Obita Calvin Stewart
1.0 Introduction
Military courts, historically established to address offenses committed by members of the armed forces, have long been a contentious issue when it comes to their jurisdiction over civilians. The use of military courts to try civilians has raised significant legal and ethical questions across the world, with debates centered on the fundamental principles of fairness, independence, and the right to a civilian trial. This debate is particularly prominent in Uganda today, where the Supreme Court is poised to deliver a landmark ruling on the constitutionality of military courts trying civilians fixed for January 31, 2025. This article explores the history and evolution of military courts globally, examines key legal cases, and situates the issue within the Ugandan legal framework, leading to the issue that has to be settled by the highest court in the land.
2.0 Historical Overview of Military Courts Globally
Before I proceed to look at the history of military courts, I find it necessary to reproduce the words of the United States Court of Appeals for the District of Columbia in the case of Curry v Secretary of the Army, wherein the Court held:
“The need for national defense mandates an armed force whose discipline and readiness is not unnecessarily undermined by the often deliberately cumbersome concepts of civilian jurisprudence. Yet, the dictates of individual liberty clearly require some check on military authority in the conduct of courts-martial. The provisions of the UCMJ with respect to court-martial proceedings represent a congressional attempt to accommodate the interests of justice, on the one hand, with the demands for an efficient, well-disciplined military, on the other.”
This is important because, in the writing of this piece, I seek neither to state that the court-martial has no use, nor that they should not try people, but they should try the persons only for whom they have jurisdiction over.
Military courts, or the court-martial, were originally designed to maintain discipline within the armed forces, ensuring swift and specialized justice for soldiers who breached military law. Their roots run deep. They predate written military codes designed to bring order and discipline to an armed, sometimes barbarous fighting force. Although some form of enforcement of discipline has always been a part of every military system, I trace the roots only as far back as the Roman system.
In the Roman armies, justice was normally dispensed by the mgistri militum or by the legionary tribunes who acted either as sole judges or with the assistance of councils. The punishable offenses included cowardice, mutiny, desertion, and doing violence to a superior. While these offenses or their permutations have been carried forward to contemporary settings, many of the punishments imposed upon the guilty have long since been abandoned: decimation, denial of sepulture, maiming, and exposure to the elements. Other punishments such as dishonorable discharge, remain.
The early European courts-martial took on a variety of forms and usages. Typically, the early tribunals operated both in Wartime and peacetime, the former occupying the greater part of an army’s time. The Germans conducted their proceedings in peacetime before a count who was assisted by assemblages of freemen and, in war, before a duke or military chief.
Over time, these courts were refined, particularly in European and colonial systems, to handle a range of military offenses, from insubordination to wartime misconduct.
In modern times, military courts have retained their central role in administering justice within the armed forces. However, their scope has occasionally expanded to include civilians, especially during periods of martial law, national emergencies, or within military-occupied zones. The legitimacy of such trials has often been challenged because civilians should not be subjected to military discipline, which operates under different rules from civilian judicial systems.
3.0 Landmark Cases Shaping Military Courts' Jurisdiction Over Civilians
Several key cases have shaped the jurisprudence on whether military courts can try civilians. These cases reflect global opposition to the practice, particularly in democratic systems that prioritize civilian oversight of the military and the rule of law.
One of the most important cases in this regard is the United States Supreme Court decision in Reid v. Covert. In this case, the Court held that American civilians, even those accompanying military personnel overseas, could not be tried by military courts in peacetime. The decision underscored the constitutional right of civilians to be tried by an independent civilian court, reinforcing the principle that military courts should be limited to members of the armed forces.
Similarly, in Pakistan, the case of the District Bar Association, Rawalpindi v Federation of Pakistan dealt with the constitutionality of military courts operating under emergency laws to try civilians during periods of unrest. The Pakistani Supreme Court upheld the Pakistan Army (Amendment) Act, allowing military courts to try civilians. The Court reasoned that Pakistan was facing extraordinary security threats due to terrorism, and the military courts were a necessary response to this emergency. This decision highlights the tension between national security concerns and the protection of civilian legal rights, a recurring theme in many jurisdictions.
In Europe, the European Court of Human Rights (ECHR) has consistently ruled against military courts trying civilians, citing violations of the right to a fair trial. For example, in the case of Ergin v. Turkey, the ECHR held that the applicant could legitimately fear that the General Staff Court might allow itself to be unduly influenced by partial considerations. The applicant’s doubts about the independence and impartiality of that court were therefore regarded as objectively justified and a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts. A similar position has previously been adopted by the Inter-American Court of Human Rights in Cantoral Benavides v. Peru, which emphasized that military courts had been set up by various laws to maintain order and discipline within the armed forces. Their jurisdiction should therefore be reserved for military personnel who have committed crimes or lesser offences in the performance of their duties.
These cases reflect a broader global trend that limits or outrightly prohibits military courts from exercising jurisdiction over civilians, based on international human rights standards and the principles of due process.
