Attorney General v Kabaziguruka (Constitutional Appeal 2 of 2021) [2025] UGSC 1 (31 January 2025)

1 THE REPUBLIC OF UGANDA 5 IN THE SUPREME COURT OF UGANDA AT KAMPALA CORAM: OWINY - DOLLO, CJ; MWONDHA; TUHAISE; CHIBITA; MUSOKE ; BAMUGEMEREIRWE; MUGENYI ; JJ . S . C C ONSTITUTIONAL APPEAL NO. 02 OF 2021 (Arising from Constitutional Petition No. 45 of 2016 ) 10 ATTORNEY GENERAL ………………..… … ………… APPELLANT/ CROSS RESPONDENT VERSUS HON. MICHEAL A . KABAZIGURUKA …… ……….. RESPONDENT / CROSS APPELLANT 15 [ Appeal from the decision of the Constitutional Court (Kakuru, Obura, Kasule JJ.A; and Madrama, Musota JJ.A. dissenting) at Kampala dated 1 st July 2021 in Constitutional Petition No. 45 of 2016 . ] JUDGEMENT OF OWINY – DOLLO, CJ. 20 Introduction This appeal arises out of a petition instituted under Article 137 (1) & ( 3) in the Constitutional Court . In essence, the appeal and cross appeal are against the ma jority decision of the learned J ustices of the Constitutional Court regarding the competence of the military C ourts , their ability to render a fair 25 hearing , offences triable in military C ourts , and persons subject to the jurisdiction of the military Courts in Uganda . Background When he filed Constitution Petition No. 45 of 2016 in the Constitutional Court , t he Respondent was a civilian and Member of Parliament representing 30 the people of Nakawa Municipality, K ampala C apital City Authority (KCCA) in the 10 th Parliament , and shadow Minister for KCCA . He filed the petition 2 against the backdrop of events following his arrest , whereupon he was 5 arraigned before the General Court Martial (GCM) , and charged , along with others , with offences under the Uganda People’s Defence Force ( U PD F ) Act ; to wit, offences relati ng to security c ontrary to section 130 (1) (f) with the particulars thereof being that he contrived a plot with others to ove rthrow the government of Uganda , and Treachery contrary to section 129 (a) with the 10 particulars thereof being that he i nfiltrate d the UPDF or was an agent of a foreign power o r any force engaging in war or war - like activities against the government of Uganda . He objected to his trial in the GCM , contend ing that he was not subject to military law as he had no military connection and that the GCM was not a competent Court under the Co nstitution to try any of the 15 offences with which he was charg ed ; but, the GCM overruled his objection . He filed the petition in the Constitutional Court challenging the provisions of the UPDF Act No. 7 of 2005 , which he singled out in the petition , and acts of the UPDF of arresting, detaining and remanding him to prison in relation to the charges against him , as being inconsistent with the Constitution . The 20 proceedings in the GCM against the R espondent were stayed by an order of the Constitutional Court . In essence h e alleged in the petition that: (i) Section 197 of the UPDF Ac t 2005 is inconsistent with Arti cles 28 (1), 126 (1), 129 (1 ) and 257 (1) (d) of the Constitution to the extent that it purports to create a C ourt of law without c onstitutional authority . 25 (ii) Th e General Court Martial and other military C ourts established under Part VIII of the UPDF Act are not C ou rts of law within the meaning of Art 126 (1), 1 29(1), 210 and 257 of the Constitution of the Republic of Uganda. 3 (iii) Sections 2 , 179 and 119 ( 1) (g) & (h) of the UPDF Act are inconsistent 5 with and in contravention of the Constitution of the Republic of Uganda to the extent they define a service offence to mean any offence under the laws of Uganda , and conferring jurisdiction unto the C ourt M artial to try any offence including both capital and non - disciplinary offences , and jurisdiction over every person. 10 (iv) Th e act of arraigning and/ or chargin g the R espondent before the GCM holden at Makindye i s inconsistent with and in contravention of his rights of a fair hearing under Arts 28 (1) of the C onstitution of the Republic of Uganda. He prayed for a permanent injunction to restrain the A ppellant from 15 continuing those proceedings. The Constitutional Court, partly allowed the appeal in its major ity decision where it inter alia held that as a civilian, the R espondent wa s not subject to military law ; and could only be lawfully tried by a military Court if he w ere charged under s. 119 (1) (g) of the UPDF Act as an accomplice to a principal who wa s subject to military law , and the 20 principal was so named in the charge sheet . There being no principal named in the charge sheet, the Court held that the charges brought against him were null and void ; and of no effect. The Court also declared section 119 (1) (h) of the Act, which allowed military C ourts to try persons for offences provided for under other laws outside the scope of the UPDF Act , unconstitutional. 25 According to the Court, Parliament never intended that the UPDF Act should be an Act of general application sinc e it is a statute of special and limited application . Hence , the unlimited and original jurisdiction of the GCM , referred to in the UPDF Act , only appl y to offences under that Ac t. Last , t he 4 Court examined the nature of the military C ourts and hel d that , first, Military 5 Courts lack all the tenets of an ordinary Court established under C hapter 8 of the Constitution ; particularly under Art . 28 (1) . Second, they are tribunals; and th ird, they are not part of the Judiciary. The Court accordingly ordered that the P etitioner be released forthwith. The Appellant was dissatisfied with the decision of the Constitutional Court ; hence it appeal ed to this Court. The 10 R espondent for his part, cross appealed against the decision allowing civilians , in certain cases, to be tri ed in the Military Courts . Grounds of Appeal . The grounds of appeal are ; 1. The learned majority Justices of the Constitutional Court erred in law in finding 15 that s s . 2 and 179 of the UPDF Act are in contravention of Art icle s 28 (1) and 44 (c) of the 1995 Constitution and that the GCM is only competent to try military disciplinary offences under Part VI of the UPDF Act. 2. The learned majority Justices of the Constitutional Cour t erred in law and fact in determining that the GCM cannot be impartial or independent ; is in consistent with 20 Art 28 (1) of the 1995 Constitution of Uganda , and does not apply the principles therein to persons subject to military law. 3. The learned majority J ustices of the Constitutional Court erred in law and fact in determining that charging an d arraigning the Petitioner before the GCM was inconsistent with Art 28 (1) and 44(c) of the Constitution. 25 4. The learned majority Justices of the Constitutional Court erred in law in finding that section 119 (1) (h) of the UPDF Act is inconsistent with Art . 28 (1) and 44 (c) of the Constitution. The Appellant pr ayed that the appeal be allowe d, the decisions of th e l earned Majority Justices of the Constitutional Court cited be set aside , and the 30 A ppellant be awarded costs of the appeal. 5 The Cross appeal 5 The Respondent cross appealed on the following ground: 1. That the learned majority J ustices of the Constitutional Court erred in law in holding that a civilian can be charged before Military C ourts as an accomplice together with a person subject to military law. He thus prayed that the cross appeal be allowed , and part of the decision of 10 the majority J ustices that he has impugned be set aside or reversed. Representation At the hearing of the Appeal on 30 th September 2021 , the A ppellant was represented by Kirwoowa Kiwanuka the Attorney General appearing with Mr. Martin Mwambusya, Director L itigation; Mr Phillip Mwaka , Ag. Commissioner , 15 Directorate of Civil Litigation ; Mr Richard Adrole, Principal Sate A ttorney; Mr. Brian Musota, State Attorney ; and Mr. Franklin Uwizera, State Attorney . The Respondent was represented by Counsel Caleb Alaka, Hon. Medard Ssegona and Mr. Jonathan Elotu. Counsel on each side had earlier on filed written submissions . B oth sides made oral clarifications in Court o n their 20 submissions . The matter came up for rehearing upon reconstitution of the panel , on 13 th May 2024. Counsel Medard Lubega Segona represented the Respondent; while George Kalemera, Geoffrey Madette and Brian Musota appeared for the Appellant. Neither side had any new submissions. However, Counsel for the 25 R espondent urged the Court to also consi der a recent Constitutional Court decision in Rtd. Cpt. Amon Byarugaba & 169 Ors v A.G - Const . Pet . No. 44 of 2015 as relevant . 6 Submissions of the parties . 5 Ground 1. The learned majority Justices of the Constitutional Court erred in law in finding that s s . 2 and 179 of the UPDF Act are in contravention of Art . 28 (1) and 44 (c) of the 1995 Constitution , and the GCM is only competent to try military disciplinary offences under Part VI of the UPDF Act. 10 The impugned sections incorporate all offences under oth er enactments within the jurisdiction of the GCM. Under this ground, Counsel for the A ppellant challenged the Constitutional Court’s find ing that the GCM and military C ourts in general are not C ourts under the C onstitution ; but are tribunals with a limited jurisdiction , and only competent to try military 15 offences rather than ordinary civil offences provided for in other enactments. Counsel submitted that , in enacting s. 2 and s. 179 of the UPDF Act 2005 , Parliament acted within its Constitutional mandate in Art . 210 to legislate on matters of regulation of the UPDF including discipline and removal from the UPDF. He argued that this mandate extended to legislation on related matters 20 such as creating the Courts Martial as C ourts of law to imbue discipline in the army ; delineate the scope and operation of the Courts Martial ; and to enforce the law . Regard ing the wide jurisdiction of the GCM over civil offences and capital offences in particular, Counsel argued that the GCM was already deemed 25 competent to handle offences under the Part VI of the UPDF Act , which attract the death sentence. He also additionally submitted that Parliament was alive to the reality that soldiers in the battle field are fallible to other offences not expressly listed in the UP DF Act , but are covered under other enactments , 7 such as rape or murder under the Penal Code Act ; and c ited the need to 5 quickly and firmly deal with the soldiers to maintain discipline . Counsel submitted that the Constitutional Court created an absurdity whereby UPDF soldiers who commit such offences during military expeditions outside Uganda cannot be tried by the GCM or civilian Courts which would have no territorial jurisdiction to hear these matters. He argued that it wa s not 10 necessary for Parliament to re - enact all offences into the UPDF Act s.2 and s. 179 were sufficient . On the other hand, Counsel for the Respondent/Cross A ppellant submitted that the learned Majority J ustices were right in finding that s s . 2 and 179 are unconstitutional. He argued that a service offence under s. 2 is wide and 15 limitless to include all offences to which a person is chargeable under civil statutes that have nothing to do with the military ; therefore, affording the UPDF to usurp the powers of the Judiciary and become a jack of all trades. He argued that the UPDF Act is not an Act of general application , but one of special and limited application; and the power of Parliament in regulating the 20 UPDF was to regulate the UPDF only within the four corners of Art 210 of the Constitution . This excludes the general adjudicat ory function and the corresponding wide jurisdiction over all offences , bestowed o n the Judiciary under Art . 126. According to him, Parliament also oversteppe d its legislative mandate 25 granted by Article 79 of the Constitution for good governance because even the power to legislate on ‘related matters’, that appears in the long title to the UPDF Act, cannot be read to include the mandate of the Judiciary of adju dication and administration of justice provided for i n Chapter 8 of the 8 Constitution; b u t falls outside the scope of Art 210. He opined that conferring 5 that jurisdiction on the military Courts, had the effect of amending the C onstitution without following the due procedure for so doing under Art 259. He also submitted that Chapter 12 and in particular, Art 210 (a) - (d) only relates to the functioning of the UPDF and what the UPDF does outside that generic string such as the exercise of the overly wide jurisdiction over subject 10 matter outside is ultra vires . In this line of argument, he further argued that the impugned sections 2 and 179 of the UPDF Act illegally confer criminal jurisdiction upon C ourts M artial instead of limi ting jurisdiction only to jurisdiction over disciplinary offences ; yet military law concerns military discipline and other rules governing the armed forces. 15 In rejoinder, Counsel for t he Appellant submitted that the rule of harmony and exhaustiveness should be kept in mind while interpreting the provisions of the Constitution , and that the C onstitution must be read as a whole with no particular provision destroying the other. He argued that Art 209 only broadly sets out the functions of the UPDF; and t hat all laws made under Art 20 210 must be made with the sole purpose of ensuring each of these functions in Art 209 are fully realized. In that light, the provisions of Art 210 only serve to particularize what the laws should expressly include but are not ex haustive. Thus, Parliament used this power to legislate on what amounts to service offences and the jurisdiction of military C ourts in the UPDF in order 25 to ensure that all related matters required for the proper functi oning of the UPDF are covered. Ground 2: The learned majority Justices of the Constitutional Court erred in law and fact in determining that the GCM cannot be impartial or independent; is inconsistent with Art 28(1) of the 1995 Constitution 30 9 of Uganda, and does not apply the principles therein to persons 5 subject to military law. Counsel submitted that the majority J ustices erred in finding that the GCM is neither independent nor impartial and therefore its existence is in contravention of Art 28(1) of the Constitution. He submitted that jurisdiction is a creature of statute and the GCM, as established under Art 210 (b) of the 10 Constitution and s. 197 of the UPDF Act, is an independent and impartial C ourt. He defined “i mpartial and independent ” as meaning “ even hea ded and not subject to the control of the appointer ” . For this, he referred to Petition No. 13 of 2014 consolidat ed with P etition No. 36 of 2014 Robinson Malombo T /A O.M Robinson & Co Advocates v s The Disciplinary Tribunal of the Law Society of Kenya & A.G . He also 15 cited RDS vs Her Majesty the Queen [1997] 3 S.C.R 484 to 548 at p 486 for the assertion that impartiality is a state of mind in which th e adjudicator is disinterested in the outcome and is open to persuasion by evidence and submissions . By analogy, Counsel submitte d that s ince, t he UPDF is enjoined under Art 221 to observe and respect human rights and freedoms in the performance of 20 their functions , it can be concluded that, even though it is composed of military officers, the GCM is also mandated to do the same as regards the principles that pertain to a C ourt of law including the right to a fair hearing . H e referred to Commander Lesotho Defence & 4 others vs Second Lieutenant Setho Maluke C of A (CIV) No. 30/2014 CIV/APN/83/2014. He submitted that the finding 25 o f the majority of the Justices of the Constitutional Court that the GCM is no t independent or impartial is a n absurdity because it presupposes those military personnel do not enjoy fundamental rights and freedoms enshrined in the Constitution. Further, e ven though t he P etitioner’s affidavit showed 10 that he object ed to the GCM’s competence to try him when he was arraigned 5 before it , it did not suggest that the GCM did not act a s an impartial and independent C ourt . This makes the Constitutional Court’s find i ng in this regard, specul ative, and as such, it arrived a t the wrong decision. Counsel also subm itted that independence of the C ourt cannot be premised on the structure and constitution or appointment of the members of the C ourt 10 because regardless of that , under Art 221, they are required to observe fundamental rights and freedoms. He empha sized that what should be considered is not who the appointing authority is , but whether the members of the GCM and the Chairman ar e under the influence of the A ppointing A uthority during their deliberations , before they reach a verdict . He asserted 15 that t here was no evidence on record that the appointing authority has power to get involved in the judi cial function of the Court Mar tial (see 2 nd Lt. Rantso Josias S ekoati & 48 others v s the President of the Court Martial (Lt. Col. G.P Lekhanyaye) & 2 others CIV/APN/82/99 . Counsel also argued that members of the Courts Martial take the o aths and 20 affirmations for Members and Chairman of the Court under the 6 th Schedule to the UP DF Act (Rules of Procedure) . Lastly, Counsel pointed out the fact that in the past, in the exercise of their appellate jurisdiction , Courts of Judicature have appraised and considered the evidence and the process of the trial before the G CM and upheld decisions of the GCM leading to the conclusion 25 that it is an impartial Court under Art 28(1) . He referred to RA/LFK016PTE Eruaga Moses v Uganda Criminal Appeal No. 0530 of 2014 . In reply to the submissions of C ounsel for the A ppellant on the ground that the ‘ Court erred in holding that the GCM cannot be independent and impartial 11 in line with Art 28 (1) and neither does it apply the principles therein to persons 5 subject to military law , ’ Counsel for the R espondent disagreed that the Constitutional Court made such holding and as such the ground as phrased misrepresents the majority holding of the justices. He maintained that the gist of the holding was that the GCM as established under s. 197 of the Act is a ‘competent Court’ with in the meaning of Art . 28 (1) and 210 , but only for 10 purposes of disciplinary offences under Part VI of the UPDF Act and no t for criminal trials generally. T his stems from their military and command structure as well as the oath taken by military officers. However, i t was his submission that courts martial are not even competent to try military officers with offences not of a military nature. He referred to 15 Professional Training Series No. 9 Human Rights in the Administration of Justice: A Manual on Human R ights for Judges, Prosecutors and Lawyers. Counsel agreed with the majority J ustices of the Constitutional Court and explained that Article 28 has two limbs : first is competence as established by law, and second, impartiality and independence. Regarding th e first, the Courts Martial are not 20 envisaged under Art 126 and generally Chapter 8 , and are thus tribunals for disciplinary purposes. He argued that there is no plausible reason to create a parallel C ourt outside the C ourt system in the Constitutional fra mework that clearly provides for the Courts of record and subordinate C ourts. He argued that it is by design that the Executive powers are reserved for the Executive 25 while hearing is for the Judiciary; and this helps to avoid anarchy. He submitted that al lowing the army to take over judicial work is a vote of no confidence in the judicial arm ; yet there is no parallel legislature or p arallel Executive within our Constitutional framework as it stands. He referred to 12 Ambrose Ogwang (supra) , and ULS V A.G SC Const. Appeal No 1 of 2006 (supra). As 5 regards the second limb, Counsel elucidated on the importance of the requirement of independence and impartiality under Art 28 (1) for both C ourts of law and tribunals as an integral part of a fair hearing. Counsel re asoned that C ourts martial fall short of this because: (i) the command structure of the UPDF as an army and component of the Executive arm cannot 10 guarantee the rights associated with the two tenets of indep endence and impartiality; (ii) the command structu re is both military and political as , for instance , the panel even includes a political commissar provided for under s. 197 (1) (d) of the UPDF Act; and whose job is political education and organization, and loyalty to the Government; (iii) it constitutes a violation of 15 the principle of separation of powers; and (iv) the absence of competent specialized officers. Arguing in essence that the military C ourts are unfair even to persons subject to military law, counsel challenged the notion of ‘ voluntary assum ption of risk’ by persons subject to military law on the basis that a person can only 20 assume the discipline but not the illegality and unfairness as the same is not envisaged and can never be condoned. Counsel also further submitted that the powers of the Court Martial are an interference with the office of the Director of Public Prosecutions (DPP) operations. He reasoned that interference with the DPP’s office destroys the root of our democracy and 25 offends the right to fair hearing w hic h does not begin with C ourt ; but with the decision making process on whether , and how , to prosecute a person . He explained that the C onstitution is by design intended to achieve a particular purpose to avoid abuse , and promote or derliness; and the DPP is an independent body specialized body, acting as a sieve for penal prosecutions, 30 13 intended to take professional and fair decisions before arraignment ; unlike 5 the military which is subject to direction. In rejoinder, a s for the firs t limb of competence under Art 28 (1) , Counsel submitted that the argument that the Courts Martial are not envisaged under Art 126 of the Constitution is without merit because in A.G . v Uganda Law Society – S . C . Const . Pet . No. 1 of 2006 , this Court held that the Gener al Court Martial is a 10 competent subordinate C ourt under A rt 129 (d) of the Constitution ; hence, it is comparable to the Industrial Court (see : Asaph Ruhinda Ntegye & Ano r v A.G. Const . Pet . No. 33 of 2016 ) . Second, Counsel submitted that Courts martial are capable of being fair and impartial because; (i) they are bound under Art 221 of the Constitution to respect human rights and freedoms of all persons 15 including those of civilians who appear before them; (ii) as evidence that they are cap able of respecting the rights to a fair hearing, their past decisions have been upheld by the Courts of Judicature on appeal; (iii) its members take an oath to serve in their different capacities and are bound by the Constitution; and (iv) in terms of qual ifications, some of the members of the Courts martial, 20 like the prosecutor and advocate are specialized legal officers. Ground 3 . The learned majority Justices of the Constitutional Court erred in law and fact in determining that charging and arraigning t he Petitioner before the GCM was inconsistent with Art 28 (1) and 44 (c) of the Constitution. 25 This ground related to the status of the R espondent as a civilian appearing before a military C ourt for offences in the UPDF Act . Counsel argued that , as regards Arts 28(1) and 44(c) , arraigning and charging the R espondent before the GCM together with other members subject to military law was in 14 pursuance of the law ; to wit a law passed by Parliament as empowered by the 5 Constitution. He referred to A.G . vs U ganda L aw S ociety S.C. C on . A ppeal No.1 of 2006 ; and Namugerwa Hadijah vs A.G (supra) for the proposition that, “ [ F ] or an offence under the Act other than the UPDF Act to be within the jurisdiction of the GCM, it must have been committed by a person subject to mi litary law . ” Counsel submitted that s. 2 of the Act clearly excludes civilians from trial in the GCM 10 except those who aid and abet a person subject to military law or civilians who voluntarily possess arms, ammunitions or equipment ordinarily the monopoly of the UPDF under s. 119 (1)(h) & (g) . He referred to S.C . C.A No. 4 of 2012 Namugerwa Hadijja Vs The DPP & A.G . To cement his argument, he submitted that this position of law is similar to 15 that of the United States, Canada, United Kingdom, Ghana and Keny a. For this, h e referred to Reid v C overt - U.S Supr eme Court 354 U.S.1 (1957) ; S.166 of the Canada Defence Forces Act; Schedule 3 of the Armed Forces Act 2006 UK; s.12 (1)(e ), (f) & (g) of the Armed Forces of Ghana; and s.55(1) Kenya Defence Forces Act N o. 25 of 2012. According to Counsel, t he respondent fell within the ambit 20 of s. 119(1) (g) the moment he was charged with 22 other persons with offences under the Act of contriving a plot to overthrow the Government of Ug anda by force of arms. In other words , not nami ng him as an accomplice in the charge sheet was not fatal or necessary for the charge against the R espondent to conform to Art 28(12). He further argued that , since the 25 offences in the charge s heet have accompanying penalties, breach of Art 28 (12) does not arise. Counsel concluded that trying serving military officers and civilians under s. 119 (1) (g) & (h) of the UPDF Act, is consistent with Art 28 (1) and 44 (c) of the Constitution because the G CM is bound to observe the 15 right to a fair hearing and other human rights under Chapter 4 of the 5 Constitution. In reply, and a greeing with the majority decision of the Constitutional Court, Counsel for the R espondent submitted that charging and arraigning the R espondent, a civilian, on a charge that did not name him as an accomplice to a disclosed principal named in the charge sheet was unconstitutional. 10 Counsel argued that indeed the charge sheet did not state that the R espondent aided or abetted any offen ce; thus the trial was inconsistent with A rticles 28 (12) and 44 (c) ; hence, the Constitutional Court was right to hold as they did. He however further raised new arguments, which were not the basis of the Constitutional Court decision - that the offence is similar to 15 treason under the Penal Code, which is triable by the High Court. He also alluded to the unfairness of the proceedings that lacked impartiality and indepen dence by pointing out that the R espondent is a political leader in t he opposition charged with a political offence of attempting to remove the government to which the ‘court’ officials are answerable. He asked this Court 20 to perform its duty of defending Constitutional individual rights threatened by congressional legislati on. He referred to Cheborion Barishaki JA’s judgment in Human Rights Network Uganda & 4 others v Attorney General Const. Petition No 56 ; and Earl Warren CJ in Trop v Dulles US (1956), cited therein . In rejoinder, Counsel for the Appellant/C ross R espondent argued that the 25 UPDF (Rules of Procedure S.I 307 - 1) already makes provision for a Court Martial to satisfy itself that a civilian as an accused person is one subject to military law and that the charge sheet/ indictment is correct. He pointed out that before taking plea, the accused is also given a right to object to the 16 charge on the ground that it is not correct in law or not properly framed in 5 accordance with the regulations, as specifically provided for under rule 25(1)(f) & (g) and rule 35 (1 ). In response to the submission on interference with the DPPS’s office, Counsel submitted that Art 120 (3)(b) specifically excludes the DPP from instituting criminal proceedings in a court martial which further highlights the competence of the GCM to ensu re that one is 10 bei ng charged in accordance with the Act. Ground 4 The learned majority Justices of the Constitutional Court erred in law in finding that section 119 (1) (h) of the UPDF Act is inconsistent with Art 28 (1) and 44 (c) of the Constitution. 15 Co unsel challenged the finding of the Constitutional Court that s. 119 (1) (h) is unconstitutional. He submitted that t he impugned s. 119 (1) ( h ) which grants the GCM jurisdiction over persons found in unlawful possession of the ammunitions, arms or equipment and other stores ordinarily in the possession of the UPDF is prescribed by Parliament and Constitutional . No 20 right to a fair hearing under Art 28(1) is contravened as i t applies only to those who voluntarily bring themselves within that provision , who then become subject to military law . He alluded to the importance of s.119 (1) (h) which can be seen from the seriousness of the charges that may arise under it by referring to Namugerwa Hadijjah v The A.G (supra) where the A ppellant ’s 25 brother was found with the ‘Black star’ pistol ordinarily a monopoly of the UPDF and remanded to Kigo prison . He also submitted that the GCM comprises persons with sufficient training, exposure and experience in military matters who are best suited to adjudicate on matters of this nature in comparison to the civil C ourts. With these submissions, Counsel for the 30 17 Appellant prayed that this Court allows the appeal and sets aside the decision 5 of the l earned Majority Justices of the Constitutional Court and award costs to the Appellant. On the other hand, Counsel for the Respondent concurred with Kasule JA’s dissenting opinion that section 119 (1) (h) is unconstitutional. According to Counsel, this provision is an entry point into the Court martial route away 10 fr om civilian courts’ jurisdiction. Alternatively, he reiterated the need for fact finding as a preliminary point , whenever a civilian is to appear before a military C ourt , to establish if the military C ourt has jurisdiction over such a person before the jurisdiction of the military C ourt is activated . According to Counsel, the finding that an accused was in possession of military stores 15 should be made by the Judiciary in a prehearing; otherwise an accused person will be found guilty by a court martial , of possession , on proof only of this first ingredient of possession. He argued that suspicion in such a case, is not enough to bestow jurisdiction and to derogate on the right to a fair hearing. In rejoinder, C ounsel for the A ppellant submitted fi rst that s. 119 (1) (h) does 20 not require a pre - hearing on a double fact - finding before the civil C ourt as submitted by Counsel f or the Appellant. He argued that the burden to establish the ingredient of the offence of whether one is subject to the UPDF Act for purposes of tr ial lies upon the prosecution. He further argued that criminal jurisdiction is a creature of statute and as the law stands, the GCM 25 assumes such jurisdiction once a person is charged with a service offence provided for under the UPDF Act . He pointed out that rule 40(1) of the Rules made under the UPDF Act mandates the accused to take plea on a charge; the accused is provided an opportunity to defend themselves in line with Art 28. 18 Lastly, he argued that the Respondent did not submit any evidence that s. 5 119 (1) (h) is inconsistent with the Constitution. The cross appeal In the cross appeal, Counsel for the R espondent / C ross A ppellant argued that a civilian cannot be tried with a person subject to military law , under the Constitution. He submitted that military discipline , not c ivilians, is the focus 10 of the UPDF Act . He pointed out first that it was intended, from the restrictive nature of article 210, that service offences should apply only to the military. This intention of Parliament is in consonance with the definition of ‘service’ in s. 2 where it is defined to mean ‘ service in the Defenc e Forces or means a component of the Defence forces enumerated in s.3 (2) including land, air any 15 other prescribed by Parliament.’ Second, the purpose and effect of legislation is relevant while interpreting the Constitution to ascertain the constitutionality of the impugned provisions. He referred to A.G v Salvatori Abuki S.C Constitutional Appeal 1 of 1998; Constitutional Petition No. 56 of 2013 Huma n Rights Network Uganda & 4 others v Attorney General. He 20 argued that in this case, the effect of s. 2 and s.179 that a civilian could be charged in a military court was not the intention of the drafters of the Constitution and Parliament. He also reiterat ed his argument on ground one and two that the UPDF Act is a restrictive Act ; and the courts martial are comparable to other professional organs established by the Prisons Act, 25 Police Act , the Dental Practitioners’ Act and the Nurses and Midwives Act to deal with only their members , and not the entire public who have not opted to be part of the organization. He prayed that the cross appeal be allowed with costs, part of the decision of the learned majority justices of the 19 Constitutional Court be set aside /reversed, and the appeal be dismissed with 5 costs. In response to the cross appeal, Counsel for the Appellant agreed with the finding of the majority justices of the Constitutional Court that s. 119 (1) (g) is consistent with the Constitution. According to him, t he Supreme Court in Namugerwa Hadijja v A.G S.C . Civ. Appeal 4 of 2012 ha d already held that a civilian 10 can be tried alongside military officers for offences under the UPDF Act if they have aided and abetted the same . It is thus o nly ci vilians who voluntarily subject themselves to the jurisdiction of the GCM in the circumstances provided in 119 (1) (g) who are subject to its jurisdiction; this can be likened to volenti non fit injuria . In comparison, he also pointed out that even the 15 Advocates Act e mpowers the Law Coun ci l to discipline any person who carries out the work of a nature normally performed by an advocate or who purports to act or pretends to be an advocate . He explained tha t th e import of s. 119 (1)(g) is because m ilitary laws are designed with special interest of national security and it is therefore possible for a civilian to commit acts which affect 20 national security ordinarily committed by persons subject to military law . He urged this Court to consider the rationale of creation of offences in the UPDF Act , which includes the secrecy and integrity of operational matters of the defense forces under p owers vested upon the UPDF by virtue of Art 209 of the Constitution; under this th e C ourts Martial are clothed with jurisdiction. 25 CONSIDERATION AND DETERMINATION OF THE APPEAL This appeal first came up for hearing in this Court in 2022. From that time, to its final disposal today, it has suffered an unprecedented affliction by a host of adversities . T here is thus, an imperative need to clarif y on what 20 transpired within that period. The grave and persistent series of events that 5 characterized the lifespan of this appeal began with fire gutting the Chambers of the Ch ief Justice on the Supreme Court building at Kololo on 27 th April , 2022 ; followed by water flooding parts of the building . This resulted in a condemnation of the Kololo Supreme Court Building as being unfit for occupation; thereby leaving the Justices of the Court with no office 10 accommodation. T hereafter two J ustices of the Court, namely Justice Paul Mugamba and Justice Ezekiel Muhanguzi, who were part of the panel for this appeal, retired . This therefore necessitat ed a reconstitution of the panel . In Nov ember 2022 , the Court was able to secure a temporary home, and more Justices were appointed to the Court. The Court th en embarked on the 15 process of reconstitution of the panel , with a view to sitting by December that year to re - hear the appeal . However , that December, we suffered the devastating demise of Justice Rubby Aweri Opio who had been on the panel for this appeal. This necessitat ed awaiting the appointment of additional Justices to this Court for the requisite reconstitution of the Coram to take 20 place. However, in only six months thereafter,y et another tragedy str uck this Court with the demise of Justice Stella Arach - Amoko in June, 2023. It was until January 2024 when two more Justices were appointed to the Supreme Court; where after, the Court wa s able to reconstitute the panel for this appeal. The appeal came up before the reconstituted panel on 13 th May, 2024 , 25 in the new Supreme Court Building at the Judiciary He adquarters; upon which the learned Justices reserved jud gment to be delivered on not ice. Notice has been served on the parties for delivery of the judgment on 31 st January , 2025 ; which is eight months from the date the appeal was reheard . 21 Th e Appellant has called upon this Court to clarify on the issue of 5 c onstit utionality of several aspects of the law regard ing military trials. While the contention s by the parties hereto gravitate around trials in the General Court Martial (hereinafter referred to as the GCM ) , the issues raised r adiate to the entir e military C ourt system. I note that the four grounds of appeal , as well as the one in the cross appeal r aise cross cutting issues; which explains 10 why some submissions by both C ounsel on a particular gr o und s transcend such grounds and extend to other grounds . All the grounds raised contain an element of counter to the challenge raised against the competence of the GCM a nd, or , its status as a Court of law . Whereas the sta nding of the GCM as a C ourt of law was not raised as a separate 15 ground in this appeal , and yet it was a separate question for determination in the Constitutional Court , upon which the C ourt rendered a decision declaring them to be tribunals , it was implicit in all the grounds of appeal that it was an issue . I n determining this appeal, theref ore , I adopt an integrated approach, where a ground may be disposed of in the course of consider ing 20 another ground. For instance , the status of the GCM as a C ourt has a bearing on the resolution of ground s 3 and 4 , which entail the determination of the issues of personal and subject matter jurisdi ction of the C ourt , respectively . In this regard , I shall deal with G round 1 of the appeal , and concentrate on whether the GCM is a C ourt of law . I will then deal with G round 2 on the 25 fairness and impartiality of the GCM; followed by G rounds 3 and the C ross A ppeal , as they concern th e personal jurisdiction of the C ourt (whether it includes trial of civilians ) . Last , I will deal with G round 4 that relate s to the 22 subject matter jurisdiction of the GCM in terms of whether persons subject 5 to military law sh ould be tried in the GCM for both civil and service offences. Rules of Constitutional interpretation . I t is necessary to first deal with the rules of Constitutional interpretation I consider relevant for the resolution of the issues raised in these grounds. These have been laid down in several deci sions of this Court , other 10 Commonwealth j urisdictions , and a s well, authoritat ive legal opini on . 1. The C onstitution is the Supreme law of the land and forms the stan dard upon which all other laws a re judged. Any law that is inconsistent with or in contravention of the Constitution is null and void to the extent of the inconsistency (see Article 2 (2 ) of the Constitution ) ; ( Also 15 see Presidential Election Petition No. 2 of the 2006 (SC) Rtd Dr. Col. Kiiza Besigye v. Y. K. Museveni ) . 2. In determining the constitutionality of a legislation, its purpose and effect must be considered . Any legislation is always animated by an object the Legislature intends to achieve. This object is realized 20 through the impact produced by operation and application of the legislation. Thus, b oth pur pose and effect are relevant in determining constitutionality ; hence, an unc onstitutional purpose or effect can invalidate legislation ( see Attorney General v. Sa lvat ori Abuki Constitutional Appeal No. 1 of 19 9 8 (SC) ; The Queen v Big Drug Mart Ltd (1996) LRC (C0nst.) 332 ) . 25 3. The rule of harmony, completeness and ex haustiveness has to be taken in to account. This rule is to the effect that the entire Constitution has to be read together as an integral whole , with no particular provision destroying the other but each sustaining the other. ( see P. K. Ssemwogere 23 and Another v. Attorney General Constitution Appeal No . 1 of 2002 (SC) , and T he 5 Attorney General of Tanzania v. Rev Christopher Mtikila (2010) EA 13 ). 4. A c onstitutional provision containing a fundamental human right is a permanent provision inte nded to apply for eternity; therefore , it should be accorded dynamic, progressive , liberal , and flexible , construc tion ; keeping i n view the ideals cherished and approved of by the people , as 10 well as their so cial, economic , and political cultu ral values so as to extend t he benefit of the same to the maximum possible; (s ee Okello Okello John Livingstone and 6 others v. The Attorney General and Another Constitutional Petition No 1 of 2005 ) , and South Dako ta v. South Carolina 192, USA 268. 1940 ) . 15 5. Where words or phrases are clear and unambiguous, they must be accorded their primary, plain , ordinary or natural meaning. The language used must be construed in its natural and ordinary sense. 6. Where the language of the Constitution or a statute sought to be interpreted is imprecise or ambiguous , a liberal, gener ous, or 20 purposeful inter pretation should be given to it; (s ee Attorney General v Major David Tinyefunza Constitutional Appeal No. I of 1997 (SC) . 7. The history of the country and the legislative histo ry of the Constitution is als o relevant and useful guide to c onstitutional i nterpretation ; (s ee : Okello John Livingstone and 6 others v. Attorney General 25 and Another - ( S upra ) . 8. The National objectives and Directive principles of S tate policy are an imperative for the interpretation of the Constitution. Article 8A of the Constitution as amended is instructive for the applicability of the se objectives. It provides thus : 30 24 (i) Uganda shall be governed based on principles of national interest 5 and common good enshrined in the national objectives and directive principles of state policy. (ii) Parliament shall make laws for purposes of giving full effect to clause ( 1) of this Article. In interpreting provisions of the Constitution, regard shall also be had to the 10 obligations under international treaties to which Uganda has acceded as a dualist S tate by virtue of ratifications ; and those that apply by virtue of Art . 287 of the Constitution , which provides: “ 287. International agreements, treaties and conventions. Where — 15 (a) any treaty, agreement or convention with any country or international organisation was made or affirmed by Uganda or the Government on or after the ninth day of October, 1962, and was still in force immediately before the coming into force of this Constitution; or 20 (b) Uganda or the Government was otherwise a party immediately before th e coming into force of this Constitution to any such treaty, agreement or convention ; the treaty, agreement or convention shall not be affected by the coming into force of this Constitution; and Uganda or the Government, as the case may be, 25 shall continue to be a party to it .” Objective XXVIII is also instructive as to the direction Uganda sho uld take in her move as a democracy. It p rovides as follows : 25 “XXVIII . Foreign policy objectives. 5 (i) The foreign policy of Uganda shall be based on the principles of — (a) promotion of the national interest of Uganda; (b) respect for international law and treaty obligations ; (c) peaceful coexistence and nonalignment; … 10 (ii) Uganda shall actively participate in international and regional organisations that stand for peace and for the well - being and progress of humanity . (iii) The State shall promote regional and pan - African cultural, economic and political cooperation and integration .” ( E mphasis added ) 15 Uganda is a party to a number of Conventions such as the Universal Declaration of Human Rights (UDHR) , International Charter on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples Rights (African Charter) and is bound to uphold their provisions as well , by virtue of Art . 287 of the Constitution. The decisions and recommendations made by 20 bodies or Commissions such as the Human Righ ts Committee and Special Rapporteurs in promoting observance of these Conventions , though not binding, a re of great relevan ce . It is worthy to note that Uganda has unique obligations under treaties she is party to within the African Union (AU) framework . Uganda is a member of the 25 African Union (AU) by virtue of its accession to the Organisation of African Unity (OAU) Charter in 1963 . By virtue of the OAU Constitutive Act, 1999, the OA U was renamed the African Union; and the Court of Justice of the AU was established. One of the most notable treaties touching on human rights 26 established under the AU is the African Charter on Human and Peoples’ Rights 5 (the Banjul or African Charter), ( Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982), E ntered into Force 21 October 1986) . T hat Charter established the African Commission to oversee its implementation . Then in 1998 , a protocol created The African Court on Human and People’s Rights that became operational in 2006, to complement the African 10 Commission by cur ing the lacun a of the absence of legally enforceable judgments. A Malaba Protocol of 2014 merged the African Court on Human and People’s Rights and the Court of Justice of the African Union into ‘ The African Court of Justice and Human Rights ’ as the forum of human rights litigation and interpretation of the OAU C harter and its other instruments. 15 T he recommendations of the African Commission are thus of immense weight; and the decisions of The African Court of Justice and Human Rights are binding on Uganda. In interpreting our Co nstitution, effect is given to its provisions; several where of are mirrored within the African Charter itself . There are also other International Conven tions with bodies created there 20 u nder ; to which Uganda is not a party , but are relevant for persuasive best practices. S uch conventions include, among others, the American Declaration of the Rights and Duties of Man ; the American Convention on Human Rights and its Inter - Amer ican Commission on Human Rights ; and the European Convention on Human Rights with its European Court of Human Rights. 25 Counsel for both parties have cited several authorities - some even conflicting - to support their res pective arguments . Such authorities include 2 nd Lt. Ogwang Ambrose v A.G Court of Appeal Criminal Appeal No. 107 of 2013 and Sgt Paul Kalemera 27 v A.G Supreme Court Criminal Appeal No. 18 of 1994 (unreported) . The source of the 5 conflict, leading to the dissent ing decisions in the Constitutional Court , is that one of these cases was an ordinary criminal appeal in the Court of Appeal where the Court was not exercising the power of interpretation under Article 137 of the Constitution to declare certain sec tions or acts unconstitutional; while the Supreme Court in the other was merely applying the substantive 10 law as it is , to the facts before it with no concern as to their constitutionality. Other relevant authorities that have since been delivered since the hearing of this appeal and upon which Counsel in this petition have had no opportunity to submit are ; Rtd . C a pt . Amon Byarugaba & 169 Ors Const. Petition No. 44 of 2015 delivered on 15 th Dec 2022 and 2 nd Lt O gwang Ambrose v Uganda SC Crim Appeal No. 48 of 2021 delivered 15 on 11 th Dec 2024 . The appeals to this Court in these cases, if any, have not yet been disposed of in this Court. The latter was still an ordinary appeal . It is in the former that the Constitutional Court considered and declared itself explicitly , albeit on only two of the issues a rising in this appeal. These are; the jurisdiction of the military courts under s. 119 (1) g & (h) of the UPDF Act 20 to try civilians ; and violation of Art 28 (1) of the Constitution by the absenc e of fair trial minimum guarantees. Since the appeal in the current petition has a wide r purview, its determination has a direct bearing on all these cases. It thus falls on this Court to ensure certainty in the application of the law; by clearly spell ing out the p rinciples that should guide on how to structure 25 and/or handle matters co ncerning discipline in the UPDF . This will ensure that the provisions of Art . 209 of the Constitution are given effect to, without affecting other provisions of the Constitut ion. It will also ensure the enforcement of the provisions of Chapter 4 of the Constitution. 28 I note that the ap peal turns on four broad issues. First, is wheth er military 5 courts are ‘court s ’ or ‘ tribunal s ’ . Second, is subject matter jurisdiction, hence, what offences are triable in military C ourt s. Third, is personal jurisdiction; thus who can be charged before military courts. Fourth is whether military C ourts are fair and impartial. With regard to the first three issues , the majority Justi ces of the Con stitutional Court bas ed their analysis of the 10 nature of military C ourts vis - à - vis the ordinary or civil C ourts provided for i n Chapter 8 of the Constitution. Th ey h e ld that military Courts are mere tribunals; and also held - which is the basis of ground 2, that military C ourts are not clothed with the requisite competence, independence, and impartial ity provided for under Art 28(1) of the Constitution, to handle 15 criminal cases under s s . 2, 179 , and 119 (1) (h) of the UPDF Act . They also relied on a restricted interpretation of Art 210 in holding that the creation of the military C ourts with power to try, not just military offences dealing with military discipline, but even civil offences under other enactments for both civilians and persons subject to military law is 20 unconstitutional. In essence, the majority Justices of the Constitutional Court held that the persons who are liable for trial in courts Martial , are only those who are subject to military law owing to their having s ubmitted themselves to the jurisdiction of the Court by virtue of the oath they have taken in that regard. However, even then, such liability is strictly only for disciplinary 25 offences provided for under part VI of the UPDF Act. The s pecific issue s for thi s Court to resolve , arising out of the Constitutional Court decision , the grounds of appeal , and cross appeal are: 29 1. Whether the Courts Martial are C ourts established under the Con stitution 5 or are mere tribunals. 2. Whether the Courts Martial can be/or are inde pendent and impartial within the meaning of Art 28 (1) of the Constitution. 3. Whether civilians can legally (i.e. without offending the Constitution), be liable to face tri al in the Courts Martial for disciplinary offences 10 (hereinafter called military, disciplinary or service offences), stipulated in Part VI of the UPDF Act . 4. Whether civilians can constitutionally or legally be tried in the Courts Martial for civil offences not comprised in P art VI of the UPDF Act ; but are in stead provided for in other legislations . 15 5. Whether it is constitutional for person s subject to military law to be tried in the Courts Martial, for offences outside the UPDF Act (herein after called civil offences) . 6. Whether it is constitutional for civi lians to be tried by the Courts M artial as principals for offences under s. 119 (1) (h) of the UPDF Act ; yet these 20 also exist as civilian offences? During the period afte r hearing this appeal , the laws of Uganda were revised; and while this did not affect the content of the Act , it affected both the citation and arrangement of the sections of the Act. Th us, th e UPDF Act , 2005, is now cited as t he UPDF Act Cap 330; while the impugned sections 2, 119 (1) 25 (g) & (h) , and 179 , have changed to sections 1, 117 (g ) & (h) , and 177 , respectively. The impugned section 197, which establish ed the GCM has changed to section 195 . Otherwise, the re is no change in the content . 30 Ground 1. 5 Th is ground faults the Constitutional Court for its finding that the GCM is not a Court of law, but a specialized tribunal that should limit itself to disciplina ry offences within the UPDF Act. Accordingly , the Court nullifi ed s ections 2, 179 , and 119 (1) (h) of the UPDF Act , for extending its jurisdiction to jurisdiction that ha s been conferred on the Judiciary by the Constitution . 10 This question was raised in the Constitutional petition in the terms of whether “ S. 197 [now 195] of the UPDF Act 2005 is inconsistent with Articles 28(1), 126(1), 129(1) and 257(1) (d) of the Constitution to the extent that it purports to create a court of law without Constitutional authority .” That section establishes the GCM and provides for its st ructure, jurisdiction, and 15 revisionary powers. The Court resolved this issue together with the issue of the independence , fairness and impartiality of the Courts M artial. I n my considered view, I find the two issues to be distinct and independent of each other . The GCM’s legal st atus as a ‘Court’, it s structure and procedures ( ‘ fairness, independence and impartiality ’ ) , and its competence in terms of 20 jurisdiction , are di stinct from each other . Its status as a C ourt arises from its establishment as such , by law ; but not its composition , or the manner of it s operat ion . Similarly, its status as a Court is not determined by its exercise of judic i al power; as in some cases, tribunals also exercise some judicial power . I will ad vert to this in the course of this judgment . 25 Is the GCM lawfully established as a Court of law? This requires a scrutiny of the relevant Constitution al provisions and Act establishing the GCM. The Constitution establishes the superior and subordinate Courts in Uganda. Article 129 of th e Constitution provides: 31 “ 129. The courts of judicature. 5 (1) The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of — (a) the Supreme Court of Uganda; (b) the Court of Appeal of Uganda; (c) the High Court of Uganda; and 10 (d) such subordinate courts as Parliament may by law establish, including qadhis’ courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament. ” It is clear from the above provision s of the Constitution that Parliament has the power under Art. 129 (1) (d) to establish other c ourts of law . The other 15 provision of the C onstitution under consideration in the interpretation of whether the GCM is validly established as a court of law is Article 210 of the Constitution ; which vests Parliament with the power to regulate the UPDF , thus: “210. Parliament to regulate the Uganda Peoples’ Defence Forces. 20 Parliament shall make laws regulating the Uganda Peoples’ Defence Forces and, in particular, providing for — (a) the organs and structures of the Uganda Peoples’ Defence Forces; (b) recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces and ensuring that 25 members of the Uganda Peoples’ Defence Forces are recruited from every district of Uganda; 32 (c) terms and conditions of service of members of the Uganda Peoples’ 5 Defence Forces; and (d) the deployment of troops outside Uganda.” ( emphasis added ) Article 209 provides for the function of the UPDF. It provides thus: “ 209. Functions of the defence forces. The functions of the Uganda Peoples’ Defence Forces are — 10 ( a) to preserve and defend the sovereignty and territorial integrity of Uganda; (b) to cooperate with the civilian authority in emergenc y situations and in cases of natural disasters; (c) to foster harmony and understanding between the defence forces and 15 civilians; and (d) to engage in productive activities for the development of Uganda. ” The parties hereto are in agreement that it is only through enactment of a law that Parliament can exercise the mandate conferred upon it under Art . 129 of the Constitution to establis h Courts of law . To determine whether Parliament 20 fulfil led this mandate when it establish ed the GCM as an organ o f the UPDF under the UPDF Act , one has to give consideration to a number of things. The long title to the UPDF Act provides th u s : “ An Act to provide for the regulation of the Uganda Peoples’ Defence Forces in accordance with article 210 of the Constitution, to repeal and replace the 25 Armed Forces Pensions Act and the Uganda Peoples’ Defence Forces Act, and for other related matters . ” ( emp hasis added ) 33 Structure of the courts martial as established . 5 The structure of the Courts martial is provided for under Part VIII of the UPDF Act, titled ‘ Military Courts’ . That part is further sub titled ‘ Summary Trial Authority’ (s. 189 - 191) on the one hand, and ‘ Unit Disciplinary Committees [UDCs] and Courts Martial’ (s. 192 - 202) on the other . Whereas one could draw the inference from the first title to that part that it establishes only ‘ C ourts’, the 10 further differentiation between the Summary Trial Authority (STA) on the one hand and Unit Disciplinary Committees (UDCs) and the C ourts M artial in the subsequent sub heading on the other hand, indicates that Parliament provid ed for Unit Summary Trial Authorities (STAs) and Disciplinary Committees (UDCs) as separate organs from the C ourts M artial ; thus , they are 15 tribu nals . The Act establish es two tribunals under the Summary Trial Authority; nanmely, (i) Trial by Commanding Officer or Officer Commanding and (ii) Trial by Superior Authority. The first tries junior officers or militants for offences provid ed for under the Act and regulation s made thereunder ; and 20 the highest sentence it can pass is detention for a period not exceeding six months . Others are forfeiture of seniority, severe reprimand, reprimand , a fine not exceeding basic pay for one month, and minor punishments as may be prescri bed. The second tries those who are equal to or lower in rank than the superior authori ty; and can pass any sentence ‘ in which any one or more 25 of the punishments listed there are included ’ ; namely, forfeiture of seniority, severe reprimand, reprimand or fi ne. Section 193 (now s. 191 ) of the Act, provides that the offences which may be tried by a summary trial authority shall be as specified in Schedule 8 to the Act. 34 The schedule lists 31 offences which include ; offences relating to guard 5 duties (s. 130, now s. 129), disobeying lawful orders in circumstances not involving a sentence of death (s. 132, now s.131), failure to execute ones duties in circumstances not involving a sentence of death ( s.133, now s.132), violence to a superior officer ( s.134, now s.133) , insubordinate behavior ( s.135, now s. 134), malingering or maiming ( s.137, now s.136), drunkenness 10 ( s.138, now s.137), abuse of and violence to inferiors ( s.140, now s.139), false accusation ( s.141, now s.140), quarrels and disturbances (s.142, now s. 141) , improper use and driving of vehicles ( ss.157 & 158, now s s.156 & 157), disorders ( s.143, now s.142) , escape from custody (s.167, now s.166) , and conspiracy ( s.179, now s. 178) . 15 As already noted, albeit that the UDCs are grouped together with Courts martial , separate from the STAs , they are not expressly established by Parliament as Courts. My conclusion is that they are tribunals as well, and I treat them as such. The UDCs have the power to try any non - capit al offence under s. 193 (3) (now s.195 (3)) of the UPDF Act ; and to impose a ny sentence 20 authorized by law ( see s . 193(4) , now s . 195(4) . B y virtue of the impugned provisions of the Act , the UDCs can try military personnel and their alleged civilian accomplices with virtually any offence triable by magistrates Courts ; and pass any se ntence that magistrates can . The Courts Martial listed are the Division Court Martial established under s. 25 196, (now s. 192 ) , the General Courts Martial under s. 19 7 (now s. 195 , the Court Martial Appeal Court established under s.199 (now s. 197 ) , and the Field Court Martial under s.200 (now s. 198 ) . Since the focus is on the GCM, I 35 consider it prudent to , fully, set out the provisions s ection 195 of the Act , 5 which establishes the GCM, thus: “ 195 . General Court Martial. (1) There shall be a General Court Martial for the Defence Forces, which shall consist of — (a) a Chairperson who shall not be below the rank of Lieutenant 10 Colonel; (b) two senior officers; (c) two junior officers; (d) a Political Commissar; and (e) one non - commissioned officer, 15 all of whom shall be appointed by the High Command for a period of one year. (2) The General Court Martial shall have unlimited original jurisdiction under this Act and s hall hear and determine all appeals referred to it from decisions of Division Courts Martial and 20 Unit Disciplinary Committees. (3) The General Court Martial shall have revisionary powers in respect of any finding, sentence or order made or imposed by any S ummary Trial Authority or Unit Disciplinary Committee, to be exercised in accordance with the provisions of Part XIII of this Act. 25 (4) The General Court Martial may sit at any place.” Counsel for the Respondent argued that the establishment of a Court Martial as a Court could not be done under Art 210; but only under Article 129, and by an amendment to the Constitution under Art 259 and/or a referendum 30 36 under Art 260 because it in effect ed amounted to an amendment of Art 128 5 ( 1) of the Constitution . Article 128(1) provides for the independence of the Judiciary . Regarding the first argument, it is clear that the long title provides that the Act is passed under Art 210. However, I do not consider that failure to indicate Article 129 , instead of 210 as was done in the long title of the UPDF Act alone , is enough to take away the Parliament’s power given to create 10 a court under Art 129 (1) (d) . T he GCM is part of the courts of judicature referred to under Chapter 8 - albeit with a special limited jurisdiction . By analogy, the Industrial Court established under the Labour Disputes (Arbitration and Settlement) Act 8 of 2006 is a special court established under Art 129 ; albeit that A rt . 129 is not referr ed to in the Act . However, it would 15 do well for Parliament to indicate Art 129 (1) (d) when creating a C ourt. The second argument for consideration is whether the creation of a court under Art . 129 (1) (d) requires an amendment of the Constitution and/ or a referendum . Under Article 259 of the Constitution , an amendment of the Constitution can only be done by an Act of Parliament whose sole purpose is 20 the amendment of the Constitution , and pursuant to the requisite Parliamentary procedure for such amendment . It provides: “259. Amendment of the Constitution. (1) Subject to the provisions of this Constitution, Parliament may amend by way of addition, variation or repeal, any provision of 25 this Constituti on in accordance with the procedure laid down in this Chapter. (2) This Constitution shall not be amended except by an Act of Parliament — 37 (a) the sole purpose of which is to amend this Constitution; 5 and (b) the Act has been passed in accordance with this Chapter . ” Article 260 provides for circumstances that require a referendum for an amendment to be effected , and the requi site Parliamentary quorum that must 10 be satisfied . It provides as follows: “ 260. Amendments requiring a referendum. (1) A bill for an Act of Parliament seeking to amend any of the provisions specified in clause (2) of this article shall not be taken as passed unless — 15 (a) it is supported at the second and third readings in Parliament by not less than two - thirds of all member s of Parliament; and (b) it has been referred to a decision of the people and approved by them in a referendum. 20 (2) The provisions referred to in clause (1) of this article are — (a) this article; (b) Chapter One — articles l and 2; (c) Chapter Four — article 44; (d) Chapter Five — articles 69, 74 and 75; 25 (e) Chapter Six — article 79(2); (f) Chapter Seven — article 105(1); (g) Chapter Eight — article 128(1) ; and (h) Chapter Sixteen. ” ( Emphasis added ) 38 The relevant provision here is Art . 128 (1) ; which falls under Chapter E ight of 5 the Constitution , which covers the Judiciary. It provides that: “[ I]n the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority . ” I have du ly given consider ation to these provisions. Article 129 that establishes the Courts of Judicature, Art. 128 that provides for the 10 independence of the Judiciary, then Arts. 259 and 260 quoted herein above in extenso , do not stipulate that the creat ion of a Court per se requires an amendment of the Constitution. Article 129 merely lists the Courts of record and provid es that the creation of other subordinate Courts shall be as established by laws made by Parliament. The UPDF Act is one of those laws ; 15 and s. 195 (1) thereof establishes the GCM. It is also evident from Article 257, which is the interpretation provision of the Constitution , t hat the Constitution contemplates the existence of the Courts martial . There, it is provided that: “(2) In this Constitution — 20 (a) unless the context otherwise requires, a reference to an office in the public service includes — … ... … (i) a reference to the office of Chief Justice, Deputy Chief Justice, Principal Judge, a justice of the Supreme Court or a justice of 25 Appeal, or a judge of the High Court and the office of a member of any other court of law established by or under the authorit y of this Constitution, other than a court - martial, being an office the 39 emoluments of which are paid directly from the Consolidated Fund 5 or directly out of monies provided by Parliament; and (ii) a reference to the office of a member of the Uganda Police Force, the Uganda Prisons Service, the education service and the health service; ” ( Emphasis added ) Article 120 (3) of the Constitution also specifically provides that the function 10 of the DPP is to “institute criminal proceedings against any person or autho rity in any Court with competent jurisdiction, other than a Court martial .” It was thus contemplated that owing to the unique nature of the military, issue s of military discipl in e should be handled by special Courts ( c ourts martial) and military tribunals (UDCs and STAs ) . Counsel for the Appellant 15 made extensive s ubmission on this; arguing that due to the need to swiftly and firmly deal with disciplinary issues in a way that enhances the functions of the UPDF as is provided for under Article 209 of the Constitution, the military courts have been created to exercise the judicial powers the UPDF Act has conferred on them . 