Attorney General v Kabaziguruka (Constitutional Appeal 2 of 2021) [2025] UGSC 1 (31 January 2025)

THE REPUBLIC OF UGANDA 5 IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram

OWINY-DOLLO, CJ; MWONDHA; TUHAISE; CHIBITA; MUSOKE; BAMUGEMEREIRWE; MUGENYI; JJ.S.C CONSTITUTIONAL APPEAL NO. 02 OF 2021 (Arising from Constitutional Petition No. 45 of 2016)

ATTORNEY GENERAL ………………..……………… APPELLANT/ CROSS RESPONDENT

VERSUS

HON. MICHEAL A. KABAZIGURUKA …………….. RESPONDENT/ CROSS APPELLANT 15 [Appeal from the decision of the Constitutional Court (Kakuru, Obura, Kasule JJ.A; and Madrama, Musota JJ.A. dissenting) at Kampala dated 1 st July 2021 in Constitutional Petition No. 45 of 2016.]

JUDGEMENT OF OWINY – DOLLO, CJ. 20

Introduction

This appeal arises out of a petition instituted under Article 137 (1) & ( 3) in the Constitutional Court. In essence, the appeal and cross appeal are against the majority decision of the learned J ustices of the Constitutional Court regarding the competence of the military Courts, their ability to render a fair 25 hearing, offences triable in military Courts, and persons subject to the jurisdiction of the military Courts in Uganda.

Background

When he filed Constitution Petition No. 45 of 2016 in the Constitutional Court, the Respondent was a civilian and Member of Parliament representing 30 the people of Nakawa Municipality, Kampala Capital City Authority (KCCA) in the 10 th Parliament, and shadow Minister for KCCA . He filed the petition

against the backdrop of events following his arrest , whereupon he was 5 arraigned before the General Court Martial (GCM) , and charged, along with others, with offences under the Uganda People’s Defence Force (UPDF) Act; to wit, offences relating to security c ontrary to section 130 (1) (f) with the particulars thereof being that he contrived a plot with others to ove rthrow the government of Uganda, and Treachery contrary to section 129 (a) with the 10 particulars thereof being that he infiltrated the UPDF or was an agent of a foreign power or any force engaging in war or war -like activities against the government of Uganda. He objected to his trial in the GCM, contending that he was not subject to military law as he had no military connection and that the GCM was not a competent Court under the Co nstitution to try any of the 15 offences with which he was charged; but, the GCM overruled his objection . He filed the petition in the Constitutional Court challenging the provisions of the UPDF Act No. 7 of 2005, which he singled out in the petition, and acts of the UPDF of arresting, detaining and remanding him to prison in relation to the charges against him , as being inconsistent with the Constitution . The 20 proceedings in the GCM against the Respondent were stayed by an order of the Constitutional Court. In essence he alleged in the petition that: (i) Section 197 of the UPDF Act 2005 is inconsistent with Articles 28 (1), 126 (1), 129 (1) and 257 (1) (d) of the Constitution to the extent that it purports to create a Court of law without constitutional authority. 25 (ii) The General Court Martial and other military Courts established under Part VIII of the UPDF Act are not Courts of law within the meaning of Art 126 (1), 129(1), 210 and 257 of the Constitution of the Republic of Uganda.

