service includes—
(i) a reference to the office of Chief Justice, Deputy Chief Justice,
Principal Judge, a justice of the Supreme Court or a justice of
9
Constitutional Appeal No. 2 of 2021
 Appeal, or a judge of the High Court and the office of a member of
any other court of law established by or under the authority of this
Constitution, other than a court-martial, being an office the
emoluments of which are paid directly from the Consolidated Fund
or directly out of monies provided by Parliament; (my emphasis)

22. The alignment of a court martial with any other court of law in both of those constitutional provisions
has the effect of placing courts martial within the generic definition of a court of law. The recognition
of courts martial as such is accentuated by their juxtaposition in article 257(2)(i) with courts of
judicature as envisaged under article 129(1) of the Constitution. I take the view that the exclusion of
courts martial from the public service offices enlisted in clause (2)(a)(i) of the same article would not
necessarily discount the General Court Martial’s judicial status either, but simply underscores its
character as a military rather than civil court. I find fortitude for this position in the provisions of article
175 of the Constitution. Clause (a) thereof defines a public officer as ‘any person holding or acting
in an office in the public service,’ and public service is defined in clause (b) of the same article as
‘service in any civil capacity of the Government, the emoluments for which are payable
directly from the Consolidated Fund or directly out of monies provided by Parliament.’ It thus
becomes apparent that the distinguishing factor that would set apart persons serving in courts martial
from their counterparts in civilian courts that hold their offices in the public service, is the former’s
military service as opposed to the latter’s civil service. I therefore abide the position in the lead
judgment that the General Court Martial is a subordinate court of judicature within the confines of
article 129(1)(d) of the Constitution.

23. Be that as it may, the respondent extends his displeasure to the Legislature, faulting it for supposedly
exceeding its legislative powers when it created the General Court Martial under the UPDF Act and
conferred it with criminal jurisdiction over non-military persons, as well as the civil offences engrained
in the Penal Code Act and other related Acts of Parliament. The legislative function of Parliament is
delineated in article 79 of the Constitution as follows:

(1) Subject to the provisions of this Constitution, Parliament shall have power to make
laws on any matter for the peace, order, development and good governance of Uganda.
(2) Except as provided in this Constitution, no person or body other than Parliament shall
have power to make provisions having the force of law in Uganda except under
authority conferred by an Act of Parliament.
(3) Parliament shall protect this Constitution and promote the democratic governance
of Uganda.
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Constitutional Appeal No. 2 of 2021
24. Meanwhile, article 210 of the Constitution under which Parliament enacted the UPDF Act states:

Parliament shall make laws regulating the Uganda Peoples’ Defence Forces and, in particular,
providing for—

(a) the organs and structures of the Uganda Peoples’ Defence Forces;
(b) recruitment, appointment, promotion, discipline and removal of members of
the Uganda Peoples’ Defence Forces and ensuring that members of
the Uganda Peoples’ Defence Forces are recruited from
every district of Uganda;
(c) terms and conditions of service of members of the Uganda Peoples’ Defence
Forces; and
(d) the deployment of troops outside Uganda.

25. A literal interpretation of article 79(1) and (3) above establishes that Parliament has a broad legislative
mandate to enact laws in the interest of national peace, order and good governance. Article 210(a)
and (b) further empowers Parliament to enact laws that govern the UPDF’s organs and structures,
as well as its discipline. Courts martials are undoubtedly judicial organs of the UPDF. Having found
that the General Court Martial is indeed a subordinate court of judicature, it follows that the
establishment of the General Court Martial under the UPDF Act the and delineation of its jurisdiction
therein was well within the remit of Parliament.

26. However, the scope of that jurisdiction is a matter of contention before this Court. The appellant
contests the Constitutional Court’s finding that sections 1 and 177 of the UPDF Act transform all
criminal offences under the Penal Code Act and related enactments into service offences, thus
unconstitutionally extending the General Court Martial’s jurisdiction beyond ‘military offences’ and
military discipline to include civil offences. Those statutory provisions are reproduced below.

Section 1

“service offence” means an offence under this Act or any other Act for the time being in force,
committed by a person while subject to military law;

Section 177. Service trial of civil offences

(1) A person subject to military law, who does or omits to do an act—

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 (a) in Uganda, which constitutes an offence under the Penal Code Act or any other
enactment;

(b) outside Uganda, which would constitute an offence under the Penal Code Act or
any other enactment if it had taken place in Uganda,

commits a service offence and is, on conviction, liable to a punishment as prescribed

in subsection (2).

(2) Where a military court convicts a person under subsection (1), the military court shall
impose a penalty in accordance with the relevant enactment and may, in addition to that
penalty, impose the penalty of dismissal with disgrace from the Defence Forces or any
less punishment prescribed by this Act.

27. In Attorney General v Uganda Law Society (supra) this Court construed service offences to entail
the offences created under the UPDF Act in respect of which the General Court Martial would have
undisputed jurisdiction. With regard to offences outside the UPDF Act, the Court held 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.’ That construction of
a service offence would suggest that whereas all offences created under the UPDF Act are service
offences, offences created under the Penal Code and other Acts would only become service offences
that are triable by the General Court Martial if committed by persons that are subject to military law.