20 I have also considered the recent Constitutional Court decision in Rtd. Cpt. Amon Byarugaba & 2 Ors. v A.G (supra) . I noted earlier that the status of a Court is distinct from the issue of its independence, impartiality or jurisdiction. In her lead judgment in Rtd. Cpt. Amon Byarugaba & 2 Ors. v A.G (supra), Musoke JC C , as she was, with whom the majority of the panel concurr ed, stated thus : 25 “ In the present case, the 1995 Constitution places limits on Parliament’s Legislative power with regards to establishment of courts of judicature to try civilians to the circumstances stipulated under Article 129, namely 40 power to establish a subordinate court of judicature . The other courts of 5 judicature were established by the framers and listed under Article 129(1), and these are the Supreme Court, the Court of A ppeal and the High Court. In my view, Article 129 (1) sets out an exclusive list of courts which may exercise judicial power wit h regards to civilians . Therefore, for that purpose, Parliament has no pow er to establish a court under a nother 10 provision of the 1995 Constitution . Certainly , it could not proceed to do so under Article 210, which concerns the UPDF , for the framers of the 1995 Constitution never intended for the UPDF to be vested with judicial functions in respect of civilians . Therefore, the quest ion whether military courts have jurisdiction to try 15 civilians, must be answered in the negative. ” The learned Justices of the Constitutional Court merged the issue of establishment by law, with the jurisdiction to try civilians and the exercise of judicial power; and thereby came to the conclusion that the GCM was a tribunal , and not a Court . I consider it prudent to determine the issue on 20 j urisdiction raised under G rounds 3 and 4 and the cross appeal , separately . P arity with other courts The issue whether the GCM i s a court , w as conclusively settled in A.G v Tumushabe - Const itutional C ou rt Petition No . 18 of 2005 , and A.G. vs Uganda Law Society - S.C. Const. Appeal No. 1 of 2006 ; where this Court decisively held that the General 25 Court Martial is a court , albeit that it is subordinate to the High Court . In A.G. vs Uganda Law Society (supra) , Mulenga JSC who delivered the lead judgment fault ed the Constitutional Court, and noted thus: 41 “ As correctly submitted by learned counsel for the respondent, in Joseph 5 Tumushabe ’s case (supra), this Court upheld the majority decision of the Constitutional Court in that case that the General Court Martial is a subordinate court. However, in the instant case the Constitutional Court had earlier held by majority of 3 to 2 that its decision in Joseph Tumushabe ’s case (supra) was wrong and refused to follow it. Clearly that holding cannot 10 be sustained since the final decision of this Court in Joseph Tumushabe ’s case (supra) must prevail. That alone should be sufficient to dispose of the cross - appeal as finally presented by the learned counsel for the respondent. ” ( Emphasis added ) It is quite clear that Mulenga JSC fault ed the Constitutional Court for its 15 decision , made in utter disregard for the rule of precedence , since this Court had already authoritatively pronounced itself on the specific point of law under consideration by the Constitutional Court . In A.G v s Tumusha be S upreme Court Const. Appeal No. 3 of 2005 and A.G vs ULS Supreme Court Const. Appeal No. 1 of 2006 , this Court reiterated its holding that the GCM is a subordinate court to 20 the High Court. Under the cardinal rule of precedent and stare decisis , a Court of law is under duty to uphold its previous decision on a particular matter; save in exceptional cases , where the previous decision is distinguishable , or has been overruled by a higher Court on appeal , or was arrived at per incuriam (i.e. withou t taking into account a law in force, or a binding 25 precedent). The Supreme Court being the highest Court of the land may , and should indeed , depart from its previous decision when it finds it is the proper thing to do in the interest of justice. I wish to be emphati c in holding the view that 42 these two decisions of A.G v ULS (supra) and A.G v Tumushabe (supra) are still 5 good law on the status of the GCM as a court . As I have already noted w ith regard to creation of Courts, it is clear from a proper reading and better appreciation of Article 129 of the Constitution that in addition to the Courts created by the Constitution, Parliament has the power to create only subordinate Courts. It would do well if Parliament clearly stipulates in the law 10 enacted, the status of a Court created; namely that it is a subordinate Court, as the Magistrates Courts Act does. This would avoid such questions as those that arose in the A.G v ULS and A.G v Tumushabe cases (supra) . I note that i n A.G vs Tumushabe - S.C Const. Appeal No. 3 of 2005 , th is Court came to the conclusion that since the GCM exercised judicial power, it must be a 15 court. To arrive at this position, this Court did not base its decision o n th e provisions of Art . 129 or Art. 210, which empower Parliament to establish military courts. I n holding that the General Court Martial is a Court , Mulenga JSC, with whom the others agreed , stated thus: “Judicial power under Art 126 is derived from the people and shall be 20 exercised by courts established under the Constitution in conformity with the law, values, norms and aspirations of the people. This principle embraces all judicial power exercised by ci vilian courts and military courts. … … … While the Parliament established the courts martial as organs of the UPDF, 25 the authority to vest them with judicial power must be construed as derived from this Constitutional principle, for only ‘courts establishe d under the Constitution have that mandate .” ( My emphasis ) 43 The Court further held that: 5 “Therefore although the Courts Martial are a specialized system to administer justice in accordance with military law, they are part of the system of courts that are, o r are deemed to be established under the Constitution to administer justice in the name of the people. They are not parallel but complementary to the civilian courts, hence the convergence at 10 the Court of Appeal.” ( Emphasis added ) The use of the phrase “ deemed to be established ” is noteworthy. The inference one can draw from it is that this Court (per Mulenga JSC) treated the matter as if there was no clear grounding in the Constitution for the establishment of such a court ; and yet, as I have already spe cifically pointed out , the 15 provisions of the Constitution, under which the GCM is established , is unmistakably clear . In the A.G vs Tumushabe case (supra) , t his Court also seized the fact of convergence of appeals from the Court Martial Appeal Court and the High Court, at the Court of Appeal, to buttress its finding regarding the 20 complementary nature of the Courts Martial to that of the civil Courts . I believe the fact of co nvergence of the appeals in the Court of Appeal was a wrong premise to base the complementar ity of the Courts Martial to the civil C ourts . It is equally noteworthy that the case of A.G v Tumushabe (supra) was decided before the UPDF Act 2005 came into force. As was recently pointed 25 out in the Court of Appeal decision in PTE Muhumuza Zepha v Uganda Criminal Appeal No. 31 of 2016 , since the right to appeal is a creature of statute, the right of appeal from the Court Ma rtial Appeal Court to the civilian Court of Appeal 44 is no longer available following the repeal of the National Resistance Army 5 (Court Martial Appeal Court) Regulations and the Judicature Statute; which had respectively granted this right of appeal under r. 17 (2), and section 14, thereof. Thus, I am unable to agree that the convergence of the military Court with the civil Court, at the Court of Appeal, is a material legitimate basis for justifying the establishment of the GCM as a complementary court , or ev en 10 as a court for that matter . I reiterate my view that the procedure and appellate jurisdiction of a Court differs from the issue of its establishment as a C ourt of law. I would therefore hold that the General Court Martial is not merely a compl e mentary court to ‘civil’ C ourts . I t is established as a court ; which is 15 however seized with a speciali z ed jurisdiction. I will advert to this in this judgment . Suffice to note here that t he compl e mentary nature of the GCM and military courts in general stems from the unique functions of the UPDF as reflected in Art 209 of the Constitution; and the unique needs of the military. The legality of the establishment of the GCM is based on the authority 20 conferred on Parliament under Art. 129 of the Constitution to create a subordinate Court of law, and the provision of Art. 210 thereof to create the organs of the UPDF; both of which mandates , Parliament has duly executed. Exercise of judicial power & tribunals Before I take leave of this issue, I would like to address myself to the aspect 25 of the exercise of judicial power by courts and military tribunals , upon which the learned J ustices of A ppeal based their decision in Rtd Capt. Amon Byarugaba (supra). As a general rule, in a democratic society or dispensation, every a spect of judicial power must be exercised by a competent authority 45 established by law. I n this regard, ordinarily, a unique characteristic or 5 attribute of Courts, as contradistinguished from tribunals, is the former’s mandate to exercise judicial powers , as contrasted with the quasi - judicial powers exercised by the latter. J udicial power , exercis ed by the judicial arm of government as an institution , as is provided for in the Constitution, refers to the authority vested in the 10 Courts of Judicature whose j udicial officers interpret and apply the law, resolve disputes, and administer justice generally. Article 257 of the Constitution - the interpretation provisions - defines judicial power as follows: “ 257. Interpretation. 15 (1) In this Constitution, unless the context otherwise requires — (a) “Act of Parliament” means a law made by Parliament; … … … … … … (p) “judicial power” means the power to dispense justice among persons 20 and between persons and the State under the laws of Uganda ; ” It involves hearing cases, interpreting laws, issuing judgments, and, in some cases, determining the constitutionality of laws or government actions. In this sense, j udicial power is characterized by jurisdiction over all aspects of human life . The judici ary's primary function as one of the three arms or 25 branches of government in a typical democratic system, alongside the executive and legislative arms or branches , is to ensure that laws are applied fairly and consistently, uphold individual rights, and se ttle legal disputes according to established legal principles and procedures. Due to the 46 importance of this power, more safeguards are usually in place to ensure that 5 the Judiciary exercises it with impartiality and fairness during proceedings; which, usua lly, are more that those possessed by a tribunal. It extends , inter alia , to elements such as the structure, procedures and composition of the C ourt. These hallmarks usually exist to ensure that the C ourt and the judicial arm of government as a whole adjudicates disputes with fairness; which is 10 the subject of G round 2 of the appeal . In a narrower sense, judicial power generally uniquely involves an exercise of power to interfere with the personal libe rty of persons who appear before it ; and this usually falls exclusively within the realm of ordinary Courts of law , although t here is no express bar to criminal exercise of jurisdiction by 15 some tribunals. As a characteristic, the moment an entity can hear criminal cas es and give custodial sentences or detain its suspects during hearing, th e entity exercises judicial power regardless of its title as a court or tribunal. In other words, the exercise of judicial power is not in all cases what differentiates a court from a tribunal. Th e jurisdiction of Courts and tribunals 20 to exercise judicial power in a matter usually depends on the law. In our jurisdiction , it would appear that this is the position provided for in Article 28 (1) of the Constitution ; which stat es as follows: “ (1) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an 25 independent and impartial court or tribunal established by law .” ( emphasis added ) 47 This is also reflected in the International Covenant on Civil and Political Rights 5 (ICCPR), wherein Article 14, paragraph 1, states that: "All persons shall be equal before the courts and tribunals … [and] [i]n the determination of any criminal charge against him , or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by 10 law ". (emphasis added) When it comes specifically to the military, jud icial power may be exercised by civilian manned specialized military Courts, or separate military Courts and/or military tribunals; depending on the jurisdiction or country in question. For instance, the USA has both military Courts and military 15 tribunals, but they serve different purposes and operate under different circumstances and under different legal frameworks. Military Courts, known as courts - martial, are established within the military justice system to handle disciplinary matters and criminal case s involving members of the armed forces under the Uniform Code of Military Justice (UCMJ). There are three 20 levels of courts - martial; namely, summary, special, and general. The Courts - martial are the military's Courts of original jurisdiction, with appellat e review taking place in Military Service Courts of Criminal Appeals and the United States Court of Appeals for the Armed Forces. Decisions of the United States Court of Appeals for the Armed Forces are then reviewable by the U.S. 25 Supreme Court. Similar t o the United States, military Courts in Canada handle matters related to the military, including cases involving military personnel accused of 48 offenses as provided under the National Defence Act. They follow procedures 5 specific to the military justice syst em and are distinct from the civilian Court system. The Court Martial Appeal Court of Canada (CMAC) is a specialized appellate Court; and the highest military appellate Court in the Canadian military justice system. However, the judges who sit on the CMAC are civilian judges appointed from the superior Courts of various Canadian provinces. 10 Despite the civilian nature of its judges, the CMAC's jurisdiction is specific to military matters, and it operates within the framework of military law. A hybrid milita ry Court system, involving trial of both military personnel and civilians, is that of the UK. Military law in the UK is primarily governed by the Armed Forces Act, which sets out offenses, procedures for trials, and 15 sentencing guidelines specific to milita ry personnel. The UK Military Court Service provides a criminal Court for the Royal Navy, Army, and Royal Air Force, in the Court Martial, and as well in the Summary Appeal and Service Civilian Court. Decisions of the Court Martial can be appealed to the C ourt Martial Appeal Court, which consists of civilian judges. Trials involve a Judge 20 Advocate who is legally qualified and oversees proceedings, along with a board of military personnel (for Court Martial cases) or a single Judge Advocate (for Summary Hear ings). Israel, on the other hand, operates a specialized military Court system. The military Courts have jurisdiction over offenses committed by members of the 25 military ; but they operate within the framework of the civilian legal system , and are subject to oversight by the Israeli Supreme Court, which helps ensure compliance with constitutional and human rights standards. Egypt is an example of a country where a separate military judiciary as opposed to 49 civilian Courts have been historically used to try mil itary officers and 5 civilians. The Egyptian military judiciary is now a division of the armed forces ; but has in the past faced much criticism internationally for trying civilians and lacking basic tenets of a fair hearing. As per Article 3 of the Military Judiciary Law, as amended in 2010, military judges now have legal immunity against dismissal, as i s the case with civilian judges, as is 10 stipulated in the last paragraph of the 2014 C onstitution ; which states that : “ Members of the military judiciary shall be independent and may not be dismissed. They shall have all the guarantees, rights and duties stipulated for members of the judiciary .” Aside from Military Courts, many other countries also utilize military 15 tribunals as part of their military justice sys tems, each with its own set of laws and procedures governing the conduct of these tribunals. In the US, for instance, Military tribunals are designed to judicially try members of enemy forces during wartime, operating outside the scope of conventional crim inal and civil proceedings. Military tribunals are distinct from Courts - martial; and 20 are an inquisitorial system based on charges brought by military authorities, prosecuted by a military authority, judged by military officers, who can pass sentence agains t a member of an enemy army. The judges are military officers and fulfill the role of jurors. They are convened in extraordinary circumstances, such as during times of war or in cases involving enemy 25 combatants. Military tribunals thus often involve non - ci vilian defendants and are designed to address legal matters that fall outside the jurisdiction of civilian Courts. 50 Accordingly, it follows that judicial power may be exercised by ordinary 5 Courts , or speciali z ed military courts or tribunals; depending on th e law of the land in question. Further, the military justice set up of any S tate depends a lot on the legal, institutional, societal considerations of the particular S tate. Different countries adopt different approaches based on their legal traditions, institutional structures, and societal values. O f course, whether 10 the set up meets the standards of justice in a democratic society would be another matter. Of indispensable im perative in the exercise of judicial power by any entity in a democratic society, be it Courts or tribunals, the crucial factors will be its establishment under the law, and the safeguards that ensure independence, fairness, and impartiality, in the exerci se of the judicial power. 15 I am concerned in the instant appeal with the Ugandan laws, institutional structures, and societal values, to which I will restrict myself in the determination of the issues before this Court ; albeit that I may make reference to international covenants and other jurisdictions for purposes of benefitting from best practices therefrom . Under the UPDF Act the Courts 20 martial , and even the U nit D isciplinary C ommittee s (UDCs) and Summary Trial Authorities (STAs) that are tribunals , have the jurisdiction to try offences; and sentences that they can impose range from caution to custodial sentences. The UDC has powers under (s. 193 (3) , now s.195 (3) to try any person for a non - capital offence , and can under s. 193 (4) , now s.195 (4) impose any 25 sentence authorised by law. The STA consist s of two tribunals; with one having a commanding officer or officer commanding conducting summary t rial , while the other has a Superior Authority conducting trial . 51 The maximum sentenc e a Commanding officer or officer commanding can 5 impose is detention for a period of up to six months. Section 191 (3) (now s.189 (3)) of the Act, and S chedule 8 thereto list the offences triable by a STA. It is thus clear that the powers of the courts martial , the UDCs and STAs can properly be called judicial power ; even though not all of them are established as courts . The issue whether the UDCs and STAs as tribunals ar e exercising 10 the judicial power fairly and i mpartially will be determin ed by the res olution of the issue regarding independen ce and impartial ity of the GCM in the light of the require ments specified under the provisions of Art s. 289 ( 1) & 44 of the Ugandan Constitution. This involves the consideration as to whether they are granted the power by the Constitution to do so, even if they are not 15 established as courts of law. T ribunals that exercis e judicial power, as opposed to quasi - judicial power , would be an exception. I have already poin ted out that Art 28 (1) of the 1995 Constitution appears to envisage the exercise of judicial power by both tribunals and C ourts. However, the same Constitution limits the categories of entities that can 20 restrict the liberty of any person in their exercise of judicial power , in the narrower sense explained above. T his is discernible from Article 23 of the Constitution , which only expressly allows Courts to interfere with the right to personal liberty , through Court orders ; where it provides thus : “ 23. Protection of personal l iberty. 25 (1) No person shall be deprived of personal liberty except in any of the following cases — (a) in execution of the sentence or order of a court , whether established for Uganda or another country or of an 52 international court or tribunal in respect of a criminal 5 offence of which that person has been convicted , or of an order of a court punishing the person for contempt of court ; (b) in execution of the order of a court made to secure the fulfilment of any obligation imposed on that person by law; (c) for the purpose of bringing that person before a court in 10 execution of the order of a court or upon reasonable suspicion that that person has committed or is about to commit a criminal offence under the laws of Uganda; … … … … … … 15 (6) Where a person is a rrested in respect of a criminal offence — (a) the person is entitled to apply to the court to be released on bail , and the court may grant that person bail on such conditions as the court considers reasonable; (b) in the case of an offence which is triable by the High Court 20 as well as by a subordinate court, the person shall be released on bail on such conditions as the court considers reasonable, if that person has been remanded in custody in respect of the offence before trial for sixty days; (c) in the case of an offence triable only by the High Court, the 25 person shall be released on bail on such conditions as the court considers reasonable, if the person has been remanded in custody for one hundred twenty days before the case is committed to the High Co urt.” Article 126 (1), of the Constitution also provides that: 30 53 “ Judicial power is derived from the people and shall be exercised by the courts 5 established under this Constitution in the name of the people and in conformity with the law, values, norms and aspirations of the people .” Under Art s. 23 , 126 (1) , and 129 (1) , of the Constitution, it is only the Courts that are granted the mandate to interfere with personal liberty in the sense of custodial sentences or any legal detention of a suspect for an extended 10 period of time during a hearing . Therefore, in the Ugandan framework of military courts, it is only the courts martial that are established as courts of law under the Constitution that can properly or legally be said to exercise judicial power when hearing offences criminal or disciplinary , with the power to impose custodial sentences and detain suspects . Th e UDC is not 15 established as a court under Art s 210 or 129 of the Constitution . The UDC and STA s are in fact tribunals ; hence, whatever judicial power s they exercise are unconstitutional, as they do so without lawful authority . Ground 2. The main issue in G round 2 of the appeal is whether the GCM in its current 20 setting, is indeed independent and impartial as required of a court . Its resolution delves into the requirement of independence and observance of the right to a fair hearing and impartiality by any au thority exercising judicial power in Uganda . It requires this Court to examine the legal structure and procedures of the military Courts as established by Parliament under the 25 UPDF Act 2005 and regulations made thereunder to determine whether it offers a fair hearing to those who appear before it; or whether its hearings are in contravention of Art 28(1) and 44 (c) of the Constitution. 54 I first give a brief background to and break down the structure of military 5 courts in Uganda in more detail . This is also relevant in answering all the grounds of appeal. As I have already explained, u nder the disciplinary structure of the UPDF Act there are organs established as courts of law ; and tribunals that are not referred to as court , but exercise j udicial power. These are respectively the Court Martial Appeal Courts (CAMA), the General Court 10 Martial (GCM), (Division Court Martial (DCM) on the one hand ; then the Unit Disciplinary Committees (UDCs) and the Summary Trial Aut horities (STAs) , on the other hand . I already laid down the structure of the courts martial, UDCs and STAs. There is not much change in the structure of the military Courts and tribunals from 15 the situation obtaining prior to the 1995 Constitution. The Rep ort of the Uganda Constitutional Commission , published by the Government of Uganda, Uganda Printing and Publishing Corporation, Entebbe (herein referred to as ‘ The Odoki Commission Report ’ ) at page 375, explains the system of military Courts. I note that the UDCs also appear under Courts in this Report: 20 “14:83 There are five levels of court specified. They are unit disciplinary committee, division court martial, general court martial, fiel d court martial and court martial appeal court. The unit disciplinary committee and division court martial deal with matters arising within particular 25 units at battalion and division levels respectively, while a field court martial handles matters arising during a military operation where it is impractical to involve the unit committee or division court martial… Each of these courts comprises a chairman of a specified rank and other members from a mixture of ranks (some senior officers, junior officers 30 55 and non - commissioned officers). The general court martial has both 5 original and appellate jurisdiction over all offences and persons subject to the military law. It can sit anywhere in Uganda. The members are appointed by the High Command of the NRA to hold of fice for a period of one year. At any proceeding of this military court, there must be a secretary to record the proceedings; army legal officer to advise on the 10 law and procedure; and a prosecutor, who may be an intelligence or security officer. The court martial appeal court hears and determines all appeals to it under the statute from decisions of the general court martial. ” Noting some changes as regards the composition of the military Court, and 15 specifically the role of the Judge Advocate, The Odoki Co mmission Report further explained thus: “ 14:84 In any military court, the verdict is by majority opinion. A significant difference between the existing military courts and those replaced by statute No. 3 of 1992 (the Armed Forces Act of 1964) is that 20 a mi litary court was previously presided over by a judge advocate who was appointed by the Chief Justice and consisted of not less than three officers of the armed forces. The current structure has decentralised military courts so that they are accessible to the soldiers and are presided over by the army officers .” ( Emphasis added ) 25 This new dispensation still obtains in the 1995 Constitution; as not all Courts have the Judge Advocate as the presiding officer in t hem anymore. In terms of cu rrent legislation, the UPDF Act lays out the structure and procedure of 56 the Courts martial and the regulations made thereunder. The Division Court 5 Martial (DCM) is established under s.194 (now s .192 ) of the UPDF Act , with unlimit ed original jurisdiction. Its membership comprises a chairperson of the rank of Major or above; two senior officers; two junior officers; a political commissar and one non - commissioned officer. All these are appointed by the High command for a period of on e year. The General Court Martia l (GCM) 10 established under s.197 (now s.195 ) of the Act consists of a Chairperson of the rank of Lieutenant Colonel and above, two senior officers, two junior officers, two junior officers, a political commissar, and one non - commissioned officer ; also appointed by the High Command for a period of one year . 15 The GCM ’s jurisdiction is similar to that of the DCM , except that the GCM also hears appeals from both the DCM and has revisionary powers over finding s , orders or sentence s imposed or made by any STAs and UDCs . When hearing an appeal in a capital offence, the quorum of the DCM and GCM is all members, while in all other cases, it is five members. The Court Martial 20 Appea l Court established under s.199 (now s.19 7 ) of the Act handles only appeals from the GCM. Its membership comprises a chairperson who is an advocate qualified to be appointed a high Court Judge of Uganda, two senior officers of the UPDF, and two advocates who are members of the UPDF. The Registrar of that Court is a l egally qualified person also appointed by the High 25 Command. When hearing an appeal in a capital offence, the quorum of the CMAC and GCM is five members , while in all other cases, it is three members . The convening authority for these Courts is the High Co mmand or any other authority as may be authorized by the High Command under s. 196 (now s. 57 194 ) ; and also Regulation 22 of the UPDF (Rules of Procedure) Regulations 5 307 - 1 on appointment of members a nd chairman by the High Command . The High Command is established under s. 15 (now s .14 ) of the Act; and comprises : (i) T he President o f Uganda who is the Chairperson; (ii) The Minister of Defence; 10 (iii) M embers of the High Command as at 26 th January 1986 whose names are set out in the 2 nd Schedule to the Act ; (iv) The Chief o f Defence Forces; (v) T he Deputy Chief of Defence Forces; (vi) All Service Commanders; 15 (vii) The Chief of Staff; (viii) A ll Service Chiefs of Staff; (ix) A ll Chiefs of the Services of the Defence Forces; (x) All C ommanders o f any formations higher than a Division, which the president may, in consultation with the High Command establish; 20 (xi) All Division Commanders and officers commanding equivalent units of the Defence Forc es; (xii) T he Commandant of the General Headquarters, and such other commanders and experts, a s are from time to time co - opted by the President to advise the High Command. 25 Their mandate includes advising the President in emergencies , at war or perform any other duties conferred by the High Command or as the President may direct. 58 The Courts martial ( and UDC s ) reach their decisions by majority opinion that 5 is binding on all the members of the Court (see: s .201, now s. 199 of the Act ). Section 209 (now s. 207 ) provides that the Courts procedure should ‘as far as practicable’ be the same as those in civil Courts; except where it is expressly provid ed to the contrary under the UPDF Act, or regulations made thereunder. What is manifest from the foregoing, with regard to Courts martial, is that: 10 (i) With the exception of the CMAC, there is no legal requirement for a person qualified in law, to form part of the Coram. (ii) The Judge Advocate’s role is wholly advisory, as he or she does not form part of the Court that deliberates on the verdict and sentence. (iii) Decisions are by majority opin ion of members of the Court. 15 (iv) The Courts are convened, and the members are appointed, by the High Command or some other authority delegated by the High Command. (v) The Courts comprise military men with no differentiation as to whether they are active, about to retire, or retired. (vi) Junior members and a political commissar form part of the quorum. 20 (vii) No right of appeal is created to the ordinary Courts under the Act. (viii) T he UDCs and STAs exercise judicial power under the law; as they have jurisdiction to pass custodial sentences , and thus infringing on the liberty guaranteed under Article 23 of the Constitution. 25 Every C ourt established under the Constitution must meet the criteria for a fair hearing . Similarly, t ribunals entrusted with judici al power, have to apply the principles that ensure a fair hearing; and to this extent , the classification as C ourts or tribunals serves no purpose . 59 Right to a fair hearing 5 The right to a fair hearing is one of the fundamental human rights that are considered an imperative in any trial. Art 28(1) of the Constitution of the Republic of Uganda 1995 as amended provides as follows: “Article 28 Right to a fair hearing . (1) In the determination of civil rights and obligations or any criminal 10 charge , a person shall be entitled to a fair , speedy and public hearing before an independent and impartial court or tribunal established by law.” Thereafter, it also provides a list specifying certain guarantees of the right to a fair hearing that all tribunals and C ourts should provide or adhere to . Art 15 44 (c) of the Constitution of Uganda provides that the right to a fair hearing provided under Art icle 28 thereof is non - derogable. It stat es that : “ Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms - (c) the right to a fair hearing;” 20 It is thus clear that with regard to courts or tribunals, the cardinal right to a fair hearing is one that is fundamental in ensuring that justice is done. The right to a fair trial is not peculiar to the Constitution of Uganda . There is a corpus of international conventions that similarly provide for the protection of the rights as is contained in our Constitution. Article 10 of the 25 UDHR provides: 60 “Everyone is entitled in full equality to a fair and public hearing by an 5 independent and impartial tribunal , in the determination of his rights and obligations and of any criminal charge against him .” Article 14, paragraph 1, of the ICCPR provid es that: "All persons shall be equal before the courts and tribunals [and] [i]n the determination of any criminal charge against him, or of his rights and 10 obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law" . Article 14 also lists the minimum guarantees for the right to a fair hearing. A fair hearing connotes several elements including, among others, an 15 independent Court or tribunal, right of appeal, right to legal representation, fair and impartial de cision makers, fair legal procedures of trial that include an opportunity to prepare one’s defence. Although the ICCPR does not explicitly refer to military Courts, it is accepted that Article 14 nonetheless constitutes the backbone of the Human Rights Com mittee's doctrine on 20 military Courts. In the Human Rights Committee (HRC), General Comment No. 32 on the Right to a fair trial , the HRC points out that the guarantees of the right to a fair trial provided for in Art 14 of the ICCPR applies to: “all courts and tribunals including military and other specialized courts. ” The Draft principles governing the administration of justice through military tribunals: 25 Report presented by the Special Rapporteur of the Sub - Commission on the promotion and protection of Hum an Rights, Emmanuel Decaux (Report E/CN.4/2006/58) of the United Nations (also known as the Decaux Principles ), though not binding, is instructive 61 with regard to the general international legal trend. Principle No. 2 thereof 5 provides for respect for the no rms of international law in the following terms: “Military tribunals must apply internationally recognized standards and procedures guaranteeing a fair trial in all circumstances, including the rules of international humanitarian law." The requirement for a fair hearing applies to all stages of the due process, 10 from investigation to trial. Principle No. 13 provides: “The organization and functioning of military courts must fully ensure the right of every person to a competent, independent and impartial trib unal, during all stages of the procedure , both the investigation and the trial.” Article 7 of the African Charter states: 15 1. Every individual shall have the right to have his cause heard. This comprises … (d) The right to be tried within a reasonable time by an impartial court or tribunal .” In its Principles and guidelines on the right to a fair trial and legal assistance in Africa , the African Commission adopted the Dakar Declaration and Recommendations on 20 the Right to a fair trial in Africa in which it em phasized that while exercising their functions military Courts should respect fair trial standards. This provision is in line with that of the Human Rights Committee . As already noted, Art. 7 of the African Charter provides for a right to a tribunal that i s competent and impartial. Art. 26 thereof also provides that all states parties should ensure 25 that their courts and tribunals are independent. 62 Judicial power, even though it is limited in jurisdiction, has been devolved to 5 the military Courts to be exercise d in line with the Constitution, while respecting the fundamental rights and freedoms of individuals appearing before them. It goes without saying therefore that all persons, including military personnel or persons subject to military law are entit led to the non - dero gable right of a fair hearing. T he Constitution (see: Article 21) and the 10 three Conventions referred to , all provide for the principle of equality of persons before the law . T he right to a fair hearing thus applies to all and sundry ; in cluding civilians or persons subject to military l aw. A person does not, therefore, by joining the army, forfeit this right. As noted by Prof . Marita Carnelly in “The South African Military Court system - Independent, Impartial and 15 Constitutional? Scientia Militaria, South African Journal of Military Studies, Vol 33, No. 2 , 2005 , that : “[A]lthough a soldier becomes subject to the military system, he does not cease to be a citizen and his rights, as a citizen remain relevant, albeit in an amended form. But whatever legislation is applicable, it must still be 20 interpreted in light of the supreme law . ” According to Halsbury’s Laws of England (Vol 3) 2019 , at para 203: “It is one of the cardinal features of the law of England that a person does not, by enlisting in or entering the armed forces, thereby cease to be a citizen, so as to deprive him of his rights or to exempt him from his liabilities 25 under the ordinary law of the land . He does, however, in his capacity as a member of those forces, incur additional responsibilities, for he becomes subject to service law.” 63 Thus, m ilitary personnel do not sub mit to the military tribunals at their own 5 risk. I t is the duty of the S tate to ensure at all times that all Courts and tribunals that are established meet the criteria of a fair hearing (See: Art 20 of the Constitution) . These rights apply to a member of the forces just as it applies to a civilian ; except that the characteristics of m ilitary life must be considered ( s ee : R v Spear [2002] UKHL 31 at 4 - 5; R (on the application of Smith) v 10 Secretary of State for Defence [2010] UKSC 29 , [2011] AC 1 , [2010] 3 All ER 1067 ; and Engel v Netherlands (1976) 1 EHRR 647 at [54], EctHR . I n R v Spear & Anor; R v Boyd; R v Williams & other app eals and applications [UKHL] 31, the House of Lords considered the import of A rt 6 - 1 of the Convention , which is similar to Art . 28(1) of the Constitution, and came to a similar conclusion. 15 Indeed, it noted that while disciplinary rules and procedures may vary from S tate to S tate, there are three principles that command acceptance in any liberal democra ti c dispensation that adheres to the rule of law. I find the principles expounded by Lord Bingham of Cornhill, persuasive , and quite applicable in th e insta nt case ; hence, I res tate it here in extenso : 20 “First, a man does not by becoming a soldier cease to be a citizen. On becoming a soldier he subjects himself to duties and exposes himself to the risk of penalties to which a civilian is not subject or exposed. But he remains subj ect to almost every law, including the criminal law, which binds other citizens and continues to enjoy almost all the same rights , including the 25 right (if a charge of serious misconduct is made against him) to a fair trial before an inde pendent and imparti al tribunal . .. … … … … … … … … 64 Thirdly, and whatever the practice in former times, a modern code of 5 military discipline cannot depend on arbitrary decision - making or the infliction of savage punishments, nor can it depend on inherited habits of deference or g radations of class distinction. Such a code must of course reflect the hierarchical structure of any army and respect the power of command. But an effective code of military discipline will buttress not only 10 the respect owed to their lead ers by those who are led but also, and perhaps even more importantly, the respect owed by leaders to those whom they lead and which all members of a fighting force owe to each other .” ( E mphasis added ) The requirement for a fair hearing transcends boundaries and applies to all 15 C ourts wherever they belong ; including the F ield Court M a rtial . Lord Bingham pronounced himself on this point in R v Spear (supra) as follows : “[15] … But a court - martial either is or is not an independent and impartial tribunal. If it is, it can properly try civil as well as purely military offences. If it is not, it cannot, compatibly with art 6(1), try military offences, which 20 may carry a severe sentence of imprisonment or detention. Nor, leaving aside issues concerning the territorial reach of the convention, and leaving aside also the special conditions in which a field general court - martial may be held, can it be compatible with the standard required b y art 6(1) to subject service personnel accused of civil offences committed abroad to trial 25 by court - martial if such is not an independent and impartial tribunal.” ( E mphasis added ) I therefore consider the impugned provisions in light of the principle of e quality. This also fits into my earlier finding that all tribunals and Courts 65 that exercise judicial power are duty bound to adhere to the right to a fair 5 hearing. Can a military court be independent, fair & impartial? A military C ourt can be independent, fair , and impartial. Thus, trial of a person by Courts Martial does not ipso facto occasion a violation of the person’s right to a fair hearing provided for under Art 28 (1) of the 10 Constitution . That provision does not specify the composition of or procedu re adopted by such a C ourt or tribunal , other than listing the procedural safeguards required for a fair hearing . However, as noted earlier, Article 128 (1) of the Constitution also imposes a requirement as to objective independence of the Courts or tribun als exercising judicial power as a 15 saf eguard to a fair hearing . In Morris v United Kingdom 34 EHRR 1253, at 1274 , para 59, the European C ourt explicitly held as follows: “ … [the court] recalls its own case law which illustrates that a military court can, in principle, constitute an 'independent and impartial tribunal' for the purposes of article 6(1) of the Convention. For example, in the above - 20 mentioned Engel v The Netherlands (No 1) case, the court found that the Dutch Supreme Military Court, composed of two civilian justices of the Supreme Court and four military officers, was such a tribunal . However, the Convention will only tolerate such courts as long as sufficient safeguards are in place to guarantee their independence and impartiality .” ( Emphasis 25 a dded ) Commenting on this holding in Morris v UK ( supra ) , Lord Roger stated in R v Spear (supra), thus: 66 “While it is perhaps possible to detect some lack of enthusiasm in the use of 5 the term “tolerate”, the passage shows clearly that, in principle, a milit ary court can constitute an independent and impartial tribunal in terms of art 6(1). What is required is that there should be sufficient safeguards of the independence and impartiality of its members .” This position is similar to that taken by Canada, the European Court of Human 10 Rights , and the United Kingdom. Lord Bingham exhaustively explained this in R v Spear (supra) as follows: “[6] The practice of other states is not dissimilar to our own. So much appears from such decisions as MacKay v The Queen (198 0) 114 DLR (3rd) 393 at 413 - 414, 416 - 418, 419 - 421, 423 - 426; In re Tracey, Ex p Ryon (1989) 166 CLR 518 at 15 543 - 544; R v Généreux (1992) 88 DLR (4th) 110 at 135 - 136, 156 - 157 . That there is a rational basis for the practice is made plain in those decisions, a nd in the statement of Air Chief Marshal Sir Anthony Bagnall, the Vice Chief of the Defence Staff which is before the House . In Findlay v United Kingdom (1997) 24 EHRR 221 the defendant was charged with a number of offences of which the 20 more serious were o ffences against the ordinary criminal law. The European Court of Human Rights found serious breaches of art 6 (1) of the convention in the structure and procedure under which courts - martial were then conducted, and a number of changes were made in the Armed Forces Act 1996. The effect of these chan ges was well summarised by Laws 25 LJ in the first of the judgments under appeal: R v Spear; R v Boyd [2001] EWCA Crim 3, [2001] QB 804, [2001] 2 WLR 1692 at pp 812 - 813 of the former published report, para 18. 67 There is, however, nothing in the judgment of th e European Court in Findlay , 5 or in the earlier case of Engel v The Netherlands (No 1) (1976) 1 EHRR 647 or in the more recent case of Morris v United Kingdom (2002) 34 EHRR 1253 , to sugg est that trial by court - martial … necessarily involves a violation of rights protected by art 6(1). [7] Lord Thomas of Gresford QC directed his initial challenge on behalf of 10 the second group of Appellants to the terms of s 70 of the Army Act 1955, which he criticised as incompatible with art 6(1). The short answer to this p oint is that given by Mr Havers QC, that this section does not engage art 6(1) at all. While the section provides that persons subject to military law who commit civil offences shall (save in the case of certain offences) be 15 guilty of offences against the section, it makes no provision governing the constitution of the tribunal by which such persons shall be tried nor the procedure to be followed .” ( E mphasis added ) Historical context & Art 8A . While I take into consideration the position of the law obtainin g in other 20 jurisdictions, the historical context in which the 1995 Constitution was made, which is clearly laid down in the National Objectives and Directive Principles of State Policy now a provision of Art. 8A of the Constitution as amended, is an impera tive in the determination of this appeal. The backdrop to the creation of the UPDF as a democratic people centered force in Uganda is an 25 important narrative. I t affords an understanding of the context in which it was establish ed; and the creation of the military Courts. After independence in 1962, the military was instrumental in the determination of political power disputes. Its intervention was decisive in the removal and installation of 68 governments; and it was often cited in massive violation of human rights. For 5 this reason , prior to the making of the 1995 Constitution , views of Ugandans were sought; and taken into consideration . According to the Report of the Uganda Constitutional Commission: Analysis and Recommendations, 28 th May 1993 (The Odoki Commission Report) , at page 359: “ The military has played a major role in Uganda since independence and at 10 times that role has not been positive in terms of the progress of democratization and the promotion of the rule of law.” At page 364, it is noted thu s : “ It is against this sad background discussed in the previous section where the military has over a period of many years not only molested its people 15 but also installed unpopular governments and sustained them in power that the people gave their views an d concerns about the principles they believe should govern the military in future.” At p.36, the R eport considers what transpired in Uganda owing to the role of the military in the politics of the country. It is recollected thus: 20 “ From the mid - 1960s, civilian governments depended heavily on army support, and as a result the army became an ever more important political actor. Under Amin’s regime, army personnel dominated the political scene, and even took important administrative pos itions, as district commissioners and even local administration chiefs. Army personnel did not have training 25 or experience for such political and administrative roles and were often intent on self enrichment. As a result, terrible abuses occurred and the 69 d emocratic rights of the people were often totally ignored. Many people are 5 therefore concerned that the future role of the army should be strictly limited . Lack of discipline: 14.28 In general, the people believe that for most of the period since 1971, the army has suffered a severe lack of discipline … Low morale and clear 10 lack of a clear sense saw many soldiers commit offences of all kinds with impunity. They used their guns to terrorise innocent people and enrich themselves. ” The army was implicated in v arious human rights violations; and so extensive was the trauma that some people felt the army should be abolished 15 altogether. At p. 368 the Report continues : “Section 3: Analysis of and recommendations on proposals on the army 14.45 The commission accepts that abolition of the army is not possible because Uganda, like any other country, has borders to defend. Government has a duty under the Constitution to defend its citizens and their properties 20 from any aggression, be it internal or external and to guara ntee peace and stability within the country. To do so it requires an organ enabling it to use force when necessary and that organ is the army. National defence, peace and stability are, after all pre - requisites to democracy and economic development.” 25 Milit ary Courts are also bound by the Constitution; and the Constitution represents the will of the people. According to the Odoki Report at p. 365, it is stated: 70 “ Respect for the constitution . 5 14.38 Elsewhere in this report we have emphasized the fundamental principle derived from the people’s views that the people are sovereign. All governmental and political power comes from the people, and the constitution itself is a statement of the people’s will. The army provided for by that Constitution must always respect the Constitution and act within the 10 limits set by it. It must always respect the democratic principles and the fundamental rights of the people provided for in the Constitution . ” The preamble to the 1995 Constitutio n , as amended , is reflective in this regard, and is cognizant of the political instability Uganda has gone through since she attained independence from colonial Britain. It provides: 15 “ The Preamble. WE THE PEOPLE OF UGANDA: RECALLING our history which has been characterised by political and constitutional instability; RECOGNISING our struggles against the forces of tyranny, oppression and 20 exploitation; COMMITTED to building a better future by establishing a socio - economic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress; 25 71 EXERCISING our sovereign and inalienable right to determine the form of 5 governance for our country, and having ful ly participated in the Constitution - making process; NOTING that a Constituent Assembly was established to represent us and to debate the Draft Constitution prepared by the Uganda Constitutional Commission and to adopt and enact a Constitution for Uganda: 10 D O HEREBY, in and through this Constituent Assembly solemnly adopt, enact and give to ourselves and our posterity, this Constitution of the Republic of Uganda, this 22nd day of September, in the year 1995. FOR GOD AND MY COUNTRY.” Thus, i n interpreting the provisions of the Constitution and the UPDF Act, I 15 urge that care is taken to keep our history in mind to ensure that there is no recur rence of our experience of the past, by putting in place laws and rules that will make the military accountable to the people, and military Courts are effective. This can be assured in part, if the re is in place an independent and impartial Court as is required under the Constitution. First, I would like to 20 clarify on the issue before the Court. The Attorney General insist ed that there had been no actual proof that the C ourt that tried the R espondent was not independent or impartial. The R espondent however, challenged the independence and impartiality not only of the actual individual proceedings in which he took part but the whole system of military C ourts; that the 25 structure of the GCM or certain aspects of it cannot enable these C ourts to provide a fair hearing. 72 The argument of Counsel for the Appellant cannot stand; and this is not a 5 novel issue. In a Constitutional pe tition, the structure of a C ourt can be challenged without such actual proof . A similar issue was raised in R v Spear (supra) where Lord Roger stated: “ [41] Lord Thomas's submission that the Appellants' rights under art 6(1) had been infringed did not depend on any specific circumstances relating 10 to their trials or to the individuals who had made up the courts - martial: rather, his was a general challenge to the system of trial of civil offences allegedly committed in the United Kingdom by courts - martial duly set up in accordance with the legislation. [ He submitted that,] [ i ] n such cases courts - martial did not constitute an independent and impartial tribunal. ” 15 An individual who challenges the independence of a tribunal need not prove an actual lack of independence ( s ee: R v Genereux ) (supra). Similarly, this is an objection to the system of trial within the GCM in its current structure. I have already note d that unde r the Constitution, the right of any person, civilian or soldier , to be accorded a fair hearing befor e an independent and impartial 20 C ourt or tribunal , is non – derogable . Military Courts must respect this right. Article 221 of the Constitution enjoins the UPDF to observe the fundamental rights and freedoms in Chapter F our , wh en it states thus: ‘[I]t shall be the duty of the UPDF and any other armed force established in Uganda … to observe and respect human rights and freedoms in the 25 performance of their functions.” International bodies and soft law also recognize this need for the observance of human rights and freedoms as already explained . 73 Test for independence an d impartiality 5 What may be considered to pass the test for independence and impartiality , and thus ensure a fair hearing in military Courts , has been a subject of wide consideration and discourse . Courts within the Commonwealth jurisdictions, and the European Court of Human rights , have been categoric on what qualifies a Court to be considered to be independent , and impartial . In our 10 case, A rt 28(1) of the Constitution is the point of reference because it has provisions for legal safeguards to ensure that a fair hearing takes place. Independence The provision for the independen ce of the Court , as I have pointed out, is contained in Art . 128(1) of the Constitution ; which is that : “[ I]n the exercise of 15 judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority . Clauses 128 (2) to (8) are all geared towards ensuring and ma intaining this independence. T o determine whether the Courts Martial or the persons manning the Courts are independen t in the exercise of their judicial powers requires an examination 20 of the laws and procedure under which the C ourt s operate. From this, one can then determine whether a reasonable person, familiar with the Constitution, the laws setting up the military Courts, and their structure, would perceive and be satisfied that these C ourts are independent . In R v Genereux (supra) Michel Généreux was a corporal in the Canadian Forces. 25 He was charged with drug possession for the purpose of trafficking in violation of section 4 of the Narcotics Control Act and for desertion in violation of section 88( 1) of the National Defence Act . In the General Co urt Martial he was convicted for both offences, which was upheld in the Court 74 Martial Appeal Court. T he issue before the Supreme Court was whether the 5 GCM was independent and impartial for the purpose of s. 11(d) of the Canadian Charter of Rights and Freed oms. The Court explained that: “ The first step in our inquiry, therefore, must be to consider whether the proceedings of the General Court Martial infringed the appellant's rights under s. 11( d ) of the Charter . The status of a General Court Martial, in an 10 objective sense, as revealed by the statut ory and regulatory provisions which governed its constitution and proceedings at the time of the appellant's trial, must be examined to determine whether the institution has the essential characteristics of an independent and impartial tribunal. In the co urse of this examination the appropriate test to be applied under s. 11( d ) should be borne 15 in mind: would a reasonable person, familiar with the constitution and structure of the General Court Martial, conclude that the tribunal enjoys the protections nec essary for judicial independence ? ” ( Emphasis added ) The Court also emphasized that independence of the Court has nothing to do with the good faith of the members of the C ourt martial; but rather with 20 regard to the available protections accorded judicial officers that promote independence and objective impartiality . The Cour t further explain ed thus : “ I emphasize, however, that the independence of a tribunal is to be determined on the basis of the objective status of that tribunal. This objective status is revealed by an examination of the legislative provisions governing 25 the tribunal's constitution and proceedings, irrespective of the actual good faith of the adjudicator. Practice or tradition, as mentioned by this Court 75 in Valente (p. 702), is not sufficient to support a finding of independence where 5 the status of the tribunal itself does not support such a finding. ” Counsel for the A ppellant emphasized that fairness in the GCM i s assured because the members of the GCM take an oath to uphold the Con stitution and administer justice. Indeed, it is the norm that judicial officers take an oath to render justice; and this places the duty on the respective judicial officer to 10 exercise the judicial power with independence of mind, and impartiality. The recognition of the importance of the oath in ensuring that there is independence and impartiality of the members of the C ourts M artial , or any other C ourt , is universal; and cannot be overstated. Lord Roger stated in R v Spear (supra) , noted at para 67 - 68 , as follows : 15 “The European Court too has recognised that the jurors' oath, to faithfully try the case and to give a true verdict according to the evidence, and their obligation to have regard to the directions given by the presiding judge will generally be sufficient to safeguard their independence and impartiality. This is so even in cases where there is reason to believe that one or more 20 members of the jury may actually be prejudiced against the accused. I refer to the well - known decisions in Pullar v U nited Kingdom (1996) 22 EHRR 391, 405, para 40 , and Gregory v United Kingdom (1997) 25 EHRR 577, 593 – 595 , paras 43 – 48. [68] In the cases under appeal these particular safeguards were present. 25 The oath taken by the members of the court required them to well and truly try the accused “according to the evidence” and to do justice according to the relevant 1955 Act “without partiality, favour or affection ”. 76 Indeed oath taking instils in the person taking the oath, and reminds such a 5 person of solemnity of, and the need for, the duty to do justice; which can only be achieved when the person acts independent ly and impartial ly. However, this subjective undertaking of exercise of duty is only truly guar anteed when it operates alongside objective safeguards that can satisfy a reasonable person that the appearance of partiality is e radic ated; and the 10 judicial officer is acting with an independen t mind, and is insulated from extraneous fac tors such as undue influence. Impartiality - both subjective and objective . On the issue of impartiality, the South African Court stated in The President of the Republic of South Africa & others v South African Rugby Football Union & others - 1999 15 (4) S.A. 147 (C.C.) (the SARFU case ) that a n impartial mind is one , which is: “ … open to persuasion by the evidence and the submissions of counsel.” Impartiality is determined by the absence of bias, objective or perceived. In this regard , objectiv e impartiality is akin to independence . On this, the Human Rights Committee stated in General Comment No. 32 , para 21, as follows : 20 “The requirement of impartiality has two aspects. First, judges must not allow their judgment to be influenced by personal bias or prejudice, nor harbor preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a 25 reasonabl e observer to be impartial .” ( Emphasis added ) Principle 13 of the Decaux Principles recommends that: 77 “ Regarding the concept of an independent and impartial tribunal, a large 5 body of case law has spelled out the subjective as well as the objective content o f independence and impartiality . Particular emphasis has been placed on the English adage that “justice should not only be done but should be seen to be done.” It is also important to emphasize that the Human Rights Committee has stated that “the right to be tried by an independent and 10 impartial tribunal is an absolute right that may suffer no exception." ( Emphasis added ) Thi s Court enunciated the test for impartiality in the case of In Re: An application for recusal of Hon. Justice Alfonse Chigamoy Owiny – Dollo, C . J . - Miscellaneous Application No. 03 o f 2021 (Arising from Presidential Election Petition No. 15 01 of 2021 – Kyagulanyi Ssentamu Robert vs Yoweri Kaguta Museveni Tibuhaburwa & 2 Ors.), where I explaine d that the test for bias is: “ … whether a reasonable, objective and informed person, acting on the correct facts, would reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case.” 20 See also the SARFU case (supra ) , and Porter v Magill [2001] UKHL 67. It is clear that in impartiality, appearances are of importance in order to satisfy the subjective requiremen t ( s ee also R v Spear (supra), and Findlay v United Kingdom (supra). In the instant case before this Court, t he R espondent makes no allegation that 25 the members of the tribunal were actually biased. I would thus re cast the issue of independence and impartiality of the members of the Court, as follows : 78 “W hether a fair minded and informed observer would conclude that the 5 safeguards for a fair hearing in the court martial were adequate to guarantee the independence and impartiality of members of the Courts martial . ” T he Canadian case of R v Geneureux ( supra ), the United Kingdom case of Findlay v U.K. , and decisions from other C ommonwealth countries , as well as European Courts of Human Rights , have pointed out provisions of the law that vitiate 10 the independence and impartiality of the Court. T he safeguards that ensure independence and objective impartiality of the Cou rt are , inter alia , the manner of appointment of members of the Court, appointment of legally qualified persons thereto, and security of tenure as provided for in the terms of office. Other safeguards include independence from influence within the 15 m ilitary hierarchy , and freedom fro m influence emanating from outside . Lord Roger noted in R v Spear & Anor (supra) that : “… in substance, the court - martial must be guarded from the risk of influence by the prosecution and guarded from the risk of influence by the relevant Service authorities, especially superior officers who might wish to 20 secure some particular result, suppose dly in the interests of the morale or discipline of the Service or of some particular unit. ” R. Naluwairo in his work : “Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence of the African Commission on Huma n and People’s rights” (2019)19 African Human Rights Law Journal 43 - 61 has , flowing from 25 an examination of the instruments and documents of the African Commission and UN Human Rights Committee, classified t he determinants for a fair hearing into four key f actors , as follows: 79 “First … it is critical to ensure that they are truly independent of the 5 executive branch of government. This requirement is in line with the doctrine of separation of powers, which in context demands a separation of judicial from executive functions and powers in order to have a proper system of checks and balances . Second, the critical aspects to consider in determining whether military courts are truly independent from the 10 executive are the method of appointment/designation of th eir members; the length of their tenure; the existence of protection against external pressures; and the issue of real or perceived independence . Third, having legally qualified persons as members of military courts is an important measure not only in gua ranteeing the independence of military 15 courts, but also their competence and impartiality . Fourth, in the particular context of trials of civilians in military courts staffed with and presided over by active servicemen, because active servicemen are part a nd parcel of the executive, and under their military codes they are obligated to respec t the military chain of command. W here these military personnel are adequately 20 insulated from obeying orders and the command influence when performing their judicial fun ctions , the threat of not being impartial can largely be reduced .” ( Emphasis added ) Principle 13 of t he Decaux Principles also presents some of the safeguards for independence and objective impartial ity in the following terms: 25 “The persons selected to fulfill the functions of magistrate in military courts must be of integrity and competence and demonstrate the necessary training and legal qualifications. The statute of military magistrates must 80 guarantee their independence and i mpartiality, in particular in relation to 5 the military hierarchy …” ( E mphasis added ) In Marcel Wetsh’okonda Koso & Ors v DRC (Koso case) (2008) AHRL 93 (ACHPR 2008), the African Commission noted that independence of a military C ourt refers to independence vi - a - vis the executive. It also observed that as is the case with civil C ourts, in determining the independence of military C ourts, 10 consi deration should be given to the: “ mode of designation of its members, the duration of thei r mandate, the existence of protection against external pressures and the issue of real or perceived independence.” Similarly, i n Findlay v United Kingdom (1997) 24 EHRR 221 at 244 - 245 , para 73, the 15 European Court of Human Rights noted thus : “The court recalls that in order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office , the existence of guarantees against outside pressures a nd the question whether the body 20 presents an appearance of independence. As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias . Secondly, it must also b e impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this 25 respect. 