(iii) Sections 2, 179 and 119 (1) (g) & (h) of the UPDF Act are inconsistent 5 with and in contravention of the Constitution of the Republic of Uganda to the extent they define a service offence to mean any offence under the laws of Uganda , and conferring jurisdiction unto the Court Martial to try any offence including both capital and nondisciplinary offences, and jurisdiction over every person. 10 (iv) The act of arraigning and/ or charging the Respondent before the GCM holden at Makindye i s inconsistent with and in contravention of his rights of a fair hearing under Arts 28 (1) of the Constitution of the Republic of Uganda. He prayed for a permanent injunction to restrain the Appellant from 15 continuing those proceedings. The Constitutional Court, partly allowed the appeal in its major ity decision where it inter alia held that as a civilian, the Respondent was not subject to military law; and could only be lawfully tried by a military Court if he were charged under s. 119 (1) (g) of the UPDF Act as an accomplice to a principal who was subject to military law , and the 20 principal was so named in the charge sheet. There being no principal named in the charge sheet, the Court held that the charges brought against him were null and void; and of no effect. The Court also declared section 119 (1) (h) of the Act, which allowed military Courts to try persons for offences provided for under other laws outside the scope of the UPDF Act, unconstitutional. 25 According to the Court, Parliament never intended that the UPDF Act should be an Act of general application since it is a statute of special and limited application. Hence, the unlimited and original jurisdiction of the GCM , referred to in the UPDF Act , only apply to offences under that Ac t. Last, the

Court examined the nature of the military Courts and held that, first, Military 5 Courts lack all the tenets of an ordinary Court established under Chapter 8 of the Constitution; particularly under Art . 28 (1). Second, they are tribunals; and third, they are not part of the Judiciary. The Court accordingly ordered that the Petitioner be released forthwith. The Appellant was dissatisfied with the decision of the Constitutional Court; hence it appealed to this Court. The 10 Respondent for his part, cross appealed against the decision allowing civilians, in certain cases, to be tried in the Military Courts.

Grounds of Appeal

The grounds of appeal are;

1. The learned majority Justices of the Constitutional Court erred in law in finding 15 that ss. 2 and 179 of the UPDF Act are in contravention of Articles 28 (1) and 44 (c) of the 1995 Constitution and that the GCM is only competent to try military disciplinary offences under Part VI of the UPDF Act.

2. The learned majority Justices of the Constitutional Court erred in law and fact in determining that the GCM cannot be impartial or independent; is inconsistent with 20 Art 28 (1) of the 1995 Constitution of Uganda , and does not apply the principles therein to persons subject to military law.

3. The learned majority Justices of the Constitutional Court erred in law and fact in determining that charging an d arraigning the Petitioner before the GCM was inconsistent with Art 28 (1) and 44(c) of the Constitution. 25

4. The learned majority Justices of the Constitutional Court erred in law in finding that section 119 (1) (h) of the UPDF Act is inconsistent with Art. 28 (1) and 44 (c) of the Constitution. The Appellant prayed that the appeal be allowed, the decisions of the learned Majority Justices of the Constitutional Court cited be set aside , and the 30 Appellant be awarded costs of the appeal.

The Cross appeal 5 The Respondent cross appealed on the following ground:

1. That the learned majority Justices of the Constitutional Court erred in law in holding that a civilian can be charged before Military Courts as an accomplice together with a person subject to military law. He thus prayed that the cross appeal be allowed , and part of the decision of 10 the majority Justices that he has impugned be set aside or reversed. Representation At the hearing of the Appeal on 30 th September 2021 , the Appellant was represented by Kirwoowa Kiwanuka the Attorney General appearing with Mr. Martin Mwambusya, Director Litigation; Mr Phillip Mwaka, Ag. Commissioner, 15 Directorate of Civil Litigation; Mr Richard Adrole, Principal Sate Attorney; Mr. Brian Musota, State Attorney; and Mr. Franklin Uwizera, State Attorney. The Respondent was represented by Counsel Caleb Alaka, Hon. Medard Ssegona and Mr. Jonathan Elotu. Counsel on each side had earlier on filed written submissions . B oth sides made oral clarifications in Court on their 20

Submissions

The matter came up for rehearing upon reconstitution of the panel , on 13th May 2024. Counsel Medard Lubega Segona represented the Respondent; while George Kalemera, Geoffrey Madette and Brian Musota appeared for the Appellant. Neither side had any new submissions. However, Counsel for the 25 Respondent urged the Court to also consider a recent Constitutional Court decision in Rtd. Cpt. Amon Byarugaba & 169 Ors v A.G - Const. Pet. No. 44 of 2015 as relevant.

