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Long read: How Besigye was key in ending trial of civilians in military courts

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Rtd Col Dr Kizza Besigye was key in ending trying civiians in military courts (Phot Courtesy)

On December 3, 2024, a group of more than 50 lawyers led by the Kenyan High Court Advocate Martha Karua, City Lord Mayor Erias Lukwago, imprisoned Eron Kiiza, and others stormed the offices of Judiciary in Kampala.

The lawyers, representing Dr Kizza Besigye and Obeid Little who are currently being tried before the General Court Martial, were seeking an audience with the Chief Justice Alphonse Owiny Dollo, to deliver a petition to him, asking him to lead a panel of Supreme Court Judges and deliver their judgment in the case of trying civilians in military court.

A month later, a panel of judges convened in Kampala and delivered a land mark ruling which has changed the political and judicial landscape of the country.

The ruling

Six Supreme Court judges led by the Chief Justice Alphonse Owiny-Dollo yesterday upheld the decision that had been ruled by the Constitutional Court, annulling the trial of civilians in military courts.

Supreme Court judges; Justice Catherine Bamugemeirere, Mike Chibita, Elizabeth Musoke, Percy Night Tuhaise, Monica Mugenyi while delivering their ruling on the Constitutional application number 5 of 2021 which is the Attorney General as the Applicant and Hon Micheal Kabaziguruka who was the respondent and in this Case unanimously banned the trial of civilians in the General Court Martial (GCM) and other military courts.

Justice Bamugemereire noted that the GCM “is not a subordinate court and lacks essential features such as independence and impartiality.”

“The General Court Martial is a military organ with limited jurisdiction,” Justice Elizabeth Musoke stated in concurrence.

“The cases that may be tried there are limited to discipline, and the nature of punishment is confined to disciplinary measures. It does not have general judicial functions.”

The ruling comes in response to an appeal by the Attorney General challenging the Constitutional Court’s 2021 decision, which had declared Sections 2, 119, and 179 of the Uganda People’s Defence Forces (UPDF) Act unconstitutional.

These provisions had allowed the military court to prosecute civilians under specific circumstances.

Supreme Court Judges led by the Chief Justice Owiny Dollo pose for a photo at the Judiciary headquarters yesterday

Justice Percy Night Tuhaise was unequivocal in her stance, asserting that “all prosecution of criminal offenses should be done by the Director of Public Prosecutions (DPP). Justice cannot only be done but must be seen to be done.”

She pronounced the GCM incompetent to handle judicial matters, emphasizing that its members lacked the legal qualifications to guarantee fair trials.

The ruling highlighted fundamental concerns over the military court’s lack of independence and impartiality.

Justice Musoke added that its jurisdiction “goes beyond the spheres of discipline,” rendering it legally unsound to try civilians.

The court further ordered that the GCM can only try members of the UPDF and only in cases of disciplinary offenses.

“Where a military court determines that a case requires imprisonment, the file shall be forwarded to the DPP for prosecution in a competent court,” the ruling stated.

Chief Justice Owiny-Dollo also took the opportunity to address public criticism of the judiciary, particularly accusations of judicial inefficiency in politically charged cases.

“If you know arithmetic very well, you will see that these have been eight months, not four years,” he said, dismissing claims that the judgment had been unduly delayed.

He defended the judiciary’s independence, stating, “Insulting and attacking judicial officers is no way to engage in discourse. Criticism should aim to improve the system, not undermine trust in institutions.”

He further noted: “All pending criminal trials, pending trials involving civilians before the court martial must immediately cease and be transferred to ordinarily courts of law with COMPETENT powers.” 

Besigye factor

Dr Besigye who first appeared before the GCM in 2005, was on November 16, last year abducted from Nairobi. He had been accompanied by his colleague Obeid Lutale where they were destined to attend a book launch by Ms Karua, a Kenyan prominent politician.

On November 19, he was arraigned before the GCM where he was charged with illegal possession of fire arms which contrary to UPDF Act and remanded.

The Brig Freeman Mugabe-chaired Court charged the duo with four counts of crime including possessing firearms and have since remanded them till December 10, when they will reappear for their Case hearing.

Rtd Col Dr Kizza Besigye was key in ending trying civiians in military courts (Phot Courtesy)

The duo since then refused to take plea before this court which prompted their lawyers to petition the Supreme Court asking it to pronounce itself on this matter.

“We drew the attention of the Secretary to the Chief Justice on Constitutional application number 5 of 2021 which is the Attorney General as the Applicant and Hon Micheal Kabaziguruka who was the respondent and in this Case, the Supreme Court to which the CJ is a member stayed the ruling of the Constitutional court that GCM should not try civilians and taking civilians there was unconstitutional and of note, order number four was that since the matter was of great public interest, should be hear expeditiously, I am informed the case was heard and finalised  in 2021 but three years later, judgement has not been delivered,” Ms Karua told reporters on December 3, 2024

Ms Martha Karua leading a team of Dr Besigye Lawyers in Uganda

She added, “We came to remind the CJ that the delay in delivering this ruling is a violation of Constitutional rights by the Supreme court and we are therefore invoking his administrative position, to cause the judgement to be delivered because the stay of those orders is what is forcing the military court to force Dr Besigye, Mr Lutale and many other civilians to be tried in that GCM,”

Unlike other civilian courts which are directly governed under the Judiciary headed by the CJ, the GCM gets its mandate from the Uganda People’s Defence (UPDF) Act, which establishes military courts in the country.

The UPDF Act also gives the GCM powers to sit anywhere in Uganda or outside the country where the UPDF is deployed.

A panel of five Supreme Court judges led by CJ Dollo, Justice Arach Amoko, Opio Aweri, Faith Mwondha and Like Chibita delivered a ruling on August 5, 2021 which informed Dr Besigye’s lawyers concerns yesterday.

These judges who were ruling on the Notice of Appeal by the Attorney General, stayed the execution of the July 1 ruling by the Constitutional Court which had among others declared it unconstitutional for a civilian to be tried before the military courts.

The Supreme Court yesterday ruled that the General Court Martial (GCM) has no jurisdiction to try civilians, declaring its involvement in such cases unconstitutional.

Starting immediately, the deep relief in the nation will be followed by debate on whether the military will comply with the highest legal decision in the land and free not only Dr Besigye and his associate Obeid Lutale but also their lawyer Eron Kiiza, who was jailed for nine month by the military court

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