28. Persons that are subject to military law are outlined in section 117(1) of the UPDF Act as follows:

(1) The following persons shall be subject to military law—

(a) every officer and militant of a Regular Force;
(b) every officer and militant of the Reserve Forces and any prescribed force when
he or she is—
(i) undergoing drill or training whether in uniform or not;
(ii) in uniform;
(iii) on duty;
(iv) on continuing full time military service;
(v) on active service;
(vi) in or on any vessel, vehicle or aircraft of the Defence Forces or
any defence establishment or work for defence;
(vii) serving with any unit of a Regular Force; or

12
Constitutional Appeal No. 2 of 2021
 (viii) present, whether in uniform or not, at any drill or training of a unit of
the Defence Forces;
(c) subject to such exceptions, adaptations, and modifications as the Defence
Forces Council may by regulations, prescribe, a person who under any
arrangement is attached or seconded as an officer or a militant to any Service or
force of the Defence Forces;
(d) every person, not otherwise subject to military law, who is serving in the position
of an officer or a militant of any force raised and maintained outside Uganda and
commanded by an officer of the Defence Forces;
(e) every person, not otherwise subject to military law, who voluntarily
accompanies any unit or other element of the Defence Forces which is
on service in any place;
(f) every person, not otherwise subject to military law while serving with
the Defence Forces under an engagement by which he or she has agreed to be
subject to military law;
(g) every person, not otherwise subject to military law, who aids or abets a person
subject to military law in the commission of a service offence; and
(h) every person found in unlawful possession of—
(i) arms, ammunition or equipment ordinarily being the monopoly of
the Defence Forces; or
(ii) other classified stores as prescribed.

29. It is noteworthy that the two categories of offences that may constitute a service offence under section
1 of the UPDF Act (offences under the UPDF Act and offences under other Acts) both share the
common denominator of having been committed by a person while subject to military law and not
simply subject to military law per se. In my judgment, this introduces a time element that is not quite
addressed in the definition of a service offence advanced in Attorney General v Uganda Law
Society (supra). That time element establishes a vital distinction between serving officers and men
of the Regular Force as encapsulated in subsection 117(1)(a), including those persons that are
subject to military law but not necessarily serving regularly under the Defence Forces [such as those
in the Reserve Forces under subsection 117(1)(b)], on the one hand; and those that temporarily or
voluntarily become subject to military law, as outlined in subsection 117(1)(d) – (f) of the UPDF Act,
on the other hand. Indeed, section 117(8) of that Act sheds light on the legislative import of the
phrase ‘while subject to military law’ insofar as it clarifies that a person who commits a service
offence while subject to military law but has since ceased to be subject to that law may nonetheless
be charged with the offence. That provision stipulates:
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Constitutional Appeal No. 2 of 2021
 Every person who commits a service offence while subject to military law may be liable to be
charged, dealt with and tried for that offence notwithstanding that he or she has ceased to be
subject to military law since the commission of the offence.

30. Applying the concept in section 117(8) mutatis mutandis, it follows that in relation to offences under
the UPDF Act the definition of service offence in section 1 of the UPDF Act would entail offences
created under Part VI of the UPDF Act and which accrue to the following categories of persons:

I. Military personnel as outlined in section 117(1)(a) of the UPDF Act, by virtue of their full-time
military service in the Regular Forces, and

II. The persons delineated in section 117(1)(b) – (f) for the period of time that they are in active
military service and thus subject to military law (subject to the reserved option of arraignment
under subsection 117(8) of the Act, the cessation of their service notwithstanding.)

31. Consequently, the term service offence in section 1 of the UPDF Act would encompass the offences
created under Part VI of the UPDF Act in relation to the persons delineated under section 117(1)(a)
– (f) of the Act, as well as offences under any other Act that are committed by the same category of
persons. In other words, the criminal offences enumerated under the Penal Code Act and other
related enactments (which under section 177 of the UPDF Act are referred to as civil offences) would
only constitute a service offence when committed by persons in active military service, whether on
full-time basis as envisaged under subsection 117(1)(a) of the UPDF Act or on temporary, term-
based and/or voluntary basis as contemplated under subsection 117(1(b) – (f) of the UPDF Act.

32. Hence, the scope of service offences enumerated above restricts the incorporation of civil offences
to those instances where they are committed by persons that are in active military service as
delineated under section 117(1)(a) – (f) of the Act and on field operations. Persons that are not in
active military service but only become subject to military law by dint of subsection 117(1)(g) and (h)
of the Act, would not be tried for civil offences in the military courts. They would only be tried for
service offences under the UPDF Act where there actions bring them within the purview of military
law.

33. Stated differently, the General Court Martial is primarily clothed with jurisdiction ratione personae to
try service offences (including civil offences) that are committed by persons in fulltime, temporary,
term-based or voluntary military service, whether within or outside Uganda. Its jurisdiction over
civilians would only arise in exceptional circumstances where such non-military persons subject
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Constitutional Appeal No. 2 of 2021
 themselves to military law under the conditions encapsulated in section 117(1)(g) and (h) of the UPDF
Act. I interrogate the constitutionality of section 117(1)(g) and (h) of the UPDF Act shortly but in any
event, as shall be expounded in more detail under my consideration of Grounds 2 and 3 below, the
trials of persons arraigned for service offences (whether military persons or non-military persons)
should as much as possible in the circumstances conform to the dictates of a fair trial as enshrined
in article 28 of the Constitution.