Submissions of the parties. 5 Ground

1. The learned majority Justices of the Constitutional Court erred in law in finding that s s. 2 and 179 of the UPDF Act are in contravention of Art . 28 (1) and 44 (c) of the 1995 Constitution , and the GCM is only competent to try military disciplinary offences under Part VI of the UPDF Act. 10 The impugned sections incorporate all offences under oth er enactments within the jurisdiction of the GCM. Under this ground, Counsel for the Appellant challenged the Constitutional Court’s finding that the GCM and military Courts in general are not Courts under the C onstitution; but are tribunals with a limited jurisdiction, and only competent to try military 15 offences rather than ordinary civil offences provided for in other enactments. Counsel submitted that, in enacting s. 2 and s. 179 of the UPDF Act 2005, Parliament acted within its Constitutional mandate in Art. 210 to legislate on matters of regulation of the UPDF including discipline and removal from the UPDF. He argued that this mandate extended to legislation on related matters 20 such as creating the Courts Martial as Courts of law to imbue discipline in the army; delineate the scope and operation of the Courts Martial; and to enforce

The Law

Regarding the wide jurisdiction of the GCM over civil offences and capital offences in particular, Counsel argued that the GCM was already deemed 25 competent to handle offences under the Part VI of the UPDF Act, which attract the death sentence. He also additionally submitted that Parliament was alive to the reality that soldiers in the battle field are fallible to other offences not expressly listed in the UP DF Act, but are covered under other enactments ,

such as rape or murder under the Penal Code Act ; and c ited the need to 5 quickly and firmly deal with the soldiers to maintain discipline . Counsel submitted that the Constitutional Court created an absurdity whereby UPDF soldiers who commit such offences during military expeditions outside Uganda cannot be tried by the GCM or civilian Courts which would have no territorial jurisdiction to hear these matters. He argued that it wa s not 10 necessary for Parliament to re-enact all offences into the UPDF Act s.2 and s.179 were sufficient. On the other hand, Counsel for the Respondent/Cross Appellant submitted that the learned Majority Justices were right in finding that ss. 2 and 179 are unconstitutional. He argued that a service offence under s. 2 is wide and 15 limitless to include all offences to which a person is chargeable under civil statutes that have nothing to do with the military ; therefore, affording the UPDF to usurp the powers of the Judiciary and become a jack of all trades. He argued that the UPDF Act is not an Act of general application , but one of special and limited application; and the power of Parliament in regulating the 20 UPDF was to regulate the UPDF only within the four corners of Art 210 of the Constitution. This excludes the general adjudicatory function and the corresponding wide jurisdiction over all offences, bestowed on the Judiciary under Art.

126. According to him, Parliament also oversteppe d its legislative mandate 25 granted by Article 79 of the Constitution for good governance because even the power to legislate on ‘related matters’, that appears in the long title to the UPDF Act, cannot be read to include the mandate of the Judiciary of adjudication and administration of justice provided for i n Chapter 8 of the

Constitution; but falls outside the scope of Art

210. He opined that conferring 5 that jurisdiction on the military Courts, had the effect of amending the Constitution without following the due procedure for so doing under Art

259. He also submitted that Chapter 12 and in particular, Art 210 (a) - (d) only relates to the functioning of the UPDF and what the UPDF does outside that generic string such as the exercise of the overly wide jurisdiction over subject 10 matter outside is ultra vires. In this line of argument, he further argued that the impugned sections 2 and 179 of the UPDF Act illegally confer criminal jurisdiction upon Courts Martial instead of limiting jurisdiction only to jurisdiction over disciplinary offences ; yet military law concerns military discipline and other rules governing the armed forces. 15 In rejoinder, Counsel for t he Appellant submitted that the rule of harmony and exhaustiveness should be kept in mind while interpreting the provisions of the Constitution, and that the Constitution must be read as a whole with no particular provision destroying the other. He argued that Art 209 only broadly sets out the functions of the UPDF; and that all laws made under Art 20 210 must be made with the sole purpose of ensuring each of these functions in Art 209 are fully realized. In that light, the provisions of Art 210 only serve to particularize what the laws should expressly include but are not exhaustive. Thus, Parliament used this power to legislate on what amounts to service offences and the jurisdiction of military Courts in the UPDF in order 25 to ensure that all related matters required for the proper functi oning of the UPDF are covered. Ground 2: The learned majority Justices of the Constitutional Court erred in law and fact in determining that the GCM cannot be impartial or independent; is inconsistent with Art 28(1) of the 1995 Constitution 30

