Ugandan Supreme Court’s Courageous Ruling on Military Justice- its relevance to Indian Subcontinental Law

By Eugene R Fidell and Navdeep Singh

The Supreme Court of Uganda has handed out a landmark ruling invalidating the trial of civilians by military courts. In this opinion piece, Eugene R Fidell who teaches at the Yale Law School, and Navdeep Singh who practices at the Punjab & Haryana High Court write on the judgment’s implication in the Indian Subcontinent. The Yale Draft, with which both authors were involved, has been referenced by the Supreme Court of Uganda.

Occasionally, a court of law hands down a decision that makes waves. So was the case last week when the Supreme Court of Uganda issued its ruling in Attorney General v. Kabaziguruka, [2025] UGSC 1 (Jan. 31, 2025). The sheer length (306 pages) and number of separate opinions (five) aside, the decision is important on several levels for democratic nations, and more particularly for the Indian subcontinent in light of what is currently unfolding in India’s neighbourhood in Pakistan where civilians, including political opponents of the current regime, are being tried by military courts rather than regular criminal courts.

To set the stage: Mr Kabaziguruka was an opposition member of the Ugandan Parliament. Even though he was and is a civilian, he was brought before a Uganda Peoples’ Defence Forces (UPDF) general court-martial in 2016 on charges, in essence, of plotting to overthrow the government. On his petition, the Constitutional Court of Uganda stayed the court-martial and, in 2021, ruled that the military proceedings were unconstitutional. The government appealed to the Supreme Court of Uganda against the decision of the Constitutional Court, and he cross-appealed. The appeal was heard in 2022, but there followed a lengthy delay because of a fire at the Supreme Court, the retirement and death of several justices, and the government’s failure to fill the resulting vacancies in a timely fashion.

The case presented several issues. Among others: Was the court-martial independent and impartial given the fact that Ugandan law did not require the members of the court-martial, all of whom were military officers, to be legally trained, and afforded them terms of office of only a year? The fact that only a majority vote was required to convict, and the judge advocate (a legally qualified officer who advises the court martial) had no power to make binding rulings on issues of law? Was Mr Kabaziguruka subject to the UPDF Act at all? Were the UPDF Act’s provisions for jurisdiction over civilians over certain offences constitutional?

In a nutshell, the Supreme Court ultimately ruled that the court-martial was not independent and impartial, that it could not try civilians, and that the UPDF Act’s provision subjecting military personnel to trial by court-martial for offences under the civilian criminal code were unconstitutional. The court also made a variety of suggestions for measures the government could take to remedy the defects it had identified.

In reaching its conclusions, the Supreme Court’s lead opinion by Chief Justice Alphonse C. Owiny-Dollo naturally focused on the domestic constitutional law of Uganda. However, the court also ranged far and wide in canvassing the pertinent sources, including decisions of other Commonwealth and common law countries, sister African countries, various human rights bodies, and legal literature.

In doing so, it showed remarkable independence—at times carefully reviewing the opinions of other courts but declining to follow them where they seemed unpersuasive or inapplicable. To be sure, real dangers lurk when relying on decisions from other jurisdictions. For one, there may be nuances that do not readily lend themselves to application under other constitutional arrangements, and then there is always the chance that one will miss some case that overrules or significantly modifies a precedent that is cited. One of the Kabaziguruka opinions illustrates this, relying on an American decision that has been expressly overruled. Caveat lector.

The Ugandan Supreme Court also drew on the country’s political history, which has included extended periods of military and undemocratic rule. It is not enough for national judges to draw insight from practices elsewhere; for their decisions to achieve broad domestic acceptance, they must be adapted to the values and lived political and civil-military history of their own country.

Besides the parts of the Kabaziguruka decision that turn specifically on provisions of the Constitution of Uganda, the court’s bottom lines are significant. While the received learning in human rights jurisprudence has been that there may be very limited circumstances in which a civilian may be tried by military court, the Uganda Supreme Court seems to have ruled this out entirely.