81 The concepts of independence and objective impartiality are closely linked 5 and the court will consider them together as t hey relate to the present case.” I t is noteworthy that following these decisions, the respective countries amended their Military laws to provide for sufficient safeguards to ensure a fair hearing. With th e benefit of these authorities and instruments enunciating the law on 10 the issue of independence and impartiality of Courts Martial, I proceed to examine the structure and procedure of the Courts M artial in Uganda ; to assess how the y f a r e in this regard . (a) Legal qualification It is a n imperative and a leg al requirement that anyone who sits in a Court to 15 dispense justice is legally trained , if they are to truly render justice; as it is done with regard to the ordinary C ourts . It is from the legal training that a judicial officer gains the competence to prop erly evaluate the evidence before Court , and correctly apply the relevant or applicable law thereto , with impartiality and independence of mind . Indeed, the international standards 20 as expounded by the Human Rights Committee in General Comment No. 32 of 2007 and the UN Basic Principles on the independence of the judiciary provide for similar requirements. It has defined independence of the C ourts , with regard to legal qualification of the adjudicators , in the following terms: “ [It refers] to the procedure and qualifications for the appointment of 25 judges , and guarantees relating to their security of tenure… the conditions governing promotion, transfer, suspension and cessation of their functions, 82 and the actual independence of th e judiciary from political interference by 5 the ex ecutive branch and legislature.” ( emphasis added ) In his work, regarding the need for leg ally qualified adjudicators, R. Naluwairo (2019 ) (supra) , has made the same point; not ing that : “ [ I]t is arguable that legally qualified members of military courts are less likely to be influenced by external factors. They are more likely to 10 adjudicate cases based on the law and fact, unlike members who are ignorant of the law .” Principle 10 of the UN Basic Principle s of the Judiciary provides fo r qualifications, selection and training of persons exercising judicial power recommends as follows : “10. Persons selected for judicial office shall be individuals of integrity and 15 ability with appropriate training or qualifications in law . Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, politic al or other opinion, national or social origin, property, birth or status, except that 20 a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.” ( emphasis added ) Marcel Wetsh’okonda Koso & Ors v DRC (Koso case) (2008) AHRL 93 (ACHPR 2008), was a request to the African Commission to declare that by a mere submission of their case to a military C ourt, the majority of whom had no legal qualification, 25 Art 26 of the C harter ha d been violated. The military C ourt comprised five members ; only one of whom had the necessary legal training. The Commission emphasized in its decision that the ability of a C ourt to offer 83 justice depends on the competence and quality of its members; it u rg ed the 5 DRC to introduce measures to guarantee independence of such C ourts. Relying on Amnesty International & Ors v Sudan (2000) AHRLR 297 (ACHPR 1999) , the Commission held that depriving Courts of qualified staff to guarantee their impartiality constitutes a violation of A rticle 26 of the African Charter. In Law Office of Ghazi Suleiman v Sudan (2003) AHRLR 134 (ACHPR 2003) , the 10 Commission held that : “ de priving the court of qualified staff to ensure its impartiality is detrimental to the right to have one’s cause heard by competent organs” . In T he President of the Republic of South Africa & others v South African Rugby Football Union & others - 1999 (4) S.A. 147 (C.C.) while examining the test for bias, the Court considered the significance of legal training in the judicial office. 15 The Constitutio nal Court noted at para 39 - 44, thus: “Before looking at the manner in which the test is applied, it is necessary to mention two considerations built into the test itself. These are the nature of the judicial office and the character of bias in this contex t . … … … 20 In applying the test for recusal, courts have recognized a presumption that judicial officers are impartial in adjudicating disputes. This is based on the recognition that legal training and experience prepare judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence . 25 … … … The test should be applied on the assumption that a reasonable litigant would take these considerations into account. A presumption in favour of 84 judges’ impart iality must therefore be taken into account in deciding 5 whether such a reasonable litigant would have a reasonable apprehension that the judicial officer was or might be biased.” ( emphasis added ) Currently, t he General Court Martial, Division Court Martial and even the UDCs and STAs as tribunals exercising judicial power have no legally qualified personnel on their C oram ; yet their jurisdiction is not limited only 10 to disciplinary breaches , but extends to crimes or offences that are also triable by the civil C ourts . This includes serious offences that attract custodial sentence of over six months , and the death penalty. These untrained persons can issue decisio ns on questions of law and fact. T he decision o f the Judge Advocate in the Court Martial Appeal Court , who in any 15 case is not a full member of the Court, is merely advisory; as it is not binding on the panel. This loophole was recognized and pointed out in Uganda Law Society & Jackson Karugaba v A.G Constitutional Petition No. 2 of 2002 & 8 of 2002 , w here after considering the guarantees of independence of a C ourt under Art 128 of the Constitution , Twinomujuni JA had this to say about the GCM : 20 “My conclusion here is that military courts must b e manned by soldiers. Being appointed by the President to perform judicial functions is not of its self - such a big deal as long as they are professionally trained to perform such duties and they are accorded protections and privileges as all other judicial officers in civilian courts to enable them perform their judicial 25 function independently and impartially .” ( Emphasis added ) Mulenga JSC also noted in A.G v Uganda Law Society – Supreme Court Constitutional Appeal No. 1 of 2006 , as follows: 85 “There is no doubt that military courts are special courts. But they are all 5 the same, and in a court, justice must not only be done, but must be seen to be done. The military criminal justice system like any other criminal justice system is a legal system and should be entrusted to those who are learned in the art of administration of criminal justice so that the job of adjudication can be thoroughly administered … … In other words, the system needs those 10 who are first of all lawyers (learned and experience d in adjudication) before they are service personnel” He alluded to the options available ; and cited some jurisdictions that use the jury system , where adjudication is still controlled by a military judge who is a lawyer while the jury consists o f members of the armed force. The other, 15 wa s a system where the military may have a special commissioning of magistrates and judges to do a proper job of administration of justice. In th at scenario , the Chief Justice allocate s the judicial officers to the military tribunals. Another option , is a system manned by military officers; but the Judge advocate ’s opinion on matters of law prevails, and is binding . Last , a 20 standing C ourt M artial , which is separate from the army and military prosecuting arm , and is an integral part of the Judiciary , is another option. In our jurisdiction, the absence of legally trained personnel in the exercise of judicial power in the GCM and the other military C ourts or tribunals , is at variance with the situation obtaining in the civil Courts . This presents two 25 parallel and contrasting standards in the administration of justice . The civil Courts are competent as they meet the standards laid down in the Constitution ; while t he Courts martial function in sharp con verse thereto, and this is inimical to the right to a fair hearing before an independent and 86 impartial Court. Hence, it adversely discriminates against persons who 5 appear before the Courts martial . The consequence of this is that it renders the functioning of the Courts Martial unconstitutional. (b) Composition of the court by military personnel Counsel for the R espondent argued that the composition of the court that includes army personnel who are answerable to their superiors is a 10 derogation of the right to a fair hearing by in essence creating the appearance of bias or objective partiality. As already noted , previously , military courts were presided over by a judge advocate who was appointed by the Chief Justice and consisted of not less than three officers of the armed forces. T h at changed with the enactment of Statute No. 3 of 1992 ; and this was captured 15 in the 1995 Constitution. T his issue gives rise to two distinct questions. First, whether a parallel system of military courts or tribunals, staffed by members of the military who are aware of and sensitive to military concerns, by its very nature, inconsistent with Art 28 (1) of the C onstitution . Second , if the answer to the first question is 20 in the positive, whether that is the end of the matter. However, if it is in the negative, then the next question is whether the General Court Martial, as constituted at the time the Respondent was charged under the UPDF A ct and regulations made thereunder, is an independent tribunal for the purposes of Art 28 (1). Various jurisdictions have taken different positions in this regard . 25 Some C ommonwealth jurisdictions have found that having military officers or a mixture of both civilians and members of the military exercising adjudicatory role in a military C ourt does not contravene the ir C onst itution s ; but only if 87 the re are sufficient safeguards in place that ensure the members of the Court 5 are independent and impartial. In R v Genereux (supra), the Canadian C ourt held that the answer to the first question is in the negative . In MacKay v The Queen [1980] 2 SCR 370 (supra), Mackyntire J explained the advantages of having military personnel on the C oram , thus : 10 “It is said that by the nature of his close association with the military community and his identification with the military society, the officer is unsuited to exercise this judicial office. It would be impossible to deny that an officer is to some extent the representative of the class in the military hierarchy from which he comes; he would be less than human if he were 15 not. But the same argument, with equal fairness, can be raised against those who are appointed to judicial office in the civilian society . We are all products of our separate backgrounds and we must all in the exercise of the judicial office ensure that no injustice results from that fact. I am unable to say that service officers, trained in the ways of service life and concerned 20 to maintai n the required standards of efficiency and discipline – which includes the welfare of their men – are less able to adjust their attitudes to meet the duty of impartiality required of them in this task than are others.” The Court denied that this difference created inequality when compared with the civilian counterparts who appeared in ordinary C ourts when it noted that: 25 “Furthermore, the problems and the needs of the armed services, being in many respects special to the military, may well from time to time require the special knowledge possessed by officers of experience who, in this 88 respect, may be better suited for the exercise of judicial duty in military 5 courts than their civilian counterparts. It has been recognized that wide powers of discipline may be safely accorded in professional associations to senior members of such professions. The controlling bodies of most professions such as those of law, medicine, accountancy, engineering, among others, are given this powe r. I am unable to say that the close 10 identification of such disciplinary bodies with the profession concerned, taken with the seniority enjoyed by such officers within their professional group, has ever been recognised as a disqualifying factor on grounds of bias or otherwise. Rather it seems that the need for special knowledge and experience in professional matters has been recognized as a reason for the 15 creation of disciplinary tribunals within the separate professions. It must also be remembered that wh ile this appeal concerned only the armed services serving in Canada, the position of forces serving abroad not being in issue, it must be recognized that in service abroad the officers must assume the judicial role by reason of the absence of any civil leg al processes. 20 The character of the officer for independence and impartiality will surely not vary because he is serving overseas. The practical necessities of the service require the performance of this function by officers of the service and I find no off ence to the Canadian Bill of Rights in this respect. I would add that there now exists a Court Martial Appeal Court, a professional Court 25 of Appeal with a general appellate jurisdiction over the courts martial. This is, in my view, a significant safeguard and its creation is a realistic and practical step toward the provision of that protection which is required in the circumstances .” ( Emphasis added ) 89 It is however vital to note th at a decision in the Canadian Court system is 5 subject to supervision by a military C ourt staffed with civilian judges as already pointed out. It is also important to note that there were two d issenting voices in that appeal; to which I will ad vert . This reasoning was adopted b y the United Kingdom in R v Spear & Anor (supra) where, at para 5 7, Lord Roger explained that: 10 “ [ A ] rt 6 does not require that the members of the tribunal should not share the values of the military community to which they belong any more than it requires that the judge or members of the jury in a civil court should be divorced from the values of the wider community of which they form part. What matters is that, while sharing the values of the Service community, the 15 members of the court - martial should put aside any prejudices which they may have and act – and be seen to act – independently and impartially i n deciding the issues in the case before them. ” In R v Genereux (supra), the C ourt noted that the special status of the military allows for military personnel to sit in the military C ourts . The Judge observed 20 as follows: “This, in itself, is not sufficient to constitute a violation of s. 11( d ) of the Charter . In my opinion the Charter was not intended to undermine the existence of self - disciplinary organizations such as, for example, the Canadian Armed Forces and the Royal Canadian Mounted Police. The existence of a 25 parallel system of military law and tribunals, for the purpose of enforcing discipline in the military, is deeply entrenched in our history and is supported by the compelli ng principles discussed above. An accused's right to be tried by 90 an independent and impartial tribunal, guaranteed by s. 11( d ) o f the Charter , 5 must be interpreted in this context. In this regard, I agree with the conclusion reached by James B. Fay in Part IV of his considered study of Canadian military law ("Canadian Military Criminal Law: An Examination of Military Justice" (1975), 23 Chitty's L.J. 228, at p. 248 ) : ‘In a military organization, such as the Canadian Forces, there cannot ever 10 be a truly independent military judiciary; the reason is that the military officer must be involved in the administratio n of discipline at all levels. A major strength of the present military judicial system rests in the use of t rained military officers, who are also legal officers, to sit on cou rts martial in judicial roles. If this connection were to be severed, (and true 15 independence could only be achieved by such severance), the advantage of independence of the judge that might thereby be achieved would be more than offset by the disadvantage of the eventual loss by the judge of the military knowledge and experience which today helps him to meet his responsibilities effectively. Neither the Forces nor the accused would 20 ben efit from such a separation .’” However, the European Court has taken a strict approach in a recent case of Mustafa v Bulgaria Request No. 1230/17 , decided on 28 th November, 2019 , when it rejected trial of civilians by military judges. In that case, civilia n judges were appointed to the military C ourts where they were incorporated into the army 25 a nd assigned a rank. In ho ld ing that the judges in military C ourts should be civilians without any military ranks , the Court noted as follows : 91 “It is true that, with regard to the status of military judges, the Bulgarian 5 law provided for a regime very similar to that of the statute of civil judges (see paragraphs 13 and 16 above). In addition, the same procedural rules apply in cases examined by military courts and in those dealt with by ordinary criminal courts. However, elements such as the submission of military judges to military discipline, their formal membership in the 10 military body, as well as the status of military tribunal jurors, who ar e by definition army officers, suggest that military courts in Bulgarian law cannot be considered as equivalent to ordinary courts. The Court considers that these characteristics of courts military personnel are likely to raise certain doubts as to their i ndependence and impartiality …” 15 The Court then concluded that there had been breach of the right to a fair hearing; and held thus : “49. In view of the aforementioned elements, examined in particular in the light of the developments at the international lev el set out above (see paragraphs 17 - 20 above), the Court considers that the doubts harbored by 20 the applicant as to the independence and impartiality of military courts may be regarded as objectively justified (see, mutatis mutandis, Maszni, cited above, § 59, Ergin, cited above, § 54, and Incal, cited above, § 72 in fine). 50. Accordingly, there has been a violation of Article 6 § 1 of the Convention.” 25 The African Commission has taken a stance similar to the European Court. The jurisprudence of the African Commission i s clear that the C ourts should not be composed of active servicemen . I n Law Office of Ghazi Suleiman v Sudan 92 (2003) AHRLR 134 (ACHPR 2003) ( Law office case ) , where a military C ourt 5 established by a Presidential decree , compris ing four members three of whom were in active service , tried civilians . The conten tion was that the military C ourt was neither independent nor impartial , as the members thereof had been carefully chosen by the President. According to the Com mission , at para 64, the composition of the military C ourt alone was evidence of partiality. It 10 held that trying civilians in military C ourts presided over by active servicemen still under military regulations violated the right to a fair trial because the military C ourt was dominated by servicemen who were part and parcel of the executive. S imilarly, in the case of Constitutional Rights Project in respect of Lekwot & Ors) v 15 Nigeria (2000) AHRLR 183 (ACHPR 195 ) para 14 ( Lekwot case ) , the special tribunal was composed of one judge and four members of the armed forces. The Commission observed that the composition of the commission alone created , “ the appearance, if not actual lack, of impartiality . ” T he tribunal did not appear to be impartial, as it was ‘ com posed of persons belonging to the 20 executive branch that passed the civil Disturbance Act’ in addition to the fact that the three active servicemen remained subject to the military chain of command; hence, it had violated the principle that provides for a f air trial without actual or perceived bias . In Marcel Wetsh’okonda Koso & Ors v DRC (2008) AHRL 93 (ACHPR 2008) ( Koso case) , civilians and soldiers accused of theft of fuel 25 were tried together in a military court. The African Commission held: “ 85. Furthermore, in its ruling on the Media Rights Agenda v Nigeria case [(2000) AHRLR 262 (ACHPR 2000) para 66], the Commission decided as follows: ‘It could not be said that the trial and conviction of Malaolu by a special military 93 tribunal presided over by a serving military officer … took place under 5 conditions which genuinely afforded the full guarantees of fair hearing as provided for in article 7 of the Charter. ’ ” This position is similar to that taken by Laskin CJ and Estey J in their dissenting judgmen t in Mackay v The Queen (supra) cited above . This case was in respect of trial of service men in the military Court, for civil offences . The 10 contention was that s pecial treatment and special provision for the regulation of the armed forces , in their character as such , represents a reasonable classification , which so long as there is positive discrimination in the regulation, may well be compatible with the Bill of Rights. Laskin CJ understood t he contention to be that in respect of s. 120 of the National 15 Defence Act, there was a clear departure from an internal military code b y the provision for prosecution of offences under the ordinary criminal law , by military tribunals, but without putting the accused members of the armed forces in the sa me position under that law as other members of the public are, when similarly charged. He noted thus : 20 “ It is fundamental that when a person, whatever his or her status or occupation, is charged with an offence under the ordinary criminal law and is to be tried under that law and in accordance with its prescriptions, he or she is entitled to be tried before a court of justice, separate from the prosecution and free from any suspicion of influence of or dependency on 25 others. There is nothing in such a case, where the person charged is in the armed forces, that calls for any special skill of a superior officer, as would be the case if a strictly service or discipline offence, relating to military activity, was involved. There has therefore, been a breach of s. 2(f) of the 94 Bill of Rights in that the accused, charged with a criminal offence, was 5 entitled to be tried by an independent and impartial tribunal . ” ( emphasis added ) At page 374 , he went ahead to hold that the A ppellant had not been treated equally. He sa i d : “ The appellant is also entitled to succeed on the ground that he was denied 10 equality before the law, contrary to s. 1(b) of the Bill of Rights. There cannot be in this country two such disparate ways of trying offences against the ordinary law, depending on whether the accused is a member of the armed forces or not. In the Drybones case it was Indians and here it is members of the armed forces who were under disabilities; treated differently, in short, 15 from other persons in respect of the application to them of the same law. Section 120 of the National Defence Act must be held to be inoperative in so far as it subjects members of the armed forces to a different and, indeed, more onerous liability for a breach of ordinary law than are other persons in Canada w ho are also governed by that law . ” 20 I consider the stance by the African Commission and the dissenting opinion of Laskin CJ to be in consonance with our Constitution and as a better way to move away from our turbulent past as noted in our history earlier enumerated . It is in line with Art 21 of our Constitution, which provides for equality of all under the law. 25 I am bound to follow the route that will ensure an impartial and fair trial both objectively and subjectively viewed by any reasonable person. Act ive service men are under the chain of command and maybe influenced through the 95 chain of command. The law and history shows us how influential the chain 5 of command is on justice in military courts. See : R. Naluwairo (supra) on courts martial during the government of Idi Amin. Furthermore , the oath taken by the members of a military court under r. 27 of the UPDF (Rules of Procedure) Regulations binds them to their chain of command. The oath of allegiance taken by the military is in the 5 th S chedule thereo f ; and provides for allegiance 10 to the President who is also a member of the High Command and convener of the military C ourts. It reads: “I, ........................, Swear by the almighty God/do solemnly and sincerely declare and affirm that I will be fait hful to and bear true allegiance to the President and the Republic of Uganda and that I will, as in duty bound, honestly 15 and faithfully defend him/her and the Constitution of the Republic of Uganda against all enemies, and I will observe and obey all lawful orders of the officers set over me . I promise to teach and uphold in all officers and militants that may from time to time be placed under my command good discipline, bravery and trust in the Country, so help me God.” ( E mphasis added ) 20 In stark contr ast, the Judicial Oath in the Oaths Act Cap 19 , which is taken by a j udg e appointed to the civil Court reads as follows: “I, ____________swear in the name of the Almighty God/solemnly affirm that I will well and truly exercise the judicial functions entrus ted to me and will do right to all manner of people in accordance with the Constitution of the 25 Republic of Uganda as by law established and in accordance with the laws and usage of the Republic of Uganda without fear or favour, affection or ill will . (So help me God.)” ( E mphasis added ) 96 I find that the presence of military personnel as members of the Courts 5 martial i s not , by itself , evidence of the Court’s lack of independence and impartiality. H owever when viewed by an objective reasonable person , th ere is a difference between active servicemen under the chain of command , and former servicemen who are in retire ment, or about to retire , and are therefore not influenced by any hope of promotions . Th is is exacerbated by the lack of 10 provisions in the law, which would operate to reduce the pressure of outside influence; and , as well, the lack of other safeguards, e.g. security of tenure ( s ee R v Spear; Findlay v United Kingdom; Morris v United Kingdom (supra). This, taken together wit h the non - inclusion of a legally qualified judge on the panel to rule on legal issues , denies the Courts martial the independence and 15 impartiality, which would have clothed them with competence. There is a difference between a military C ourt presided over by a qualified judge , with military offic ers akin to jurors or assessors, and one having only military officers who are in active service , with no legal training whatsoever, and are subject to the chain of command . I hold the view that the right to a 20 fair hearing applies to all persons without discrimination; hence, military personnel in active service do not lose these rights merely by reason of serving in the army. The military C ourts or tribunals before which anyone appears for trial must be independent and an impartial C ourt of law or tribunal duly established to exercise judicial power in accordance with our 25 Constitution. The trial by military personnel gives a perception of bias or partiality ; especially due to the fear that t he active service men or women who are members of the GCM can be easily influenced by being subject to the chain of command. The refore, GCM and the other C ourts martial in our jurisdiction, in their current respective composition ar e evidently n ei t her 30 97 independent nor impartial; hence, subjecting any person to t rial by any of 5 them is unconstitutional. (c) Manner of appointment of its members . I have alluded to this in my analysis of the composition of the C ourt by military personnel. JSC Twinomujuni JA held in Law Society & Jackson Karugaba 10 v A.G Constitutional Petition No. 2 of 2002 & 8 of 2002 that mere appointment of the members of the C ourt by the High Command is not in itself sufficient to deprive a C ourt of the requisite im partial ity and independen ce that is an imperative in its function . I re produc e what t he learned Justice said: “My conclusion here is that military courts must be manned by soldiers. 15 Being appointed by the President to perform judicial functions is not of its self - such a big deal as long as they are professionally trained to perform such duties and they are accorded protections and privileges as all other judicial officers in civilian courts to enable them to perform their judicial function independently and impartially.” 20 I agree with the learned Justice ; but only in part. There is the military personnel sitting on a tribunal that handle s purely disciplinary matters , and only imposes such punishment as reprimand, demotion, dismissal, compensation, on the one hand, and milit ary personnel sitting in a Court, which has the competence to try persons for crimes , w hich attract such 25 penalties such as custodial sentence , or even the death sentence. I am of the opinion that there is need to distinguish between the two in determining the issues concerning the Courts martial. A ppointment to the service disciplinary organs, is normally limited to administrative matters, whereby the fact of the 98 presiding officers being subject to the chain of command does not occasion 5 any miscarriage of justice; unlike w ith the ap pointment to the Courts martial handing substantive judicial matters where it could occasion injustice . Second, the provision s for the appointment of personnel on the Courts martial must be in conformity with the pro vision s for t he appointment of judicial officers in the civil Courts ; and thereby avoid having two parallel 10 Court systems pursuing the same or similar subject matters . Third, the effect of the appointment must be considered alongside other safeguards , such as the term of office , and security of tenure. Admittedly, the President who is the Command er in Chief appoints the judicial officers of the civil Courts . However, these judicial officers do not take oath of allegiance to the 15 President ; but to the Constitution. Furthermore, they are not bound to take orders from the President . I t is the safeguards provided for in Art . 128 (8) (1) - (9) of the Constitution that insulates them from external influence or consequences; thus g uaranteeing their independence. I would therefore hold that the appointment of an officer on the Courts 20 martial by the President or the High Command might not necessarily suffice to deprive the C ourt of the requisite independence for the exercise of judicial power. However, this must be taken together with the provisions for other safeguards for the promot ion and guarantee of the independence of the Courts martial ; and then determine the effect of such appointment on the 25 independence and impartiality of the mem b ers of the Co urt . 99 (d) Term of office (security of tenure) 5 This relates to the appointment of the members of the court including the Judge Advocate. The appointment of members of the courts martial is by the High Command and for a period of one year only though eligible f or reappointment. There are also ‘waiting members’ who are appointed and can be called upon to sit in court as and when needed to reali z e Coram . See r. 21 10 & 23 of the UPDF Act (Rules of Procedure) . This term of office is relatively short and the members do not have protections of security of tenure available to civil judges in Art 128. In R v Geneureux ( supra ) , the considerations taken into account in relation to a Judge Advocate who was appointed for a short period only were examined. The Court noted: 15 “U nlike the situation of the ordinary courts, a judge advocate is appointed to sit on a General Court Martial on an ad hoc basis. This temporary appointment reflects the nature of the General Court Martial, which is convened when necessary to deal with a breach of the Code of Service Discipline. At the conclusion of this type of court martial, the judge advocate 20 and members return to their usual roles within the military. For the members of the General Court Martial, this me ans a return to their regular duties as officers. For the judge advocate, it means a return to legal duties within the Office of the Judge Advocate General.” The fact that a member of the Court is appointed only for a short period of 25 time , and on an ad hoc basis , means that such a person may have no cushion against external influence by the one who appoints him or convenes the C ourt. Indeed the Cour t went ahead in the R v Geneureux case ( supra ) , to note as follows: 100 “It is my conclusion that this arrangement does not guarantee a judge 5 advocate sufficient security of tenure to satisfy the requirements of s. 11( d ) of the Charter . The National Defence Act and regulations fail to protect a judge advocate against the discretionary or arbitrary interference of the executive. The Judge Advocate G eneral, who had the legal authority to appoint a judge advocate at a General Court Martial, is not independent of 10 but is rather a part of the executive . Indeed, the Judge Advocate General serves as the agent of the executive in supervising prosecutions. F urthermore, under the regulations in force at the time of the appellant's trial, the judge advocate was appointed solely on a case by case basis. As a result, 15 there was no objective guarantee that his or her career as military judge would not be affected by decisions tending in favour of an accused rather than the prosecution. A reasonable person might well have entertained an apprehension that a legal officer's occupation as a military judge would be affected by his or her performance in earlier cases. Nothing in what I have 20 said here should be taken to impugn the integrity of the judge advocate who presided at the appellant's trial, nor to suggest that judge advocates in fact are influenced by career concerns in the discharge of their adjudicative dutie s. The point is, however, that a reasonable person could well have entertained 25 the apprehension that the person chosen as judge advocate had been selected because he or she had satisfied the interests of the executive, or at least has not seriously disappointed the executive's expectations, in previous proceedings. Any system of military tribunals which does not banish such apprehensions will be defective in terms of s. 11( d ). At the very least, 30 101 therefore, the essential condition of security of tenure, in this context, requires 5 security from interference by the executive for a fixed period of time. An officer's position as military judge should not, durin g a certain period of time, depend on the discretion of the executive. ” ( E mphasis added ) I find this proposition of the law quite persuasive ; and therefore reach the conclusion that the provisions of the law governing the C ourts M artial do not 10 guarantee their independen ce or impartial ity . This owes to the fact that the members of the C ourt have only occasional short term of office , with no security of tenure , and are appointed by senior military officers who, out of the C ourt, are their direct s uperviso rs; unlike what obtains in the civil Courts presided over by civilian judges. 15 (e) Convening authority & prosecuting authority The convening authority p erform s an important role in the Court Martial judicial process, because the law grants it the dual role of the Court and that of the DPP. U nder the powers conferred on it by r.21 of the UPDF Regulations , this authority , amongst other things, determines the charges to be preferred , 20 appoints the prosecutor, issues a convening order, de termines the time of trial , and procure s attendance of the witnesses . The role that is performed by the convenor, does not usurp the role that would otherwise be the purview of the DPP ; because, Article 120 (3) of the Constitution specifically provides that the functi on of the DPP is to “institute criminal proceedings against any 25 person or authority in any C ourt with competent jurisdiction , other than a C ourt martial .” 102 I n providing for a separate prosecuting body for the Courts martial, the 5 framers of the Constitution must have had in mind, the peculiar circumstances of the military ; necessitating the creation of a special prosecuting body . Nonetheless, as has been held i n other jurisdictions , in crim inal prosecutions it is an imp e r a t ive that the convening authority lies with C ourt ; which enjoys guarantee of institutional independence from the 10 body prosecuting cases in Court . See: Colonel Thomas Allotey in: Comparative Study: The Military Justice System In Ghana And The United States (Pretrial Through Post - Trial): Need For Reforms In Ghana's Military Justice System , 2001, where the author advances the proposition that: “ In the case of a court martial, a conv ening authority may exercise unlawful 15 influence through various ways including: selection of panel members; comments or statements by the convening authority; and arbitrary discharge of panel members. Post - trial comments by commanders or other senior offic ers on how a particular case has been determined are likely to impact on potential court members and defence witnesses .” 20 The Inspectorate of G overnment , just like the DPP, exercises prosecut ing powers in the civil Courts ; but there is guarantee that in it s prosecut ion of crime s before the civil C ourts, it does not usurp the convening powers that vests in the Courts. Th is offers guarantee of the independence and impartiality of the Courts in the conduct of trials . 25 However, with regard to the Courts Martia l, the situation is wholly different. T he military appoints the convener of the Court from within its ranks; and similarly does so, for the prosecut or of the Court. It also appoints officers who are under its command to preside over the Court ; but accords them no 103 security of tenure in the exercise of their function as members of the Court. 5 This situation does no t portray or manifest an impartial and independent C ourt. Lamer CJ noted in R v Geneureux case (supra), in respect to the convening authority , as follows: “ I agree with the essenc e of Décary J.'s observations. An examination of the legislation governing the General Court Martial reveals that military officers, 10 who are responsible to their superiors in the Department of Defence, are intimately i nvolved in th e proceedings of the tribunal. This close involvement is, in my opinion, inconsistent with s. 11( d ) of the Charter . It undermines the notion of institutional independence that was articulated by this Court in Valente . The idea of a separate system of military tribunals obviously 15 requires substantial relations between the military hierarchy and the military judicial syst em. The principle of institutional independence, however, requires that the General Court Martial be free from external interference with respect to matters that relate directly to the tribunal's judicial function. It is important that military tribunals be as free as possible from 20 the interference of the members of the military hierarchy, that is, the persons who are responsible for maintaining the discipline, efficiency and morale of the Armed Forces. In my opinion, certain characteristics of the Genera l Court Martial system would be very likely to cast into doubt the institutional independence of the 25 tribunal in the mind of a reasonable and informed person. First, the authority that convenes the court martial (the "convening authority") may be the Mini ster, the Chief of the Defence Staff, an officer commanding a command, upon receipt of an application from a commanding officer, or another service 104 authority appointed by the Minister (art. 111.05 Q.R. & O.). The convening 5 authority, an integral part of th e military hierarchy and therefore of the executive, decides when a General Court Martial shall take place. The convening authority appoints the president and other members of the General Court Martial and decides how many members there shall be in a 10 particular case. The convening authority, or an officer designated by the convening authority, also appoints, with the concurrence of the Judge Advocate General, the prosecutor (art. 111.23 Q.R. & O.). This fact further undermines the institutional indep endence of the General Court Martial. It is not acceptable, in my opinion, that the convening authority, i.e., the executive, 15 who is responsible for appointing the prosecutor, also have the authority to appoint members of the court martial, who serve as t he triers of fact. At a minimum, I consider that where the same representative of the executive, the "convening authority," appoints both the prosecutor and the triers of fact, the requirements of s. 11( d ) will not be met. ” 20 The Court recommended that to avoid concentrating in the hands of the military, the power to appoint the various persons who have roles in the operation of the Court martial, the powers of the convening authority that appoint s officers of the C ourt , especially the judge advocate , should vest in the Judiciary. This would ensure independence and impartiality of the Court 25 Martial. In this regard, t he Judge stat ed thus : “ … To comply with s. 11( d ) of the Charter , the appointment of a military judge to sit as judge advocate at a particular General Court Martial should be in the hands of an independent and impartial judicial officer. The effective 105 appointment of the judge advocate by the executive could, in objective terms, 5 raise a reasonable apprehension as to the independence and impartiality of the tribunal. However, as I have concluded above, I consider that the new arts. 4.09 and 111.22 of the amended Q.R. & O. have largely remedied this defect to the extent required in the context of military tribunals. … … … 10 It is not necessary, under normal circumstances, to try alleged military offenders before a tribunal in which the judge, the prosecutor, and the triers of fact, are all chosen by the executive to serve at that particular trial. Nor can it be said to be ne cessary that promotional opportunities, and hence the financial prospects within the military establishment, for officers serving on 15 such tribunals should be capable of being affected by senior officers' assessments of their performance in the course of th e trial. I note again that the amendments to the Q.R. & O. which came into affect after the appellant's trial have alleviated this latter problem. However, this appeal falls to be decided on the constitutionality of the structure of the General Court Mar tial 20 in place at the time of trial. In short, the structure of the General Court Martial with which we are here concerned incorporated features which, in the eyes of a reasonable person, could call the independence and impartiality of the tribunal into qu estion, and are not necessary to attain either military discipline or military justice. This 25 structure, therefore cannot be said to have impaired the appellant's s. 11( d ) rights "as little as possible". The proportionality test prescribed in Oakes is thu s not satisfied. ” ( Emphasis added ) 106 In Morris v UK Application (supra), the Court also considered the position of 5 convening officer a ssumed by the General Officer Commanding to whom the president and four members of the Court were ultimately answerable. T hey were all , subordinate in rank to the Commanding officer ; and served in units stationed within the London Department. None of them had legal training. The A pplicant alleged he and been denied a fair hearing before an 10 independent and impartial tribunal o n account of the structural defects in the C ourt martial system. The Court agreed with him. See also: Findlay v UK (supra). I find the authorities I have cited herein above, quite persuasive in the proposition of the law they have expounded . Since the mil itary courts or 15 tribunals in this case are exercising judicial power, albeit speciali z ed one , they should conform to the basic character of the ordinary C ourts in terms of safeguards to independence and impartiality enumerated in Art 128. The wide powers of the convening authority over members of the court for a particular trial does not provide protection of the members of the military 20 court from outside influence . Currently, t he wide powers of the convening authority allow s that authority to appoint members with no legal training , and for short terms in office without security for tenure , and the appointment of the prosecutor and judge advocate . O bjectively viewed, it is evident that the Court lacks independen ce; hence, it cannot be seen to be impartial. 25 Accordingly then, its constitution and exercise of judicial function is unconstitutional , as it violate s Art 28 (1) and 44 (c) of the Constitution . 107 (f) Existence of other guarantees against outside pressures (also objective 5 impartiality). Mo st of the determinants of independence and impartiality of Courts have been institutional. The other aspect of fair hearing is the legal procedure available to a suspect who appears before the GCM. Procedures of fair t rial are to be observed by all C ourts and tribunals that are an integral part of the 10 judicial system. Principle 5 of the UN Basic Principles on the Independence of the Judiciary states in para 3 that everyone : “ … shall have the right to be tried by ordinary courts or tribunals using establish ed legal procedures ” … … “ tribunals that do not use the duly established procedures of the legal process shall not be created to displace 15 the jurisdiction belonging to the ordinary courts or judicial tribunals.” Para . 8 of the Basic Principles enjoins S t ates that have military C ourts or special criminal tribunals for trying criminal offenders , to ensure that such C ourts or tribunals are an integral part of the general judicial system ; and that such C ourts apply due procedures that are recognized according to international 20 law as guarantees of a fair trial, which includ es the right to appeal against conviction and sentence. In our jurisdiction, provision for fair legal proce ss is contain ed under Art . 28 of the Constitution; which I restate here below : “ 28. Right to a fair hearing. (1) In the determination of civil rights and obligations or any criminal 25 charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. 108 (2) Nothing in clause (1) of this article shall prevent the court or tribunal 5 from excluding the press or the public from all or any proceedings before it for reasons of morality, public order or national security, as may be necessary in a free and democratic society. (3) Every person who is charged with a criminal offence shall — (a) be presumed to be innocent until proved guilty or until that person 10 has pleaded guilty; (b) be informed immediately, in a language that the person understands, of the nature of the offence ; (c) be given adequate time and facilities for the preparation of his or her defence; 15 (d) be permitted to appear before the court in person or, at that person’s own expense, by a lawyer of his or her choice; (e) in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State; 20 (f) be afforded, without payment by that person, the assistance of an interpreter if that person cannot understand the language used at the trial; (g) be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court. 25 (4) Nothing done under the authority of any law shall be held to be inconsistent with — (a) clause (3)(a) of this article, to the extent that t he law in question imposes upon any person charged with a criminal offence, the burden of proving particular facts; 30 109 (b) clause (3)(g) of this article, to the extent that the law imposes 5 conditions that must be satisfied if witnesses called to testify on be half of an accused are to be paid their expenses out of public funds. (5) Except with his or her consent, the trial of any person shall not take place in the absence of that person unless the person so conducts himself or herself as to render the continuan ce of the proceedings in the presence 10 of that person impracticable and the court makes an order for the person to be removed and the trial to proceed in the absence of that person. (6) A person tried for any criminal offence, or any person authorised by hi m or her, shall, after the judgment in respect of that offence, be entitled to a copy of the proceedings upon payment of a fee prescribed 15 by law. (7) No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence. (8) No penalty shall be imposed for a criminal offence that is severer in 20 degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed. (9) A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence 25 of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal. (10) No person shall be tried for a criminal offence if the person shows tha t he or she has been pardoned in respect of that offence. 30 110 (11) Where a person is being tried for a criminal offence, neither that 5 person nor the spouse of that person shall be compelled to give evidence against that person. (12) Except for contempt of cour t, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law.” 10 Other provisions for a fair trial are contained in other articles , and refer to rights such as the right of appeal in capital cases, the right to be free from torture during the trial process , among others ; which is enjoyed by civilians in ordinary trials . These provisions for fair trial apply, without exception, to all institutions exercising judicial power. Thus, the GCM and ot her military 15 Courts are obliged to strictly adhere to them in the exercise of their judicial function. This is in pursuit of the cardinal rule for non - derogation from the right to a fair hearing and the requirement for equal treatment of all persons who appear before the Courts and tribunals ; and free from any discrimination that is not sanctioned by the Constitution. 20 Non - adherence to a fair hearing has a double - edged effect . The obvious one is the denial of an accused person the right to the due process . The other may have an adverse effect on the public. Mulenga JSC pointed out in A.G v ULS (supra) that : “It is not only that breach of a fair hearing works injustice on the accused 25 person but some accused person may also escape punishment under the guise that they were not given fair hearing. Now is the time to attend to the military Court justice system and carry out a holistic reform therein.” 111 Out of the minimum guarantees for a fair hearing in Article 28, I will only 5 consider a few. One of these is t he right to adequate time and facilities for the preparation of a defense and to be tried without undue delay. The other is the foreclosure of the right of appeal . Right to adequate time and facilities for the preparation of a defense and to be tried witho ut undue delay 10 It is clear f rom the Odoki Commission Report (supra) that informed the promulgation of the 1995 Constitution that Ugandans expressed concern and fears about military Courts; and reasons for this, included the denial of the right to legal representation of one’s choice. This was captured in the Report, at page 375 , thus : 15 “Problems with the military courts . 14:85 Some people have expressed dissatisfaction and fears about the military courts in their views submitted to the Commission. They ob serve that although such courts have jurisdiction to hear capital offences and give punishments ranging from caution (warning) to death, the accused is not 20 allowed legal representation of his or he r own choice. It is normally the military court that appoints a legal advocate to advise the accused during trial. Such advocates are army members; civilian advocates are not allowed in the military tribunals .” ( E mphasis added ) The UPDF Regulations provide that a defending officer or advocate shall be 25 appo inted to defend an accused who has been remanded for trial by court - martial , unless the accused states in writing that he does not wish such an appointment to be made ; in which case, the accused will be allowed to 112 procure his own advocate and at his or her own expense . The provision at 5 first glance appears to go over and above what is required in criminal proceeding sin civil courts, which only procure advocates for those facing trial for offences attracting the death penalty or imprisonm e n t for life. According to a Report by the Human Rights Watch, “Righting Military injustice: Addressing Uganda’s unlawful prosecution of civilians in Military Courts”, 27 th July 2011 , 10 the situat ion is not as good as it seems: “Although persons tried before military cour ts are legally entitled to be represented by a UPDF lawyer, or at their own expense by another lawyer of their choosing, the capacity to exercise the right to a defense is minimal. The UPDF defense lawyer is an active member of the armed forces, who has 15 re sponsibility for all the files before a specific military court. Before they appear in court to enter a plea, defendants are often not provided with details of the charges against them, or information about the evidence against them. Nor do they have the o pportunity to discuss a defense with their lawyer. Resources provided to mount a defense are minimal. Civilians 20 before courts martial are routinely denied bail, and often spend months, even years, awaiting trial.” They give an example of one instance out of their trial observation notes of Gener al Court Martial, June 29, 2010 “ … here an accused inquired in open court to at least know the name of his UPDF lawyer whom he had never met . 25 The judge advocate told the accused not to question the S tate. ” This situ ation ensues in addition to the fact that there is limited Judiciary oversight over the activities of the Courts martial. 113 The conclusion is that a fair trial under the GCM is not guaranteed under this 5 head since the procedure applied therein contravenes the provision of Art 28 of the 1995 Constitution on the minimum guarantees requisite for fair trial ; and there is limited avenue for complaint by accused, and limited civilian court oversight over its activi ties. . Owing to this, the procedure of trial under the GCM is unconstitutional flowing from the lack of the right of appeal to 10 civilian courts . Foreclosure of the right of appeal There is international consensus that military laws and other legislations s hould never foreclose the right of appeal from decisions of military C ourts. Article 7 (1) (a) of th e African charter provides that: ‘[e]very individual shall 15 have … (a) the right to appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force .” ( See : Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000 ) ( herein otherwise referred to as Media Rights Case) , and Law Office of Ghazi Suleiman v Sudan (2003) AHRLR 134 (ACHPR 20 2003) ( herein otherwise referred to as Law office case). A general foreclosure of t he right of appeal to ordinary C ourts , inclusive of convictions for non - capital offences, is by any legal st andard unacceptable; and is, in our jurisdiction, clearly unconstitutional . In Canada, the Court Martial Appeal Court of Canada esta blished under the 25 National Defence Act is manned by ci vilian judges . T he civil Court of Appeal of Canada also sits as the Canadian Military Court of Appeal , and is the final C ourt of appeal in military matters. The decisions of the Court Martial Appeal 114 Court of Canada may be appealed to the Supreme Court of Canada from 5 conviction, acquittal or sentence, as of right, where a j ustice of the Court Martial Appeal Court of Canada dissents on a question of law. Otherwise, leave to appeal must be granted before one appeals . The guarantee for fair trial here is that a person convict ed by a military Court has access to a C ourt manned b y civilian or common law judges. 10 Second, when it comes to capital offences, the Constitution provides for the right of appeal up to the highest C ourt of appeal. Questions as to what the highest court of appeal in military matters was debated and was a concern in before promulgation of the 1995 Constitution . The Odoki Commission Report notes this as a concern of the people at p. 376 : 15 “14:87 There is overwhelming support from those commenting on the issue that in cases of capital offences the accused should have the right to appeal not only to the court martial appeal court but also to the supreme court …” 14:90 Recommendation : (a) Military courts and disciplinary tribunals should exist in army units 20 and security organs (b) The field court martial should be abolished in order to give the accused a fair and just trial by giving him or he time to prepare his or her defence. (c) All m embers of the army and the members of the military courts in 25 particular should be educated about military law and members of military courts should receive introductory courses in administration of justice before any court starts its duties. 115 (d) Any soldier convicted of a capital offence should have the right to 5 appeal to the Supreme Court .” Article 22 of the 1995 Constitution as a mended provides: “ No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a court of competent jurisdiction in respect of a criminal offence under the laws of Uganda and the conviction and 10 sentence have been confirmed by the highest appellate court.” The Constitution lists the C ourts of record from the highest to the lowest; with the highest appellate Court ref erred to in the Constitution being the Supreme Court. There is no parallel judicial system with its own separate highest appellate C ourt when it comes to capital offen ces ; especially due to 15 the seriousness of the penal ty , which involves the taking of life - the very bedrock and building block of all other rights. For the pronouncement on the application of the Constitution to the military courts in Uganda including the Field Court Martial, see the case of ULS & Karugaba v A.G Constitutional Petitions No. 02 0f 2002 and 08 of 2002 . 20 In some countries such as Canada, the m ilitary C ourts do not even have jurisdiction over capital offences. Their broad criminal an d military law jurisdiction exists for alleged offences commit ted within Canada . However, for the offences of murder, manslaughter, and abduction of a minor, i f it is alleged to have been committed in Canada by military personnel, th en the 25 accused person must be tried in civil C ourts. 116 I have also already held that t he military C our ts are Courts of law . However, 5 they do not satisfy t h e requirements for C ourts to handle capital cases , moreover as final C ourts . I will revert to this later. The right of appeal in capital offences equally applies to civilians and persons subject to military law. Accordingly then , denying persons subject to military law th e right of appeal infringes on their right to a fair hearing ; and would thus be 10 unconstitutional . It has recently been held by the Cour t of Appeal that the right of appeal to the ordinary C ourts from military C ourts is unavailable since the UPDF Act does not provide for it ( See : PTE Muhumuza Zepha v Uganda Court Appeal Criminal App. No. 31 of 2016 (supra) delivered in February 2020. The C ourt also noted 15 that: “ The expression “highest appellate court” does not necessarily mean the Supreme Court of Uganda or the Court of Appeal of Uganda but the highest appellate court prescribed by Parliament. For purposes of the Uganda People’s Defence Forces Act, the highest appellate Court is the Court – 20 Martial Appeal Court unless otherwise prescribed by Parliament in future.” I cannot agree with this construction given the clear provisions of Art 22 of our Constitution, and the construction I have already given to i t . Besides s. 6(1) of the Law Revision (Penalties In Criminal Matters) (Miscellaneous Amendments) Act, 2 021 provides as follows: 25 “ Confirmation of a sentence of death. (1) Where court passes a death of death on any person, the registrar of that court shall, where the convicted person does not appeal the sentence within the prescribed time, transmit to the 117 Supreme Court a copy of the judgment and proceedings of that court within 5 t hirty days after the conviction for confirmation . ” This provision should be read together with section 6 (7) and 6 (6) (a) of the same Act, which grant s the Supreme Court as the highest appellate Court in the land a supervisory role over the death penalty. Section 6(7) provides “ a sentence of death imposed by a court of judicature or a court or tribunal 10 established under the U.P.D.F Act, 2005 shall only be carried out after it has been confirmed by the highest appellate court and upon an order of the President issued under subsection 6(a ).” As a matter of interpretation, ‘ S upreme C ourt’ in section 6(1) of the Law Revision (Criminal Penalties) (supra) as opposed to ‘supreme court’ clearly refers to the one Supreme Court 15 of Uganda under the 1995 Constitution. The interpretation that ‘highest appellate court’ does not refer to the Supreme Court limits the rights of military personnel as compared to civilians in capital cases, in a way that is not justified under Art 43. In th e case at hand the R espondent/ C ross A ppellant was charged in the GCM , 20 with offences that are all capital offences , for which, on conviction, a person is liable to be sentenced to the penalty of death . There is currently no right of appeal from the courts martial to the Supreme Court. A ny law where there is no provision for the right of appeal to the Supreme Court for a person who, upon trial and conviction, is liable to suffer the pena lty of death , is inimical 25 to the right to a fair hearing; hence, it contravenes Art s . 2 2 (1) , 21, 28 . and 44 of the Constitution. 118 Conclusion . 