Introduction
The Constitutional Court on the 15th of December 2022, a final ruling was made in the case of Rtd. Captain Amon Byarugaba, Hasibu Hasita, Mathias Rugira & 167 Others (Petitioners) Versus Attorney General. (Respondent) Constitutional Petition No. O44 Of 2015 the majority coram ruled in favour of the petitioners against the Government wherein it was concluded that the exercise of jurisdiction by Military courts to try civilians for criminal offences is unconstitutional and that the nature of trial proceedings in Military Courts does not ensure to accused civilian persons charged before those courts, the several minimum fair trial safeguards guaranteed under the 1995 Constitution thus unconstitutional
Background of case
This Petition for constitutional interpretation was brought under the provisions of Article 137 (3) (a) and (b) of the 1995 Constitution by Mr. Amon Byarugaba (Petitioner and retired former captain in the former National Resistance Army (NRA), now Uganda Peoples Defence Forces (UPDF)) who was charged in the General Court Martial (GCM), a military Court. Mr. Hasibu Kasiita (petitioner and civilian). The Petition is stated to have also been brought on behalf of 167 other petitioners unascertained in the Petition and all stated to be civilians who have in the past been tried in the General Court Martial. The petitioners contend that the basic objective of the UPDF is to preserve and defend the sovereignty and territorial integrity of Uganda, which means that trying civilians is outside the constitutional mandate of the UPDF. They also assert that certain provisions of the Uganda Peoples Defence Force Act, 2005 (‘UPDF Act’) give Military Courts jurisdiction to try civilians for criminal offences in some instances which is unconstitutional to the 1995 Constitution under Article 209 that spells out the functions of the UPDF, and those functions do not include trying civilians for criminal offences.
They allege that Military Courts are ill-suited for trying civilians in criminal cases because “military courts are empaneled by non-lawyers with grave difficulty in appreciating complex issues of evidence.” They further allege that the nature of criminal trials in Military Courts is such that civilian accused persons charged before those Courts are only allowed military lawyers whose allegiance is to the military. Such lawyers do not act in the best interests of their clients. In addition, military lawyers are only appointed for a period of 1 year, which prejudices the accused persons’ defence. More to that the petitioners allege that the legal framework governing Military Courts restricts the right to appeal, to only persons sentenced to death or life imprisonment, which is unconstitutional.
Consideration of Petition
The petition was before a Coram of Justices, Richard Buteera, Geoffrey Kiryabwire, Kenneth Kakuru, Monica Mugenyi, JJCC. Elizabeth Musoke wrote the lead Judgement agreed upon by Geoffrey Kiryabwire, Kenneth Kakuru JJCC while Richard Buteera and Monica Mugenyi contended to it. From the affidavits of both parties, the following issues were raised for determination, ‘whether the Military courts have jurisdiction to try civilians for civil offences.’ ‘Whether charging a person with an offence under section l19 (l) (h) or the UPDF Act is unconstitutional as it creates an offence outside an Act of parliament.’ ‘Whether military courts are not independent and impartial courts as required by Article 28 (1) of the 1995 constitution. During the trial, the Respondent also raised an objection that the Petition discloses no questions for constitutional interpretation and or that the Petition discloses no cause of action against the respondent
Justice Elizabeth Musoke overruled this objection stating that allegations concerning the jurisdiction of Military courts to try civilians for criminal offences, require this court to assess whether such exercise of jurisdiction and the UPDF Act which allows it, violates provisions of the 1995 constitution. This satisfies Article 137 (3) of the 1995 constitution’ As for the allegations relating to the inability of trials in Military courts to ensure that accused persons get the minimum fair trial guarantees enshrined under the 1995 constitution, these satisfy the limb in Article 137 (3) (b)’ Therefore, the Petition discloses questions for constitutional interpretation.
