The UPDF Amendment Bill: An Extension of Military Rule in Uganda or an Arm of Justice”

MWIINE Andrew Kaggwa

How did we get here?

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In 2005, there was a siege of the High Court, and that marked the beginning of debates to completely rid the country of the Courts Martial. From this, the Supreme Court then, under the Hon Justice Bart Muganda Katureebe, gave an advisory opinion, and different options were proposed, one of which was bringing the operations of Military justice within the context of judicial functioning in Uganda. One of the proposals was the possibility of creating a division in the High Court, in order to detach the military from the administration of justice, which is, without a doubt, a specialized function not only on technical grounds but also under the doctrine of separation of powers.

About the bill

In November 2024, the UPDF tabled in parliament a UPDF Amendment Bill 2024 that sought to amend large sections of the UPDF Act. The UPDF Act, on the other hand, was a product of a defence review process that in 2005 gave rise to the Defence White Paper. This Defence White Paper gave us the new structures in the army in Uganda, hence acting as a process to professionalize the army and the Defence White Paper gave us the UPDF Act with the amendments therein tabled in order to refine the UPDF Act and try to create new structures in the Uganda People’s Defence Forces.

In December 2024, the Supreme Court delivered a landmark judgement that nullified several sections in the UPDF Act, including the ones in reference to the military justice system. No sooner had the Supreme Court delivered its judgement, than the Executive withdrew the UPDF Amendment bill 2024 that they had tabled before parliament with the view of incorporating the decision of the Supreme Court, now which returns with amendments in as far as military justice is concerned and the trial of civilians in military court. This is the bill that on 20^th May 2025 was passed by parliament as The UPDF (Amendment) Bill 2025

What is in the Bill?

1. The bill seeks to cure an illegality that has been perpetuated in the army for a very long time, “The Special Forces Command,” which did not exist in the structures of the army, putting it at the same level as other command structures.
2. The bill provides for medical services for the serving military officers, thus providing a right to health for the military combatants and non-combatants in the army, while in service or out of service.
3. The bill also provides for the improved pension structure within the armed forces and removes it from the Ministry of Public Service, thus decentralizing the pension scheme of the armed forces.
4. The bill introduces the Inspector General of Defence, who doubles as the Deputy CDF, which is an ombudsman role to rid the institution of corruption and ensure compliance with the process. It is an Anti-Corruption role.
5.  The bill also introduces the Unit, Division, and General Courts Martial among other things.

Does the bill comply with the decision of the Supreme Court?

It should be noted that it was not one decision. All the justices gave their own decision though they arrived at one instance. There was no lead judgement but rather seniority took the major judgement. The general intention of the bill was to implement the decision of the Supreme Court, being the highest appellate court of the land, whose decision is binding on all subordinate courts in Uganda.

We need to understand, what was the decision of the Supreme Court?

1. The Supreme Court gutted the Military Courts System in its entirety. This was because it was incapable of meeting the threshold of fair trials in our constitution.

REASONS:

• Members of the General Courts Martial did not enjoy security of tenure. Members were being appointed on a yearly basis
• The members of the General Courts Martial were appointed by the High Command, which even had control of the court proceedings.
• The members of the General Courts Martial had people who were not trained in the law, yet were sitting to decide questions of law.

With such a system, the Supreme Court found it wanting insofar as delivering justice is concerned, both to the soldiers and to any other person.

• The Supreme Court also found that the Unit Disciplinary Committee, which seemed to be the court of First Instance, was illegal and could not be a court.

Therefore, with efforts to implement the decision, the bill now has in it a new structure of the Military Courts, and it begins with the creation of a Unit Disciplinary Court Martial with judicial powers. The second-tier system it creates is a Division Courts Martial, where all 5 Divisions of the UPDF now have courts martials stationed in their divisions. The final court is then the General Courts martial as the apex court for the Military Justice System, and all appeals from this court now no longer go to the High Court but the Court of Appeal. To this extent, the bill complies with the decision of the Supreme Court.

What are the controversial elements, then?

The qualifications of the members of the Courts Martial. The bill creates qualifications for the chairpersons of the three-tier court system.

• The Unit Disciplinary Courts Martial requires that for a person to chair that court, they should be a person qualified to be an advocate of the High Court with a Degree in Law and a Diploma in Legal Practice. Note that such a person does not need to have experience in practicing law, essentially meaning anyone walking out of LDC can become a Chairperson of the Unit Courts Martial.
• The Division Courts Martial, which is the second tier, requires that a person serving in the role of chairperson for the court must be a person also qualified to be an advocate of the High Court.
• For the General Courts martial, the person in that role should be one qualified to be a judge of the High Court.
• The bill further gives them terms of service; The Unit Disciplinary Courts Martial has no term limit, while the Division and General Courts Martial chairperson is given a 3-year renewable term in the position.

The most difficult part is the question of Jurisdiction. Which cases will be tried by the Courts Martial? They can try all military offences, but under Clause 117A, they are also empowered to try cases of non-military members; in other words, they can now try civilians in certain circumstances. It should be noted that the Supreme Court said that they should not try cases of civilians, but only in exceptional circumstances can they try civilians in the Courts Martial. The bill now imports what they call exceptional circumstances.

