Wakilii

Oola Odiya v Attorney General (MISC. CAUSE NO. 26 OF 2017)

High Court · [2017] UGHCCD 104 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Constitutional application for enforcement of fundamental rights under article 50(1) of the Constitution, challenging the jurisdiction of the UPDF tribunals to try a civilian applicant
Decision
Applicant ordered released from custody immediately; prosecution restrained from continuing on the defective charge sheet

Observed later treatment

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Holding

The High Court held that a charge sheet against a civilian in the General Court Martial must disclose on its face that the civilian aided or abetted a person subject to military law as required by section 119(1)(g) of the UPDF Act. Where the charge describes the civilian applicant as a person subject to military law and charges him with unidentified 'others at large' without naming a principal military offender, the charge is defective and the GCM lacks jurisdiction. The applicant's right to be tried by a court of competent jurisdiction under article 28(1) of the Constitution was violated. A permanent injunction was issued restraining further prosecution on the impugned charge sheet, and the applicant was ordered released.

Outcome

Applicant ordered released from custody immediately; prosecution restrained from continuing on the defective charge sheet

Facts

The applicant, a civilian, was charged in the Chief Magistrate's Court Gulu on 15 June 2016 with criminal offences. On 12 January 2017, a nolle prosequi was entered and he was discharged. Immediately after discharge, he was re-arrested and charged before the UPDF Unit Disciplinary Committee with treachery contrary to section 129(a) of the UPDF Act and murder contrary to sections 188 and 189 of the Penal Code Act. The charges were to be tried in the General Court Martial. The applicant maintained that he was not a UPDF soldier and had never aided or abetted any soldier in the commission of any offence, and therefore was not subject to military law. The charge sheet described the applicant as a person subject to military law and charged him with four others and 'others still at large', but did not identify any named principal military offender whom the applicant allegedly aided or abetted.

Issues

  1. Whether article 28(1) of the Constitution was violated by the proposed trial of the applicant, a civilian, in a military tribunal.
  2. Whether the General Court Martial had jurisdiction to try the applicant.
  3. Whether the charge sheet disclosed sufficient particulars to bring the applicant within the jurisdiction of the General Court Martial under section 119(1)(g) of the UPDF Act.

Orders

  • The applicant's right to be tried by a court of competent jurisdiction was violated.
  • The General Court Martial had no jurisdiction to try the applicant based on a charge sheet that did not disclose the requirement under section 119(1)(g) of the UPDF Act.
  • A permanent injunction shall issue restraining the respondent, its agents, servants and all those acting on behalf of the respondent from continuing the prosecution of the applicant on the impugned charge sheet or on the particulars disclosed in that charge sheet.
  • The applicant shall be released from custody immediately.
  • Each party to bear its own costs.

Rules and key headnotes

Constitutional Law — Fundamental Rights — Right to Fair Trial — Article 28(1) of the Constitution — Requirement of Trial by Competent Tribunal
Article 28(1) of the Constitution commands that in the determination of any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. Where a tribunal lacks jurisdiction to try an accused person, proceeding with the trial violates the accused's constitutional right to be tried by a competent court or tribunal.
Constitutional Law — Jurisdiction — High Court Jurisdiction under Article 50(1) — Enforcement of Constitutional Rights — Concurrent Jurisdiction with General Court Martial
Although the General Court Martial is equivalent to the High Court with concurrent jurisdiction and neither is subordinate nor superior to the other, article 50 of the Constitution confers on the High Court jurisdiction to enforce violations of the Constitution. An application brought under article 50 to enforce a right to a fair trial by a court of competent jurisdiction is properly before the High Court.
Criminal Law & Procedure — Military Tribunals — Jurisdiction of General Court Martial over Civilians — Section 119(1)(g) of the UPDF Act — Requirement to Aid or Abet Person Subject to Military Law
The General Court Martial has jurisdiction to try civilians charged with service offences under the UPDF Act. However, a civilian is subject to military law under section 119(1)(g) of the UPDF Act only where that person aids or abets a person subject to military law in the commission of a service offence. Persons subject to military law are described in section 119(1)(a) to (c) as officers and militants of regular forces, reserve forces, or persons attached or seconded to the defence forces.
Criminal Law & Procedure — Charge Sheets — Defects in Charge Sheets — Requirement to Disclose Jurisdiction on the Face of the Charge — Civilians Tried in General Court Martial
Jurisdiction is a matter of law and not evidence. Where a civilian is charged in the General Court Martial, the charge sheet must on the face of it disclose that the GCM has jurisdiction to try the civilian. Where the prosecutor relies on section 119(1)(g) of the UPDF Act, particulars of the acts complained of must be stated in the charge sheet, and where there is no principal military offender identified whom the civilian allegedly aided or abetted, the charge sheet is defective and the GCM lacks jurisdiction.
Criminal Law & Procedure — Charge Sheets — Aiding and Abetting — Distinction from Principal Offence — Section 119(1)(g) of the UPDF Act
There is a difference between aiding and abetting an offence on the one hand and committing the actual offence as a principal on the other hand. For the General Court Martial to try a charge of murder or other civil offence against a civilian under section 119(1)(g) of the UPDF Act, the civilian must have aided and abetted a person subject to military law in the commission of the same. Where the particulars disclose the civilian as a principal offender and not an accessory before or after the act, and do not disclose a common intention with military offenders, the GCM is precluded from trying the civilian.
Criminal Law & Procedure — Defective Charge Sheets — Description of Accused — 'Others at Large' — Insufficient Particulars
Where a charge sheet describes a civilian accused as a person subject to military law when in fact the accused is a person not otherwise subject to military law, and where the charge alleges commission of an offence with 'others still at large' without identifying any named principal military offender, the charge sheet does not disclose the nexus required by section 119(1)(g) of the UPDF Act and is defective. It is not sufficient to simply allude to 'others at large' without naming a person subject to military law whom the civilian allegedly aided or abetted.
Human Rights — Right to Liberty — Unlawful Detention — Damages for Constitutional Violation
Where an applicant has been unlawfully deprived of his right to liberty following a defective charge and detention under military law without jurisdiction, the applicant is entitled to general damages for the infringement of his right to liberty and right to a fair trial. An award of UGX 10,000,000 may be adequate compensation for such wrong.

Legislation cited (11)

Cases cited (3)

  • Uganda Law Society v Attorney General (Constitutional Petition No. 18 of 2005)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2016)
  • Hon. Kabaziburuka v Attorney General (Misc. Cause No. 135 of 2016)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Oola Odiya Vs Attorney General (MISC. CAUSE NO. 26 OF 2017) [2017] UGHCCD 104 (13 April 2017)
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.