“In our view, the body of the UPDF Act specifically set out the army courts as a parallel judicial framework distinct and juxtaposed against the courts of judicature. It appears to have been contemplated that the UPDF courts were better placed to address discipline issues within the rank and file of the armed soldiers and better able to handle penal sanctions that, hopefully, deter further offending.
The Supreme Court has implicitly ruled that only soldiers can be tried in Military Courts.
In a decision by a panel of five Supreme Court judges in which they ruled that soldiers sentenced to death or life sentences can’t appeal their sentences, in civil courts, the court noted that the military courts were the ones established to address discipline within the rank and file of the UPDF. “In our view, the body of the UPDF Act specifically set out the army courts as a parallel judicial framework distinct and juxtaposed against the courts of judicature. It appears to have been contemplated that the UPDF courts were better placed to address discipline issues within the rank and file of the armed soldiers and better able to handle penal sanctions that, hopefully, deter further offending. It is through these structures that UPDF soldiers are made accountable. This can be inferred as the legislative intent,” the judgement reads in part.
The judges made the eye-catching findings in a unanimous decision delivered in the case of Lt. Ambrose Ogwang, a UPDF officer who was found guilty of murder by the Court Martial and subsequently sentenced to 29 years in prison. Ogwang sought to overturn his conviction and sentence.
Ogwang had won an appeal against his conviction and sentence in the Court of Appeal but the government appealed the matter before Supreme Court. The DPP raised a preliminary objection saying the Court of Appeal had no power to hear an appeal from the court martial. The judges upheld this finding. “In the present case, we can safely conclude that the appellant being a soldier, was properly tried by the military court martial courts.”
The panel was led by Justice Lilian Tibatemwa Ekirikubinza. The others were Mike Chibita, Catherine Bamugemereire, Christopher Izama Madrama, and Stephen Musota.
In 2020, the Attorney General appealed a decision by the constitutional court which ruled that it was unconstitutional to try civilians in military courts. The decision arose from a challenge by the former Nakawa member of parliament Michael Kabaziguruka challenged his trial in the military court calling it unconstitutional because he was not a serving member of the UPDF.
The same court in 2022 also made the same finding that military courts are not courts of judicature and therefore, can’t try civilians. The court ordered that all files in the court martial against civilians be transferred to civil courts.
The Supreme Court heard the appeal in May but it is yet to give its ruling on the matter. The panel that heard the matter was headed by Chief Justice Owinyi-Dollo, Faith Mwondah, Percy Night Tuhaise, Mike Chibita, Monica Mugenyi, Elizabeth Musoke, and Catherine Bamugemereire.
Of the seven, Mugenyi and Musoke were part of the panel that determined the matter when they were still at the constitutional court. Of late there have been calls to the supreme court to render its judgment in the matter as more civilians continue to be tried in the court-martial, the latest being Dr Kizza Besigye and Hajji Obed Kamulegya Lutale.
