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Uganda Law Society and Another v Attorney general (Constitutional Petition 2 of 2002; Constitutional Petition 8 of 2002)

Constitutional Court · [2009] UGCC 4 · 2009 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated constitutional petitions under article 137 of the Constitution challenging the constitutionality of a Field Court Martial trial and the execution of two soldiers.
Decision
Petition allowed; the Field Court Martial trial and execution declared unconstitutional; no redress awarded.

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Holding

The Constitutional Court unanimously allowed the consolidated petitions. It held that the Constitution binds all authorities, including military courts; the Field Court Martial is a court of judicature under article 129. The Kotido trial, completed and the death sentences executed within about three hours, denied the soldiers a fair hearing contrary to articles 28 and 44(c), particularly the right to legal representation and adequate time to prepare a defence. The execution also violated the right to life under article 22(1) because the death sentence was carried out without confirmation by the highest appellate court and without an available right of appeal. The execution was declared illegal and unconstitutional, though irreversible. No redress was awarded and each party bore its own costs.

Facts

On 21 March 2002 an Irish Catholic priest, Rev. Fr. Declan O'Toole, and two companions were killed in an ambush in Kotido District during a disarmament operation in Karamoja. Two soldiers, Cpl James Omedio and Pte Abdalla Mohamed, were arrested on 22 March 2002. On 25 March 2002 they were indicted before a Field Court Martial chaired by Col. Sula Semakula (the division commander of the area) and eight other soldiers, appointed by the President as Chairman of the High Command. They were tried, convicted, sentenced to death and executed by firing squad about three hours after indictment. The whole trial lasted less than three hours; the accused were not informed of a right to legal representation and had no lawyer, and the death sentence was carried out without confirmation by any appellate court. The Uganda Law Society and Jackson Karugaba petitioned the Constitutional Court for declarations that the entire process was unconstitutional.

Issues

  1. Whether the trial and conviction of the two soldiers violated article 28(1) and 44(c) of the Constitution (right to a fair, speedy hearing before an independent and impartial tribunal).
  2. Whether the trial violated article 28(3)(f) and 44(c) of the Constitution (right to the assistance of an interpreter).
  3. Whether the trial violated article 28(3)(c) and (g) and 44(c) of the Constitution (adequate time and facilities to prepare a defence and to examine witnesses).
  4. Whether the trial violated article 28(3)(d) and (e) and 44(c) of the Constitution (right to a lawyer of one's choice and, in capital offences, legal representation at State expense).
  5. Whether the execution of the soldiers violated article 22(1) of the Constitution (right not to be deprived of life except after a fair trial and confirmation of conviction and sentence by the highest appellate court).
  6. What reliefs, if any, are available to the parties or the deceased persons.

Orders

  • The petition is allowed.
  • The trial and execution of Cpl Omedio James and Pte Abdalla Mohamed by the Field Court Martial declared illegal, unlawful and unconstitutional.
  • No redress awarded.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Supremacy of the Constitution — Application to military courts
The Constitution is the supreme law and binds all authorities and persons throughout Uganda; military courts martial, including a Field Court Martial, are courts of judicature established under article 129 and are bound to apply the provisions of Chapter IV of the Constitution.
Human Rights — Fair hearing — Non-derogable nature of article 44(c)
The right to a fair hearing under article 28 is a package of protections; under article 44(c) it is absolute and may never be denied in any circumstances, and the special nature of military courts does not displace it.
Human Rights — Fair hearing — Speed of trial and legal representation
A capital trial concluded and executed within about three hours, without informing the accused of the right to legal representation and without affording adequate time and facilities to prepare a defence, contravenes article 28(1), 28(3)(c) and 28(3)(e); the presence of a military legal officer advising the court does not satisfy the right to legal representation of the accused at State expense.
Criminal Law & Procedure — Right to life — Confirmation of death sentence
Under article 22(1) a death sentence may not be executed until the conviction and sentence have been confirmed by the highest appellate court; executing a soldier sentenced by a Field Court Martial without such confirmation, and without affording the right of appeal, violates the right to life.
Criminal Law & Procedure — Right of appeal — Military courts
A right of appeal lies from the decision of a Field Court Martial: the General Court Martial has appellate jurisdiction over all offences under the UPDF Act, and an automatic right of appeal also arises where fundamental rights are violated, reinforced by article 7 of the African Charter on Human and Peoples' Rights read with article 287 of the Constitution.

Legislation cited (25)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.22(1)
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.44(c)
  • Constitution of Uganda 1995 art.45
  • Constitution of Uganda 1995 art.98
  • Constitution of Uganda 1995 art.121
  • Constitution of Uganda 1995 art.126(1)
  • Constitution of Uganda 1995 art.128
  • Constitution of Uganda 1995 art.129
  • Constitution of Uganda 1995 art.137(5)
  • Constitution of Uganda 1995 art.151
  • Constitution of Uganda 1995 art.210
  • Constitution of Uganda 1995 art.257
  • Constitution of Uganda 1995 art.259
  • Constitution of Uganda 1995 art.287
  • UPDF Act 1992 s.77
  • UPDF Act 1992 s.78
  • UPDF Act 1992 s.80(1)
  • UPDF Act 1992 s.81
  • UPDF Act 1992 s.88
  • UPDF Act 1992 s.92
  • UPDF Act 2005 s.201
  • UPDF Act 2005 s.227
  • African Charter on Human and Peoples' Rights art.7

Cases cited (11)

  • Attorney General v Joseph Tumushabe (Constitutional Appeal No. 3 of 2005)
  • Uganda Law Society v Attorney General (Constitutional Application No. 7 of 2003)
  • Attorney General v Salvatori Abuki (Constitutional Case No. 1 of 1998)
  • Paul Kawanga Ssemogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Republic v El Mann [1969] EA 357
  • Uganda v Kabaka's Government [1965] EA 393
  • South Dakota V North Carolina, 192 Vs 268 1940 LED 448
  • Onuoha Kalu v The State [1998] NWLR 531
  • De Clerk Snot-Vs-Dn Plassis and Another [1990]6 BLR 124
  • R v Genereux [1992] 1 SCR 259
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.