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

1 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) 10 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 2 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. 3 (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 non- disciplinary 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 4 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. 5 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. 6 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 , 7 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 8 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 9 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 10 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 11 in line with Art 28 (1) and neither does it apply the principles therein to persons 5 subject to military law ,’ Counsel for the Respondent disagreed that the Constitutional Court made such holding and as such the ground as phrased misrepresents the majority holding of the justices. He maintained that the gist of the holding was that the GCM as established under s. 197 of the Act is a ‘competent Court’ with in the meaning of Art . 28 (1) and 210, but only for 10 purposes of disciplinary offences under Part VI of the UPDF Act and no t for criminal trials generally. This stems from their military and command structure as well as the oath taken by military officers. However, it was his submission that courts martial are not even competent to try military officers with offences not of a military nature. He referred to 15 Professional Training Series No. 9 Human Rights in the Administration of Justice: A Manual on Human R ights for Judges, Prosecutors and Lawyers. Counsel agreed with the majority Justices of the Constitutional Court and explained that Article 28 has two limbs : first is competence as established by law, and second, impartiality and independence. Regarding the first, the Courts Martial are not 20 envisaged under Art 126 and generally Chapter 8 , and are thus tribunals for disciplinary purposes. He argued that there is no plausible reason to create a parallel Court outside the Court system in the Constitutional framework that clearly provides for the Courts of record and subordinate Courts. He argued that it is by design that the Executive powers are reserved for the Executive 25 while hearing is for the Judiciary; and this helps to avoid anarchy. He submitted that allowing the army to take over judicial work is a vote of no confidence in the judicial arm ; yet there is no parallel legislature or p arallel Executive within our Constitutional framework as it stands. He referred to 12 Ambrose Ogwang (supra), and ULS V A.G SC Const. Appeal No 1 of 2006 (supra). As 5 regards the second limb, Counsel elucidated on the importance of the requirement of independence and impartiality under Art 28 (1) for both Courts of law and tribunals as an integral part of a fair hearing. Counsel reasoned that Courts martial fall short of this because: (i) the command structure of the UPDF as an army and component of the Executive arm cannot 10 guarantee the rights associated with the two tenets of indep endence and impartiality; (ii) the command structure is both military and political as , for instance, the panel even includes a political commissar provided for under s. 197 (1) (d) of the UPDF Act; and whose job is political education and organization, and loyalty to the Government; (iii) it constitutes a violation of 15 the principle of separation of powers; and (iv) the absence of competent specialized officers. Arguing in essence that the military Courts are unfair even to persons subject to military law, counsel challenged the notion of ‘ voluntary assumption of risk’ by persons subject to military law on the basis that a person can only 20 assume the discipline but not the illegality and unfairness as the same is not envisaged and can never be condoned. Counsel also further submitted that the powers of the Court Martial are an interference with the office of the Director of Public Prosecutions (DPP) operations. He reasoned that interference with the DPP’s office destroys the root of our democracy and 25 offends the right to fair hearing w hich does not begin with Court; but with the decision making process on whether, and how, to prosecute a person. He explained that the Constitution is by design intended to achieve a particular purpose to avoid abuse , and promote or derliness; and the DPP is an independent body specialized body, acting as a sieve for penal prosecutions, 30 13 intended to take professional and fair decisions before arraignment ; unlike 5 the military which is subject to direction. In rejoinder, as for the first limb of competence under Art 28 (1), Counsel submitted that the argument that the Courts Martial are not envisaged under Art 126 of the Constitution is without merit because in A.G. v Uganda Law Society – S.C. Const. Pet. No. 1 of 2006, this Court held that the General Court Martial is a 10 competent subordinate Court under Art 129 (d) of the Constitution; hence, it is comparable to the Industrial Court (see: Asaph Ruhinda Ntegye & Ano r v A.G. Const. Pet. No. 33 of 2016 ). Second, Counsel submitted that Courts martial are capable of being fair and impartial because; (i) they are bound under Art 221 of the Constitution to respect human rights and freedoms of all persons 15 including those of civilians who appear before them; (ii) as evidence that they are capable of respecting the rights to a fair hearing, their past decisions have been upheld by the Courts of Judicature on appeal; (iii) its members take an oath to serve in their different capacities and are bound by the Constitution; and (iv) in terms of qualifications, some of the members of the Courts martial, 20 like the prosecutor and advocate are specialized legal officers. Ground 3. The learned majority Justices of the Constitutional Court erred in law and fact in determining that charging and arraigning the Petitioner before the GCM was inconsistent with Art 28 (1) and 44 (c) of the Constitution. 