Ssemujju v Attorney General (Consitutional Petition No. 4 of 2018) [2023] UGCC 5 (3 February 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDAAT KAMPALA CONSTITUTIONAL PETITION NO.4 OF 2018

## BETWEEN

10 ssEMuflu ABDULNUL PETITIONER

## VERSUS

ATTORNEY GENERAL RESPONDENT CORAM: Hon. Mr. Justice Kenneth Kakuru, fA/fCC Hon. Mr. Justice Cheborion Barishaki, JA/JCC Hon. Lady. Justice Hellen Obura, lA/lCC Hon. Mr. fustice Stephen Musota, lAl ICC

Hon. Lady. lustice Monica Mugenyi, lA/ ICC

## IUDGMENT OF HON. JUSTICE KENNETH KAKURU. IAl JCC

The Petition is brought under /rticle 737 of the 1995 Constitution of Uganda and the Constitutional Court (Petitions and References) Rules 2005 Statutory Instrument No. 91 of 2005.

## Background

On 6th Decemb er, 2017 , the petitioner was arrested from Kiwatule by armed but plain clothed security operatives who rushed and detained him at the chieftaincy of

- Military lntelligence (hereinafter referred to as cMI) at Mbuya, Nakawa Division. The petitioner spent two weeks at CMI until the l8tt' day of December, 2017 when he was arraigned before the General Court Martial Makindye, he was charged with kidnapping contrary to Sections 139 and 242 of the Penal Code Act. He was consequently remanded to Luzira Maximum Security Prison. The petitioner is a 25 - civilian and not a member of the Armed Forces. 30

He was subsequently charged before the General Court Martial as a person subject $\mathsf{S}$ to military law by virtue of Section 119(1) (h) (i) of the UPDF Act 2005.

He now challenges the said trial before the General Court Martial that was brought under Sections 119 (1) (h) (i) of the UPDF Act, 2005, in respect of offences under Sections 239 and 242 of the Penal Code Act Cap. 120. At the commencement of the trial he declined to take plea challenging its constitutionality. He persistently objected to his trial before the General Court Martial. In the result that he filed this petition contending among others that his trial before the Court Martial was Act 2005 unconstitutional.

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He now petitions this Court seeking the following declarations, orders and reliefs the is respect of offences under Syction

(a) That Section 197 of the UPDF Act, 2006 is inconsistent with and in 15 ander contravention of Article 28(1), 126(1) and 29(2) of the Constitution to the

of the traextent that it purports to create a Court of law without Constitutional $\langle \cdot, \cdot \rangle$ objected tauthority. to result that he filed this

petitio(b) That Section 2 of the UPDF Act is inconsistent with and in contravention of Articles 28(1) and 44(c) of the Constitution of the Republic of Uganda to the extent that it defines a service offence to mean any offence under all the laws

- For non-of Uganda, thereby conferring jurisdiction unto the Court Martial over any, including non-disciplinary offences and over every person. aster' with and in - (c) That the General Court Martial and other Military Courts established under part VIII of the UPDF Act are not Courts of law within the meaning of Articles 126(1),29(1) and 210 and 257 of the Constitution of the Republic of Uganda. - (d) That the act of charging/arraigning the Petitioner before the General Court Martial Holden at Makindye is inconsistent with and in contravention of Article 28(1) of the Constitution of the Republic of Uganda.

(e) That the proceeding in CR CASE NO. UPDF/GCM/024/2017: Uganda Versus SSP Nixon Agasirwe Karuhanga and Ssemujju Adbulnul alias Minana are null and void and be terminated forthwith.

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and in continuention of

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- 5 (fl That reliance on the above impugned provisions of the UPDF Act by the Respondent's agents in their ordinary course ofdury have caused iniustice to the Petitioner and subiected him to immense violation of the fundamental right to a fair hearing before o fair Court of Competent iurisdiction established by law and the Respondent is vicariously liable. - (g) A permanent injunction restraining the Respondent, his agents, servants and others acting under his authority from prosecuting the Petitioner before the General Court Martial with capital and other non-disciplinary offences. - (h) Costs of the Petition

The petition is accompanied by an affidavit sworn by the petitioner and filed in this Court on 23.a April 2010, the relevant parts are as follows: -

- 1. That on the 6th of December, 2017, I was arrested from Kiwatule at a washing bay by armed ploin clothed security operatives who rushed and detained me at Chieftaincy of Mititory lntelligence (Hereinafter referred to os CMI) Mbuya, Nakawa Division where I spent two weeks up to the 78th day of December, 2077 when I was arraigned before the General Court Martial Makindye and charged with the offences relating to Kidnapping contrary to Section 239 and 242 ofthe Penal Code Act Cap. 120 by virtue of S' 199(1) (h) (i) of the Uganda Peoples Defence Forces Act (hereinafter referred to as IIPDF Act 2005) vide CR. CASE NO. UPDF/GCM/024/2017: lJganda Versus Nixon Agasirwe Kuruhanga and Ssemujju Adbulnul olais Minona. - 2. Thot on the basis of the above, that charge sheet was read to me and I was told to toke a plea which I declined to do on the basis that as a civilian, I ought not to have been charged before the General Court Martial. I indicated to Court that I wish to take it in the midst and / or presence of my lawyer. (See copy of the proceedings attached hereto and marked Annexture "8"). - 3. Thatwhile the said SSP NIXON AGASIRWE KARIIHANGA is a serving member of the Uganda Police Force, I am a civilian and do obiect to the said trial by the General Court Martial. I have also been informed by my lawyer of M/s Luh,ttago & Co. Advocates which information I verily believe to be true that the General Court Martiol is not clothed with the iurisdiction to try me' for it is not a Page l3