34. Against that background, I now turn to the contentious question of the jurisdictional scope of the
General Court Martial over civil offences. In Attorney General v Joseph Tumushabe (supra) this
Court considered article 23(6)(b) of the Constitution to mandate Parliament to exercise its discretion
under article 129(3) to vest a subordinate court with jurisdiction that is concurrently enjoyed by the
High Court on the premise that the classification between superior and subordinate courts in article
129(1) of the Constitution does not always relate to appellate hierarchy of those courts. It was
observed:

Notwithstanding the definition of subordinate court in Article 257 as a court subordinate to

the High Court, in Article 139(2), which is concerned with appellate hierarchy, it is provided
that appeals which lie to the High Court are from “decisions of any court lower than the High
Court” not decisions of subordinate courts. It appears to me that in this context, the word
“subordinate” was not used as synonymous with the word “lower”; so that not all subordinate
courts are necessarily lower than the High Court in the appellate hierarchy. Under clause (3)
of Article 129, Parliament has discretion subject to the provisions of the Constitution only, to make
provision for the jurisdiction and procedure of courts. There is no provision of the Constitution that
restricts Parliament in the exercise of that discretion from vesting in a subordinate court jurisdiction
over some matter, which is also within the jurisdiction of the High Court. Indeed that concurrency of
jurisdiction is acknowledged in Article 23(6)(b). (my emphasis)

35. I do appreciate the distinction between subordinate and lower courts as far as appellate hierarchy is
concerned. This is accentuated by the fact that although the Industrial Court is a subordinate court,
it has within its membership judges of the High Court and its decisions are appealable to the Court
of Appeal. However, I am most respectfully unable to abide the proposition in that case that article
23(6)(b) of the Constitution infers any concurrence of jurisdiction between the High Court and
subordinate courts. In my view, that constitutional provision simply acknowledges the unlimited
jurisdiction of the High Court over both capital offences (which are its exclusive jurisdiction), as well
as non-capital offences that are triable by the courts subordinate to it. For ease of reference, that
constitutional provision is reproduced below.
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Constitutional Appeal No. 2 of 2021
 Where a person is arrested in respect of a criminal offence—

(a) ................;
(b) in the case of an offence which is triable by the High Court as well as by a subordinate
court, if that person has been remanded in custody in respect of the offence for sixty
days before trial, that person shall be released on bail on such conditions as
the court considers reasonable; (my emphasis)

36. I do additionally acknowledge the position taken in Attorney General v Joseph Tumushabe (supra)
that there is no provision of the Constitution that restricts Parliament from vesting a subordinate court
with jurisdiction that is also within the purview of the High Court. For present purposes, however, I
take the view that this lacuna should be interrogated with regard to the special character of courts
martial, and existing international safeguards in respect of military courts.

37. To begin with, Principle 8 of the Draft Principles on Military Tribunals considers crimes committed in
the course of field operations to be sufficient justification for the trial of civil offences by military courts.
It states:

This concept constitutes the “nexus” of military justice, particularly as regards field operations, when
the territorial court cannot exercise its jurisdiction. Only such a functional necessity can justify the
limited but irreducible existence of military justice. The national court is prevented from exercising its
active or passive jurisdiction for practical reasons arising from the remoteness of the action, while the
local court that would be territorially competent is confronted with jurisdictional immunities.9

38. Indeed section 198(2) of the UPDF Act recognizes the function of field courts martial in presiding
over offences committed in the course of field operations, ‘where it is impracticable for the
offender to be tried by a Unit Disciplinary Committee or Division Court Martial.’ This position
is reiterated in section 177 of the Act albeit with additional emphasis on a civil offence translating into
a service offence whether committed within or outside Uganda. The emphasis on geographical
location, in my view, seeks to cater for situations where serving military persons commit offences
under the Penal Code and other Acts of Parliament while undertaking field operations both within or
outside Uganda, but away from the geographical jurisdiction of civilian courts.

39. I am alive to the character of courts martial as special courts that are set up to address a specific
area of the law, having a more limited jurisdiction than the courts of general jurisdiction; being faster

9
See paragraph 29 of the Draft Principles Governing the Administration of Justice through Military Tribunals.
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Constitutional Appeal No. 2 of 2021
 and often not bound to follow the same procedural rules that general-jurisdiction courts follow. See
Raphael Baranzira & Another v Attorney General of Burundi, EACJ Reference No. 15 of 2014
and Attorney General v Joseph Tumushabe (supra). Field courts martial are particularly
characterized by quick processes that are not unduly bogged down by the procedural imperatives
that obtain in general-jurisdiction civil courts (or indeed other courts martial) given the peculiar
conditions within which they operate. Indeed, the constitution recognizes the peculiarity of field courts
martial when in article 137(5) it exempts their processes from constitutional references. In those
circumstances, clothing such field courts martial with jurisdiction over capital offences that attract a
potential death sentence might appear gravely ill-advised but for two equally critical considerations.

40. First, to restrict field courts martial to non-capital civil offences would be to leave capital offences that
are committed in those sometimes fluid situations, uncatered for and unaddressed. This indisputably
would be inimical to the administration of criminal justice and an affront to the rule of law, which
subjects all persons to the law. Secondly, Principle 17 of the Draft Principles on Military Tribunals is
emphatic on the right of appeal from courts martial, which by extension would include field courts
martial. It states:

In all cases where military tribunals exist, their authority should be limited to ruling in first instance.
Consequently, recourse procedures, particularly appeals, should be brought before the civil courts.
In all situations, disputes concerning legality should be settled by the highest civil court. Conflicts of
authority and jurisdiction between military tribunals and ordinary courts must be resolved by a higher
judicial body, such as a supreme court or constitutional court, that forms part of the system of ordinary
courts and is composed of independent, impartial and competent judges.

41. Accordingly, the right of appeal from the decision of a field court martial does provide a vital safeguard
to the exigencies of their judicial processes. Its relegation to creation by subsidiary legislation is a
misnomer that ought to be revisited. In the event, I would abide the proposition in Principle 8 of the
Draft Principles on Military Tribunals that the circumstances under which field courts martial operate
do provide sufficient justification for their jurisdiction to try civil offences, including capital offences.
Having so held, and considering that the General Court Martial sits in appeal over decisions of field
courts martial, I would refrain from excluding civil capital offences from its jurisdiction.

