A Case Brief Of 2nd Lt. Ogwang Ambrose v Uganda (Criminal Appeal 48 of 2021) (2024) UGSC 45 (11 December 2024)

FACTS

The appellant, a UPDF officer, was convicted of robbing a shop at gunpoint. During his attempt to evade arrest, he shot and fatally injured Inspector General Koire with an SMF rifle. The appellant was initially tried and convicted by the UPDF 3rd Division Court Martial at the 3rd Brigade in Mbale City for the offence of murder and sentenced to death. He appealed to the General Court-Martial sitting at Makindye, which upheld the death sentence but substituted it with a sentence of life imprisonment. Subsequently, he appealed to the UPDF Court Martial Court of Appeal sitting at Makindye, which also upheld the convictions.

Following this, the appellant pursued a third appeal in the Court of Appeal, which quashed his murder conviction and set aside the sentence, citing a mistrial during the third division court martial. The Court of Appeal ordered a retrial in the High Court of Uganda. Before the Supreme Court disposed of his appeal, the Office of the Director of Public Prosecutions (DPP) indicted the appellant on two counts: murder and aggravated robbery. The Chief Magistrate's Court in Mbale committed him for retrial in the High Court, where he was acquitted of aggravated robbery but convicted of murder, receiving a sentence of 29 years and 2 months of imprisonment. The trial judge ruled that this sentence would commence on 18th June 2010, the date of the original conviction in the divisional court martial. The appellant then appealed to the Court of Appeal, which dismissed the appeal; he further appealed to the Supreme Court.

ISSUE

Whether the Court of Appeal had jurisdiction to entertain an appeal from the Court Martial Appeals Court?

RULE OF LAW

Military courts do not confer jurisdiction upon civilian courts unless explicitly provided for by statute. The Supreme Court determined that the UPDF Act did not allow for appeals from the Court Martial Appeals Court to the Court of Appeal. Furthermore, Regulation 20(2) of the UPDF Court Martial Appeals Court Regulations, which claimed to bestow such jurisdiction, was found to be ultra vires and therefore, void.

HOLDING

The Supreme Court unanimously held that appellate jurisdiction is created by statute and cannot be conferred through ministerial regulations. It dismissed the appeal due to a lack of jurisdiction and reinstated the sentence from the Court Martial Appeals Court.

REASONING

Jurisdiction is a matter of statute; it is not inherent or implied and must be explicitly established by law. The court referenced the case of Attorney General v Shah (1971) EA, which affirmed that appellate jurisdiction is solely the result of statutory provisions and is not an inherent right. 

The right to appeal is a jurisdictional right specifically spelled out by statute, as outlined in Article 50(3) of the 1995 Constitution of the Republic of Uganda. The laws governing appeals should generally meet international standards, particularly the provisions found in Article 14(1) and (5) of the ICCPR. This case centered around whether appeals from the Court Martial Appeals Court could be lodged in the Court of Appeal. 

Additionally, the importance of distinguishing between statutes and regulations was emphasized. Statutes serve as the primary sources of law, while regulations are practical guidelines for executing statutes. Recognized authorities or a minister may issue regulations, but they cannot amend a primary source of law. In many jurisdictions, subordinate legislation must align with primary legislation. Any instrument attempting to alter primary legislation is considered ultra vires.

CONCLUSION

Individuals convicted and sentenced by the court martial cannot appeal to the Court of Appeal for relief after appealing the court martial appeal. Therefore, the Supreme Court attempted to distinguish between civilian and martial courts.

This case reinforces the principle that when a statute is silent or does not address a particular aspect of the law, regulations cannot serve as a substitute authority; thus, they are ultra vires. In this situation, the UPDF Act did not provide for appeals to the Court of Appeals. At the same time, the UPDF Court Martial Appeals Court Regulations incorrectly indicated that such appeals were permissible, contravening the primary legislation and rendering them ultra vires and void.

Read full case below https://ulii.org/akn/ug/judgment/ugsc/2024/45/eng@2024-12-11 Briefed by Cindy Patricia Mbabazi