KABALE UNIVERSITY

FACULTY OF LAW

DEPARTMENT OF PUBLIC AND COMPARATIVE LAW

LAW 1202 CONSTITUTIONAL LAW 2

ADV DALTON ODOMOCH

COURSEWORK ASSIGNMENT NO:1

LUYIMA SHAFIQ

2024/A/KBL/1166/F

Due date : Monday 17th February 2025

This coursework assignment requires you to critically analyze the recent Supreme Court
Judgement, its constitutional implications, and public policy considerations. Your analysis
should Deals with significant constitutional issues, particularly the use of military courts in
Uganda Attorney General v Kabaziguruka (SCCA 2 of 2021) [2025] UGSC 1. You will
provide an in-depth examination of the judgment, focusing on the reasoning of each
Judgment in, which Reflect both an understanding of the case and critical legal reasoning.
Attorney General v Michael Kabaziguruka (SCCA 2 of 2021) [2025] UGSC 1 is a supreme
Court case of Uganda at Kampala before a Coram of seven justices.

The case is an appeal arising from a constitutional petition filled by the respondent Micheal
Kabaziguruka who in 2016 was arrested and charged in the General Court Martial despite being
a civilian for crimes related to illegal possession of firearms and conspiring against the security
of the defense forces.

He challenged his trial in the General Court Martial through a petition in the constitutional court
arguing that as a civilian he was not a subject to military law and that the GCM is not a
competent court under the 1995 constitution of Uganda . He as well argued that being arraigned
before the GCM is inconsistent and contravenes his right to a fair hearing under article 28 of the
1995 constitution Of Uganda . The constitutional court partly allowed the appeal ruling that
military courts lack the tenets of an ordinary court, they are tribunals and are not part of the
judiciary and thus ordered for the release of the petitioner.

The appellant was dissatisfied with the constitutional court decision thereby appealing to the
supreme Court .The issues for determination by the supreme Court where;

1.Whether the General Court Martial is a court established under the constitution or a
mere tribunal?

2.whether the constitutional court erred in holding that General Court Martial lacks
impartiality and independence ?

3_Whether Section 119(1)(h) of the UPDF Act inconsistent with Articles 28(1) and 44(c) of
the Constitution?

Many other issues pertaining to the competence of military courts where also addressed .
However The Supreme Court upheld the constitutional court decision thereby affirming that
military courts are not part of the judiciary as enshrined under article 129 and also lack the
independence required for a fair hearing under article 28 of the constitution.
The Chief Justice of Uganda Owiny Dollo at page 44 paragraph2 emphasized that “I would
therefore hold that the General Court Martial is not merely a complementary court to ‘civil’
Courts. It is established as a court; which is However seized with a specialized jurisdiction.”
Justice Elizabeth Musoke At also contented that the General Court Martial is not a court of
judicature per article 129(1) of the 1995 constitution of Uganda Which includes the supreme
Court , court of appeal, high court and other subordinate courts1. She also asserted that
parliament didn’t establish it as a either a superior or a subordinate court under the provisions of
the constitution and that the GCM functions as a displinary tribunal for Uganda Peoples Defense
force members .

On the issue of whether or not the GCM lacks impartiality and independence
The counsel for the appellant argued that the findings of the majority justices
in the constitutional court that the GCM is not independent or impartial is an
absurdity as it presupposes that the military personnel do not enjoy
fundamental rights and freedoms enshrined in the constitution . The Chief
Justice however challenged this on page 94 paragraph 2 of his judgement
that military service men are under a chain of command and may be
influenced under a chain of command .In paragraph 3 he contrasted the on
the difference between the oath of allegiance of a military personnel and the
judicial oath in the oaths act. In furtherance justice Elizabeth Musoke also
emphasized that

On the issue of whether or not the GCM lacks impartiality and independence The counsel for the
appellant argued that the findings of the majority justices in the constitutional court that the
GCM is not independent or impartial is an absurdity as it presupposes that the military personnel
do not enjoy fundamental rights and freedoms enshrined in the constitution . The Chief Justice
however challenged this on page 94 paragraph 2 of his judgement that military service men are
under a chain of command and may be influenced under a chain of command .In paragraph 3 he
contrasted the on the difference between the oath of allegiance of a military personnel and the
judicial oath in the oaths act2. In furtherance justice Elizabeth Musoke also emphasized that
there are several deficiencies in the set up operations of the General Court Martial that diminish
1 The 1995 Constitution of the Republic of Uganda, Article 129
2 The oath act cap19
it’s capacity to adjudicate cases. She further states that the objective lack of independence of
both the GCM as a Court, and of its members, as , the lack of competence of the members of the
GCM due to their lack of legal training and knowledge, the absence of effective mechanisms for
reviewing the correctness of the decisions of the GCM. Among all other deficiencies the
highlighted above render it impossible for an objective observer to conclude that the GCM can
guarantee a fair trial. On the same issue justice Percy Night Tuhaise on page 4 of her
judgement was to the effect that the GCM would only be competent to adjudicate over criminal
matters of civilians if it had the requiste structures to conduct a fair hearing per article 28 of the
constitution .On the third issue whether section 119(1)(h) of the UPDF Act inconsistent with
Articles 28(1) and 44( c)of the Constitution? Justice Mike chibita at page 3 paragraph 2 of
her judgement Argued that Section 117(1)(h) of the UPDF Act is unconstitutional because it
expands military jurisdiction to civilians thereby contravening article 28(3) and article 44(c) of
the constitution however, the Chief justice emphasized that “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
advocates about it”