42. I now turn to the constitutionality of section 117(1)(g) and (h) of the UPDF Act. Those statutory
provisions subject two categories of people to military law: persons that aid and abet a person subject

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Constitutional Appeal No. 2 of 2021
 to military law in the commission of a service offence,10 and those found in unlawful possession of
arms, ammunition or equipment ordinarily or other classified stores that is the preserve of the
UPDF.11 The controversy as to the constitutionality of those statutory provisions has arisen in
numerous cases, with varying results. It arose before the Constitutional Court in Uganda Law
Society v Attorney General, Constitutional Petition No. 18 of 2005 and was framed as an issue
in the following terms: Whether Section 117 (1) (g) and (h) of the UPDF Act is inconsistent with
Articles 28 (1), 126 (1) and 210 of the Constitution. By three to two majority, the Constitutional Court
on that occasion found that section 117(1)(g) and (h) of the UPDF Act was not inconsistent with
Articles 28(1), 126(1) and 210 of the Constitution. That finding of the court was never subjected to
appeal in Attorney General v Uganda Law Society (supra).

43. In the latter case of Michael Kabaziguruka v Attorney General, Constitutional Petition No. 45 of
2016 (from which this appeal arises), in a marked departure from the then settled question in Uganda
Law Society v Attorney General (supra), the majority declared section 117(1)(h) of the UPDF Act
inconsistent with Article 28(1) of the Constitution. To the extent that it offended the principle of stare
decisis articulated in Attorney General v Uganda Law Society (supra), the case of Uganda Law
Society v Attorney General (supra) was at the time decided per incuriam. In the meantime however,
the Constitutional Court went ahead to follow its impugned decision in Michael Kabaziguruka v
Attorney General (supra) in the latter cases of Ret. Capt. Amon Byarugaba & Others v Attorney
General, Constitutional Petition No. 44 of 2015 and Abdulnul Ssemuju v Attorney General
[2023] UGCC 5. It now falls to this Court, under the present Appeal, to pronounce itself with finality
on the matter.

44. Given the foregoing background and the pivotal place of the doctrine of stare decisis in the Common
Law system that Uganda professes, I consider the then prevailing position on the constitutionality of
subsections 117(1)(g) and (h) to have been as expressed by the Constitutional Court in Uganda Law
Society v Attorney General (supra). In that case, Kikonyogo, DCJ particularly sums up the rationale
behind the trial of civilians in military courts as follows:

The inclusion of the provisions above were intended to safeguard national security where such
civilians find themselves in conflict with the military law. It was intended to discourage civilians from
aiding and abetting army personnel to commit crimes while in pursuit of their duties within the military
administration. This is well intentioned for purposes of the wider realm of the state’s constitutional

10
Section 117(1)(g) of the UPDF Act.
11
Section 117(1)(h)
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 mandate to control the nation’s defence and national security. ... As a general rule civilians should
not be tried in military courts, where the civil courts have competent jurisdiction to try them. However,
in my view and for the reasons stated above, joint trials of civilians and persons who commit service
offences are justified in circumstances envisaged under section 117(1)(g) of the UPDF Act. ... It is
therefore justifiable to subject a person to military law who aids or abets or is in unlawful possession
of firearms and ammunition which are the monopoly of the army.

45. The question is whether the parameters that are encapsulated in section 117(1)(g) and (h) amount
to exceptional circumstances that would justify the trial of civilians in military courts. The law is a
major component of public policy and would thus be a vital public policy consideration for the
justification of the trial of civilians in military courts. Indeed, I am alive to the duty placed upon
Ugandan citizens under Objective XXIX(g) and article 3(4)(a) of the Constitution to uphold and defend
the Constitution and the law. This perhaps explains why criminal law considers to be criminally
culpable a person that aids or abets the commission of a crime or has a common intention with others
in the commission of a crime. These legal principles are duly captured in sections 19 and 20 of the
Penal Code Act. Section 19(1)(c) of that Act specifically places a person that aids or abets another
in the commission of an offence on the same footing as one that actually commits the offence, and
may be charged with actually committing the offence. That statutory provision stipulates as follows:

When an offence is committed, each of the following persons is deemed to have taken part
in committing the offence and to be guilty of the offence and may be charged with actually
committing it—

(a) ..........;
(b) ...........;
(c) every person who aids or abets another person in committing the offence.

46. Reading section 117(1)(g) of the UPDF Act together with section 19(1)(c) of the Penal Code Act
would mean that a person that aids or abets a serving or active military person in the commission of
the service offences encapsulated under Part VI of the Act would be ‘deemed to have taken part in
committing the offence and be guilty of the offence and may be charged with actually
committing it.’ In practical terms, Ayume, Francis J, ‘Criminal Procedure and Law in Uganda’ posits
that a person who aids and abets another in the commission of a crime may be joined in one charge
sheet and tried together with those who actually commit the crime, but the particulars of the offence
must clearly indicate the role of the aider and abettor.12 I take the view, therefore, that criminal

12
Law Africa Publishing Limited, 2010 Reprint, pp. 73, 74.
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 culpability by way of aiding and abetting the commission of a service offence is sufficient justification
for the subjection of a civilian to military law.

47. I respectfully do not abide the view that such trials should axiomatically ensue in the civilian courts.
In my view, the fact that the principal offender is a person in active military service and charged with
a purely service offence warrants the recourse to military courts (as opposed to civil courts) for the
trial of both the principal offenders and their accomplices. Furthermore, the intricate nature of service
offences encapsulated in Part VI of the UPDF Act would be better suited for trial before military courts
rather than civil courts. I would, however, abide the exemption posited in Oxford Dictionary of Law13
that ‘when a member of the armed forces is charged with conduct … that is an offence under
both service law and the ordinary criminal law, the trial must in certain serious cases (eg
treason, murder, manslaughter and rape) be held by the ordinary criminal courts (and is in
practice frequently held by them in other cases).’