4.0 Current Global Practices
Today, the majority of democratic states have established clear legal frameworks that prevent the trial of civilians by military courts, except in very limited and exceptional circumstances, such as in wartime or under martial law. In the United States, military courts operate under the Uniform Code of Military Justice (UCMJ) of which Article 2 provides the military jurisdiction of the US extends only to persons subject to that chapter, meaning only individuals considered ‘military members’ can be tried by a court-martial effectively excluding civilians. Though there have been attempts to expand this jurisdiction during times of war or occupation, which have faced strong legal challenges.
In India, military courts are similarly restricted to the armed forces under the Army Act of 1950. Article 2 of the Act provides for the persons subject to the Act and to whom the court-martial will be applicable such as regular army officers and persons belonging to the Reserve Forces. Civilian trials by military courts have largely been phased out.
On the other hand, in authoritarian regimes, military courts often maintain broad jurisdiction over civilians. In Egypt, for example, forty members of the Muslim Brothers, a leading opposition organization in Egypt, faced trial before a military court. However, they were all civilians in cases related to terrorism or political dissent, a practice condemned by human rights organizations for undermining the rule of law and civilian oversight of the military.
5.0 The Ugandan Conundrum
Article 208 of the 1995 Consitution of the Republic of Uganda establishes the Uganda People’s Defence Forces. Article 210(a) of the Constitution requires Parliament to make laws regulating the organs and structures of the Uganda People’s Defence Forces. In 2005, Parliament enacted the UPDF Act.
The majority of Ugandan citizens have cited the fact that the court-martial violates or at least does not guarantee the right to a fair trial as the driving force behind the narrative of military courts in Uganda. Before analyzing the right to a fair trial in the context of the 2005 UPDF Act, a brief examination must be conducted of the extent to which the 1995 Constitution protects this right.
The right to a fair trial is provided for in Article 28 of the Constitution. Article 28 provides for virtually all elements of the right to a fair trial as stated in Article 14 of ICCPR. Elements of the right to a fair trial not explicitly provided for in Article 28 are also protected by Article 45. The right to a fair trial as provided for in Article 28 of the 1995 Constitution is non-derogable. In Attorney General v Tumushabe, the Supreme Court of Uganda emphasized the fact that the constitutional provisions concerning human rights apply to military courts as they do to ordinary courts except in circumstances where it is stated otherwise. In this case, the Attorney-General had argued that the Constitutional provisions on bail did not apply to military courts. Now that it is clear that the 1995 Constitution comprehensively protects the right to a fair and that this right applies to military courts in their administration of justice.
In 2005 the Ugandan Parliament enacted a ‘new’ UPDF Act which repealed and replaced the 1992 UPDF Act. This law does not provide any positive reforms as far as the protection and enjoyment of the right to a fair trial in the administration of justice by Uganda’s military courts is concerned.
Uganda’s military courts are governed by the UPDF Act, which establishes the General Court Martial and other military tribunals to try members of the armed forces for military offenses. The same Act also provides for the circumstances under which the General Court Martial has jurisdiction over civilians. While the law does allow civilians to be tried by the court-martial in certain circumstances, in practice the jurisdiction of these courts has been extended to civilians, even in scenarios where the law does not allow. This expansion has been the subject of significant legal and constitutional challenges.
The history of the court-martial in Uganda is partly influenced by the fact that the constitution does not expressly mention much about the operation of justice by the military courts and the UPDF Act itself does not resolve many of these ambiguities but instead adds to them by proving for situations when civilians can be tried by the court-martial, which has left the courts of record with the duty to ensure they fill the gaps.
Before I delve into the trial of civilians, it is important to understand that there has always been a battle that has played out in the courts with regard to many aspects of the military courts starting from the constitutionality of various provisions of the UPDF Act being challenged especially those that had a direct bearing on the right to a fair trial.
In Uganda Law Society v Attorney General, the applicants challenged the constitutionality of the NRA Statute 1992, which allowed field courts-martial to pass death sentences without providing the right of appeal to the Supreme Court. They sought an injunction to prevent executions by field courts-martial until the petition was resolved. The Constitutional Court ruled that the primary function of field courts-martial was to deliver instant justice and maintain military discipline during field operations. It emphasized that normal appeal procedures would hinder the effectiveness of such courts in combat situations. The Court recognized the gravity of the death penalty but argued that in field operations, tough decisions were necessary to maintain order and discipline. On the balance of convenience, it ruled against suspending the provisions that allowed field courts-martial to impose death sentences without appeal to the Supreme Court.
The Constitutional Court however departed from the aforementioned decision above in Uganda Law Society & Another v Attorney-General. The petitioners filed two applications seeking declarations that the entire process was unconstitutional. Delivering the unanimous decision of the Constitutional Court, Justice Twinomujuni held that the right of appeal applied even to the decisions of the field courts-martial. He further cited Justice Mulenga’s decision in the Supreme Court case of Attorney-General v Tumushabe, where Justice Twinomujuni rightly stated that except where the Constitution expressly exempts the application of an article to any person or authority, the Constitution applies to all. He held that the denial of the right of appeal was clearly unconstitutional.
