Prosecuting civilians in army courts is illegal- Constitutional Court

The judges agreed that cases of unlawful possession of firearms shouldn’t be tried in the Court Martial but rather in the civilian courts.

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The Constitutional Court has Thursday ruled that the trial of the civilians in Military General Court Martial is illegal and ordered immediate transfer of their files to civil courts.

In their ruling, four out of five judges said the General Court Martial’s jurisdiction is only limited to trying service offences specified under the UPDF act, only in respect to persons subject to military law.

“All those persons, not subjected to military law and are currently being tried before any military court, we order that their files be transferred to civil courts under the direction of Director Public Prosecutions within 14 days from that date hereof,” the judges ruled.

They added:” All those not subjected to military law who are currently serving sentences imposed by the authority of military Courts contrary to the constitution as set out in tbis judgment, should have their case files to the High Court criminal division for retrial or be dealt with as the Court Martial may direct within 14 days of this judgment”.

The judges however said the ruling doesn’t exonerate anybody from criminal responsibility and said those affected will remain in lawful custody or bail as fresh charges may be preferred against them by the DPP.

The judges also nullified several sections in the UPDF act including section 119 (1), Section 119 (h) and section 179 (1)(a) saying they are inconsistent with Article 28(1) of the Constitution of Uganda.

The judges agreed that cases of unlawful possession of firearms shouldn’t be tried in the Court Martial but rather in the civilian courts.

The ruling also quashed the trial of the terrorism and illegal possession of firearms cases including that being faced by a number of National Unity Platform supporters.

The judgement follows a petition by former Nakawa Division Member of Parliament Michael Kabaziguruka, to the Constitutional Court challenging the powers of the Court Martial, Jurisdiction of the Court Martial and the consistency of the Court Martial among others.

Since 2002, hundreds of non military Ugandans have been prosecuted in the General Court for offenses under the criminal code, such as murder and armed robbery.

In 2006, a similar ruling was passed by the Constitutional Court. This ruling, upheld on appeal by the Supreme Court in January 2009, was consistent with international law, which unambiguously holds that military tribunals are not competent courts to try civilians accused of peacetime criminal offenses.

But nevertheless, military courts have continued to prosecute civilians.

On several occasions, president Yoweri Museveni has defended using military courts for civilians insisting that civilian courts were failing to secure convictions of those accused of violent crimes.

On the other hand, human rights defenders have continued to disagree with the president reasoning that problems with the civilian criminal justice system can never be a justification for violating the fundamental rights of the accused

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