5 Having regard to what I have discussed above on this issue in the light of the rights to a fair trial enshrined in our Constitution, I find that the safeguards for independence and impartiality of the military C ourt system in Uganda, and the ir procedures for trial do not guarantee a fair trial . It is evident that the GCM lack s the independence and impartiality required under the 10 Constitution for it to subject the Respondent to a f air trial . The misgivings of the R espondent that the General Co urt Martial was not objectively independent and impartial was justified. T his situation is precisely what Twinomujuni JA addressed in ULS & Karugaba v A.G (supra) when he stated thus : “ In my humble opinion, it is not possible for Uganda Military Courts to be 15 independent and impartial given the current laws under which they are constituted and the military structure within which they operate.” The refore, i n the light of my finding that the GCM is not a fair and impartial Court , the arraignment of the Respondent before the GCM , to face trial therein, is unconstitutional as it contravenes Arts. 128, 28, and 44 (c) of the 20 Constitution . I am therefore in full concurrence with the Constitutional Court in this regard ; and a ccordingly , Ground 2 of the appeal fail s. The next two grounds concern the competence of military court s. Competence is used in various context s . According to Black’s Law Dictionary, Bryan A. Garner, 8 th Edition at p. 302, competence refers to “ the capacity of an 25 official body to do something .” It is also defined as a “ basic or minimal ability to do something. ” In terms of military c ourts, I will consider competence in terms of their jurisdiction ; which falls in two categories. First, which is 119 covered under G round 3 of the appeal, and the cross appeal , is the personal 5 jurisdiction . This is with regard to the persons that can lawfully be tried by these courts. Second, which is covered under Ground 4 of the appeal, is the subject matter jurisdiction . This pertains to the offences triable by th e se courts . Ground 3 , and the Cross - Appeal . 10 Th e issue touchin g on the competence of the GCM raised in Ground 3, the cross appeal, and to some extent Grounds 1 and 4 of the appeal, pertains to persons who c an be lawfully arraigned and tried before the GCM or what I also termed personal jurisdiction . This is pursuant to the wide jurisdiction 15 accorded the GCM, to try civilians both for military and civil offences ; whether as accomplices under the impugned s. 11 9 (1) (g) (now 117 (1)(g)) of the UPDF Act, or as principals under s. 119 (1) (h) (now 117(1)(h)) of the Act, for unlawful possession of the items specifi ed therein . Both sections of the Act derive legitimacy from the impugned secti ons 2 (now s. 1) and 179 (now 20 s. 177) of the UPDF Act. I have already found that the provisions for the Military Courts do not have the requisite safeguards that would ensure fairness and impartiality in the exercise of their judicial function. I should point out that even if they passed the test for fairness and impartiality, it would still be incumbent on this Court 25 to determine whether, or not, it is constitutional to try civilians in the GCM or other military courts/tribunals. The question whether or not civilians should be triable in the military tribunals or ‘courts’ should be determined 120 both by the Constitutional provisions in that regard, and best practices 5 obtaining in a democratic society. I will first set out the impugned provisions. Under the UPDF Act, only persons subject to military law can be subject ed to trial in a C ourt M artial for a service offence . A service offence is defined in s ection 2 of the Act thus: “ service offence” means an offence under this Act or any other Act for the 10 time being in force, committed by a person while subject to military law ;” In A.G v Uganda Law Society (supra), Mulenga JSC authoritatively espoused the position of the law regarding pers onal jurisdiction of the Court Martial, as follows : “I agree that the appellant’s contention is untenable. For an offence under 15 an Act other than the UPDF Act to be within the jurisdiction of the General Court Martial, it must have been committed by a person subject to military law . In the instant case it was not alleged, let alone shown, that the accused persons committed either of the two offences while they were subject to military law. Without that link neither of the two offences can be called a 20 se rvice offence within the meaning of the said definition.” ( Emphasis added ) Persons subject to military law are listed under the impugned section 119 (1) (g) & (h) (now 117 (1) (g) & (h) ) of the UPDF Act , as follows: “ 11 9 . Persons subject to military law . (1) The following persons shall be subject to military law - 25 (a) every officer and militant of a Regular Force; 121 (b) every officer and militant of the Reserve Forces and any 5 prescribed force when he or she is — (i) undergoing drill or training whether in uniform or not; (ii) in uniform; (iii) on duty; 10 (iv) on continuing full time military service; (v) on active service; (vi) in or on any vessel, vehicle or aircraft of the Defence Forces or any defence establishment or work for defence; 15 (vii) serving with any unit of a Regular Force; or (viii) present, whether in uniform or not, at any drill or training of a unit of the Defence Forces; (c) subject to such exceptions, adaptations, and modifications as the Defence Forces Council m ay by regulations, prescribe, 20 a person who under any arrangement is attached or seconded as an officer or a militant to any Service or force of the Defence Forces; (d) every person, not otherwise subject to military law, who is serving in the position of a n officer or a militant of any force 25 raised and maintained outside Uganda and commanded by an officer of the Defence Forces; (e) every person, not otherwise subject to military law, who voluntarily accompanies any unit or other element of the Defence Force s which is on service in any place; 30 122 (f) every person, not otherwise subject to military law, while 5 serving with the Defence Forces under an engagement by which he or she has agreed to be subject to military law; ( g) every person, not otherwise subject to military law, who aids or abets the commission of a service offence; (h) every person found in unlawful possession of — 10 ( i) arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or ( ii) other classified stores as prescribed. ( Emphasis added) Both paragraphs (g) and (h) of s ection 11 7 (1) of the Act are wide enough to encompass civilians within its purview. 15 Section 117 (1) (h ). This provision does not provide for the penalty a person found in unlawful possession of the items listed therein . However, section 179 (now s.177) of the Act cures this by bring ing the penalty provisions in other enactments into application, by provid ing thu s: 20 “17 9 . Service trial of civil offences . (1) A person subje ct to military law , who does or omits to do an act — (a) in Uganda, which constitutes an offence under the Penal Code Act or any other enactment ; (b) outside Uganda, which would constitute an offence under 25 the Penal Code Act or any other enactment if it had taken place in Uganda, commits a service offence and is, on conviction, liable to a punishment as prescribed in subsection (2). 123 (2) Where a military court convicts a person under subsection (1), the 5 military court shall impose a penalty in accordance with the relevant enactment and may, in addition to that penalty, impose the penalty of dismissal with disgrace from the Defence Forces or any less punishment prescribed by this Act.” With regard to the penalty for the offence of unlawful possession under 10 section 11 9 (1) (h), by virtu e of s.17 9 , reference can thus be made to the penalty in the Firearms Act and the Penal Code Act, on unlawful possession of firearms and g overnment stores respectively. By virtue o f the provision of section 4 of the Firearms Act Cap 320 , as amended, a civilian convicted of unlawful possession of arms and equipment specified under s. 11 7 (1) (h) of 15 the UPDF Act is liabl e to 10 years imprisonment or to a fine not exceeding 60 currency points. Under section 296 of the Penal Code Act Cap 128 , the offence is a misdemeanor, which attracts a penalty of not more than 3 years imprisonment. Section 11 7 (1) (h) o f the UPDF Act is also operationalized by the Uganda Peoples' Defence Forces (Arms, Ammunition And Equipment 20 Ordinarily The Monopoly of The Defence Forces) Regulations, No. 13, 2006 , which lists the arms and equipment s. 11 9 (1) (h) of the UPDF Act refers to. Section 11 9 (1) (g) . When s ection 11 9 (1) (g) of the Act is read together with sections 1 and 17 9 of the Act , they have the effect of providing th a t a civilian is liable , as an 25 accomplice to a person subject to military law ; whether for an offence falling both within and outside the UPDF Act. A key ingredient for the sustenance of the charge against a suspect as an accomplice is the naming , in the charge sheet , of a principal alleged to hav e committed the offence ; which the person 124 charged to gether with the principal alleged ly aided or abetted . This is clearly 5 what the ordinary meaning of the wor d s used in the provision mean. I would accordingly agree with the majority decision of the C onstitutional Court that in fail ing to name , in the charge sheet, the principal to whom the R espondent was allegedly an accomplice , rendered his being charged before the C ourt M artial under the provisions of the then s. 11 9 (1) (h) of the UPDF Act , 10 unlawful, for being defectiv e . However, should it b e determined that the military court has no jurisdiction to determine matters involv ing civilians at all , this finding will be of no effect. It is important to note that hitherto, t he issue of the lawfulness of trial of a civilian in a Court M artial ha s not been directly considered in this Court . 15 A dmittedly, a similar issue was raised in the Supreme Court case of Attorney General v s ULS (supra); albeit that it was not argued. In that case, the charges against the accused persons be fore the General Court Martial were , unlike the instant one, not offences under the UPDF Act , but those incorporated from other enactments pursuant to the provision of s. 179 of the UPDF Act 2005 . 20 One of the offence s was t errorism contrary to section 7(1) (b) and (2) (j) of the Anti - Terrorism Act , 14 , of 2002 ; while the other, which was in the alternative , was the offence of “Unlawful Possession of Firearms contrary to section the then 3 (1), and (2) of the Firearms Act . The Supreme Court noted that an issue had been raised in that case in the Constitutional Court , in C onstitutional P etition 25 No. 18 of 2005 , thus : “(4) Whether the joint trials of civilians and members of Defence Forces in military court for offences under the UPDF Act is inconsistent with Articles 28 (1), 126 ( 1) and 210 of the Constitution”. 125 H owever, that issue was abandoned in the Supreme Court. It has now 5 presented itself before this Court again, affording the Court the opportunity to pronounce ourselves on the matter; and bring closure thereto. Regarding the insta nt appeal before this Court , the divergence in opinion within the Constitutional Court on the lawfulness of trial of civilians in the Courts Martial, hing ed on two decisions : Namugerwa Hadijah v The DPP & A.G 10 Supreme Court Civil Appeal No. 04 0f 2012 ( The Namugerwa case) and 2 nd Lt . Ambrose Ogwang v Uganda Court of Appeal Criminal Appeal No. 107 of 2013 ( The Lt . Ogwang case ) . It is thus important to set them out here in more detail . The appeal in the Namugerwa case originated from a habeas corpus application made by the A ppellant in the High Court for the release of her brother from detention . The 15 contention in the High Court was that the detainee was a civilian over whom the General Court Martial had no jurisdiction; hence , he was being unlawfully detained . The application and subsequent appeal to the Court of Appeal failed ; hence her appeal to the Supreme Court. The Supreme Court found that a pr oper reading of s. 119 (1) (g) and (h), s. 179 20 (1) and s. 2 of the UPDF Act , show ed that they do not exempt civilians from trial in military C ourts. The Court observed as follows: “From the above cited provisions, it is clear to me that civilians in Uganda can become subject to military law , and once they become subject to military law they will be tried by the General Court Martial. I am unable to 25 see any exemption of civilians from the application of section 179 of the Act once they become subject to mili tary law under section 119 (1) (g) and (h) of the UPDF Act.” 126 The Court had however realized the troubling nature of the provisions of 5 sections 119 (1) (g) and (h) of the UPDF Act ; which allow trial of civilians in military C ourts as accomplices , and for o ther civil offences under any enactment. The C ourt felt obliged to apply the law as it is ; but it note d as follows: “Ordinarily civilians who are not involved in fighting wars should be tried 10 by civilian courts, not military courts. Therefore, s. 119(1) (g) and (h) of the UPDF Act is rather unusual. However, the constitutionality of this section was upheld by the Consti tutional Court in Uganda Law Society vs. Attorney General (supra) and when its decision was appealed to this court the constitutionality of the section was not raised and argued by the cross 15 appellant (Uganda Law Society), and so this court did not address . Therefore, until section 119 (1) (g) and (h) of the UPDF Act is repealed or declared to be unconstitutional by a competent court, it will remain valid, effective and enforceable regardless of the misgivings of human rights advocates about it.” ( Emphasis added ) 20 In the 2 nd Lt Ogwang case, the A ppellant was tried and convicted by Divisional Court Martial , of murder; and was sentenced to suffer death. H is app e al to the GCM and to the Court Martial Appeal Court (CMAC) unde r the repealed UPDF Act Cap 307, failed. He then appealed further to the Court of Appeal; which held that the military Courts were not C ourts as provided for under 25 Cap . 8 of the Constitution, but were tribunals otherwise known as quasi - judicial bodies. The C ourt held that the Courts Marti al were incompetent to try civilians due to the fact that they are not clothed with the independence or impartiality guaranteed under Art . 28 (1) of the Constitution . The Court 127 further held that quasi - judicial bodies must observe certain principles of law ; 5 and must have limited jurisdiction, similar to that of the disciplinary courts of the Police Force, and other bodies with such courts . As I have already poin ted out , I concur with Madrama Izama JCC in his dissent ing judgment in the constitutional petitio n that has given rise to the instant appeal, that the case s of 2 nd Lt Ogwang and Namugerwa Hadijah being 10 ordinary appeals , the decisions therein were not binding on the Constitutional Court ; hence, it i s up to the Supreme Court to clarify on this issue. Therefore , it means that 2 nd Lt Ogwang was decided per incuriam . The question in this issue is therefore whether, or not, in a typical progressive democratic society, civilians may be tried in the military courts. In considering 15 the constitutionality of the impugned sections, 2 , 17 9 , and 11 9 (1) (h ) & (g) as revised , I will consider our international obligations under the International Conventions , our Constitution, our history, international S tate practice s , and the purpose and effect test. International jurisprudence & conventions 20 While there is no international treaty , to which Uganda is a party , which contains an express provision prohibiting the trial of civilians by military courts, there i s nonetheless int ernational consensus that the jurisdiction of such courts needs to be restricted. Th ree reasons are discernible for this proposition. F irst, is the general rule that it is ordinary courts that guarantee 25 a fair and impartial hearing that should have general jurisdiction over civilians . Second, is that military discipline mostly concerns acts or omissions of military personnel , which speciali z ed milit ary courts are set up 128 to handle. T hird, is the c omplaints to international human rights bodies over 5 violation of the rights to a fair hearing in military courts or tribunals . Ordinary courts guaran tee a fair and impartial hearin g. T here is global advocacy for civilians to be tried only in ordinary Courts . This view is in line with the expert opinion of the United Nations ( See : Human Rights Report of the Working Group on Arbitrary Detention, 30 th June 2014 ) . On the 10 competence of military courts to try civilians, Principle N o. 5 of the Decaux Principles (supra) states as follows : “Military courts must, as a matter of principle, be incompetent to try civilians. In all circumstances, the State ensures that civilians accused of a criminal offense, whatever its nature, are tried in civil courts. " 15 At the sixty - eighth session of the UN General Assembly held o n August 7, 2013, the Secretary - General of the United Nations transmitted to the Assembly the report of the Special Rapporteur on the independence of judges and lawyers for consideration . The relevant paragraphs of this report read as follows: 20 “The Special Rapporteur wishes to stress that trying civilians before military or special tribunals raises serious doubts as to the independence of the judiciary declared by military tribunals and respect for the guarantees se t out in article 14 of the Covenant. It therefore considers that the competence of military courts should be restricted to strictly military offenses committed 25 by members of the personnel of the armed forces. (...) V. Conclusions (...) 129 It appears from th e case law on military tribunals by the Committee on 5 human rights and international and regional human rights mechanisms that the independence and impartiality of these courts, the trial of civilians or soldiers accused of serious human rights violations a nd the guarantees of a fair trial before these courts are a serious problem. (...) 100. All military tribunals must try only members of the armed forces 10 who have committed a military offense or a breach of military discipline. 101. The trial of civilians by military courts should be prohibited, subject to the sole exception provided in paragraph 102 below . Any military tribunal established on the territory of a State may in no case exercise its jurisdiction over civilians accused of a criminal offense in that territory. ” 15 This view is also similar to that of the European Court of Human Rights. See: Mustafa v Bulgaria Request No. 1230/17, decided on 28th November, 2019. In Mustafa v Bulgaria (supra) the European Court of Human Rights reasoned that: “Situations in which a military tribunal exercises jurisdiction over a civilian for acts directed against the armed forces may give rise to reasonable 20 doubts as to the objective impartiality of such a tribunal (Ergin, cited above, § 49). The Court considers that this is all the more so when it comes to common law offenses, taking into account, in particular, the evolution of the conception of the role of military tribunals at the international level … A judicial system in which a military cou rt is called upon to try a non - 25 military person can easily be seen as destroying the necessary distance between the court and the parties to criminal proceedings, even if there are measures of sufficient protection to guarantee the independence of this juri sdiction (Ergin, cited above, § 49). 130 The Inter - American Commission on Human Rights (IACHR) is an autonomous 5 organ of the Organization of American States (OAS) whose mission is to promote and protect human rights in the American hemisphere. It investigates human rights violations, monitors the human rights situation in member states, and advocates for the protection of human rights throughout the region. 10 In its 1997 and 1998 reports, the IACHR noted that: “Citizens must be judged pursuant to o rdinary law and justice and by their natural judges. Thus civilians should not be subject to Military tribunals. Military justice has merely a disciplinary nature and can only be used to try armed forces personnel in active service for misdemeanours or off ences 15 pertaining to their function.” See also: Annual Report of the Inter - American Commission on Human Rights - 1997. Organization of American States document OEA/Ser.L/V/II.98, doc.6, 17 February 1998, Chapter VII, Point 1; and Annual Report of the Inter American Commission on Human Rights - 1998. Organization of American States document OEA/Ser.L/V/II. 102, doc. 6 rev., 20 16 April 1999, Chapter VII . S ee also Cantoral Benavides v Peru - Judgment of 18 th August 2000 Series C No. 69 para 112 - 113. The IACHR restated th is position in Castillo Petruzzi et al v Peru - Judgment of 30 th May 1999 Series C No. 52, para 128 - 130 that: "[a] basic principle of the independence of the judiciary is that every person 25 has the right to be heard by regular courts , following procedures previously established by law". 131 Citing the United Nations Basic Principles on the Independence of the 5 Judiciary, the Court said that : " States are not to create '[tribunals that do not use the duly established procedures of the lega l process [...] to displace the jurisdiction belonging to the ordinary courts or judicial tribunals ." See also: The Annual Report of the Inter - American Commission on Human Rights – 1996; 10 Organization of American States document OEA/Ser. L/V/II.95, doc. 7 rev., 14 March 1997, Chapter VII , that : “Member states that have not already done so take the legislative and other measures necessary, pursuant to Article 2 of the American Convention, to ensure that civilians charged with criminal offences of any kind be tried by 15 ordinary courts which offer all the essential guarantees of independence and impartiality, and that the jurisdiction of military tribunals be confined to strictly military offences.” The position of the Inter - American Commission of Human Rights (IACHR) is similar to that of the African Commission. Some of the relevant principles 20 currently governing military trials within the African Region , which discourag e civilian trials in military courts , are : (i) Principles and G uidelines on the R ight to a F air T rial and Legal A ssistance in Africa. (ii) P rinciples and G uidelines on Human and Peoples Rights While 25 C ountering Terrorism in Africa . (iii) Resolution on the Right to a Fair Trial and Legal Assistance in Africa . (iv) Resolution on the Right to Recourse a nd Fair Tri al . 132 (v) Resolution on the Respect a nd Strengthening of t he Independence of 5 The Judiciary. In adopting the Dakar Declaration and Recommendations on the Right to a Fair Trial in Africa , at its 26 th ordinary session held in November 1999 in Kigali, Rwanda , the African Commission stated that: ‘[ T ]he purpose of military courts is to determine offences of a purely military 10 nature committed by military personnel … [T hey should not in any circumstances whatsoever have jurisdiction over civilians. ’ It has also stated this position in its Principles and Guidelines on the Right of a Fair trial and Legal Assistance in Africa , adopted in 2003 and has maintained this position in its individual communications, concluding observations, and 15 recommendations in per iodic state reports. I n the Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000) , the Commission found that the arraignment, trial and conviction of a civilian by a special military tribunal, presided over by serving military officer, was a violation of A rticle 7 of the African Charter and Principle 5 of the UN Basic Principles on independence of the Judiciary . Article 7 20 emphasizes the importance of fair trial guarantees, including the right to appeal to ordinary courts of law, the presumption of innocence be fore a competent court or tribu n a l, the right to legal representation, and the right to a trial within a reasonable time by an impartial court or tribunal. See also : Marcel Wetsh’okonda Koso & Ors v DRC (2008) (supra) and Media Rights Agenda v 25 Nigeria case [(2000) AHRLR 262 (ACHPR 2000) ; where t he African Commission held that the establishment of a military court whose jurisdiction extended to 133 hearing of civil acts perpetrated by civilians, was a blatant violation of article 5 7 of the African Charter. Purpose of creation . Military courts or tribunals are created to deal with discipline and regulation of the army. This rationale is well expressed in ‘ R. Naluwairo, “Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence 10 of the African Commission on Human and People’s rights” (2019)19 African Human Rights Law Journal 43 - 61’ , at page 5, as follows: “ First, since the existence of military courts in many countries is largely justified by the need to maintain military discipline, it makes sense to restrict their jurisdiction to only acts and omissions and only committed by 15 those individuals whose acts and omissions can negatively impact military discipline. For the most part these acts and omissions are military offences and the indiv iduals whose acts and omissions mainly impact on military discipline are serving military personnel. ” Evidence of violation 20 In many African countries, like in many other States, it has increasingly been realized that many civilians have been tried by military courts that lack the safeguards of independence and impartiality accorded ordinary Courts. Many African states have previously had poor record with regard to the fairness, independence, and impartiality of m ilitary courts. This has been captured in 25 R. Naluwairo, “Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence of the African Commission on Human and People’s rights” (2019)19 African Human Rights Law Jour nal 43 - 61 , at page 44, where he points out that : 134 “ Almost all African countries have military courts alongside civilian or 5 ordinary courts. The main function of military courts is to administer justice with respect to military personnel and other persons subject to military law. This arrangement is mainly for the purposes of maintenance of military discipline which is considered critical for military efficiency … The administration of justice by military courts … in Africa raises many 10 concerns that can lead an informed and objective person to conclude that what many of these courts actually do is to dispense ‘injustice’ rather than ‘justice’, as the case should be. The situation is mainly because military courts in African countries do not adhere to internationally - accepted principles for the administratio n of justice, which makes it easy for these 15 principles to be abused by the executive. For the most part, the … principles are … what are comprised in the right to a fair trial. The right to a fair trial is provided for in article 7 of the African Charter o n Human and People’s Rights and article 14 of the International Covenant on Civil and Political Rights (ICCPR).” 20 Indeed an examination of the African Commission ’ s jurisprudence paints a bleak picture o f the lack of respect for human rights in the administr ation of military justice. For this reason, t he African Commission ’ s position over the years has inched towards abolition of trial of civilians in military courts . R. Naluwairo in his work: “Improving the administration of justice by military courts in 25 Africa …” (supra), at p. 58, has attempted to explain the reason for the subsequent change in decision of the Commission as follows: “ A question may be posed at this point: Why did the African Commission depart from its decision in the Civil Liberties case now rigidly to insist that 135 military courts should not have jurisdiction over civilians? First, since the 5 existence of military courts in many countries is largely justified by the need to maintain military discipline, it makes sense to restrict their juri sdiction to only acts and omissions and only committed by those individuals whose acts and omissions can negatively impact on military discipline. For the most part these acts and omissions are military offences and the individuals 10 whose acts and omissions mainly impact on military discipline are serving military personnel. Second, it is arguable that the other reason why the African Commission does not accept the trial of civilians by military courts is because of their bad track record as far as respectin g the right to a fair trial and other human rights is concerned. 15 As some of the cases analysed in the article have demonstrated, incidents of violations of fair trial rights by military courts in African countries are numerous. These range from staffing military courts with legally incompetent serving military personnel ; holding trials in camera ; adjudging accused persons guilty until proven otherwise; denying accused persons 20 their right to counsel of their choice; and foreclosing possibilities of appeal from their decisions. In many cases the military courts also employ arbitrary procedures. In some countries, such as Uganda, for instance during Amin’s regime, military courts could even conduct trials in the absence of accused persons, who would simply be informed of the court’s 25 decision and sentence . ( Emphasis added ) It is clear that in international jurisprudence, even if the move is generally to restrict civilian trial in military courts and tribunals, the practice oscillates between complete abolition of civilian trial in military courts and trial of 136 civilians only in a certain category of cases as an exception . These categories 5 include employees and dependants accompanying military personnel abroad, among others. In the United States of America, that category has been further limited in Reid v Covert, 354 U.S. 1 (1957 ); Kinsella v United States ex re. Singleton, 361 U.S 23 (1960); McElroy v Unites States ex rel. Guagliardo, consolidated with Wilson v Bohlender, 361 U.S 281(1960); Grisham v Hagan 361 US 278 (1960) ; where the Court 10 held that employees and dependants cann ot be tried in military courts for both capital and non - capital offences. Trial of civilians is sometimes permitted under International humanitarian law, declaration of martial law in a State, and those civilians who are assimilated in the military. The legal position in the United Kingdom is that a 15 category of assimilated civilians are liable to trial in the military courts. Halsbury’s Laws of England (Volume 3, 2019) explains in para 203 as follows: “The disciplinary provisions of these codes are largely contained in the Armed Forces Act 2006, which provides a uniform service disciplinary code for the Royal Navy, the Army, and the Royal Air Force. This code of discipline 20 for the armed forces is part of the ordinary law of the land, although it is applicable only to persons expressly made subject to it, either as members of the Royal Navy, the Army or the Royal Air Forc e, or as belonging to certain specified categories of civilians associated with the armed forces. It is not to be confused with what is called martial law, which comes into 25 operation only when a state of actual war, or of insurrection or rebellion amountin g to war, exists. ” 137 However, it should be remembered that in the UK, civilians can be tried in 5 military Courts. However, unlike in Uganda, they have safeguards within their military structure since they have the courts martial, and the service civilian cour t with the power to try civilians. There has been a move to find a middle ground that justifiably limits the category of civilians triable in military courts or tribunals . See: The Yale Draft 10 Principles for Governing Administration of Justice through Military Tribunals ; and The Human Rights Committee observed in paragraph 22 of its General Comment No. 32 that the trial of civilians by military or special courts should be done only in exceptional circumstances. Trials by military courts should be limite d to cases where the State party to the Covenant can demonstrate in concreto that 15 recourse to such courts is necessary and justified by “objective and serious reasons” and only where, in relation to the specific class or category of persons and offenses in question, ordinary civil courts are not in a position to undertake such trials. It is therefore incumbent on the State party, which seeks to try civilians before mili tary courts to demonstrate, in relation to the 20 specific category of persons in question that: (a) T he ordinary courts are not competent to hear the case . (b) O ther alternative forms of special or high - security civilian courts are inadequate for the task ; hence, recourse to military courts is unavoidable . 25 (c) R eferral to military courts guarantees full respect for the rights of the accused, as prescribed by article 14 of the Covenant. 138 Ugandan jurisprudence and t he History of Uganda 5 Purpose and effect test In the face of these divergent views, I find guidance in the principles of constitutional interpretation, one of which is the purpose and effect of creation of the military courts. The objective of any legislation has to be unmistakably clear; and the statement of purpose should, to the extent 10 possible, be kept separate from the means adopted to achieve it (See R v Moriarity [2015] 1 R.C.S 485 at 498 ). Court can examine the text, context and scheme of legislation in order to infer its purpose. The purpose and effect test in principles of Constitutional interpretation is vital in determining the constitutionality of legislation. In The Queen v Big Drug 15 Mart Ltd (1996) LRC (C0nst.) 332 , in expounding on the importance of both the purpose and effec t, Dickson J who delivered the judgment of the Court noted thus: “In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional 20 effect can invalidate legislation. All legislatio n is animated by an object the legislature intends to achieve. This object is realised through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultima te impact, are clearly linked, if not indivisible. Intended and actual effects 25 have often been looked to for guidance in assessing the legislation's object and thus, its validity.” He further explained: 139 “ In short, I agree with the respondent that the legis lation's purpose is the 5 initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with 10 rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. ” The purpose of the military courts provid ed for under the Constitution and 15 the UPDF Act, as is discernible from the several decisions, principles and recommendations, I have cited or referred to above, is to promote and ensure discipline in the military. Courts martial, or tribunals, are speciali zed courts meant to serve the functions provided for in Art. 209 of the Constitution; for which they require the highest form of discipline . This is abundantly clear 20 from the powers conferred on Parliament under Art. 210 of the Constitution to create organ s of the UPDF that would promote the intended discipline. Therefore, with regard to the military, as can be seen from their structure, rules and procedures, conducting trial of civilians generally does not fit within their mandate . 25 The current effect of t rial of civilians in the military courts for criminal offences is that they will not partake in the rights enjoyed by their civilian counterparts who appear in the civilian Courts for the same offences. This includes the right to a fair hearing discussed in the resolution of ground 2 140 under Art 28 (1) and as provided in the International Covenants discussed 5 above. Worse still, such persons can face trial for offences whose trial are within the purview of the ordinary Courts; with the military courts having the right to impose the death penalty, and yet the law as it stands does not avail the convict the right to appeal to the Supreme Court. Is this limitation on their rights to appear before a civilian Court justifiable under Article 43 of 10 this Constitutio n? Article 43 provides that certain rights can be restricted in the public interest as justified in a democratic society. It states thus: “ 43. General limitation on fundamental and other human rights and freedoms. (1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no 15 person shall prejudice the fundamental or other human rights and freedoms of others or the public interest . (2) Public interest under this article shall not permit — (a) politica l persecution; (b) detention without trial; 20 (c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution .” The yardstick is that the limitation mus t be acceptable and demonstrably justifiable in a free and democratic society. See: Charles Onyango Obbo & Anor. 25 vs Attorney General – Supreme Court Constitutional Appeal 2 of 2002 . Therein Mulenga JSC observed: “… [by ] virtue of the provision in clause (1), the constitutional protection of 141 one’s enjoyment of rights and freedoms does not extend to two scenarios, 5 namely: (a) where the exercise of one’s right or freedom “prejudices” the human right of another person; and (b) where such exercise “prejudice” the public interest. It follows therefore, that subject to clause (2), any law that derogates from any human right in order to prevent prejudice to the rights or freedoms of others or the public interest, is not inconsis tent with the 10 Constitution. However, the limitation provided for in clause (1) is qualified by clause (2), which in effect introduces “a limitation upon the limitation”. It is apparent from the wording of clause (2) that the framers of the Constitution wer e concerned about a probable danger of misuse or abuse of the provision in clause (1) under the guise of defence of public interest. 15 For avoidance of that danger, they enacted clause (2), which expressly prohibit the use of political persecution and deten tion without trial, as means of preventing, or measures to remove, prejudice to the public interest. In addition, they provided in that clause a yardstick, by which to gauge any limitation imposed on the rights in defence of public interest. The yardstick is 20 that the limitation must be acceptable and demonstrably justifiable in a free and democratic society. This is what I have referred to as “a limitation upon the limitation”. The limitation on the enjoyment of a protected [right] in defence of public interest is in turn limited to the measure of that yardstick. In other words, such limitation, however otherwise rationalised, is not valid 25 unless its restriction on a protected ri ght is acceptable and demonstrably justifiable in a free and democratic society. ” This case, therefore, brings out the point we know that the curtailment of the enjoyment of fundamental and other human rights and freedoms b y Art 43 142 (1) of the Constitution is not without limitation . Its application is itself 5 fettered by being limited to what is acceptable in a free and democratic society. According to Note 7 (supra) in a report prepared by the Special Rapporteur on the independence of judges and lawyers for consideration at its sixty - eighth session, it was emphasized that: “103. The burden of proving the existence of these exceptional 10 circumstances lies with the State, these circumstances having to be established on a case - by - case basis, since it is not sufficient to refer certain categories of offenses to military courts by law in abstract. ” It is therefore incumbent on t he Appellant to demonstrate that the trial of civilians by the military courts is connected to the purpose in Article s 209 15 and 210 of the Constitution in a way that is justifiable under Art 43 of the Constitution. I take cognizance of the crucial need for military courts for the maintenance of discipline in the military ; which thereby ensure s the defence of, and security in, Uganda . I also take note of the fact that that there may be need to 20 extend jurisdiction of the military courts to cover civilians who fall within the few exceptions in th e application of the law as it obtains in other juris d i ctions . However, e xtending the jurisdiction of the military courts to cover civilians in a blanket manner, whether they are alleged to be accomplice s or alleged to have been found in possession of mili tary store, is 25 unacceptable. This is because it would turn out to be an unfettered limitation on the enjoyments of the rights and freedoms enshrined in Article 43 of the Constitution; which would therefore negate the letter and spirit of the 143 restraint impo sed on the enjoyment the enjoyments of the rights and 5 freedoms enshrined in Article 43 of the Constitution. The general rule is that ordinary Courts alone have jurisdiction to try civilians. I am unable to find any rational or justifiable link between the need to maintain discipline in the army or the maintenance of security of the Ugandan borders , and trial of civilians in the military tribunals generally. This 10 position is bolstered further in the light of my findings that trials in the courts martial are devoid of independence, fairness , and impartiality in the conduct of proceedings there in, and the reasons given by the various Commissions refer r e d to that discourag e trials of civilians by military courts . The account in t he Odoki Commission Report ( supra ) of the history of military 15 trials in Uganda is not any better compared to the observations of the African Commission. That Report succinctly noted at page 376 that: “ 14:87… It is also alleged that military courts tend to be more harsh with soldiers tha n ordinary courts are in dealing with civilians. While a soldier and civilian may commit the same criminal offence e.g armed robbery, the 20 soldier will usually be heavily punished while the civilian will often receive a lighter sentence. There is even a sug gestion that civilian courts are more careful in dealing with evidence and in considering technicalities so that more defendants are acquitted for lack of evidence. To some people, there are double standards involved. They suggest that where an offence inv olves 25 both a civilian and a soldier, both defendants should be tried under the same law an in the same court. A soldier could thus be tried in either the 144 ordinary court or the court martial depending on whether a civilian co - 5 defendant is involved. ” At page 375, under the heading ‘military courts’ the Report does not indicate that the members of the Odoki Commission exhaustively discussed or gave much thought to the issue of trial of civilians. However even then, it is clear that at that time, only a limited category of civilians working closely with the 10 military were triable in the military courts. The Report continues: “ 14.82 In most countries, special courts deal with disciplinary and other offences occurring among members of military forces. Uganda follows this pattern, and the NRA Statute (Statute No. 3 of 1992) provides for military courts that have jurisdiction to deal with a range of matters concerning not 15 only members of the army but also civilians working closely with or entrusted with the sec rets of the army. The statute stipulates the composition and responsibilities of military courts at different levels of the army .” ( emphasis added ) It is apparent that the provisions of the UPDF Act, constitute a departure from 20 the previous position where civilians were generally not triable before the courts martial. It is also worth noting at this point that Uganda has been on the watch list of the African Commission for trial of civilians. The African Commission had long condemned the trial of civilians in Uganda. See: The African Commission Concluding Observations and Recommendations on 25 Uganda’s third periodic report, 2009 ; where the Commission noted with concern that Uganda had not introduced measures to limit the many categories of civilians triable in its military courts and tribunals to what is acceptable in 145 international human rights law ; which was contrary to what the C ommission 5 had recommended in 2006 . I am fortified in my view because the offences we are concerned with here are among those that could be classified as ‘ political offences ’ where the State has a special interest since the charge against the accused person is that he sought to overthrow the lawful government of Uganda . T his has been 10 recognized in the treason trial of Castillo Petruzzi et al v Peru Judgment of 30 th May 1999 Series C No. 52, para 128 - 130 , where the IACHR held unequivocally as follows: "[I]n the case under study, the armed forces, fully engaged in the counter - insurgency struggle, are also prosecuting persons associated with 15 insurgency groups. This considerably weakens the impartiality that every judge must have … " Even in the Ugandan se tting, the Odoki Commission Report documents people’s concerns over the military’s involvement in the political persecution of civilians. It noted as follows: 20 “ Politically sensitive offences 14.40 Although the army should not be a political actor, it should be politically educated and sensitive. People’s views agreed that the army has often been manipulated by major political actors. A politically aware army 25 would be more conscious of the dan gers of such manipulation happening in the future. 14.39 The people want the army to be the servant of the people. Hence, it must always be firmly under the direction of the people’s representatives, 146 namely the elected civilian authorities. It should never seek to usurp that 5 authority or to become actively involved as a major political force.” The result of my finding is that i n a case where a civilian and military personnel have committed a crime , both should be tried in the civil courts. This position was also recommended In Mustafa v Bulgaria Application 1230/17 delivered on 28 th November 2019 , the Applicant was charged with organizing and 10 leading a criminal group with the aim of obtaining financial advantages as wel l as illicit cross border trafficking of goods and objects of great value for commercial purposes. Owing to the fact that one of the presumed members of the group had been a member of the armed forces at the time, all the members of the group were subjecte d to trial by a military court. The relevant 15 provision of the Bulgarian 2006 Code of Criminal Procedure (ccp) provided as follows: “ 1. The military courts are competent to hear offences committed by: (1) Soldiers (…) (2) Military Courts are also competent to hear (…) cases offences 20 committed jointly by military personnel and civilians.” The Applicant maintained that his appearance, as a civilian, before courts composed exclusively of military personnel, in itself constituted a violation of Article 6 § 1 of the Conv ention, the relevant parts wherefore, in the circumstance of the instant appeal before this Court, read as follows: 25 "Everyone has the right to have their case heard fairly (...) by an independent and impartial tribunal, established by law, which will decide (...) on the merits of any criminal charges brought against them." T he Court said: 147 “ “32. The Court observes that it cannot be argued that the Convention 5 absolutely excludes any jurisdiction of military courts to hear cases involving civilians. Howe ver, it considers that the existence of such a competence should be examined in particular.” … … … 47. The Court accepts that the considerations relating to the connection 10 between offenses and aiding and abetting militates in favor of the trial of all the accused by the same court. However, the need to have the case tried by a military tribunal cannot be taken as absolute. Indeed, in some cases, it could be considered to try all the accused by a civil court. Consequently, the Court cannot agree with the ar gument put forward by the Government that 15 these considerations are in themselves sufficient to constitute in the present case “compelling reasons” justifying the judgment of a civilian by a military criminal court .. . … … Coincidentally, this position is i n congruence with the popular views expressed by the people of Uganda during the process that preceded the 20 framing and promulgation of the 1995 Constitution. The Odoki Commission Report (supra) states at page 376 thereof that: “14:87 … They suggest that wh ere an offence involves both a civilian and a soldier, both defendants should be tried under the same law an in the same court. A soldier could thus be tried in either the ordinary court or the court 25 martial depending on whether a civilian co - defendant is involved. ” The special place occupied by the army in the constitutional organization of democratic states must be limited to the domain of national security; with 148 the judiciary, in principle, falling within the domain of civil society. With the 5 existence of special rules governing the internal organization and hierarchical structure of the armed forces, the power of military criminal justice should extend to civilians only where there are compelling reasons justifying such a situation, based on a clear and predictable legal basis. The existence of such reasons justifying the extension of trials in military courts to civilians must 10 in each case, be demonstrated to be concrete. There is danger in a ttribution , in the abstract, of certain categories of offenses to the military courts by the national legislation ( See para 46 of Mustafa v Bulgaria (supra) ; because s uch an attribution could place the affected civilians in a position markedly different from that of citizens tried by 15 ordinary Co urts. A lthough military courts could respect Convention standards to the same extent as ordinary courts, the differences in treatment relat ing to the nature and purpose of such courts can give rise to the problem of inequality before the courts ; which should , as much as possible, be avoided . 20 From the peculiar facts of th e instant case , as is discernible from the record of appeal, it is clear that: (i) There were no exceptional conditions recognized , such as those provided for under international huma nitarian law. (ii) The ordinary Courts were not shown to be incapable of trying these 25 offences. 149 (iii) There was no assessment of the individual circumstances apart from 5 the fact that one of the accused was military personnel at the material time. (iv) There was no claim that the Respondent was assimilated in the army or in active service; (v) There are in existence other special or high - security civilian courts 10 such as the High Court with jurisdiction to try such offences as those falling under the Anti - Terrorism Act, which have the competence to try the Respondent; hence, even if such trial were permissible with some limitation, the circumstance of this case did not warrant recourse to military courts. 15 In conclusion, the provisions for the blanket trial of civilians in the military courts either as principals in s. 117 (1) (h) or as accomplices in s. 117 (1) (g) does not satisfy the limitation requirements of Article 41 of the Constitution. They are unconstitutional. Likewise, the act of the trial of civilians in the civilia n Courts under those provisions is unconstitutional. Civilians include 20 retired military service men. Ground 3 of the appeal would fail; while the cross appeal succeeds . Before I take leave of this matter, I would like to comment on and discount some arguments or rationale raised and advanced for the grant of jurisdiction to military courts over civilians to try some serious offences. One of these is 25 that military courts are more efficient in determining cases and these could be very important to the security of the country. Indeed, Counsel for the Appellant urged this Court to be mindful and consider the need to firmly deal with such acts in the military courts, when they happen. This seems to 150 indicate that the military courts are mo re efficient in doing so. This argument 5 is not sound . The S tate can establish lawful special military courts within the framework of the Constitution with the necessary minimum guarantees and resources necessary to undertake tho se judicial duties. Further, t he State also has a duty to strengthen the ordinary Courts and thus empower them to function at an optimal capacity. 10 Ground s 1 and 4 : Jurisdiction over subject matter . The impugned sections of the UPDF Act under Grounds 1 and 4 of the appeal, are : s.2 (now s. 1 ) , s.179 (now s. 17 7 ), and s.119 (1) (h) (now s. 11 7 (1) (h) ) . The Appellant vehemently defends and justifies the competence of military courts to try offences under all enactments. The majority decision of the 15 Constitutional Court from which t his appeal arises is that Courts martial are only competent to handle those disciplinary offences under Part VI of the UPDF Act; as they are offences concerning the maintenance of discipline in the military. This wa s also the ir decision in t he more recent case of Rtd . Cpt. Amon Byarugaba & 3 Ors v A.G Const. Petition No. 44 of 2015 , which is pending before 20 this Court on appeal ; and which Counsel for the R espondent/ C ross A ppellant urg ed this Court to consider. This Court’s decision i n this appeal therefore has a direct effect there on . I notic e that the term s ‘military offence’ , ‘disciplinary offence’ or ‘service offence’ are used in some texts to refer to military disciplinary offences 25 within the military court or tribunal system . In this judgment, I use these terms interchangeably to refer to those offences listed under Part VI of the UPDF Act . S ection 2 (now s. 1 ) of the UPDF Act defines a ‘service offence’ t o 151 mean : “ … an offence under this Act or any other Act for the time being in force , 5 committed by a person while subject to military law . ” ( E mphasis added ) Section s. 119 (1)( h ) (now s. 117 (1)( h ) ), provides for the offence of unlawful possession of arms , ammunition, or equipment, ordinarily being the monopoly of the Defence Forces, or other classified stores, as may be prescribed . The penalty for this offence is not provided for within that 10 section but in s.179 (now s. 177 ) which allows the military court to impose any penalty provided for under any other enactment; in this case the Penal Code Act and the Firearms Act . Section 2 (now s. 1 ) , together with s.179 and s.119(1)(h) (now s. 177 and 117 (1)( h ) respectively ) of the UPDF Act are the basis for concurrent jurisdiction of the military and civilian courts in criminal 15 offences . I nee d to draw attention to the provision of section 204 of the UPDF Act; which provides as follows: “ 204. Jurisdiction of civil court Nothing in this Act shall affect the jurisdiction of any civil court to try a person for an offence triable by that court.” 20 Notwithstanding that section 204 of the UPDF Act does not exc lude the jurisdiction of the civil Courts, there are no objective criteria for determining which of the two Courts should try a person for an offence where Courts Martial and civil Courts have co ncurrent jurisdiction. The practice that has been demonstrated in Uganda, is that the military establishment prefers to 25 try both the military personnel and non - military persons in military courts, even if the offence they are accused of is only remotely re lated to matters of the military. Even without going into the question of the competence of the 152 military courts, this selective lopsided choice of the court that should 5 exercise jurisdiction, naturally gives rise to justifiable discontent and challenge. Th e A ppellant indeed recognizes that the provisions are wide and renders nearly every offence subject to prosecut ion within the military justice system. Indeed, by virtue of the impugned sections, they include all criminal 10 offences. T h us, it is apparent that ‘Service offence’ under the UPDF Act is wider than the disciplinary offences provided for under part VI of the UPDF Act . This jurisdiction extends to cases reserved for specialized Courts, such as the Anti - corruption Court under the Anti - corruption Act, International Crimes Division under the Anti - Terrorism Act; and as well jurisdiction over 15 disciplinary offences under the U PDF Act that duplicate offences falling under these Acts. The expansive scope of jurisdiction of the Courts Martial under the impugned provisions was disapprov ed of by the Constitutional Court in 2 nd Lt Ambrose Ogwang v Uganda - Court of Appeal Criminal Appeal No. 107 of 2013 (Lt Ogwang case) where the Court stated that: 20 “The effect of s. 179 is to turn all criminal offences into service offences for persons subject to military law. The section grants jurisdiction to military courts to try all civil offences under any law rather than creating military offences.” The question here , for consideration, is the constitutional ity of this 25 provision, in the light of Art s. 28 (1) and 44 (c) of the Constitution , which the Respondent contends require s trial of criminal offences in ordinary C ourts before civil judges . Article 28 provide s : 153 “ 28. Right to a fair hearing. 5 (1) In the determination of civil rights and obligations , or 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 . ” Article 44 provides t hus: 10 “ 44. Prohibition of derogation from particular human rights and freedoms. Notwithstanding anything in this Constitution, there shall be no derogati on from the enjoyment of the following rights and freedoms - … … … (a) the right to a fair hearing ; ” 15 The argument of Counsel for the Re s pondent on the provision of the UPDF Act regarding this issue is in accord with the arguments in G round 2 of this appeal, that these provision s bring civilian s within the purview of military courts in usurpation of the powers granted to the judiciary by the Constitution . H aving found that the Courts martial should not generally try 20 civilians , I would narrow the issue at hand thus : ‘ Should military officers be tried in the Courts martial for all civil offences in addition to disciplinary offences ? ’ Does their trial in the Courts M artial for civil offences contra vene Art s. 28 ( 1) and 44 (c) of the Constitution? Article 28(1) of the Constitution does not expressly bar trials of military 25 personnel in a specialized military court, which meet the criteria discussed in ground 2 . This is because judicial power can properly be given to specialised courts . However, I hav e already determined that every person has 154 a right to appear before the ordinary or civil Courts in criminal as opposed to 5 purely disciplinary offences . Judicial power generally has been given to the Judiciary under Art 126(1). Only exceptionally are they granted to the military courts. Does that exception include trial of military personnel for crimes under other enactments? I find the answer to this narrower issue in the determination of the purpose 10 and effect of the impugned provisions . Counsel for the A ppellant, contending that the continued trial by the GCM of both criminal and civil offences is Constitutional , argue s that these sections are necessary and serve the purpose of maintaining discipline in the army by quickly dealing with any indiscipline arising within the UPDF irrespective of the Act where the offence 15 is prescribed or offence comm i tted . For convenience, I will restate the provisions of the Constitution and UPDF Act that provide for the objective of the impugned sections. Article 209 provi d es for the function of the UPDF, thus: “ 209. Functions of the defence forces. 20 The functions of the Uganda Peoples’ Defence Forces are — (a) to preserve and defend the sovereignty and territorial integrity of Uganda; (b) to cooperate with the civilian authority in emergency situations and in cases of natural disasters; 25 (c) to foster harmony and understanding between the defence forces and civilians; and (d) to engage in productive activities for the development of Uganda. The long title of the UPDF Act states that it is : 155 “ An Act to provide for the regulation of the Uganda Peoples’ Defence Forces in accordance 5 with article 210 of the Constitution, to repeal and replace the Armed Forces Pensions Act and the Uganda Peoples’ Defence Forces Act, and for other related matters. ” Article 210 of the Constitution confers on Parliament the authority to enact laws regulating the U PDF, as follows: “ 210. Parliament to regulate the Uganda Peoples’ Defence Forces. 10 Parliament shall make laws regulating the Uganda Peoples’ Defence Forces and, in particular, providing for — (a) the organs and structures of the Uganda Peoples’ Defence Forces; (b) recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces…” ( E mphasis added ) 15 The importance of a disciplined army as a vital requirement was recognised at p.374 of the Odoki Commission Report (supra) thus : “ Discipline and control . 14.79 An army should be a disciplined body. It requires mechanisms for control on the use of arms and to enforce discipline and accountability 20 within the institution. As already discussed, people have expressed deep concern about lack of discipline in the army over the last 25 years. The Armed Forces Act of 1964 which was supposed to regulate the discipli ne of the army was almost of no effect. … … … 25 But what is most important is to have a disciplined force because even if barracks are moved into the country side, if they are undisciplined the soldiers will inconvenience the people they find there. The important 156 thing is to educate ordinary soldiers about their role to ensure that they 5 know and believe in their strict code of conduct. The command structure must be willing to enforce the code and to do so in military courts where necessary. 14.81 Recommendation All soldiers should be taught the Military Cod e of Conduct which should 10 be vigorously enforced.” The word “d iscipline ” is n ei t her defined in the Constitution , n or in the UPDF Act. However, Oxford Dictionary of English, 2 nd Edition , 2003, OUP , defines the word (noun) ‘discipline’ as: “the practice of t raining people to obey rules or a code of behaviour, using 15 punishment to correct disobedience; the controlled behaviour resulting from such training; activity that provides mental or physical training; a system of rules of conduct.” T he Oxford Advanced Learner’s Dictionary, International Student’s Edition , 2006 defines the word as: 20 “ T he practice of training people to obey rules and orders and punishing them if they do not; the controlled behavior or situation that results from this training; to punish somebody for something they have done; to train somebody … to obey particular rules and control the way they behave. ” The world over, because military personnel often put themselves at risk of 25 injury or death in the performance of their duties within and outside the S tate, the military justice system puts a premium on the necessity for 157 discipline and for cohesion of military units ( See: R v Moriarity [2015] 1 R.C.S 485 5 at 505 ). Indeed, it is widely accepted in all democratic societies that discipline in the military establishment is an imperative, due to the critical role it plays in the life of a nation. In R v Spear & Anor; R v Boyd; R v Williams & other appeals and applications [UKHL] 31 at para 3 , Lord Bingham explained as follows : “Since the dawni ng of the modern age the defence of the state against the 10 threats and depredations of external enemies has been recognised as one of the cardinal functions of government. To this end most countries have over time established regular armed forces, in this c ountry a navy, then an army, and then in due course an air force. The effectiveness of such forces has been recognised to depend on their being disciplined forces: that is, forces 15 in which lawful orders will be obeyed, the law will be observed and appropri ate standards of self - control and conduct will be shown. ” The Court also poin ted out three principles widely accepted in democratic societies ; the second of which i s that: “… the maintenance of the discipline essential to the effectiveness of a 20 fighting force is as necessary in peacetime as in wartime: a force which cannot display the qualities mentioned above in time of peace cannot hope to withstand the much more testing strains and temptations of war .” From the provision of the Constitution, and the pr oposition above, I would hold that t he maintenance of discipline is a valid purpose of the impugned 25 provisions of the UPDF Act . 