By WILSON KUTAMBA
The Constitutional Court has declared the trail of civilians in military courts unconstitutional, and ordered an immediate transfer of their files to civil courts.
The ruling follows a 2016 petition by former Nakawa MP and FDC stalwart Michael Kabaziguruka, challenging the jurisdiction and competence of the court martial to try civilians.
Kabaziguruka ran to the Constitutional court after being arraigned before the Makindye based General Court Martial where he and 23 others over treason charges.
In the land marking ruling delivered on Thursday, July 1, three justices of the Constitutional court namely, Kenneth Kakuru, Christopher Madrama and Remmy Kasule argued that a military court’s jurisdiction is only limited to trying service offences specified under the UPDF Act, only in respect to persons subject to military law.
Two other Justices on the coram, Hellen Obura and Steven Musota wrote a dissenting judgement.
In the lead judgement delivered by Justice Kakuru, the Constitutional court gave a 14-day ultimatum within which all cases against civilians be transferred to civil courts.
“All those persons, not subjected to military law and are currently being tried before any military court, we order that their files be transferred to civil courts under the direction of Director Public Prosecutions [DPP] within 14 days from that date hereof,” the judges ruled.
They added: “All those not subjected to military law who are currently serving sentences imposed by the authority of military courts contrary to the Constitution as set out in this judgment, should have their case files to the High Court criminal division for retrial or be dealt with as the Court Martial may direct within 14 days of this judgment.”
Judges said the judgment doesn’t exonerate anybody from criminal responsibility and said those affected will remain in lawful custody or apply for bail as fresh charges may be brought up by the DPP.
The judges also declared several provisions of the UPDF Act, notably Section 119(1), Section 119(h) and Section 179 (1)(a) null and void because they are inconsistent with Article 28(1) of the Constitution of the Republic of Uganda.
The judges agreed that cases of unlawful possession of firearms should not be tried in the Court Martial but rather in the civilian courts.
The ruling comes at a time when several supporters of the opposition National Unity Platform (NUP) are facing trial before the General court martial. While some were bailed, there are some who are still under detention over charges of illegal possession of military stores and other items known to be the preserve of the army.
Since 2002, military courts in Uganda have prosecuted hundreds of civilians for offenses under the criminal code, such as murder and armed robbery.
In 2006, Constitutional Court ruled that military prosecutions of civilians were unlawful. This ruling, upheld on appeal by the Supreme Court in January 2009, was consistent with international law, which unambiguously holds that military tribunals are not competent courts to try civilians accused of peacetime criminal offenses.
Despite this, military courts have continued to prosecute civilians