Case Brief Of Hon. Michael Kabaziguruka Versus Attorney General Constitutional Petition No. 45 Of 2016

 FACTS

Michael Kabaziguruka, a civilian and then member of parliament of Nakawa was arrested and detained on treachery charges and arraigned before the general court Martial, he then petitioned court challenging the jurisdiction of the army court to try him. The high court judge Patricia Wasswa Basaza ruled that Michael Kabaziguruka is subject to military law and should be tried by the General Court Martial for offences relating to security and treachery. The judge based her ruling on section 119 of the UPDF Act, which gives the Army Court unlimited jurisdiction and powers to try civilians such as MP Kabaziguruka.  Unless repealed or invalidated by the constitutional court, hence the petition to the constitutional court objecting to the jurisdiction of the General Court Martial trying him as he was a civilian

ISSUES

1. Whether the General court martial established under section 197 of the Uganda Peoples Defense Forces Act is a competent court within the meaning of Articles 28(1), 126(1), 129(2), and (3) of the constitution of the republic of Uganda.

2. Whether section 197 of the UPDF Act, 2005 is inconsistent with and in contravention of Articles 28(1), 126(1), 129(2) and (3) and 210 of the constitution of the Republic of Uganda to the extent that it purports to create a court of law without constitutional authority.

3. Whether section 2 of the UPDF Act is inconsistent with and in contravention of Articles 28(1) and 44(c) of the constitution to the extent that it defines a service offence to mean any offence under all the laws of Uganda, thereby conferring jurisdiction unto the court-martial over any criminal offence including non-disciplinary offences and over every person.

4. Whether the act of charging the petitioner before the General Court Martial held at Makindye is inconsistent with and in contravention of Article 28(1) of the constitution of the Republic of Uganda.

RULE OF LAW

Civilians can be subject to military law where they are charged with aiding and abetting serving UPDF Officers to commit service offences according to section 119 of the UPDF Act.

HOLDING

The majority of the constitutional court in this case held that the GCM established under S.179 [1]of the UPDF Act is a competent quasi-judicial military court whose jurisdiction is limited to the enforcement of military discipline. It also observed the GCM jurisdiction is limited to trying service offences specified under the UPDF Act only to persons subject to military law. Court further held that persons subject to military law under the UPDF Act must exclude all those persons who have not placed themselves voluntarily under the jurisdiction of the Act except as provided for under S119 (1) (g).it also observed that S.119 (1) (g) of the UPDF Act is not unconstitutional, Provided the person not otherwise subject to military law is tried as an accomplice with a person subject to military law as the principal offender on the same charge sheet. It further held that S.119 (h) and 179(1) (a) of the UPDF Act are unconstitutional as they are inconsistent with Art 28(1). The petitioner hence is not subject to military law and his trial under the UPDF Act is unconstitutional null and void and of no effect. However, S.197 of the UPDF Act is not unconstitutional. Further court ordered that those not subject to military law on trial in the GCM case files be transferred to civil courts under the Office of the DPP.

CONCLUSION.

The constitutional court has held the exercise of the military jurisdiction over civilians to be unlawful as indicated above since no military court has the competence to try civilians as a matter of domestic and international law all convictions and detentions based on wrongful exercise of jurisdiction are a violation of the right to a fair trial and a violation of the prohibition on arbitrary detention such cases should be transferred to civil courts under the direction of the Director of Public Prosecution. Despite this Uganda military courts continue to prosecute civilians disregarding the constitutional court ruling.  This has been witnessed in the current case of Dr. Kizza Besigye.