25 This ground related to the status of the Respondent as a civilian appearing before a military Court for offences in the UPDF Act. Counsel argued that, as regards Arts 28(1) and 44(c), arraigning and charging the Respondent before the GCM together with other members subject to military law was in 14 pursuance of the law; to wit a law passed by Parliament as empowered by the 5 Constitution. He referred to A.G. vs Uganda Law Society S.C. Con. Appeal No.1 of 2006; and Namugerwa Hadijah vs A.G (supra) for the proposition that, “[F]or an offence under the Act other than the UPDF Act to be within the jurisdiction of the GCM, it must have been committed by a person subject to military law.” Counsel submitted that s. 2 of the Act clearly excludes civilians from trial in the GCM 10 except those who aid and abet a person subject to military law or civilians who voluntarily possess arms, ammunitions or equipment ordinarily the monopoly of the UPDF under s. 119 (1)(h) & (g). He referred to S.C.C.A No. 4 of 2012 Namugerwa Hadijja Vs The DPP & A.G. To cement his argument, he submitted that this position of law is similar to 15 that of the United States, Canada, United Kingdom, Ghana and Kenya. For this, he referred to Reid v Covert - U.S Supreme Court 354 U.S.1 (1957) ; S.166 of the Canada Defence Forces Act; Schedule 3 of the Armed Forces Act 2006 UK; s.12 (1)(e ), (f) & (g) of the Armed Forces of Ghana; and s.55(1) Kenya Defence Forces Act No. 25 of 2012. According to Counsel, the respondent fell within the ambit 20 of s. 119(1) (g) the moment he was charged with 22 other persons with offences under the Act of contriving a plot to overthrow the Government of Uganda by force of arms. In other words, not naming him as an accomplice in the charge sheet was not fatal or necessary for the charge against the Respondent to conform to Art 28(12). He further argued that , since the 25 offences in the charge sheet have accompanying penalties, breach of Art 28 (12) does not arise. Counsel concluded that trying serving military officers and civilians under s. 119 (1) (g) & (h) of the UPDF Act, is consistent with Art 28 (1) and 44 (c) of the Constitution because the GCM is bound to observe the 15 right to a fair hearing and other human rights under Chapter 4 of the 5 Constitution. In reply, and agreeing with the majority decision of the Constitutional Court, Counsel for the Respondent submitted that charging and arraigning the Respondent, a civilian, on a charge that did not name him as an accomplice to a disclosed principal named in the charge sheet was unconstitutional. 10 Counsel argued that indeed the charge sheet did not state that the Respondent aided or abetted any offence; thus the trial was inconsistent with Articles 28 (12) and 44 (c); hence, the Constitutional Court was right to hold as they did. He however further raised new arguments, which were not the basis of the Constitutional Court decision - that the offence is similar to 15 treason under the Penal Code, which is triable by the High Court. He also alluded to the unfairness of the proceedings that lacked impartiality and independence by pointing out that the Respondent is a political leader in the opposition charged with a political offence of attempting to remove the government to which the ‘court’ officials are answerable. He asked this Court 20 to perform its duty of defending Constitutional individual rights threatened by congressional legislati on. He referred to Cheborion Barishaki JA’s judgment in Human Rights Network Uganda & 4 others v Attorney General Const. Petition No 56; and Earl Warren CJ in Trop v Dulles US (1956), cited therein. In rejoinder, Counsel for the Appellant/C ross Respondent argued that the 25 UPDF (Rules of Procedure S.I 307 -1) already makes provision for a Court Martial to satisfy itself that a civilian as an accused person is one subject to military law and that the charge sheet/ indictment is correct. He pointed out that before taking plea, the accused is also given a right to object to the 16 charge on the ground that it is not correct in law or not properly framed in 5 accordance with the regulations, as specifically provided for under rule 25(1)(f) & (g) and rule 35 (1 ). In response to the submission on interference with the DPPS’s office, Counsel submitted that Art 120 (3)(b) specifically excludes the DPP from instituting criminal proceedings in a court martial which further highlights the competence of the GCM to ensu re that one is 10 being charged in accordance with the Act. Ground 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. 15 Counsel challenged the finding of the Constitutional Court that s. 119 (1) (h) is unconstitutional. He submitted that the impugned s. 119 (1) (h) which grants the GCM jurisdiction over persons found in unlawful possession of the ammunitions, arms or equipment and other stores ordinarily in the possession of the UPDF is prescribed by Parliament and Constitutional. No 20 right to a fair hearing under Art 28(1) is contravened as it applies only to those who voluntarily bring themselves within that provision , who then become subject to military law. He alluded to the importance of s.119 (1) (h) which can be seen from the seriousness of the charges that may arise under it by referring to Namugerwa Hadijjah v The A.G (supra) where the Appellant’s 25 brother was found with the ‘Black star’ pistol ordinarily a monopoly of the UPDF and remanded to Kigo prison . He also submitted that the GCM comprises persons with sufficient training, exposure and experience in military matters who are best suited to adjudicate on matters of this nature in comparison to the civil Courts. With these submissions, Counsel for the 30 17 Appellant prayed that this Court allows the appeal and sets aside the decision 5 of the learned Majority Justices of the Constitutional Court and award costs to the Appellant. On the other hand, Counsel for the Respondent concurred with Kasule JA’s dissenting opinion that section 119 (1) (h) is unconstitutional. According to Counsel, this provision is an entry point into the Court martial route away 10 from civilian courts’ jurisdiction. Alternatively, he reiterated the need for fact finding as a preliminary point , whenever a civilian is to appear before a military Court, to establish if the military Court has jurisdiction over such a person before the jurisdiction of the military Court is activated. According to Counsel, the finding that an accused was in possession of military stores 15 should be made by the Judiciary in a prehearing; otherwise an accused person will be found guilty by a court martial, of possession, on proof only of this first ingredient of possession. He argued that suspicion in such a case, is not enough to bestow jurisdiction and to derogate on the right to a fair hearing. In rejoinder, Counsel for the Appellant submitted first that s. 119 (1) (h) does 20 not require a pre -hearing on a double fact-finding before the civil Court as submitted by Counsel for the Appellant. He argued that the burden to establish the ingredient of the offence of whether one is subject to the UPDF Act for purposes of tr ial lies upon the prosecution. He further argued that criminal jurisdiction is a creature of statute and as the law stands, the GCM 25 assumes such jurisdiction once a person is charged with a service offence provided for under the UPDF Act. He pointed out that rule 40(1) of the Rules made under the UPDF Act mandates the accused to take plea on a charge; the accused is provided an opportunity to defend themselves in line with Art 28. 