The Supreme Court in Kampala on Friday halted the trial of civilians before the General Court Martial, ostensibly saving four-time presidential candidate Col (rtd) Kizza Besigye and his co-accused from trial by a military that had kept them incarcerated for over two months.
The court also ordered that the cases currently being handled by the court martial be transferred to civilian courts with competent jurisdiction.
Dr Besigye, Obeid Lutaale and Captain Denis Oola were charged with five offences, including treachery and illegal possession of firearms.
The prosecution charged that between February 2023 and November 2024, the three held meetings in Geneva, Athens, Nairobi and Uganda meant to hatch plans to compromise the security of Uganda.
The Supreme Court’s decision came as a relief to the accused and their counsel, who have complained of injustice before the military court.
“All ongoing trials involving civilians in the court martial must immediately cease and be transferred to ordinary courts of law,” rule Chief Justice Alfonse Owiny-Dollo in the majority ruling of the panel of seven judges.
According to the apex court, the military courts (Field Court Martial, the General Court Martial, and the divisional military courts) are lawfully established specialised courts, whose jurisdiction and powers are restricted to offences concerning the discipline of Uganda People’s Defence Forces (UPDF).
But, due to its composition, which has serving army officers who draw orders from their appointing authority with no competence in legal issues, the military courts are neither independent nor impartial to render a fair trial.
Giving an example of how incompetent soldiers leading the court are, the Chief Justice compared himself to leading a battle.
“Imagine myself, the Chief Justice of Uganda who has never done any military training to lead a battlefield and defend the country against an enemy,” he said, emphasising the importance of professionalism and competence in specific fields.
The court highlighted the weaknesses of the court martial, including the fact that decisions are by the majority opinions of members, who are advised by a Judge Advocate, whose opinion is equated to that of an assessor in a criminal trial, but which would be unbinding to court.
The court also contended that the oath taken by serving military officers binds them to answer to the high command, which makes it difficult for members to be impartial.
“These untrained persons can issue sentences of life imprisonment and death which is outside their mandate. It has been now opinionated by the court that the appointment of members of the military courts should conform to the Judicial Service Commission which spots competent personnel and their terms of services provides a sense of security of tenure,” the court ruled.
Upholding the decision of the Constitutional Court in 2021, which nullified the trial of civilians in military courts, the judges declared the army court incompetent to try civilians, raising serious questions about its fairness, independence, and constitutional standing.
In a highly anticipated ruling, which stems from a case in 2021, where the military court was challenged on trying civilians, the Supreme Court upheld the ruling of the court.
In 2021, former legislator Michael Kabaziguruka, who, along with 20 others, was charged with treason, challenged their trial and petitioned the Constitutional Court. In its ruling, the Constitutional Court indicated that the General Court Martial had no powers to try civilians.
“The court-martial jurisdiction is only limited to trying offences specified under the Uganda People’s Defence Force Act, only in respect to the persons subject to the military law,” the ruling stated.
The court also ruled that all case files under the court martial be transferred to civilian courts within 14 days. But its orders were not executed after the Attorney-General appealed the ruling at the Supreme Court, the highest court in the land. It has taken four years before the Supreme Court made the ruling, despite the demands by lawyers to have the case disposed of.
Lawyers for opposition leader Kizza Besigye led by Kenyan counsel Martha Karua and Kampala Lord Mayor Erias Lukwago gather outside the General Court Martial in Makindye, Uganda on December 2, 2024.
Photo credit: Reuters
It was only last week that the court set a date for the ruling -- which political analysts termed as politically motivated – but, while delivering the ruling Justice Owiny-Dollo explained that the retirement of some judicial officers had caused the delay.
Anticipating the ruling, just hours before the court made the decision, Besigye’s lawyers petitioned the Constitutional Court, challenging the legality of the charges brought against them in the Court Martial, as well as the process leading to their arrest and subsequent prosecution.
In the petition by lawyers led by Kampala Mayor Erias Lukwago, Besigye said that as a member of the newly formed opposition party, People’s Front for Freedom, which seeks to lawfully change the current government, he and Lutale are illegally held in remand at Luzira prison and the General Court Martial lacks territorial jurisdiction, with offences alleged to have been committed outside Uganda.
According to Mr Lukwago, they wanted an interim injunction to stay Besigye’s trial until the petition is determined.
The lawyers had also argued that Besigye would not receive a fair trial before the General Court Martial, given statements attributed to the Chief of Defence Forces (CDF) Gen Muhoozi Kainerugaba, in which he said Besigye would be executed on Heroes’ Day (June 9).
“The trial going on is a sham, just a perfunctory process awaiting just the final decision taken by Gen Muhoozi and the powers that be that Dr Besigye should be executed,” Mr Lukwago said.
The recent arrest and summary sentencing of one of Besigye's lawyers Eron Kiiza without a court hearing brought to the fore the assertions that the military court was high-handed and unable to dispense justice.
Protesters in Kampala called for the review of the court and a declaration by the Supreme Court to bring back the confidence of Ugandans in the operations of the court system. Kiiza was sentenced to nine months in prison by the court martial for contempt of court.
Journalist-turned-activist Agather Atuheire, who was arrested while protesting outside the Supreme Court, after the sentencing said: “The Chief Justice has sat on cases that are affecting people’s lives. Citizens have been in jail for years without justice.”
Lawyers have argued that the trial of civilians in military courts violates the constitutional principle of fair trial, saying the military court system is meant to handle disciplinary issues of the armed forces.
Political analysts have argued that the judiciary has been under pressure to delay critical cases that involve politicians or opposition figures, especially as the country prepares for the forthcoming general election, slated for early January 2026.
Uganda Law Society president Isaac Ssemakadde hailed the Supreme Court ruling, calling it a landmark decision that upholds protection of human rights.
In a statement, he said the judgment was a victory for democracy.
“Justice delayed has been justice denied for countless Ugandans who have suffered under the dark shadow of military justice,” he said, calling on UPDF to fully comply with the judgment and ensure that civilians are no longer subject to military trials.
Subscribe to continue reading this premium articleSubscribe to continue reading this premium article
