Wakilii

Attorney General v Uganda Law Society (Constitutional Appeal 1 of 2006)

Supreme Court · [2009] UGSC 2 · 2009 Appeal Dismissed; Cross-Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal and cross-appeal from a decision of the Constitutional Court on a public interest constitutional petition
Decision
Appeal dismissed and cross-appeal allowed; the majority Constitutional Court decision upheld save that the General Court Martial is held subordinate to the High Court

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⚠ Adverse treatment in citing cases followed in 4 · overruled in 1 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 Supreme Court dismissed the Attorney General's appeal. It held that for an offence under an Act other than the UPDF Act to be a service offence triable by the General Court Martial, it must be committed by a person subject to military law; that was neither alleged nor shown against the accused. Terrorism is in any event triable only by the High Court under section 6 of the Anti-Terrorism Act, so the Court Martial proceedings were a nullity. Concurrent proceedings on the same facts offended the principle in Article 28(9) against double jeopardy. The cross-appeal was allowed: bound by Joseph Tumushabe, the General Court Martial is subordinate to, not equivalent to, the High Court, and the Constitutional Court erred in refusing to follow that precedent.

Facts

In 2005, Col. (Rtd.) Dr. Kizza Besigye and 22 others were on remand at Luzira Prison pending trial in the High Court on an indictment for treason and concealment of treason. On 16 November 2005, the High Court granted twenty-two of them conditional bail. Before they could be released, heavily armed security agents invaded the High Court premises, interrupted the processing of release papers, and the accused were returned to prison. The next day they were taken to the General Court Martial and jointly charged with terrorism and unlawful possession of firearms, charges based on the same or interrelated facts as the High Court indictment. The Uganda Law Society brought a public interest petition under Article 137 challenging these acts, the concurrent proceedings, and provisions of the UPDF Act. The Constitutional Court allowed the petition in part and granted four declarations. The Attorney General appealed against three; the Law Society cross-appealed.

Issues

  1. Whether the concurrent criminal proceedings against the accused persons in the High Court and the General Court Martial on charges arising from the same facts contravened Articles 28(1) and 44(c) of the Constitution.
  2. Whether the General Court Martial had jurisdiction to try the accused persons on charges of terrorism and unlawful possession of firearms.
  3. Whether the trial of the accused persons before the General Court Martial contravened Articles 22(1), 28(1), 120(1) & (3), 126(1) and 210 of the Constitution.
  4. Whether the General Court Martial is equivalent to, or subordinate to, the High Court.
  5. Whether the Constitutional Court was entitled to decline to follow its own previous decision under the doctrine of stare decisis.

Orders

  • Appeal dismissed.
  • Cross-appeal allowed.
  • Respondent awarded costs in the Supreme Court and in the Constitutional Court.

Key headnotes

Military Courts — General Court Martial — Jurisdiction — Meaning of 'service offence'
For an offence under an Act other than the UPDF Act to fall within the jurisdiction of the General Court Martial as a service offence, it must have been committed by a person while subject to military law; absent an allegation or proof of that link, the offence is not a service offence and the Court Martial has no jurisdiction.
Jurisdiction — Terrorism — Exclusive jurisdiction of the High Court
By section 6 of the Anti-Terrorism Act, the offence of terrorism and any other offence punishable by more than ten years imprisonment under that Act are triable only by the High Court, to the exclusion of any other court.
Jurisdiction — Trial by incompetent court — Nullity ab initio
A trial conducted by a court that lacks jurisdiction is by that fact alone a nullity ab initio; there can be no trial at all where the court is not competent.
Fair hearing — Double jeopardy — Article 28(9) — Concurrent proceedings on same facts
The protection in Article 28(9) of the Constitution against being tried for an offence of which one has been convicted or acquitted is an aspect of the right to a fair hearing and must be given an interpretation realising the full benefit of the right; concurrent criminal proceedings in separate courts on charges arising from the same facts offend the principle against double jeopardy.
Precedent — Stare decisis — Power of an appellate panel to depart from its own decisions
Under the doctrine of stare decisis a court is bound to adhere to its previous decision save where that decision is distinguishable, was overruled by a higher court, or was reached per incuriam; one panel of an appellate court cannot, by a bare majority and absent such circumstances, overturn a precedent set by another panel of the same court.
Court structure — Status of the General Court Martial relative to the High Court
Following the Supreme Court's decision in Attorney General v Joseph Tumushabe, the General Court Martial is a court subordinate to the High Court and not equivalent to it; a contrary Constitutional Court holding cannot be sustained.

Legislation cited (29)

  • Constitution of Uganda Article 137
  • Constitution of Uganda Article 22(1)
  • Constitution of Uganda Article 23(1)
  • Constitution of Uganda Article 23(6)
  • Constitution of Uganda Article 28(1)
  • Constitution of Uganda Article 28(9)
  • Constitution of Uganda Article 44(c)
  • Constitution of Uganda Article 120(1)
  • Constitution of Uganda Article 120(3)
  • Constitution of Uganda Article 126(1)
  • Constitution of Uganda Article 128(1)
  • Constitution of Uganda Article 128(2)
  • Constitution of Uganda Article 128(3)
  • Constitution of Uganda Article 139(1)
  • Constitution of Uganda Article 139(2)
  • Constitution of Uganda Article 210
  • UPDF Act s.2
  • UPDF Act s.119(1)(g)
  • UPDF Act s.119(1)(h)
  • UPDF Act s.197(2)
  • UPDF Act s.204
  • UPDF Act s.216
  • Anti-Terrorism Act 2002 s.3
  • Anti-Terrorism Act 2002 s.6
  • Anti-Terrorism Act 2002 s.7(1)(b)
  • Anti-Terrorism Act 2002 s.7(2)(j)
  • Firearms Act Cap.297 s.3(1)
  • Firearms Act Cap.297 s.3(2)
  • Rules of the Supreme Court rule 93

Cases cited (2)

  • Attorney General v Joseph Tumushabe (Constitutional Appeal No. 3 of 2005)
  • Joseph Tumushabe v Attorney General (Constitutional Petition No. 6 of 2004)
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.