Wakilii

Kabaziguruka v Attorney General (Constitutional Petition 45 of 2016)

Constitutional Court · [2021] UGCC 45 · 2021 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 of the Constitution seeking declarations and remedies
Decision
Petition allowed by majority; the petitioner's charges before the General Court Martial quashed, his immediate release ordered, and the question of damages referred to the High Court under Article 137(4)(b).

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Cited — treatment unverified cited in 4 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

By majority (Kakuru, Obura and Kasule JJCC; Madrama and Musota JJCC dissenting), the Constitutional Court held that the General Court Martial, being manned by military officers appointed and removable by the High Command and lacking security of tenure and financial independence, is not an independent and impartial court under Article 28(1) and cannot try civilians. Sections 2, 119(1)(h) and 179 of the UPDF Act, which turn all offences under the Penal Code Act and other enactments into service offences and subject civilians to military jurisdiction, were declared unconstitutional. The petitioner, a civilian Member of Parliament, was unlawfully arraigned before the Court Martial; his charges were quashed, his release ordered, and the question of damages referred to the High Court.

Facts

On 8 June 2016 the petitioner, Hon. Michael Andrew Kabaziguruka, a Member of Parliament and a civilian, was arrested and later placed under house arrest. On 28 June 2016 he was arraigned before the General Court Martial at Makindye, charged with offences relating to security contrary to section 130(1)(f) and treachery contrary to section 129(a) of the UPDF Act, together with 22 others, most of whom were serving members of the UPDF. He was remanded at Kigo Government Prison and later granted bail by the High Court on 20 October 2016. Objecting that the General Court Martial lacked jurisdiction to try him because it is not a competent, independent court established under constitutional authority, he petitioned the Constitutional Court under Article 137 for declarations that sections 197, 2 and 179 of the UPDF Act are inconsistent with the Constitution and that his arraignment was unconstitutional. The respondent contended that the General Court Martial is a competent court established under Article 210 and section 197 of the UPDF Act, and that the offences charged were UPDF Act offences within its mandate.

Issues

  1. Whether the General Court Martial established under section 197 of the UPDF Act is a competent court within the meaning of Articles 28(1), 126(1), 129(2) and (3) of the Constitution.
  2. Whether section 197 of the UPDF Act is inconsistent with Articles 28(1), 126(1), 129(2) and (3) and 210 of the Constitution to the extent that it purports to create a court of law without constitutional authority.
  3. Whether section 2 of the UPDF Act, which defines a service offence to mean any offence under all the laws of Uganda, is inconsistent with Articles 28(1) and 44(c) of the Constitution.
  4. Whether the act of charging or arraigning the petitioner before the General Court Martial at Makindye is inconsistent with Article 28(1) of the Constitution.
  5. What remedies are available to the parties.

Orders

  • Petition allowed by majority (Kakuru, Obura and Kasule JJCC; Madrama and Musota JJCC dissenting).
  • Sections 2, 119(1)(h) and 179 of the UPDF Act declared unconstitutional for contravening Articles 28(1), 44(c) and 210(b) of the Constitution.
  • Section 119(1)(g) of the UPDF Act upheld as constitutional, provided a civilian is tried only as an accomplice together with a principal offender who is subject to military law on the same charge sheet.
  • The petitioner declared not to be a person subject to military law; his trial before the General Court Martial declared unconstitutional, null and void.
  • Criminal proceedings against the petitioner in Criminal Case No. UPDF/GCM/011/2016 before the General Court Martial at Makindye quashed; his immediate release and discharge ordered.
  • All persons not subject to military law currently tried before military courts to have their cases transferred to civilian courts under the direction of the Director of Public Prosecutions within 14 days.
  • Costs of the petition awarded to the petitioner.
  • Matter referred to the High Court to investigate and determine appropriate redress to the petitioner in damages under Article 137(4)(b) of the Constitution.

