Justice Bamugemereire Suspends Trying Civilians In Court Martial, Sites Impartiality

 Lady Justice Catherine Bamugemereire  has suspended the trial of civilians in the general court martial .

She agrees with the Constitutional Court on the restrictive nature of the jurisdiction of the Court Martial.

 The jurisdiction of the Court Martial is invoked where a disciplinary or military offence is committed.

She holds that the General Court Martial as currently set up can not accord a fair trial and its exercise of judicial powers over civilians is unconstitutional.

 The members of the Court Martial are not independent adding, she does not agree that civilians can be tried by Court Martial even for aiding and abetting of military offences.

This a departure from the judgement of the Constitutional Court which saved the jurisdiction of the CM under s. 117(1)(g).

She however suspends all trials of civilians in the CM and orders sentences for those already convicted should be subjected to judicial review by civil courts, except those sentences which have been served.

 The ruling closely follows an earlier judgment delivered by Justice Monica Mugenyi, who, along with a coram of seven justices, upheld the unconstitutionality of section 117(1)(h) of the Uganda People’s Defence Forces (UPDF) Act, which had allowed civilians to be tried in military courts.

 Her ruling has set the stage for urgent legal reforms in Uganda’s military justice system, particularly concerning the trial of civilians.

 Justice Bamugemereire found that the GCM, as it stands, lacks the constitutional mandate to try civilians, stating that its structure and procedures violate the principles of fairness and impartiality guaranteed under Uganda’s Constitution. “Judicial power, as per the law, is vested in the judiciary, and the General Court Martial is subordinate to the judicial system,” she said. “It is an overreach to create an offense making civilians liable for crimes under military law.”

In her order, Justice Bamugemereire suspended all ongoing civilian trials in the General Court Martial, except for cases involving military personnel. She emphasized that soldiers who commit offenses against civilians should be tried in civilian courts, rather than in military tribunals, in line with constitutional provisions.

She also directed that all cases pending trial in the General Court Martial be suspended and subject to judicial review, with an injunction placed on further proceedings.

The ruling closely follows an earlier judgment delivered by Justice Monica Mugenyi, who, along with a coram of seven justices, upheld the unconstitutionality of section 117(1)(h) of the Uganda People’s Defence Forces (UPDF) Act, which had allowed civilians to be tried in military courts.

Justice Mugenyi’s judgment echoed similar concerns about the impartiality and independence of the General Court Martial, declaring it inconsistent with the Constitution. “The General Court Martial is not an independent and impartial court and is inconsistent with the Constitution,” Justice Mugenyi stated in her ruling, which also found section 117(1)(h) of the UPDF Act to be vague and unconstitutional.

She further called for reforms to ensure military courts operate with greater independence, proposing that the appointment of General Court Martial judges be made in consultation with the Judicial Service Commission to guarantee their legal expertise and impartiality.

Justice Mugenyi’s decision modified the orders of the Constitutional Court, leaving room for amendments to the UPDF Act, but also reiterated that the trial of civilians in military courts is a matter that requires further debate.

The ruling signals a shift toward greater judicial oversight, ensuring that civilians are not subjected to military justice in violation of their constitutional rights.