18 Lastly, he argued that the Respondent did not submit any evidence that s. 5 119 (1) (h) is inconsistent with the Constitution. The cross appeal In the cross appeal, Counsel for the Respondent/Cross Appellant argued that a civilian cannot be tried with a person subject to military law , under the Constitution. He submitted that military discipline, not civilians, is the focus 10 of the UPDF Act. He pointed out first that it was intended, from the restrictive nature of article 210, that service offences should apply only to the military. This intention of Parliament is in consonance with the definition of ‘service’ in s. 2 where it is defined to mean ‘service in the Defence Forces or means a component of the Defence forces enumerated in s.3 (2) including land, air any 15 other prescribed by Parliament.’ Second, the purpose and effect of legislation is relevant while interpreting the Constitution to ascertain the constitutionality of the impugned provisions. He referred to A.G v Salvatori Abuki S.C Constitutional Appeal 1 of 1998; Constitutional Petition No. 56 of 2013 Human Rights Network Uganda & 4 others v Attorney General. He 20 argued that in this case, the effect of s. 2 and s.179 that a civilian could be charged in a military court was not the intention of the drafters of the Constitution and Parliament. He also reiterated his argument on ground one and two that the UPDF Act is a restrictive Act ; and the courts martial are comparable to other professional organs established by the Prisons Act, 25 Police Act, the Dental Practitioners’ Act and the Nurses and Midwives Act to deal with only their members, and not the entire public who have not opted to be part of the organization. He prayed that the cross appeal be allowed with costs, part of the decision of the learned majority justices of the 19 Constitutional Court be set aside/reversed, and the appeal be dismissed with 5 costs. In response to the cross appeal, Counsel for the Appellant agreed with the finding of the majority justices of the Constitutional Court that s. 119 (1) (g) is consistent with the Constitution. According to him, t he Supreme Court in Namugerwa Hadijja v A.G S.C. Civ. Appeal 4 of 2012 had already held that a civilian 10 can be tried alongside military officers for offences under the UPDF Act if they have aided and abetted the same. It is thus only civilians who voluntarily subject themselves to the jurisdiction of the GCM in the circumstances provided in 119 (1) (g) who are subject to its jurisdiction; this can be likened to volenti non fit injuria . In comparison, he also pointed out that even the 15 Advocates Act empowers the Law Council to discipline any person who carries out the work of a nature normally performed by an advocate or who purports to act or pretends to be an advocate . He explained that the import of s. 119 (1)(g) is because military laws are designed with special interest of national security and it is therefore possible for a civilian to commit acts which affect 20 national security ordinarily committed by persons subject to military law. He urged this Court to consider the rationale of creation of offences in the UPDF Act, which includes the secrecy and integrity of operational matters of the defense forces under powers vested upon the UPDF by virtue of Art 209 of the Constitution; under this the Courts Martial are clothed with jurisdiction. 25 CONSIDERATION AND DETERMINATION OF THE APPEAL This appeal first came up for hearing in this Court in 2022. From that time, to its final disposal today, it has suffered an unprecedented affliction by a host of adversities. There is thus, an imperative need to clarify on what 20 transpired within that period. The grave and persistent series of events that 5 characterized the lifespan of this appeal began with fire gutting the Chambers of the Ch ief Justice on the Supreme Court building at Kololo on 27thApril, 2022; followed by water flooding parts of the building. This resulted in a condemnation of the Kololo Supreme Court Building as being unfit for occupation; thereby leaving the Justices of the Court with no office 10 accommodation. Thereafter two Justices of the Court, namely Justice Paul Mugamba and Justice Ezekiel Muhanguzi, who were part of the panel for this appeal, retired. This therefore necessitated a reconstitution of the panel. In November 2022, the Court was able to secure a temporary home, and more Justices were appointed to the Court. The Court th en embarked on the 15 process of reconstitution of the panel, with a view to sitting by December that year to re -hear the appeal . However, that December, we suffered the devastating demise of Justice Rubby Aweri Opio who had been on the panel for this appeal. This necessitated awaiting the appointment of additional Justices to this Court for the requisite reconstitution of the Coram to take 20 place. However, in only six months thereafter,yet another tragedy struck this Court with the demise of Justice Stella Arach -Amoko in June, 2023. It was until January 2024 when two more Justices were appointed to the Supreme Court; where after, the Court wa s able to reconstitute the panel for this appeal. The appeal came up before the reconstituted panel on 13th May, 2024, 25 in the new Supreme Court Building at the Judiciary Headquarters; upon which the learned Justices reserved judgment to be delivered on notice. Notice has been served on the parties for delivery of the judgment on 31st January, 2025; which is eight months from the date the appeal was reheard. 