158 The next question is whether the restriction in the rights of the military 5 personnel to appear before ordinary courts is justifiable under Art 43 of the Constitution ( See Charles Ony a ngo Obbo & Ors v A.G (supra). The proponents of the inclu sion of other criminal offences within the purview of military courts justify it on the imperative need to ensure public order and welfare. Canad i a n military courts enjoy wide jurisdiction , just like the one conferred by the 10 impugned provis ions of the UPDF Act . I n R v Genereux [1992] 1 S.C.R 259 the Canadian Court alluded to the other function of the Code of S ervice D iscipline , being the preserv ation of public order and welfare. It held at para 1 that: “ Although the Code of Service Discipline is primarily concerned with 15 maintaining discipline and integrity in the Canadian Armed Forces, it also serves a public function by punishing specific conduct which threatens public order and welfare, including any ac t or omission punishable under the Criminal Code or any other Act of Parliament .” The specific objective noted in R v Genereux (supra) on the public order and 20 welfare is not a compelling consideration I need to take into account. I n my considered view, since the functions of the UPDF provided in Article 209 of the Constitution do not include the maintenance of public order and welfare , it would be wrong to bring in such a consideration . Second, with regard to the Can adian jurisdicti on, unlike the U gandan experience, the outstanding 25 feature that can give justif ication for the making of such additional consideration is the fact that its appellate military courts are manned by competent civilian judges who are appointed pursuant to, and clothed with 159 the same safeguards and guarantees accorded to the judges exercising 5 ju risdiction over ordinary Courts. Third , history shows that discipline and public order and cohesion may result from other reasons other than the mechanism for crime and p unishment. This is clear from the Odoki Commission Report (supra), which states at p. 365 thereof that : 10 “In general, the people believe that for most of the period since 1971, the army has suffered a severe lack of discipline. Low pay, poor morale and lack of clear sense of purpose saw many soldiers commit offences of all kinds with impunity. They used their guns to terrorise innocent people and enrich themselves. Criminals in uniform were rarely apprehended let alone 15 charged or tried for the offences they committed.” I n some instances, it is not the indiscipline within the army, but rather extraneous factors such as the manipulation of the military from outside of its ranks , which is the source of the problem . The Report notes at p. 365 that : “ Anti people and anti - democratic behaviour . 20 14:30 There is concern about the general role played by the army over long periods since independence when it was an instrument for oppression of the people. Governments which had little popular support sought to stay in power through the use of terror . The people’s rights to democratic participation were thereby suspended, and in the process, many other 25 fundamental rights of people abused. The people want to be assured that never again will its national army behave this way.” The Report went further to state that: 160 “People expressed the view that lack of discipline and terrorising of the 5 people in part flowed from the fact that most - even at senior levels - were uneducated. They were ignorant about the world, human rights and freedoms and about the role a national a rmy and patriotic soldiers should play. ” Fourth , there are already mechanisms in place to exercise this public function 10 such as the presence of the Police, the Prisons, the specific enactments against criminal conduct, and the presence of the Ordinary Cou rts to adjudicate and enforce them. In my view , the punishment of specific conduct outside what is provided for in the UPDF Act , but which threatens public welfare and order , cannot be construed to warrant grant of jurisdiction to try 15 “ every criminal condu ct ” provided for in every enactment . O the rwise, it would result in the military courts usurp ing the function granted to the ordinary Courts by the Constitution for the trial of those offences. It is only when it comes to trying military personnel abroad for offences c ommitted abroad could there be a plausible argument in support for the wide 20 jurisdiction of offences. Even then, it would be a clear violation of the Constitution to try military personnel in a legal regime where there is no recourse to the civilian C ourts by way of appeal. This has the danger of potentially plung ing the country into the type of chaos that ensued when the military conducted what was a 25 summary trial when it charged, tried, convicted and executed some of its military men in Karamoja within three days, for a capital offence ; but without according them the right to appeal at all (See The Uganda Law Society & Jackson 161 Karugaba vs The Attorney General - Constitutio nal Petitions Nos. 02 Of 2002 a nd 08 Of 5 2002 ) . I otherwise make the well - considered finding that the purpose of the provisions in the UPDF Act including disciplinary offences that do not fall within the jurisdiction of the civil courts f or trial by the courts martial, accords with the ove rall system of military justice; namely to maintain the 10 discipline and efficiency of the military in the execution of its Constitutional mandate to preserve and protect the territorial integrity of Uganda . In R v Spear 2002] UKHL 31 at 4 - 5, Lord Bingham of Cornhill rightly stated that: “The dual status of the soldier, as both soldier and citizen, raises no issue where he is said to have committed a purely military offence, that is, an 15 offence which could not be committed by anyone who was not a soldier. Some such offences are potentially very serious: mutiny, desertion, absence without leave, striking a superior officer are examples. Since these are offences which cannot be committed by those not subject to military disci pline, it is unsurprising that they cannot be tried in the ordinary courts 20 of the land and can only be tried in a military tribunal. This purpose is in my opinion firmly anchored in the legislative text , when understood in its full context. It keeps the objective and means provided for in the enactment distinct; albeit that it is expressed in succinct terms and with some generality. I find that with regard to purely disciplinary offences, 25 this is a valid purpose , whose effect I do not find usef ul to venture into. I will however proceed to consider the effect of the trial of military personnel for criminal offences falling within other enactments. 162 With regard to the effect of the legislation , it has to be show n first, that the 5 provisions affect the liberty of persons subject to military law , and second, that this liberty is put to risk in a way not connected to their purpose. Put differently, it must be shown that the impugned sections of the UPDF Act, enacted pursuant to Art 210 (b) of the Const itution, are overbroad in a manner that is not connected with their purpose; but instead go beyond the 10 promotion of discipline and achievement of the functions under Art 209 and Art 210 of the Constitution . On the liberty or rights, it is clear that the jurisdiction over civil offences granted to the military courts puts the liberty of these military personnel at risk because they carry the risk of some sort of punishment including fines, 15 imprisonment and even death penalty when they are tried for these civil offences. In R v Genereux (supra), Wigglesworth J. noted as follows : “ It is clear to me that the proceedings of the General Court Martial in this case attract the application of s. 11 of the Charter for both reasons suggested by Wilson . Although the Code of Service Discipline is primarily concerned with 20 maintaining discipline and integrity in the Can adian Armed Forces, it does not serve merely to regulate conduct that undermines such discipline and integrity. The Code serves a public function as well by punishing specific conduct which threatens public order and welfare. … … … 25 In any event, the appellant faced the possible penalty of imprisonment in this case. Even if the matter dealt with was not of a public nature, therefore, s. 11 of the Charter would nonethel ess apply by virtue of the potential imposition of true penal consequences . ” ( Emphasis added ) 163 Further , for persons subject to military law, post - trial possibilities of review 5 or appeal by a person found guilty in a military court and sentenced , may differ from th e ones available to those who appear in the ordinary courts. Perhaps it is important to set out that there are certain differences between trial before military courts and ordinary or civil courts ; to wit, certain aspects of procedure, court composi tion, sentences available, limited right of appeal 10 among others , some of them I have already dealt with in G rounds 1, 2 and 3 of this appeal . I therefore find that the impugned sections 2, 179 and 119 (1) (a) of the UPDF Act adversely affect the liberty in terest of all p ersons subject to military law. The effect of the impugned provision s of the Act, therefore , is that all persons 15 subject to military law will face trial in courts that are markedly different from the ones the ir civilian counterparts are subjected to for the same offences. According to the Appellant ’s Counsel, such persons who are subject to military law will be rightly denied the right to appear before a judge in the ordinary courts , owing to their having given their consent on acc oun t of their 20 chosen profession. This, learned counsel referred to as a case of “ volenti non fit injuria. ” I t i s therefore incumbent on this Court to pronounce itself on whether this restriction on their right to appear in the civil courts before a common law judge is justified in a democratic society , or not. In order for the impugned sections of the Act to pass th e test for 25 c onstitutional ity, as alleged by the appellant, it has to be shown that the impugned provisions are not overbroad as regards the restric tion on the enjoyment of rights provided for in Article 43 of the Constitution. Article 43 provides that certain rights can be restricted in the public interest as justified 164 in a democratic society. This second leg of the effect is what I will dwell upon ; 5 and whic h regard I now proceed to resolve the questions raised . I not e that the life of a soldier generally differs from that of a civilian; and this differen ce, where it is justifiable, is not necessarily discriminatory as to contravene the Constitution. I n the South African case of Minister of Defence v Potsane 2002 1 SA (CC) , the point was made that the differen ce between the 10 treatment accorded soldiers, and that accorded civilians , is not an infringement o n the soldiers’ rights to equality of treatment under the law. It is justified when it is rational , and is founded on the legitimate purpose of establishing a viable military justice system. This Court must therefore determine whether the unlimited jurisdiction accorded military courts by the 15 UPDF Act , which in essence limit s the soldiers’ rights to face trial before the ordinary C ourts even for the civil offences, is just ifiable in a democratic society, as is contended by learned counsel for the Appellant. The text of the UDHR, ICCPR and African Charter are not instructive on the specific jurisdiction of military tribunals. Upon review of reports, decisions 20 and recommendations of international bodies created to guide S tates in the ir implementation of the Conventions, I find that there is a strong inclination towards strictly limiting the jurisdiction of militar y courts to trial of ‘ military offences’. The Decaux Principle s (supra) provide an insight into this. As I have noted , these Principles are the result of the efforts of the Commission on 25 Human Rights under the Economic and Social Council, in fulfil ment of the resolution of the Commission that “ the integrity of the Judicial system should be observed at all times.” Principle No. 8 thereof, concerning the functional competence of military courts , provides that: 165 “The jurisdiction of military courts must be limited to strictly military offenses 5 committed by military personnel. The military courts can try persons assimilated to m ilitary status for offenses strictly related to the exercise of their assimilated function." In 2013, the Secretary - General of the United Nations transmitted to the General Assembly a report prepared by the Special Rappo rteur on the 10 Independence of Judges and L awyers for consideration at its sixty - eighth session. See: Note of 7 August 2013 , from the Secretary - General of the United Nations transmitting the report of the Special Rapporteur on the independence of judges and lawyers (A / 68/285) . The relevant paragraphs of this report read as follows: “89. In so far as their specific purpose is to try offenses related to the 15 military function, the military courts must exercise their jurisdiction only with regard to members of the armed forces perpetrating a mil itary offense or a disciplinary fault, and only when the offense or fault does not characterize a serious violation of human rights. This princip le can only be waived in exceptional circumstances and for the sole purpose of judging 20 civilians abroad who are assimil ated to armed forces personnel. ” The Note was also instructive as to what criminal offences should be tried as disciplinary offences in military courts. It emphasized that these offences should be strictly disciplinary in nature , or should affect the legally protected interest of the military . It stated: 25 “ 98. Jurisdiction ratione material military tribunals, jurisdictions specialized in meeting the specific disciplinary needs of the armed forces, must be limited to criminal offenses "of a strictly military nature" or, in 166 other words, to offenses which, by their very nature, affect the legally 5 protected interests of the military, military order, such as desertion, insubordination , or abandonment of post or command. ” It was emphasized that for ordinary or civil offences, the military officers should appear before the ordinary Courts ; except for those committed outside the jurisdiction of the state . This was the subject of para 99 of Note 7 10 of August 2013 (supra) ; which states as follows : “ 99. States should not invoke the concept of acts related to office to deprive the ordinary courts of their competence in favor of military courts. Ordinary criminal offenses committed by members of the armed forces must be tried before ordinary courts, unless the latter are unable to exercise their 15 jurisdiction due to the particular circumstances of the offense (exclusively in the case of offenses committed outside the territory of the State), these cases must be expressly provide d for by law.” Even on the regional legal plane , the African Commission has discouraged the trial of civil offences by military or specialized courts , or tribunals . Section 20 L(c ) of the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa provides that the jurisdiction of Special T ribunals and military courts should not include offences over which ordinary C ourts have jurisdiction. The L egislature is , thus seen as breaching its duty where it establishes tribunals and Sp ecial Courts that have similar jurisdiction to the ordinary 25 Courts. In Media Rights Agenda v Nigeria (2000) AHRLR 262 (ACHPR 2000) , the African Commission held that the setting up of a special military tribunal and clothing it with jurisdiction to try trea son and other related offences which 167 fell within the jurisdiction of the ordinary courts of Nigeria was unacceptable 5 as it infringed on the independence of the Judiciary. Th e rationale for this has been explained by R. Naluwairo in “Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence of the African Commission on Human and People’s rights” (2019)19 African Human Rights Law Journal 43 - 61 , at page 56 that : 10 “Besides infringing on the independence of t he judiciary , the practice of giving special tribunals and military courts the jurisdiction that belongs to ordinary courts undermines the authority of ordinary courts that cherishes democracy and the rule of law.” I n its Concluding observations on Columbia, the Human Rights Committee 15 under the United Nations framework observed that : “the competence of the military courts [should be] limited to internal issues of discipline and similar matters.” To the Dominican Republic where the police had their own court s, the Committee commented that: 20 “the National Police has its own judicial body, separate from that established by the Constitution, to try crimes and offences by its members. T his is incompatible with the principle of equality before the law pr otected by articles 12 and 2, paragraph 3, of the Covenant.” It urged them to ensure that the jurisdiction of police tribunals is restricted 25 to internal disciplinary matters. See: Columbia , UN document CCPR/C/79/Add.2, 25 168 September 1992, paragraphs 5 and 6; Dominican Republic , UN document 5 CCPR/CO/71/DOM, 26 April 2001, paragraph 10. The Inter American Court of H uman Rights noted in Castillo Petruzzi et al v Peru Judgment of 30 May 1999, Series C No. 52 , paragraph 128, as follows: “When a military court t akes jurisdiction over a matter that regular courts should hear, the individual’s right to a hearing by a competent, independent 10 and impartial tribunal previously established by law and, a fortiori, his right to due process are violated. The right to due p rocess, in turn, is intimately linked to the very right of access to the Courts.” As I have already noted, Uganda is not bound by these recommendations since the Conventions do not specifically deal with military courts ’ 15 jurisdiction . Nonetheless, they are immensely persuasive because they fortify and give meaning to the Ugandan constitutional provisions, as well as the provisio ns in the African Charter or decisions of the African Human Rights Court on fair trial . Counsel for the Appellant set out examples of S tates where the courts martial 20 or military tribunals have jurisdiction to try both criminal and disciplinary offences. While this is true, I need to point out that such a route must be taken with utmost caution ; as it must meet the criteria f or what is justifiable in a democratic society. It must be so done with due regard to the constitutional provisions on protection of rights. With th e self - caution above 25 in mind , i t is indeed important to also note that there are indeed countries that have ratified either the UDHR, ICCPR and African Charter but have chosen to include civil offences within the purview of offences triable by military 169 courts when c ommitted by military personnel. I t is noteworthy that in many 5 of these jurisd ictions , this obtains within the context of robust safeguards put in place for the protection of the rights to a fair trial. The National Defence Act, 1985 of Canada provides as follows in respect of jurisdiction over subject matter: “ 130. (1) An act or omission , 10 (a) that takes place in Canada and is punishable under Part VII, of the criminal code or any other Act of Parliament … is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subs ection (2).” I n the Canadian case of MacKay v The Queen 114 DLR (3d) 393, 426 McIntyre J said , 15 at pp 420 - 421: “With the greatest deference for those who hold opposing views, I am unable to conclude that a trial by court martial under the provisions of the National Defence Act of criminal offences, which are also offences at civil law, deprives the defendant of a fair hearing by an independent tribunal. From 20 the earliest times, officers of the armed forces in this and, I suggest, all civilized countries have had this judicial function. It arose from practical necessity and, in my view, must continue for the same reason.” However, most important to note is that unlike the case of Uganda, Canada ’s Court Martia l Appeal Court of Canada (CMAC) is a military court that exists 25 within the ordinary court system manned by civilian judges . It operates independently from the military chain of command to ensure independence, impartiality , and fairness in the appeals process. It hears appeals from 170 decis ions made by military courts martial, which are part of the military 5 justice system. In the United Kingdom, the Armed Forces Act 2006 sets out the offences against military law and these include both discipline offences and criminal conduct offences. Crimi nal conduct offences cover anything done anywhere in the world that, if done in England and Wales, would be against the civilian criminal law. The sentence that can be impo sed is similar 10 to that of the civilian Courts. The relevant section provides as follows: “42 Criminal conduct . (1) A person subject to service law, or a civilian subject to service discipline, commits an offence under this section if he does any act that — (a) is punishable by the law of England and Wales; or 15 (b) if done in England or Wales, would be so punishable.” The UK is a signatory to the ICCPR. The Court Martial therein has global jurisdiction over all Service personnel and civilians sub ject to Service d iscipline such as family members, civilian contractors, teachers and administr ative staff when serving abroad . A Judge Advocate arraigns each 20 defendant and conducts the trial, which is broadly similar to a civilian Crown Court trial in all cases, even w hen dealing with a minor disciplinary or criminal offence. The Judge Advocate General is the Judicial Head of the Service Courts and has a team of Assistant Judge Advocate Generals (AJAGs). All the judges are civilians, appointed through the independent Judic ial 25 Appointments Commission from the ranks of experienced barristers or solicitors in the same way as Circuit Judges. Hence , the law provides concrete safeguards against any possible abuse of the rights of those subjected to trial by a military court . This explains the holdings in cases such as R v Spear (supra) . The issue in R v Spear (supra) was whether a trial by a court martial in 30 171 the UK of an offence against the ordinary criminal law of the land is 5 compatible with the Art 6 - 1 of the European Conve ntion, either generally or in cases where the offence in question had been committed in the UK. Lord Rodger also explained the rationale for trial of both civil and military offences by military courts ; which I understand to be the ability of that Court to accord safeguards to a fair trial. He rejected the argument that such a trial violated 10 the right to a fair hearing. He said : “ Applying that approach, I would reject Lord Thomas's submission that, of its very nature, trial of civil offences by court - marti al is incompatible with art 6(1). In principle such a trial can fully satisfy the requirements of art 6 that the tribunal should be independent and impartial and that the accused 15 should have a fair trial . [51] That being so, it is not necessary to “justify” trial by court - martial, whether by reference to the history of the system here and in many other countries or by reference to the situation of the Services today . Lord Thomas suggested that the Government and the armed forces wished to retain 20 courts - martial for civil offences for no other reason than that the system exists and the staff are there to run it. I should therefore not wish to leave unmentioned the substantial arguments that can be advanced in favour of a system of trial by court - martial that covers both military and civil offences. ” 25 Keeping in mind our turbulent political and military history i n which the military had a hand ; and the fact that I have already found that the independence, fairness and impartiality of our military courts and tribunals 172 are lacking, I do not find this decision persuasive. It is thus necessary to 5 justify the trial in the military court pursuant to the provisions of Article 43 and in the light of Uganda’s specific circumstances and history. It is indeed a given that the need to maintain discipline in the army is an imperative. However, this must be done with limitation. The connection of the objective is not overbroad, and is only favourable, in a society where the 10 courts martial or military tribunals act with fairness and impartiality, as I have already discussed when dealing with Ground 3 of this appeal; especially where the military courts are manned by civilian judges, clothed w ith the safeguards of independence presiding over them ; f or instance, such as in the Israel military court is part of the civilian court system. B oth the UK and 15 Canada, which allow trials of all offences by the courts martial, have civilian Court oversight over the courts mar tial; which Uganda does not have. Further , the UK has a special civilian court within its military court system. In furtherance of his contention , Counsel for the Appellant referred to s. 12 of the Ghana Armed Forces Act 1962 as an example of the provisions of the 20 law of another S tate that has such a wide jurisdiction regarding service offences to cover civilians as well . I do not agree with this posit ion. Section 12 of the Armed Forces Act 1 962 of Ghana provides as follows: “ Part II - PERSO N S SUBJECT TO CODE OF SERVICE DISCIPLINE, SERVICE OFFENCES, ETC. 25 12. (1) The following persons, and no others, shall be subject to the Code of Service Discipline: (a) every officer and man of each Regular F orce. 173 …. 5 (e) every person not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or man of any force raised and maintained out of Ghana and commanded by an officer of the Armed Forces. (f) Every person not otherwise s ubject to the Code of Service Discipline, 10 who accompanies any unit or other element of the Armed Forces that is on service in any place. (g) Every person, not otherwise subject to the Code of Service Discipline, who in respect of any service offence committed or alleged to have been comitted by him, is in civil custody or in service custody; and 15 (h) Every person, not otherwise subject to Service Discipline, while serving with the Armed Forces under an engagement whereby he agreed to be subject to that Code .” These sections are not in pari materia with s. 119 (1) (g) & (h) , and do not justify the trial of civilians or military personnel in military courts for all 20 criminal offences; hence, they are not comparable or applicable. However, I have perused other provisions of th e Ghana Act and have found that the definition of service offence in section 98, being the interpretation provis ion, is in pari materia with that in section 2 of the UPDF Act that defines a service offence. Section 98 thereof defines a service offence in the following terms: 25 "Service offence" means an offence under this Act or any other enactment for the time being in force, committed by a person while subject to the Code of Servic e Discipline …” 174 Be that as it may, it is also clear that this legislation does not put Ghana on 5 the same footing in terms of the wide jurisdiction as s. 2, 179 and 119 (1)(g) & (h) of the UPDF Act put Uganda. Under section 79 of the Ghana Armed Forces Act, there are certain offences for which no person can be tried in a military court as long as it is committed in Ghana. It provides: “ 79 (1) Every person alleged to have committed a service offence may be 10 charged and dealt with and tried under the Code of Se rvice Discipline, whether the alleged offence was committed in Ghana or out of Ghana: Provided that a service tribunal shall not try any person charged with the offence of murder, rape and manslaughter, committed in Ghana ” ( E mphasis added ) 15 The proviso clearly shows that the jurisdiction of Ghana military courts and tribunals over criminal offences is not as wide as Counsel submitted. The rationale for this proviso clearly points to the fact that thy intended that certain serious criminal off ences of a capital nature committed within the jurisdiction of the criminal courts should be tried by the civil courts. 20 Similarly, I would not take Ghana as the yardstick for the interpretation of the UPDF Act in the light of the clear provisions of the Ug andan Constitution in this regard . Ghana also has shortcomings within its own military justice system ( See: Nelson Atanga Ayamdoo ’s article in Court Martial Quagmires in Ghana: Court Martial Appeals post Republic v. Lieutenant Oduro, in Military Law and the 25 Law of War Review Vol. 53 , Issue 1 (2014); and Republic v. Lieutenant Oduro [2007 - 2008] 2 SCGLR 839 . ) 175 Counsel for the appellant also referred to s.55 of the Kenya Defence Forces 5 Act 2012. Section 55 provides for offences not triable by the court - martial in the following terms: “ 55. Offences not triable by a court - martial (1) A court - martial shall not try any civilian person who is subject to this Act and charged with any of the offences under the Sexual Offences Act, 2006 (Act 10 No. 3 of 2006) and the law relating to protection from domestic violence where that offence is committed in Kenya . (2) Notwithstanding subsection (1), where a person who is subject to this Act commits an offence referred to under subsection (1) outside Kenya, th at person shall be tried and sentenced by a court - martial.” 15 What is noteworthy from this provision of the Kenyan law is that a ny provision of a law excluding civilians from trial by military court s hould do so in clear terms. Second, under section 5 of the Kenyan Act, the application of the Courts martial to civilians is expressly limited. The section provides: “ 5. Application to civilians 20 (1) The application of this Act to a civilian shall be limited to a person, other than a member of the Defence Forces, who — (a) with the authority of an authorized officer, accompanies a part, unit or formation of the Defence Force that is — (i) outside Kenya; or 25 (ii) on operations against the enemy; and (b) has consented, in writing, to subject himself or herself to this Act while so accompanying that part of the Defence Forces.” 176 It also clarifies in s.5 (3) who a person accompanying a unit or other element 5 of the Defence Forces that is on service or active service is. Under section 132, a person who aids and abets is subject to the Act. It does not include just any civilian. A civilian under that section would have to fall under those described in s. 55 above. Further , the Kenyan Act has more progressi ve provision than the UPDF Act. They have a legally trained Judge Advocate 10 whos e rulings and directions on law are bi n ding; and has a casting vote in the decision where there is a stalemate. The Act requires that a Judge Advocate at each court - martial is a magistrate or an advocate of not less than ten years standing appointed by the Chief Justice ( See Section 160 , 165, 175 ) . T here is therefore some assurance of fairness in the proceedings. The Chief Justice 15 ha s power s to generally regulate the administration and pro ceedings of the Cour ts martial. The Courts martial have to apply the principles of exercise of judicial authority enunciated in Art . 159 of the Kenyan Constitution (s ee s. 161 of the Act). S ection 186 of the Act provides for appeal to the High Court of Kenya 20 from the Courts Martial. Therefore, since the UPDF Act does not expressly exclude certain offences from the jurisdiction of the Courts martial, the military courts are conferred with jurisdiction over all offences; which, as I have pointed out, is dangerous as it leads to grave injustice. Hence, my finding that civilians should not fall within the purview of military courts in 25 a blanket manner. As already I have already noted, these question s touching on human rights have to be resolved in line with best practices and democratic principles. In light of the international jurisprudence and national jurisprudence already explored in the grounds 1, 2 and 3, interpretation of this Constitution should be grounded not just on the practices of other states, 30 177 but also with regard to the history of Uganda and the values cherished in a 5 progressive democratic society. Further, in light of the universal democratic trend, t he advice of the Afric an Commission remains relevant. In the Koso case (supra), the African Commission noted thus: “84: In many African countries, military courts and special tribunals exist 10 alongside regular judicial institutions. The purpose of military courts is to determine offences of a purely military nature commi tted by military personnel. While exercising this function, military courts are required t o respect fair trial standards. … … … 86. Consequently, in this particular case, the fact that civilians and soldiers 15 accused of a civilian offence in this instan ce the theft of drums of diesel were tried by a military court presided over by military officers was a flagrant violation of the above - mentioned requirements of good justice .” It is already clear that Art 210 of the Ugandan Constitution empower s Parliamen t to create organs to promote discipline in the army. Whether for 20 the purpose of promot ing discipline in the army, it is necessary to subject military personnel to trial in co urts martial for civil offences, was considered in the Canadian case of R v Moria rity 2015] 3 R.C.S 485 ; where the Court took a broad view of the meaning of discipline. In that case, the sections under scrutiny were s. 130 (1) (a) of the National Defence Act ( which is similar to s. 25 s.179 (now s. 17 7 of the UPDF Act ) . S ection 117(f) of the Canadian enactment created an offence of fraud (similar to s.119 (1) (h) (now s. 11 7 (1) (h) of the UPDF Act ). 178 Section 117 (f) of the National Defence Act made it an offence to commit “ any 5 act of a fraudulent nature not particularly specifie d in sections 73 to 128” thereof. The Court noted that the effect of section 130 (10 ) (a) of the Act was to “extend the jurisdiction of service tribunals in relation to all underlying federal offences to everyone subject to the CSD [Code of Service Discipl ine] .” The A ppellants therein did not contend that there was no military nexus or 10 direct connection with the maintenance of discipline, effici ency and morale in the military. They claimed rather that there was a lack of distinction between offences committ ed under military circumstances - which to them were rationally connected to discipline, efficiency , and morale - and offences c ommitted in civil circumstances, which they argued, lack such a connection. 15 They thus contended strongly that there was no ratio nal connection between the purpose of the law - which was stated as ‘ maintaining discipline, efficiency and morale of the armed forces ’ - and some of its effects which made the ‘ armed forces subject to the military justice system in the circumstances in which the offence does not directly implicate the discipline, efficiency and 20 morale of the forces ’ . T he Court held that the Appellant’s definition of ‘ discipline ’ was too narrow ; and that the impugned sections were rationally connected to their purpose. In its opinion, read by Crowell J, the Court adopted a bro ad definition of ‘ discipline ’ as follows : “Discipline is a multi - faceted trait, as complex in its nature as it is essential 25 to the conduct of military operations. At its heart, discipline on the part of individual members of the [Canadian Armed Forces] involves an instilled pattern of obedience, willingness to put other interests before one’s own, and respect for and compliance with lawful Authority. ” 179 The Court the n held that the objective of maintain ing ‘discipline, efficiency 5 and morale’ was rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances. The Court also further considered that such criminal actions may have an impact on discipline. I find it compelling to reproduce this part of the Court’s views here in extenso : 10 “For instance, the fact that a member of the military has committed an assault in a civil context — a hypothetical scenario raised by Sergeant Arsenault — may call into question that individual’s capacity to show discipline in a military environment and to respect military authorities. The fact that the offence has occurred outside a military context does not make 15 it irrational to conclude that the prosecution of the offence is related to the discipline, efficiency and morale of the military. Consider, as a further example, an officer who has been involved in drug trafficking. There is a rational connection between the discipline, efficiency and morale of the military and military prosecution for this conduct. There is, at the very least, 20 a risk that loss of respect by subordinates and peers will fl ow from that criminal activity even if it did not occur in a military context. Similarly, a member of the military who has engaged in fraudulent conduct is less likely to be trusted by his or her peers. Again, this risk provides a rational connection between the military prosecution for that conduct and the 25 discipline, efficiency and morale of the military. ” It is apparent that these examples support a broad understanding of the situations in which criminal conduct b y members of the military is at least rationally connected to maintaining the discipline, efficiency and morale of the armed forces , even when they are not on duty, in uniform, or on a military 30 180 base . However, I do not find them persuasive enough to warrant the 5 usurpation of the jurisdiction of the civil courts . To take the example used by the Court, a criminal offence that occurs in a civil context can well be tried by a civil court with the desired end - result of maintaining discipline, morale and efficiency in the army . A military officer , who has been tried and convicted by a civil court can , accordingly, be subjected to military 10 disciplinary process . The disciplinary tribunal can take the necessary disciplinary action such as reprimand, demotion or even dismissal from the forces, in appropriate cases . I therefore hold the view that the trial of military personnel for criminal offences under other enactments that are not purely disci plinary offences, is 15 unconstitutional for violating Arts. 28 (1), 44(c), 126 (1), 21 and 128(1) of the Constitution. I t would do well if there was a specialised military court manned by civilian judges in the courts martial to try military personnel specif ically for criminal offences in order to fulfil the unique needs of the UPDF . Under the principle of separation of powers, s uch a s cenario would maintain the 20 necessary distance between the courts martial and the Judiciary as the gen eral wielder of judicial power under Art 126 (1) . There are also other vital reasons militating against trial of persons subject to military law for all offences. This Court has previously held that there are certain offences that are not triable by the Court martial. This is so where a 25 particular Act grants jurisdiction under it only to a specific Court . I t would therefore be wrong for Parliament to cause a conflict by conferr ing on courts martial jurisdiction to try such an offence. For instance, since terrorism can only be tr ied by the High Court , which is an ordinary or civil court, it would 181 be contradictory to try it in the military courts as well; and also i t would be 5 self - defeating for an offence similar to terrorism to be created under the UPDF Act , and then persons are tried under it . I n the past, i t also certainly circumvent ed and defeat ed the purpose of the grant of an exclusive jurisdiction to a specific Court; and especially where , as has been pointed out, civilians were subsequently tried under the military court as 10 accomplices. The Constitutional Court had this to say with regard to the Anti - Terrorism Act , in Uganda Law Society v A.G Constitutional Petition No. 18 of 2005 : “The Anti - Terrorism Act, 2002 and Fire Arms Act Cap 299 and the Penal Code Act have offences which are brought under the UPDF Act as part of service offences. However, I do not agree with counsel for the respondent 15 that by virtue of sections 2, 179 and 197 of UPDF the General Court Martial is seized with jurisdiction to try the accused in this case for the offences of terrorism and being in unlawful possession of firearms. In my view, a court be it civil or military, can only try the accused for an offence where it is seized with jurisdiction. It would not be fair to try an a ccused person where 20 jurisdiction is excluded from it . A case in point is the instant petition where the accused persons are charged with terrorism charges, which are exclusively triable by the High Court. Section 6 of the Anti - Terrorism Act reads as follow s : - ‘ (6) The offence of terrorism and any other offence punishable by more 25 that ten years imprisonment under this Act are triable only by the High Court and bail in respect of those offence may be granted only by the High Court’ . 182 Clearly, the General Court Martial has no jurisdiction to try that case. I am 5 mindful of the provisions of S. 2 of (supra). It is of no effect because it cannot give jurisdiction which does not exist. It is immaterial to me whether the charges preferred ag ainst the accused are service offences because where the law excludes jurisdiction from a particular court, it is not competent to try it. The offence with which the accused are charged carries a death 10 sentence and is only triable by the High Court . ” ( Emph asis added ) The Court noted further that offences that require consent of the DPP are also excluded from the jurisdiction of the Courts M artial . It said: “Further, section 3 of the Anti - Terrorism Act provides that no person shall be prosecuted for an offence under this Act except with the consent of the 15 DPP yet Article 120 (3)(b) prohibits the DPP to sign any charges prosecuted in the General Court Martial. I do not agree that it is not necessary for the DPP to sign the charge sheet. That clearly confi rms the exclusion of trials of terrorism offences from the Court Martial. I am alive to the provisions of S. 2 of UPDF which define "service offence" as including "an offence under any 20 other Act",... Be that as it may, in my view, jurisdiction can only be extended to those offences where unlike in terrorism cases, the court's jurisdiction is not excluded. Giving section 2 of the UPDF Act such wide construction will end up by extending it to all criminal offences even outside its jurisdiction. I do not belie ve that by virtue of section 2 of UPDF Act, the General Court 25 Martial has jurisdiction to try electoral petition offences. In the premises the General Court Martial, in the instant case, has no jurisdiction to try the accused for Terrorism as indicted in t he charge sheet.” ( E mphasis added ) 183 Th e Constitutional Court’s position was uphel d by th is Court in A.G . v Uganda 5 Law Society - S.C Const. Appeal No. 1 of 2006 ; in which Mulenga JSC sai d: “ Furthermore, the statute that created the main offence with which the accused persons were charged before the General Court Martial expressly conferred jurisdiction over it in the High Court alone to the exclusion of any other court. Section 6 of the Ant - Terrorism Act provides – 10 “The offence of terrorism and any other of fence punishable by more than ten years imprisonment under this Act are triable only by the High Court and bail in respect of those offences may be granted only by the High Court.” It follows that the proceedings before the General Court Martial were 15 inher ently unconstitutional irrespective of the proceedings in the High Court.” I find that this holding by Mulenga JSC is still the correct position of the law that where jurisdiction is expressly excluded or where the DPP’s consent is a pre - requisite , the courts martial are not competent to handle that matter so 20 excluded irrespective of the provision to the contrary under the impugned sections 1 , 17 7 , and 11 7 (1) (g) and (h) of the UPDF Act. It amounts to a duplication to grant jurisdiction to the cou rts martial over it, when owing to gravity of these offences Parliament conferred jurisdiction over them to ordinary Courts . The other issue for consideration is the danger posed by 25 concurrent jurisdiction; where the military court could try a case that is also before the ordinary Court. This would necessitate the establishment of a mechanism between the courts martial and DPP to manage the cases, beyond 184 the mere provision in the UPDF Act that the jurisdiction of the courts martial 5 does not take away that o f the civilian courts. Concurrent trials in both military and ordinary courts for a civil offence would also be prejudicial to an accused for the simple reason that it could lead to double jeopardy as each court could potentially come up with a guilty ver dict. This renders sections 2, 179, and 119(1) (h) (now ss. 1 , 17 7 , and 11 7 10 (1) (h) ) of the UPDF Act unconstitutional for duplicat ing offences triable by other enactments; and also for provid ing the military tribunals with judicial power to try al l offences in other enactments that are triable by civilian Courts. They can lead to a violation of Art 28 which does not allow double jeopardy and also denies some persons the right to appear before the 15 ordinary or civil courts of law. Another point allude d to in the Court in A.G. v Uganda Law Society case (supra), which I would like to emphasize, is that where an offence attracts the death penalty, a court martial should have no jurisdiction to try it due to the fact that no right of appeal to the Supreme Court is provided for by the UPDF Act. 20 I have already dealt with this in my resolution of ground 2 and 3. See Art 22 of the Constitution; PTE Muhumuza Zepha v Uganda - Court of Appeal Criminal App. No. 31 of 2016 ; 2 nd Lt Ambrose Ogwang (supra) ; Sgt Klemera Frank v Uganda Criminal Appeal No. 18 of 1994 (unreported) ; Uganda Law Society & Jackson Karugaba v A.G - Const Petitions Nos 2 of 2002 & 8 of 2002 and Law Revision (Penalties in Criminal Matters) 25 (Miscellaneous Amendments) Act, 2021 . Until a right of appeal is created from sentences for offences attracting life imprisonment and death penalty to the courts of record as is available to the other persons and provided for by the 185 Constitution, the trial of criminal offences attracting those penalties is 5 unconstitutional for violating s.28(1), 44 (c), 21 and 22 of the Constitution. Additionally, a s already noted, the GCM and other military courts are all subordinate Courts. See A.G V ULS Const. Appeal No. 1 of 2006 . However, I do not agree with Mulenga JSC’s finding where he held that the GCM is subo r dinate but not lower than the High Court. According to the Black’s Law Dictionary, 10 Brayan A. Garner, Eight Edition ‘ subordinate ’ means “ Placed in or belonging to a lower rank, class or position ” or “ subject to another’s authority or control .” Assigning the ordinary English meaning to the word ‘ subordinate ,’ all Courts martial as subordinate courts created under 129 (1)(d) can only have jurisdiction that is lower than the High Court. Saying that it is surbodi nate 15 but not lower than the High Court is contradictory and has the potential to create an absurdity when it comes to the hearing of capital offences. If Parliament desires to grant them the jurisdiction to handle capital cases then it would need to do so in line with the Constitution . I will return to this later in an advisory opinion to explore the options that could be undertaken 20 by Parliament to achieve this effect Constitutionally. With this finding, the hearing by all Courts martial of offences within the jurisdiction of the Courts of record is unconstitutional under Arts. 28(1), 44(c), 128(1) and 129 91)(d) . Upon examining the objective of the law and the authorities cited, I find that the impugned provisions of the UPDF Act are overbroad, and r ationally 25 connected to the broader purpose. The trend in democratic dispensations, especially the new democracies such as Uganda, which witnessed gross human rights violations in the past, and reminds itself of its ugly past in the 186 Preamble to the Constitu tion, a sober decision has to be consciously made. 5 Sections 2 (now 1), 179 (now 177) and 119(1)(h) (now 11 7 (1) (h) ) that allow the trial of persons subject to military law, for all offences under other enactments without any qualification is overbroad. Th e need to maintain discipline is no justification for the trial of members of the UPDF, who are within the country, by the military courts; and yet there is a functional 10 judiciary. Any disciplinary action on an officer can be effected after a finding of gu ilt by the ordinary Court. I hereby find that s ections 2 (now 1), 179 (now 177) and 119(1)(h) (now 11 7 (1) (h) ) of the UPDF Act are unconstitutional in so far as they, without qualification, allow for trial of persons subject to military law for civil offences within the GCM and other military 15 courts/tribunals. Basing on this analysis and finding, Grounds 1 and 4 of this appeal would fail. H aving made the findings that the provisions of the UPDF Act that confer powers on the military courts to exercise judicial powers are unconstitutional, there arises the consequential issue of the fate of those who 20 at the time of this decision on unconstitutionality of the UPDF Act are facing charges , or undergoing trial, or have been tried and convicted before or by the military courts. This issue was neither raised nor canvassed at the hearing of the appeal; so, this Court has not had the benefit of Counsel’s opinion on the matter. Nonetheless, it is a matter of great public interest; hence, this 25 Court has to deal wi th it. Issues concerning the extent to which judicial adjudication has retrospective effect, especially regarding a finding that a law or act is inconsistent with the Constitution is not novel. See: Duke Mabeya Gwaka v The Attorney General - Const. Petittion No. 36 of 2019 , and A v The Governor of Arbour H ill Prison Supreme Court of Ireland 205/2006 . 30 187 Two rules have been developed; which have gained universal recognition and 5 application. First is that once a law has been declared unconstitutional, the n applying th e principle of direct review, the declaration has the force of retroactive application . Where however the accused person was convicted under a law that is later declared unconstitutional , and has either exhausted the appeals or has not pursued any appeal, the matter is taken to have been 10 concluded . In such circumstance, the declaration of unconstitutionality of the law has no retrospecti ve application. In retroactive application of new rules, there is a difference between civil and criminal cas es. We are here concerned with the latter. Whether a decision announcing a new rule should be given prospective or 15 retroactive effect should be determined at the time of that decision. Thus, there is a further difference between criminal cases on direct review and those on collateral review. Direct review concerns those criminal cases where the person s eeking relief arising from the new rule has not yet been tried, is undergoing trial, has been convicted but is still pursuing a direct appeal; 20 while collateral review refers to those cases where the criminal defendant has exhausted all direct appeals, if a ny. See Te ague v Lane Director Illinois Department of Corrections et al 489 US 288 (1989) . In Uganda, the Constitutional Court in Mabeya v A.G (Supra) examined Ugandan ( A.G v Susan Kigula & Ors (2009) UGSC 6 ) and American jurisprudence ( Linkletter v 25 Walker (supra), United States v Johnson, 457 U.S 537 (1982) , Griffith v Kentucky and Stovall v Denno [1967] 338 u.s 293 ) and came to the conclusion that retroactivity should depend on the, (i) the purpose of the new rule, (ii) the extent of reliance on the new rule, and (iii) the effect on the administration of justice 188 of the retroactive application of the new rule. The decisions following 5 Linkletter (supra), laid down how this rule would apply to pending cases and and those on appeal, under direct review. The current American position elucidated in Annotated Constitution prepared by Congressional Research Service at the Library of Congress, and quoted in A v The Governor of Arbour H ill Prison ( supra), stated thus: 10 “ The Court ha s now drawn a sharp distinction between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, State or Federal, pending on direct review or not yet final. (Griffith v - Kentucky [1987 479 US 314)” Thus, for 15 collateral review in fede r al courts of the state courts criminal convictions, the general rule is that new rules of constitutional interpretation, announced after a defend an t ’s convi c tion has become final will not be applied. Thus applications for habeous corpus based on a judicial decision subsequent to a conviction becoming final and not otherwise under direct 20 appeal or review fall into the category of collateral review and therefore not entitled to rely on new rules of constitutional interpretation.” This principle is apparently not novel to our modern time; as Cicero is credi ted with hav ing coined the maxim : “Summum ius summa iniuria” – variously translated , but classically as : “ the strictest application of th e law is 25 the greatest injustice” . Th is general principle regarding the effect of declaring a legislation unconstitutional was succinctly stated by Murray CJ in A vs The Governor of Arbour Hill Prison (supra). th us : “ 143. In a criminal prosecution where the State relies in good faith on a 189 statute in force at the time and the accused does not seek to impugn the 5 bringing or conduct of the prosecution, on any grounds that may in law be open to him or her, including the co nstitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is unconst itutional.” 10 The learned CJ explained the meaning of a collateral attack as follows: “ A collateral attack arises where a party, outside the ambit of the original proceedings seeks to set aside the decision in a case which has already been finally decided, all legal avenues, including appeal, having been exhausted, for reasons that were not raised in the original proceedings but for reasons 15 arising from a later court decision on the constitutionality of a statute. ” He made a comparative survey and review of various jurisdictions on the issue; and found commonality in the decisions taken by them on it . He then said: “66. The question of retrospectivity in the form raised here is one which is 20 material to all legal systems. The fact is that at no stage during the course of the hearing of this cas e was the Court’s attention drawn to any system of justice in which a finding that a law is unconstitutional, even where this is deemed to be so ab initio, meant that previous and final judicial decisions based on such a law must inevitably be considered u nlawful and of no 25 effect in law. I am not aware of any legal system that does so.” Referring to the situation obtaining in the US, he stated thus: 190 “ There are … “transcendent considerations” which militate against 5 complete or absolute retrospectivity. Fundamental interests of public policy requires limitations on the retroactive effect of judicial decisions. The legal order and the administration of ju stice is not one of perfect symmetry. As Justice Benjamin Cardozo observed at p. 161 in his seminal work The Nature of the Judicial Process (Yale University Press, 1921) “We 10 like to picture to ourselves the field of the law as accurately mapped and plotted . We draw our little lines, and they are hardly down before we blur them.” Although judicial adjudications do have retroactive effect there are important exceptions and restrictions to that effect. A line must be drawn in the interests of justice. ” 15 He fu rther elucidated on the matter thus: “127. … a judgment condemning a statute for being inconsistent with or contrary to the Constitution does not mean that all which was done or decided under that statute prior to the decision on constitutionality is in al l 20 circumstances void and of no effect. It is a principle which is, for the reasons indicated in the various judicial dicta which I have cited, consistent with the Constitution as a whole, the common law dimension of our legal system and the legal systems o f many other countries in which the courts have the same or an analogous power of judicial review of the validity of 25 laws.” He further explained that: “ 84. Certainly, issues concerning the constitutionality of statutes are on a plane higher than the mere common law, they concern questions 191 fundamental to the rule of law, the protection of rights and the very 5 framework within which, in the words of the prea mble to the Constitution, “true social order is attained”. Normally those fundamental constitutional concepts, such as the rule of law, individual rights, justice and a social order based on that rule of law blend together so that the principles of constit utional justice to be applied to resolve issues may be readily 10 deduced. On other occasions some of those considerations may be competing or even conflicting ones, where the Courts have to balance those different interests so as to do justice within the fra mework of the Constitution. … … … 15 86. In this instance one may say in broad terms that there is a competing interest between the claim by the applicant that he stands convicted under a law which has subsequently been found to be inconsistent with the Constitution as from 1937, and the interests of justice, including the rights of the victim, where he was otherwise lawfully convicted of unlawful carnal 20 knowledge of a 15 year old girl, in circumstances where, as his counsel acknowledges, the conviction a nd sentence were not tainted by any want of fairness or injustice. 87. Thus the effect of absolute retroactivity for which the applicant argues in a sense raises competing considerations which the Court has 25 to address having regard to the provisions gener ally of the Constitution and what Henchy J. alluded to as transcendent constitutional considerations, the public interest, the common good and social order.” 192 In response to the argument that the declaration that a law is 5 unconstitutional renders it null a nd void ab initio , the learned CJ had this to say: “ 91. Absolute retroactivity based solely on the notion of an Act being void ab initio so as to render any previous final judicial decisions null would lead the Constitution to have dysfunctional effects in the administration of 10 justice. In the area of civil law it would cause injustice to those who had accepted and acted upon the finality of judicial decisions. Rights which had become vested in third parties as a consequence of such decisions would be put in jeopardy. The application of a principle of absolu te retroactivity consequent upon a declaration of unconstitutionality of an Act in the field 15 of criminal law would render null and of no effect final verdicts or decisions affected by an Act which at the time had been presumed or acknowledged to be constit utional and otherwise had been fairly tried. Such unqualified retroactivity would be a denial of justice to the victims of crime and offend against fundamental and just interests of society. ” 20 I find these authorities quite persuasive and appl icable to the current situation; because the constitutional rules appli ed therein touch on the fundamental aspects of a criminal trial in a democratic dispensation. In the present case, we have those who have been charged, those undergoing trial, those convicted and are in the process of challenging such a conviction as 25 was the case in the Lt. Ogwang case (supra) , and those whose conviction is final. This is the situation obtaining with regards to those who have been defendants in the courts martial. I consider that the first three categories tha t 193 fall under direct review can without any difficulty take benefit from the rules 5 expounded herein as regards tri a l in the courts martial. However, for thos e whose trial is completed or who are also referred to as those on col lateral review, it is my considered opinion that they fall within the exception enunciated above . I n the event , I would make the following declarations : 10 (i) The Summary Trial Authority ( STA ) and the Unit Disciplinary Committee ( UDC ) are respectively lawfully established under s s . 1 91 & 192 (now s s .189 & 190 ) , and s. 195 (now s. 193) , of the UPDF Act, as military tribunals. (ii) The provision of s ection 197 (now s. 19 5 ) of the UPDF Act , 15 establishing the General Court Martial as a competent court , is c onstitutional. (iii) The General Court Martia l , created under s.197 (now s.195) of the UPDF Act, is a subordinate court of law ; but with specialized jurisdiction . 20 (iv) The provisions of s.1 79 (1) & (2) (now 177(1) & (2)) of the UPDF Act, read together with s. 197 (2) (now s.195 (2)), which grant the subordinate military courts jurisdiction over capital offences contra vene Art . 129(1) (d) and Art , 126(1) , of the Constitution ; hence they are unconstitutional . 25 (v) The provision of s. 191(3) (a) (now s.189 (3) (a), and s.195 (3) & (4) (now 193) (3) & (4)) read together with s.179 (now s.17 7) of the UPDF Act, which grant the STA and the UDC the exercise of judicial power of detention and imprisonment of any person tri ed by them , 194 contravene Arts. 23, 126(1), and 129 (1)(d) of the Constitution; 5 hence, they are unconstitutional. (vi) The provisions of the UPDF Act constituting and providing for the trial procedure of the GCM , the Division Court Martial, and the Court Martial Appeal Court , do not contain any or sufficient constitutional guarantees and safeguards for them to exercise their judicial 10 functions with independence and impartiality , which is a prerequisite for fair hearing provided for under Arts. 21, 28(1), 44(c), an d 128(1) of the Constitution. (vii) The provision of s.119(1) (g) (now s. 117 (1) (g)), of the UPDF Act, under which the Respondent, a civilian, was charg ed and arraign ed 15 in the General Court Martial , contravenes Arts. 28(1), 44 (c), and 21 of the Constitution ; hence it is unconstitutional . (viii) The provision of s. 119(1) (g) (now s. 11 7 (1) (g) ) is unconstitutional to the extent that it permits trial , in the courts martial , of civilians who have allegedly aided and abetted the commission of a service 20 offence, or ordinary criminal offence, in which a person subject to military law is a principal offender . (ix) Sections ss. 2, 179, 119 (1) (h) and (g) (now respectively ss. 1 , 17 7 , 11 7 (1) (h) and (g) ) of the UPDF Act, are unconstitutional since they confer blanket jurisdiction on Courts Martial to try civilians . 25 (x) The jurisdiction conferred by s s.2, 179, and 119 (1) (h), (now ss. 1 , 17 7 , and 11 7 (1) (h) , of the UPDF Act, on the GCM to try persons subject to military law for civil and, or , non - disciplinary offences committed in Uganda , unconstitutional; as they contravene Article s 209 & 210 of the Constitution. 30 195 I would accordingly propose the following order s : 5 (1) The declaration by the Constitutional Court that section 119(1) (g) (now s.117 (1) (g)) of the UPDF Act, which provides that any person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence is constitutional, is hereby set asid e. 10 (2) All charges, or ongoing criminal trials, or pending trials, before the courts martial involving civilians must immediately cease and be transferred to the ordinary courts of law with competent jurisdiction. (3) This judgment shall have no retrospective effect on any conviction made, and sentences imposed, prior to the date of this judgment ; save where the 15 conviction and sentence is being challenged in a Court of law . (4) A ll pending trials, or partly heard criminal cases , that fall under the civil law courts juri sdi ction , which are against members of the UPDF who are subject to service law must be tr ansferred to the civil C ourts with competent jurisdiction . 20 (5) Save for the issue of the establishment of the GCM as a Court of Law, this appeal fails; and is hereby dismissed. (6) The cross appeal is hereby allowed. (7) The R espondent is entitled to the costs of th is Appeal , and in the Constitutional Court . 