Supreme Court Ruling: It is Now Government Against Uganda’s Constitutional Order

Uganda Today Edition: Supreme Court Ruling: It is Now Government Against Uganda’s Constitutional Order

Uganda finds itself at a critical constitutional crossroads following the Supreme Court’s ruling barring civilians from being tried in military courts. The ruling, which upholds the principles of fair trial and judicial independence, has sparked intense debate within the ruling government, with clear indications of an unwillingness to adhere to the Supreme Court’s decision.

Government’s Defiance of the Supreme Court Order

Rather than executing the court’s ruling in accordance with constitutional principles, key government figures—including President Yoweri Museveni, First Son and Presidential Advisor Gen. Muhoozi Kainerugaba- the Chief of Defence Forces (CDF), the Attorney General, and the ruling NRM caucus—have made pronouncements suggesting an alternative course of action. Instead of complying with the decision, they have directed the Attorney General to recall the UPDF Bill from Parliament with the intent to amend it and reinstate the court-martial’s power to try civilians.

This approach blatantly violates Article 92 of the Ugandan Constitution, which explicitly prohibits Parliament from enacting a law that overturns a court ruling. The article states:

“Parliament shall not pass any law to alter the decision or judgment of any court as between the parties to the decision or judgment.”

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By seeking to amend the UPDF Act to effectively reverse the Supreme Court’s decision, the ruling government is not only challenging the principle of judicial independence but also setting a dangerous precedent for constitutional disregard.

Legal Precedents Against the Trial of Civilians in Military Courts

The Supreme Court’s ruling aligns with well-established international and national legal precedents that have ruled against the trial of civilians in military courts.

International Precedents

1. African Court on Human and Peoples’ Rights (ACHPR) – Lawyers for Human Rights v. Swaziland (2000)
   • The court ruled that trying civilians in military courts violates the right to a fair trial as guaranteed by the African Charter on Human and Peoples’ Rights.
2. Inter-American Court of Human Rights (IACHR) – Durand & Ugarte v. Peru (2000)
   • The court held that military tribunals should not have jurisdiction over civilians because they lack independence and impartiality.
3. United Nations Human Rights Committee (UNHRC) – General Comment No. 32 (2007)
   • The UNHRC stated unequivocally that civilians should not be subjected to military courts under any circumstances.

National Precedents

1. Uganda – Constitutional Court (2006) – Uganda Law Society v. Attorney General
   • The court ruled that the trial of civilians by military courts was unconstitutional because it violated the right to a fair trial under the Ugandan Constitution.
2. Nigeria – Court of Appeal (2006) – Ojukwu v. Attorney General of the Federation
   • The court ruled that civilians should not be tried by military tribunals, as it violates constitutional guarantees of due process.
3. Kenya – High Court (2016) – Republic v. Kahindi & Others
   • The court held that military courts have no jurisdiction over civilians, reinforcing that civilians must be tried in civilian courts.

The Concept of “Non-Transferability” in Null and Void Decisions

The Supreme Court’s ruling has effectively nullified any previous legal provisions that allowed for the trial of civilians in military courts. The principle of “Non-Transferability” is crucial in understanding why the government cannot simply reintroduce the court-martial’s power through legislative amendments.

Once a decision or law is declared null and void, it has no legal effect and is considered to have never existed. This means it cannot be:

1. Transferred: Moved or passed on to another court or jurisdiction.
2. Appealed: Challenged or reviewed by a higher court, as its invalidity has already been established.

Any attempt by the government to revive the court-martial’s jurisdiction over civilians would be unconstitutional and legally unenforceable. Such actions undermine the rule of law and risk eroding public confidence in Uganda’s judicial system.

The Broader Implications of the Constitutional Crisis

The government’s reaction to the Supreme Court ruling exposes a troubling trend of executive overreach and constitutional manipulation. If the administration succeeds in amending the law to override a Supreme Court ruling, it sets a precedent for future disregard of judicial decisions. This not only undermines the separation of powers but also threatens the democratic fabric of the country.

Furthermore, international human rights organizations and legal scholars have long criticized the trial of civilians in military courts, citing concerns over fairness, transparency, and the lack of independence in military tribunals. Uganda risks further scrutiny and potential sanctions if it continues to flout universally accepted judicial standards.

Conclusion: A Test for Constitutional Integrity

Uganda is at a defining moment in its constitutional history. The Supreme Court’s ruling provides an opportunity for the country to reinforce the independence of its judiciary and respect for the rule of law. However, the government’s response suggests a deliberate move to undermine this progress.

It is now up to the legal fraternity, civil society, and the Ugandan populace to demand accountability and ensure that constitutional principles are upheld. Any attempts to reverse the court’s decision must be resisted, as they pose a direct threat to judicial independence, human rights, and the stability of Uganda’s constitutional order.

The question remains: Will Uganda uphold the rule of law, or will it slide further into a governance model where judicial rulings hold no weight?

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