21 The Appellant has called upon this Court to clarify on the issue of 5 constitutionality of several aspects of the law regarding military trials. While the contentions by the parties hereto gravitate around trials in the General Court Martial (hereinafter referred to as the GCM), the issues raised radiate to the entire military Court system. I note that the four grounds of appeal , as well as the one in the cross appeal raise cross cutting issues; which explains 10 why some submissions by both C ounsel on a particular grounds transcend such grounds and extend to other grounds. All the grounds raised contain an element of counter to the challenge raised against the competence of the GCM and, or, its status as a Court of law. Whereas the standing of the GCM as a Court of law was not raised as a separate 15 ground in this appeal, and yet it was a separate question for determination in the Constitutional Court, upon which the Court rendered a decision declaring them to be tribunals, it was implicit in all the grounds of appeal that it was an issue . I n determining this appeal, therefore, I adopt an integrated approach, where a ground may be disposed of in the course of considering 20 another ground. For instance, the status of the GCM as a Court has a bearing on the resolution of ground s 3 and 4, which entail the determination of the issues of personal and subject matter jurisdiction of the Court, respectively. In this regard, I shall deal with G round 1 of the appeal, and concentrate on whether the GCM is a Court of law . I will then deal with Ground 2 on the 25 fairness and impartiality of the GCM; followed by Grounds 3 and the Cross Appeal, as they concern the personal jurisdiction of the C ourt (whether it includes trial of civilians). Last, I will deal with Ground 4 that relates to the 22 subject matter jurisdiction of the GCM in terms of whether persons subject 5 to military law should be tried in the GCM for both civil and service offences. Rules of Constitutional interpretation. It is necessary to first deal with the rules of Constitutional interpretation I consider relevant for the resolution of the issues raised in these grounds. These have been laid down in several deci sions of this Court , other 10 Commonwealth jurisdictions, and as well, authoritative legal opinion. 1. The Constitution is the Supreme law of the land and forms the standard upon which all other laws a re judged. Any law that is inconsistent with or in contravention of the Constitution is null and void to the extent of the inconsistency (see Article 2 (2 ) of the Constitution ); (Also 15 see Presidential Election Petition No. 2 of the 2006 (SC) Rtd Dr. Col. Kiiza Besigye v. Y. K. Museveni). 2. In determining the constitutionality of a legislation, its purpose and effect must be considered. Any legislation is always animated by an object the Legislature intends to achieve. This object is realized 20 through the impact produced by operation and application of the legislation. Thus, both purpose and effect are relevant in determining constitutionality; hence, an unc onstitutional purpose or effect can invalidate legislation (see Attorney General v. Sa lvatori Abuki Constitutional Appeal No.1 of 1998 (SC); The Queen v Big Drug Mart Ltd (1996) LRC (C0nst.) 332). 25 3. The rule of harmony, completeness and exhaustiveness has to be taken into account. This rule is to the effect that the entire Constitution has to be read together as an integral whole , with no particular provision destroying the other but each sustaining the other. (see P. K. Ssemwogere 23 and Another v. Attorney General Constitution Appeal No . 1 of 2002 (SC), and The 5 Attorney General of Tanzania v. Rev Christopher Mtikila (2010) EA 13). 4. A constitutional provision containing a fundamental human right is a permanent provision intended to apply for eternity; therefore, it should be accorded dynamic, progressive , liberal, and flexible , construction; keeping in view the ideals cherished and approved of by the people, as 10 well as their so cial, economic, and political cultu ral values so as to extend t he benefit of the same to the maximum possible; (see Okello Okello John Livingstone and 6 others v. The Attorney General and Another Constitutional Petition No 1 of 2005), and South Dakota v. South Carolina 192, USA 268. 1940). 15 5. Where words or phrases are clear and unambiguous, they must be accorded their primary, plain , ordinary or natural meaning. The language used must be construed in its natural and ordinary sense. 6. Where the language of the Constitution or a statute sought to be interpreted is imprecise or ambiguous , a liberal, gener ous, or 20 purposeful inter pretation should be given to it; (see Attorney General v Major David Tinyefunza Constitutional Appeal No. I of 1997 (SC). 7. The history of the country and the legislative histo ry of the Constitution is als o relevant and useful guide to c onstitutional interpretation; (see: Okello John Livingstone and 6 others v. Attorney General 25 and Another - (Supra). 8. The National objectives and Directive principles of State policy are an imperative for the interpretation of the Constitution. Article 8A of the Constitution as amended is instructive for the applicability of the se objectives. It provides thus: 30 24 (i) Uganda shall be governed based on principles of national interest 5 and common good enshrined in the national objectives and directive principles of state policy. (ii) Parliament shall make laws for purposes of giving full effect to clause (1) of this Article. In interpreting provisions of the Constitution, regard shall also be had to the 10 obligations under international treaties to which Uganda has acceded as a dualist State by virtue of ratifications; and those that apply by virtue of Art. 287 of the Constitution, which provides: “287. International agreements, treaties and conventions. Where— 15 (a) any treaty, agreement or convention with any country or international organisation was made or affirmed by Uganda or the Government on or after the ninth day of October, 1962, and was still in force immediately before the coming into force of this Constitution; or 20 (b) Uganda or the Government was otherwise a party immediately before the coming into force of this Constitution to any such treaty, agreement or convention; the treaty, agreement or convention shall not be affected by the coming into force of this Constitution; and Uganda or the Government, as the case may be, 25 shall continue to be a party to it.” Objective XXVIII is also instructive as to the direction Uganda sho uld take in her move as a democracy. It provides as follows: 25 “XXVIII . Foreign policy objectives. 