48. I would construe this proposition to draw a distinction between the commission by a military person
of a pure service offence, on the one hand, and a service offence that is also available as a civil
offence. In addition, though seemingly restricted to capital offences, I would extend it to non-capital
offences that accrue as both service offences and civil offences. In my view, therefore, the general
rule ought to be that military (service) offences are triable in military courts and civil offences are
triable in civil courts, save for two exceptions: the trial by field courts martial of military persons that
commit civil offences during field operations (as discussed earlier), and the trial of service offences
by civil courts where such offences do also exist on the ordinary criminal law statute books. I would
therefore uphold the majority in the Constitutional Court that civilians that aid and abet military
persons in the commission of a service offence do by their actions subject themselves to military law
under section 117(1)(g) of the Act.

49. Section 117(1)(h), on the other hand, subjects to military law any person found in
unlawful possession of ‘arms, ammunition or equipment ordinarily being the monopoly of
the Defence Forces; or other classified stores.’ I find no definition in the Act as would guide a
reasonable member of the public as to what type of military equipment is the monopoly of the UPDF,
let alone what would amount to ‘classified stores,’ so as to avoid the proscribed conduct. A
comparable term might perhaps be military stores, which is defined in section 161(5)(c) as ‘any
chattel of any description belonging to the Government which has been issued when required,

13
7th Edition at p.141.
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 and includes, any chattel which had belonged and had been issued or held as described in
this subsection at some past time.’ I am afraid, this is not helpful.

50. Meanwhile, article 28(12) of the Constitution considers a criminal offence that is not defined to
undermine the right to a fair trial and thus prohibits convictions arising from vague and ambiguous
criminal offences. The need for a precise definition of an offence is associated with the principle of
legality that translates into the constitutional principle of ‘void-for-vagueness.’ The void-for-
vagueness doctrine essentially requires that ‘a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory enforcement.’ See Kolender v
Lawson (1983), United States Supreme Court, No. 81-1320. Thus, legislative provisions that have
not been defined with sufficient conciseness have invariably been adjudged to be void on account of
their vagueness. See Francis Tumwesige Ateenyi v Attorney General, Constitutional Petition
No. 36 of 2018 and Andrew Karamagi & Another v Attorney General, Constitutional Petition
No. 5 of 2016. On that premise, therefore, I am unable to endorse the constitutionality of section
117(1)(h) of the Constitution.

51. In a nutshell, I find that the General Court Martial has jurisdiction over the following category of
persons (jurisdiction ratione personae) and offences (jurisdiction ratione materiae):

(1) Service offences created under Part VI of the UPDF Act that are committed by
persons under fulltime, temporary, term-based or voluntary military service as
delineated under section 117(1)(a) – (f) of the Act;

(2) Appellate jurisdiction over civil offences under any other Act that are committed by
the same category of persons while in active military service and on field operations,
whether within or outside Uganda;

(3) Non-military persons that subject themselves to military law under the circumstances
encapsulated in section 117(1)(g) of the UPDF Act.

52. In the result, I find that service offences as defined in section 1, as well as the provisions of section
177 of UPDF Act, are not at cross-purposes with either the legislative mandate of Parliament under
articles 79, 129(3) and 210 of the Constitution or the objective of the UPDF Act under article 210(a)
and (b) of the Constitution; nor in any case are they inconsistent with articles 28(1) and 44(c) of the

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 Constitution. I do additionally find that the provisions of section 117(1)(g) of the UPDF Act do
constitute exceptional circumstances under which the trial of civilians in military courts would be
justified, and to that extent is not inconsistent with articles 28(1) and 44(c) of the Constitution. I
however find section 117(1)(h) of the Act to be void for vagueness, and therefore inconsistent with
article 28(12) of the Constitution. I would accordingly resolve Ground 1 of the Appeal in the
affirmative; but respectfully find no merit in either Ground 4 of the Appeal or the Cross Appeal.

53. I now turn to Grounds 2 and 3 of the Appeal. The right to a fair trial is anchored in the principle of
judicial independence, which in the Ugandan Constitution is articulated in article 128. In the same
vein, Principle 2 of the UN Basic Principles on the Independence of the Judiciary, 1985 enjoins
judiciaries to ‘decide matters before them impartially, on the basis of facts and in accordance
with the law, without any restrictions, improper influences, inducements, pressure, threats or
interferences, direct or indirect, from any quarter or for any reason.’ With specific regard to
military courts, Principle 13 of the Draft Principles on Military Tribunals proposes that ‘the
organization and operation of military courts should fully ensure the right of everyone to a
competent, independent and impartial tribunal at every stage of legal proceedings from initial
investigation to trial; the persons selected to perform the functions of judges in military courts
must display integrity and competence and show proof of the necessary legal training and
qualifications, (and) military judges should have a status guaranteeing their independence
and impartiality, in particular vis-à-vis the military hierarchy.’

