UPDF Amendment Bill reintroduces trial of civilians in military courts

The minister of Defence and Veterans’ Affairs, Jacob Oboth Oboth has introduced to parliament the UPDF Amendment Bill aimed at, among other things, reintroducing trial of civilians in military courts.

According to Oboth, the 144-page bill was, in part, influenced by the Supreme court decision of January 31, 2025, which annulled several sections of the UPDF Act that permitted the prosecution of civilians in military courts.

“The 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. The bill provides for the membership and qualifications of the chairpersons of the courts martial and their independence, and the appeal process. It further stipulates the exceptional circumstances under which civilians may be tried by military courts,” Oboth told parliament.

The proposed bill has since been referred by speaker Anita Annet Among to both the defence and internal affairs committee and the legal and parliamentary affairs committee.

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 amends section 117 of the UPDF Act by listing individuals, other than members of the defence forces, who can be subjected to military law. These include persons who voluntarily accompany a unit of the defence forces in active service, or 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.

While the stated intent of the bill is to implement the Supreme court’s ruling, a closer comparison between the bill and the judgment reveals significant contradictions.

The crux of the Kabaziguruka case was whether civilians could be tried in military courts. Kabaziguruka argued that military courts lack the constitutional competence to try civilians.

The Supreme court nearly unanimously agreed, citing several concerns: the composition of military courts, the qualifications of their members, the absence of secure tenure, and the lack of structural independence.

The court concluded that these deficiencies render military courts incapable of conducting fair and impartial trials, not just for civilians but even for military personnel. In his lead judgment, Owiny-Dollo observed: “With regard to the military, as can be seen from their structure, rules, and procedures, conducting trials of civilians generally does not fit within their mandate.”

He 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. This would amount to an unfettered limitation on the enjoyment of rights and freedoms enshrined in Article 43 of the Constitution,” Owiny-Dollo stated.

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.”

In instances where a civilian is found to have breached military regulations in collaboration with a person triable by a court martial, Owiny-Dollo emphasized 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.”

How bill aligns with court recommendations

Despite the contradictions, parts of the UPDF Amendment Bill respond to the Supreme court’s recommendations.

Owiny-Dollo clarified: “Courts martial are not unconstitutional merely by their military nature.” “There is a need for 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 report. The executive must generate policy, and parliament must enact legislation that addresses and cures the injustice occasioned by the unconstitutional provisions of the UPDF Act.”

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.

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.”

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