The Constitutional Court in Kampala has ruled that it is wrong for the General Court Martial to try civilians.
In 2016, the then Nakawa Municipality MP Michael Kabaziguruka who was facing treachery charges petitioned the Constitutional Court, seeking it to declare the General Court Martial and other military courts unconstitutionally established and could not try civilians.
In a majority 3:1 judgment, the Constitutional Court ruled that the General Court Martial was set up to discipline UPDF soldiers and that trying civilians is wrong.
Justice Kenneth Kakuru said in his judgment that the composition and power of appointment of the Court Martial members by the UPDF High Command emphasize its restrictive nature.
Justice Kakuru said Parliament clearly intended that the jurisdiction of the General Court Martial extends to only UPDF therefore; the Court-Martial is clearly not part of the judiciary.
The judge explained that several attempts by the executive to put the army court under the same footing as courts of judicature has created confusion and discord among legal practitioners, scholars and jurists but noted it is simply trying to fit a square peg in a round hole.
The no-nonsense judge said the jurisdiction of the General Court Martial is limited and only applicable within the confines of the UPDF Act and therefore has no jurisdiction over persons who are not subject to military law.
According to Section 119 of the UPDF Act, every person found in unlawful possession of arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or other classified stores as prescribed, is subject to military law and can be tried in military courts as appropriate.
However, in his judgement, Justice Kakuru ruled that persons subject to military law must be only those who have voluntarily agreed to subject themselves to military law.
The Constitutional Court directed that all persons not subject to military law and are currently before the military court should have their cases transferred to civil courts under the direction of the Director of Public Prosecutions within 14 days.
The court also directed that all persons who are currently serving sentences emanating from trial by the General Court Martial should have their cases files transferred to the High Court criminal division for re-trial or to be dealt with as court may direct in 14 days but they will remain in custody until their cases are transferred.