of Uganda, and does not apply the principles therein to persons 5 subject to military law. Counsel submitted that the majority Justices erred in finding that the GCM is neither independent nor impartial and therefore its existence is in contravention of Art 28(1) of the Constitution. He submitted that jurisdiction is a creature of statute and the GCM, as established under Art 210 (b) of the 10 Constitution and s. 197 of the UPDF Act, is an independent and impartial Court. He defined “impartial and independent” as meaning “even headed and not subject to the control of the appointer”. For this, he referred to Petition No. 13 of 2014 consolidated with Petition No. 36 of 2014 Robinson Malombo T/A O.M Robinson & Co Advocates vs The Disciplinary Tribunal of the Law Society of Kenya & A.G. He also 15 cited RDS vs Her Majesty the Queen [1997] 3 S.C.R 484 to 548 at p 486 for the assertion that impartiality is a state of mind in which th e adjudicator is disinterested in the outcome and is open to persuasion by evidence and submissions. By analogy, Counsel submitted that since, the UPDF is enjoined under Art 221 to observe and respect human rights and freedoms in the performance of 20 their functions , it can be concluded that, even though it is composed of military officers, the GCM is also mandated to do the same as regards the principles that pertain to a Court of law including the right to a fair hearing . He referred to Commander Lesotho Defence & 4 others vs Second Lieutenant Setho Maluke C of A (CIV) No. 30/2014 CIV/APN/83/2014. He submitted that the finding 25 of the majority of the Justices of the Constitutional Court that the GCM is not independent or impartial is a n absurdity because it presupposes those military personnel do not enjoy fundamental rights and freedoms enshrined in the Constitution. Further, even though t he Petitioner’s affidavit showed

that he objected to the GCM’s competence to try him when he was arraigned 5 before it, it did not suggest that the GCM did not act as an impartial and independent C ourt. This makes the Constitutional Court’s find ing in this regard, speculative, and as such, it arrived at the wrong decision. Counsel also submitted that independence of the C ourt cannot be premised on the structure and constitution or appointment of the members of the Court 10 because regardless of that , under Art 221, they are required to observe fundamental rights and freedoms. He empha sized that what should be considered is not who the appointing authority is, but whether the members of the GCM and the Chairman ar e under the influence of the Appointing Authority during their deliberations, before they reach a verdict. He asserted 15 that there was no evidence on record that the appointing authority has power to get involved in the judi cial function of the Court Mar tial (see 2nd Lt. Rantso Josias Sekoati & 48 others vs the President of the Court Martial (Lt. Col. G.P Lekhanyaye) & 2 others CIV/APN/82/99. Counsel also argued that members of the Courts Martial take the oaths and 20 affirmations for Members and Chairman of the Court under the 6 th Schedule to the UPDF Act (Rules of Procedure). Lastly, Counsel pointed out the fact that in the past, in the exercise of their appellate jurisdiction, Courts of Judicature have appraised and considered the evidence and the process of the trial before the GCM and upheld decisions of the GCM leading to the conclusion 25 that it is an impartial Court under Art 28(1) . He referred to RA/LFK016PTE Eruaga Moses v Uganda Criminal Appeal No. 0530 of 2014. In reply to the submissions of Counsel for the Appellant on the ground that the ‘Court erred in holding that the GCM cannot be independent and impartial