References is made to verbal utterances, electronic, social and print media deliberate and systematic attacks on the Courts Martial including a notice of intention to sue by some actors. More detailed, was also an article titled, “Glaring difference between Army and Civilian Courts” in the Daily Monitor of 10 Dec 24.
The attacks ever since the arrest and arraignment of Col (Rtd) Dr Kiiza Besigye and Hajji Obeid Lutale in the General Court Martial on 20 Nov 24, have been systematic scornful attacks on Military Courts, particularly the General Court Martial and its members.
Some of the prominent attacks contained on social media by a one Aron Kiiza stated that “They are committing crimes in Makindye, not conducting a trial. We know what to do with the criminal soldiers in Makindye in that kangaroo court calling themselves a general court martial. The people trying Besigye and Lutale in kangaroo military tribunal at Makindye are all criminals, yet it is their government that we can drag to the East African Court of Justice.”
Additionally, other attacks labeled the military courts as command driven, they are kangaroo courts or tribunals for the discipline of military personnel and have no jurisdiction whatsoever to try civilians or military personnel for non-service offences.
Further that, the General Court Martial does not follow the adversary system of litigation, which is strictly adhered to by the Criminal Judicial System.”
UPDF will not allow these lies and systematic attacks by some actors to continue un abated. These lies are intended to dent the image of the military courts and ridicule an otherwise legally established institution so that offenders who qualify themselves to be tried by the same courts can continue to terrorise Ugandans as the benefactors of some of these crimes walk away in jubilation.
This is, therefore to clarify and respond to some of the ongoing attacks or utterances as follows:
1. In regard to whether military courts are a kangaroo court or military tribunals, the truth is that the Supreme Court has already pronounced itself on this matter in that military courts are courts of Judicature and subordinate to the High Court of Uganda. In Civil Suit No. 3 of 2005; Attorney General VS Joseph Tumushabe, Justice Mulenga JSC who was the leading Judge held that, “Although Courts Martial are a specialized system to administer justice in accordance with military law, they are part of the system of courts that are, or are deemed to be established under the Constitution to administer justice in the name of the people. It follows that the General Court Martial 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.”
2. On the issue whether Military Courts have jurisdiction to try civilians, the Supreme Court in the case of Namugerwa Hadija Vs DPP & Attorney General Civil Appeal No. 04 of 2012, Justice Tumwesigye JSC who was the leading Judge held that, “it is clear to me that civilians in Uganda can become subject to military law and once they become subject to military law, they will be tried by the General Court Martial. I am unable to see any exemption of civilians from the application of Section 179 of the Act once they become subject to military law under Section 119(l)(g) and (h) of the Act.”
3. In the case of Namugerwa Hadija hereinabove, it was further held that, “Section 197 of the UPDF Act establishes a General Court Martial and confers on it, among other things, unlimited original jurisdiction to try offences under the Act. Offences under this Act include service offences under Section 179 of the Act committed by persons subject to military law. These persons include civilians subject to military law under Section 119(l)(g) and (h) of the UPDF Act. Section 2 of the Act defines a “service offence” as “an offence under this Act or any other Act for the time being in force committed by a person while subject to military law”. Therefore, any civilian who is subject to military law can commit a service offence whether under the UPDF Act or any other Act.”
4. Article 132 (4) of the 1995 Constitution provides that the Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law. Thus, these two Supreme Court decisions above are binding on the Constitutional Court and the Court of Appeal. Therefore, the reliance on Constitutional Court decisions of Capt (Rtd) Amon Byarugaba and Others VS the Attorney General (Constitutional Petition No. 44 of 2015) and (Ssemujju VS the Attorney General (Constitutional Petition No. 4 of 2018) referred to by one Aron Kiiza in the social media, is not legally tenable in the circumstances.
5.It therefore, follows that the law is well settled from the cases of Namugerwa Hadija Vs DPP & Attorney General Vs Joseph Tumushabe above cited that decisions of the Supreme Court are binding on the Court of Appeal, Constitutional Court or any other court for that matter. A prudent lawyer cannot therefore, rely on authorities of a lower court, where there are precedents on the same matter from a superior court of law.
6. The Supreme Court decision passed on 11 Dec 24 in Criminal Appeal No. 048 of 2021: 2nd Lt Ogwang Ambrose Vs Uganda, has no bearing on the issue of trial of civilians by Courts Martial. The major issue addressed by the Supreme Court in this case was whether the Uganda Court of Appeal had the jurisdiction to entertain an appeal that emanated from the Court Martial Appeal Court and it was accordingly held that the UPDF Act does not provide for an appeal from the Court Martial Appeal Court to the Uganda Court of Appeal. Hence, there is no bridge between the two aforementioned Courts and therefore, the Uganda Court of Appeal entertained the appeal in error. The position of the law is that an appeal is a creature of a statute and cannot be created by a regulation.
7. Currently, the UPDF is awaiting the decision of the Supreme Court in the case of Attorney General Vs Kabaziguruka in which many of the issues raised in the Daily Monitor of 10 Dec 24 were responded to. These include the issues on whether or not military courts are command driven, and as to whether they follow the adversary system of litigation. Contrary to the views held by some of the civilian lawyers, military courts are independent and follow laid down procedures in execution of their judicial functions. Besides the non-technical personnel who are members of the court, the military courts have technical personnel such as a Judge Advocate who advises the courts on points of fact, procedure and the Law, a Prosecutor who lays the cases before the court and conducts the prosecution, a Defence Counsel who assists the accused person(s) in making a defence and a Court Registrar who records the court proceedings. All the above technical personnel are Advocates of the High of Uganda. The courts strictly follow the adversarial system hence the existence of the above structure.
UPDF therefore, advises liars and propagandists who are denting not only the image of the Military Courts but also the UPDF as a whole to stop it forthwith, instead stick to the law by correctly interpreting and citing appropriate legal authorities related to the matter at hand.
Authored by Brig Gen Felix Kulayigye, the Director Defence Public Information.