Her lordship went ahead to resolve the first and Second Issue together with authority from Attorney General vs. Joseph Tumushabe, Supreme Court Constitutional Appeal No. 3 of 2005 Attorney, General Wambuzi vs Tinyefuza, Supreme Court Constitutional Appeal No. 1 of 1997 and Article 126 of the 1995 Constitution providing for power to administer justice, by interalia, trying criminal cases, as a general rule, vested exclusively in the courts established therein. It is added that it is clear that the framers of the 1995 constitution intended that, as a general rule, only the Courts spelt out under Article 129 (1) would be involved in the administration of justice for civilians. These courts are the Supreme Court, the court of Appeal, the High court as superior courts of record. The framers of the 1995 constitution permitted Parliament to create such subordinate Courts as it would deem fit. Accepting, as I do, that this is the true construction of Article 129 of the 1995 constitution, it is, in my view, incontrovertible that Military courts are not courts of judicature in terms of Article 126 (t) and 129 (1)(i) and that as a general rule, such Military Courts have no role in the administration of justice for civilians. They are neither Superior Courts nor subordinate Courts.
Her Lordship added that Parliament under Section 119 (1) (h) and 119 (1) (g), extended application of military law to persons not members of the military, acted unconstitutionally. This is because Article 210 of the 1995 Constitution, under which parliament derived authority to provides that parliament may only enact the UPDF Act, expressly move under that provision to legislate on matters concerning members of the armed forces. Therefore, the impugned provisions of section 119 (1) (h) and 11g (1) (g) of the UPDF Act, are to that extent inconsistent with the 1995 Constitution and therefore null and void. It was observed that in enacting the UPDF Act, Parliament also intended to promote discipline in the army by prohibiting certain conduct by members of the UPDF. Parliament intended to set up a disciplinary tribunal or Court for the UPDF in accordance with Article 210 0f the 1995 constitution. Such tribunals can only be concerned with matters of discipline within the army, and with members of the UPDF. They cannot try civilians who are not members of the UPDF.
In dissent to this judgment and the 1st, 2nd and 3rd issue of the petitioners, Justice Monica K. Mugenyi gave authority from the case of n Uganda Law Society v. Attornev General. Constitutional Petition No. 18 of 2005 and Attorney General v. Joseph Tumushabe. Constitutional Appeal No. 3 of 2005 as a settled law on the broad question as to the compliance of sections 119(1) (g) and (h) of the UPDF Act with Articles 28(1), 126(1) and 210 of the Constitution, that the General Court Martial is subordinate to the High Court and allowed the cross appeal, without expressly pronouncing itself on the constitutionality (within the ambit of Articles 28(1), 126 and 210) of the joint trial of civilians and members of UPDF by the General Court Martial for offences prescribed under the UPDF Act.
Justice Mugenyi Monica asserts with Authority from Attornev General v. Maior Genera! David Tinvefuza (supra) and Attorney General v Joseph Tumushabe (supra), similarly in O’Callahan v. Parker. 395 U.S. 258 (1969) at 259. 263 – 265that a trial in a special military court would of necessity be premised on investigations and prosecution by the military itself. That would not of itself render the process unconstitutional. ln the exceptional circumstances where civilians are inadvertently subject to military trials within the confines of section 1 19(1) of the UPDF Act, they would abide the military investigations and prosecution attendant thereto in the interests of national security. it might be untenable for material on national security that is in the possession of the military to be shared with civilian investigators and prosecutors. ln the absence of proof, therefore, her lordships stands that no merit in the assertion that the investigation and prosecution of matters before military courts by military persons renders the said courts an extension of the Executive branch of government. The appointment of the courts-martial members is approached from the premise that the right to a fair trial undoubtedly requires judges to be impartial, having neither a stake nor an interest in the cases they adjudicate, and no prejudices or biases about cases or the parties
Conclusion
In conclusion, Justice Elizabeth Musoke along with majority coram, allowed the petition and all declarations sought by the petitioners, some to include; that the exercise of jurisdiction by Military Courts to try civilians for criminal offences is unconstitutional under the 1995 Constitution. b) that the UPDF Act, 2005, to be understood as conferring jurisdiction on Military Courts to try civilians is unconstitutional and therefore null and void to that extent. c) That criminal cases in which civilians have been charged before the Military Courts but are pending trial, or have been partly tried, should immediately be transferred to a competent civilian Court of Judicature, and taken over by the Director of public prosecutions. d) That the convictions and sentences of civilians which arose from criminal cases tried by Military courts prior to the date of this Judgment are valid. That any future trials of civilians by Military Coutts, and any decision that may be taken at such trials to convict and or sentence civilians shall from the date of this judgment be invalid and null
