HIGH COURT AFFIRMS THAT COURTS CANNOT CONFER JURISDICTION UPON THEMSELVES; ONLY PARLIAMENT CAN. HOWEVER, WHERE STATUTORY LAW IS SILENT, COURTS MAY APPLY INHERENT POWERS TO PREVENT INJUSTICE.
- Waboga David
- 6 days ago
- 3 min read
Brief of the case Kiiza v Uganda (Miscellaneous Application 118 of 2025) [2025] UGHCCRD 15 (4 April 2025)
Area of law: Criminal and Constitutional Law
Topic: Bail pending appeal and the jurisdiction of the military court
Introduction The High Court granted bail pending appeal to Lawyer Eron Kiiza, a civilian and legal representative of Dr. Kiiza Besigye, who was convicted and sentenced to nine months in prison by the General Court Martial (GCM) for contempt of court.
The Court, however, declined jurisdiction over the substantive appeal, citing the absence of statutory authority. The court observed that while it lacks express appellate jurisdiction over Court Martial decisions involving civilians, it could invoke its inherent equitable jurisdiction to prevent injustice in light of a legislative vacuum.
Facts
The applicant, a lawyer, was convicted of contempt of court by the General Court Martial on 7th January 2025 and sentenced to nine months in Kitalya Prison. He initially filed a Notice of Appeal in the Court Martial Appeal Court on 13th January 2025.
However, following the Supreme Court decision in AG v. Hon. Michael Kabaziguruka on 31st January 2025, which ordered the transfer of all civilian cases from military courts to ordinary courts, the applicant filed Criminal Appeal No. 31 of 2025 in the Criminal Division of the High Court, challenging his conviction and sentence.
He subsequently applied for bail pending appeal before the High Court.
Holding
While the applicant argued that the Supreme Court’s ruling effectively conferred jurisdiction on the High Court to hear appeals from military courts involving civilians, the Court disagreed.
Citing Uganda People's Congress v. Prof Edward Kakonge and Kawooya v. Bangu, Hon. Justice Michael Elubu emphasized that jurisdiction must be expressly granted by Parliament through statutory enactment.
The Court clarified that although the Supreme Court directed the transfer of all civilian matters from military courts to ordinary courts, Parliament has not enacted any law establishing or regulating appellate jurisdiction over such cases. Consequently, the High Court held that it lacked jurisdiction to entertain both the appeal and the bail application.
🧩 The Legal Dilemma
The High Court observed that the General Court Martial is a subordinate court to the High Court under Article 139(2 Constitution of Uganda.
The court further observed that the Supreme Court in Kabaziguruka v. AG held that military courts have no jurisdiction over civilians, mandating the transfer of all civilian cases to ordinary courts.
However, no statutory law currently provides a clear appellate path for civilians previously convicted by military courts, creating a legal limbo.
🧭 Court’s Equitable Approach
Faced with a legislative lacuna, the Court invoked:
Article 126(2)(e) – Substantive justice without undue regard to technicalities
Article 139(2) – General appellate jurisdiction of the High Court
Section 17(2) of the Judicature Act – Inherent powers to prevent abuse of court process and ensure justice
“Uncertainty is an injustice that may result in oppression. The courts should remedy such a situation by providing certainty of trial.”
Bail Pending Appeal Granted
Based on the likelihood of success of the appeal, the risk of the appellant serving the full sentence before appeal determination, and the presence of substantial sureties.
Illegal Sentence Indicated
The GCM imposed a 9-month sentence, yet Section 171(2) of the UPDF Act caps such contempt penalties at 30 days. This suggests prima facie illegality and strengthens the appeal’s merits.
Substantial Legal Questions Raised
Status of civilians (especially advocates) under the jurisdiction of military courts.
Legality of extended sentences for contempt under military law.
Implementation gap post-Kabaziguruka decision regarding jurisdictional transfer.
Strong Sureties Presented
The applicant’s wife, cousin (a law lecturer), and close legal colleague were accepted as sound sureties, all with fixed residences and credible guarantees.
🏛️ Key Rule of Law Principles Reaffirmed
Jurisdiction is Statutory – Courts cannot confer jurisdiction upon themselves; only Parliament can.
Judicial Restraint – Courts cannot legislate from the bench.
Equity Fills Legal Gaps – Where statutory law is silent, courts may apply inherent powers to prevent injustice.
Fair Trial is Paramount – Denial of appellate remedies violates the constitutional right to a fair hearing under Article 28.
Separation of Powers – The judiciary must operate within its constitutional and statutory limits.
🧠 Key Takeaways
⚠️ Legislative Inaction has created legal uncertainty for civilians previously tried by military courts.
⚖️ High Court used equitable jurisdiction to prevent irreparable harm pending appeal.
🧑🏽⚖️ Rule of Law requires predictability—legal limbo undermines justice and public confidence in courts.
🛠️ Urgent legislative reform is needed to create a statutory appellate pathway for such cases.
📚 This ruling sets a precedent on judicial discretion in rare and exceptional cases where rights are at risk and no statutory remedy exists.
🧭 Looking Ahead
This case calls on Parliament to urgently enact laws that:
Provide clear appellate jurisdiction over military court decisions involving civilians.
Ensure the full implementation of the Kabaziguruka ruling.
Uphold the right to a fair trial and appeal, foundational to constitutional democracy.
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