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ROGERS WADADA: The Supreme Court’s decision on the trial of civilians in military courts will set water on fire

by ROGERS WADADA | GUEST WRITER
29/01/2025
in ANALYSIS, News, OpED
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Mr. Roger Wadada Musaalo, a Lawyer, human rights activist, researcher, and politician (PHOTO/Courtesy).
Mr. Rogers Wadada Musaalo, a Lawyer, human rights activist, researcher, and politician (PHOTO/Courtesy).

It is now in black and white and that all factors being constant, the Supreme Court will on January 31, 2025 deliver its long awaited judgment on the constitutionality of trying civilians in military courts. The Panel will be comprised of seven Supreme Court justices including Alfonse Owiny-Dollo Chigamoy, Faith Mwondha, Percy Night Tuhaise, Mike Chibita, Monica Mugenyi, Elizabeth Musoke and Catherine Bamugemereire.

It took the incarceration of Dr. Kiiza Besigye Kifefe, Hajji Obed Lutaale Kamulegeya and their lawyer Eron Kiiza coupled with pressure from the legal fraternity, international community, parliament and civil society organizations for the Supreme Court to act. Many have argued that Owiny-Dollo did not prioritize this particular appeal and that of the Anti Homosexuality appeal because he feared the outcome would dent his image before retirement early next year.

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The main contention before court stemmed from a 2016 Constitutional Court petition by Michael Kabaziguruka who was challenging the trial of civilians in military courts when he was arraigned before the Court Martial on charges of treachery, alleging an attempt to overthrow the government. He argued that his trial before the Makindye based General Military court martial was unconstitutional and that he had been denied the right to a fair hearing.

The Constitutional Court Majority of Justices, comprising the late Justices Kenneth Kakuru, Hellen Obura, and Remy Kasule opined in 2021 that is was unconstitutional for the military to try civilians while Madrama and Musota dissented for the reasons that they gave.  Consequently, the court ordered that the files for all civilians facing trial before the General Court Martial be transferred to the High Court through the office of the Director of Public Prosecutions.

The Constitutional Court further emphasized that the powers of the Court Martial are limited to serving officers of the Uganda People’s Defense Forces. They also ordered that all civilians serving sentences imposed by military courts have their files transferred to the High Court Criminal Division for either retrial or handling as the court deems fit.

However, the Attorney General (AG) appealed in the Supreme Court seeking to nullify the Constitutional Court’s decision. The AG also requested for and obtained and order of stay of execution, arguing that the appeal challenging the decision would be inconsequential if the orders were implemented before the appeal’s determination. That is the main reason why to date, the Court Martial continues trying civilians in military courts with a lot of pomp.

Pushed to the wall, the Chief Justice Owiny-Dollo acknowledged the delays in handling the appeal attributing the same to the untimely demise of Justices Stellah Arach Amoko and Rubby Opio Aweri as well as the retirement of two others, which necessitated reconstituting the panel. Now faced with pressure over the Besigye, Lutaale and conviction of Eron Kiza, the entire Supreme Court found itself on the defensive and intense scrutiny.

The much anticipated decision in whichever way it comes will certainly define owiny-Dollo legacy as chief Justice of Uganda. The only high profile case that Justice Owiny-Dollo has briefly adjudicated upon since he took over the docket in 2020 was the Kyagulanyi petition against Museveni which was prematurely withdrawn by the petitioner on allegations of bias.

Many believers in the rule of law and constitutionalism are lying low like an envelope yet with very high expectations. We all know that the Court of Appeal which sometimes constitutes itself into a constitutional court and the Supreme Court in previous decisions have made their stand clear that military courts are for serving military officers and not civilians.

I do not know why this issue should remain a subject of debate and I do not see why the Owiny- Dollo-led panel wants to be remembered as judicial officers who feared to stand for the truth when they had the chance to set the record straight. The unfortunate thing is that the decision comes against a backdrop when some of these Justices are positioning themselves to catch the eye of the President for a possible appointment to the position of Chief Justice.

Also at his current age, Owiny- Dollo appears energetic and like his predecessors, he may wish to seek re-deployment elsewhere when he retires. I do not see him taking a decision that is contrary to the thinking of the appointing authority. He will also try to make a decision that appears balanced but at the end of the day, the military courts would have been given a green light to continue persecuting a section of civilians in the military courts.

I personally don’t see any reasons why Owiny-Dollo should stress; he just needs to do the right thing for his own legacy. After all, his post-retirement benefits are secure and already deeply entrenched under the newly enhanced Administration of the Judiciary Act. Like his immediate outgoing predecessor, he will keep 100% of his salary as well as his other benefits.