In recent years, Uganda’s military courts have tried civilians in cases such as Namugerwa Hadijah v Attorney General where the Supreme Court held that the General Court Martial has jurisdiction to try civilians who are found in possession of military equipment classified as the monopoly of the UPDF, as provided for under section 119(1)(h) of the UPDF Act.
The danger with all this has been stated in Uganda Law Society and Jackson Karugaba v Attorney-General, where one of the major issues was whether a field court-martial can accord accused persons a fair trial in accordance with the Constitution. The Constitutional Court concluded that given the current laws under which Uganda’s military courts are constituted and operate, they cannot be independent and impartial as required by the Constitution for the requirement of a fair trial.
The right to a fair trial as provided for in Article 14 of International Covenant on Civil and Political Rights (ICCPR) and other international human rights instruments encompasses a number of elements but of which key among is: the right to a fair and public hearing by a competent, independent and impartial tribunal. By their nature, these courts are not equipped to handle civilian matters and their use undermines the principles of the rule of law and fair trial guarantees under Uganda’s Constitution.
6.0 Decision time for the Supreme Court
The case of Michael Kabaziguruka v Attorney General, before the Supreme Court of Uganda represents a pivotal moment in the debate over the trial of civilians in military courts. The Constitutional Court held that the General Court Martial (GCM) is constitutionally established to handle military discipline for UPDF members but lacks jurisdiction to try civilians for offences under the Penal Code Act or other enactments. Sections 2, 119(1)(g), and 179 of the UPDF Act, which expands military jurisdiction to civilians and classifies civil offences as service offences, were declared unconstitutional for violating fair trial guarantees and exceeding the mandate under Article 210(b). The Court quashed the charges against the petitioner, emphasizing that the GCM lacks the safeguards required for an independent and impartial tribunal, particularly in cases involving civilians, and that civilian courts retain exclusive jurisdiction over such matters. The petitioner was awarded costs for the petition.
However, the Attorney General appealed the decision in 2021, sending the case to the Supreme Court, as the government seeks to defend its ability to prosecute civilians in military courts.
The central legal question is whether military courts, designed for military discipline, can fairly and constitutionally try civilians under any circumstances. The Court’s ruling will have far-reaching implications for Uganda’s legal system, as it may either reaffirm the decision by the Constitutional Court which decided that the General Court-martial has no power to try civilians or affirm that in certain circumstances, civilians can be tried by the court-martial.
Defense lawyer Eron Kiiza was forcibly removed by military police and later sentenced to nine months in Kitalya Maximum Prison for contempt of court. These are dangerous times, especially considering the grave concerns about whether the court-martial can issue out contempt of court punishments to civilians.
The case is being closely watched, not only for its immediate legal ramifications but also for its potential impact on Uganda’s broader human rights record. A ruling that limits the jurisdiction of military courts over civilians would align Uganda with international human rights standards and bolster the independence of the civilian judiciary. Conversely, a ruling that upholds military courts’ jurisdiction would raise concerns about the erosion of civil liberties and the expansion of military influence in legal matters.
7. Conclusion
The use of military courts to try civilians is a contentious issue worldwide, with most democracies limiting such practices due to concerns over impartiality and the right to a fair trial. International jurisprudence and human rights norms strongly discourage military courts from exercising jurisdiction over civilians, favoring the use of civilian courts to uphold the rule of law.
In Uganda, trying civilians in military courts has persisted despite previous court rulings, leading to the current Supreme Court case. As the Court prepares to deliver its ruling, the future of civilian trials in military courts hangs in the balance. The outcome will shape Uganda’s legal landscape and either affirm its commitment to human rights and the rule of law or raise new concerns about the role of the military in civilian justice.
By
Obita Calvin-Makerere Law Student
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LIST OF REFERENCES
Supreme Court Sets January 31 for Landmark Ruling on Civilians in Military Courts available at,
<https://nilepost.co.ug/supreme-court-ruling/238942> [Accessed on 27th January 2025]
David A. Schlueter, The Court-Martial: A Historical Survey , 87 Mil. L. Rev. 129 (1980) 131.
W. Winthrop, Military Law and Precedents 17, 45 (2d ed. 1920 reprint)
UN Sub-Commission on the Promotion and Protection of Human Rights’ report on military courts, Principle No. 5.
Amnesty International, Egypt: Justice subverted: Trials of civilians before military courts <https://www.amnesty.org/en/wp-content/uploads/2021/07/mde120222007en.pdf> [Accessed on 27th January 2025]
Ronald Naluwairo, The development of Uganda’s military justice system and the right to a fair trial: Old wine in new bottles?’ (2018) 2 Global Campus Human Rights Journal.
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