Wakilii

Ssemujju v Attorney General (Consitutional Petition No. 4 of 2018)

Constitutional Court · [2023] UGCC 5 · 2023 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Article 137 challenging the trial of a civilian before the General Court Martial
Decision
Petition allowed (4:1 majority); petitioner ordered discharged from the General Court Martial and transferred to a civilian prison on remand, with the DPP directed to take over the matter.

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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 petitioner, a civilian, was charged before the General Court Martial under section 119(1)(h)(i) of the UPDF Act with offences under the Penal Code Act and challenged the constitutionality of that trial. The majority held that the issues had been substantially settled by the Constitutional Court in Kabaziguruka v Attorney General (Constitutional Petition No. 45 of 2016), which remained good law and binding notwithstanding a pending Supreme Court appeal. As the petitioner was not a person subject to military law, his trial before the General Court Martial was unconstitutional. The petition was allowed and the petitioner ordered discharged and transferred to a civilian prison on remand. Mugenyi JCC dissented and would have dismissed the petition.

Facts

On 6 December 2017 the petitioner, a civilian, was arrested at Kiwatule by plain-clothed security operatives and detained at the Chieftaincy of Military Intelligence at Mbuya. On 18 December 2017 he was arraigned before the General Court Martial at Makindye and charged with offences relating to kidnapping contrary to sections 239 and 242 of the Penal Code Act, by virtue of section 119(1)(h)(i) of the UPDF Act 2005, alongside SSP Nixon Agasirwe Karuhanga, a serving police officer. He was remanded to Luzira Maximum Security Prison. At the commencement of the trial the petitioner declined to take plea, persistently objecting that, as a civilian with no military connection, the General Court Martial lacked jurisdiction to try him and was not a court of competent jurisdiction within the meaning of the Constitution. He petitioned the Constitutional Court challenging the constitutionality of the relevant UPDF Act provisions and of his trial before the General Court Martial.

Issues

  1. Whether the petition raises any questions for constitutional interpretation.
  2. Whether section 197 of the UPDF Act 2005 is inconsistent with Articles 28(1), 126(1), 129(2), (3) and 270 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 is inconsistent with Articles 28(1) and 44(c) of the Constitution to the extent that it defines a service offence to mean any offence under all the laws of Uganda.
  4. Whether the act of charging/arraigning the petitioner before the General Court Martial is inconsistent with Articles 28(1) and 44(c) of the Constitution.
  5. Whether the petitioner is entitled to the reliefs sought.

Orders

  • This petition has merit and is hereby allowed.
  • The same declarations of law issued in the Kabaziguruka petition apply to this petition mutatis mutandis.
  • The petitioner be discharged from the Court Martial immediately and transferred to a civilian prison on remand.
  • The Director of Public Prosecutions is directed to take over the matter and make a final decision.

Key headnotes

Constitutional Law — Military Courts — Trial of Civilians before the General Court Martial
A civilian who is not a person subject to military law cannot be tried before the General Court Martial, and charges brought against such a person under the UPDF Act are unconstitutional, null and void and of no effect.
Constitutional Law — Constitutional Interpretation — Article 137(3) — No New Question
A petition that raises questions already substantially settled by a binding decision of the Constitutional Court discloses no new question for constitutional interpretation under Article 137(3) of the Constitution.
Precedent — Stare Decisis — Binding Effect of a Decision Pending Appeal
A decision of the Constitutional Court remains good law and binding on the Court until the Supreme Court determines otherwise on appeal; the pendency of an appeal does not displace its authority.

Legislation cited (17)

  • UPDF Act 2005 s.197
  • UPDF Act 2005 s.2
  • UPDF Act 2005 s.119(1)(h)(i)
  • UPDF Act 2005 s.119(1)(g)
  • Penal Code Act s.239
  • Penal Code Act s.242
  • Constitution of Uganda 1995 Article 28(1)
  • Constitution of Uganda 1995 Article 44(c)
  • Constitution of Uganda 1995 Article 126(1)
  • Constitution of Uganda 1995 Article 129
  • Constitution of Uganda 1995 Article 137(3)
  • Constitution of Uganda 1995 Article 210
  • Constitution of Uganda 1995 Article 257
  • Constitution of Uganda 1995 Article 270
  • Constitution of Uganda 1995 Article 274(1)
  • Constitution of Uganda 1995 Article 23(1)
  • Constitutional Court (Petitions and References) Rules 2005 (SI No. 91 of 2005)

Cases cited (4)

  • Michael Kabaziguruka v Attorney General (Constitutional Petition No. 45 of 2016)
  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Attorney General v Joseph Tumushabe (Constitutional Appeal No. 3 of 2005)
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.