- competent Court established under Constitutional Authority. The General Court $\mathsf{S}$ Martial has insisted that it is a Court of Law with the power to try the Petitioner and other civilians with the offences charged and I am affected and aggrieved *by the said arraignment thus this petition.* - 4. That I dispute the competence of the Court Martial's authority to try me as a 10 civilian with no military connection as well as the contest that it is not a Court of law within the meaning of the Constitution of the Republic of Uganda. - 5. That I am affected and aggrieved by some provisions of the Uganda Peoples Defence Forces Act, 2005 as stated in the petition and some acts of the Uganda Peoples Defence Forces being inconsistent with and in contravention with the Constitution of the Republic of Uganda. - 6. That in particular, I am aggrieved with the provisions of Sections 2 and 192 the UPDF Act which defines and establishes a "Court" contrary to the Constitution and empowering military Courts to try all service offences which are defined to mean all offences under any law. - 7. That I further complain that the act of remanding me to Luzira Upper Prison by a forum not authorised by the law was done in contravention of the principles and provisions of Article 23 (1) of the Constitution in so far as I was illegally deprived of the right to liberty and freedom. - 8. That I further complain that the act of remanding me to Luzira upper Prison by a forum not authorised by law was done in contravention of the principles and provisions of Article 23(1) of the Constitution in so far as I was illegally deprived of the right to liberty and freedom. - 9. That I am due to take plea on the 16th day of January, 2018 before, that the same Court as evidenced from the proceedings attached herein above which trial violates my right to a fair trial guaranteed under Article 28(1) of the Constitution of the Republic, a threat that is real and eminent.

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- 5 10. That as an ardent believer in the Rule ofLaw, I am affected and aggrieved with my continued arraignmenl trial and prosecution before the General Court Martial, o forum with no legal authority under the law. - Ll. That I have been informed by my above mentioned lawyers which information I verily believe to be true that: ' - a) The General Court is not a Court of competent iurisdiction within the meaning of Articles 28 (1), 126 (1), 129 (1) and 257(1) (d) of the Constitution ofthe Republic of the Republic of Uganda. - b) The said provisions of the IJPDF Act, 2005, to the extent that they purport to establish the General Court Martial with powers to try capital and non-disciplinary offences are inconsistent with and or in contravention of Articles 2S(1), (2) and Article 210 of the Constitution of the Republic of Ugando 1995. - c) The act of charging/arraigning me before the General Court Martial Holden at Makindye under CR. CASE NO. UPDF/GCM/024/2017: Uganda Versus Nixon Agasirwe Kuruhanga and Ssemuiiu Adbulnul alais Minana by virtue of Section 199(1)(h)(0 of the IIPDF 2005 Act over offences relating to kidnapping contrary to Section 239 and 242 of the Penal Code Act Cap 720 is inconsistent with and in conffavention of Articles 2B(1), 126(1), 129(1), 270 and 257 of the Constitution of the Republic of lJganda and such acts have deprived me of the Constitutional protection I am entitled to as o citizen, being fair trial and treatment. - d) Remanding me at Luzira lJpper Prison by and or on orders of the General Court Martial which lacks legal authoriry was in contravention of and is inconsistent with Article 2i (1) of the Constitution of the Republic of Uganda. - e) My detention in Luzira lJpper Prison on the orders of the General Court Martial which is not a Court of competent iurisdiction within the meaning and provisions of the Constitution was inconsistent with and in contravention of Article 23 (1) of the Constitution of the Republic of Uganda.

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The respondent filed an answer to the petition in which he denied the allegations in $\mathsf{S}$ the petition and described it as misconceived. The answer to the petition reads as follows: -

> "Save as herein expressly admitted, the allegations contained in the Petition are hereby denied in toto as if the same were set forth herein verbatim and denied seriatim.

- 1. The Respondent admits the contents of Paragraphs 1 and 2 of the Petition only in as far as they refer to the description of the parties to the Petition. - 2. The Respondent contends that the allegations as specified in Paragraph 3 of the Petition are false. - 3. In response to Paragraphs 4 and 5 the Respondent shall contend that the 15 Petitioner is being charged before the General Court Marital strictly in accordance with the Constitution and the relevant Laws and there is no matter for constitutional interpretation hereto.