54. The UN Human Rights Committee additionally enjoins states ‘to take all necessary measures to
ensure that such trials take place under conditions which genuinely afford the full guarantees
stipulated in article 14.’ This is echoed in Principle 2 of the Draft Principles on Military Tribunals
insofar as it urges respect for and application of internationally recognized standards and procedures
that guarantee the right to a fair trial. The African Commission of Human and Peoples’ Rights
(ACHPR) has similarly adopted the stance that military tribunals must be subject to the same
requirements of fairness, openness, and justice, independence, and due process as any other
process. Thus, in The Constitutional Rights Project v. Nigeria,14 it decided that a tribunal
composed of one judge and members of the armed forces could not be considered impartial because

14
African Commission on Human and Peoples Rights, Communication No. 87/93 (1995), paras. 13 – 14. See
also International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors
(supra) at p. 29.
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 ‘regardless of the character of the individual members of such tribunals, its composition alone
creates the appearance (of), if not actual, lack of impartiality.’

55. The General Court Martial of Uganda was established under section 195 of the UPDF Act. It is
composed of seven members, all of whom are appointed by the High Command for a period of one
year, subject to re-appointment by the same appointing authority.15 Its membership is solely
comprised of military persons, with no provision whatsoever for their professional qualifications;
neither are such qualifications provided for its reserve members. Therefore, although at any one
time the actual members of the General Court Martial could very well possess the requisite
qualifications, its de jure composition is purely restricted to qualification on the basis of military
service.

56. In Incal v Turkey16 the European Court on Human Rights highlighted the specific factors that would
be taken into account in determining the impartiality and independence of military judges. The court
astutely identified the crux of the matter as ‘the confidence which the courts in a democratic
society must inspire in the public and above all, as far as criminal proceedings are concerned,
in the accused.’ It further deduced the parameters that would support the independence and
impartiality of military judges to include, the same professional training as civilian judges and the
enjoyment of constitutional safeguards identical to those applicable to civilian judges. It additionally
expressed concern about military judges being servicemen who still belong to the army (which in
turn takes its orders from the Executive); remain subject to military discipline, and the appointment
of whom is made by army structures for a short renewable term.

57. That decision is most persuasive is most persuasive on the standard of independence and impartiality
expected of military judges on military courts. In any event, the concerns expressed in it are re-
echoed in Principle 13 of the Draft Principles on Military Tribunals, which enjoins states to legislate
an organizational framework for military courts that underscores a competent military bench
comprised of judges with the necessary legal training and qualifications, as well as a seniority of
status that supports their independence and impartiality vis-à-vis the military hierarchy. Paragraph
47 of that Draft Principle sums up the emphasis on the professional competence of judges that sit on
military courts as follows:

15
See sections 197(1) and 198(a) of the UPDF Act.
16
[1998] ECHR 48
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 Judges called on to sit in military courts should be competent, having undergone the same legal
training as that required of professional judges. The legal competence and ethical standards of
military judges, as judges who are fully aware of their duties and responsibilities, form an intrinsic
part of their independence and impartiality.

58. It thus emphasizes equivalence in professional qualifications, ethical standards and constitutional
safeguards between judges in civilian courts and their counterparts in military courts as a safeguard
for their independence and impartiality. This could be attained by the designation of sitting judges to
beef up military courts, as was the case in Incal v Turkey (supra), where 2 of the judges were civilian
judges and the third judge on the Bench was a military officer with legal expertise. It could also be
attained by the direct appointment of judges to military courts using the processes that govern the
appointment of judges to civil courts. This position obtains in the Industrial Court of Uganda, where
two members of the bench are duly appointed as (civil) judges but designated to serve on that court
alongside 3 members of the public with expertise in labour and employment issues.

59. In the matter before us, the respondent having pointed to the impugned section 195 as the legal basis
for his misgivings with his trial before the General Court Martial, the evidential burden shifted to the
appellant to factually demonstrate the independence and impartiality of the General Court Martial.
Regrettably, such evidence was not forthcoming. I do not accept the appellant’s proposition that
military courts in Uganda are impartial and independent simply because article 221 of the Constitution
enjoins the UPDF ‘to observe and respect human rights in the performance of their functions.’
In my view, that constitutional imperative is simply a directional standard for courts martial rather than
a factual situation that pertains to them.

60. Consequently, in complete agreement with the lead judgment, I find that the constitution of the
General Court Martial does compromise its independence and impartiality as a subordinate court of
unlimited jurisdiction and is to that extent inconsistent with article 28(1) and 44(c) of the Constitution.
In the result, in agreement with the lead judgment, I would resolve Ground 2 of this Appeal in the
negative.

61. On the other hand, under Ground 3 of the Appeal the respondent’s arraignment before the General
Court Martial is specifically challenged on account of the omission in the charge sheet to indicate his
role in aiding and abetting the commission of a service offence as contemplated under section
117(1)(g) of the UPDF Act. As was observed earlier herein, a person that aids or abets another in

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 the commission of an offence is deemed to have taken part in the commission of the offence, and,
may be charged with actually committing the offence.

62. In the instant case, an incomplete charge sheet was annexed to the affidavit in support of the petition
as annexure ‘A’. It reveals that A1 – A8 with whom the respondent was arraigned were at the time
in active military service and therefore automatically subject to military law. The respondent, on the
other hand, is depicted as a civilian, ‘a member of the tenth (10th) Parliament of the Republic of
Uganda, representing Nakawa Division, Kampala District’ and designated as a person subject to
military law by virtue of section 117(1)(g) of the UPDF Act. Under Count 1 of the charge sheet, the
Statement of Offence is stated as ‘Offences relating to security C/s 130(1)(f) of the UPDF Act No. 7
of 2005,’ while the Particulars of Offence indicates that the respondent, together with twenty-two
other named persons and others still at large ‘between the months of February and June 2016, in
diverse places in Wakiso, Kampala and Luwero Districts of Uganda, with intent to prejudice the
security of the Defence Forces or Forces co-operating with the Defence Forces did contrive a plot to
overthrow the Government of Uganda by force of arms.’

