The Constitutional Court has in a decision of three against two held that that trying civilians in military courts is unconstitutional. The majority decision of the court held that under the 1995 Constitution, trying civilians is the role of civilian courts of judicature.
“I would declare that the UPDF Act, 2005 to the extent that it may be understood as conferring jurisdiction on military courts to try civilians is unconstitutional and therefore null and void,” Justice Elizabeth Musoke, who wrote the lead judgment, stated.
Consequently the Constitutional Court has ordered that criminal cases in which civilians were being charged before the military courts and are pending trial or have been partly tried, should immediately be transferred to a competent civilian courts and also be taken over by the Director of Public Prosecutions (DPP).
“I would order 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. However, in future any trial of civilians by military courts 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, null and void,” Justice Musoke said.
The court held that military courts are intended as disciplinary courts for the Uganda People’s Defence Forces (UPDF) to ensure discipline among the soldiers. Through their lawyers – Rwakafuzi and Co Advocates,in 2015 – the petitioners, (more than 100 suspects )- led by Capt (rtd) Amon Byarugaba Hasibu Kasiita and Mathias Rugira challenged the military courts jurisdiction to try civilians, which is in contravention of the Constitution.
The petitioners further stated in their petition that military courts are not fit try civilians in criminal cases since there are empaneled by non-lawyers with grave difficulty in appreciating complex issues of evidence.
They further stated that the nature of criminal trials in military courts is such that civilians charged are only allowed military lawyers whose allegiance is to the military.
The learned Attorney General (AG) had opposed the petition and denied any violation of Article 209 of the Constitution and section 119(1) of the UPDF Act reasoning that military courts do have jurisdiction to try civilians who either aid and abet a person subject to military law in the commission of a service offence or are found in unlawful possession of classified stores.
The AG had also argued that section 119(1)(h) of the UPDF Act does not create offences but merely delineates persons that are subject to military law while section 197 of the UPDF Act confers unlimited jurisdiction on the General Court Martial to try civil offences within the confines of section 179 of the same Act.
Editors Note: This decision will not affect cases that were concluded and sentences passed prior to this ruling . Justices Kenneth Kakuru and Geoffrey Kiryabwire consented while Deputy Chief Justice Richard Buteera and Monica Mugenyi dissented.