4. The Respondent avers that in response to Paragraph 6 the Petitioner is currently being charged in accordance with the Law and it is premature to allege that the trial that is currently being undertaken before the Court Martial, court does it without jurisdiction.

5. The Respondent avers that in response to Paragraph 7 the Petitioner is currently being charged in accordance with the Law and it is premature to allege that the trial that is currently being undertaken before the Court Martial shall be a violation of his right to a fair hearing guaranteed under Article 28(1) and a violation of Articles 126(1), 129 (1),257(1) of the 1995 Constitution of the Republic of Uganda.

6. In further response to paragraph 7, the Respondent contends that the establishment of the General Court Martial is in $no$ way $a$ contravention of Articles 28(1)(2), 126(1), 129(1), 210 and 257(1)(d) of the 1995 Constitution.

7. In response to Paragraphs 8 and 9 of the Petition, the Respondent contends that it has long since been established that the General Court

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Martial is a Court of competent jurisdiction as provided by Article 210(a) of the 1995 Constitution and Section 197 of the UPDP Act, 2005 and it is established strictly in accordance with the Constitution.

8. In response to Paragraphs 10 and 11 of the Petition, the Respondent contends that it has long since been established 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 UPDP Act, 2005 and it is established strictly in accordance with the Constitution.

9. In further reply to paragraph 10, the Respondent avers that, the Petitioner is currently being charged in accordance with the Law and it is premature to allege that the trial that is currently being undertaken before the Court Martial is in contravention of Article 28(1)(2) and Article 210(a) of the 1995 Constitution of the Republic of Uganda.

10. In response to paragraphs 12, 13 and 14 of the Petition the Respondent shall illustrate to this Honourable Court that the act of charging, and arraigning the Petitioner before the General Court Martial and further remanding him to Luzira upper prison is strictly in accordance with the 1995 Constitution of the Republic of Uganda.

11. Lastly the Respondent shall contend as follows:

- (a) That the Petition discloses no question for constitutional interpretation as the allegations by the Petitioner are in line with the 1995 Constitution. - (b) That the impugned acts as stated in the Petition are neither inconsistent nor in contravention of any Article of the Constitution. - (c) That the Petition should be dismissed with costs since it does not describe any act in contravention of any provision of the Constitution. - (d) That this answer to the Petition is supported by the affidavit CAPTAIN MASEREJE SAMUEL attached hereto.

The Respondent asserts that the Petitioner is not entitled to the orders and declarations sought WHEREFORE he prays that this Petition be dismissed with costs.

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- The answer to the petition is also accompanied by affidavit sworn by Captain $\mathsf{S}$ Masereje Samuel the Chief Legal Services in the Uganda Peoples Defence Forces. It sets out facts in support of the respondent's answer to the petition. The respondent seeks the dismissal of this petition contending that it discloses no question for constitutional interpretation. The relevant parts of the respondent's affidavit in support of the petition are as follows: -10 - 3. That I know that the Petitioner is being charged before the General Court Marital strictly in accordance with the Constitution and the relevant Laws and there is no breach of the 1995 Constitution as alleged or at all. - 4. That I know that the Petitioner is currently being charged before the General Court Martial in accordance with the Law and it is premature for him to allege that his trial currently being undertaken before the Court Martial shall be a violation of his right to a fair hearing. - 5. That I know that it has long since been established in the Courts of Law 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 *Constitution.* - 6. That I further know that it has also been established by the Supreme Court that civilians can legally be subjected to trial before the General Court Martial as provided by Section 197 of the UPDF Act. - 7. That I therefore know that the act of charging and arraigning the Petitioner before the General Court Martial and further remanding him to Luzira upper Prison is strictly in accordance with the 1995 Constitution. - 8. That I have been advised by Hon. Attorney General whose advise I verily believe to be true that the Petition discloses no question for constitutional interpretation as the impugned allegations raised by the *Petitioner are in line with the 1995 Constitution.* - 9. That I have also been informed by our Lawyers in the Attorney General's Chambers that the Petition should be dismissed with costs as against the Respondent since it does not describe any act or omission in *contravention of any provision of the Constitution.*

#### 5 Representations

At the hearing of this petition, Mr. chrisotom Katumba represented the petitioner, whilst Ms. Clare Kukunda, represented the respondent'

### Issues

1.. Whether the petition raises any questions for constitutional interpretation.

2. Whether section 197 of the UPDF Act, 2005, is inconsistent with and in contravention of Articles 2B(1), 126(1), 129(2), (3) and 270 of the constitution of the Republic of ttganda to the extent that it purports to create a court of law without C onstitu tional auth ority?

- 3. Whether Section 2 of the IIPDF Act is inconsistent with and in contravention of Articles 2B(1) and 44(c) of the Constitution of the Republic of Uganda n the extent that it deftnes a service offence to mean any offence under all the laws of lJganda, thereby conferring iurisdiction unto the court Martial over ony criminal offence including non'disciplinary offences and over every person'? - 4. Whether the act of charging/arraigning the Petitioner before the General court Martial holden at Makindye is inconsistent with and in contravention of Article 28(1) ond 44(c) ofthe Constitution ofthe Republic ofUganda?