5 (i) The foreign policy of Uganda shall be based on the principles of— (a) promotion of the national interest of Uganda; (b) respect for international law and treaty obligations; (c) peaceful coexistence and nonalignment; … 10 (ii) Uganda shall actively participate in international and regional organisations that stand for peace and for the well -being and progress of humanity. (iii) The State shall promote regional and pan-African cultural, economic and political cooperation and integration.” (Emphasis added) 15 Uganda is a party to a number of Conventions such as the Universal Declaration of Human Rights (UDHR), International Charter on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples Rights (African Charter) and is bound to uphold their provisions as well, by virtue of Art. 287 of the Constitution. The decisions and recommendations made by 20 bodies or Commissions such as the Human Righ ts Committee and Special Rapporteurs in promoting observance of these Conventions , though not binding, are of great relevance. It is worthy to note that Uganda has unique obligations under treaties she is party to within the African Union (AU) framework. Uganda is a member of the 25 African Union (AU) by virtue of its accession to the Organisation of African Unity (OAU) Charter in 1963. By virtue of the OAU Constitutive Act, 1999, the OAU was renamed the African Union; and the Court of Justice of the AU was established. One of the most notable treaties touching on human rights 26 established under the AU is the African Charter on Human and Peoples’ Rights 5 (the Banjul or African Charter), (Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982), Entered into Force 21 October 1986). That Charter established the African Commission to oversee its implementation. Then in 1998, a protocol created The African Court on Human and People’s Rights that became operational in 2006, to complement the African 10 Commission by curing the lacun a of the absence of legally enforceable judgments. A Malaba Protocol of 2014 merged the African Court on Human and People’s Rights and the Court of Justice of the African Union into ‘ The African Court of Justice and Human Rights ’ as the forum of human rights litigation and interpretation of the OAU Charter and its other instruments. 15 The recommendations of the African Commission are thus of immense weight; and the decisions of The African Court of Justice and Human Rights are binding on Uganda. In interpreting our Co nstitution, effect is given to its provisions; several whereof are mirrored within the African Charter itself. There are also other International Conven tions with bodies created there 20 under; to which Uganda is not a party , but are relevant for persuasive best practices. Such conventions include, among others, the American Declaration of the Rights and Duties of Man ; the American Convention on Human Rights and its Inter -American Commission on Human Rights ; and the European Convention on Human Rights with its European Court of Human Rights. 25 Counsel for both parties have cited several authorities - some even conflicting - to support their respective arguments. Such authorities include 2nd Lt. Ogwang Ambrose v A.G Court of Appeal Criminal Appeal No. 107 of 2013 and Sgt Paul Kalemera 27 v A.G Supreme Court Criminal Appeal No. 18 of 1994 (unreported) . The source of the 5 conflict, leading to the dissenting decisions in the Constitutional Court , is that one of these cases was an ordinary criminal appeal in the Court of Appeal where the Court was not exercising the power of interpretation under Article 137 of the Constitution to declare certain sec tions or acts unconstitutional; while the Supreme Court in the other was merely applying the substantive 10 law as it is, to the facts before it with no concern as to their constitutionality. Other relevant authorities that have since been delivered since the hearing of this appeal and upon which Counsel in this petition have had no opportunity to submit are; Rtd. Capt. Amon Byarugaba & 169 Ors Const. Petition No. 44 of 2015 delivered on 15th Dec 2022 and 2nd Lt Ogwang Ambrose v Uganda SC Crim Appeal No. 48 of 2021 delivered 15 on 11th Dec 2024 . The appeals to this Court in these cases, if any, have not yet been disposed of in this Court. The latter was still an ordinary appeal. It is in the former that the Constitutional Court considered and declared itself explicitly, albeit on only two of the issues a rising in this appeal. These are; the jurisdiction of the military courts under s. 119 (1) g & (h) of the UPDF Act 20 to try civilians; and violation of Art 28 (1) of the Constitution by the absence of fair trial minimum guarantees. Since the appeal in the current petition has a wider purview, its determination has a direct bearing on all these cases. It thus falls on this Court to ensure certainty in the application of the law; by clearly spell ing out the p rinciples that should guide on how to structure 25 and/or handle matters co ncerning discipline in the UPDF . This will ensure that the provisions of Art. 209 of the Constitution are given effect to, without affecting other provisions of the Constitut ion. It will also ensure the enforcement of the provisions of Chapter 4 of the Constitution. 