Key headnotes

Constitutional Law — Military Courts — Independence and Impartiality under Article 28(1)
The General Court Martial, being composed of military officers appointed, deployed and removable by the High Command and lacking security of tenure and financial independence, is not an independent and impartial court or tribunal within the meaning of Article 28(1) of the Constitution.
Constitutional Law — Parliamentary Power under Article 210 — Limits on Military Court Jurisdiction
Parliament's power under Article 210(b) to make laws regulating the UPDF is restricted to the discipline of members of the Defence Forces, and does not authorise the creation of military courts to try civilians or to try offences that are the preserve of the civil courts of judicature established under Chapter Eight of the Constitution.
Criminal Law & Procedure — Service Offences — Definition under sections 2 and 179 of the UPDF Act
Defining a service offence to include any offence under the Penal Code Act or any other enactment unconstitutionally transforms military courts from limited-jurisdiction disciplinary bodies into general criminal courts and is inconsistent with Articles 28(1) and 44(c) of the Constitution.
Human Rights — Fair Hearing — Non-derogability under Article 44(c)
The right to a fair hearing before an independent and impartial court under Article 28(1) is non-derogable by virtue of Article 44(c), and a trial before a court that is not competent or independent is a nullity.
Criminal Law & Procedure — Jurisdiction over Civilians — Persons subject to military law
A civilian who has not voluntarily placed himself under military law cannot be subjected to the jurisdiction of the General Court Martial, save where, under section 119(1)(g) of the UPDF Act, he is charged as an accomplice together with a principal offender who is subject to military law.
Statutory Interpretation — Constitutional Interpretation — Purpose, Effect and Harmony
In determining the constitutionality of legislation both its purpose and effect must be considered, and the Constitution must be read as an integral whole so that each provision sustains rather than destroys the others.

Legislation cited (30)

  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.28(12)
  • Constitution of Uganda art.43
  • Constitution of Uganda art.44(c)
  • Constitution of Uganda art.126(1)
  • Constitution of Uganda art.128
  • Constitution of Uganda art.129
  • Constitution of Uganda art.137
  • Constitution of Uganda art.144
  • Constitution of Uganda art.209
  • Constitution of Uganda art.210
  • Constitution of Uganda art.221
  • Constitution of Uganda art.257
  • UPDF Act s.2
  • UPDF Act s.119
  • UPDF Act s.129(a)
  • UPDF Act s.130(1)(f)
  • UPDF Act s.179
  • UPDF Act s.194
  • UPDF Act s.195
  • UPDF Act s.197
  • UPDF Act s.199
  • UPDF Act s.200
  • UPDF Act s.204
  • Penal Code Act
  • Firearms Act
  • Anti-Terrorism Act s.7
  • Oaths Act Cap 19
  • Evidence Act s.106
  • International Criminal Court Act 2010

Cases cited (27)

  • Attorney General v Tumushabe (Constitutional Appeal No. 3 of 2005)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Uganda Law Society and Jackson Karugaba v Attorney General (Constitutional Petitions Nos. 2 and 8 of 2002)
  • Ogwang v Uganda (Criminal Appeal No. 107 of 2013)
  • Namugerwa Hadijah v Attorney General (Civil Appeal No. 4 of 2012)
  • Attorney General v Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Mabirizi v Attorney General (Constitutional Petition No. 49 of 2017)
  • Tumushabe v Attorney General (Constitutional Petition No. 6 of 2004)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Ssemogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
  • Human Rights Network Uganda v Attorney General (Constitutional Petition No. 56 of 2013)
  • Tusingwire v Attorney General (Constitutional Petition No. 2 of 2013)
  • Turyatemba v Attorney General (Constitutional Petition No. 15 of 2006)
  • Muhwezi v Attorney General (Constitutional Petition No. 10 of 2008)
  • National Council for Higher Education v Bangirana (Constitutional Appeal No. 4 of 2011)
  • Uganda v Agade (Criminal Session Case No. 1 of 2010)
  • Uganda v Kwoyelo (Criminal Case No. 10 of 2011)
  • Dow v Attorney General [1992] LRC (Const.) 623
  • R v Genereux [1992] 1 SCR 259
  • Castillo Petruzzi v Peru (Inter-American Court of Human Rights, 30 May 1999)
  • Attorney General of Tanzania v Mtikila [2010] EA 13
  • Apollo Mboya v Attorney General (Petition No. 472 of 2017)
  • Okello v Attorney General (Constitutional Petition No. 4 of 2005)
  • Civil Liberties Organisation v Nigeria [2001] AHRLR 75
  • Gunes v Turkey (Application No. 31893/96)
  • Mvranji Stephen Muleithi vs Daniel Arap Moi, Constitutional Petition No. 625 of 2009
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.