5. Whether the Petitioner is entitled to the reliefs sought?

I have carefully listened and considered the submissions of both Counsel on the consritutionality of section 2, 119 (1) (h) and 197 of the IJPDF AcL I have also carefully perused the affidavits as well as the relative provisions of the law and authorities cited by the parties. From the pleadings ofboth parties and the issues set out above. 25

The constitutionality of the issues raised above were substantially raised and settled in the recent constitutional decision of Hon. Michael Kabaziguruka vs Attorney General constitutional Petition No. 45 of 2016 (unreportedJ. I will reproduce the declarations in extenso for clarity: -

PaSe | 9 - 1) The General Court Martial established under the Section 197 of the UPDF Act is a competent quasi-judicial military Court established under the UPDF Act whose jurisdiction is limited to the enforcement of military discipline. - 2) The General Court Martial's jurisdiction is only limited to trying service offences specified under the UPDF Act, only in respect of persons subject to *military law.* - 3) Military law under the UPDF Act must be construed to exclude laws that are the preserve of Civil Courts of judicature established under Chapter Eight of the Constitution. - 4) Persons subject to military law under UPDF Act must exclude all those persons who have not voluntarily placed themselves under the jurisdiction of that Act excerpt as provided for under Section 119(1)(g). - 5) Section 119(1)(h) and 179(1)(a) of the UPDF Act are unconstitutional as *they are inconsistent with Article 28(1) of the Constitution.* - 6) Section 119(1) (g) of the UPDF Act 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 principle offender on the same charge sheet. - 7) The petitioner is not a person subject to military law and his trial under the UPDF Act is unconstitutional. The charges brought against him under the UPDF Act are unconstitutional null and void and of no effect. - 8) Section 197 of UPDF Act is NOT unconstitutional.

The above authority is still good law and I am bound to follow it. We are well aware that the above cited decision is currently pending appeal at Supreme Court. Until the Supreme Court decides otherwise, the authority is still good law. The facts that gave raise to this petition are almost on all fours with those in *Hon*. Michael Kabaziguruka vs Attorney General (Supra). Applying the above authority to this petition, I find that the petition does not raise any new issues for Constitutional Interpretation under Article 137 (3) of the Constitution. The petition is therefore allowed on that account alone. The same declarations and orders in the Kabaziguruka petition apply to this petition.

By majority decision Kakuru, Cheborion, Obura, Musota JJCC, with Mugenyi, JCC dissenting this petition succeeds.

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5 we now make the following orders that the petitioner be discharged forthwith from the General Court Martial and remanded at a civilian government prison'

We now make the following orders and declarations.

- (1) This petition has merit and is hereby allowed. - (2) The same declarations of law issued in Kabaziguruka petition (supra) apply to this petition mutatis mutandis. - (3) We order the petitioner to be discharged from the Court Martial immediately and be transferred to a civilian Prison on remand.

The Director of Public Prosecutions is directed to take over the matter and make a final decision.

15 We so order.

Dated at Kampala this ......... day of 2023.

Kenn Ka ru

# lusTlCE OF APPEAL/JUSTICE CONSTITUTTONAL COURT

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO.4 OF 2018**

(Coram: Kenneth Kakuru, Cheborion Barishaki, Hellen Obura, Stephen Musota & Monica Mugenyi, JJCC)

SSEMUJJU ABDULNUL::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

#### JUDGMENT OF CHEBORION BARISHAKI, JA/JCC

I have had the benefit of reading in draft the judgment of my learned brother Kenneth Kakuru, JCC and I agree with him that the issues raised in the Petition were substantially settled by this Court in Constitutional Petition No.45 of 2016 and there is no reason to depart from that decision with the result that the petition succeeds. I also agree with the declarations and orders

he has proposed. Dated at Kampala this $\ldots$ $\ldots$ day of $\ldots$ $... 2023.$

Cheborion Barishaki

JUSTICE OF APPEAL/ CONSTITUTIONAL COURT

### IN THE CONSTITUTIONAL COURT OF UGANDA

#### AT KAMPALA

(CORAM: KAKURU; CHEBORION, OBURA, IVUSOTA & MUGENYI, JJCC)

### CONSTITUTIONAL PETITION NO.4 OF 2018

SSEMUJJU ABDULNUL PETITIONER

### VERSUS

ATTORNEY GENERAL RESPONDENT

#### JUDGMENT OF HELLEN OBURA, JI'/JCC

I have had the benefit of reading in draft the judgment of my learned brother Hon. Justice Kenneth Kakuru, JIVJCC in the above Petition. I agree with his conclusion that the constitutionality of the issues raised in this petition were substantially raised and settled in this Court's recent decision in Hon. Michael Kabaziruka vs Aftorney General, Constitutional Petition No. 45 of 2016 (unreported). I also agree with the proposed orders.

