The Supreme Court today dismissed an appeal lodged by the government over the trial of civilians in the General Court Martial (GCM).
The government had challenged a Constitutional Court ruling that upheld that it was “unconstitutional” for civilians to be tried in the army courts.
Michael Kabaziguruka, the former Nakawa MP had petitioned the Constitutional Court challenging his trial in the GCM.
The Constitutional Court agreed with Kabaziguruka but the government appealed the decision in the Supreme Court.
The Supreme Court in a a near unanimous decision today, affirmed the decision. Only two out of seven justices of the Supreme Court appeared to support the appeal. The justices that ruled to dismiss the appeal were: Alphonse Owiny-Dollo, Catherine Bamugemereire, Elizabeth Musoke, Percy Tuhaise, and Faith Mwondha.
Those who ruled in support of the government’s appeal were: Mike Chibita and Monica Mugenyi.
In his ruling Owiny-Dollo said while GCM has judicial power, the trial of civilians ought to take place in civil courts not in the army courts. He said where a case attracts a death penalty, the GCM should have no power to try it.
“Trial of civilians in a military court is unconstitutional,” said Owiny-Dollo.
He said the GCM is subordinate court with specialised jurisdiction.
“Whereas civilian court judges swear allegiance to the Constitution, army judges swear allegiance to their commander hence no guarantee of fair trial. The military must justify why civilian courts are inadequate to hear cases that carry the death penalty and life imprisonment,” he ruled.
He said all charges and on-going criminal cases befrore the court martial must cease and be transferred to the courts of law which have jurisdiction.
He said all pending trials or those that fall partly under civilian laws must be transferred.
The verdict is a triumph for human rights activists and other political players who had vehemently opposed the trial of civilians in army courts.
It means that the trial of Dr. Kizza Besigye and other civilians in the General Court Martial will not go ahead.
However, the ruling is a blow to President Museveni and others of his ilk who had insisted that the General Court Martial should try civilians engaged in military acts.
Individual rulings
In her ruling, Justice Catherine Bamugemereire suspended all the proceedings ongoing in the General Court Martial after finding it inconsistent with the constitution. She has called for the amendment of the UPDF Act. She recommends that the arraignment of any soldier who commits an offense on the Civilians should be arraigned in civil courts.
“I don’t agree that the military court should be granted jurisdiction beyond the trial of military personnel. All other criminal matters should be handed by the courts of judicature,” she ruled.
She said the General Court Martial lacks jurisdiction to try civilians.
“The arrest, detention, persecution before the court martial is in breach of the constitution,” she noted.
Justice Elizabeth Musoke dismissed the appeal arguing that the GCM General is limited to hearing matters of the
UPDF has limitations like lack of independence and lack of training of its members in legal matters.
“The GCM is a disciplinary organ of the UPDF whose jurisdiction is limited to handling matters within UPDF,” she said.
She also awarded costs to the respondent, Michael Kabaziguruka.
Justice Percy Tuhaise said there can be no fair trial in an incompetent court. She recommended that all the prosecution of criminal offenses should be done by the DPP. She asserted that justice cannot only be done but also seen if the members of the General Court Martial “hold qualifications in legal matters.” She thus said the GCM is incompetent to try civilians.
Justice Faith Mwondha, whose ruling was read by Owiny-Dollo, said she identified with the decision taken by the chief justice.
Justice Monica Mugenyi, who was the first to read her ruling, said the General Court Martial is not an “independent and impartial court”. However, she did not dismiss the appeal arguing that instead, the GCM should have civilian judges appointed in consultation with the Judicial Service Commission (JSC).
Justice Mike Chibita said the trial of civilians in Court Martial is “justified and not unconstitutional.”