25 ADVISORY ORDERS Courts martial are not unconstitutional merely by their very nature of being military courts . The people of Uganda pronounced themselves in the course 196 of the making of the 1995 Constitution, expressing their fervent desire to 5 make a break fro m the ugly past that characteriz ed li fe in our country; especially the grave abuse of human rights by the military. The Ugandan military has since been transformed into a professional force; and it has made remarkable contribution to ensuring regional peace, security and stability. It is rath er contradictory and rather disconcerting for a military Force built on 10 new and commendable professional dispensation to operate under the same legal framework that failed to check or avert military abuse of power ; with unspeakable ramifications . The 1995 Constitution provided the new wine, which the UPDF Act has instead, through the impugned provisions of the Act, sought to store in old 15 wineskins as it were . This is in blatant negation of the aspirations, desire, hope, and wishes of the people of Uganda ; which the framers of the 1995 Constitution meticulously enshrined , and in no uncertain terms, in the Constitution. I t is noteworthy that i n ULS & J. Karugaba v A.G (supra), the Constitutional Court 20 observed that the Constitution was unfortunately being ignored ; and recommended that Parliament c ould amend the Constitution to provide for any special needs of the military. It said: “The UPDF is currently being operated under laws and practices which still contain colonial relics in total disregard of the Uganda Constitution. No 25 attention was paid to this problem when drafting the 1995 Constitution. This Court has no powers to bend the Constitution in order to accommodate special needs [whether legitimate or not] of the army. It is only Parliament 197 th at has the power to amend the laws including the Constitution, to 5 accommodate such special concerns of the army. So far, it has not done so. I must, therefore, stick to only such interpretation of the law that is consistent with the Constitution as it st ands now. ” ( Emphasis added ) The current military courts operate in violation of the constitutionally enshrined and securely protected ri ghts to a fair hearing that are equally 10 recognized universally in Co nventions and other instruments . Thus , there is need for a robust legislative intervention to ensure the UPDF Act is in accord with the cherished aspirations of the people of Uganda as was unmistakably captured in the Odoki Commission Reprot . It is therefore incumbent on the Executive to generate the policy, and Parliament to pass the legislation, which 15 addresses and cures the injust ice occasi oned by the unconstitutional provisions of the UPDF Act, which ha ve now been quashed , by providing for military courts that are clothed with the c onstitutional safeguards of independen ce and impartial ity that are accorded the ordinary Courts . In recognition of the special nature of the military, legislation must be put in 20 place that establish es and confer s on the courts martial and tribunal s , the powers to execute lawful jurisdiction over members of the military; and thus f ulfil the function of the UPDF. However, this special exercise of jurisdiction must not infring e on the soldiers’ rights to a fair hearing. The State needs to act in order to en sure that the character of military courts and tribunals meet 25 the democratic standards and aspirations of the people , which are clearly enshrined in the Constitution. It is noteworthy that the Court advised in 2009, in ULS & J. Karugaba v A.G (supra) , that for military Courts to be truly 198 independent and impartial , there are desirable changes that the Executive 5 needs to address . It noted as follows: “In order for this to be applicable to the military courts, the article would have to be modified in such a way as to give the courts independence and impartiality without compromising their military nature. The army would have a parallel judiciary with legally trained soldiers to professionally man 10 the courts. In order to be impartial, the court must have s ecurity of tenure and other privileges enjoyed by the other judicial officers in the Uganda judiciary. It should be noted that the definition of judicial officer contained in article 151 does not exclude persons exercising judici al power in military court s.” 15 I consider the need for this recommended transformation as relevant today, as it was then . I n the premises, I would make the following recommendations to the Executive and Parliament for consideration as viable alternatives for the establishment , and or creation , of military courts in Uganda: 20 (a) A dministratively establish the General Court Martial ( GCM ) a s a division of the High Court without the need to create a new Court, with jurisdiction to handle capital criminal cases involving both military officers and any civilians who would exce ptionally fall within its ambit; with Magistrates within the division handling offences falling under 25 their jurisdiction. 199 (b) Limit the functions of U nit D isciplinary C ommittee s (UDCs) and 5 S ummary T rial A uthoritie s (STAs) to handl ing strictly disciplinary offences , with no power of impo sing sentences of imprisonment. (c) Utili z e the existing magistracy to handle the rest of the criminal cases ( other than disciplinary offences) commit ted in Uganda ( which are currently falling within the docket of the UDCs) . The subordinate 10 military Courts can handle criminal cases at the level of Chief Magistrate ’s Courts ( for offences attracting life imprisonment and below). Or; (d) With the advice of the Judicial Service Commission (JSC) , appoint civilian s with the requisite professional legal qualifications to serve as 15 judicial officers in the current subordinate military courts. They would exercise jurisdiction over offences triable by subordinate c ourts. They should have the same privileges and safeguards as their c ounterparts in the civil courts. Or; (e) Amend the Constitution to e stablish superior Courts within the military 20 Court system under Art 129 ; and clothe them with the requisite jurisdiction an d guarantee of independence and impartiality to try specific military offences of a capital nature and all other capital offences under existing laws , committed by military personnel . Or; (f) P rovide in the UPDF Act for the High Court to sit as a Court martial with 25 power to try all criminal capital offences within the High Court jurisdiction , and those unique to the military that attract a maximum of life and death sentences . Grant t he Chief Justice powers to assign Judges to the military courts. A select number of military personnel can act as assessors. Appeals to the Court Martial Appeal Courts would 30 200 follow the same format , with the Court of Appeal sitting as such . 5 Magistrate ’s Court s would assume the jurisdiction over all other offences of a subordinate Court. (g) Make provision in the UPDF Act for trial of civilians in military courts to be only under limited circumstances; and only after the State has concretely demonstrated to the court by verifiable facts, and by 10 objective and serious reasons, the need and justification for recourse to the military court. This must only apply where in relation to the specific class or category of persons and offences in question, ordinary co urts are not in position to undertake such trial. (h) Make provision in the UPDF Act for appeal from military courts and 15 tribunals, corresponding to appeals in ordinary Courts. In each of the options suggested above , the jurisdiction UDCs and STAs must be limited to that of tribunals ; handl ing strictly disciplinary offences , with no power of detention or im prisonment, as is the case with other di s ciplined Forces such as the Police, and Prisons. 20 Dated at Kampal a this 31 st day of January 202 5 . Alfonse C. Owiny – Dollo CHIEF JUSTICE 1 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CORAM: OWINY - DOLLO, CJ; MWONDHA; TUHAISE; CHIBITA; MUSOKE; BAMUGEMEREIRE; MUGENYI; JJSC CONSTITUTIONAL APPEAL NO. 02 OF 2021 (Arising from Constitutional Petition No. 45 of 2016) ATTORNEY GENERAL …… …… …………….. APPELLANT/CROSS RESPONDENT VERSUS HON. MICHEAL A. KABAZIGURUKA …… .. RESPONDENT/CROSS APPELLANT [ Appeal from the decision of the Constitutional Court (Kakuru, Obura, Kasule JJ.A; and Madrama, Musota JJ.A. dissenting) at Kampala dated 1 st July 2021 in Constitutional Petition No. 45 of 2016] J udgment of P ercy N ight T uhaise JSC I have had the benefit o f reading , in draft , the lead judgment by Alfonse C. Owiny – Dollo , Chief Justice . I agree with the analysis, decisions, conclusions , and orders that are proposed in his lead judgment. The background to the appeal and the respective cases for the parties to the suit have been ably articulated in the lead judgment and in the other judgments prepared by my learned sisters and brother in this a ppeal, which I have also had the benefit of reading, in draft . It is therefore not necessary to reproduce the same . I will only add my opinion regarding the issue relating to the capacity of the Court Martial (GCM) to render a fair trial as envisaged in Article 28 (1 ) of the Constitution of Uganda. T he jurisdiction and competence of the said court is challenged by the Respondent in this appeal. The Appellant on the other hand contends that it is a court of competent jurisdiction as provid ed for under Article 210 of the Constitution of Uganda , and section 197 ( now 195 Revised Edition 2023) of the Uganda Peoples Defence Forces Act Cap330 ) , herein referred to as the UPDF Act . The Appellant also , 2 in opposition to the Respondent’s assertions , contends that the establis hment of the GCM do es not contravene Articles 28 (1), 126, (1), 129 (1), 210 and 267 (1) (d) of the Constitution of Uganda . The GCM, is created under section 197 (1), now section 195 (1) in the revised version of Laws of Uganda 2023, of the UPDF Act . Its long title reads, among other things, that it is an “Act to provide for the regulation of the Uganda Peoples Defence Forces in accordance with Article 210 of the Constitution…and for other related matters.” It is a speciali zed court, in the sense that it was created to exercise jurisdiction over specified matter s rela ting to offences created by the UPDF Act committed by members of the Military Forces and persons who aid or abet such offences , that is, to administer m ilitary justice in Uganda with jurisdiction to handle offences specified in that Act, mainly for penal and disciplinary purposes. The GCM was therefore established as a specialized court of the Military Forces. On the other hand, the Constitution also establishes Courts of Judicat ure empowered to exercise judicial power with various jurisdictions under Article 129 of th e Constitution which states : - “129. The Courts of Judicature. (1) The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of - (a) the Supreme Court of Uganda; (b) the Court of Appeal of Uganda; (c) the High Court of Uganda; and (d) such subordinate courts as Parliament may by law establish, including qad his courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament. (2) The Supreme Court, the Court of Appeal and the High Court shall be superior courts of record and shall each have all powers of such a court. (3) Subject to the provisions of this Constitution, Parliament may make provisions for jurisdiction and procedure of the courts.” Both the C ourts Martial and the Courts of Judicature, therefore, derive their origins from the Constitution, save that , while the Constitution directly sets up the Courts 3 of Judicature under Article 129, the C ourts Martial are set up by an A ct of Parliament as mandated under Article 129 (1) (d) and 210 of the Constitution. The criteria for the appointment of members who sit on the GCM, set out under section 197 (1), now 195 (1) in the revised version of the Laws of Uganda 2023, of t he UPDF Act, is that they should essentially be Army Officers, with the Chairperson not being below the rank of Lieutenant Colonel. Save for the chairperson of the Court Martial Appeal Court, who is required to be an Advocate qualified to be appointed as a Judge of the High Court, legal qualification is not a basis for appointment on the GCM and the other military courts set up under the UPDF Act . In contrast, under Article 143 of the Constitution of Uganda, persons qualified for appointment as judicial off icers to the Courts of Judicature, as established under Article 129 of the Constitution of Uganda must have legal qualifications. It is to be noted that both the GCM and the Courts of Judicature, particularly the Superior Court s are , under the respective l aws that govern them , as well as the penal laws , either in exercise of their original or appellate jurisdiction, empowered to pass the death penalty, which is the maximum puni shment a court of law would pass . It is also to be noted that under Article 120 ( 3) (b) of the Constitution of Uganda, the Director of Public Prosecutions (DPP) , who is the officer charged with the function of , among others, instituting criminal proceedings against any person in any court, is exempted from instituting such criminal proceedings in a court martial. The contradictory position is that, while, under the UPDF Act , qualification for appointment to the GCM does not require one to have legal qualifications , persons qualified for appointment to a Judicial Office in the Courts of Judicatur e are required to have legal qualifications under Article 142 of the Constitution. Secondly the conducting of criminal trials in the GCM, unlike is the case for Courts of Judicature, is not controlled by the DPP. The interests of justice and fa irness require that , any court that is empowered to pass a penalty as serious as a death penalty , or even, I dare say, imprisonment, should be presided over by competent persons with legal qualifications . The criminal prosecutions conducted before such cou rt s should ideally be controlled by the DPP . This would be a safeguard for a fair trial envisaged under Article 28 (3) of the Constitution of Uganda , the International Co venant on Civil and Political Rights, 4 (to which Uganda is signatory) , and other international Human Rights Instruments , binding or persuasive, which have been ably highlighted in the other judgments to this appeal . I n my considered opinion it would not matter whether, in actual fact ( de facto), the members appointed to sit on the GCM , in the wisdo m of the appointing authorities, do p ossess the legal qualifications as to be competent to adjudicate criminal matters especially those attracting heavy penalties . A s long as the UPDF Act that creates the GCM does not expressly include legal qualifications as a requirement for appointment to the GCM ( de jure), the competence and capacity of that court to handle criminal trials would still be questioned , as it is being done in this appeal . This is based on the cardinal principle in our legal system that, jus tice must not only be done, it must be seen to be done . T he GCM would only be competent to adjudicate over criminal matters of not only civilians, but also military persons as if it were a court of law with the requisite structures to conduct a fair hearing as envisaged under Article 28 of the Constitution of Uganda. There can be no fair trial as envisaged in Article 2 8 (1) of the Consti tution in an incompetent court. It is i n that regard, that I would, with respect, not agree with the Appellant’s contenti ons that the GCM is a court of competent jurisdiction to hear criminal matters. In its present state , the GCM , though lawfully set up by an Act of Parliament , deriving such powers from Article 129 (1) (d) of the Constitution , is , in its present form, compet ent only to handle matters relating to discipline of members of the A rmed Forces. In the result, based on the above, and in addition to the reasons, decisions, conclusions and recommendations for legal reforms stated in the lead judgment, which I associate myself with, I would conclude that this appeal fails save for the issue regarding establishment of the GCM as a court of law. I would dismiss it , to that extent, and allow the cross appeal. I would award the costs of this appeal to the Respondent , in this Court and in the court belo w . Dated at Kampala, this 31 st day of January 2025. Percy Night Tuhaise Justice of the Supreme Court. 5 1 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CONSTITUTIONAL APPEAL NO. 02 OF 2021 ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS HON. MICHAEL ANDREW KABAZIGURUKA:::::::::::::::RESPONDENT (Appeal and Cross - Appeal from the decision of the Constitutional Court of Uganda (Kakuru, Obura, Musota and Madrama, JJCC and Kasule Ag. JCC) in Constitutional Petition No. 45 of 2016 dated 1 st July, 2021) CORAM: THE. HON. THE CHIEF JUSTICE ALFONSE OWINY - DOLLO HON. LADY JUSTICE FAITH MWONDHA, JSC HON. LADY JUSTICE PERCY NIGHT TUHAISE, JSC HON. MR. JUSTICE MIKE J. CHIBITA, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JSC HON. LADY JUSTICE MONICA K. MUGENYI, JSC JUDGMENT OF ELIZABETH MUSOKE, JSC I have had the advantage of reading in draft the respective judgments prepared by The. Hon. The Chief Justice and Mugenyi, JSC. On my part, I would dismiss the appeal and allow the cross - appeal for the reasons given in thi s judgment. The grounds of the appeal and the cross appeal are ably set out in the judgment of The Hon. The Chief Justice, and I need not recount them here. I only state that in my view those grounds raise the following questions for this Court’s decision: “1) Whether the 1995 Constitution places limits on the jurisdiction that Parliament can confer on the General Court Martial (“GCM) and the other military Courts and if so, what is the scope of those limits? 2 2) Whether the jurisdiction conferred on the GCM and other military Courts under the UPDF Act goes beyond the applicable constitutional limits. 3) Whether the GCM is a subordinate Court within the meaning of Article 129 (1) (d). 4) Whether the GCM had jurisdiction to conduct the arraignment of the respondent and if so, whether the arraignment contravened the respondent’s right to a fair trial. 5) Whether the GCM and other Military Courts lack the capacity to render a fair trial which is a non - derogable right guaranteed under Articles 28 (1) and 44 ( c). 6) What are the appropriate remedies to grant in the present case? ” In this judgment, I give my views on all the above questions. However, before giving my views, I should say that when the respondent filed his Petition on 17 th November, 2016, he was challenging certain provisions of the UPDF Act, 2005. Under the 2023 Revised Edition of the Laws, where the UPDF Act is now Cap. 330, the numbering of many of the impugned provisions has changed as indicated in the judgment of The H on. The Chief Justice. Nonetheless, in this judgment I make reference to the numbering of the relevant provisions as set out in the respondent’s Petition and the judgment of the Constitutional Court although, for future purposes, the numbering contained in the Revised UPDF Act should apply. Does the 1995 Constitution place limits on the jurisdiction of military courts? The case for the respondent, as set out in his Petition, was that Article 210 (b) limits the jurisdiction that can lawfully be conferred to any military Court to trying only disciplinary offences committed by members of the UPDF. According to the respondent the military courts cannot lawfully be vested with jurisdiction to try capital or non - disciplinary offences committed by non - members of th e UPDF as the UPDF Act does. The appellant’s response was a general denial asserting that the GCM was established in accordance with any constitutional limits affecting the 3 jurisdiction of the military courts. In paragraph 5 of the appellant’s Answer, it was stated, in part as follows: “…that the General Court Martial is a court of competent jurisdiction as provided by Article 210 (a) of the 1995 Constitution and Section 197 of the UPDF Act, 2005 and it is established strictly in accordance with the Consti tution.” The appellant further made a contention in paragraph 6 of his Answer, as follows: “…that the establishment of the General Court Martial is in no way a contravention of Articles 28 (1), 126 (1), 129 (1), 210 and 267 (1) (d) of the 1995 Constitution .” Before proceeding to an examination of the opposing contentions, it is necessary to recall the role of the Constitutional Court, and by extension of this Court, when determining constitutional appeals. The well - established role of the Constitutional Cou rt under Article 137 (1) and (3) of the 1995 Constitution is to conduct constitutional interpretation. In the context of a constitutional petition challenging any legislation, the role of the Constitutional Court is to consider and define the scope of the applicable constitutional provision, to consider and define the scope of the challenged legislation, and make a pronouncement on whether the scope of the challenged legislation is inconsistent with and/or in contravention of the scope of the applicable con stitutional provision, and if so, to declare the challenged legislation unconstitutional and proceed to nullify it. This Court’s role when determining a constitutional appeal is to reappraise the materials on record and determine whether the Constitutional Court’s decision was correct in accordance with the duties of a first appellate Court as explained in Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1997 (unreported) . In essence, when determining a constitutional appeal, this Court will also conduct constitutional interpretation in the manner defined earlier. I will now return to the consideration of whether the 1995 Constitution places any limits on the jurisdiction that may be conferred on a military Court. I will begin by observin g that, as reflected in the Long Title to the UPDF Act, when 4 Parliament enacted the UPDF Act, it was acting in accordance with its powers under Article 210 of the 1995 Constitution. Article 210 is located in Chapter 12 of the 1995 Constitution which establ ishes the Uganda Peoples Defence Forces (UPDF) as the armed fo rces of Uganda; Article 208 (1) and provides for the values of the UPDF as being non - partisan, national in character, patriotic, professional, disciplined, productive and subordinate to the civi lian authority as estab lished under this Constitution; Article 208 (2) . Article 209 lays out the functions of the UPDF to include: “ (a) to preserve and defend the sovereignty and territorial integrity of Uganda; (b) to cooperate with the civilian authori ty in emergency situations and in cases of natural disasters; (c) to foster harmony and understanding between the defence forces and civilians; and (d) to engage in productive activities for the development of Uganda.” Because, the framers of the 1995 Co nstitution could not practicably set out all the rules related to the UPDF under Chapter 12 of the 1995 Constitution, they empowered Parliament, under Article 210, to make legislation for the regulation of the UPDF. Article 210 reads as follows: “210. Parliament to regulate the Uganda Peoples' Defence Forces Parliament shall make laws regulating the Uganda Peoples' Defence Forces and, in particular, providing for - (a) the organs and structures of the Uganda Peoples' Defence Forces; (b) recruitment , appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces and ensuring that members of the Uganda Peoples' Defence Forces are recruited from every district of Uganda; (c) terms and conditions of service of members of the Uganda Peoples’ Defence Forces; and (d) the deployment of troops outside Uganda.” 5 Therefore, when Parliament enacted the UPDF Act in 2005 pursuant to its powers under Article 210, it was expected to legislate only on the matters envisaged by paragraph s (a) to (d) of Article 210. I must state that whereas Parliament has powers under Article 79 (1) to make laws on any matter for the peace, order, development and good governance of Uganda, the provision sets out an important proviso, that such powers must be exercised “subject to the provisions of the Constitution.” The effect of the proviso under Article 79 (1) is that Parliament’s powers are limited by the subject matter covered by the particular Article under which Parliament proceeds while making the r elevant legislation , and thus Parliament may not, while moving under the authority of a given Article, make legislation dealing with an unrelated matter addressed under another Article. This point can be illustrated with reference to another provision of t he 1995 Constitution. Article 152 (3) reads as follows: “Parliament shall make laws to establish tax tribunals for the purposes of settling tax disputes.” It cannot be reasonably argued that because Parliament has powers to make laws on any matter, it can make legislation expanding the jurisdiction of a tax tribunal established under Article 152 (3) to cover matters unrelated to tax disputes. This illustrates the point that although Parliament has general legislative powers, its powers are subject to limita tions contained in any constitutional provision applicable to any subject matter upon which Parliament can legislate. With regard to Article 210, it will be noted that the said Article empowers Parliament to pass legislation for the purposes of regulation of the UPDF, and the Article lays down the subjects that such legislation should regulate. Most pertinent for purposes of the present case is Article 210 (b) which empowers Parliament to pass legislation for regulation of the UPDF, and in particular to pro vide for: “…recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples' Defence Forces and ensuring that members of the Uganda Peoples' Defence Forces are recruited from every district of Uganda.” 6 In so far as relevant to this matter, Article 210 (b) empowers Parliament to make laws for regulating the “discipline and removal of the members of the UPDF”. In my view, the words “discipline and removal” must be understood to refer to separate subject matters, as I will elaborat e later in this judgment. At this point, I observe that in determining the nature of matters falling under the sphere of discipline and removal of members of the UPDF, the beginning point is the ordinary definition of the word discipline, and in this regar d, I would adopt the definition set out in the Oxford Advanced Learner’s Dictionary, 7 th ed, where “discipline” is defined as: “the practice of training people to obey rules and orders and punishing them if they do not; the controlled behavior or situation that results from this training.” Thus, matters relating to the discipline of the members of the UPDF would be concerned with establishing rules defining their acceptable conduct such as those set out in the UPDF code of conduct provided for under Section 118 of the UPDF Act, and making of rules defining unacceptable conduct, such as the offences set out under Part VI of the UPDF Act. On the other hand, “removal” relates to the disciplinary sanctions which can be imposed as punishment for engaging in unacc eptable conduct which can be imposed by the disciplinary bodies of the UPDF, in this case such punishment is restricted to certain disciplinary sanctions, as will be explained later in this judgment. It goes without saying that in any democratic society, p unishment for misconduct is arrived at by an independent body, after hearing the evidence in support and in opposition to the allegations of misconduct and to the imposition of the charges. Thus, by their literal interpretation, the provisions of Article 2 10 (a) and (b) vest Parliament with powers relating to establishment of an organ of the UPDF for the purpose of handling matters relat ed to “discipline and removal of members of the UPDF ” . In other words, the purpose for which the military courts were inte nded under Articl e 210 (a) and (b) is to act as disciplinary bodies responsible for handling matters where it is alleged that a member of the UPDF committed unacceptable conduct, and if found guilty, to impose 7 disciplinary sanctions, of the nature discusse d later in this judgment, as punishment. Thus, the limitations imposed under Article 210 (a) and (b) relate to the nature of cases that can be heard by the military courts, and also to the nature of punishment that can be meted by the military courts. I am alive to the international literature and foreign cases to which reference has been made in the respective judgments of the Hon. The Chief Justice and Mugenyi, JSC. However, it is worth bearing in mind that constitutional interpretation, in the first plac e, is concerned with the text adopted in our Constitution. Therefore, in my view, any contrary position reflected in international literature and foreign cases cannot form the basis for displacing the position reflected in the constitutional text. Such int ernational literature and foreign cases are only useful for comparative purposes and for advocacy for constitutional reform in light of the standards accepted in other democratic countries . Furthermore, and with the greatest of respect, I do not accept th e view taken by Mugenyi, JSC that the jurisdiction of the military courts extends to matters concerned with “national security” even if such matters are unrelated to the sphere of “discipline and removal of members of the UPDF,” and my reasons can be state d shortly. The concept of national security is one for which no precise definition can be found either in the 1995 Constitution or in an Act of Parliament. There also appears to be no standard justiciable definition of the concept of national security give n in a decision by a Uganda Court, of a foreign or international Court; or even in international literature. Although a definition of the concept of national security has been attempted by some foreign courts and in international literature, those definitions have been made in broad and vague terms. In the UK House of Lords decision in Secretary of State for the Home Department v Rehman [2002] 1 ALL ER 122 , Lord Hoffmann defined national security, in broad terms, as meaning the security of a country and its people. Lord Slynn stated, also in broad terms, th at national security concerns risks or dangers to the security or well - being of the nation. Lord Slynn, in further elaboration on the definition of national security, quoted a statement by Professor Grahl - 8 Madsen in The Status of Refugees in International L aw (1966) , which reads: “A person may be said to offend against national security if he engages in activities directed at the overthrow by external or internal force or other illegal means of the government of the country concerned or in activities which a re directed against a foreign government which as a result threaten the former government with intervention of a serious nature.” Lord Slynn also made reference to statements by groups of experts in international law, the Johannesburg Principles on Nationa l Security, Freedom of Expression and Access to Information, as approved on 1 October 1995 in Johannesburg which state: “(a) A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrab le effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government. (b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.” The refore, without attempting to give a conclusive definition, as it is unnecessary to do so in the present case, the scope of national security relates to any action required to be taken by the state for the purposes of dealing with any activity that constit utes a threat to the sovereignty and territorial integrity of a country, threats to the proper functioning of its institutions, or threats to the security of its people. It would seem that activities constituting threats to national security are already ad dressed by the civilian offences provided for under enactments other than the UPDF Act. For example, activities threatening the sovereignty and territorial integrity 9 are criminalized by the offences of treason and other offences against the state under Par t VI of the Penal Code Act, Cap. 128, and activities threatening the security of the people are criminalized by the offence of terrorism against Anti - Terrorism Act, Cap. 120 and offences against the person under Division IV of the Penal Code Act. Furthermo re, the 1995 Constitution addresses the subject of national security under Chapter twelve which provides for the establishment of several agencies with functions in the area of national security, and these include the Uganda Peoples Defence Forces, the Uga nda Police Force, the Intelligence Services, and the National Security Council which, under Article 220 (a) and the National Security Council Act, Cap. 322, is responsible for national security. In my view, the 1995 Constitution sets in place an integrated framework in which different agencies are vested with different functions to guide their contributions to addressing the different threats to national security. It is worth mentioning the different acts that can be done to maintain national security and t hese include, gathering intelligence and conducting investigations into activities that threaten national security, apprehending persons involved in offences against national security, and undertaking military engagements to address threats to the territor ial integrity of the country. It should be noted that an indirect aspect of national security is trying and sanctioning persons who commit offences against national security. Under the 1995 Constitution, this function falls within the sphere of administrat ion of justice and is vested in the Judiciary under Chapter Eight. It is also worth stating that the framers of the 1995 did not include administration of justice in the exclusive list of functions granted to the UPDF under Article 2 09 which, in my view, i ndicates the framers’ intention to exclude the UPDF from assuming any general function in the administration of justice. The framers vested the function of administration of justice, even in cases involving national security, in the Courts of Judicature es tablished under Chapter 8 of the 1995 Constitution. The UPDF’s contribution to national security must, therefore, be understood in the context of its 10 functions under Article 209 and should not extend to the administration of justice. In concluding this poi nt, it is my finding that the 1995 Constitution limits the jurisdiction that may be vested on a military court to matters falling within the sphere of “discipline and removal of members of the UPDF”. This implies that the nature of cases that may be tried by the military courts is limited to disciplinary offences, and the nature of punishment is limited to disciplinary sanctions with the most severe being removal from the UPDF. Is the jurisdiction conferred on the GCM and other military Courts in conformity with the above limits? I note that, under the UPDF Act, the military Courts are conferred with jurisdiction to try service offences. Under Section 2, service offences include offences under the UPDF Act, as well as offences created under other Acts, if co mmitted by a person while subject to military law. Under Section 119 (1) , the following persons are subject to military law: “a) Every member of the UPDF Regular Force. b) Every member of the Reserve Forces in certain circumstances listed under Section 119 (b) (i) – (vii). c) Every person attached or seconded to serve in the UPDF. d) Every person recruited to serve under the command of an officer of the UPDF outside the country. e) Every person who accompanies a unit or other element of the UPDF. f) Every p erson serving in the UPDF under any engagement under which he/she agrees to be subject to military law. g) Every other person who aids and abets persons listed under (a - f) in the commission of a service offence. h) Every person not falling under any of the foregoing categories who is found in unlawful possession of arms, ammunition or equipment ordinary being the monopoly of the Defence Forces; or other classified stores.” 11 Section 179 introduces further aspects of se rvice offences; it provides: “179. Service trial of civil offences (1) A person subject to military law, who does or omits to do an act — (a) in Uganda, which constitutes an offence under the Penal Code Act or any other enactment; (b) outside Uganda, which would constitute an offence under the Penal Code Act or any other enactment if it had taken place in Uganda, commits a service offence and is, on conviction, liable to a punishment as prescribed in subsection (2). (2) Where a military court convicts a person under subsection (1), the military court shall impose a penalty in accordance with the relevant enactment and may, in addition to that penalty, impose the penalty of dismissal with disgrace from the Defence Forces o r any less punishment prescribed by this Act.” Section 179 (2) mentions that the person envisaged to be the subject of the provisions of Section 179 is one who can be dismissed with disgrace from the UPDF implying that Section 179 was intended to cover onl y members of the UPDF described in Section 119 (1) (a) – (f), and it is those persons to whom Section 179 applies. In other words, only the members of the UPDF described under Section 119 (1) (a) – (f) were intended to be tried before the military courts f or commission of offences in the Penal Code Act or any other enactment. Therefore, under the UPDF Act, the jurisdiction of the military courts extends to the following categories: “1) Cases involving Offences under Part VI of the UPDF Act if committed by m embers of the UPDF, whether formal or assimilated, as described in Section 119 (1) (a) – (f). 2) Cases under Section 179 of the UPDF Act involving offences under the Penal Code Act or other enactments if committed by members of the UPDF, whether formal or assimilated, as described in Section 119 (1) (a) – (f). 12 3) Cases involving offences under Part VI of the UPDF Act committed by non - members of the UPDF in conspiracy with the members of the UPDF envisaged in Category 1 as provided under Section 119 (1) (g) . 4) Cases involving offences related to unlawful possession of military equipment as described in Section 119 (1) (h) if committed by non - members of the UPDF.” The question that has to be considered next is whether the four categories described above fall within the sphere of “discipline and removal of members of the UPDF” within the meaning of Article 210 (b) since only cases falling in that sphere can fall within the jurisdiction of the military courts. In my view the offences under category 1 fall withi n the sphere of “discipline and removal of the members of the UPDF” in so far as they seek to punish members of the UPDF (whether formal or assimilated members to borrow the term used in The Hon. The C. J’s judgment) who engage in unacceptable conduct duri ng military service. However, it is noted that most of the prescribed punishments for many of these include imprisonment and the death penalty in some, yet as I explained earlier, Article 210 (b) limits punishments that can be meted by the military courts to only disciplinary sanctions such as: dismissal, dismissal with disgrace, reduction in rank, forfeiture of seniority, suspension, severe reprimand and caution. Indeed, as will be shown later in the judgment, many such punishments are listed under Section 221 which provides for sanctions for commission of disciplinary offences. It is, therefore, my view that where the punishment prescribed for an offence by law is imprisonment or a more serious punishment, that offence goes out of the jurisdiction of the m ilitary courts and into the jurisdiction of courts of judicature which have the power to impose such serious punishments. The offences under category 2 also fall within the sphere of “discipline and removal of the members of the UPDF” to the extent that th ey involve the punishment of members of the UPDF, whether formal or assimilated members, who engage in unacceptable conduct that is contrary to other laws apart from the UPDF Act. These offences however also fall out of the 13 jurisdiction envisaged under Art icle 210 (b) to the extent that their prescribed punishments under the relevant laws include imprisonment or the death sentence. Accordingly, such offences should be tried by the competent courts of judicature under Chapter 8 of the 1995 Constitution. The offences falling under category 3, are provided for under Section 119 (1) (g), and involve the trial of non - members of the UPDF, if they are accomplices to the members of the UPDF described in Section 119 (1) (a) - (f) in the commission of an offence und er Part VI. This category relates to non - members of the UPDF and therefore does not fall within the sphere of discipline and removal of members of the UPDF. In addition, as with the previous categories, the prescribed punishment s include imprisonment and m ore serious punishments. Therefore, these offences also go out of the jurisdiction of the military courts and into the jurisdiction of ordinary courts. I have considered the submission of counsel for the appellant that sphere of the “discipline and removal ” of members of the UPDF, within the meaning of Article 210 (b), should also encompass offences under other laws with a bearing on the proper functioning of the UPDF, such as offences under the Penal Code Act, Cap. 128 like murder, rape or robbery committe d by members of the UPDF in the course of service, as provided for under the definition of a “service offence” in Section 2 of the UPDF Act and under Section 179 of the UPDF Act. However, in my view, this submission does not conform with the proper constru ction of Article 210 (b) as explained in my earlier analysis. Otherwise, the framers could have instead drafted Article 210 (b) to empower Parliament to vest functions relating to the general administration of justice in the UPDF but they did not do so. Mo reover, due to the lack of capacity of military courts to exercise the function of administration of justice as described in the judgment of The Hon. The Chief Justice, with which I wholly agree on this aspect, it is unlikely that the framers wanted the mi litary courts to try such offences. In light of the above observations, it follows that the definition of “service offence” under Section 2 confers unlawful jurisdiction to the GCM in respect of the offences falling under categor ies 1, 2, 3 and 4, to the e xtent described 14 in this judgment. Furthermore, the provisions of Section 119 (1) (g) and (h) and 179 of the UPDF Act also improperly extend jurisdiction to the extent described in this judgment. In my view, and contrary to the submission of counsel for the appellant, Parliament had no power, when it enacted the UPDF Act, to legislate that persons who commit offences which do not fall under Article 210 (b) can in some circumstances bring themselves within the ambit of the GCM. Parliament could only confer ju risdiction to the GCM only in respect to persons who could squarely fall within the ambit of Article 210 (b). Furthermore, and as I hinted earlier in this judgment, the Constitution imposes limits on the nature of punishments that may be imposed by the mil itary Courts, and as discussed earlier, it is envisaged from a proper construction of Article 210 (b), that the military courts can only impose punishments consisting of disciplinary sanctions including removal from the UPDF, suspension, reprimand, reducti on in rank, among others. However, under Section 221 (1) of the UPDF Act, the military Courts are given powers to impose other punishments apart from these disciplinary sanctions. Section 222 (1) reads, as follows: “221. Scale of punishments (1) The follow ing punishments may be imposed in respect of service offences — (a) death; (b) imprisonment for two years or more; (c) dismissal with disgrace from the Defence Forces; (d) imprisonment for a term not exceeding two years; (e) dismissal from the Defence Forces; (f) detention; (g) reduction in rank; (h) communal labour; (i) forfeiture of seniority; 15 (j) suspension; (k) severe reprimand; (l) reprimand; (m) caution; (n) fine; (o) stoppages; and (p) such other minor punishments as may be prescribed.” In addit ion, many of the offences under Part VI of the UPDF Act carry punishments of death sentence and terms of imprisonment. In my view, this is inconsistent with the constitutional limits on the nature of punishments that may be imposed by military courts as explained earlier. Therefore, the provisions of Section 221 (1) (a), (b), (d), (f), (h), (n), (o) and (p) are also unconstitutional. Only the punishments provided for under Section 221 (1) (c), (e), (g), (i), (j), (k), (l) and (m) can lawfully be imposed b y the military courts. Is the GCM a Court of Judicature? The designation of a body as a Court of Judicature vests it with jurisdiction to determine a wide range of cases under most laws of Uganda in accordance with Article 126 (1) which vests judicial powe r in Courts of Judicature. By contrast, a body may be vested with powers to determine certain cases and make certain decisions but it would not qualify as a Court of Judicature if it is not created pursuant to the authority of Article 129 (1) of the Consti tution. The latter class of bodies includes the Leadership Code Tribunal which is established under Article 234A and vested with jurisdiction under Section 24 of the Leadership Code Act, Cap. 33 to, among other things, make decisions relating to breach of the Leadership Code; the Tax Appeals Tribunal established under Article 152 (3) of the 1995 Constitution and vested with jurisdiction over tax disputes; and the Public Procurement and Disposal of Assets Appeals Tribunal which is established under Section 9 1B of the Public Procurement and Disposal of Assets Act, Cap. 205 and vested with 16 jurisdiction, under Section 91I, to review decisions of the relevant Procurement and Disposal Authority. In terms of Article 129 (1), Courts of Judicature include the superi or Courts such as the Supreme Court, Court of Appeal and the High Court, and subordinate Courts including the Magistrates Court. Furthermore, Parliament has the powers to create either a subordinate Court or a Superior Court but it may only do so in accord ance with the provisions of the Constitution. In order to establish a superior Court of Judicature, Parliament needs to conduct a Constitutional Amendment in accordance with Articles 259 and 262 to amend Article 129 (1) and provide for the same. Whereas, i n order to establish a subordinate Court of Judicature, Parliament would be required to enact legislation for the purpose under Article 129 (1) (d). In relation to the present case, the GCM cannot be said to be a Superior Court since Parliament did not go through the process to establish it as such, and neither could it establish the GCM as a subordinate Court, given my earlier findings concluding that the framers intended the GCM and other military courts to be established only as disciplinary bodies for m embers of the UPDF and not Courts of Judicature with a general judicial function . In addition, a consideration of the powers conferred on the GCM under the UPDF Act clearly demonstrate that it is not a subordinate Court. I observe that the dichotomy betwe en “superior courts” and “subordinate courts” can be traced to ancient England. In R vs. St Edmundsbury and Ipswich Diocese (Chancellor) and Another: Ex parte White and Another, [1947] 2 All ER 170 , the England and Wales Court of Appeal described the exist ence, in the English Court system, of the King’s Bench as a superior court to certain inferior Courts, over which it had powers of control which were exercised through, among other ways, the issuance of a writ of certiorari to: “…bring up to the King’s Ben ch proceedings of courts to which it lay, in order that the King’s Bench should do what was necessary to be done in the interests of justice.” 17 In further elaboration on this point, Evershed, L.J quoted with approval the dictum of Atkin LJ in R vs. Electric ity Commissioners ([1924] 1 KB 204) which, in material part, reads as follows: “Both writs [of prohibition and certiorari] are of great antiquity, forming part of the process by which the King’s Court restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or the order of the court to be sent up to the King’s Bench Division, to have its legality inquired into, and, if n ecessary, to have the order quashed.” As can be seen from the above statements, a subordinate court is a court inferior to a superior court, over which the latter exercises controlling power, which ordinarily involves powers to demand that the record of th e subordinate court be sent over to the superior court to have its legality examined. In ancient England, such powers were exercised through the writ/order of certiorari and are similar to revisionary powers that the High Court of Uganda exercises over Mag istrates Courts. Therefore, it is my view, that the GCM may only be called subordinate Court if one or more of the superior Courts established under Article 129 (1) can exercise revisionary powers over it. But that is not the case. The position under the U PDF Act is that no superior Court established under Article 129 (1) can call for the record of the GCM for purposes of revision. On this account alone, it cannot be stated that the GCM is a subordinate Court. Moreover, it is also my view, that a body may o nly qualify as a Court of Judicature if its fundamental features are in consonance with the features of the Courts of Judicature provided for under Chapter 8. It would be odd to say that a body is a Court of Judicature yet, in the same breath, say that suc h a body lacks the features of a Court of Judicature. In the present case, it is recognized that the military Courts lack essential features such as competence of its officers as legal professionals, lack of independence and impartiality, which are essenti al attributes of all Courts of Judicature, and for that reason the military Courts cannot be characterized as Courts of Judicature. 18 I am alive to the dictum of Mulenga, JSC in this Court’s decisions in Attorney General vs. Joseph Tumushabe, Constitutional Appeal No. 3 of 2005 (unreported) and in Attorney General vs. Uganda Law Society, Constitutional Appeal No. 1 of 2006 in which Mulenga, JSC expressed the view that the GCM is a subordinate Court within the meaning of Article 129 (1) (d). However, for the r easons I have given in my analysis on this point, it is my respectful opinion that the views expressed in Mulenga, JSC’s dictum are erroneous and should be overruled. Furthermore, it is worth pointing out that in the Joseph Tumushabe case (supra), this Cou rt was considering a version of the GCM created under the now repealed UPDF Statute No. 3 of 1992 enacted before the coming into force of the 1995 Constitution. It is also noteworthy that under Article 274 of the 1995 Constitution, Courts were empowered to make reasonable constructions to bring existing law within the provisions of the 1995 Constitution. Thus, in the Joseph Tumushabe case (supra), this Court, while applying Article 274, could arguably be said to have had the powers to characterize the GCM, as established under the UPDF Statute No. 3 of 1992, as a subordinate Court within the meaning of Article 129 (1) (d). The same approach of construction applied to the Magistrates Courts established by Act 13 of 1970, to bring them within the meaning of su bordinate Courts under Article 129 (1) (d). It is, however, my humble view, that this Court does not have the same liberty to characterize the GCM created under the UPDF Act, 2005 which was enacted after the coming into force of the 1995 Constitution, as a subordinate Court. This is because following the promulgation of the 1995 Constitution, Parliament can only create a subordinate Court by enacting legislation designed specifically for that purpose. This was not the case for the GCM. Instead, when Parliam ent enacted the UPDF Act which provides for the current version of the GCM, it could only establish a disciplinary body for the UPDF under Article 210 (a) and (b). It is, therefore, my view that the GCM is not a subordinate Court within the meaning of Arti cle 129 (1) (d). 19 Did the GCM have jurisdiction to conduct the arraignment of the respondent? The respondent averred in his Petition that his arraignment in the GCM was unconstitutional due to lack of jurisdiction of the GCM to conduct the same. In support of his averment, the respondent contended that the lawful jurisdiction of the GCM under Article 210 of the 1995 Constitution, is limited to hearing cases involving members of the UPDF, and since he was not a member of the UPDF, his arraignment in the GCM w as unconstitutional. In light of the views I expressed earlier as to the lawful nature of the GCM’s jurisdiction, which is to exercise jurisdiction as a disciplinary body for only members of the UPDF, I would find that the respondent’s averments in this re gard have merit. Therefore, I entirely agree with The Hon. The Chief Justice’s views on this point. Lack of capacity of the GCM and other military courts to exercise a general judicial function In my view, there exists several deficiencies in the set - up an d operations of the GCM that diminish its capacity to properly adjudicate cases. These have been the subject of comprehensive analysis in respective judgments of the Hon. The Chief Justice and Mugenyi, JSC and include: 1) the objective lack of independence of both the GCM as a Court, and of its members, as individuals; 2) the lack of competence of the members of the GCM due to their lack of legal training and knowledge; 3) the absence of effective mechanisms for reviewing the correctness of the decisions of the GCM. It is well - established that our Constitution was put in place to ensure a just, free and democratic nation. It is for that reason that provision was made under Chapter IV of the 1995 Constitution for various fundamental rights which are all aime d at ensuring justice to all people. It is also for that reason that Courts of Judicature were established under Chapter 8 of the 1995 Constitution to exercise the judicial function fairly and do justice in all cases. In respect to criminal trials, the nee ds of justice require that accused persons are tried before competent Courts or bodies that are capable of guaranteeing the right to a fair trial. Unfortunately, the deficiencies highlighted above 20 render it impossible for any objective observer to conclude that the GCM can guarantee the right to a fair trial, and as it is well known, a fair trial is a vital pre - requisite for ensuring justice in criminal cases. I, therefore, find myself in complete agreement with the analysis and views of The Hon. The Chief Justice and Mugenyi, JSC on the deficiencies in the GCM, and how they render the GCM incapable of according a fair trial to the people that fall within its jurisdiction. In light of the GCM deficiencies highlighted above, it is, in my view, necessary, not only to give a strained construction of the matters that properly fall within the ambit of “discipline and removal of the members of the UPDF” but also to ensure that as far as possible offences are tried by courts of judicature and not the military Courts . It is, therefore, inappropriate to grant the military courts jurisdiction beyond the trial of members of the UPDF for disciplinary offences under Part VI and the imposition of disciplinary sanctions as punishment, for those guilty of disciplinary offence s. All other criminal matters ought to be handled by the Courts of Judicature. However, even in cases involving disciplinary offences under Part VI, there should be established mechanisms providing for review/revision of the decisions of the military court s by the courts of judicature, to ensure that the ends of justice are met. In conclusion, for the reasons given in this judgment, I would dismiss the appeal and allow the cross - appeal. I would make declarations (iv), (v), (vi), (vii) and (x) and orders 1, 2, 3, 4, 6 and 7 contained in the judgment of The Hon. The Chief Justice since they are consistent with the findings in my judgment . I would also commend The Hon. The Chief’s Justice’s advisory orders to the attention of the learned Attorney General. I wou ld then make the following separate declarations arising from the findings in this judgment: a) The General Court Martial is not a subordinate Court within the meaning of Article 129 (1) (d) of the 1995 Constitution. b) The General Court Martial and other milita ry courts are disciplinary organs of the UPDF established under Article 210 (a) whose jurisdiction is limited 21 by Article 210 (b) to handling matters related to discipline and removal of members of the UPDF, including formal and assimilated members of the U PDF, as stipulated under Section 119 (1) (a) - (f) of the UPDF Act. c) The jurisdiction of the General Court Martial and other military courts is under, Article 210 (b), limited to hearing matters involving disciplinary offences under Part VI of the UPDF Act co mmitted by members of the UPDF as defined in paragraph (b), and is also limited to the imposition of disciplinary sanctions to the members of the UPDF found guilty of commission of disciplinary offences, including: dismissal, dismissal with disgrace, redu ction in rank, forfeiture of seniority, suspension, severe reprimand, reprimand and caution as provided for under Section 221 (1) of the UPDF Act. d) The jurisdiction of the General Court Martial and other military Courts does not extend to hearing cases invo lving civilians who are neither formal nor assimilated members of the UPDF as defined in paragraph (b) e) The hearing of cases involving civilian non - members of the UPDF falls within the jurisdiction of Courts of judicature established under Chapter 8 of the 1995 Constitution. f) The hearing of cases involving members of the UPDF, as defined in paragraph (b) above, for the commission of offences under Part VI, and where it is appropriate to impose a sentence of imprisonment or a more serious sentence, falls withi n the jurisdiction of the Courts of Judicature established under Chapter 8 of the 1995 Constitution. g) The hearing of cases involving members of the UPDF, as defined in paragraph (b) above, for the commission of general civilian offences created under any en actment other than Part VI of the UPDF Act falls within the jurisdiction of the Courts of Judicature established under Chapter 8 of the 1995 Constitution. h) Sections 2, 119 (1) (h) and (g) and Section 179 of the UPDF Act, in so far as, they confer jurisdicti on on the General Court Martial and other military 22 courts, contrary to the constitutional limits described in this judgment, are unconstitutional and null and void. I would make the following orders in addition to the ones I adopted from The Hon. The Chief Justice’s judgment: 1. Going forward, only cases involving members of the UPDF and related to disciplinary offences under Part VI of the UPDF Act should be tried by the General Court Martial and other military Courts, and that only the disciplinary sanc tions as described at (c) above can be imposed by the military courts in those cases. 2. Where a military court determines that the imposition of a more serious punishment, such as imprisonment or the death sentence is necessary in addition to removal from se rvice, the military court shall forward the case file to the Director Public Prosecutions with a recommendation for institution of criminal proceedings in a competent Court of Judicature. 3. I would award the costs of the appeal and the cross - appeal in this C ourt and the costs in the Constitutional Court to the respondent. Dated at Kampala this … 3 1 s t ………. day of. … J a n u a r y …………….2025. ………………………………………………………………… Elizabeth Musoke Justice of the Supreme Court 1 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA Coram: Owiny - Dollo, C J ; Mwondha; Tuhaise; Chibita; Musoke; Bamugemereire; Mugenyi; J J SC CONSTITUTIONAL APPEAL NO. 02 of 2021 (Arising from Constitutional Petition No. 45 of 2016) ATTORNEY GENERAL : :::::::::::::::::::: APPELLANT/ CROSS RESPONDENT VERSUS HON. MICH A E L A. KABAZIGURUKA ::::::: :::::::::: ::::::: RESPONDENT/ CROSS APPELLANT [Appeal from the decision of the Constitutional Court in Constitutional Petition No. 45 of 2016 before ( Kakuru, Obura, Kasule JJ CC ; and Madrama, Musota JJ CC . dissenting) dated 1 st July 2021 at Kampala ] JUDGMENT OF CATHERINE BAMUGEMEREIRE, JSC 1. I have had the opportunity to read the draft opinion of the Hon. The Chief Justice. He ably sets out the questions for determination before us and has cited the relevant sections of the UPDF Act CAP 330 (formerly CAP 307) and related Constitutional provisi ons which are said to have been contravened. Please note that volumes and sections of the law will be cited under the immediate past L aws of Uganda volume s and the most recently published edition. 2. I would allow th e main appeal , in part . 3. The Attorney General lodged an appeal against the decision of the Constitutional Court dated 1 st July 2021. The respondent had challenged the competence of the General Court Martial (GCM) to try civilians 2 under the Uganda Peoples Defence Forces (UPDF) Act, all eging that the continuance of these trials violates constitutional provisions, including Articles 28(1), 44(c), and 210(b) of the Constitution. 4. T he Constitutional Court being a court of 1 st instance in constitutional matters h e a r d the petition and decided that the G eneral C ourt M artial is a constitutionally established court set up to handle cases of military discipline for UPDF members but lacks jurisdiction to try civilians for offences under the Penal Code Act or other enactments. 5. As a result, s ections 2 (now section 1) , 119(1)( h ) (now section 117 (1)(h) , and section 179 (now 177) of the UPDF Act, which expand military jurisdiction of the courts martial to include civilians and classif ies civil offences as service offences, were declared unconst itutional for violating fair trial guarantees and exceeding the mandate under Article 210(b). Finally, t he Court found that section 119 (read 117) (1) (g) is not unconstitutional provided the person not otherwise subject to military law is tried as an accomplice together with a person who is subject to military law as the principal offender on the same charge sheet. Introduction 6. I will commence by stating that I am abundantly aware of the tension that exists between ensuring unfettered military discipline and compliance with the tenets of the constitutional right to a fair hearing which should be 3 available to all human beings including men and wome n who serve in the military. This entails a delicate balance on a constitutional landscape which the courts are obligated to navigate. I give a synopsis of the history of military justice and courts - martial through the ages and examine how our current laws and practice fit in the broader context. Military Justice through the Centuries 7. The court - martial system is an age - old mechanism which evolv ed through the centuries to meet the competing needs of military discipline and justice. Over the years the conflict between the interests of justice, on the one hand, and the demands for an efficient, well - disciplined military, on the other , have widened . The constitutional safeguards on individual liberty should ordinarily provide checks on the power of courts - martial where the y are incompatible with the guarantee of due process rights . In this judgment I seek to trace the historical evolution of courts - martial from the Roman Military Tribunals, the Britis h courts of chivalry, the American Uniform Code of Military Justice to Uganda’s military legal framework. The reason for going down th e history lane is to illustrate the dark past of human endeavours and the effect of including due processes in military ju stice. The test against which we should weigh ourselves is whether we meet the highest standards of constitutionalism and human dignity . 4 Early Models of Military Court 8. Courts - martial pre - date as far back as before the emergence of the Roman Empire. While the Roman Empire is often considered one of the most influential and impactful empires in history, most historians would not consider it the "greatest" empire in terms of sheer size. I will t race the epoch of the Roman Empire . T he Romans are c redited with having been able to codify and keep an accurate reco rd of their occupations , actions, and decisions . The Roman Empire's legacy of military discipline continues to echo through out history. T he Romans ’ iron - fisted discipline and punishment s were known to be extreme. T he y believed in the principle of decimation . By decimation, one in ten soldiers was executed for what was known as collective disobedience such as mutiny , tree - sitting, food - dumping and h ijacks . Annihilation was the extreme measure historically used to enforce discipline in the rank and file of the Roman army . This approach, while no longer practiced, highlights the origins of military justice as a tool for maintaining order ( Schlueter, 1980 ) . As a result of complaints for wrongful executions, the Romans introduced some forms of military trials or magistri militum . 9. Needless to add, m ilitary justice in Europe began with the Roman Empire, where tribunals were presided over by magistri milit um or legionary tribunes. These early courts were focused on maintaining order within the Roman 5 legions, dealing with offences such as cowardice, mutiny, and desertion. Roman military codes resultantly influenced early European military systems. 10. The Salic and Lombard tribes settled in present day Scandinavia and in Bohemia in Germany. They inhabited and ruled Italy in the Middle Ages . They are known to have been a vicious and vindictive people who , influenced by the Romans , adopted equally retributive laws . The Normans 11. The Normans were a tribe from Norway, Denmark and Iceland who con qu e r ed parts of France , Sweden and invaded Wales and Scotland. The Normans who invaded England came from Normandy. They defeated the English army in the battle of Hastings in 1066. 12. A notable Norman influence in military discipline was the trial by combat. T he Normans also introduced trial by combat, which was often used to settle disagreements over money or land. In this type of trial, the complainant and the one complained against were engaged in physical fight until one was killed or was too wounded to battle. The loser was put to death by hanging owing to the belief that God had already found such a person guilty. In the 19 th Century winning disputes by duel was outlawed and the survivor could be charged and tried for criminal offences. 