Moreover, even as to serving personnel, the court invalidated the statutory provision for trial by court-martial where the offence is under the general criminal law and triable in the regular civilian courts. Such provisions of regular offences under general criminal law triable by court-martial are typical in common law countries, including the United States and India. However, trial of civilians by military courts is impermissible both in the United States (other than for persons serving with or accompanying an armed force in the field in time of declared war or a “contingency operation”) and in India.

Taking recourse to military courts to try civilians indeed is an affront to the concept of Separation of Powers which is cherished in democracies. The result is that both as to personal and subject-matter jurisdiction, Ugandan courts-martial have been significantly shrunk after the judgment of the Supreme Court. Indeed, all that may be left to them is the prosecution of disciplinary offences by active-duty personnel.

The decision of course has implications far beyond Mr Kabaziguruka’s case. Numerous civilians have been prosecuted—over their objection—by UPDF courts-martial over the years, and one such high-profile case is currently in trial. It involves an opposition leader (a military retiree) who was abducted from Kenya and brought before the court-martial in Kampala. Under law, Dr Kizza Besigye and his co-accused should be released immediately, as the Supreme Court’s decision is final and plainly applies to them too. Unfortunately, that may not be the way matters turn out, as the UPDF has indicated that it intends to defy the court’s decision and the country’s President has insisted that the decision was wrong. A stand-off may ensue, with the very notion of the Rule of Law under threat.

The decision is also significant because it comes at the very moment when a comparable issue is before the Supreme Court of Pakistan, where the judges have taken their time to decide an intra-court appeal from an earlier decision that had nullified military trials of civilians, holding hearing after hearing without reaching a decision. The last time Pakistan used military courts to try civilians, the country had to amend its constitution to do so. But that amendment has long since expired. There has been a huge outrage in Pakistan’s civil society on military trials of civilians, including political personalities. Perhaps the Uganda Supreme Court’s courageous decision will have a salutary effect in Pakistan.

Finally, the Kabaziguruka decision shows the impact of human rights jurisprudence on national courts. The court repeatedly referred, for example, to the 2006 UN Draft Principles Governing the Administration of Justice Through Military Tribunals, also known as the Decaux Principles, after Prof. Emmanuel Decaux, who spearheaded their development. It also cited with obvious approval various submissions by the UN’s Special Rapporteurs on the Independence of Judge and Lawyers.

The court even referenced the Yale Draft--a 2018 Decaux Principles update in which both authors of this essay were involved. All of these efforts bore fruit in the decision. And indeed, such efforts must continue, as was the case when the Stellenbosch Draft of the Commonwealth Military Justice Principles was set into motion in November 2023 emphasizing again on the independence, impartiality and competence of military justice systems in the Commonwealth nations with a particular focus on Separation of Powers.

The decision of the Supreme Court of Uganda is testament to the complementary roles of national and international actors in advancing human rights. It comes at a time when the Rule of Law is threatened in a host of countries, and also a time when national judiciaries have been called upon to make the right to a fair trial before an independent and impartial court a reality. Sometimes, as in Uganda, or last year’s O’Brien decision by the Constitutional Court of South Africa, the court itself may be an engine of reform.

At other times, as in last year’s Edwards case in the Supreme Court of Canada, the court may see its role as more limited and view Parliament as the proper venue for reform. Either way, though progress can be and is being made, one can only admire the contribution of the Ugandan Supreme Court to the cause of justice and more particularly to military justice reform.

Eugene R Fidell teaches Military Justice at Yale Law School and edits the Global Military Justice Reform blog. He is President Emeritus of the National Institute of Military Justice, Washington DC.

Navdeep Singh is an advocate practicing before the High Court of Punjab and Haryana and also is the Honorary co-chief editor of the Forces Law Review. He is International Fellow of National Institute of Military Justice, Washington DC.

Both authors participated in the Yale Draft and the Stellenbosch Draft and are members of Commonwealth Secretariat’s military justice advisory committee.