My worry is that the dynamics of the 2026 general elections may take centre stage together with the fear of retribution for those who may make a decision intended to weaken the court martial. All in all, the much hyped January, 31st, 2025 judgment will be a defining moment for the Owiny-Dollo led panel more so in a country where the president is vested with unlimited powers to take decisions of whatever nature single handed.

Truth be told, I do not have much faith in the outcome given what befell Justice Esther Kisakye who fled the country citing persecution from persons she did not name. That is the reason why I believe the Supreme Court decision will not say what many human rights defenders want to hear, I personally see a decision that is going to leave more questions than answers.

That judgment will be a reminder to Parliament to amend the law to reduce the powers of the President on appointment of senior judicial officers. What can we expect from them when the President has publically said that the practice of trying civilians in the military courts has played a significant role in stabilizing Uganda by swiftly addressing gun-related crimes?

The same President is on record for having referred to the Court Martial as an “eyokyeero” (reinforcement) that complements civilian courts in handling cases involving firearms arguing that civilian courts are often overwhelmed by a backlog of cases ranging from murder to land disputes, leaving them ill-equipped to swiftly deal with gun-wielding criminals.

In one of his previous addresses, the President saluted military courts for restoring peace in the Karamoja region adding that about a half of the inmates at Kitalya Prison are Karamojong youths detained by the military courts for creating insecurity in the sub region. The President’s praise of the military courts is a precursor of what we should expect on the last day of this month.

The unfortunate bit is that the same Supreme Court has recently declared that civil courts lack the authority to hear appeals from soldiers tried and convicted by military courts, where does this decision leave civilians convicted and sentenced by military courts? Can the civilians appeal to civil courts after a conviction by the court martial, if yes, why the discrimination? For me, this is a serious lacuna that will not be cured by the upcoming decision.

That shocking decision blocking soldiers from seeking redress in the civil courts raised a lot of questions with the President wondering why the court decided as it did suggesting that it was wrong for the justices to close the legal opening for soldiers wanting to seek redress in the courts of judicature. For now, that will remain a “good” authority until further notice.

If the above remains a “good” authority as it is, why should the military courts be allowed to try civilians and the reverse is not true. Why should the court martial have more powers than those given to the courts of judicature? Already, the procedures of the military courts defy the set standards laid out in the criminal justice system.

It is the only over-rated system with the powers to arrest, investigate, collect evidence, sanction files, prosecute, give evidence and pass judgment leave alone being run by people without legal background save for a judge Advocate who usually over steps his mandate by making decisions instead of giving legal advice to the members of the General Court Martial.

All in all, my non prophetic prediction is that the Supreme Court may cunningly deliver a win-win decision or something that appears to be a draw for lack of a better word.  It is highly anticipated that the long awaited Supreme Court decision will have far-reaching implications for the legal framework governing military courts and their jurisdiction over civilians.

I can personally see them declaring that it is unconstitutional to try civilians in military courts save for those who injure national security in collaboration with serving military officers and those found in possession of military store. You now understand why the court martial pre-empted the outcome by adding Oala Denis, a serving military officer to the charge sheet.

Should the Supreme Court agree with the constitutional court, I see them making an ambiguous decision that will keep remandees outside the above exceptions on remand and the convicts in prison before suggesting that their files be transferred to the High Court Criminal Division for either retrial or handling as the court deems fit.

Another implication of maintaining the lower court finding with exceptions would mean that the over 900 convicted Karamajong inmates at Kitalya as well as Kiza Besigye and Hajji Obed on remand at Luzira and Eron Kiza will be set free, something that I do not see the powers that be conceding to for the sake of their egos. I can personally envisage a confusing decision and in so doing, the Supreme Court would have lost an opportunity to redeem its faded image.

I will conclude with words of a wise man who stated that “All too often, when we see injustices, both great and small, we think, that’s terrible, but we do nothing. We say nothing. We let other people fight their own battles. We remain silent because silence is easier. Qui tacet consentire videtur is Latin for ‘Silence gives consent.’ When we say nothing, when we do nothing, we are consenting to these trespasses against us.” Roxane Gay. Karma is a bitch, I rest my case.

Wadada Rogers is a commentator on political, legal and social issues. wadroger@yahoo.ca

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Tags: CiviliansConstitutional LawConstitutionalityHuman RightsjusticeLandmark Judgmentmilitary courtsrule of lawSupreme Court of UgandaUganda Politics

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