While delivering her judgment over the trial of civilians in army courts on Friday 31st January, Justice Monica K. Mugenyi being the first justice to deliver her verdict, she deviated from other six justices when she stated that civilians should be tried in army court only on special circumstances.
Going by the seniority of justices on the panel, Chief justice Alphonse Owiny-Dollo asked her to give her verdict first.
“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 offenses at issue the regular civilian courts are unable to undertake the trials,” Justice Mugenyi emphasized.
Initially Michael Kabaziguruka, in 2026 as a Member of Parliament for Nakawa was arraigned before the General Court Martial (GCM) on charges relating to security and Military prosecution invoking section 1171) (g) of the UPDF Act No 7 of 2005 which averred that the accused though a civilian was subject to military law.
Kabaziguruka through his lawyers Caleb Alaka, Medard Ssegona and Rwakafuuzi petitioned the Constitutional Court which ruled that Army courts have no jurisdiction to try civilians thus the appeal to Supreme Court by the Attorney General.
In this judgment which Siraje Lubwama produces in an abridged version, Mugenyi avers that though Kabaziguuka could be falling under the circumstances to be tried by the army court while supporting orders of the CJ in the lead judgments, she outlines reasons why he couldn’t be tried by the army court:
Mugenyi (to the attentive courtroom where the army and the Attorney General (AG) and accredited journalists are present) This appeal arises from the decision of the Constitutional Court of justices Kakuru, Obura, Musota & Madrama in Constitutional Petition No. 45 of 2016 dated 1st July 2021.
Introduction.
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 GCM established under section 1951of 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.
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 (CC) challenging his arraignment before the GCM. 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.
Determination.
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.
It is a trait in 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.
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—the right to a fair hearing.
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. (Refers to Attorney General v Maj. Gen. David Tinyefunza [1998] UGSC 74).
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 court or
tribunal established by law.
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.
(Refers to 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.
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 in military courts.
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. (her emphasis).
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.
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.
It seems to me that by declining to outrightly prohibit the trial of civilians by military courts, 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 court 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.
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.
Courts martials are established by the UPDF Act, article 210 of the Constitution to preside over the service offenses defined in section 1 of the UPDF Act, which include the offenses 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.
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 adjudication 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 [her emphasis].
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 (ULS) v Attorney General (AG) (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.’ 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.
Recognized courts of judicature.
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 Qadhi’ courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament.
Meanwhile, article 137(5) places court 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 importance 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 GCM and Court Martial Appeals Court (GMAC) to courts of law.
I find fortitude for this view in AG 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): Constitutional Court Mo,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. [her emphasis)].
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.
The finding in that case that the GCM is a subordinate court resonates with the definition of courts in article 257(1)(d) insofar as that military court is established by 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 (DPP); the functions of the DPP are the following: To institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court martial (CM).
Article 257. Interpretation;
In this Constitution— unless the context otherwise requires, a reference to an office in the public service includes— a reference to the office of Chief Justice, Deputy Chief Justice, Principal Judge, a justice of the Supreme Court or a justice of 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.
The alignment of a CM with any other court of law in both of those constitutional provisions has the effect of placing CMs 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 CM from the public service offices enlisted in clause (2)(a)(i) of the same article would not necessarily discount the GCM’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.’ GCM is a subordinate court of judicature.
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 GCM is a subordinate court of judicature within the confines of article 129(1)(d) of the Constitution.
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 GCM 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 (PCA) and other related Acts of Parliament.
The legislative function of Parliament is delineated in article 79 of the Constitution as follows:
- 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.
- 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.
- Parliament shall protect this Constitution and promote the democratic governance of Uganda.
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.
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. Court martials are undoubtedly judicial organs of the UPDF.
Having found that the GCM is indeed a subordinate court of judicature, it follows that the establishment of the GCM under the UPDF Act the and delineation of its jurisdiction therein was well within the remit of Parliament.
However, the scope of that jurisdiction is a matter of contention before this Court.
The appellant contests the CC’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 GCM’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.
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).
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.