| Dated at Kampala this . | day of | 2023 | |-------------------------|--------|------| | | | | | | | |

Hellen Obura

JUSTICE OF APPEAL/CONSTITUTIONAL COURT

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO. 4 OF 2018**

## SEMUJJU ABDULNUL ::::::::::::::::::::::::::::::::::

#### **VERSUS**

ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

### CORAM: HON. JUSTICE KENNETH KAKURU, JA/JCC HON. JUSTICE CHEBORION BARISHAKI, JA/JCC HON. JUSTICE HELLEN OBURA, JA/JCC HON. JUSTICE STEPHEN MUSOTA, JA/JCC HON. JUSTICE MONICA MUGENYI, JA/JCC

### JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA, JA/JCC

I have had the benefit of reading in draft the judgment of my learned brother Kenneth Kakuru, JA/JCC. I agree with his finding that the constitutionality of the issues raised in this petition were settled in the recent constitutional $\operatorname{court}$ decision of **Hon. Michael** Kabaziguruka Vs Attorney General Constitutional Petition No. 45 of 2016.

This authority is still good law and binds us. The facts in the instant petition are almost on all fours with those in Hon. Michael Kabaziguruka Vs Attorney General (supra).

Consequently, I agree that this petition does not raise any new issues for constitutional interpretation under Article 137(3) of the Constitution.

I also agree with the orders proposed.

day of Febrer Dated this 2022

We nut fun

Stephen Musota JUSTICE OF APPEAL/CONSTITUTIONAL COURT.

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## THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Kakuru, Barishaki, Obura, Musota and Mugenyi, JJCC)

### **CONSTITUTIONAL PETITION NO. 4 OF 2018**

SSEMUJU ABDULNUL ..................................

**VERSUS**

ATTORNEY GENERAL ....................................

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meet,

Constitutional Petition No. 4 of 2018

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### JUDGMENT OF MONICA K. MUGENYI. JCC

### A. lntroduction

- 1. I have had the benefit of reading in draft the judgment of my brother, Hon Justice Kenneth Kakuru in this matter. I am in general agreement with the observation therein that insofar as this Petition challenges sections 11 9(1)(h) and 197 of the Uganda Peoples Defence Forces (UPDF), 2005, the questions raised therein are substantially the same as the questions that were before this Court in the case of Michael Kabaziouruka v Attornev General. Constitutional Petition No.45 of 2016. - 2 That case is currently pending conclusive determination by the Supreme Court on appeal and it would thus be pre-emptive to consider it as a precedent. Accordingly, I shall refrain from delving into the merits of the Michael Kabaziquruka case in this judgment, and will only consider it within the context of its bearing on the lead judgment. - 3. The questions arising from the present Petition are additionally addressed within the context of this Court's earlier decision in Uqa nda Law Societv v. Attornev General, Constitutional Petition No. 18 of 2005, as well as its determination on appeal in Attornev General v. Uqanda Law Societv (2009) UGSC 2.1 - 4. ldo abide the summation of the parties' respective cases, as well as the representations herein, as elaborately laid down in the lead judgment. For the avoidance of doubt, nonetheless, I deem it necessary to reproduce an abridged version of the Petitioner's case for purposes of aiding the interrogation of the question as to whether this Petition raises no new matters for constitutional interpretation, the issues raised therein having since been settled by this court or the Supreme Court on appeal, as appears to be the mainstay of the Respondent's case

I also reported as ConstitutionalAppeal No. 1of 2006

### B. Factual Backoround

- 5. ln a nutshell, the Petitioner does not consider the courts martial created under Part Vlll of the UPDF Act to be courts of law as contemplated under Articles 28(1)' 29,126(1),210 and 257 of the Constitution; specifically contesting section 197 of the UPDF Act for purportedly flouting Articles 28(1),2S(2) and 126(1) of the constitution. He thus challenges his trial before the General court Martial under section 119(1)(h)(i) of the UPDF Act in respect of offences prescribed under sections 239 and 242 ol lhe Penal Code Act, Cap. 71, contending that the designation of those offences as service offences in section 2 of the UPDF Act violates Articles 28(1 ) and 44(c) of the Constitution. - 6. Pursuant thereto, the Petitioners seek the following declarations and orders (reproduced verbatim): - (a) That section 197 of the IJPDF Act,2006is rnconsrslenf with and in contravention of Article 28(1), 126(1), 29(2) of the Constitution to the extent that it purpofts to create a court of law without constitutional authoity. - (b) That section 2 ot the IJPDF Act is inconsistent with and in contravention of Ariicles 28(1) and 44(c) ot the Constitution of the Republic of Uganda to the extent that it defines a seruice offence to mean any offence under all the laws of Uganda, thereby confening juisdiction unto the Court Maftial over any, including non-disciplinary offences and over every person. - (c) That the General Courl Maftial and other Military Courts established under paft Vlll of the UPDF Act are not courts of law within the meaning of Arlictes 126(1), 29(1), 210 and 257 of the Constitution of the Republic of Uganda. - (d) That the act of charging/ anaigning the Petitioner before the General Couft Maftiat holden at Makindye rs rnconsislent with and in

('onstitutional [)ctition No. ;1 ol']0I ll contravention of Article 28(1) of the Constitution of the Republic of Uganda.