From the judgements above, constitutional principles of a right to fair trial as postulated under
article 28 of the constitution were upheld as majority of the justices ruled that military courts
lack independence and impartiality which violates fair trial rights in salvatori Abuki V AG Const.
Petition No.2 of 1997, Okello J stated that If the purpose of the statute infringes a right
guaranteed by the Constitution, that statute is declared unconstitutional.3 Principles of separation
of powers are also much emphasized and in this aspect majority of the justices in their
judgements found that military courts are not part of the judiciary and cannot exercise judicial
power over civilians. I the case of Jim Muhwezi & 3 others vs the Attorney general and Anor
constitutional petition court held that separation of powers is defined as the division of
government authority into 3 branches of government each with specified duties and of which
neither can encroach on the other branches.4 Lastly on the principle of judicial independence, the
composition structure of the General Court Martial which includes military officers compromises
its ability to act independently. In the case of Musalalu Munene & 3 Ors v Attorney general
3 Salvatori Abuki V AG Const. Petition No.2 of 1997,
4 Jim muhwezi & 3 others vs the Attorney general and Anor constitutional petition No 10 of
2008
Mpagi Bahigeine JA noted that judicial officers are charged with safeguarding the fundamental
rights and freedoms of the citizens .5

As the majority of the justices in their judgements applied a purposive interpretation of the
provisions of the constitution thereby emphasizing human rights and constitutional supremacy
some dissenting justices partly applied the textualist approach arguing that the law as written
allows military courts some jurisdiction over civilians. In effect she also argued that military
courts serve a national security function and should retain jurisdiction over civilians involved in
security-related offences.as Kabaziguruka alleged offences had a direct impact on national
security, justifying his trial before the GCM.

In Kenya, under the Kenya defense forces Act civilians can as well be tried in military courts
under certain circumstances especially when they commit offences with military personnels
while in the United States it was held by the supreme Court in Reid v convert that military courts
can not try civilians6. The same is also recognized in UK under The Armed forces Act 2006
which limits military courts trials to only service personnel’s. The Ugandan supreme Court ruling
in kabaziguruka case aligns more with the United States and UK approach which emphasizes the
trial of civilians in a competent court.

The ruling in Attorney general v kabaziguruka promotes judicial independence as provided for
under article 128(1) 7through reinforcing that military courts lack the tenets and the necessary
safeguards of a fair trial . In effect The Chief Justice in his judgement henceforth invalidated
ongoing and past cases against civilians in military courts, potentially leading to retrials or
dismissals.

It also reinforces due process rights and equality before the law by ensuring that all accused
persons including civilians from being subjected to military legal procedures

Further more the ruling promoted Ugandans adherence to human rights and freedoms which
aligns with the International Covenant on Civil and Political Rights (ICCPR) that advocates for a
right to a fair hearing .

5 Musalalu Munene & 3 Ors v Ag Constitutional Petition No. 5 of 2004

6 Reid v. Covert, 354 U.S. 1 (1957)
7 The 1995 constitution of the Republic of Uganda Article 128(1)
By transfer of civilian trials to ordinary courts , fundamental human rights and freedoms are
protected since military courts are seen as less impartial to handle civilian cases and this can be
traced from the backdrop of events following the arrest of Michael kabaziguruka..

Lastly, the ruling in a political aspect can be seen as victory for those who advocate for civil
liberties and democracy particularly for opposition figures and many other activists ie kizza
Besigye a prominent opposition leader who is alleged to have been found in illegal possession of
firearms in Kenya was also tried in military court for charges of treason . His case was one of
the catalysts for the supreme Court ruling.

In my opinion, I agree with the majority decision of the majority justices of the supreme Court
in the case of Attorney General v Kabaziguruka (SCCA 2 of 2021) [2025] UGSC 1 since it
upholds many fundamental constitutional principles which includes judicial independence,
separation of powers, Rule of law and constitutional supremacy. This can be rooted from the
judgement of the Chief Justice Owiny dollo at page 23 paragraph 1 where he started that “A
constitutional provision containing a fundamental human right is a permanent provision
intended to apply for eternity; therefore, it should keeping in view the ideals cherished and
approved of by the people, as be accorded dynamic, progressive, liberal, and flexible,
construction; as well as their social, economic, and political cultural values so as to extend the
benefit of the same to the maximum ”justice Faith Mwondha concurred. My opinion also
coincides with the UN principles on the independence of the Judiciary as articulated by justice
Monica .k. Mugenyi at page 22 paragraph 2 of her judgement.

In addition, to an extent I would not agree with the advisory order of justice Monica k.
Mugenyi at page 30 paragraph 4 where she advised that the GCM be composed by civilians
judges appointment by the Judicial service commission as in my view, it would amount to an
overreach of the judiciary in executive matters as earlier noted from the lead judgement that the
GCM is a displinary tribunal for military personnel’s headed by the high command and in this
case who is the president.

In conclusion, parliament should revise and amend the UPDF Act to completely restrict military
trial of civilians in the military courts as it will prevent political misuse of military courts against
civilians and opposition leaders.
REFERENCES

1. The 1995 constitution of the Republic of Uganda Article 128

2. The Oaths act cap19
3. Salvatori Abuki V AG Const. Petition No.2 of 1997,
4. Jim muhwezi & 3 others vs the Attorney general and Anor constitutional petition No 10
of 2008
5. Musalalu Munene & 3 Ors v Ag Constitutional Petition No. 5 of 2004
6. Reid v. Covert, 354 U.S. 1 (1957)

BIBLIOGRAPHY
Primary sources

The 1995 constitution of the Republic of Uganda

The Oath Act cap 19

Secondary sources

Case law