13. The Duke of Normandy became known as William the conqueror d uring whose reign, military justice was heavily influenced by such feudal traditions as duels and trial by combat . The court of chivalry, introduced by William the 6 Conqueror, allowed for trial by combat, where disputes were settled through physical confrontation. At his coronation, William promised to uphold existing laws and customs. The Anglo - Saxon shire courts (100s of them) were made of a local sheriff, local lor ds, bishops and four local representatives and administered defence and tax, as well as justice matters. These remained intact during the invasion of the Normans as did regional variations and private Anglo - Saxon jurisdictions. They are probably the neares t form of trial by jury. 14. Although the practice of shire courts was later abolished, the principle of resolving disputes within the military hierarchy persisted, influencing the development of courts - martial. Today the adversarial system in the courts of la w mirrors the duel only this time it’s a war of the pen and of words. 15. By the 17 th century, King Gustavus Adolphus of Sweden had formalized military justice with his 167 Articles of War, introducing regimental and standing courts - martial to enforce discipl ine and morality. He disciplined his army through a strict code of military law, emphasizing rigorous training, consistent drills, severe punishments for infractions, and a system of hierarchy where officers were held accountable for their troops' behavio ur, all contributing to the creation of a highly disciplined and unified fighting force, considered revolutionary for its time; his methods were written about in the "Articles of War" which outlined several regulations. It is worth noti ng 7 that the military systems Gustavus Adolphus set up were credited with fairness and morality, influencing both European and British military laws. 16. Military Justice in the Soviet Union 17. I will briefly outline military discipline in the Soviet Union as it t hen was. 18. Soviet writers, like the late Marshal Grechko, recognized that discipline was achieved by means of punishment, or with a system of awards and incentives, and by enhanced patriotic zeal to boost morale and thereby instil a will to fight. Be that a s it may, the historical record seem s to indicate that a cultural reliance on methods of physical punishment to impose discipline were rampant. Lenin and Stalin both demanded severe discipline in the armed forces to safeguard the regime and to effectively use the implements of modern war like the tank and the airplane. 19. Soviet soldiers and sailors were supposedly only permitted to drink when expressly allowed in accordance with regulations. The Soviet soldier drunk when the opportunity to drink present ed itself in direct violation of disciplinary restrictions. This included resorting to drinking eau de cologne or eating shoe Polish when vodka was unavailable. The development and use of the knout, a Russian refinement of the cat - o - nine - tails for whippings and beatings often resulted in death for actual and perceived offen c es. 20. One of the most notorious infractions a soldier could commit was drunkenness. This persistent inspection and 8 searches of the Soviet military personnel frequently made it difficult to smuggle alcohol into their garrisons and posts. Viktor Suvorov, a nonfiction writer, identified alcohol abuse as the primary cause of disciplinary infractions in the Soviet armed forces, resulting not only in drunkenness, but also in theft, bribery, recor d falsification, and deliberate equipment damage. Alcohol was used not only to deaden the senses and allow a period of escape from the hardships and pressures of daily life, it was also used to celebrate and commemorate every event. This contravention thou gh minor could lead to severe punishment including imprisonment or banishment to Siberia. 21. The British System and Court s of Chivalry 22. The British military justice system drew heavily from the medieval court of chivalry, also known as the constable’s or mar shal’s court. Introduced to England by William the Conqueror, it handled disputes involving military discipline, honour, and criminal acts. The court followed military leaders in wartime, rendering swift punishments. However, the court of chivalry eventual ly fell into disuse due to its overreach and inefficiency, paving the way for more structured tribunals. 23. The Council of War 24. The decline of the court of chivalry led to the rise of councils of war during the reigns of Edward VI and Elizabeth I. These temporary tribunals dealt with offences 9 like mutiny and desertion in both wartime and peacetime. Over time, these councils became more structured and served as the foundation for modern courts - martial. Significantly, these councils protected civilians from military rule. An example is from 1625 to 1628, Charles I attempted to use court martial jurisdiction as a lever on the populace in hopes of obtaining supplies. He was unsuccessful, and when he sought the necessary funds from parliament, he was compelled to assent to the Petition of Right (1628). This petition, among other things, dissolved the commissions proceeding under military law. Charles agreed to imprison no one except with due process of law and to never again subject civilians to court martial ( Schlueter, 1980 ). 25. The First Mutiny Act 26. The mutiny of 1689 was a revolt by a regiment of soldiers in England who declined to fight in Holland. The mutiny led to the passing of the first Mutiny Act in 1688, which made mutiny a crime punishable by death. The Mutiny Act of 1689 marked a turning point in British military justice. It established a legal framework for courts - martial, ensuri ng discipline while introducing procedural safeguards, such as limiting punishments during peacetime. 27. Key i ss ues in the development of British military law included: a significant struggle between the Crown and Parliament over control of the military justice system, 10 reflecting public reluctance to grant excessive authority to military courts ; t he evolution from the court of chivalry under royal prerogative to one operat ing under legislative enactment, showing public endorsement. 28. T he British court - martial developed military due process, moving from trial by combat to granting rights such as notice, defence , and argument ; gr adual limitation of the court - martial's jurisdict ion to soldiers rather than the general populace, with legislative measures curbing any attempts to expand its power. These formative centuries established a robust foundation for the American system, which began in 1775. ( Schlueter , 1980 ) 29. The American Court - Martial System 30. The British military system greatly influenced many of the British colonies which includes America . B elow is an examination of the first key periods in the evolution of the American martial law. 31. Formative Years (1775 - 1800) 32. The American military justice system originated during the Revolutionary War, drawing heavily from British military codes. The 1776 Articles of War were largely based on the British Articles of War . 33. The revision in 1776 resulted from a suggest ion by General Washington. The revising committee included John Adams, Thomas Jefferson, John Rutledge, James Wilson, and R.R. Livingston. S.T. Ansell, acting Judge 11 Advocate General of the Army from 1917 to 1919, harshly criticized the American system of m ilitary justice. 34. According to Ansell, discussing the A rticles of War of 1776, John Adams “was responsible for their hasty adoption . . . to meet an emergency.” Ansell also offers the following illuminating quotation from the writings of John Adams: 35. “There was extant, I observed, one system of Articles of War which had carried two empires to the head of mankind, the Roman and the British; for the British Articles of War are only a literal translation of the Roman. It would be vain for us to seek in our own invention or the records of warlike nations for a more complete system of military discipline. I was, therefore, for reporting the British Articles of War totidem verbis. 36. So undigested were the notices of liberty prevalent among the majority of the members most zealously attached to the public cause that to this day I scarcely know how it was possible that these articles should have been carried. They were adopted, however, and they have governed our armies with little variation to this day.” ( Schlueter, 1 980 ) 37. The A rticles of W ar introduced general and regimental courts - martial, emphasizing the right to procedural fairness . 38. From 1800 to 1900, the American system saw minimal changes. The 1806 Articles of War expanded procedural safeguards, such as barring double jeopardy and allowing accused persons to challenge court members. This period 12 laid the groundwork for the modern cou rt - martial system ( Schlueter 1980 ). 39. The Uniform Code of Military Justice (UCMJ), enacted in 1950, unified military legal systems across U.S. armed forces. The UCMJ emphasized rights for the accused, including representation, - speedy trial, appeal, and pro tection against self - incrimination. The UCMJ is the current statutory template for military justice and the conduct of courts martial. 40. The Evolution of Uganda’s Military Justice System 41. I will now lean in to how our own courts - martial has evolved over time. The development of Uganda’s military justice system may be categorised into five major stages: military justice during the colonial era (1895 - 1962); military justice in the immediate post - independence peri od (1962 - 1971); military justice in the (1971 - 1979); military justice under the NRA Codes of Conduct (1986 - 1992); and military justice under the 2005 Uganda Peoples’ Defence Forces Act (2005 ) to date . ( Naluwairo, 2011 ) . Prior to 1895, in the area that be came Uganda, there existed various kingdoms and each kingdom had its own army. 42. Military Justice During the Colonial Era (1895 - 1962) 43. Uganda is a land - locked country measuring 93,263 square miles in land mass. Its size is comparable to the United Kingdom which measure 94,060 square miles. The 13 borders as they are known today did not exist in the current form prior to 1884. 44. Precolonial Ug anda was made up of ethnic groupings which were loosely connected to each other and broadly divided into larger groupings such as the Nilotics, the Bantus, the Hamites and the Nilo Hamites. There, however, existed larger ethnic groupings which were more or ganised. B roadly two kingdoms, the Bunyoro Kingdom and the Buganda Kingdom were known to be highly organised. The Bunyoro Kingdom which was dissipated systematically was said to ha ve had superior firepower and was a threat all around . The Bunyoro kingdom , however, lost its influence due to both internal but mostly foreign forces and therefore by the end of the 19 th Century it was no more . 45. Part of Bunyoro’s decline was the power of the foreign onslaught but more importantly the failure to maintain the fighting spirit in its ranks . The British gained prominence thereafter and determined the borders and the trajectory of Uganda’s military land scape, land tenure and economic development for a long time . 46. During the colonial era, Uganda's military justice system was based on British military law. The Uganda Rifles Ordinance of 1895 established Uganda's national army. This law, along with subseque nt frameworks from the British Parliament, shaped the origins of Uganda’s military justice system. The Uganda Rifles Ordinance was replaced by the Uganda Military Force Ordinance in 1899. 14 In 1902, the King’s African Rifles Ordinance was enacted, emphasizin g strict discipline and command authority. 47. It is important, though, to observe that military justice systems of the time including the so - called developed world w e re arbitrary and tyrannical in nature. They were heavily disciplinarian and generally emphasized the iron hand of discipline over fairness and justice as the core of military justice. As Sherman rightly observes, “ it was after World War II, and mainly as a result of popular dissatisfaction with wartime military justice, that many western nations began to re - examine the arbitrariness of their military justice systems and started adopting more judicial approaches and procedures.” ( Sherman E, 1973 ) 48. Military J ustice in the Immediate Post - Independence Period (1962 - 1971) 49. After independence, Uganda's Parliament retained the British military justice framework. In October 1963, Parliament confirmed the continued operation of the 1958 Uganda Military Forces Ordinance . In September 1964, the Armed Forces Act replaced this ordinance, establishing a three - tier court - martial system: the general court martial, the disciplinary court martial, and the court martial appeals court. (Mujuzi,2022) (Omara - Otunnu, 1987) . 15 50. Military Justice the 1971 - 1979 Er a 51. As soon as the military took power after the 1971 coup de ’tat , the 1967 Constitution was suspended. A Military Council was appointed, which became the quasi parliament. It was rule by Decree with close to thirty Decrees issue d in eight years. 52. The 1971 - 1979 regime projected military strength in many ways including the use of military justice. Early in 1975, Amin published the Economic Crimes Decree. It established a military court called the Economic Crimes Tribunal. Its judges were empowered to punish profiteers, hoarders and others who acted against the economic interests of the state. The penalty was death by firing squad or 10 years in prison. 53. The military was used as a tool for political control, with w idespread unfettered abuse of power leading to human rights violations. Military tribunals tried civilians and soldiers alike, and the legal process was often arbitrary, with little regard for fairness or due process. The military justice system was politi cized. Under the military era, military tribunals took precedence over civil courts. 16 54. Military Justice Under the NRA Codes of Conduct (1986 - 1992) 55. Following the National Resistance Army (NRA) taking power in 1986, g reat e mphasis was placed on reforming the military . Codes of Conduct were devel oped to promote military discipline and accountability. 56. The Uganda People’s Defence Forces 57. The enactment of the 2005 Uganda Peoples' Defence Forces (UPDF) Act formalized military justice in Uganda, providing a legal framework for the operation of military tribunals. This Act established procedures for the trial and discipline of military personnel. Following the enactment of the UPDF Act, the National Resistance Army m etamorphosized into the Uganda Peoples Defence Forces. 58. In its military institutional framework s Uganda borrows heavily from the British and American system and indeed from the former Soviet States. The Judge Advocate, Ordnance Surveys to guard the integrity of the national grid and for protection of a country’s boundaries and the Political Commissar, a Soviet creation, are but vestiges of our non - aligned associations. 17 1. Composition of Military Courts in Uganda 2. T he Constitution of Uganda and the Uganda Peoples’ Defence Forces Act (UPDF Act) regulate military courts in Uga nda . Article 210 of the Constitution empowers Parliament to regulate the Uganda Peoples’ Defence Force s (UPDF), including establishing and operating military courts. Under this framework, Parliament enacted the UPDF Act to operationalize the regulation of military activities, including the composition and jurisdiction of military courts. 3. The General Court Martial (GCM) 4. Section 197 of the UPDF Act establishes the General Court Martial (GCM) as the primary military court. Its composition includes a Chairperson : Rank not below Lieutenant Colonel; two senior officers ; two junior officers ; a political Commissar ; and one non - commissioned officer . The High Command appoints them for a term of one year. 5. Jurisdiction 6. The G eneral C ourt M artial has special jurisdiction over all offences under the UPDF Act. It has the power to review decisions from Division C ourts Martial and Unit Disciplinary Committees. The GCM may revise findings, sentences, or orders from Summary Trial Authorities and 18 Unit Disciplinary Committees. The GCM may sit at any location. 7. The General Court Martial has special jurisdiction over se rvice offences. Section 2 defines a service offence as an offence under this Act or any other Act for the time being in force, committed by a person while subject to military law. Courts have overtime interpreted what service offences really mean. Attorney General v Uganda Law Society Constitutional Appeal No. 1 of 2006 [2009] UGSC 2 is considered but this court may need to rethink its interpretation of the service and non - service or civilian offences. 8. Section 119(1) of the UPDF Act defines individuals subject to military law, including officers and militants of the Regular Force, officers and militants of the Reserve Force during training or active service . Service offences as described by the UPDF Act include the trial of c ivilians who aid or abet military personnel in committing service offences (Section 119(1)(g)) ; c i vilians found unlawfully possessing arms, ammunition, or equipment exclusive to the Defence Forces (Section 119(1)(h)). 9. Of particular interest to this appeal is section 119(1)(g) which allows military courts to try civilians who aid or abet military personnel in service offences and s ection 119(1)(h) which allows military courts to try civilians found 19 unlawfully possessing arms, ammunition, or equipment exclusive to the Defence Forces. 10. This appeal draws attention to the constitutionality of UPDF Act in as far as the courts - martial under it try serving officers and civilians for service and civil offences. Uganda just like many of its counter parts has introduced and effected many legal reforms tha t are geared towards institution al reforms and a military legal regime in line with set international human rights standards and refo rms. 11. Of key significance to the discourse today is the determin ation whether s ections 179 (read s. 177) of the UPDF Act and s ections 119 (read s. 117 ) (1)(g) and (h) are in tandem with a rticle 28 and 44 (c) of the Constitution. I will also make reference t o section 2 (read s.1) of the UPDF Act in as far as it defines a service offence and military law. Article 210 of the Constitution vests power in parliament to regulate the Uganda Peoples Defence Forces . 12. To this end, the Parliament of Uganda enacted the UPDF Act to provide for the regulation of the UPDF in line with Article 210 of the Constitution . The long Title of the UPDF Act 2005 stipulate s that the UPDF Act is … An Act to provide for the regulation of the Uganda Peoples’ Defence Forces in accordance with article 210 of the Constitution… ” 13. A determin ation of the intention of the Legislature is necessary to find whether they intended to vest the Court 20 Martial with jurisdiction to try only serving officers who were accused of committing a service offence or whether this jurisdiction is extended to try civilians who commit service offences or who find themselves under the ambit of military law. 14. What is the position of trying civilians by military courts in international law ? 15. Human Rights Committee doctrine on the trial of civilians by military courts has developed significantly over the pa st fifteen years. Traditionally, the Committee did not believe that trying civilians was incompatible per se with the provisions of the International Covenant on Civil and Political Rights and article 14 . 16. The I nternational Covenant on Civil and Political Rights in article 14 states that "[a]ll persons shall be equal before the courts and tribunals [and] [i]n the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fai r and public hearing by a competent, independent and impartial tribunal established by law". 17. In its concluding observations to Uzbekistan, the Human Rights Committee noted "with concern that military courts have broad jurisdiction. It is not confined to criminal cases involving members of the armed forces but also covers civil and criminal cases when, in the 21 opinion of the executive, the exceptional circumstances of a particular case do not allow the operation of the courts of general jurisdiction. The Co mmittee notes that the State party has not provided information on the definition of 'exceptional circumstances' and is concerned that these courts have jurisdiction to deal with civil and criminal cases involving non - military persons, in contravention of articles 14 and 26 of the Covenant". The Committee urged the Uzbek authorities to "adopt the necessary legislative measures to restrict the jurisdiction of the military courts to trial of members of the military accused of military offences ". 18. (See Concludi ng observations of the Human Rights Committee :Uzbekistan, United Nations document CCPR/CO/71/UZB, 26 May 2001, paragraph 15. ) 19. Section 2 (read s.1) of t he UPDF Act defines a service offence to mean an offence under this Act or any other Act for the time being in force, committed by a person while subject to military law; The same section defines military law to mean Parts V to XIV of th e Act. Part V of the UPDF Act provides for persons subject to Military Law. Section 118 (1) of the UPDF Act provides for the Code of Conduct for the Defence Forces and states that There shall be a Code of Conduct for the purpose of guiding and disciplining members of the Defence Forces, as set out in the Seventh Schedule to this Act . 22 20. Section 119 of the UPDF Act details the persons that are subject to military law under the Ac t : (1) Including t he following — (a)every officer and militant of a r egular force (b)every officer and militant of the Reserve Forces and any prescribed force when he or she is — (i)undergoing drill or training whether in uniform or not;(ii)in uniform;(iii)on duty;(iv)on continuing full time military service;(v)on active service;(vi)in o r on any vessel, vehicle or aircraft of the Defence Forces or any defence establishment or work for defence;(vii)serving with any unit of a Regular Force; or(viii)present, whether in uniform or not, at any drill or training of a unit of the Defence Forces; (c)subject to such exceptions, adaptations, and modifications as the Defence Forces Council may by regulations, prescribe, a person who under any arrangement is attached or seconded as an officer or a militant to any Service or force of the Defence Forces; (d)every person, not otherwise subject to military law, who is serving in the position of an officer or a militant of any force raised and maintained outside Uganda and commanded by an officer of the Defence Forces;(e)every person, not otherwise subject to military law, who voluntarily accompanies any unit or other element of the Defence Forces which is on service in any place;(f) every person, not otherwise subject to military law w hile serving with the Defence Forces under an engagement by which he or she has agreed to be subject to military law;(g) every person, not otherwise subject to military law, who aids or abets a person subject 23 to military law in the commission of a service offence; and(h)every person found in unlawful possession of — (i)arms, ammuni tion or equipment ordinarily being the monopoly of the Defence Forces; or(ii)other classified stores as prescribed. 21. T he above captioned s ection provides the extent to which the jurisdiction of the court martial swings so wide as to subsume civilians and ex pand offending . The wide - ranging offence s th at such courts - martial can try have opened wide the door to try any and every person the GCM would wish to try . Taken as it is, jurisdiction is an overreach . 22. Reverting to the long title of the UPDF Act, it is clear that the application of the law was to be restrictive rather than general as it specifically states that it is an Act to regulate the Uganda Peoples Defence Forces . To this end, section 197 of the UPDF Act also states clearly that there shall be a court martial for the defence forces. 23. The reading of section 119 (1) (g) and (h) of the UPDF Act brings Civilians under the purview of courts - martial ; (g)every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence; and(h)every person found in unlawful possession of — ( i )arms, ammunition or equipment ordinarily being the monopoly of the Defe nce Forces; or(ii)other classified stores as prescribed. 24 24. Section 179 (read s. 177) and section 180 (read 178) of the UPDF Act widens the scope of civil offences currently triable by courts - martial. 25. Section 179 provides as follows: 26. Service trial of civil offences . 27. (1) A person subject to military law, who does or omits to do an act — (a) in Uganda, which constitutes an offence under the Penal Code Act or any other enactment. 28. (b) outside Uganda, which would constitute an offence under the Penal Code Ac t or any other enactment if it had taken place in Uganda, commits a service offence and is, on conviction, liable to a punishment as prescribed in subsection (2). 29. The language of section 179 (read 177) cited together with section 180 (read s.177) of the UPDF Act swings from trial of military or servi ng off icers by the c ourts - martial to trial of civil ians for offences that are provided for in other enactments such as the Penal Code Act , the Firearms Act , the A nt - Terrorism Act and others . 30. Notably, the provisions in section 119 (read s. 117) & 179 (read s. 177) are at odds with the constitutional guarantees under Chapter 4 and 8 of the Constitution of the Republic of Uganda. The current status of courts - martial in Uganda is that all the officers who sit on the General Court Martial are serving army officers who are appointed by the High Command and are men under authority at all times. This means that the set - up of the military courts does not follow a process t hat gives 25 assurances that they will be independent and will deliver justice without fear or favour. By the very nature of their appointment, structure and reporting lines, the courts - martial are firmly under superior command and possible instruction. Unde r articles 21 and 28 of the Constitution which provide for equality before the law and a free and fair trial, the following guarantees were envisaged: Equality: That all persons are equal before the law hence when they appear before a court they should be treated equally regardless of their race, gender, age, or other factors. Presumption of innocence: An accused is presumed innocent until proven guilty. Burden of proof: The prosecution must prove its case beyond a reasonable doubt. Independent and imparti al tribunal: the trial is conducted by an impartial tribunal. Opportunity to present evidence: the accused is granted the opportunity to present evidence and to challenge the prosecution's evidence through cross - examination. Right to an interpreter: the a ccused has the right to an interpreter if they cannot understand the language being used in court. Protection from self - incrimination: the accused has protection from being forced to incriminate themselves. Right to a public hearing: that the trial shall be open to the public. Right to be represented by a lawyer: that the accused has the right to be represented by a lawyer of her choice at all stages of the trial. 26 31. Determination of the jurisdiction of the courts - martial attracts the investigation of the legislative intent. Was it the intention of Parliament to vest the courts - martial with jurisdiction to try only serving officers accused of committing a service offense or was it their intention to extend military jurisdiction to civilians? 32. It is of necessity that I zoom in on t he constitutionality of section 179 (read s.177) of the UPDF Act and sections 119 (read s.177) (1)(g)and (h) in as much as these vest courts - martial with jurisdiction to try civilians and those person s , civilian or not, who are accused of committing civil offences , a point of contention in the present appeal. As stated earlier , the UPDF Act is a creature of the Statute and therefore where any part of it is found to be in contravention of the Consti tu tion of the Republic of Uganda, that portion of the Act can be declared unconstitutional to the extent of its inconsistency . 33. Article 2 of the Constitution provides for the Supremacy of th e Constitution and st ipulates: 34. Supremacy of the Constitution . 35. 1) This Co nstitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda. In Attorney General v Salvatori Abuki, Constitution Petition No. 1 of 1998, it was held that in determining the constitutionality of any legislation , its purpose and effect must be taken into consideration. This thus requires this Court to appraise the ideal purpose 27 and significance of the UPDF Act. Article 28(1) of the Constitution provides for a right to fair hearing and states that; 36. (1) In the determination of civil rights and obligations, or 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. 37. Article 44 states as follows: 38. Prohibiti on of derogation 39. Notwithstanding anything in th is Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms — 40. (a) freedom from torture and cruel, inhuman or degrading treatment; freedom from slavery or servitude; c; the right to a fair hearing; d; the right to an o r der of ha b ea s corpus 41. Article 44 of the Constitution of the Republic of Uganda 1995 provides safeguards against the deprivation of certain fundamental rights, specifically guaranteeing that no one can be subjected to torture, cruel, inhuman or degrading treatment or punishment, slavery or servitude, and that everyone has the right to a f air hearing and an order of habeas corpus; essentially establishing these rights as "non - derogable" meaning they cannot be taken away even in emergency situations. 42. I would quickly add that article 43 provides that it is in the public interest to not permit any limitation of the 28 enjoyment of the rights and freedoms prescribed by the Constitution beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Const itution. 43. According to the latest UN jurisprudence, particularly from the Human Rights Committee, the trial of civilians by military courts is generally considered a violation of international law, as it is seen as a breach of the principle of a fair trial and the right to an independent and impartial tribunal, meaning civilians should not be tried in military courts unless in very limited circumstances and with strict safeguards in place; essentially, the prevailing view is that civilian courts are th e appropriate venue for trying civilians . See UN Human Rights Committee General Comment No. 32. 44. A granular look at the definition of a service offence under section 2 of the UPDF Act surfaces the desire to stretch the definition of a service offence to m ean not only an offence under UPDF Act but also vaguely refers to any other Act. It widens the scope and the jurisdiction of the GCM and includes service offences beyond what was envisaged under the UPDF Act. Its import is to make a liable person to commit a service offen c e under any other law other than the UPDF Act. There is a disparity in the law given that the UPDF Act is primarily established to regulate the army and its operations and to instil military 29 discipline within the ran k and file , as well as to uphold the military code of conduct. 45. It goes without saying that trial of civilians before the military courts has complexities that this Court is inquir ing into . The UPDF Act brings civilians under its purview through th e c ourts - ma r t i al in so far as its definition of a service offence is interpreted as falling with in the wide scope of civil offences provided for in sections 119(1)(g) and (h) and section 179 of the UPDF Act. 46. Notably , in Namugerwa Hadijah v Attorney General SCCA No. 4 of 2012 , the Supreme Court found that a civilian found in unlawful possession of firearms or classified stores is subject to military law. Court further held that persons subject to military law would include civilians under section 119 (1) (g) and (h ) of the UPDF Act. 47. Relatedly in present appeal we are required to answer the question whether in Hon. Michael Kabaziguruka v Attorney General Constitutional Petition 45 of 2016) [2021] UGCC 45 (1 July 2021 ), th e Constitutional Court acted properly when it held that section 119 (1) (g) is not unconstitutional provided the person not otherwise subject to military law is tried as an accomplice together with a person who is subject to military law as the princip al offender on the same charge sheet. 30 48. In 2 nd Lt Ambrose Ogwang v Uganda, Supreme Court Criminal Appeal No. 48 of 2021 , a Uganda People's Defence Force (UPDF) officer was convicted of murder and sentenced to life in prison in the courts - martial. He then went through a tri a l in the civilian courts and received a determinate sentence of 29 years and two months’ imprisonment which was affirmed by the Court of Appeal . Lt Ogwang appealed to the Supreme Court both against conviction and sentence . The Supreme Court of Uganda, sitting as the final court of appeal was correct in bringing to the surface salient issues that the Court of appeal did not address itself to . The Supreme Court found that the UPDF Act did not confer any jurisdiction to civilian courts for them to provide judicial review or to play an appellate and supervisory role in matters decided in the courts - martial. As it stands now t he UPDF Act has a stand - alone and parallel judicial structur e that is impermeable. The Court ruled , and correctly so in my view, that the minister cannot create new appeal pathways through regulations. The court was correct when it ruled that in Ogwang the Court of Appeal did not possess the jurisdiction over appeals from the Court Martial Appeals Court. The Supreme Court ruled that the UPDF Act creates a separate judicial system for military personnel which subsumes civilians as well. The court called for legal reform and amendme nt of the UPDF Act for the C ourts of Judicature to be able to exercise their mandate of judicia l review over the courts - martial. In this regard an amendment of 31 Uganda People’s Defence Forces Act is required to confer appellate jurisdiction to the courts o f Judicature for them to be able to lawfully entertain appeals from the courts - martial . The other question Ogwang raises is whether he committed a service offence for the courts - martial to have jurisdiction over him. He insists that he ought to have been tried in a civilian court since the offence was committed when he was off post and away without pass leave ( AWOL ). 49. Does the reading of section 119(1) (g) and ( h) invoke the principle of voluntary assumption of risk or should every person , especially military person n el , expect the courts - martial to apply the law independently and fairly? We are sworn to international instruments such as the Uni ted Nations Declaratio n of Human Rights (U D HR) , the International Covenant on Political and People’s Rights (ICCPR) . It is essential that trials in the courts - martial under purview here mirror an appreciation of our constitutional and international obligations. 50. In defining a service offence, in the case of O’ Callahan v Parker 395 U.S. 258 (1969) , the petitioner who was a United States Army Sergeant while in a civilian attire broke into a hotel ro o m, assaulted a girl and attempted to ra p e her. Following his apprehension , the Coun t y police on learning that the petitioner was in the armed forces delivered him to the military police. 32 51. Upon interrogation, the petitioner confessed and was indicted for attempted rape, house breaking and assault with attempt to rape in violation o f a rticles 80, 130 and 134 of the U niform Code of Military Justice ; was tried by court martial , convicted on all counts and sentenced. His conviction was affirmed by the Army B oard of Review an d United States C ourt of Military Appeals. The petitioner filed for a wri t of habeas corpus in the D istrict C ourt claiming that the c ourt - martial acted witho ut jurisdiction to try him on non - military offences committed off post while o n an evening pass. The district court den i ed the relief . The C ourt of Appeals affirmed . 52. O n appeal to the US Supreme court, it was held that for a crime to be under military jurisdiction, it must be service connected, and since the petitioner ’s (O’ Callahan) crimes were not , he could not be tried by a court martial but was entitled to a civilian trial with the benefit o f an indictment by a grand jury and trial by jury. 53. S imilarly, in Ex parte Milligan (1866, U.S.) , t he US Supreme Court ruled that military tribunals cannot try civilians when civilian courts are operational. In this case Lambdin P. Milligan, a civilian arrested in Indiana and tried by a military commission during the Civil War, was sentenced to death fo r conspiracy. 54. In Ex Parte Milligan t he Court found that the military commission lacked jurisdiction as civilian courts were 33 functional, affirming that constitutional rights to due process and a jury trial cannot be overridden except in cases of actual w arfare. 55. Fu r ther comparative jurisprudence on the legality of trial of civilian s before military courts and trial of non - service offences surfaces the subjectivity of the deci sion making of choice of accused persons and forum between courts - martial and civil courts . 56. The constitutionality of the trial of persons accompanying the armed forces and charged with non - capital offences under the uniform code of military justice was tested in Kinsella v United States, 361 US 234(1960) . The appellant contended that the dependant wife of a sold ier can be tried only in a court that affords her the safeguards of a rticle 3 and the 5 th and 6 th Amendments to the Constitution . 57. The court held that a rticle 2(11) of the code was unconstitutional where it applied to civilian dependants accompanying the armed forces and charged with non - capital offences . On appeal to the Supreme Court, it was held that the Constitution of the United States does not permit mili tary law to extend to civilians . 58. Presently t he question to be answered is whether it is c onstitution al to vest c ou rts - martial with jurisdiction to try civilians . The C onstitution of Uganda granted the 34 Legislature mandate under article s 79 and 210 of the Constitution to enact law s that regulate the U ganda Peoples Defence Forces . 59. C onstitutionally t he body that has the authority to prosecute civilians or indeed even soldiers is the O ffice of the Director of Public Prosecutions (ODPP) under Article 120 (3) of the Constitution . The DPP ensures that an accused person is subjected to a fair trial by directing investigations to b e carried out by police department, in a prosecution - led inv estigation before making a prosecutorial decision to press or not pre fer any charges against any person. 60. The DPP is obligated to ensure that prosecution of a person accused of a crime in Uganda is conducted in accordance with the fundamental rights and free doms that ensure a free and fair trial . 61. The structure of the c ourts - martial raises concerns as to impartial ity and fair ness of trial of individuals who are not subscribed to the military. G iven the mode of appointment of the members of the Panel, the current law under which they are constituted , the military structure within which they operate and indeed the reporting lines of their performance . See Uganda Law Society v Jackson Karugaba , Constit utional petition No. 2 o f 2002 . In 35 Media Rights Agenda and others v Nigeria Comm. No. 224 of 98(2000) 62. The African Commission on Human and Peoples' Rights addressed the trial of journalist Niran Malaolu by a Special Military Tribunal. Malaolu’s detention and secret trial for treason - related charges were found to violate Articles 6 and 7 of the African Chart er on Human and Peoples' Rights. The African Commission found that the tribunal lacked independence and impartiality, highlighting the incompatibility of military trials for civilians with international human rights standards . 63. It has been stated that m il itary courts are best suited to try military or service offences committed by serving officers who are subject to the m ilitary c ode of conduct and attendant military law that governs them . In the Cabrera García and Montiel - Flores v Mexico , (2010, IACHR) Judgment of November 26, 2010 , t he Inter - American Court of Human Rights held Mexico accountable for using military courts to try human rights violations. The Court underscored the principle that military jurisdiction ought to be limited to service offences co n cluding that it was a violation of the InterAmerican Convention to arrest and subject civilians accused of contravening environmental rights to torture as this was abuse of their constitutional rights . 36 64. In the prese n t appeal, it is undisputed that the respondent - cross appellant was a civilian and m ember of p arliament representing the people of Nakawa Municipality in Kampala and was a member of the 10 th Parliament in which he held the responsibility of shadow Minister for KCCA . He was not a member of the armed forces subject to military law. He was however arraigned with others before the General Court Martial and charged with offences u n der the UPDF Act which offences the respondent contends w e re nonservice offences under the UPDF Act . 65. The argument for the respondent and cross - appellant wa s that as a civilian MP he could not be alleged to have committed a service offence. My understanding of the above decided cases is that our cour t s - m artial have undisputed jurisdiction to try service offences of individuals serving in the military . This should not include civilians as civilians are subject to civil courts. Section 2 (read s.1) of the UPDF Act defines a service offence as one limited to only o ffenc e s stipulated u nder the UPDF Act and is appl icable only to persons that are subject to military law. The jurisd ic tion of courts martial is properly vested where there is a demonstra ble connection and causal - link between the service offen c e alleged to have been committed and status of the offender as an active - duty and image - bearer of the armed forces . “ Status of the accused” is pertinent in establishing jurisdiction o f 37 Military Courts. See Military Jurisdiction over Nonservice connected offences , 27 Wash. & Lee. L. Rev. 118 (1970) at 119. 66. Common examples of such service offences would include, desertion, disrespecting superiors, insubordination, cowardice, collective disobedience such as m utiny , tree - sitting, drunkenness , w ar crimes, espionage , disputes over ma g got - infested soup such as happened in the Potemkin muti ny, and l arceny , among others. 67. In Minister of Defence v Potsane (South Africa, ( 2001] ZACC 12, t he Constitutional Court of South Africa upheld the constitutionality of a distinct military justice system, affirming its necessity for maintaining discipline in the armed forces. However, it limited military jurisdiction to service - specific offences. 68. The hi story of military courts proves they have the mandate to enforce an d instil military discipline in their rank and file . Whosoever joins the army is presumed to know that she or he will be subject to military justice system for any service offen c e committed . 69. Regarding guarantees against self - incrimination, in Secretary of the Army v Curry United States Court of Appeals for the District of Columbia Circuit 595 F.2d. 873 (1979) Robert E. Curry was convicted of two murders 38 by a general court - martial. After his criminal case concluded, Curry filed a lawsuit against the Secretary of the Army (defendant) in a federal district court presided over by a Judge Advocate . 70. His claim was that court - martial proceedings violated his Fifth Amendment right to due process or denied him a right to be heard. The Fifth Amendment to the US Constitution guarantees that an individual cannot be compelled by the government to provide incriminating information about herself – also known as the “right to remain silent.” 71. When an individual “takes the Fifth,” she invokes that right and r efuses to answer questions or provide information that might incriminate her. Curry argued that the court - martial system's structure, including the convening authority's power to p refer charges and select court - martial members, was fundamentally at odds wit h due process, unconstitutional in the civilian justice system, and unjustified in the military justice system. The district court sided with the Army by granting their motion for summary judgment, prompting Curry to appeal. 72. Curry had argued first that th e present structure of the court - martial is fundamentally incompatible with the Fifth Amendment guarantee of due process and would be prohibited in a civilian context. Secondly, he argued that 39 the military had failed to produce any justification for the mi litary justice system. 73. Consider the comments of Judge Tamm, writing of the military court in Curry, facts discussed above b egin ning with the unassailable princip le that the fundamental function of the armed forces is “to fight or be ready to fight wars.” Toth v Quarles, 350 U.S. 11, 17 (1955). Obedience, discipline, and centralized leadership and control, including the ability to mobilize forces rapidly, are all essential if the military is to perform effectively. The system of military justice must respon d to these needs for all branches of the service, at home and abroad, in time of peace, and in time of war. It must be practical, efficient, and flexible. 74. It is an understatement to state that t he court - martial presents a viable means of implementing military justice in a “practical, efficient, and flexible” manner. (See Toth supra. 75. The need for national defence mandates an armed force whose discipline and readiness are not unnecessarily undermined by the often deliberately cumbersome concepts of civilian jurisprudence. Yet, the dictates of individual liberty clearly require some chec k on military authority in the conduct of courts - martial. The provisions with respect to court - martial proceedings represent a congressional attempt to accommodate the interests of 40 justice, on the one hand, with the demands for an efficient, well - disciplin ed military, on the other. 76. T he proposition in Curry (supra) is t h at the Court of Appeals in the District of Columbia was comfortable to confirm Curry’s conviction based on what they found to be sufficient due process in the courts - martial . Curry (supra) appears to suggest that the current Military Justice frameworks obtaining in the United States are so many times more developed than they were in days of King Gustavus Adolphus , who by his own standard was more sophisticated than his predecessors . 77. T he true test ought to be directed toward comparing courts - martial with the contemporary civilian legal forums since they existed concurrently along with, or in competition with each other. 78. It is important to note that in the historical approach I adopted , the true test ought to not be that military justice today has a semblance of due process. Rather the true test ought to be whether the current courts - martial systems can be held up to the highest standards that offer protections for individuals held in detention without trial ; and that individuals charged before them ought to be a guarantee d a free and fair hearing before a just, competent and impartial court . 79. It is c onstitutional to create and ha ve General Courts Martial. Historically , the purpose of the General Court 41 Martial was to instil and maintain discipline in the rank and file of the armed forces. 80. To the extent that it exists to discipline and bring to justice its own rank and file who are in conflict with its laws, processes and procedures, the existence of the Courts Martial is constitutional. 81. Let me conclude on this note. Courts - martial should be specialised disciplinary tribunal s with restrictive functions to handle disciplinary matte rs that are peculiar to and connected with the discipline and regulation of the Armed forces. The Constituent Assembly while debating the setup of the army courts back in 1992 envis aged military courts as special - purpose - vehicles to enforce discipline within the military and ensure that there was a battle - ready and disciplined force anytime they were needed. Up t ill the point the of enactment t he CA did not support granting the army juri sdiction over civilians. 82. Leading up to t he making of the 1995 Constitution, the constituent assembly was emphatic about the necessity to guarantee a free and fair trial and other due process rights and the critical need for the independence of the courts - martial, stressing that their role be limited to handling military - specific offences against military personnel. ( Jamil Mujuzi JD 2022 was useful ). The GCM as currently set up under the UPDF Act is fundamentally incompatible with the constitutional safeguards for a fair 42 hearing and is unconstitutional and therefore its exercise of judicial power is correspondingly unconstitutional. To re - echo the words in Curry (supra), “the court - martial system' s structure, including the convening authority's power to p refer charges and select court - martial members, is fundamentally at odds with due process, unconstitutional in the civilian justice system, and even unjustified in the military justice system.” Dec laration 133. Having found as above I hereby make the following declarations: 1. Judicial power in Uganda is exercised by the courts of judicature and such subordinate courts as Parliament may by law establish. The Court Martial system established under section 197 (read s.195) of the UPDF Act is therefore one such subordinate court. I would declare that section 197 (read s.195) of the UPDF Act which establishes the General Court Martial is not in breach of the Constitution of the Republ ic of Uganda . 2. It is an overreach when the UPDF Act creates an offence that targets persons, not otherwise subject to military law, making them criminally liable under the martials - court for offences of aiding or abetting. For creating such vulnerability , I would declare sections 1, 117 (1) ( g ) and 177 of the UPDF Act unconstitutional. I would set aside the decision of the Constitutional Court in this regard. 43 3. I find sections 1, 177 and 117 (1) ( h ) of the UPDF Act in its current form unconstitutional f or enabling the surreptitious prosecution of civilians in military courts. For clarity, the above sections provide that every person found in unlawful possession of - (i)arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or(ii )other classified stores as prescribed is liable to be prosecuted before a court - martial . 4. I uphold the decision of the Constitutional court to the effect that the General Court Martial is a constitutionally established court set up to handle cases of military discipline for UPDF members but lacks jurisdiction to try civilians for offences under the Penal Code Act or other enactments. 5. I would declare that the arrest, detention and prosecution before the Courts - Martial of the cross - appellant/ respond ent and civilians of equivalence under section 119 (1) (g) (read 117(1) ( g ) is in breach of articles 21,28 and 44 of the Constitution of the Republic of Uganda. 44 For reasons specified stated above , I would make the following orders: 1. In their current form th e courts - martial are not in a position to deliver a free and fair trial as guaranteed under article 28(1) and 44 of the constitution of the Republic of Uganda. I would forthwith suspend all operations of the courts - martial save for the hearing of discipl inary matters pertaining to serving officers. 2. All convictions and sentences passed by courts - martial are hereby suspended. A pathway be put in place to ensure that all civilians hitherto convicted and sentenced by military courts - martial have their c onvictions and sentences subjected to judicial review before a civilian court of competent jurisdiction to determine whether the convict received a free, fair and impartial hearing. This order shall not apply to persons who were convicted and sentenced by the courts - martial and have already served their sentences. 3. For efficiency and proportionality purposes, I invoke the doctrine of prospective annulment on the decisions, orders and sentences of the Courts - Martial which have already been served. 4. Th at notwithstanding, I would order that all the cases currently pending trial before all the courts - martial, be suspended forthwith. 45 5. An injunction doth issue restraining the instigation, re - opening or continuance of the respondent's trial before the General Court Martial or other courts - martial. 6. I join issue with the recommendations or advisory orders proposed by the Hon. The Chief Justice. To these I wish to propose a 'status of the offender determination' in civilian courts. When the necessary legislative amendments are made, it should be imperative that prior to subjecting a civilian, or a person considered so by color of right, b efore future courts - martial, a ‘ status of the offender determination’ be made to the High Court of Uganda. Such investigation should be subject to the highest scrutiny akin to extradition proceedings or movement of jurisdiction. The courts have to be sat isfied by an explicit demonstration that the interests of justice cannot be served in the ordinary courts of judicature. This standard should be applied to matters received in review or revision. 7. I further refer to the proposal for amendments raised in 2nd Lt Ogwang Ambrose v Uganda Supreme Court Criminal Appeal No. 48 of 2021 . The Supreme Court found that the UPDF Act in its current form creates a separate judicial system with no recourse for appeal or review to superior courts. The court called for le gal reform and amendment of the UPDF Act in order to enable the courts of Judicature to exercise their mandate of judicial review over the courts - martial. In this regard an amendment of Uganda People's Defence Forces Act is 46 required to confer appellate ju risdiction to the apex courts for them to be able to lawfully entertain appeals from the courts - martial. The other question Ogwang raises is a requirement to delimit what a service offence is during peacetime. I propose that a soldier who commits a civilian offence when he is off - post and away without pass leave , should be arraigned before the civil courts, as opposed to milita ry courts . 8. The cross - appeal succeeds. The main appeal succeeds in part. 9. I would make no order as to costs. Dated at Kampala this 31 st Day of January 2025 Catherine Katami K Bamugemereire Justice of the Supreme Court Constitutional Appeal No. 2 of 202 1 1 THE SUPREME COURT OF UGANDA AT KAMPALA (Coram: Owiny - Dollo, CJ; Mwondha, Tuhaise, Chibita, Musoke, Bamugemereire & Mugenyi, JJSC) CONSTITUTIONAL APPEAL NO. 2 OF 2021 BETWEEN THE ATTORNEY GENERAL .............................................................................. APPELLANT AND HON. MICHAEL KABAZIGURUKA ………………………..........……………. RESPONDENT [Appeal from the decision of the Constitutional Court (Kakuru, Obura, Musota & Madrama, JCC, & Kasule, Ag. JCC) in Constitutional Petition No. 45 of 2016 dated 1 st July 2021] THE REPUBLIC OF UGANDA THE REPUBLIC OF UGANDA Constitutional Appeal No. 2 of 202 1 2 JUDGMENT OF MONICA KALYEGIRA MUGENYI, JSC A. Introduction 1. I have had the benefit of reading in draft the judgment of his lordship the Chief Justice in this matter. I am in complete agreement with the position adopted therein in relation to Ground 2 of this Appeal . I do also abide the position in Ground 1 that the General Court Martial established under section 19 5 1 of the Uganda Peoples Defence Forces Act, Cap. 330 (UPDF Act) 2 is a subordinate court of competent jurisdiction under article 129(1)(d) of the Constitution. I would, however, respectfully adopt a slightly different approach to the scop e of service offences under the UPDF Act . I therefore consider it necessary to provide my perspective to that issue within the context of the entire Appeal . 2. The background to this Appeal ; the parties’ respective representations and legal arguments , and the circumstances under which it was reheard by this Court are very well articulated in the lead judgment and need not be repeated here. In a nutshell, Mr. Michael Kabaziguruka (‘the respondent’) lodged Constitution al Petition No. 45 of 2016 in the Constitutional Court challenging his arraignment before the General Court Martial. That court substantially agreed with the respondent, whereupon the appellant lodged the present Appeal. The respondent in turn lodged a cross appeal in the matter. B. Determination 3. The appeal and cross appeal raise two broad questions: the constitutionality of sections 1 , 11 7 (1)(g) and (h) and 17 7 3 of the UPDF Act, which speak to the jurisdiction of military courts, and the constitutionalit y of the respondent’s arraignment before the General Court Martial. I therefore propose to address Grounds 1 and 4 of the appeal , and the sole ground of cross appeal together; and shall conclude with Grounds 2 and 3 of the Appeal. 4. It is trite law that the onus of proof in challenges to the constitutionality of an Act of Parliament would rest upon the party that attacks a piece of legislation to demonstrate a clear transgression of established constitutional principles. See Ram Kris hna Dalmia v. Shri Justice S.R. Tendolkar & Others, AIR 1958 SC 538 . Under the Ugandan Constitution, such constitutional principles are summed up in the National Objectives and Directive Policies of State Policy that inter alia ‘ guide all organs and agencies of the State, all citizens, organisations and other bodies and persons in 1 Formerly section 19 7 of the UPDF Act, Cap. 330. 2 Formerly the UPDF Act, 2005 . 3 Formerly section s 2, 119(1)(g) and (h), and 179 of the UPDF Act. Constitutional Appeal No. 2 of 202 1 3 applying or interpreting the Constitution .’ See Objective I(i) of the Constitution . Hence, the National Objectives and Directive Policies of State Policy take on normative value in the interpretation of the Constitution. The corresponding duty upon a court in constitutional challenges in respect of an Act of Parliament is to simply interrogate the impugned statutory provisions against the invoked constitutional provision(s ) to ascertain compliance of the former with the latter. 5. Turning to this Appeal, u nder Grounds 1, 4 and the Cross Appeal , it would appear that t he reasoning that underpin ned the lower court’s conclusion that sections 1 , 11 7 (1)(g), (h) and 17 7 of the UPDF Act are inconsistent with article 28(1) of the Constitution , is the finding by the majority Justices that courts martial are disciplinary tribunals/ quasi - judicial bodies that are solely charged with the enforcement of military discipline. Wi th the greatest respect, I take the view that this was an incorrect premise for the court’s decision, as I shall demonstrate forthwith. For ease of reference I reproduce the invoked constitutional provisions below. Article 28( 1) ) Right to a fair hearing In the determination of civil rights and obligations or 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 . Article 44(c) Prohibition of derogation from particular human rights and freedoms Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms — (a) ............ (b) ............ (c) the right to fair hearing ; 6. W hat would amount to a ‘ fair, speedy and public hearing before an independent and impartial court or tribunal established by law ’ under article 28(1) of the Constitution is not readily discernible using a literal construction of that constitutional provision . In the se circumstances, recourse would be made to a liberal or purposive interpretation. See Attorney General v Maj. Gen. David Tinyefuza [ 1998 ] UGSC 74 . Objectives IV(i) and XXVIII(i)(b) of the the National Objectives and Directive Policies of State Policy impose a dual responsibility upon the State to defend the independence, sovereignty and territorial integrity of Uganda, and pursue a foreign policy that Constitutional Appeal No. 2 of 202 1 4 respects international law and the country’s treaty obligations. The constitutional command to preser ve and defend Uganda’s sovereignty and territorial integrity is not only unequivocally stated in article 209(a) of the Constitution ; as one of the core functions of the UPDF , it provides pivotal context to the operation of military courts in Uganda. Equal ly important to an understanding of the functionality of military courts are the various international conventions and treaties to which Uganda is a party. 7. In the matter before us , t he elements of the right to a fair hearing highlighted in article 28(1) of the Ugandan Constitution are similarly expressed in various international covenants, the pertinent one for present purposes being the International Covenant on Civil and Political R ights (ICCPR). Article 14 of that Covenant stipulate s as follows: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be en titled to a fair and public hearing by a competent, independent and impartial tribunal established by law. 8. The United Nations ( UN ) Human Rights Committee has since pronounced itself on article 14 of the ICCPR in its General Comment No. 13 of 1984 and General Comment No. 32 of 2007 . 4 On the right to a fair hearing before military courts, General Comment No. 13 states: The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Co mmittee notes the existence, in many countries, of military or specialized courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason f or the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clea rly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. The Committee has noted a serious lack of information in this regard i n the reports of some States parties whose judicial institutions include such courts for the trying of civilians. In some countries such military and special courts do not afford the strict 4 See Human Rights Committee, CCPR General Comment No. 13: Article 14 (Administration of Justice), Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, 13 April 1984 and Human Rights Committee, General Comment No. 32, CCPR/C/GC/32 dated 23 rd August 2007 . Constitutional Appeal No. 2 of 202 1 5 guarantees of the proper administration of justice in accordance with the requirements of article 14 which are essential for the effective protection of human rights . 5 9. General Comment No. 13 thus proposes that the trial of civilians in military courts should ensue in very exceptional circumstances and in conditions that genuinely abide the dictates of article 14 of the ICCPR. It was in January 2006 supplemented with the Draft Principles Governing the Administration of Justice through Military Tribunals (hereinafter ‘ the Draft Principles on Military Tribunals ’), which sought to guarantee the integrity of State parties’ judicial systems. 6 Principle 5 of the Draft Principles on Military Tribunals see ks to limit the jurisdiction of military courts over civilians as follows : Military courts should, in principle , have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts . (my emphasis) 10. In the more recent General Comment No. 32 , t he Human Rights Committee further clarified the prevailing position as follows: The provisions of article 14 apply to all courts and tribunals within the scope of the a rticle whether ordinary or specialized, civilian or military. The Committee notes the existence, in many countries, of military or special courts which try civilians. While the Committee does not prohibit the trial of civilians in military or special cou rts, it requires that such trials are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned . The Committee also notes that the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, it is important to take all necessary mea sures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article 14. Trials of civilians by military or special courts should be exceptional, i.e limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials . (my emphasis) 11. It wi ll suffice to observe here that the Draft Principles on Military Tribunals were rooted in the 1984 General Comment No. 13 , and must now be construed with due regard for the Committee’s revised position as encapsulated in the 2007 General Comment No. 32 . T he latter General Comment 5 Paragraph 4 of General Comment No. 13. 6 See Commission Resolutions 2004/32 and 2005/30. Constitutional Appeal No. 2 of 202 1 6 demonstrates that the Human Rights Committee does recognize the trial of civilians in military courts , albeit in exceptional circumstances and within established parameters. It calls upon states parties to guarantee the fairness (equitability), impartiality and independence of such trials, which in any event would only be justified in exceptional circumstances and for serious and objective reasons ; with appropriate regard for the suitability of civilian courts for the individuals and offences in question . That is the universally established command of article 14(1) of the ICCPR. 12. In Uganda, the UPDF Act draws a distinction between military courts and courts martial. Whereas military courts are defined to include a su mmary trial authority, unit disciplinary committee as well as courts martial; courts martial are restricted to field courts martial, the General Court Martial and the Court Martial Appeals Court. See section 1 of the UPDF Act . I would abide the view that summary trial authorities and unit disciplinary committees are military tribunals. However, the military court that is in contention before us presently is the General Court Martial therefore courts martial shall be the focus of this judgment. 