- (e) That the proceedings rn CR CASE NO. UPDF/GCM/024/2017: lJganda versus Nxon Agasirwe Karuhanga and Ssemuiiu Abdulnul alias Minana are null and void and be terminated forthwith. - (f) That reliance on the above impugned provisions of the UPDF Act by the Respondenl's agents in their ordinary course of duty has caused injustice to the Petitioner and subiected him to immense violation of the fundamental ight to a fair heaing before a fair coutl of competent jurisdiction established by law and the Respondent is vicaiously liable. - (g) A permanent injunction restraining the Respondent, his agents, servanls and others acting under his authority from prosecuting the Petitioner before the General Court Madial with capital and other non-d i scipl i n a ry offe n ce s. - (h,) Costs of the Petition

## C. Determination

- 7. I carefully considered the iudgment in Uqanda Law Society v. Attornev General (supra) and Attornev General v. Uqanda Law Societv (supra) against the matters in contention before the Court presently. The broad question as to the compliance of sections 119(1)(g) and (h) of the UPDF Actwith Articles 28(1)' 126(1)and 210 of the Constitution were settled by this Court in Uqanda Law SocieW v. Attorney General (supra). The issues as framed in that case were as follows: - 1. Whether acts of security agents at the premises of the High Coun on the 16th November,2OOS contravened Afticles 23(1) and (6),28 (1) and 128 (1) (2) (3) of the Constitution. - 2. Whether the concurrent proceedings in the High Couft Case No. 955/2005 and Couft Case No. |)PDF/G,\/O7Y2OO5 in the General Couft Maftial against the accused contravoned Afticles 28 (1) and 44 (c) of tho Constitution and inconsistent with Atticles 28 (9) and 139 (1) of the Constitution.

- 3. Whether Section 119 (1) (g) and (h) of the UPDF Act is inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution. - 4. Whether the joint trial of civilians and members of the UPDF in Military Court for offences under the UPDF Act is inconsistent with Articles 28 (1), 126 (1) and 210 of the Constitution. - 5. Whether the trial of the accused before the General Court Martial on a charge of terrorism contravenes Article 22 (1) 28 (1) and 126 (1) of the Constitution. - 6. Whether the trial of the Accused for the offence of terrorism, and unlawful possession of firearms before the General Court-Martial is inconsistent with Articles 28(1), 120(1), 3(b) and (c), 126 (1) and 210 of the Constitution.

## 8. The final orders of the Court on the foregoing issues are as follows:

On issue No.1

By a majority of four to one the acts of security agents at the premises of the High Court on the 16 November, 2005 contravened Articles 23(1) (6) and 128 of (1) (2) (3) of the Constitution. i

On issue No. 2

a) By a majority of three to two the effect of concurrent proceedings in both the High Court and General court Martial where both courts have jurisdiction is not inconsistent with Articles 28(9) and 139(1) of the Constitution as the General Court Martial is not subordinate to the High Court but equivalent to it.

b) By a majority of four to one the concurrent proceedings in the High Court. Case No. 955/2005 and Court. Case No. UPDF/Gen/075/2005 in the General Court Martial against the accused contravened Articles 28(1) and 44(c) of the Constitution as the General Court Martial had no jurisdiction to try the charges preferred against the accused in the said court.

On issue No. 3

By a majority of 3 to two section 119(1) (g) and (h) of the UPDF Act is not inconsistent with Articles $28(1)$ , $126(1)$ and $210$ of the Constitution.

On issue No. 4

By a majority of 3 to two the joint trial of civilians and members of the UPDF in Military Court for offences under the UPDF Act is not inconsistent with Articles 28(1), 126(1) and 210 of the Constitution.

On issue 5

By a majority of 4 to one, the trial of the 23 accused persons before the General Court Martial on charges of terrorism contravenes Articles 22(1) 28(1) and 126(1) of the Constitution.

On issue No. 6

By a majority of 4 to one the trial of the accused for the offence of terrorism, and unla\/vful possession of firearms before the General Court Martial is anconsistent with Articles 28(1), 120(1,3(b) and (c) and 210 of the Constitution.