63. Although the charge sheet referred to section 117(1)(g) of the UPDF Act under the description of the
respondent, it did not spell out his role in the commission of the alleged service offence. This would
indeed amount to a defect. However, not every defect in a charge sheet would make it bad in law
and render the ensuing proceedings a nullity. The test to be applied is what the effect of the defect
is and whether (if proceedings are concluded) it has occasioned a miscarriage of justice. In this case,
no attempt was made to demonstrate any such miscarriage of justice. On the contrary, insofar as
the charge sheet highlights the statutory provision that brings the respondent under military law,
which is clear on the issue of aiding and abetting the commission of a service offence, the respondent
would have been on notice of the nature of offence he was arraigned for. Furthermore, the charge
sheet spells out the principal offenders by highlighting their status as persons in active military
service. Moreover, borrowing from the civilian courts, under section 132 of the Magistrates Courts
Act a court that is faced with a defective charge has a wide discretion to amend it at any stage of a
trial. As a similarly subordinate court, that option of amendment of the charge would be available to
the General Court Martial to clarify the specific role played by the respondent in the alleged offence,
as well as, demarcate who of the persons he was arraigned with were the principal offenders.

64. Consequently, given the procedural reliefs available to him, I do not find the defects in the charge
sheet in this case to constitute sufficient reason to declare the respondent’s arraignment before the

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 General Court Martial a violation of the right to a fair trial. However, given the then de jure
composition of the General Court Martial under section 197(1) of the UPDF Act, the respondent’s
arraignment before that military court cannot have been in accordance with the right to trial before an
independent and impartial court as envisaged in article 28(1) of the Constitution. I would accordingly
resolve Ground 3 of the Appeal in the negative.

65. The foregoing findings beg the question as to what would be appropriate remedies in the
circumstances of this case, and whether or not they should apply retroactively. Black’s Law
Dictionary17 distinguishes true retroactivity from quasi-retroactivity, the former consisting of the
application of a new rule of law to matters that were completed before the rule came into force, and
the latter entailing the restriction of a new legal rule to matters pending completion. 18 Meanwhile, in
Griffith v Kentucky, 479 U.S 314, 328 (1987), the US Supreme Court reiterated its view in United
States v Johnson, 457 U. S. 537 (1982), on the need to apply a new constitutional rule to all criminal
cases pending determination in order to uphold basic norms of constitutional adjudication. It was
held:

Unlike a legislature, we do not promulgate new rules of constitutional criminal procedure on a broad
basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case
usually becomes the vehicle for announcement of a new rule. But after we have decided a new rule
in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases
pending on direct review.

66. The court thus projected the general rule on quasi-retroactivity as the retrospective application of
new constitutional rules to all similar cases that are pending final determination. That case was cited
with approval by the Constitutional Court in Duke Mabeya v Attorney General [2023] UGCC 116. I
still consider the decision in Griffith vs Kentucky (supra) to be good law and find no reason to depart
from it. I would thus equally cite with approval the observation in Duke Mabeya v Attorney General
(supra) that a new constitutional rule in the realm of criminal procedure be applied quasi-retroactively
or restricted to cases pending final disposal, to avert the dire effect on the rule of law and the
administration of justice of full retroactivity.

67. Griffith vs Kentucky (supra) additionally posits that unlike the legislature, it is not the function of the
judiciary to formulate laws on a broad basis, its role being limited to the declaration of a new rule

17
8th Edition, p. 1343
18
Citing Hartley, T. C., The Foundation of European Community Law, 1981, 129
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 directly arising from an adjudication. This is similarly acknowledged by the Canadian Supreme Court
in the case of Schachter v Canada [1992] 2 S.C.R 679. That case was relied upon in Fish, Eric S.,
‘Choosing Constitutional Remedies’, 63 UCLA Law Review (L. REV.) 322 (2016) at pp. 339 – 340,
where the following constitutional remedies are proposed – severance, striking down, reading down,
reading in and suspension of the remedy. Schachter v Canada (supra) expounded on the remedies
of severance and striking down as follows:

The Doctrine of Severence

Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as
possible. Generally speaking, when only a part of a statute or provision violates the Constitution, it is
common sense that only the offending portion should be declared to be of no force or effect, and the
rest should be spared. Far from being an unusual technique, severance is an ordinary and every day
part of constitutional adjudication. For instance, if a single section of a statute violates the
Constitution, normally that section would be severed from the rest of the statute so that the whole
statute need not be struck down. To refuse to sever the offending part, and therefore declare
inoperative parts of a legislative enactment which do not themselves violate the Constitution, is surely
the more difficult course to justify. Furthermore,19 it is logical to expect that severance would be a
more prominent technique under the Charter (of Bill of Rights) than it has been in division of power
cases. In division of power cases the question of constitutional validity often turns on an overall
examination of the pith and substance of the legislation rather than on an examination of the effects
of particular portions of the legislation on individual rights. Where a statute violates the division of
powers, it tends do so as a whole. This is not so of violation of the Charter where the offending portion
tends to be more limited. When the offending portion of a statute can be defined in a limited manner
it is consistent with legal principles to declare inoperative only that limited portion. In that way, as
much of the legislative purpose as possible may be realised. ... This concern is reflected in the classic
statement of the test for severance in Attorney-General for Alberta v Attorney-General for Canada
[1947] A.C 503 at p. 518:

The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains
cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be
assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all. ...

