Wakilii

Attorney General v Kabaziguruka (Constitutional Appeal 2 of 2021)

Supreme Court · [2025] UGSC 1 · 2025 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional appeal and cross-appeal to the Supreme Court from the majority decision of the Constitutional Court in a petition brought under Article 137 of the Constitution
Decision
Appeal Partly Allowed

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment
Treatment recorded in citing cases followed 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 held that the General Court Martial is a court of law validly established by Parliament under Article 129(1)(d), not merely a disciplinary tribunal as the Constitutional Court had found. However, because the military courts are composed of active servicemen subject to the chain of command, lack legally qualified members, and have no security of tenure, they are not independent and impartial as required by Article 28(1); subjecting any person to trial before them as currently constituted is unconstitutional. The non-derogable right to a fair hearing (Articles 28 and 44(c)) binds every body exercising judicial power, including military courts and tribunals. Civilians, not being subject to military law, cannot constitutionally be tried by military courts.

Facts

The respondent, a civilian and Member of Parliament, was arrested and arraigned before the General Court Martial together with others, charged under the UPDF Act with offences relating to security (contriving a plot to overthrow the government) and treachery. He objected to the GCM's jurisdiction, contending that he was a civilian with no military connection and that the GCM was not a competent court to try him; the GCM overruled the objection. He then petitioned the Constitutional Court challenging provisions of the UPDF Act (notably ss. 2, 119(1)(g) & (h), 179 and 197) and the acts of the UPDF in arresting and detaining him as inconsistent with the Constitution. The Constitutional Court, by majority, held that the military courts are tribunals lacking independence and impartiality, that as a civilian the respondent could only be tried as an accomplice to a named principal subject to military law, that no such principal was named, and that the charges were therefore null and void; it declared s. 119(1)(h) unconstitutional and ordered his release. The Attorney General appealed; the respondent cross-appealed against the holding permitting civilians to be tried as accomplices.

Issues

  1. Whether the Courts Martial are courts established under the Constitution or are mere tribunals.
  2. Whether the Courts Martial can be, or are, independent and impartial within the meaning of Article 28(1) of the Constitution.
  3. Whether civilians can constitutionally be liable to face trial in the Courts Martial for disciplinary or service offences under Part VI of the UPDF Act.
  4. Whether civilians can constitutionally be tried in the Courts Martial for civil offences not comprised in the UPDF Act but provided for in other legislation.
  5. Whether it is constitutional for persons subject to military law to be tried in the Courts Martial for offences outside the UPDF Act.
  6. Whether it is constitutional for civilians to be tried by the Courts Martial as principals for offences under section 119(1)(h) of the UPDF Act.

Key headnotes

Constitutional Law — Military Courts — Status of the General Court Martial as a court of law
The General Court Martial is a court of law validly established by Parliament under Article 129(1)(d) of the Constitution, and not a mere disciplinary tribunal; the omission to cite Article 129 in the long title of the UPDF Act does not deprive Parliament of its power to create such a subordinate court.
Constitutional Law — Fair Hearing — Independence and impartiality of military courts under Article 28(1)
Military courts whose members are active servicemen subject to the military chain of command, who are appointed by the High Command for short fixed terms without security of tenure, and who include no legally qualified member, are not independent and impartial within the meaning of Article 28(1); subjecting any person to trial before them in their current composition is unconstitutional.
Human Rights — Fair Hearing — Non-derogability and universal application
The right to a fair hearing before an independent and impartial court or tribunal is non-derogable under Articles 28 and 44(c) and applies to every body exercising judicial power, including military courts and tribunals; a person does not forfeit this right by joining the army.
Constitutional Law — Military Courts — Exercise of judicial power by tribunals and power to restrict liberty
Under Articles 23, 126(1) and 129(1) only courts established under the Constitution may interfere with personal liberty through custodial sentences or detention; Unit Disciplinary Committees and Summary Trial Authorities, being tribunals not established as courts, exercise such judicial power without lawful authority and unconstitutionally.
Constitutional Law — Challenge to court structure — No need to prove actual bias
An individual challenging the independence and impartiality of a tribunal need not prove an actual lack of independence in the particular proceedings; it suffices that, viewed objectively by a fair-minded and informed observer, the structure of the court fails to guarantee independence and impartiality.
Statutory Interpretation — Constitutional interpretation — Governing principles
In determining constitutionality, the purpose and effect of legislation must be considered, the Constitution must be read as a harmonious and exhaustive whole, fundamental rights are accorded a dynamic and liberal construction, and regard is had to the country's history and to international treaty obligations to which Uganda is a party.
Criminal Law & Procedure — Jurisdiction of military courts over civilians
Civilians are not subject to military law and cannot constitutionally be tried by the Courts Martial; military justice is designed for the discipline of persons subject to military law and the extension of its jurisdiction over civilians offends the right to a fair hearing.