- 9. The Constitutional Court's findings on /ssues 2(b), 5 and 6 were the subject of appeal in Aftornev General v. Uqanda Law Societv (2009) UGSC 2,2 but the Appeal was dismissed. That Court's findings on the constitutionality of section 119(1)(g) and (h) of the UPDF Act was not the subject of either the appeal or cross appeal. The consistency of those statutory provisions with Articles 28(1), 126(1) and 210 of the constitution was thus affirmed by the constitutional court in that case, and remains good law to date. lt is against that jurisprudential background that I ponder the findings of the majority in Michael Kabaziquruka v Attornev General (supra). - 10. First and foremost, they declared section 119(1Xh) of the UPDF Act unconstitutional on the premise that it was inconsistent with Article 28(1) of the Constitution. With tremendous respect, the Court's decision in that regard is a marked departure from the settled question in @ General (supra) that the said legal provision is indeed consistent with Article 28(1) of the Constitution. A contrary finding as transpired in the Kabaziquruka case offends the doctrine of sfare declsis as articulated in Attornev General v. Uganda Law Societv (supra) as follows (per Mulenga, JSC):

Under the doctrine of stare decisis, which is a cardinal rule in our jurisprudence, a court of law is bound to adhere to its Drevious dectstons save in exceptional cases where the previous decision is distinguishable or was over-ruied by a higher court on appeal 9I lncunam into acco in force precedent. ln absence of any such exceptional circumstances, a panel of an appellate court is bound by previous decisions of other panels of the same couft. (my emphasis)

11. Consequently, until the Supreme Court pronounces itself on the appeal in the Mi hael Kabazi uru case, with the greatest respect, the decision in that case

t-\*1

2also reported as Constitutional Appeal No. 1 of 2006

on section 11 9(1Xh) of the UPDF Act was made per incuriam and this Court is not bound by or obliged to follow it.

- 12. Meanwhile, section 1 19(1 Xg) of the UPDF Act was adjudged by the majority in the Kabaziquruka case to be constitutional only in as far as a person not otherwise subject to military law was tried 'as an accomplice together with' and'on the same charge sheet (as)' a person that is subject to military law. The Court thus sought to contextualize its findings on section 11 9(1)(g) of the UPDF Act to the specific handling of the indictments in respect of persons otherwise not subject to military law. - l3. Without delving into the merits of that case, it would appear that the Petitioner therein had been charged separately from the persons that were subject to military law that he was accused of aiding and abetting under section 1 19(1 )(g) of the UPDF Act. ln the case of Uqanda Law SocieW v. Attornev General (supra), on the other hand, all the accused persons (both civilian and military) were apparently jointly charged before the Court Martial. This is borne out in the introductory observations of the Supreme Court in Attornev General v. Uqanda Law Societv (supra) as follows:

In the charge sheet before the General Court Martial, all the accused persons are jointly charged with the otfence of terrorism on the allegation that between November and December 2004, they procured or were found in unlaMul possession of firearms and ammunitions, which are listed therein. ln the alternative they are jointly charged with the otfence of unlawful possession of flrearms on the same allegation.

l4. Consequently, the stance adopted by the majority in the [g@iroIg& case of upholding the constitutionality of section 119(1Xg) subject to a joint indictment in respect of the civilian and military accused persons would be in conformity with the position in Uqanda Law Societv v. Aftornev General (supra) as to the constitutionality of that statutory provision. lt would appear to endorse the constitutionality of the trial of civilians under section 1 19(1 )(g) of the UPDF Act where they are jointly charged with their military accomplices. lt is, to that extent (in my humble view), good law that is for the time-being binding on this Court

( rrnstitLrtionrtl l)ctition No.'l ol'l0lli

- 15. Turning to the matter before us presently, /ssues 3 and 4 raise questions as to whether the definition of the term 'service offence'to include any criminal offence committed by a person that is subject to military law, as well as the Petitioner's arraignment before the General Court Martial under section 119(1(h) of the UPDF Act, are consistent with Articles 28(1) and 44(c) of the Constitution. lnherent in both those issues is, first, the extension of service offences to all criminal offences and, secondly, the subjection of civilians to military law. - '16. I am constrained to point out, however, that the Petitioner was charged under section 119(1Xh) of the UPDF Act for presumably having been found in the possession of classified stores that are ordinarily the monopoly of the UPDF, and not under section 119(1)(g) under which the issue of service offences arises. lt is thus not readily apparent to me why the issue of service offences is raised at all in this Petition but, for completeness, I will address both issues. - lT. Article 28(1) provides for the right to a'fair, speedy and public hearing before an independent and impartial court or tribunal established by law.' Article 44(c), on the other hand, simply designates the right to a fair hearing in the category of rights from which no derogation is permissible. Both constitutional provisions therefore address one and the same thing: the right to a fair hearing. Meanwhile, section 119(1)(g) and (h) of the UPDF Act defines persons that are subject to military law to include a person not otherwise subject to the said law that 'aids or abets a person subject to military law in the commission of a service offence', and a person found in unlaMul possession of arms, ammunition, equipment or other classified stores 'ordinarily being the monopoly of the Defence Forces.' - 18. lt seems to me, therefore, that in so far as the Constitutional Court did in Uqanda Law SocieW v. Attornev General (supra) uphold the consistency of section 119(1)(g) and (h) of the UPDF Act with Article 28(1) of the Constitution, it clearly addressed the constitutionality of all the elements of that statutory provision, to wit, the subjection of civilians to military laws for the commission of service offences and where they are found in the possession classified stores that are ordinarily the monopoly of the UPDF. Furthermore, to the extent that the Petitioner does in paragraphs 1 and 3 of his affidavit in support of the Petition concede that he was

charged together with a person subject to military law - SSP Nixon Agasirwe Karuhanga, this Court's decision in Michael Kabaziquruka v Attornev General (supra) similarly resolves the constitutionality of his trial before the General Court Martial in the affirmative.