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 PC and other Acts would only become service offences that are triable by the GCM if committed by persons that are subject to military law.
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
(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.
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.
Who is liable for a service offence?
In my judgment, this introduces a time element that is not quite addressed in the definition of a service offence advanced in AG 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: 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.
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].
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 PCA 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.
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 their actions bring them within the purview of military law. Stated differently, the GCM 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 themselves to military law under the conditions encapsulated in section 117(1)(g) and (h) of the UPDF Act.
Its jurisdiction over civilians would only arise in exceptional circumstances where such non-military persons subject 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.
A subordinate, High and Lower court explained. Against that background, I now turn to the contentious question of the jurisdictional scope of the General Court Martial over civil offences. In AG 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) [heremphasis].
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.
Where a person is arrested in respect of a criminal offence—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; [her emphasis],
I do additionally acknowledge the position taken in AG 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.
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.
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 PC and other Acts of Parliament while undertaking field operations both within or outside Uganda, but away from the geographical jurisdiction of civilian courts.
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 See paragraph 29 of the Draft Principles Governing the Administration of Justice through Military Tribunals.
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.
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, un catered 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.
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.
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.
Having so held, and considering that the GCM sits in appeal over decisions of field courts martial, I would refrain from excluding civil capital offences from its jurisdiction.
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 to military law in the commission of a service offence, and those found in unlawful possession of arms, ammunition or equipment ordinarily or other classified stores that is the preserve of the UPDF.
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 ULS v AG, 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 AG v ULS [supra].
In the latter case of Michael Kabaziguruka v AG, Constitutional Petition No. 45 of 2016 from which this appeal arises], in a marked departure from the then settled question in ULS v AG [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 AG v ULS [supra], the case of ULS v AG [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 AG [supra] in the latter cases of Ret. Capt. Amon Byarugaba & Others v AG, Constitutional Petition No. 44 of 2015 and Abdulnul Ssemuju v AG [2023] UGCC 5. It now falls to this Court, under the present Appeal, to pronounce itself with finality on the matter.
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 ULS v AG [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 mandate to control the nation’s defence and national security.
… As a general rule civilian 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.
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.
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 (PCA).
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— every person who aids or abets another person in committing the offence.
Reading section 117(1)(g) of the UPDF Act together with section 19(1)(c) of the PCA 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 the 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.
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 Law 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 (e.g. treason, murder, manslaughter and rape) be held by the ordinary criminal courts (and is in practice frequently held by them in other cases).’
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 court 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 CC 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.
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, 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.
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.’
(Refers to 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. (Refers also to Francis Tumwesige Ateenyi v Attorney General, Constitutional Petition No. 36 of 2018 and Andrew Karamagi & Another v AG, 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.
GCM has jurisdiction to try civilians.
In a nutshell, I find that the GCM 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.
- 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 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. - . 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.’
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 in so far 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.
She also referred to the International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors: ‘regardless of the character of the individual members of such tribunals, its composition alone creates the appearance (of), if not actual, lack of impartiality.’
The GCM 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 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 GCM could very well possess the requisite qualifications, its de jure composition is purely restricted to qualification on the basis of military service.
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.
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:
(Refers to 15 See sections 197(1) and 198(a) of the UPDF Act) .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.
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 were 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.
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 GCM, the evidential burden shifted to the
appellant to factually demonstrate the independence and impartiality of the GCM
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.
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.
On the other hand, under Ground 3 of the Appeal the respondent’s arraignment before the GCM 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 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.
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.’
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 GCM 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.
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 GCM 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.
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 Dictionary 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.
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.
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.
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 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 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, 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 AG 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.
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 GCM 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 UPDF 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.
However, the same Schachter case proposes another constitutional remedy that gives the legislature a chance to craft its own solution.
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 over-breadth.
Recommend legislative reform 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.
Disposition
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.
- 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 GCM is a subordinate court of ccompetent 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.
(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 the 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.
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.
By; Siraje Lubwama,
Senior Investigative Journalist in crime, court land matters, human Rights.
Freelance Journalist, with Alternative Digitalk
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