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Uganda Law Society and Another v Attorney General (Constitutional Application No. 7 of 2003)

Constitutional Court · [2003] UGCC 5 · 2003 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application for an interim order staying the operation of a statutory provision pending the hearing and determination of consolidated constitutional petitions
Decision
Application for interim relief refused; no order as to costs.

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Holding

The Constitutional Court refused an interim order staying section 92(1)(a) of the NRA Statute, under which death sentences are passed by a Field Court Martial. Applying the settled injunction test, the court found no prima facie case with a probability of success: although a Field Court Martial is a subordinate court established by Parliament and thus a court of competent jurisdiction, it is a special court whose decisions the Constitution does not intend to be subject to Supreme Court confirmation. On the balance of convenience, suspending the provision would prejudice military discipline and national security during insurgency. The court declined to follow Dr Rwanyarare's case, distinguishing political matters from security and military matters.

Facts

The applicants filed consolidated constitutional petitions challenging the constitutionality of the National Resistance Army Statute No. 3 of 1992 in so far as it provides for death sentences passed by a Field Court Martial without an appeal to or confirmation by the Supreme Court. Pending determination of the petitions, the applicants applied for an interim order staying the operation of section 92(1)(a). Their affidavits averred that three soldiers had recently been convicted by a Field Court Martial and executed by firing squad without Supreme Court confirmation, and that further executions were imminent. The Attorney General opposed the application, contending that appeals exist for ordinary military courts but that a Field Court Martial is a special court convened in field operations to administer instant justice and instil discipline, and that suspending the provision would prejudice army discipline and national security at a time of insurgency.

Issues

  1. Whether the applicants established a prima facie case with a probability of success in their challenge to section 92(1)(a) of the NRA Statute.
  2. Whether a Field Court Martial is a court of competent jurisdiction within the meaning of article 22(1) of the Constitution.
  3. Whether the applicants would suffer irreparable injury justifying an interim order staying the operation of the impugned provision pending the petitions.
  4. Whether the court should follow its earlier decision in Dr Rwanyarare's case and grant the application.

Orders

  • Application refused.
  • No order as to costs.

Key headnotes

Civil Procedure — Temporary Injunction — Conditions for Grant
A temporary injunction will issue only where the applicant shows a prima facie case with a probability of success and that it might otherwise suffer irreparable injury; where the court is in doubt on either, the application is decided on the balance of convenience.
Constitutional Law — Courts of Judicature — Field Court Martial as Court of Competent Jurisdiction
A Field Court Martial established under section 77(1) of the NRA Statute is a subordinate court established by Parliament under article 129 of the Constitution and is therefore a court of competent jurisdiction within the meaning of article 22(1).
Constitutional Law — Field Court Martial — Special Court Outside Appeal and Confirmation Safeguards
A Field Court Martial is a special court intended to administer instant justice and maintain discipline in field operations; the Constitution does not intend that the appeal and confirmation safeguards implied by article 22(1) apply to its sentences, as recognised by articles 137(5) and 121(6).
Civil Procedure — Precedent — Departing from a Court's Own Earlier Decision
A court may depart from its own earlier decision only where there is a conflicting decision of its own, a conflicting decision of a superior court, or where the earlier decision was reached per incuriam; otherwise an earlier decision may still be distinguished where the circumstances differ materially.

Legislation cited (16)

  • National Resistance Army Statute No. 3 of 1992 s.92(1)(a)
  • National Resistance Army Statute No. 3 of 1992 s.71
  • National Resistance Army Statute No. 3 of 1992 s.76(1)
  • National Resistance Army Statute No. 3 of 1992 s.77
  • National Resistance Army Statute No. 3 of 1992 s.80(1)
  • National Resistance Army Statute No. 3 of 1992 s.83(1)
  • National Resistance Army Statute No. 3 of 1992 s.84
  • National Resistance Army Statute No. 3 of 1992 s.104
  • National Resistance Army (Court Martial Appeal Court) Regulations 1994 reg.17(1)
  • Constitution of Uganda 1995 art.22(1)
  • Constitution of Uganda 1995 art.121(6)
  • Constitution of Uganda 1995 art.129
  • Constitution of Uganda 1995 art.132
  • Constitution of Uganda 1995 art.137(5)
  • Constitution of Uganda 1995 art.273
  • Political Parties and Organisations Act No. 18 of 2002 s.6

Cases cited (2)

  • Giella v Cassman Brown & Co Ltd [1973] EA 358
  • Dr James Rwanyarare and Others v Attorney General (Constitutional Application No. 6 of 2002)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.