Therefore, the doctrine of severance requires that a court define carefully the extent of the
inconsistency between the statute in question and the requirements of the Constitution, and then

19
See Rogerson, ‘The Judicial Search for Appropriate Remedies under the Charter:The Examples of
Overbreadth and Vagueness’, in Sharpe, ed., Charter Litigation, (1986) at pp. 250 – 252.
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 declare inoperative (a) the inconsistent portion, and (b) such part of the reminder where it cannot be
safely assumed that the legislature would have enacted it without the inconsistent part.20

68. Relatedly, the remedy of Reading In was explained thus:

Reading In as Akin to Severence

The same approach should be applied to the question of reading in since extension by way of reading
in is closely akin to the practice of severance. The difference is the manner in which the extent of
inconsistency is defined. In the usual case of severance the inconsistency is defined as
something improperly included in the statute which can be severed and struck down. In the
case of reading in the inconsistency is defined as what the statute wrongly excludes rather
than what it wrongly includes. Where the inconsistency is defined as what the statute
excludes, the logical result of declaring inoperative that inconsistency may be to include the
excluded group within the statutory scheme. This has the effecting of extending the reach of
the statute by way of reading in rather than reading down. (my emphasis)

69. The choice of appropriate remedy between severance and reading in where a statutory provision
violates the Constitution thus hinges on whether the nature of the constitutional inconsistency entails
something improperly included in or excluded from the statute. In the matter before us presently,
section 195 excludes such professional competencies in the membership of the General Court
Martial as would mitigate connotations of partiality and non-independence. As such, reading those
omissions into that provision might have been the more appropriate remedy but for the fact that the
deference to the competence of persons with a military background was at the time informed by the
scarcity of legal professionals in the military and the complexities of securing legal professionals for
field courts martial. This is borne out by the parliamentary debate in respect of the then Uganda
Peoples Defence Forces Bill, No. 22 of 2003 as reported in the Hansard Report of the Seventh
Parliament, 21st October 2004, pp. 11387 – 11390. So that, reading into section 195 of the UPDF
Act the constitutional safeguards and membership as the court deems appropriate would be
tantamount to the usurpation of Parliament’s legislative function by judicial over-reach.

70. However, the same Schachter case proposes another constitutional remedy that gives the
legislature a chance to craft its own solution. It was observed:21

20
Schachter v Canada (supra) at pp. 696, 697
21
Schachter v Canada (supra) at p. 715.
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 A court may strike down legislation or a legislative provision but suspend the effect of that declaration
until Parliament or the provincial legislature has had an opportunity to fill the void. This approach is
clearly appropriate where the striking down of a provision poses a potential danger to the public or
otherwise threatens the rule of law. It may also be appropriate in cases of under-inclusiveness as
opposed to overbreadth.

71. Provision for legislative reform therein would, in my view, address the shortfalls of the previous
legislative process and provide an opportunity for the review of the military justice law in Uganda (as
has been done in other jurisdictions), to align it with the independence and impartiality safeguards
envisaged in the right to a fair trial under article 28(1) of the Constitution. It will suffice to observe
here that unlike judiciary-driven reforms that ought to be restricted to matters that were in contention
between the parties; legislative reform may holistically address matters that were not necessarily in
issue before this Court but similarly accrue to the right to a fair trial in courts martial. This would
forestall avoidable litigation in respect of related matters and abide the notion of judicial economy.

C. Disposition

72. The upshot of my judgment is that this Appeal partially succeeds, while the cross appeal fails. I do
abide Declarations (i), (ii), (iii) and (vi); Orders (3) and (7) on the non-retroactive effect of the Court’s
decision and costs, and Advisory Orders (d), (e) and (h) as stated in the lead judgment.

73. In the result, I would set aside the judgment and orders of the Constitutional Court in Constitutional
Petition No. 45 of 2016, and substitute them with the following declarations:

(1) The General Court Martial is a subordinate court of competent jurisdiction within the
confines of articles 129(1)(d) and 257(1)(d) of the Constitution, but its de jure
membership under section 195(1) of the UPDF Act does undermine its independence
and impartiality, and is to that extent inconsistent with the fundamental right to a fair
trial enshrined in article 28(1) and 44(c) of the Constitution.

(2) The respondent’s arraignment before a General Court Martial the de jure membership
of which does not pass constitutional muster, was a violation of his right to a fair trial
and, to that extent, inconsistent with article 28(1) and 44(c) of the Constitution.

(3) The provisions of section 117(1)(g) of the UPDF Act do delineate exceptional
circumstances that would justify the trial of civilians in military courts, and is to that
extent consistent with the right to a fair trial enshrined in articles 28(1) and 44(c) of
the Constitution.
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 (4) Section 117(1)(h) of the UPDF Act is void for vagueness, and therefore inconsistent
with the right to a fair trial as enshrined in article 28(12) of the Constitution.

(5) Service offences as defined in section 1, as well as the provisions of section 177 of
UPDF Act, are not at cross-purposes with either the objective of the UPDF Act under
article 210(a) and (b) of the Constitution, or the legislative mandate of Parliament
under articles 79, 129(3) and 210 of the Constitution; nor in any case are they
inconsistent with articles 28(1) and 44(c) of the Constitution.

(6) The Declaration of inconsistency in clause (2) above shall have quasi-retroactive
application to all cases pending determination before the General Court Martial.

74. In addition to those Advisory Orders in the lead judgment that I have endorsed, I would propose the
following additional advisory order:

The General Court Martial be substantially composed of civilian judges who are directly
appointed thereto by the Judicial Service Commission in accordance with the
Constitution (as is presently done in respect of judges of the Industrial Court), and the
member(s) of the General Court Martial from within the military should be appointed in
consultation with the Judicial Service Commission.

I would so order.

Dated and delivered at Kampala this 31st day of January, 2025.

Monica K. Mugenyi
Justice of the Supreme Court

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