- 1g. I therefore find that no new question for constitutional interpretation is raised in /ssues 3 and 4 hereof and would, accordingly, decline to entertain them afresh. I would abide the constitutionality of section 1 19(1 )(g) and (h) of the UPDF Act as was decided by this Court in Uoanda Law Societv v. Attornev General (supra) and (supra). lt is so held. - 20. I now turn to the question as to whether the creation of military courts under section 197 of the UPDF Act is inconsistent with Articles 28(1), 126(1), 129(2) and (3) and 210 of the Constitution. That question, in my view, hinges on Article 126(1) of the Constitution which restricts the exercise of judicial power to the courts established under the constitution. The Petitioner's interpretation of that constitutional provision is such as to limit the courts that are created under the Constitution to those that are expressly spelt out in Article 129(2) - the Supreme court, court of Appeal and High court, and faults the Respondent for the creation of military courts beyond those confines. - ln Attornev General v. Joseph Tumus habe (2018) UGSG 32,3 addressing the question raised before the lower court as to whether courts martial were created by or under the authority of the constitution, recourse was made to Article 274(1) of the Constitution that saves laws that were in existence prior to the promulgation of the 1995 Constitution. lt was held (per Mulenga, .tsc1:

The existing law so saved "shalt be const/ued wlth such modlflcatlons' adaptations, quatifications and exceptlons as may be necessary to bring it ln conformity with this constitution." ln order to brino the 1992 UPDF Act in such conformitv. i rs necessarv to NStrue the orovisions estab lishino the courts martial sif ed m nt und utho Constitution. ... . That construction is necessary because of two fundamental provisions of the Constitution. First, the Constitution provides in Article 126(1) -

&#x27;Also reported as Constltutional Appeal No.3 of 2005

"Judicial powet is derived from the people and shall bo exetcised PyJiL9 courts established u r this Constitution ln the name ol the people and in conformity with the law and with tho values, norms and aspirations of tha people." (Emphasis is added)

This orinciple embraces all iudiqal oower exercised bv civilian and ilitarv courts While Parlia t established courts marti I as oroans of the UPOF, e authoritv to vest them wi iudicial oower must be co strued as derived from this constitutional Drovision, for onlv 'courts established under the Constitution' ha mandate to exercise iudicial Dower. Therefore, although courts martial are a specialized system to administer justice in accordance with military law, thev are Dart of the svstem of courts h a( or are deem hed under t ion to admi in the name of ln my view, they are not parallel but complimentary to the civilian courts, hence the convergence at the Court of Appeal. (my emphasis)

- 22. The Supreme Court thus endorsed the constitutionality of courts martial, adjudging them to have been established under the Constitution by virtue of the saving of laws that were in existence at its promulgation by Article 27 4(1) lhereot. ln so doing, the apex court did recognize courts martials as courts established under the Constitution within the confines of Article 126(1)of the Constitution. - 23. Drawing from the decisions in Uganda Law Societv v. Attornev General (supra) and Attorney General v. Joseph Tum usha be (supra) therefore, it becomes apparent that the current position of the law on the issues raised in the present Petition is as follows: - l. Section 11 9(1)(g) and (h) of the U PDF Act is consistent with Articles 28(1 )' 44(c), 126(1) and210 of the Constitution. - ll. The General Court Martial that is created under section 197 of the UPDF Act, as well as other military courts created under the same Act, are constitutionally recognized courts under Articles 126(1) and 27 4(1) ot the Constitution. - 24.1 would accordingly disallow the notion peddled by the Petitioner that the General court Martial and other military courts established under Part vlll of the UPDF Act are not courts of law within the meaning of Articles 29(1), 126(1)' 210 and 257 of

( ()nslitu(ionill l)ctition No. ,l ol l()lll

the Constitution. lt follows, therefore, that trials conducted thereunder cannot, on that basis alone, be considered to flout the concept of a fair trial as encapsulated in Article 28(1) of the Constitution. ln the result, I would resolve /ssue No. 2 in the negative.

## D. Conclusion

- 25. Having held as lhave on the three substantive issues as framed, lam most respectfully unable to abide the conclusions and final orders of the lead judgment herein. I would decline to grant the Declarations and Orders sought in the Petition. - 26. I take due cognizance of the general rule that costs should follow the event, unless a court for good reason decides otheMise. Given the vitality of the issues raised in this Petition to national statecraft, I consider it to be a befitting case for a departure from the general rule on costs. - 27. Consequently , the upshot of my consideration hereof is that I would dismiss the Petition with no order as to costs.

Dated and delivered at Kampala this day of .,..,,'202,

I I

Monica K. Mugenyi Justice of the ConstitutionaI Court