Exceptional Circumstances were defined in the United Nations Human Rights Committee, General Comment No. 32/2007, Para 7 to mean that the state must demonstrate with specific regard of the individuals at issue that the regular courts are unable to undertake the trials or that other alternative forms of special or high security civilian courts are inadequate and recourse to the military courts is unavoidable.

From the above, civilians should only be subject to the Military system if it is clear that the ordinary courts are inadequate. Thus, this makes Clause 117A insufficient in its provision of exceptional circumstances because such circumstances are by no means exceptional according to the bill.

What has been done in the bill is simply to import the provisions that were contained in the Regulations under the previous UPDF Act, now into the body of the bill. Now, a pistol which can be licensed under the Firearms Act can be tried under the General Courts Martial if one is found in possession. Now currently what has not been an ordinary preserve of the armed forces, like a pistol, explosives, and some attire like Kauda suits has been made an ordinary preserve of the armed forces.

What are the omissions in the Bill? 

1. Though the bill and the parent law have a criminal justice system in them, the Human Rights (Enforcement) Act Cap 12 has not been cross-referenced and applied to the provisions. Thus, an accused person charged under the military justice system cannot benefit from the provisions of the Human Rights (Enforcement) Act. What happens when trying an accused and they complain about a violation of their rights under Article 50 of the Constitution? Will such a complaint be determined before the court case goes on, or not? Shouldn’t the bill then incorporate the applicability of the Human Rights (Enforcement) Act, Cap 12?
2. The bill does not cross-reference not incorporate provisions of the Explosives Act Cap 319, the Firearms Act Cap 320, and the Toxic Chemicals and Prohibition Act Cap 329. This brings up the debate of what constitutes classified stores that are an ordinary monopoly of the UPDF, and what is not? The bill not cross-referencing these Acts creates ambiguity and uncertainty, defeating the principle of legality.
3. The High Court has supervisory jurisdiction in respect of all matters of law and procedure over subordinate courts. Thus, the High Court should have supervisory jurisdiction over the Courts Martial. This should be by way of review and revision of the proceedings in the Unit and Division Courts Martial.
4. The Supreme Court should retain its authority to entertain third appeals, subject to the laws of third appeals in respect to trials presided over by the Unit and Division Courts Martial. Under Clause 195, the bill only provides for appeal from the Unit to the Division and afterwards to the General Courts Martial, and then one right of appeal to the Court of Appeal. This is insufficient.
5. The tenure of the Unit Courts Martial, Division Courts Martial, and General Courts Martial should be revised to a longer non-renewable term in order to guarantee security of tenure and foster fair trials and embed impartiality in the Courts Martial. In the case of Dr. Busingye Kabumba & Andrew Karamagi v. Attorney General Constitutional Petition No. 15/2022 considered the practice of appointing acting judges was outlawed as offending security of tenure. Renewal of a term does not guarantee security of tenure. Security of tenure goes to the heart of fair trial and impartial court systems.
6. The appointment of members of the Courts Martial remaining in the hands of the High Command defeats the decisions in Attorney General v. Michael Kabaziguruka, Supreme Court Constitutional Appeal No.02/2021. The provision for consultation with the Judicial Service Commission is vague and ambiguous. Shouldn’t it be a legal requirement that the Judicial Service Commission examines and vets the intended appointees in regard to their competencies in matters of the law and suitability for the adjudication role?
7. The qualifications of a Chairperson of the Division Courts Martial should be equivalent to those of a High Court judge, since this court can impose any sentence except the death sentence. Being qualified only as an advocate of the High Court defeats the substance of this role.
8. The jurisdiction of the General Courts Martial should be restricted to offences under the UPDF Act as the Courts Martial should not be set up as a rival court to the ordinary courts of Judicature under the constitution. The Courts Martial should be specialized.
9. As subordinate courts, the courts martial should forward a record of all proceedings to the Court of Appeal and eventually to the Supreme Court where a sentence of death is handed down. Constitutionally, a sentence of death must be confirmed by the Supreme Court. Does the bill in this provision comply with the Constitution?

Conclusion.

Dr Kabumba Busingye quotes in his book entitled “Militarism and the Dilemma of Post Colonial Statehood” that when you hear that Museveni is a benevolent dictator, it means that he rules by force and allows us to speak. Militarism has blocked fundamental freedoms like speech, organizing, and mobilizing, thereby blocking any meaningful change in the structures of Uganda and has thence kept Uganda pegged to an exploitative way, as evidenced in the military getting involved in all affairs.

This is now a reality for the sacrosanct judicial system. Therefore, the UPDF Amendment Act is rather an extension of Military justice rather than justice in its ordinary sense. 

The Writer, MWIINE Andrew Kaggwa is the Attorney General of the 20^th Nkumba University Law Society, President of the Research Club of Nkumba University, and Papa Lawyers Fellowship.