13. It seems to me that by declining to outrightly prohibit the trial of civilians by military courts, General Comment No. 32 essentially dispels the majority view of the Constitutional Court that the trial of civilians in the General Court Martial is a somewhat bizarr e constitutional misnomer. This is supported by the constrained prohibition of that practice in Principle 5 of the Draft Principles where by recourse to the phrase ‘ in principle ’ would suggest that there are circumstances under which on principle the trial of civilians in courts martial would be legally tenable . 14. General Comment No. 32 additionally waters down the finding of the majority in the Constitutional Court that courts martial are strictly ‘ disciplinary courts ’ or quasi - judicial bodies, t he exclusive function of which is to enforce discipline among serving military persons. Whereas undoubtedly the enforcement of military discipline is the mainstay of courts martial , it would be erroneous to consider it the ir over - riding function. I n Ugan da they have indeed been found to address the broader question of national security as well. See Attorney General v Maj. Gen. David Tinyefuza (supra) and Attorney General v Joseph Tumushabe, Constitutional Appeal No. 3 of 2005 (unreported) . This positio n resonates with the normative direction in Objective IV(i), as well as the succinct constitutional command of article 209(a) of the Constitution, both of which underscore the pivotal function of the military in Uganda as the preservation and defence of the country’s sovereignty and territorial integrity. It is within that constitutional framework that the function of courts martial in Uganda can be deduced. Constitutional Appeal No. 2 of 202 1 7 15. Courts martial are established by the UPDF Act by dint of article 210 of the Constitution to preside over the service offences defined in section 1 of the UPDF Act, which include the offences enshrined in Part VI of that Act . The offence of treachery under which the respondent was specifically charged, for instance, falls under ‘ operational offe nces and offences relating to security ,’ and entails the following ingredients: infiltration of the defence forces as an agent of a foreign (enemy) power or otherwise; giving classified information to a foreign power without the knowledge or approval of pr oper authority, and concealing vital information from such authority. This can hardly be considered to entail purely disciplinary matters. The intricate nature of the service offences they preside over thus supports the view that the primary function of c ourts martial is indeed to foster the efficacy of the military in securing the country and its borders. The enforcement of discipline within its rank and file is a vital component of that objective but is certainly not the sole function thereof. 16. Be that a s it may, the main bone of contention as far as the jurisdiction of the General Court Martial is concerned appears to be the status of that military court in the national judicial system. This in turn begs the question as to what would amount to a competent court (as opposed to a court’s capacity to perform its adjudicational function, to which I revert later in this judgment). Black’s Law Dictionary defin es a competent court, which is interchangeably referred to as a court of competent jurisdiction, as ‘ a court that has power and authority to do a particular act; one recognized by law as possessing the right to adjudicate a controversy .’ 7 (my emphasis) 17. Meanwhile, the golden rule of interpretation espouses the interpretation of legal texts in their most natural and conventional sense . W ords are generally to be understood in their usual and most known signification in terms of their general and popular use.’ 8 Stated differently, there is no need to interpret that which needs no interpretation. However, w here words are obscure and equivocal they should be interrogated within their legislative context, including the sense in whi ch lawmakers used the same terms in related provisions or legal instruments. This contextual construction was persuasively espoused in Uganda Law Society v Attorney General (2020) UGCC 4 to require that ‘ all provisions bearing on a particular issue should be considered together to give effect to the purpose of the instrument .’ 7 8 th Edition, p. 380 8 See Blackstone, William, 1723 – 1780, Commentaries on the Laws of England, Boston: Be acon Press, 1962, vol. 1, para.59 . Constitutional Appeal No. 2 of 202 1 8 18. In the matter before the Court present ly, reference to courts martial is to be found in articles 120(3)(b), 137(5) and 257(2)(a)(i) of the Constitution. The juridical competence of c ourts martial can be deduced from the definition of a court in article 257(1)(d) of the Constitution as juxtaposed against those constitutional provisions. Article 257(1)(d) of the Constitution simply defines a court as ‘ a court of judicature established by or under the authority of this Constitution .’ By implication, the courts of judicature that are established under article 129(1) of the Constitution would thereby pass constitutional muster. Needless to say, these include the subordinate courts establ ished under clause (d) of that constitutional provision. For ease of reference, article 129(1) is reproduced below. (1) The judicial power of Uganda shall be exercised by the courts of judicature which shall consist of — (a) the Supreme Court of Uganda ; (b) the Court of Appeal of Uganda ; (c) the High Court of Uganda ; and (d) such subordinate courts as Parliament may by law establish, including qadhis’ courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament . 19. Meanwhile , article 137(5) place s courts martial on the same competence footing as civilian courts in the following terms: ‘ where any question as to the interpretation of this Constitution arises in any proceedings in a court of law other than a field court martial ... ’ T he import of that constitutional provision is to equate a field court martial to a court of law but exclude those particular courts martial from the practice of constitutional references. Given that a field court martial is essentially a court martia l, the restriction of constitutional references to all other courts of law other than a field court martial clearly has the effect of equating the other courts martial (the General Court Martial and Court Martial Appeals Court) to courts of law. 20. I find fortitude for this view in Attorney General v Joseph Tumushabe (supra) , where this Court construed the principle in article 126(1) of the Constitution that ‘ judicial power shall be exercised by the courts established under the Constitution , ’ to embrace all judicial power as exercised both by the civilian courts and courts martial . That construction of article 126(1) was premised on the Constitution’s recognition , as courts of judicature , of both the superior courts that are established under article 129(1)( a), (b) and (c) of the Constitution, as well as, the subordinate courts established by Parliament under article 129(1)(d) thereof. The status of the General Court martial under the Constitution was then addressed as follows (per Mulenga, JSC) : Constitutional Appeal No. 2 of 202 1 9 The classification between superior and subordinate courts in article 23 only relates to the modes of establishment of the courts, namely “courts established by the constitution” being the superior courts, and “courts established by Parliament under the author ity of the Constitution” being the subordinate courts. ... Decisions of the Court Martial Appeal Court, like those from decisions of the High Court, lie to the Court of Appeal, rendering the Court Martial Appeal Court of the same level, in the appellate h ierarchy of courts, as the High Court. It follows that the General Court Martial (from which appeals lie to the Court Martial Appeals Court) is both a subordinate court within the meaning of article 129(1)(d) , and lower than the High Court in the appellat e hierarchy of courts . (my emphasis) 21. I am alive to the rule of law principles of stare decisis and legal certainty, which enjoin courts to determine litigation according to binding judicial precedent so as to engender consistency, stability and predictabi lity in a legal system. Given the pivotal role of an apex court such as the Supreme Court in ensuring legal certainty, these principles are constitutionally entrenched in article 132(4) of the Constitution which , while entreating this Court to abide its f ormer decisions does also oblige all other courts to follow decisions of the Supreme Court on questions of law. I have also carefully considered the merits of this Court’s decision in Attorney General v Joseph Tumushabe (supra ) above. The finding in that case that the General Court Martial is a subordinate court resonates with the definition of courts in article 257(1)(d) insofar as that military court is established by dint of article 210 and thus ‘ under the authority of (the) Constitutio n .’ Similar equating of courts martial to courts of law is to be found in articles 120(3)(b) and 257(2)(a)(i) of the Constitution, which read as follows: Article 120 . Director of Public Prosecutions (1) ......... (2) ......... (3) The functions of the Director of Public Prosecutions are the following — (a) …….. (b) to institute criminal proceedings against any person or authority in any court with competent jurisdiction other than a court martial ; Article 257 . Interpretation (1) ................. (2) In this Constitution — (a) unless the context otherwise requires, a reference to an office in the public service includes — (i) a reference to the office of Chief Justice, Deputy Chief Justice, Principal Judge, a justice of the Supreme Court or a justice of Constitutional Appeal No. 2 of 202 1 10 Appeal, or a judge of the High Court and the office of a member of any other court of law established by or under the authority of this Constitution, other than a court - martial , being an office the emoluments of which are paid directly from the Consolidated Fund or directly out of monies provided by Parliament ; (my emphasis) 22. The alignment of a court martial with any other court of law in both of those constitutional provisions has the effect of placing courts martial within the generic definition of a court of law. The recognition of cour ts martial as such is accentuated by their juxtaposition in article 257(2)(i) with courts of judicature as envisaged under article 129(1) of the Constitution. I take the view that the exclusion of courts martial from the public service offices enlisted in clause (2)(a)(i) of the same article would not necessarily discount the General Court Martial’s judicial status either, but simply underscores its character as a military rather than civil court. I find fortitude for this position in the provisions of article 175 of the Constitution. Clause (a) thereof defines a public officer as ‘ any person holding or acting in an office in the public service ,’ and public service is defined in clause (b) of the sa me a rticle as ‘ service in any civil capacity of the Government, the emoluments for which are payable directly from the Consolidated Fund or directly out of monies provided by Parliament .’ It thus becomes apparent that the distinguishing factor that would set apart persons serving in courts martial from their counterparts in civilian courts that hold their office s in the public service , is the former’s military service as opposed to the latter’s civil service. I therefore abide the position in the lead ju dgment that the General Court Martial is a subordinate court of judicature within the confines of article 129(1)(d) of the Constitution. 23. Be that as it may , the respondent extends his displeasure to the Legislature, fault ing it for supposedly exceed ing its legislative powers when it created the General Court Martial under the UPDF Act and conferred it with criminal jurisdiction over non - military persons , as well as the civil offences engrained in the Penal Code Act and other related Acts of Parliament. The legislative function of Parliament is delineated in article 79 of the Constitution as follows: (1) Subject to the provisions of this Constitution, Parliament shall have power to make laws on any matter for the peace, order, development and good governance of Uganda. (2) Except as provided in this Constitution, no person or body other than Parliament shall have power to make provisions having the force of law in Uganda except under authority conferred by an Act of Parliament. (3) Parliament shall protect this Constitution and promote the democratic governance of Uganda . Constitutional Appeal No. 2 of 202 1 11 24. Meanwhile, article 210 of the Constitution under which Parliament enacted the UPDF Act st ates : Parliament shall make laws regulating the Uganda Peoples’ Defence Forces and, in particular, providing for — (a) the organs and structures of the Uganda Peoples’ Defence Forces; (b) recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces and ensuring that members of the Uganda Peoples’ Defence Forces are recruited from every district of Uganda ; (c) terms and conditions of service of members of the Uganda Peoples’ Defence Forces; and (d) the deployment of troops outside Uganda . 25. A literal interpretation of article 79(1) and (3) above est ablish es that Parliament has a broad legislative mandate to enact laws in the interest of national peace, order and good governance. A rticle 210(a) and (b) further empowers Parliament to enact laws that govern the UPDF’s organs and structures, as well as its discipline. Courts martials are undoubtedly judicial organs of the UPDF. Having found that the General Court Martial is indeed a subordinate court of judicature, it follows that the establishment of the General Court Martial under the UPDF Act the and delineation of its jurisdiction therein was well within the remit of Parliament. 26. However , the scope of that jurisdiction is a matter of contention before this Court. T he appellant contests the Constitutio nal Court’s finding that sections 1 and 17 7 of the UPDF Act transform all criminal offences under the Penal Code Act and related enactments into service offences, thus unconstitutionally extending the General Court Martial’s jurisdiction beyond ‘ military o ffences ’ and military discipline to include civil offences . Those statutory provisions are reproduced below . Section 1 “ service offence ” means an offence under this Act or any other Act for the time being in force, committed by a person while subject to military law; Section 17 7 . Service trial of civil offences (1) A person subject to military law, who does or omits to do an act — Constitutional Appeal No. 2 of 202 1 12 (a) in Uganda, which constitutes an offence under the Penal Code Act or any other enactment; (b) outside Uganda, which would constitute an offence under the Penal Code Act or any other enactment if it had taken place in Uganda, commits a service offence and is , on conviction, liable to a punishment as prescribed in subsection (2). (2) Where a military court convicts a person under subsection (1), the military court shall impose a penalty in accordance with the relevant enactment and may, in addition to that penalty, impose the penalty of dismissal with disgrace from the Defence Forces or any less punishment prescribed by this Act. 27. I n Attorney General v Uganda Law Society (supra) this Court construed service offences to entail the offences created under the UPDF Act in respect of which the General Court Martial would have undisputed jurisdiction. With regard to offences outside the UPDF Act, the Court held that ‘ for an offence under an Act other than the UPDF Act to be within the jurisdiction of the General Court Martial, it must have been committed by a person subject to military law .’ That construction of a service offence would suggest that whereas all offences created under the UPDF Act are service offences, offences created under the Penal Code and oth er Acts would only become service offences that are triable by the General Court Martial if committed by persons that are subject to military law. 28. Persons that are subject to military law are outlined in section 11 7 (1) of the UPDF Act as follows: (1) The fol lowing persons shall be subject to military law — (a) every officer and militant of a Regular Force; (b) every officer and militant of the Reserve Forces and any prescribed force when he or she is — (i) undergoing drill or training whether in uniform or not; (ii) in uniform; (iii) on duty; (iv) on continuing full time military service ; (v) on active service ; (vi) in or on any vessel, vehicle or aircraft of the Defence Forces or any defence establishment or work for defence; (vii) serving with any unit of a Regular Force; or Constitutional Appeal No. 2 of 202 1 13 (viii) present, whether in uniform or not, at any drill or training of a unit of the Defence Forces ; (c) subject to such exceptions, adaptations, and modifications as the Defence Forces Council may by regulations, prescribe, a person who under any arrangement is attached or seconded as an offi cer or a militant to any Service or force of the Defence Forces ; (d) every person, not otherwise subject to military law , who is serving in the position of an officer or a militant of any force raised and maintained outside Uganda and commanded by an officer of the Defence Forces ; (e) every person, not otherwise subject to military law , who voluntarily accompanies any unit or other element of the Defence Forces which is on service in any place; (f) every person, not otherwise subject to military law while serving wit h the Defence Forces under an engagement by which he or she has agreed to be subject to military law ; (g) every person, not otherwise subject to military law , who aids or abets a person subject to military law in the commission of a service offence ; and (h) every person found in unlawful possession of — (i) arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces ; or (ii) other classified stores as prescribed. 29. It is noteworthy that the two categories of offences that may constitute a service offence under section 1 of the UPDF Act ( offences under the UPDF Act and offences under other Acts ) both share the common denominator of having been committed by a person while subject to military law and not simply subject to military law per se . In my judgment , this introduces a time element that is not quite addressed in the definition of a service offence advanced in Attorney General v Uganda Law Society (supra). That time element establishes a vital distinction between serving officers and men of the Regula r Force as encapsulated in subsection 11 7 (1)(a) , including those persons that are subject to military law but not necessarily serving regularly under the Defence Forces [ such as those in the Reserve Forces under subsection 11 7 (1)(b) ], on the one hand; and those that temporarily or voluntarily become subject to military law, as outlined in subsection 11 7 (1)(d) – (f) of the UPDF Act , on the other hand. Indeed, s ection 11 7 (8) of that Act sheds light on the legislative import of the phrase ‘ while subject to military law ’ insofar as it clarifies that a person who commits a service offence while subject to military law but has since ceased to be subject to that law may nonetheless be charged with the offence. That provision stipulates: Constitutional Appeal No. 2 of 202 1 14 Every person who comm its a service offence while subject to military law may be liable to be charged, dealt with and tried for that offence notwithstanding that he or she has ceased to be subject to military law since the commission of the offence. 30. Applying the concept in section 11 7 (8) mutatis mutandis , it follows that in relation to offences under the UPDF Act the definition of service offence in section 1 of the UPDF Act would entail offences created under Part VI of the UPDF Act and which accrue to the following categor ies of persons: I. Military person nel as outlined in section 11 7 (1)(a) of the UPDF Act, by virtue of their full - time military service in the Regular Forces, and II. T he persons delineated in section 11 7 (1)(b) – (f) for the period of time that they are in active military service and thus subject to military law (subject to the reserved option of arraignment under subsection 11 7 (8) of the Act, the cessation of their service notwithstanding.) 31. Consequently, the term service offence in section 1 of the UPDF Act would encompass the offences created under Part VI of the UPDF Act in relation to the persons delineated under section 11 7 (1)(a) – (f) of the Act, as well as offences under any other Act that are committed by the same category of persons. In other words, the criminal offences enumerated under the Penal Code Act and other related enactments (which under section 17 7 of the UPDF Act are referred to as civil offences ) would only constitute a service offence when committed by persons in active m ilitary service, whether on full - time basis as envisaged under subsection 11 7 (1)(a) of the UPDF Act or on temporary, term - based and/or voluntary basis as contemplated under subsection 11 7 (1(b) – (f) of the UPDF Act. 32. Hence , the scope of service offences enu merated above restricts the incorporation of civil offences to those instances where they are committed by persons that are in active military service as delineated under section 11 7 (1)(a) – (f) of the Act and on field operations . Persons that are not in active military service but only become subject to military law by dint of subsection 11 7 (1)(g) and (h) of the Act , would not be tried for civil offences in the military courts. They would only be tried for service offences under the UPDF Act where there actions bring them within the purview of military law . 33. Stated differently, the General Court Martial is primarily clothed with jurisdiction ratione personae to try service offences (including civil offences ) that are committed b y persons in fulltime, temporary, term - based or voluntary military service , whether within or outside Uganda. Its jurisdiction over civilians would only arise in exceptional circumstances where such non - military persons subject Constitutional Appeal No. 2 of 202 1 15 themselves to military law u nder the conditions encapsulated in section 11 7 (1)(g) and (h) of the UPDF Act. I interrogate the constitutionality of section 11 7 (1)(g) and (h) of the UPDF Act shortly but in any event, as shall be expounded in more detail under my consideration of Ground s 2 and 3 below, the trials of persons arraigned for service offences (whether military persons or non - military persons) should as much as possible in the circumstances conform to the dictates of a fair trial as enshrined in article 28 of the Constitution. 34. Against that background, I now turn to the contentious question of the jurisdictional scope of the General Court Martial over civil offences. In Attorney General v Joseph Tumushabe (supra) this Court considered article 23(6)(b) of the Constitution to m andate Parliament to exercise its discretion under article 129(3) to vest a subordinate court with jurisdiction that is concurrently enjoyed by the High Court on the premise that the classification between superior and subordinate courts in article 129(1) of the Constitution does not always relate to appellate hierarchy of those courts . I t was observed: N otwithstanding the definition of subordinate court in Article 257 as a court subordinate to the High Court, in Article 139(2), which is concerned with appellate hierarchy, it is provided that appeals which lie to the High Court are from “ decisions of any court lower than the High Court ” not decisions of subordinate courts. It appears to me that in this context, the word “subordinate” was not used as syno nymous with the word “lower”; so that not all subordinate courts are necessarily lower than the High Court in the appellate hierarchy . Under clause (3) of Article 129, Parliament has discretion subject to the provisions of the Constitution only, to make pr ovision for the jurisdiction and procedure of courts. There is no provision of the Constitution that restricts Parliament in the exercise of that discretion from vesting in a subordinate court jurisdiction over some matter, which is also within the jurisd iction of the High Court. Indeed that concurrency of jurisdiction is acknowledged in Article 23(6)(b) . (my emphasis) 35. I do appreciate the distinction between subordinate and lower courts as far as appellate hierarchy is concerned. This is accentuated by the fact that although the Industrial Court is a subordinate court, it has within its membership judges of the High Court and its decisions are appealable to the Court of Appeal. However, I am most respectfully unable to abide the proposition in that case that article 23(6)(b) of the Constitution infers any concurrence of jurisdiction between the High Court and subordinate courts. In my view, that constitutional provision simply acknowledges the unlimited jurisdiction of the High Court over both capital offences (which are its exclusive jurisdiction), as well as non - capital offences that are triable by the courts subordinate to it. For ease of reference, that constitutional provision is reproduced below. Constitutional Appeal No. 2 of 202 1 16 Where a person is arrested in respect of a criminal offence — (a) ................ ; (b) in the case of an offence which is triable by the High Court as well as by a subordinate court , if that person has been remanded in custody in respect of the offence for sixty days before trial, that person shall be released on bail on such conditions as the court considers reasonable; (my emphasis) 36. I do additionally acknowledge the position taken in Attorney General v Joseph Tumushabe (supra) that there is no provision of the Constitution that restricts Parliament from vesting a subordinate court with jurisdiction that is also within the purview of the High Court. For present purposes, however, I take the view that this lacuna should be interrogated with regard to the special character of courts martial , and existing international safeguards in respect of military courts. 37. To begin with, Principle 8 of the Draft Principles on Military Tribunals considers crimes commi tted in the course of field operations to be sufficient justification for the trial of civil offences by military courts. It states : This concept constitutes the “nexus” of military justice, particularly as regards field operations, when the territorial c ourt cannot exercise its jurisdiction. Only such a functional necessity can justify the limited but irreducible existence of military justice. The national court is prevented from exercising its active or passive jurisdiction for practical reasons arising from the remoteness of the action, while the local court that would be territorially competent is confronted with jurisdictional immunities. 9 38. Indeed section 198 (2) of the UPDF Act recognizes the function of field courts martial in presiding over offences committed in the course of field operations, ‘ where it is impracticable for the offender to be tried by a Unit Disciplinary Committee or Division Court Martial .’ This position is reiterated in section 17 7 of the Act albeit with additional emphasis on a civil offence translating into a service offence whether committed within or outside Uganda. The emphasis on geographical location, in my view, seeks to cater for situations where s erving military persons commit offences under the Penal Code and other Acts of Parliament while undertaking field operations both within or outside Uganda, but away from the geographical jurisdiction of civilian courts. 39. I am alive to the character of cour ts martial as special courts that are set up to address a specific area of the law, having a more limited jurisdiction than the courts of general jurisdiction; being faster 9 See paragraph 29 of the Draft Principles Governing the Administration of Justice through Military Tribunals . Constitutional Appeal No. 2 of 202 1 17 and often not bound to follow the same procedural rules that general - jurisdiction c ourts follow. See Raphael Baranzira & Another v Attorney General of Burundi, EACJ Reference No. 15 of 2014 and Attorney General v Joseph Tumushabe (supra ). Field courts martial are particularly characterized by quick processes that are not unduly bogged down by the procedural imperatives that obtain in general - jurisdiction civil courts (or indeed other courts martial) given the peculiar conditions within which they operate. Indeed, the constitution recognizes the peculiarity of field courts martial when in article 137(5) it exempts their processes from constitutional references. In those circumstances, clothing such field courts martial with jurisdiction over capital offences that attract a potential death sentence might appear gravely ill - advised but for two equally critical considerations. 40. First, to restrict field courts martial to non - capital civil offences would be to leave capital offences that are committed in those some times fluid situations, uncatered for and unaddressed. This indisputably would be inimical to the administration of criminal justice and an affront to the rule of law, which subjects all persons to the law. Secondly, Principle 17 of the Draft Principles on Military Tribunals is emphatic on the right of appeal from courts martial, which by extension would include field courts martial. It states: In all cases where military tribunals exist, their authority should be limited to ruling in first instance. Co nsequently, recourse procedures, particularly appeals, should be brought before the civil courts. In all situations, disputes concerning legality should be settled by the highest civil court. Conflicts of authority and jurisdiction between military tribun als and ordinary courts must be resolved by a higher judicial body, such as a supreme court or constitutional court, that forms part of the system of ordinary courts and is composed of independent, impartial and competent judges. 41. Accordingly, the right of appeal from the de cision of a field court martial does provide a vital safeguard to the exigencies of their judicial processes. Its relegation to creation by subsidiary legislation is a misnomer that ought to be revisited. In the event, I would abide the proposition in Principle 8 of the Draft Principles on Military Tribunals that the circumstances under which field courts martial operate do provide sufficient justif ication for their jurisdiction to try civil offences, including capital offences. Having so held, and considering that the General Court Martial sits in appeal over decisions of field courts martial, I would refrain from excluding civil capital offences from its jurisdiction. 42. I now turn to the constitutionality of section 11 7 (1)(g) an d (h) of the UPDF Act. Those statutory provisions subject two categories of people to military law : persons that aid and abet a person subject Constitutional Appeal No. 2 of 202 1 18 to military law in the commission of a service offence , 10 and those found in unlawful possession of arms, ammunit ion or equipment ordinarily or other classified stores that is the preserve of the UPDF . 11 The controversy as to the constitutionality of those statutory provisions has arisen in numerous cases, with varying results. It arose before the Constitutional Court in Uganda Law Society v Attorney General, Constitutional Petition No. 18 of 2005 and was framed as an issue in the following terms: Whether Section 11 7 (1) (g) and (h) of the UPDF Act is inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution. By three to two majority, the Constitutional Court on that occasion found that section 11 7 (1)(g) and (h) of the UPDF Act was not inconsistent with Articles 28(1), 126(1) and 210 of the Constitution. That finding of the court was never subjected to appeal in Attorney General v Uganda Law Society (supra). 43. In the latter case of Michael Kabaziguruka v Attorney General, Constitutional Petition No. 45 of 2016 (from which this appeal arises), in a marked departure from the then settled question in Uganda Law Society v Attorney General (supra), the majority declared section 11 7 (1)(h) of the UPDF Act inconsistent with Article 28(1) of the Constitution. To the ex tent that it offended the principle of stare decisis articulated in Attorney General v Uganda Law Society (supra), the case of Uganda Law Society v Attorney General (supra) was at the time decided per incuriam . In the meantime however, the Constitutional Court went ahead to follow its impugned decision in Michael Kabaziguruka v Attorney General (supra) in the latter cases of Ret. Capt. Amon Byarugaba & Others v Attorney General, Constitutional Petition No. 44 of 2015 and Abdulnul Ssemuju v Attorney General [2023] UGCC 5 . It now falls to this Court, under the present Appeal, to pronounce its elf with finality on the matter . 44. Given the foregoing background and the pivotal place of the doctrine of stare decisis in the Common Law system that Uganda professes, I consider the then prevailing position on the constitutionality of subsection s 11 7 (1)(g) and (h) to have been as expressed by the Constitutional C ourt in Uganda Law Society v Attorney General (supra). In that case, Kikonyogo, DCJ particularly sums up the rationale behind the trial of civilians in military courts as follows: The inclusion of the provisions above were intended to safeguard national security where such civilians find themselves in conflict with the military law. It was intended to discourage civilians from aiding and abetting army personnel to commit crimes while in pursuit of their duties within the military administration. This is well intentioned for purposes of the wider realm of the state’s constitutional 10 Section 11 7 (1)(g) of the UPDF Act. 11 Section 11 7 (1)(h) Constitutional Appeal No. 2 of 202 1 19 mandate to control the nation’s defence and national security. ... As a general rule civilians should not be tried in military courts, where the civil courts have competent jurisdiction to try them. However, in my view and for the reasons stated above, joint trials of civilians and pers ons who commit service offences are justified in circumstances envisaged under section 11 7 (1)(g) of the UPDF Act. ... It is therefore justifiable to subject a person to military law who aids or abets or is in unlawful possession of firearms and ammunitio n which are the monopoly of the army. 45. The question is whether the parameters that are encapsulated in section 11 7 (1)(g) and (h) amount to exceptional circumstances that would justify the trial of civilians in military courts. The law is a major component of public policy and would thus be a vital public policy consideration for the justification of the trial of civilians in military courts. Indeed, I am alive to the duty placed upon Ugandan citizens under Objective XXIX(g) and article 3(4)(a) of the Constitution to uphold and defend the Constitution and the law. This perhaps explains why criminal law considers to be criminally culpable a person that aids or abets the commission of a crime or has a common intention with others in the commission of a crime. These legal principles are duly captured in sections 19 and 20 of the Penal Code Act. Section 19 (1)(c) of that Act specifically places a person that aids or abets another in the commission of an offence on the same footing a s one that actually commits the offence, and may be charged with actually committing the offence. That statutory provision stipulates as follows: When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it — (a) ..........; (b) ...........; (c) every person who aids or abets another person in committing the offence . 46. Reading section 11 7 (1)(g) of the UPDF Act together with section 19(1 )(c) of the Penal Code Act would mean that a person that aids or abets a serving or active military person in the commission of the service offences encapsulated under Part VI of the Act would be ‘ deemed to have taken part in committing the offence and be guilty of the offence and may be charged with actually committing it .’ In practical terms, Ayume, Francis J, ‘Criminal Procedure and Law in Uganda’ posits that a person who aids and abets another in the commission of a crime may be joined in one charge sheet and tried together with those who actually commi t the crime, but the particulars of the offence must clearly indicate the role of the aider and abettor . 12 I take the view, therefore, that criminal 12 Law Africa Publishing Limited, 2010 Reprint, pp. 73 , 74. Constitutional Appeal No. 2 of 202 1 20 culpability by way of aiding and abetting the commiss ion of a service offence is sufficient justification for the subjection of a civilian to military law . 47. I respectfully do not abide the view that such trials should axiomatically ensue in the civilian courts. In my view, the fact that the principal offender is a person in active military service and charged with a purely service offence warrants the recourse to military courts (as opposed to civil courts) for the trial of both the principal offenders and their accomplices. F urthermore, the intricate nature of service offences encapsulated in Part VI of the UPDF Act would be better suited for trial before military courts rather than civil courts. I would, however, abide the exemption posited in Oxford Dictionary of Law 13 that ‘ when a member of the armed forces is charged with conduct … that is an offence under both service law and the ordinary criminal law, the trial must in certain serious cases (eg treason, murder, manslaughter and rape) be held by the ordinary criminal court s (and is in practice frequently held by them in other cases) .’ 48. I would construe this proposition to draw a distinction between the commission by a military person of a pure service offence, on the one hand, and a service offence that is also available as a civil offence. In addition, though seemingly restricted to capital offences, I would extend it to non - capital offences that accrue as both service offences and civil offences. In my view, therefore, the general rule ought to be that military (service) offences are triable in military courts and civil offences are triable in civil courts, save for two exceptions: the trial by field courts martial of military persons that commit civil offences during field operations ( as discussed earlier ), and the trial of service offences by civil courts where such offences do also exist on the ordinary criminal law statute books . I would therefore uphold the majority in the Constitutional Court that civilians that aid and abet military persons in the commission of a s ervice offence do by their actions subject themselves to military law under section 117(1)(g) of the Act. 49. Section 11 7 (1)(h) , on the other hand, subjects to military law any person found in unlawful possession of ‘ arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces ; or other classified stores . ’ I find no definition in the Act as would guide a reasonable member of the public as to what type of military equipment is the monopoly of the UPDF, let alone what would amount to ‘ clas sified stores , ’ so as to avoid the proscribed conduct. A comparable term might perhaps be military stores , which is defined in section 161(5)(c) as ‘ any chattel of any description belonging to the Government which has been issued when required, 13 7 th Edition at p.141. Constitutional Appeal No. 2 of 202 1 21 and includes, any chattel which had belonged and had been issued or held as described in this subsection at some past time . ’ I am afraid, this is not helpful. 50. Meanwhile, article 28(12) of the Constitution considers a criminal offence that is not defined to un dermine the right to a fair trial and thus prohibits convictions arising from vague and ambiguous criminal offences. The need for a precise definition of a n offence is associated with the principle of legality that translates into the constitutional princ iple of ‘ void - for - vagueness .’ The void - for - vagueness doctrine essentially requires that ‘ a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement .’ See Kolender v Lawson (1983), United States Supreme Court, No. 81 - 1320 . Thus, legislative provisions that have not been defined with sufficient conciseness have invariably been adjudged to be void on ac count of their vagueness. See Francis Tumwesige Ateenyi v Attorney General, Constitutional Petition No. 36 of 2018 and Andrew Karamagi & Another v Attorney General, Constitutional Petition No. 5 of 2016 . On that premise, therefore, I am unable to endors e the constitutionality of section 117(1)(h) of the Constitution. 51. In a nutshell , I find that the General Court Martial has jurisdiction over the following category of persons (jurisdiction ratione personae ) and offences (jurisdiction ratione materiae ) : (1) Service offences created under Part VI of the UPDF Act that are committed by persons under fulltime, temporary, term - based or voluntary military service as delineated under section 11 7 (1)(a) – (f) of the Act; (2) Appellate jurisdiction over c ivil offences und er any other Act that are committed by the same category of persons while in active military service and on field operations, whether within or outside Uganda; (3) Non - military persons that subject themselves to military law under the circumstances encapsulate d in section 11 7 (1)(g) of the UPDF Act . 52. In the result, I find that service offences as defined in section 1 , as well as the provisions of section 17 7 of UPDF Act , are not at cross - purposes with either the legislative mandate of Parliament under articles 79, 129(3) and 210 of the Constitution or the objective of the UPDF Act under article 210(a) and (b) of the Constitution; nor in any case are they inconsistent with articles 28(1) and 44(c) of the Constitutional Appeal No. 2 of 202 1 22 Constitution. I do additionally find that the provisions of section 11 7 (1)(g) of the UPDF Act do constitute exceptional circumstances under which the trial of civilians in military courts would be justified, and to that ext ent is not inconsistent with articles 28(1) and 44(c) of the Constitution. I however find section 11 7 (1)(h) of the Act to be void for vagueness, and therefore inconsistent with article 28(12) of the Constitution. I would accordingly resolve Ground 1 of th e Appeal in the affirmative ; but respectfully find no merit in either Ground 4 of the Appeal or the Cross Appeal. 53. I now turn to Grounds 2 and 3 of the Appeal. The right to a fair trial is anchored in the principle of judicial independence, which in the Ugandan Constitution is articulated in article 128 . In the same vein, Principle 2 of the UN Basic Principles on the Independence of the Judiciary, 1985 enjoins judiciaries to ‘ decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressure, threats or interferences, direct or indirect, from any quarter or for any reason . ’ With specific regard to military courts, Principle 13 of the Draft Principles on Militar y Tribunals proposes that ‘ t he organization and operation of military courts should fully ensure the right of everyone to a competent, independent and impartial tribunal at every stage of legal proceedings from initial investigation to trial ; t he persons selected to perform the functions of judges in military courts must display integrity and competence and show proof of the necessary legal training and qualifications , (and) m ilitary judges should have a status guaranteeing their independence and impartial ity, in particular vis - à - vis the military hierarchy . ’ 54. The UN Human Rights Committee additionally enjoins states ‘ to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article 14 .’ This is echoed in Principle 2 of the Draft Principles on Military Tribunals insofar as it urges respect for and application of internationally recognized standards and procedures that guarantee the right to a fair trial. The African Commission of Human and Peoples’ Rights (ACHPR) has similarly adopted the stance that military tribunals must be subject to the same requirements of fairness, openness, and justice, independence, and due process as any other process. Thus, i n T he Constitutional Rights Project v. Nigeria , 14 it decided that a tribunal composed of one judge and members of the armed forces could not be considered impartial because 14 African Commission on Human and Peoples Rights, Communication No. 87/93 (1995), paras. 13 – 14. See also International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors (supra) at p. 29. Constitutional Appeal No. 2 of 202 1 23 ‘ regardless of the character of the individual members of such tribunals, its compositi on alone creates the appearance (of) , if not actual, lack of impartiality .’ 55. The General Court Martial of Uganda was established under section 19 5 of the UPDF Act . It is composed of seven members , all of whom are appointed by the High Command for a period of one year, subject to re - appointment by the same appointing authority. 15 Its membership is solely comprised of military persons , with no provision whatsoever for their professio nal qualifications; neither are such qualifications provided for its reserve members. Therefore, although at any one time the actual members of the General Court Martial could very well possess the requisite qualifications, its de jure composition is pure ly restricted to qualification on the basis of military service. 56. I n Incal v Turkey 16 the European Court on Human R ights highlighted the specific factors that would be taken into account in determining the impartiality and independence of military judges. The court astutely identified the crux of the matter as ‘ the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused . ’ It further deduced the parameters that would support the independence and impartiality of military judges to include , the same professional training as civilian judges and the enjoyment of constitutional safeguards identical to those applicable to civilian judges. It additionally express ed con cern about military judges being servicemen w ho still belong to the army (which in turn takes its orders from the Executive); remain subject to military discipline, and the appointment of whom is made by army structures for a short renewable term. 57. That de cision is most persuasive is most persuasive on the standard of independence and impartiality expected of military judges on military courts. In any event, the concerns expressed in it are re - echoed in Principle 13 of the Draft Principles on Military Tribunals , which enjoins states to legislate an organizational framework for military courts that underscores a competent military bench comprised of judges with the necessary legal training and qualifications, as well as a seniority of status th at supports their independence and impartiality vis - à - vis the military hierarchy. Paragraph 47 of that Draft Principle sums up the emphasis on the professional competence of judges that sit on military courts as follows: 15 See sections 197(1) and 198(a) of the UPDF Act. 16 [1998] ECHR 48 Constitutional Appeal No. 2 of 202 1 24 Judges called on to sit in milit ary courts should be competent, having undergone the same legal training as that required of professional judges. The legal competence and ethical standards of military judges, as judges who are fully aware of their duties and responsibilities, form an int rinsic part of their independence and impartiality. 58. It thus emphasizes equivalence in professional qualifications , ethical standards and constitutional safeguards between judges in civilian courts and their counterparts in military courts as a safeguard fo r their independence and impartiality. This could be attained by the designation of sitting judges to beef up military courts, as was the case in Incal v Turkey (supra) , where 2 of the judges were civilian judges and the third judge on the Bench was a military officer with legal expertise. It could also be attained by the direct appointment of judges to military courts using the processes that govern the appointment of judges to civil courts. This position obtains in the Industrial Court of Uganda, where two members of the bench are duly appointed as (civil) judges but designated to serve on that court alongside 3 members of the public with expertise in labour and employ ment issues. 59. In the matter before us, the respondent having pointed to the impugned section 19 5 as the legal basis for his misgivings with his trial before the General Court Martial, the evidential burden shifted to the appellant to factually demonstrate the independence and impartiality of the General Court Martial. Regrettably, such evidence was not forthcoming. I do not accept the appellant’s proposition that military courts in Uganda are impartial and independent simply because article 221 of the Con stitution enjoins the UPDF ‘ to observe and respect human rights in the performance of their functions .’ In my view, that constitutional imperative is simply a directional standard for courts martial rather than a factual situation that pertains to them. 60. Consequently, in complete agreement with the lead judgment, I find that the constitution of the General Court Martial does compromise its independence and impartiality as a subordinate court of unlimited jurisdiction and is to that extent inconsistent wit h article 28(1) and 44(c) of the Constitution. In the result, in agreement with the lead judgment, I would resolve Ground 2 of this Appeal in the negative. 61. On the other hand, under Ground 3 o f the Appeal the respondent’s arraignment before the General Court Martial is specifically challenged on account of the omission in the charge sheet to indicate his role in aiding and abetting the commission of a service offence as contemplated under section 11 7 (1)(g) of the UPDF Act. A s was obse rved earlier herein, a person that aids or abets another in Constitutional Appeal No. 2 of 202 1 25 the commission of an offence is deemed to have taken part in the commission of the offence, and, may be charged with actually committing the offence. 62. In the instant case, an incomplete charge sheet was annexed to the affidavit in support of the petition as annexure ‘A’. It reveals that A1 – A8 with whom the respondent was arraigned were at the time in active military service and therefore automaticall y subject to military law. The respondent, on the other hand, is depicted as a civilian , ‘ a member of the tenth (10 th ) Parliament of the Republic of Uganda, representing Nakawa Division, Kampala District ’ and designated as a person subject to military law by virtue of section 11 7 (1)(g) of the UPDF Act. Under Count 1 of the charge sheet, the Statement of Offence is stated as ‘ Offences relating to security C/s 130(1)(f) of the UPDF Act No. 7 of 2005 ,’ while the Particulars of Offence indicates that the res pondent, together with twenty - two other named persons and others still at large ‘ between the months of February and June 2016, in diverse places in Wakiso, Kampala and Luwero Districts of Uganda, with intent to prejudice the security of the Defence Forces or Forces co - operating with the Defence Forces did contrive a plot to overthrow the Government of Uganda by force of arms .’ 63. Although the charge sheet referred to section 11 7 (1)(g) of the UPDF Act under the description of the respondent , it did not spell out his role in the commission of the alleged service offence . This would indeed amount to a defect . However, not every defect in a charge sheet would make it bad in law and render the ensuing proceedings a nullity. The test to be applied is what the effect of the defect is and whether (if proceedings are concluded) it has occasioned a miscarriage of justice. In this case, no attempt was made to demonstrate any such miscarriage of justice. On the contrary, insofar as the charge sheet highlights t he statutory provision that brings the respondent under military law, which is clear on the issue of aiding and abetting the commission of a service offence, the respondent would have been on notice of the nature of offence he was arraigned for. Furthermo re, the charge sheet spells out the principal offenders by highlighting their status as persons in active military service. Moreover, borrowing from the civilian courts, under section 132 of the Magistrates Courts Act a court that is faced with a defectiv e charge has a wide discretion to amend it at any stage of a trial. As a similarly subordinate court, that option of amendment of the charge would be available to the General Court Martial to clarify the specific role played by the respondent in the alleg ed offence, as well as, demarcate who of the persons he was arraigned with were the principal offenders. 64. Consequently, given the procedural reliefs available to him, I do not find the defects in the charge sheet in this case to constitute sufficient reas on to declare the respondent’s arraignment before the Constitutional Appeal No. 2 of 202 1 26 General Court Martial a violation of the right to a fair trial. However, given the then de jure composition of the General Court Martial under section 197(1) of the UPDF Act, the respondent’s arraignme nt before that military court cannot have been in accordance with the right to trial before an independent and impartial court as envisaged in article 28(1) of the Constitution. I would accordingly resolve Ground 3 of the Appeal in the negative. 65. The foregoing findings beg the question as to what would be appropriate remedies in the circumstances of this case , and whether or not they should apply retroactively . Black’s Law Dictionary 17 distinguishes true retroactivity from quasi - retroactivity, the f ormer consisting of the application of a new rule of law to matters that were completed before the rule came into force, and the latter entailing the restriction of a new legal rule to matters pending completion. 18 Meanwhile, i n Griffith v Kentucky, 479 U.S 314, 328 (1987) , the US Supreme Court reiterated its view in United States v Johnson, 457 U. S. 537 (1982) , on the need to apply a new constitutional rule to all criminal cases pending determination in order to uphold basic norms of constitutional adjudic ation . It was held: Unlike a legislature, we do not promulgate new rules of constitutional criminal procedure on a broad basis . Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle fo r announcement of a new rule. But after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review . 66. The court thus projected the general rule on quasi - retroactivity as the retrospective application of new constitutional rules to all similar cases that are pending final determination. That case was cited with approval by the Constitutional Court in Duke Mabeya v Attorney General [2023] UGCC 116 . I still consider the decision in Griffith vs Kentucky (supra) to be good law and find no reason to depart from it. I would thus equally cite with approval the observation in Duke Mabeya v Attorney General (supra) that a new constitutional rule in the realm of criminal procedure be applied quasi - retroactively or restricted to cases pending final disposal , to avert the dire effect on the rule of law and the administration of justice of full retroactivity. 67. Griffith vs Ke ntucky (supra) additionally posits that unlike the legislature, it is not the function of the judiciary to formulate laws on a broad basis, its role being limited to the declaration of a new rule 17 8 th Edition, p. 1343 18 Citing Hartley, T. C., T he Foundation of European Community Law, 1981, 129 Constitutional Appeal No. 2 of 202 1 27 directly arising from an adjudication. This is similarly acknowledged by t he Canadian Supreme Court in the case of Schachter v Canada [1992] 2 S.C.R 679 . That case was relied upon in Fish, Eric S., ‘Choosing Constitutional Remedies’ , 63 UCLA Law Review (L. REV.) 322 (2016) at pp. 339 – 340 , where the following constitutional re medies are proposed – severance, striking down, reading down, reading in and suspension of the remedy. Schachter v Canada (supra) expounded on the remedies of severance and striking down as follows: The Doctrine of Severence Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. Generally speaking, when only a part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared. Far from being an unusual technique, severance is an ordinary and every day part of constitutional adjudication. For instance, if a single section of a statute violates the Constitution, normally that s ection would be severed from the rest of the statute so that the whole statute need not be struck down. To refuse to sever the offending part, and therefore declare inoperative parts of a legislative enactment which do not themselves violate the Constituti on, is surely the more difficult course to justify. Furthermore, 19 it is logical to expect that severance would be a more prominent technique under the Charter (of Bill of Rights) than it has been in division of power cases. In division of power cases the q uestion of constitutional validity often turns on an overall examination of the pith and substance of the legislation rather than on an examination of the effects of particular portions of the legislation on individual rights. Where a statute violates the division of powers, it tends do so as a whole. This is not so of violation of the Charter where the offending portion tends to be more limited. When the offending portion of a statute can be defined in a limited manner it is consistent with legal principle s to declare inoperative only that limited portion. In that way, as much of the legislative purpose as possible may be realised. ... This concern is reflected in the classic statement of the test for severance in Attorney - General for Alberta v Attorney - Gen eral for Canada [1947] A.C 503 at p. 518 : The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all. ... Therefore, the doctrine of severance requires that a court define carefully the extent of the inconsistency betwe en the statute in question and the requirements of the Constitution, and then 19 See Rogerson, ‘The Judicial Search for Appropriate Remedies under the Charter:The Exampl es of Overbreadth and Vagueness’, in Sharpe, ed. , Charter Litigation, (1986) at p p. 250 – 252 . Constitutional Appeal No. 2 of 202 1 28 declare inoperative (a) the inconsistent portion, and (b) such part of the reminder where it cannot be safely assumed that the legislature would have enacted it without the incon sistent part . 20 68. Relatedly, the remedy of Reading In was explained thus : Reading In as Akin to Severence The same approach should be applied to the question of reading in since extension by way of reading in is closely akin to the practice of severance. The difference is the manner in which the extent of inconsistency is defined. In the usual case of severanc e the inconsistency is defined as something improperly included in the statute which can be severed and struck down. In the case of reading in the inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes. Where the inconsistency is defined as what the statute excludes, the logical result of declaring inoperative that inconsistency may be to include the excluded group within the statutory scheme. This has the effecting of extending the reach of the statute by way of reading in rather than reading down . (my emphasis) 69. The choice of appropriate remedy between severance and reading in where a statutory provision violates the Constitution thus hinges on whether the nature of the constitutional inconsistency entails somethi ng improperly included in or excluded from the statute. In the matter before us presently, section 19 5 excludes such professional competencies in the membership of the General Court Martial as would mitigate connotations of partiality and non - independence . As such, reading those omissions in to that provision might have been the more appropriate remedy but for the fact that the deference to the competence of persons with a military background was at the time informed by the scarcity of legal professionals in the military and the complexities of securing legal professionals for field courts martial. This is borne out by the parliamentary debate in respect of the then Uganda Peoples Defence Forc es Bill, No. 22 of 2003 as reported in the Hansard Report of the Seventh Parliament, 21 st October 2004 , pp. 11387 – 11390. So that , reading in to section 19 5 of the UPDF Act the constitutional safeguards and membership as the court deems appropriate would be tantamount to the usurpation of Parliament’s legislative function by judicial over - reach . 70. However , the same Schachter case proposes another constitutional remedy that give s the legislature a chance to craft its own solution. It was observed: 21 20 Schachter v Canada (supra) at pp. 696, 697 21 Schachter v Canada (supra) at p. 715. Constitutional Appeal No. 2 of 202 1 29 A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void. This approach is clearly appropriate where the striking down o f a provision poses a potential danger to the public or otherwise threatens the rule of law. It may also be appropriate in cases of under - inclusiveness as opposed to overbreadth . 71. Provision for legislative reform therein would, in my view, address the shortfalls of the previous legislative process and provide an opportunity for the review of the military justice law in Uganda (as has been done in other jurisdictions) , to align it with the independence and impartiality safeguards envisaged in the right t o a fair trial under article 28(1) of the Constitution. It will suffice to observe here that unlike judiciary - driven reforms that ought to be restricted to matters that were in contention between the parties; legislative reform may holistically address ma tters that were not necessarily in issue before this Court but similarly accrue to the right to a fair trial in courts martial. This would forestall avoidable litigation in respect of related matters and abide the notion of judicial economy. C. Disposition 72. The upshot of my judgment is that this Appeal partially succeeds, while the cross appeal fails. I do abide Declarations (i), (ii), (iii) and (vi); Orders (3) and (7) on the non - retroactive effect of the Cou rt’s decision and costs, and Advisory Orders (d), (e) and (h) as stated in the lead judgment . 73. In the result, I would set aside the judgment and orders of the Constitutional Court in Constitutional Petition No. 45 of 2016 , and substitute them with the following declarations: (1) The General Court Marti al is a subordinate court of competent jurisdiction within the confines of article s 129(1)(d) and 257(1)(d) of the Constitution , but its de jure membership under section 19 5 (1) of the UPDF Act does undermine its independence and impartiality , and is to that extent inconsistent with the fundamental right to a fair trial enshrined in article 28(1) and 44(c) of the Constitution . (2) The respondent’s arraignment before a General Court Martial the de jure membership of which does not pass constitutional muster, was a violation of his right to a fair trial and , to that extent, inconsistent with article 28(1) and 44(c) of the Constitution. (3) The provisions of s ection 11 7 (1)(g) of the UPDF Act do delineate exceptional circumstances that would justify the trial of civilians in military courts, and is to that extent consistent with the right to a fair trial enshrined in articles 28(1) and 44(c) of the Constitution. Constitutional Appeal No. 2 of 202 1 30 (4) Section 11 7 (1)(h) of the UPDF Act is void for vagueness, and therefore inconsistent with the right to a fair trial as enshrined in article 28(12) of the Constitution. (5) Service offences as defined in section 1 , as well as the provisions of section 17 7 of UPDF Act , are not at cross - purp oses with either the objective of the UPDF Act under article 210(a) and (b) of the Constitution , or the legislative mandate of Parliament under articles 79, 129(3) and 210 of the Constitution; nor in any case are they inconsistent with articles 28(1) and 4 4(c) of the Constitution. (6) The Declaration of inconsistency in clause (2) above shall have quasi - retroactive application to all cases pending determination before the General Court Martial. 74. In addition to those Advisory Orders in the lead judgment that I have endorsed, I would propose the following additional advisory order : The General Court Martial be substantially composed of civilian judges who are directly appointed thereto by the Judici al Service Commission in accordance with the Constitution (as is presently done in respect of judges of the Industrial Court) , and the member(s) of the General Court Martial from within the military should be appointed in consultation with the Judicial Ser vice Commission. I would so order. Dated and delivered at Kampala this 31 st day of January , 202 5 . Monica K. Mugenyi Justice of the Supreme Court