Return of military court martial

Why does Museveni want this law badly?

COVER STORY | THE INDEPENDENT | Three months after the Uganda Supreme Court ruled that it is unconstitutional for the General Court Martial to try civilians, the government on May 14 introduced a Bill in parliament to reverse that decision.

The Minister of Defence and Veterans’ Affairs, Jacob Oboth Oboth, introduced the UPDF Amendment Bill which, among other things, seeks to cause changes in the law to allow military courts to try civilians.

Judging by the urgency with which the Bill is being handled, it appears President Yoweri Museveni wants it passed quickly. The Supreme Court judgment that blocked the trial of civilians before the General Court Martial was rendered on Jan.31.

On Feb.2, President Museveni wrote in a press release that the Supreme Court judgment that blocked the trial of civilians before the General Court Martial was “wrong.”

“Anyway, the country is not governed by judges,” Museveni wrote in part, “Let, therefore, the Attorney-General propose the amendments to the constitution of the laws to help our Judges in future from interfering with this useful self-protection instrument for the Country and also remove any irrationalities if any.”

Two weeks later, President Yoweri Museveni on Feb.21 led the NRM caucus to pledge to support the proposed amendments to the UPDF Act as presented to them by the Attorney General.

According to Oboth-Oboth, the 144-page bill seeks to implement the Supreme Court decision in Constitutional Appeal No. 2 of 2021—Attorney General vs Hon. Michael A. Kabaziguruka—by restructuring and re-establishing the courts martial in the Defence Forces and prescribing their jurisdiction, its membership, qualifications of the chairpersons of the courts martial,  their independence, and the appeal process.

Oboth-Oboth presents the proposed re-introduction of trial of civilians by the military courts martial as a minor issue likely to occur in “exceptional circumstances.” But members of opposition parties have warned the government that reversing the ruling of the Supreme Court could have serious consequences.

The Ndorwa East MP, Wilfred Niwagaba (FDC), who is also the Shadow Attorney General warned in February that the speed at which they are moving to amend the UPDF Act shows that the government side have a “sinister motive.” “They just want to reinstate the defunct court martial,” he said in parliament, “Their goal is to find a way to overturn the Supreme Court ruling.”

Even if MP Niwagaba and others are right, it still does not explain why the government desperately wants the trial of civilians in courts martial desperately. After all, the state security agencies are known to willy-nilly grab civilians off the street, detain them in ungazetted places, torture them, and in some cases they disappear.

Even as government-leaning MPs and ministers were in parliament frantically pushing to return the trial of civilians in the military courts martial on May 15, armed men reportedly descended on the home of Noah Mutwe, a loyal supporter of National Unity Platform (NUP) leader Bobi Wine in Gombe village near Kampala and drove away with him in an unmarked vehicle.

On the same day, another prominent NUP supporter, Kassim Ssebudde alias Kunta Kinte who had been abducted weeks earlier in Mukono was returned and dumped near his home. Kunta Kinte bore fresh scars and reportedly said he was initially detained together with Edward Ssebufu aka Eddie Mutwe, the prominent bodyguard of Bobi Wine whose alleged torture under the UPDF CDF, Gen. Muhoozi Kainerugaba, has sparked international condemnation.

“We were abducted on the same day. I was held with Eddie Mutwe and Najabi Kyagulanyi but they later took each of us to different places. I was beaten, questioned, tortured without charge,” Kunta Kinte reportedly told journalists according to a report in the Nile Post.

Also, according to a report by the Global Press Journal, a government report from February 2024 shows that 264 people were held on remand for trial in military courts. It says the Global Press failed to get latest figures from the Uganda Prisons Service. But George Musisi, a lawyer who has represented civilians in the General Court Martial in Kampala, says about 2,000 civilians are still held on remand under different courts martial despite the Supreme Court ordering the transfer of their cases to civilian court. Only one case, that of opposition political stalwart Dr Kizza Besigye and his co-accused Obed Lutale, has been moved to civilian court since the Supreme Court ruling.

Importance of Military Courts

If the state and its security agencies can routinely act outside of the law as these cases appear to show, why are they desperate to have a law that allows them to try civilians in military courts?

Part of the reason is that the military courts are ad hoc courts that often render ad hoc decisions, without clear guiding policies and processes. Civilians, or any one for that matter, appearing before them have very negligible chance of getting a fair legal trial. Defense lawyers for civilian defendants in the courts martial have often wondered how justice could be dispensed for civilians in the Military Court Martial where the Defence Forces are the “complainant, investigator, witnesses and judge.” On the flip side, however, such token trials allow the government to lock-up supporters of the opposition on the flimsiest charges, which are allegedly sometimes trumped up, and still claim due legal process was followed.  This is a point that was made by Makindye West MP, Derick Nyeko (NUP), during debate in parliament.

“There is no way you can tell me that a boot, a black boot, or any other clothing without symbol should be classified and gazetted as a military uniform. I believe this is going to affect many people. Someone is arrested simply for wearing a red beret that specifically  bears the symbols of People Power, one that is gazetted and accepted by the Electoral Commission and is different from that of the army,” Nyeko said.

Importance of Parliamentary amendments

But there appears to be another even more important reason: Apparently having the parliament of Uganda pass such a law that enables the state to try civilians in military courts allows the government to create trappings of legitimacy for its unlawful activities.