28 I note that the ap peal turns on four broad issues. First, is whether military 5 courts are ‘courts’ or ‘tribunals’. Second, is subject matter jurisdiction, hence, what offences are triable in military Courts. Third, is personal jurisdiction; thus who can be charged before military courts. Fourth is whether military Courts are fair and impartial. With regard to the first three issues, the majority Justi ces of the Con stitutional Court based their analysis of the 10 nature of military Courts vis-à-vis the ordinary or civil Courts provided for in Chapter 8 of the Constitution. Th ey held that military Courts are mere tribunals; and also held - which is the basis of ground 2, that military Courts are not clothed with the requisite competence, independence, and impartiality provided for under Art 28(1) of the Constitution, to handle 15 criminal cases under ss. 2, 179, and 119 (1) (h) of the UPDF Act. They also relied on a restricted interpretation of Art 210 in holding that the creation of the military Courts with power to try, not just military offences dealing with military discipline, but even civil offences under other enactments for both civilians and persons subject to military law is 20 unconstitutional. In essence, the majority Justices of the Constitutional Court held that the persons who are liable for trial in courts Martial, are only those who are subject to military law owing to their having submitted themselves to the jurisdiction of the Court by virtue of the oath they have taken in that regard. However, even then, such liability is strictly only for disciplinary 25 offences provided for under part VI of the UPDF Act. The specific issues for this Court to resolve, arising out of the Constitutional Court decision, the grounds of appeal, and cross appeal are: 29 1. Whether the Courts Martial are Courts established under the Constitution 5 or are mere tribunals. 2. Whether the Courts Martial can be/or are inde pendent and impartial within the meaning of Art 28 (1) of the Constitution. 3. Whether civilians can legally (i.e. without offending the Constitution), be liable to face trial in the Courts Martial for disciplinary offences 10 (hereinafter called military, disciplinary or service offences), stipulated in Part VI of the UPDF Act. 4. Whether civilians can constitutionally or legally be tried in the Courts Martial for civil offences not comprised in Part VI of the UPDF Act ; but are instead provided for in other legislations. 15 5. Whether it is constitutional for persons subject to military law to be tried in the Courts Martial, for offences outside the UPDF Act (herein after called civil offences). 6. Whether it is constitutional for civilians to be tried by the Courts Martial as principals for offences under s. 119 (1) (h) of the UPDF Act ; yet these 20 also exist as civilian offences? During the period after hearing this appeal, the laws of Uganda were revised; and while this did not affect the content of the Act , it affected both the citation and arrangement of the sections of the Act. Thus, the UPDF Act, 2005, is now cited as the UPDF Act Cap 330; while the impugned sections 2, 119 (1) 25 (g) & (h), and 179 , have changed to sections 1, 117 (g ) & (h) , and 177 , respectively. The impugned section 197, which established the GCM has changed to section 195. Otherwise, there is no change in the content. 30 Ground 1. 5 This ground faults the Constitutional Court for its finding that the GCM is not a Court of law, but a specialized tribunal that should limit itself to disciplinary offences within the UPDF Act. Accordingly, the Court nullified sections 2, 179, and 119 (1) (h) of the UPDF Act, for extending its jurisdiction to jurisdiction that has been conferred on the Judiciary by the Constitution. 10 This question was raised in the Constitutional petition in the terms of whether “S. 197 [now 195] 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 .” That section establishes the GCM and provides for its structure, jurisdiction, and 15 revisionary powers. The Court resolved this issue together with the issue of the independence, fairness and impartiality of the Courts Martial. In my considered view, I find the two issues to be distinct and independent of each other. The GCM’s legal status as a ‘Court’, its structure and procedures (‘fairness, independence and impartiality’), and its competence in terms of 20 jurisdiction, are distinct from each other. Its status as a Court arises from its establishment as such, by law; but not its composition, or the manner of its operation. Similarly, its status as a Court is not determined by its exercise of judicial power; as in some cases, tribunals also exercise some judicial power. I will advert to this in the course of this judgment. 25 Is the GCM lawfully established as a Court of law? This requires a scrutiny of the relevant Constitutional provisions and Act establishing the GCM. The Constitution establishes the superior and subordinate Courts in Uganda. Article 129 of the Constitution provides: 31 “129. The courts of judicature. 5 (1) The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of— (a) the Supreme Court of Uganda; (b) the Court of Appeal of Uganda; (c) the High Court of Uganda; and 10 (d) such subordinate courts as Parliament may by law establish, including qadhis’ courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament.” It is clear from the above provision s of the Constitution that Parliament has the power under Art. 129 (1) (d) to establish other courts of law. The other 15 provision of the C onstitution under consideration in the interpretation of whether the GCM is validly established as a court of law is Article 210 of the Constitution; which vests Parliament with the power to regulate the UPDF , thus: “210. Parliament to regulate the Uganda Peoples’ Defence Forces. 20 Parliament shall make laws regulating the Uganda Peoples’ Defence Forces and, in particular, providing for— (a) the organs and structures of the Uganda Peoples’ Defence Forces; (b) recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces and ensuring that 25 members of the Uganda Peoples’ Defence Forces are recruited from every district of Uganda; 32 (c) terms and conditions of service of members of the Uganda Peoples’ 5 Defence Forces; and (d) the deployment of troops outside Uganda.” (emphasis added) Article 209 provides for the function of the UPDF. It provides thus: “209. Functions of the defence forces. The functions of the Uganda Peoples’ Defence Forces are— 10 (a) to preserve and defend the sovereignty and territorial integrity of Uganda; (b) to cooperate with the civilian authority in emergenc y situations and in cases of natural disasters; (c) to foster harmony and understanding between the defence forces and 15 civilians; and (d) to engage in productive activities for the development of Uganda.” The parties hereto are in agreement that it is only through enactment of a law that Parliament can exercise the mandate conferred upon it under Art. 129 of the Constitution to establish Courts of law. To determine whether Parliament 20 fulfilled this mandate when it established the GCM as an organ o f the UPDF under the UPDF Act, one has to give consideration to a number of things. The long title to the UPDF Act provides thus: “An Act to provide for the regulation of the Uganda Peoples’ Defence Forces in accordance with article 210 of the Constitution, to repeal and replace the 25 Armed Forces Pensions Act and the Uganda Peoples’ Defence Forces Act, and for other related matters.” (emphasis added) 33 Structure of the courts martial as established. 