Wakilii

Uganda Law Society & Anor v The Attorney General (Constitutional Application 8 of 2002; Constitutional Petition 2 of 2002)

Constitutional Court · [2009] UGCC 5 · 2009 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated constitutional petitions under Article 137(3) seeking declarations that the trial and execution of two soldiers by a Field Court Martial were unconstitutional
Decision
Petition allowed; the trial and execution of the two soldiers declared illegal, unlawful and unconstitutional. No redress awarded as the soldiers were deceased and no dependants were before the court.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Constitutional Court unanimously allowed the petition. It held that the Constitution binds all military courts, including Field Courts Martial, which are courts of judicature established under Article 129. The lead judgment found the Kotido trial — conducted and concluded with execution within three hours — denied the soldiers a fair hearing under Articles 28 and 44(c), particularly the mandatory right to State-funded legal representation in capital cases. All members held that executing the soldiers without confirmation of the death sentence by the Supreme Court violated the right to life under Article 22(1). The justices differed on whether the speed and independence of the trial breached Article 28(1), but agreed the execution was unconstitutional.

Facts

On 22 March 2002, two UPDF soldiers, Corporal James Omedio and Private Abdalla Mohamed, were arrested for the murder of an Irish priest, Rev. Fr. Declan O'Toole, and two companions in Kotido District. On 25 March 2002, at about 12.50 pm, they were indicted before a Field Court Martial presided over by Col. Sula Semakula, the Division Commander of the area where the alleged crime occurred, together with eight other soldiers. Within about three hours they were tried, convicted, sentenced to death and executed by firing squad. They were not afforded counsel of their choice or State-funded legal representation, and were given no time to prepare a defence. No appeal was lodged and the sentence was not confirmed by the Supreme Court before execution. The Uganda Law Society and Jackson Karugaba petitioned the Constitutional Court for declarations that the trial and execution were unconstitutional.

Issues

  1. Whether the trial and conviction of the two soldiers were conducted in violation of Article 28(1) (fair, speedy hearing before an independent and impartial tribunal) and Article 44(c) of the Constitution.
  2. Whether the trial was conducted in violation of Article 28(3)(f) (assistance of an interpreter) and Article 44(c).
  3. Whether the trial was conducted in violation of Article 28(3)(c) (adequate time and facilities to prepare a defence) and (g) (facilities to examine and obtain attendance of witnesses) and Article 44(c).
  4. Whether the trial was conducted in violation of Article 28(3)(d) (representation by a lawyer of choice) and (e) (legal representation at State expense in capital offences) and Article 44(c).
  5. Whether the execution of the soldiers violated Article 22(1) (right not to be deprived of life except in execution of a sentence passed in a fair trial and confirmed by the highest appellate court).
  6. Whether a Field Court Martial is a court of competent jurisdiction established under the Constitution to which the Constitution applies.

Orders

  • Petition allowed.
  • No redress or compensation awarded.
  • Each party to bear its own costs (public interest litigation).

Key headnotes

Constitutional Law — Supremacy of the Constitution — Application to Military Courts
The Constitution is the supreme law of Uganda and binds all authorities and persons throughout Uganda; military courts, including Field Courts Martial, are not exempt from compliance with its provisions, particularly the fundamental rights guaranteed in Chapter Four, save where the Constitution expressly so provides.
Constitutional Law — Courts of Judicature — Status of Courts Martial under Article 129
Courts Martial, including the Field Court Martial, form part of the system of courts established or deemed established under the Constitution to exercise judicial power, and are complementary to, not parallel with, the civilian courts.
Human Rights — Right to a Fair Hearing — Article 28 as a Composite Non-Derogable Guarantee
The right to a fair hearing under Article 28 is a package of protections; if any one of them is denied the trial cannot be fair, and by virtue of Article 44(c) the right is absolute and may not be denied in any circumstances whatsoever.
Human Rights — Fair Hearing — Legal Representation at State Expense in Capital Cases
Where an accused faces a charge carrying a sentence of death or life imprisonment, Article 28(3)(e) mandatorily entitles the accused to legal representation at the expense of the State, and the presence of a military legal officer advising the court does not satisfy this requirement.
Human Rights — Right to Life — Confirmation of Death Sentence under Article 22(1)
A person may not be deprived of life except in execution of a sentence passed in a fair trial whose conviction and sentence have been confirmed by the highest appellate court; executing a death sentence imposed by a Field Court Martial without confirmation by the Supreme Court violates Article 22(1).
Constitutional Law — Right of Appeal — African Charter and Article 287
The rights guaranteed in Chapter Four are not exhaustive (Article 45), and a right of appeal where fundamental rights are violated is available, reinforced by Article 7 of the African Charter on Human and Peoples' Rights, which continues to bind Uganda by virtue of Article 287.

Legislation cited (27)

  • 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(1)
  • 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(3)
  • 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 (NRA Statute) s.77
  • UPDF Act 1992 (NRA Statute) s.78
  • UPDF Act 1992 (NRA Statute) s.80(1)
  • UPDF Act 1992 (NRA Statute) s.81
  • UPDF Act 1992 (NRA Statute) s.88
  • UPDF Act 1992 (NRA Statute) s.92
  • UPDF Act Cap 307 s.92(1)(a)
  • UPDF Act, Act 7 of 2005 s.201
  • UPDF Act, Act 7 of 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)
  • Major General David Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • Paul Kawanga Ssemogerere and Others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General v Salvatori Abuki (Constitutional Case No. 1 of 1998)
  • The Republic Vs. Eh Mann [1969] E.A 357
  • Uganda-vs-Kabakas 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
  • Micheal Genereux-Vs-Her Majesty Queen [1992].S.CR.Z; R-Vs-Genereux
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.