According to some commentators, by passing provisions in the UPDF Amendment Bill that allow military courts martial to try civilians, the MPs will be giving legal cover to abuse of the right to fair trial of members of the opposition.

Benon M. Gowa, a lawyer made this point when he explained why the Uganda Law Society was right not to participate in a process in which it was given just one hour in advance to present its members’ views on the UPDF (Amendment) Bill, 2025.

“The invitation was declined,” Gowa posted on X (formerly Twitter), “Perfunctory public consultation is used to legitimise unpopular laws. Civil society actors should not legitimize illegality.”

Golooba-Mutebi, a well-known social-political researcher followed that with this comment: “A government with the instincts of a con man or exam cheat. In elections, legislation, etc. And then they want to create “positive headlines”… to “counter negativity in the media.”

In practice, according to this group of thinkers, the state is attempting to engage in ‘rule by law,’ which means that the state wants to use the law as a tool of political repression and enforcing it unequally on the parties, with a different set of rules favouring a few sections of the society.

By definition, rule by law can become an instrument of oppression. It can give legitimacy to the enactment of laws which may grossly violate basic human rights.

Rule by law is the opposite of ‘Rule of law’ which is the desired system where all laws apply equally to all citizens of the country and no one can be above the law, according to its known definition. Any crime or violation of law has a specific punishment as well as a process through which the guilt of the person has to be established. It also says that no person shall be subject to harsh, uncivilized or discriminatory treatment even for the sake of maintaining law and order.

According to the proposed amendments, the government proposes that civilians may once again be subjected to military courts in what it describes as “limited circumstances,” as referenced in the lead judgment by Chief Justice Alfonse Owiny-Dollo.

The bill lists individuals, other than members of the Defence Forces, who can be subjected to military law under these ‘limited circumstances’ to include persons who voluntarily accompany a unit of the Defence Forces in active service, those found in unlawful possession of arms, ammunition, or equipment ordinarily restricted to the military. It also includes those who aid or abet a member of the Defence Forces in committing, or conspiring to commit, serious offences such as murder, aggravated robbery, kidnapping with intent to murder, treason, misprision of treason, or cattle rustling.

Additionally, a person who is found without authority in possession of, or selling or wearing, a Defence Forces uniform, or who is found in unlawful possession of military equipment or classified stores, may also be tried in a military court.

However, these so-called “limited circumstances” closely mirror the very charges under which civilians have previously been tried before courts martial—charges that the Supreme Court judgment ruled as unconstitutional.

But, as soon Parliament passes these provisions of the Amendment Bill, it will become law. Codifying these amendments to the UPDF Act 2025 will immediately trigger two things: First it will provide a legal means for the state to enforce political control on any of its opponents. Secondly, it will give regime apparatchiks a sanitised way to silence any criticism of the state’s dirty actions.

If any NRM-MP, UPDF spokesperson, or government minister is asked why the state “tries civilians in military courts,” they will simply say it is a legal process enshrined in the Constitution. And they will be correct.

If it is a foreigner criticizing the process, the government official will simply say: “That is the law of our country. The laws were passed in parliament, in a transparent and democratic process in which the views of the Uganda Law Society were sought.”

These claims of legality will obscure the Supreme Court ruling read by Chief Justice Owiny-Dollo that warned that allowing civilian trials in military courts, regardless of the alleged crime or association with military personnel, deprives such civilians of rights afforded to them in civilian courts.

“Extending the jurisdiction of military courts to cover civilians in a blanket manner, whether they are alleged accomplices or found in possession of military stores, is unacceptable,” he said. He added: “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 secure Ugandan borders and the trial of civilians in military tribunals.”  That is about to change.

In instances where a civilian is found to have breached military regulations in collaboration with a person triable by a court martial, Owiny-Dollo emphasised that both should be tried in civilian courts. He also dismissed the argument—often advanced by President Museveni and others—that military courts are faster at dispensing justice: “This argument is not sound… The State also has a duty to strengthen ordinary courts and thus empower them to function at an optimal capacity.”

In the proposed amendments, if a civilian is found in unauthorised possession, sale, or wearing of UPDF uniforms, they would be treated as “militants” with the rank of private, unless a commanding officer grants a higher equivalent military rank through a revocable certificate. Most opposition NUP members have been called out for wearing red berets, overalls, and other paraphernalia that the state claims are army uniform.

The Supreme Court also agreed that the composition of military courts, the qualifications of their members, the absence of secure tenure, and the lack of structural independence, render them unfit to try civilians.

The proposed bill addresses some of these concerns by introducing minimum legal qualifications for chairpersons of the military courts. The Unit and Division Court Martial chairpersons must hold a Bachelor of Laws and a Postgraduate Diploma in Legal Practice.

The General Court Martial chairperson must have qualifications equivalent to those of a High Court judge, and its panel members must be advocates of the High Court. All appointments will be made by the High Command on a three-year renewable term, based on recommendations from the Judicial Service Commission.

Currently, court martial members do not require legal qualifications, and the Judicial Service Commission plays no role in their appointments. The Bill also introduces a right of appeal. It permits appeals from the General Court Martial to the Civil Court of Appeal.

The amendments also propose that sentences of death passed by the General Court Martial must be confirmed by the Supreme Court. To enhance judicial independence, the Bill requires court martial members to take a judicial oath akin to that taken by judges of the judiciary. It states: “The members of the courts martial shall, in the performance of their judicial functions, be independent and impartial and shall not be subject to command.”