Legislation cited (31)

  • Constitution of Uganda 1995 art.2(2)
  • Constitution of Uganda 1995 art.8A
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.23
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.28(12)
  • Constitution of Uganda 1995 art.44(c)
  • Constitution of Uganda 1995 art.120(3)(b)
  • Constitution of Uganda 1995 art.126(1)
  • Constitution of Uganda 1995 art.128(1)
  • Constitution of Uganda 1995 art.129(1)(d)
  • Constitution of Uganda 1995 art.137(1) & (3)
  • Constitution of Uganda 1995 art.209
  • Constitution of Uganda 1995 art.210
  • Constitution of Uganda 1995 art.221
  • Constitution of Uganda 1995 art.257
  • Constitution of Uganda 1995 art.259
  • Constitution of Uganda 1995 art.260
  • Constitution of Uganda 1995 art.287
  • UPDF Act 2005 (Cap 330) s.2 (now s.1)
  • UPDF Act 2005 (Cap 330) s.119(1)(g) (now s.117(g))
  • UPDF Act 2005 (Cap 330) s.119(1)(h) (now s.117(h))
  • UPDF Act 2005 (Cap 330) s.179 (now s.177)
  • UPDF Act 2005 (Cap 330) s.197 (now s.195)
  • Labour Disputes (Arbitration and Settlement) Act 8 of 2006
  • Oaths Act Cap 19
  • International Covenant on Civil and Political Rights art.14
  • Universal Declaration of Human Rights art.10
  • African Charter on Human and Peoples' Rights art.7
  • African Charter on Human and Peoples' Rights art.26

Cases cited (33)

  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Attorney General v Tumushabe (Constitutional Appeal No. 3 of 2005)
  • Attorney General v Tumushabe (Constitutional Petition No. 18 of 2005)
  • Rtd. Capt. Amon Byarugaba & 169 Others v Attorney General (Constitutional Petition No. 44 of 2015)
  • Namugerwa Hadijja v The DPP & Attorney General (Civil Appeal No. 4 of 2012)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Human Rights Network Uganda & 4 Others v Attorney General (Constitutional Petition No. 56 of 2013)
  • Uganda Law Society & Jackson Karugaba v Attorney General (Constitutional Petition No. 2 of 2002 & 8 of 2002)
  • Asaph Ruhinda Ntegye & Another v Attorney General (Constitutional Petition No. 33 of 2016)
  • 2nd Lt. Ogwang Ambrose v Attorney General (Criminal Appeal No. 107 of 2013)
  • 2nd Lt. Ogwang Ambrose v Uganda (Criminal Appeal No. 48 of 2021)
  • Sgt Paul Kalemera v Attorney General (Criminal Appeal No. 18 of 1994)
  • Pte Muhumuza Zepha v Uganda (Criminal Appeal No. 31 of 2016)
  • Eruaga Moses v Uganda (Criminal Appeal No. 0530 of 2014)
  • Rtd. Dr. Col. Kiiza Besigye v Y. K. Museveni (Presidential Election Petition No. 2 of 2006)
  • P. K. Ssemwogerere & Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Okello John Livingstone & 6 Others v Attorney General & Another (Constitutional Petition No. 1 of 2005)
  • Attorney General v Major David Tinyefunza (Constitutional Appeal No. 1 of 1997)
  • In Re Application for Recusal of Hon. Justice Owiny-Dollo CJ (Miscellaneous Application No. 3 of 2021)
  • R v Spear [2002] UKHL 31
  • R (Smith) v Secretary of State for Defence [2010] UKSC 29
  • Engel v Netherlands (1976) 1 EHRR 647
  • Morris v United Kingdom (2002) 34 EHRR 1253
  • Findlay v United Kingdom (1997) 24 EHRR 221
  • R v Genereux (1992) 88 DLR (4th) 110
  • MacKay v The Queen [1980] 2 SCR 370
  • Mustafa v Bulgaria (Application No. 1230/17)
  • Reid v Covert 354 U.S. 1 (1957)
  • President of the RSA v South African Rugby Football Union 1999 (4) SA 147 (CC)
  • Marcel Wetsh'okonda Koso & Others v DRC (2008) AHRLR 93 (ACHPR 2008)
  • Law Office of Ghazi Suleiman v Sudan (2003) AHRLR 134 (ACHPR 2003)
  • Constitutional Rights Project (Lekwot) v Nigeria (2000) AHRLR 183 (ACHPR 1995)
  • Porter v Magill [2001] UKHL 67
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.