5 The structure of the Courts martial is provided for under Part VIII of the UPDF Act, titled ‘ Military Courts’ . That part is further sub titled ‘Summary Trial Authority’ (s. 189-191) on the one hand, and ‘Unit Disciplinary Committees [UDCs] and Courts Martial’ (s. 192 -202) on the other . Whereas one could draw the inference from the first title to that part that it establishes only ‘Courts’, the 10 further differentiation between the Summary Trial Authority (STA) on the one hand and Unit Disciplinary Committees (UDCs) and the Courts Martial in the subsequent sub heading on the other hand, indicates that Parliament provided for Unit Summary Trial Authorities (STAs) and Disciplinary Committees (UDCs) as separate organs from the Courts Martial; thus, they are 15 tribunals. The Act establish es two tribunals under the Summary Trial Authority; nanmely, (i) Trial by Commanding Officer or Officer Commanding and (ii) Trial by Superior Authority. The first tries junior officers or militants for offences provided for under the Act and regulation s made thereunder; and 20 the highest sentence it can pass is detention for a period not exceeding six months. Others are forfeiture of seniority, severe reprimand, reprimand , a fine not exceeding basic pay for one month, and minor punishments as may be prescribed. The second tries those who are equal to or lower in rank than the superior authority; and can pass any sentence ‘in which any one or more 25 of the punishments listed there are included ’; namely, forfeiture of seniority, severe reprimand, reprimand or fi ne. Section 193 (now s. 191) of the Act, provides that the offences which may be tried by a summary trial authority shall be as specified in Schedule 8 to the Act. 34 The schedule lists 31 offences which include ; offences relating to guard 5 duties (s. 130, now s.129), disobeying lawful orders in circumstances not involving a sentence of death (s.132, now s.131), failure to execute ones duties in circumstances not involving a sentence of death (s.133, now s.132), violence to a superior officer ( s.134, now s.133), insubordinate behavior (s.135, now s.134), malingering or maiming (s.137, now s.136), drunkenness 10 (s.138, now s.137), abuse of and violence to inferiors (s.140, now s.139), false accusation (s.141, now s.140), quarrels and disturbances (s.142, now s.141), improper use and driving of vehicles ( ss.157 & 158, now s s.156 & 157), disorders (s.143, now s.142), escape from custody (s.167, now s.166), and conspiracy (s.179, now s. 178). 15 As already noted, albeit that the UDCs are grouped together with Courts martial, separate from the STAs , they are not expressly established by Parliament as Courts. My conclusion is that they are tribunals as well, and I treat them as such. The UDCs have the power to try any non -capital offence under s. 193 (3) (now s.195 (3)) of the UPDF Act; and to impose any sentence 20 authorized by law (see s.193(4), now s .195(4). By virtue of the impugned provisions of the Act , the UDCs can try military personnel and their alleged civilian accomplices with virtually any offence triable by magistrates Courts; and pass any sentence that magistrates can. The Courts Martial listed are the Division Court Martial established under s. 25 196, (now s. 192), the General Courts Martial under s. 197 (now s. 195, the Court Martial Appeal Court established under s.199 (now s. 197), and the Field Court Martial under s.200 (now s. 198). Since the focus is on the GCM, I 35 consider it prudent to , fully, set out the provisions section 195 of the Act , 5 which establishes the GCM, thus: “195. General Court Martial. (1) There shall be a General Court Martial for the Defence Forces, which shall consist of— (a) a Chairperson who shall not be below the rank of Lieutenant 10 Colonel; (b) two senior officers; (c) two junior officers; (d) a Political Commissar; and (e) one non-commissioned officer, 15 all of whom shall be appointed by the High Command for a period of one year. (2) The General Court Martial shall have unlimited original jurisdiction under this Act and s hall hear and determine all appeals referred to it from decisions of Division Courts Martial and 20 Unit Disciplinary Committees. (3) The General Court Martial shall have revisionary powers in respect of any finding, sentence or order made or imposed by any Summary Trial Authority or Unit Disciplinary Committee, to be exercised in accordance with the provisions of Part XIII of this Act. 25 (4) The General Court Martial may sit at any place.” Counsel for the Respondent argued that the establishment of a Court Martial as a Court could not be done under Art 210; but only under Article 129, and by an amendment to the Constitution under Art 259 and/or a referendum 30 36 under Art 260 because it in effected amounted to an amendment of Art 128 5 (1) of the Constitution . Article 128(1) provides for the independence of the Judiciary. Regarding the first argument, it is clear that the long title provides that the Act is passed under Art 210. However, I do not consider that failure to indicate Article 129 , instead of 210 as was done in the long title of the UPDF Act alone, is enough to take away the Parliament’s power given to create 10 a court under Art 129 (1) (d). The GCM is part of the courts of judicature referred to under Chapter 8 - albeit with a special limited jurisdiction . By analogy, the Industrial Court established under the Labour Disputes (Arbitration and Settlement) Act 8 of 2006 is a special court established under Art 129; albeit that A rt. 129 is not referred to in the Act. However, it would 15 do well for Parliament to indicate Art 129 (1) (d) when creating a Court. The second argument for consideration is whether the creation of a court under Art. 129(1) (d) requires an amendment of the Constitution and/or a referendum. Under Article 259 of the Constitution , an amendment of the Constitution can