The Trial of Civilians Before Courts Martial in Uganda: Analysing the Jurisprudence of Ugandan Courts in the Light of the Drafting History of Articles 129(1)(d) and 210(a) of the Constitution

Authors

DOI:

https://doi.org/10.17159/1727-3781/2022/v25ia12023

Keywords:

courts martial; Uganda; civilians; jurisdiction; UPDF; independence and impartiality;

Abstract

Unlike in the constitutions of other African countries such as Botswana and Lesotho, where the relationship between the High Court and courts martial is stipulated, the Ugandan Constitution 1995 (the Constitution) does not deal with this relationship. The Constitution is also silent on the question of whether courts martial have jurisdiction over civilians. The Uganda Peoples' Defence Forces Act (the UPDF Act) creates different types of courts martial with varying jurisdictions (section 197). The Act also provides (section 119) for the circumstance in which the General Court Martial has jurisdiction over civilians and appeals against the decisions of the General Court Martial lie to the Court Martial Appeal Court, which is the final appellate court except in cases where the offender is sentenced to death or life imprisonment. According to Regulation 20(2) of the UPDF (Court Martial Appeal Court) Regulations, in case an offender is sentenced to death or life imprisonment and his/her sentence is upheld by the Court Martial Appeal Court, he/she has a right to appeal to the Court of Appeal. Since 2003, Ugandan courts have grappled with the issues of whether courts martial are courts of judicature within the meaning of article 129(1) of the Constitution or organs of the UPDF and, therefore, part of the Executive under article 210 of the Constitution and whether courts martial have jurisdiction over civilians. Judges of the Supreme Court Constitutional Court and Court of Appeal have often disagreed on these issues. In this article the author relies on the drafting history of Articles 129 and 210 to argue that courts have erred by holding that courts martial are not courts of judicature under article 129(d) of the Constitution; and that courts martial are subordinate to the High Court. The author also relies on the drafting history of the Constitution and on international human rights law to argue that courts martial in Uganda should not have jurisdiction over civilians because they lack the necessary independence and impartiality and were established for the single purpose of enforcing military discipline.

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Author Biography

Jamil Ddamulira Mujuzi, University of the Western Cape

Professor, Faculty Law, University of the Western Cape

References

Bibliography

Literature

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Case law

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Attorney General v Kabaziguruka (Constitutional Application 5 of 2021) [2021] UGSC 21 (5 August 2021)

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Dr Kizza Besigye v Attorney General (Constitutional Petition-2007/7) [2010] UGSC 6 (12 October 2010)

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Joseph Tumushabe v Attorney General (Constitutional Petition No 6/2004) (8 December 2004)

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Law Office of Ghazi Suleiman v Sudan (Decision, Comm 222/98; 229/99) (ACmHPR, 29 May 2003)

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Male Mabirizi v Attorney General [2018] UGCC 4 (26 July 2018)

Media Rights Agenda v Nigeria (Decision, Comm 224/98) (ACmHPR, 6 November 2000)

Mgwanga Gunme v Cameroon (Decision, Comm 266/2003) (ACmHPR, 27 May 2009)

Michael Kabaziguruka v Attorney General (Constitutional Petition No 45 of 2016) (1 July 2021)

Namugerwa v Attorney General (Civil Appeal-2012/4) [2013] UGSC 20 (19 June 2013)

Okiring v Uganda (Decision, Comm 339/2007) (ACmHPR, 7 August 2017)

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Uganda Law Society v Attorney General (Constitutional Application No. 7/2003)

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Working Group on Strategic Legal Cases v DRC (Decision, Comm 259/2002) (ACmHPR, 24 July 2013)

Zachary Olum v Attorney General (Constitutional Petition 6 of 1999) [1999] UGCC 7 (02 December 1999)

Legislation

Constitution of Botswana, 1966

Constitution of Lesotho, 1993

Constitution of Uganda, 1995

Penal Code Act, 1950 (Ch 120)

Uganda Peoples' Defence Forces Act, 2005

Uganda Peoples' Defence Forces (Court-Martial Appeal Court) Regulations, Statutory Instrument 307-7

International instruments

Human Rights Committee General Comment No 32 (Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial) UN Doc CCPR/C/GC/32 (2007)

International Covenant on Civil and Political Rights (1966)

Internet sources

Tumusiime B and Wesaka A 2021 Museveni yet to Drop Kayihura Military Charges https://www.monitor.co.ug/uganda/news/national/museveni-yet-to-drop-kayihura-military-charges-3381526 accessed 16 August 2021

Published

2022-04-05

How to Cite

Mujuzi, J. D. (2022). The Trial of Civilians Before Courts Martial in Uganda: Analysing the Jurisprudence of Ugandan Courts in the Light of the Drafting History of Articles 129(1)(d) and 210(a) of the Constitution : . Potchefstroom Electronic Law Journal, 25, 1–32. https://doi.org/10.17159/1727-3781/2022/v25ia12023

Issue

Section

Articles