A constitutional crisis looms in Uganda where President Yoweri Museveni has slammed last week’s watershed judgment by the country’s highest court. The judges found that courts martial had no jurisdiction over civilians and that all such trials had to stop immediately. Evidence of the extent and determination of the military’s refusal to obey the supreme court orders will emerge this week when the general court martial trying a significant political opponent of Museveni is due to reconvene. Based on the supreme court’s orders, lawyers for Kizza Besigye, imprisoned since he was abducted in Kenya, will demand his immediate release. However, weekend statements by the military and Museveni in response to the judgment, indicate that they could well refuse to release him: Museveni declared that the court was ‘wrong’ in its finding and that ‘the country is not governed by the judges’. Further, an official statement by the top military spokesperson, Colonel Chris Magezi, said that the general court martial would ‘under no circumstances’ release Besigye ‘until he faces the full extent of martial law’.
Supreme Court judgments
For the last 25 years, Uganda has seen legal action challenging the trial of civilians before military courts. Then, on Friday, the highest court in the land held definitively that such trials are unconstitutional, and ordered that all cases of this sort were to stop immediately.
The court’s finding is big news in Uganda, where courts martial seem to have become one of the government’s preferred methods of dealing with its political opponents. This has caused a great deal of protest since military courts are widely seen as profoundly incompatible with the rule of law, and a means of ensuring de facto military rule in Uganda.
Public attention is currently focused on a just such a case involving key opposition figure Kizza Besigye and his aide Haji Obeid Lutale.
Apex court upheld essence of constitutional court’s findings
The two were recently abducted from Kenya and brought back to Uganda where they are now in prison and facing a court martial. Lawyers for the duo have said repeatedly that the court martial had no jurisdiction to hear the case since it involves civilians, but this has not swayed the military court, which said the matter had to proceed.
In their argument, Besigye’s legal team cited a decision delivered four years ago by the constitutional court in relation to another such court martial, where the court found it was unconstitutional to try civilians in a military court. However, the attorney general appealed that decision, and its effect has been thus been on hold all this time, waiting for the supreme court to pronounce on the constitutional court’s findings.
On Friday, the supreme court finally gave its views on the all-important and long-awaited appeal. The decisions of all seven judges involved were read out during a public session of the court, broadcast live via the internet. In essence, they have upheld central aspects of the constitutional court’s decision.
Museveni: court is ‘wrong’; Uganda ‘not governed by the judge’
Two of the judges found that civilians could be tried by military courts under some conditions, but the remaining five disagreed. All seven, however, agreed that the military courts, as presently constituted, were unconstitutional, and that all cases of civilians now pending before the military courts be immediately sent to the normal civilian courts.
This would include the case of Besigye and his aide, and his lawyers said they should immediately be released by the military. What is troubling the human rights community, however, are the reactions by the military: by President Yoweri Museveni, himself at the pinnacle of the military, and by the chief spokesperson for the military, Colonel Chris Magezi.
Museveni declared that the court was ‘wrong’ in its finding, adding that ‘the country is not governed by the judges’. He further named the two supreme court judges who found that in some cases, civilians could be tried by courts martial, adding, ‘Salutations to those two judges.’ He did not, however, mention that these two joined with the remaining five in agreeing that the military courts, as presently constituted, were unconstitutional, and that all pending cases had to stop.
Further, an official statement by the top military spokesperson, Colonel Chris Magezi, said that the general court martial would ‘under no circumstances’ release Besigye ‘until he faces the full extent of martial law’. Magezi’s statement was also sent out on social media by an account linked to Museveni’s son, General Muhoozi Kainerugaba, who is chief of the defence force.
Military court personnel ‘lack legal qualifications’
The densely-structured, 200-page lead decision by Chief Justice Alfonse Owiny-Dollo, is filled with many references to the way that courts martial are dealt with in other jurisdictions, as well as the demands that the African Charter and other international legal instruments make on Uganda to fulfil its constitutional promise of democratic governance.
He noted that the different levels of military courts in Uganda were staffed by people who lacked legal qualifications. The civilian courts by contrast met the constitutional standards for the administration of justice. This resulted in two contrasting standards and meant people appearing before courts martial did not enjoy their right to a fair hearing before an independent and impartial court.
The CJ contrasted the oath taken by members of the military courts with the judicial oath. The military oath provided for direct allegiance to the President, who was also a member of the military high command, and convener of the military courts. It bound members to ‘observe and obey all lawful orders of the officers’ in command.
Judges’ allegiance to the constitution, not the president
By contrast, the judicial oath bound judges to make decisions in accordance with the constitution, ‘without fear or favour, affection or ill will’, and their oath of allegiance was not to the president but to the constitution.
He said that civilians tried in military courts for criminal offences would not enjoy the same rights as those who appear in the civilian court, charged with the same offences.
‘Worse still, … the military courts have the right to impose the death penalty’ and yet the law as it stands does not give a person sentenced to death by a military court the right to appeal to the supreme court.
Courts martial ‘devoid of independence, fairness and impartiality’
‘The general rule is that ordinary courts alone have jurisdiction to try civilians. I am unable to find any rational or justifiable link between the need to maintain discipline in the army or the maintenance of security of the Ugandan borders, and trial of civilians in the military tribunals generally. This is bolstered further in the light of my findings that trials in the courts martial are devoid of independence, fairness and impartiality in the conduct of proceedings’.
One of the arguments supporting the jurisdiction of military courts over civilians was that military courts ‘are more efficient in determining cases’, and that this could be very important for Uganda’s security. The CJ said that this was not a ‘sound’ argument, and that the state had the duty to strengthen the civilian courts so that they could function ‘at an optimal capacity’.
He writes about the ‘trend’ in democracies, especially new democracies ‘such as Uganda, which witnessed gross human rights violations in the past’ to make some ‘sober’ decisions about allowing the trial of members of the military before military courts for all offences, when there was a functional judiciary in the civil courts.
‘Sordid past’ when military council ruled by decree
Uganda’s sad history, when for many years, the country was ruled by the military, was mentioned in several of the other judgments as well, with judges pointing out that the constitution was supposed to provide a bulwark against return to those days.
One of the seven, Catherine Bamugemereire, who wrote of Uganda’s ‘sordid past’, was the most pointed on this issue. She said that during the 1971-1979 military era, a military council ruled by decree. The military was used as a tool for political control, with military tribunals taking precedence over civil courts, trying soldiers and civilians by an arbitrary legal process and with little regard for fairness or due process. In that era, she said, military justice was ‘politicised’.
There was consensus among the judges that the law would have to change to ensure independent, impartial, legally-trained judges among those presiding at a court martial. But that, in the view of the majority, would only help ensure that the military courts were constitutionally constituted – it did not mean that civilians could ever be subject to these courts.
Unanimous finding that all military trials of civilians must halt at once
However, all seven of the judges agreed that all trials of civilians in the military courts must stop immediately.
As the CJ put it, and this is the section that will be particularly quoted when lawyers for Besigye argue for his immediate release this week, ‘all charges, or ongoing criminal trials, or pending trials, before the courts martial involving civilians must immediately cease and be transferred to the ordinary courts of law with competent jurisdiction.’
Whether the supreme court’s orders will be obeyed by the military will become clearer when lawyers appear at the military courts this week seeking the release of their clients. There is concern, however, that the military will refuse to obey the supreme court, thus creating a constitutional crisis.
(written on 1 February 2025)