only be done by an Act of Parliament whose sole purpose is 20 the amendment of the Constitution , and pursuant to the requisite Parliamentary procedure for such amendment. It provides: “259. Amendment of the Constitution. (1) Subject to the provisions of this Constitution, Parliament may amend by way of addition, variation or repeal, any provision of 25 this Constitution in accordance with the procedure laid down in this Chapter. (2) This Constitution shall not be amended except by an Act of Parliament— 37 (a) the sole purpose of which is to amend this Constitution; 5 and (b) the Act has been passed in accordance with this Chapter. ” Article 260 provides for circumstances that require a referendum for an amendment to be effected, and the requisite Parliamentary quorum that must 10 be satisfied. It provides as follows: “260. Amendments requiring a referendum. (1) A bill for an Act of Parliament seeking to amend any of the provisions specified in clause (2) of this article shall not be taken as passed unless— 15 (a) it is supported at the second and third readings in Parliament by not less than two -thirds of all member s of Parliament; and (b) it has been referred to a decision of the people and approved by them in a referendum. 20 (2) The provisions referred to in clause (1) of this article are— (a) this article; (b) Chapter One—articles l and 2; (c) Chapter Four—article 44; (d) Chapter Five—articles 69, 74 and 75; 25 (e) Chapter Six—article 79(2); (f) Chapter Seven—article 105(1); (g) Chapter Eight—article 128(1); and (h) Chapter Sixteen.” (Emphasis added) 38 The relevant provision here is Art. 128 (1); which falls under Chapter Eight of 5 the Constitution, which covers the Judiciary. It provides that: “[I]n the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.” I have duly given consideration to these provisions. Article 129 that establishes the Courts of Judicature, Art. 128 that provides for the 10 independence of the Judiciary, then Arts. 259 and 260 quoted herein above in extenso, do not stipulate that the creat ion of a Court per se requires an amendment of the Constitution. Article 129 merely lists the Courts of record and provides that the creation of other subordinate Courts shall be as established by laws made by Parliament. The UPDF Act is one of those laws ; 15 and s. 195(1) thereof establishes the GCM. It is also evident from Article 257, which is the interpretation provision of the Constitution , that the Constitution contemplates the existence of the Courts martial . There, it is provided that: “(2) In this Constitution— 20 (a) unless the context otherwise requires, a reference to an office in the public service includes— … ... … (i) a reference to the office of Chief Justice, Deputy Chief Justice, Principal Judge, a justice of the Supreme Court or a justice of 25 Appeal, or a judge of the High Court and the office of a member of any other court of law established by or under the authorit y of this Constitution, other than a court -martial, being an office the 39 emoluments of which are paid directly from the Consolidated Fund 5 or directly out of monies provided by Parliament; and (ii) a reference to the office of a member of the Uganda Police Force, the Uganda Prisons Service, the education service and the health service;” (Emphasis added) Article 120 (3) of the Constitution also specifically provides that the function 10 of the DPP is to “institute criminal proceedings against any person or authority in any Court with competent jurisdiction, other than a Court martial.” It was thus contemplated that owing to the unique nature of the military, issues of military discipl ine should be handled by special Courts ( courts martial) and military tribunals (UDCs and STAs). Counsel for the Appellant 15 made extensive submission on this; arguing that due to the need to swiftly and firmly deal with disciplinary issues in a way that enhances the functions of the UPDF as is provided for under Article 209 of the Constitution, the military courts have been created to exercise the judicial powers the UPDF Act has conferred on them. 20 I have also considered the recent Constitutional Court decision in Rtd. Cpt. Amon Byarugaba & 2 Ors. v A.G (supra). I noted earlier that the status of a Court is distinct from the issue of its independence, impartiality or jurisdiction. In her lead judgment in Rtd. Cpt. Amon Byarugaba & 2 Ors. v A.G (supra), Musoke JCC, as she was, with whom the majority of the panel concurred, stated thus: 25 “In the present case, the 1995 Constitution places limits on Parliament’s Legislative power with regards to establishment of courts of judicature to try civilians to the circumstances stipulated under Article 129, namely 40 power to establish a subordinate court of judicature. The other courts of 5 judicature were established by the framers and listed under Article 129(1), and these are the Supreme Court, the Court of Appeal and the High Court. In my view, Article 129 (1) sets out an exclusive list of courts which may exercise judicial power with regards to civilians . Therefore, for that purpose, Parliament has no pow er to establish a court under a nother 10 provision of the 1995 Constitution. Certainly, it could not proceed to do so under Article 210, which concerns the UPDF, for the framers of the 1995 Constitution never intended for the UPDF to be vested with judicial functions in respect of civilians. Therefore, the quest ion whether military courts have jurisdiction to try 15 civilians, must be answered in the negative.” The learned Justices of the Constitutional Court merged the issue of establishment by law, with the jurisdiction to try civilians and the exercise of judicial power; and thereby came to the conclusion that the GCM was a tribunal, and not a Court . I consider it prudent to determine the issue on 20 jurisdiction raised under Grounds 3 and 4 and the cross appeal, separately. Parity with other courts The issue whether the GCM i s a court , was conclusively settled in A.G v Tumushabe - Constitutional Court Petition No.18 of 2005, and A.G. vs Uganda Law Society - S.C. Const. Appeal No. 1 of 2006; where this Court decisively held that the General 25 Court Martial is a court, albeit that it is subordinate to the High Court. In A.G. vs Uganda Law Society (supra), Mulenga JSC who delivered the lead judgment faulted the Constitutional Court, and noted thus: