Old Habits, New Manifestations: Article 92 and the NRM’s Obsession with Retrospective Legislation

By Harry Mwesigwa*

1. Introduction

On the 21st of February 2025, the National Resistance Movement (NRM) ruling party caucus met at State House and resolved to amend the Uganda Peoples Defence Forces (UPDF) Act to provide for the trial of civilians in the Courts Martial. The resolution read that the law be amended to provide that ‘[a] civilian who acquires specified firearms illegally shall be tried by the Military Courts Martial in the first instance, with the right of appeal through the civilian courts’

This is in the aftermath of the judgement of the supreme court in Attorney General v Micheal Kabaziguruka (2025) that declared the trial of civilians in military courts unconstitutional. However, this court decision visibly displeased the government, which has consequently slackened its feet to enforce it. Various dilatory tactics and plans have been made, and to date, almost a month later all political prisoners including veteran opposition leader Dr. Kiiza Besigye and maverick lawyer Eron Kiiza remain behind bars in unconstitutional, unlawful and arbitrary detention.

While the executive continues to hold them hostage, a new plan has been mooted by the NRM majority in parliament to enact a law for the retrial of civilians in the court martial. This writer maintains that this plan and any law that may come of it are unconstitutional for the reasons given in this essay.

2. The Decision of the Supreme Court

The now defunct UPDF Act of 2005 in Section 117(h) provided that every person found in unlawful possession of ‘arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces or other classified stores as prescribed should be tried in the court martial.’ This provision was declared unconstitutional and is now null and void. In its judgement, the Supreme Court ordered that the trial of civilians in military courts is unconstitutional and must immediately cease. While the Court fell short of completely banning the trial of civilians in military courts in all cases, it made an interesting finding and laid down safeguards that must be complied with if the trial of any civilian is to proceed.

Supreme Court of Uganda ©2025 Nicholas Bamulanzeki

The Chief Justice Alfonse Owiny Dollo while writing the majority judgement held that the trial of civilians by military or special courts should be done only in exceptional circumstances and the duty is on the state to demonstrate serious and objective reasons that would warrant such a procedure. Before any civilian is tried in a military court, the state must demonstrably justify that:

(a) The ordinary courts are not competent to hear the case.

(b) Other alternative forms of special or high-security civilian courts are inadequate for the task; hence, recourse to military courts is unavoidable.

(c) Referral to military courts guarantees full respect for the rights of the accused.

This is a very high threshold to justify as civilian courts are often well equipped to hear and try all cases in all circumstances. But that is not all of it, there is another limitation upon this limitation. The state must also show that the trial is connected to the mandate of disciplining the UPDF in Article 210 of the Constitution. For instance, this last requirement may be satisfied if a law is made to provide that civilians who accompany the military on missions abroad (such as mercenaries) and cannot be tried by civilian courts while overseas may be tried in military courts.

As reflected from the example above, the trial of civilians in military courts must be in exceptional circumstances. These exceptional circumstances must be established on a case-by-case basis, and cannot be imposed in the abstract by referring to certain military offences. For instance, the government cannot say that if you get a firearm illegally, then you must be tried in the court martial.

In evaluating these exceptional circumstances, the Supreme Court had a chance to rule on whether the possession of special firearms, ammunition or other military stores qualified as an exceptional circumstance to justify the trial of civilians in military courts. After canvassing a litany of authorities, the court found that being found in the possession of firearms did not amount to an exceptional circumstance.

The possession of firearms or military stores could not form a sufficient basis to drag civilians before the courts martial. In his own words, the Chief Justice wrote that ‘extending the jurisdiction of the military courts to cover civilians in a blanket manner, whether they are alleged to be accomplices or alleged to have been found in possession of military stores, is unacceptable [and unconstitutional]’. The court also found no justifiable link or connection between the trial of civilians for possession of firearms and the maintenance of discipline in the army, or the protection of Uganda’s territorial integrity. This formed part of the ratio of the court’s decision.

Now, the NRM Members of Parliament want to re-enact the same provision that was declared unconstitutional by the Supreme Court. The resolution read by Hon Hamson Obua, the Government Whip in parliament stated that the NRM party caucus had resolved to amend the UPDF Act and provide for the trial of civilians who acquired specified firearms illegally in military courts. If this resolution is enacted into law, it would amount to overturning a court decision since the Supreme Court already pronounced itself on that issue. Parliament has no power to overturn a court decision because the constitution limits its law-making powers.

3. The History of Article 92 of the Constitution

The 1995 Constitution is the supreme law of Uganda with binding force on all persons and authorities. It is constructed on the doctrine of separation of powers and provides that parliament cannot make a law that alters the decision of any court. Article 92 of the Constitution reads ‘Parliament shall not pass any law to alter the decision or judgment of any court as between the parties to the decision or judgment.’

The history of this provision is rooted in the turbulent and dark constitutional history of our country where court decisions were not respected and were treated as mere words not worth the paper they were written on. It is further rooted in the refusal of the previous governments of Uganda to honour the right to property, pay compensation or honour contracts when judgement orders were made against them.

In the case of Shah v Attorney General (1969), Shah entered into a contract with the Obote government, the government violated that contract, and he obtained a court order against them to pay. Instead of paying, the government went to parliament and enacted the Local Administrations (Amendment) (No. 2) Act, No. 31 of 1969. Section 2 of that law was a retrospective provision that provided that no contract would be paid if it had not been validated by the Attorney General. Shah’s contract had not been validated. As such the government sought to deprive Shah of the fruits of his litigation

Shah refused to relent and filed another case in 1970 to challenge this law as unconstitutional. The Court agreed with him and struck down the legislation as unconstitutional since it sought to nullify a judgement of court and to deprive the applicant of his proprietary rights. But that would not be the end of it. He had to file another case in order to enforce his judgement decree.

When Amin overthrew the Obote government and came to power a year later in 1971, he issued a proclamation known as Legal Notice No. 1 of 1971. This proclamation abolished the supremacy of the 1967 constitution and made it subject to the decrees of Amin. In one court case of Uganda v Alfred James Kisubi (1975), a judge reasoned that if there was an inconsistency between the constitution and the decrees of Amin, the decrees of Amin would prevail, and that was the end of the matter. There would therefore be no enforcement of court orders that displeased Amin.

If not for his limited interaction with academic material, Amin would have stumbled upon and eloquently quoted the words of a Bolivian dictator who said that ‘I want all the people to know that the 1861 Constitution, which was a good one, I stuck in this pocket, and that of 1868, which is even better, I stuck in this other pocket, and that no one but me rules Bolivia.’

But let us turn to the question of court orders. It is said that history does not repeat itself, but it often rhymes. Well in Uganda’s case, history actually does repeat itself, often to the finest detail. After President Yoweri Museveni took over power by force of arms in January of 1986, his new government issued a proclamation termed Legal Notice No 1 of 1986. That proclamation, like its identical twin of 1971 suspended parts of the constitution and made the rest subordinate to itself.

While the proclamation had at first provided in paragraph 11 that the new government would inherit the debts and liabilities of the previous governments, an amendment was soon made to change this. The new amendment sought to insulate the government from all liabilities that had been incurred by the previous government.

Prof Sempebwa had in 1982 successfully sued the government for unlawful search of his house, illegal detention and taking away of his property. He received the judgment in July of 1986 awarding him monetary compensation and sought to enforce it. But as he was preparing to enforce his court award, a new law was made to stop him in his tracks. In August 1986, President Museveni issued Legal Notice No 6 of 1986 which was intended to amend Legal Notice No 1 of 1986. It provided that any case pending in any court against his government before August 12, 1986 had to automatically lapse and that any judgement, or decree issued which was not satisfied before August 12, 1986 was nullified.

Prof. Sempebwa rushed to the court in order to protect his rights. In the case of Edward Fredrick Sempebwa v Attorney General (1986), Judge Kityo struck down Legal Notice No. 6 of 1986 because it sought to deprive the applicant of his rights that he had acquired by virtue of a court judgement. While commenting on this case in his seminal work ‘Ghosts and the Law’, Prof Oloka Onyango had this to say ‘[t]he fact that the government passed a new law which effectively overturned the decision of the court reflected less on the courage and competence of the court in doing what was right, than it was [an] illustration of the fact that even the new NRM government which had seized power on a platform of ‘fundamental change’ was not quite ready to subject itself to complete judicial oversight and control.’

4. Old Habits, New Manifestations

The history above explains the reason why the framers of the 1995 Constitution codified Article 92 into its text, that parliament cannot pass a law that overturns a court decision. This provision did not get a lot of judicial interpretation until the case of Human Rights Network Uganda v Attorney General (2020).

The background of that case was that in 2008, the Constitutional Court declared as unconstitutional Section 32 of the Police Act that gave the Inspector General of Police power to prohibit any public assembly. Turning a blind eye to the court decision, Parliament went ahead and reenacted the same provision into the Public Order Management Act (POMA) of 2013. This law would subsequently be used to arbitrarily quash and disperse public protests and rallies, often with arrests, injuries and even deaths to Ugandans. This law was challenged in court in the Human Rights Network Case.

The Constitutional Court in that case noted that although the history of Article 92 of the Constitution is to ‘prevent the legislature from violating property rights of successful litigants accruing from specific judicial decisions’, it would not interpret it narrowly. The Court held that this article extends even to decisions made in the public interest (such as the Kabaziguruka case) that do not confer any property rights on any litigant.

While declaring the POMA unconstitutional, Justice Cheborion Barishaki who wrote the majority opinion posited that overturning a court decision is an affront to the doctrine of separation of powers and the functioning of checks and balances that are envisaged by our constitution. Any attempt to whittle down this constitutional principle would take us back to the dark days of constitutional and political instability.

To determine whether Article 92 has been violated, the court will look at the new law and the previous judgment and compare whether the provisions of the new law seek to overturn, or water down the import of any part of the court judgement. The test will be whether the provisions of the new law are similar, reenact, or contain the same subject matter, purpose and effect as those of the old law. The same words do not have to be used.

Therefore, the resolution by the NRM party caucus may not use the same words as in the void UPDF Act, but if any law comes of it that provides for the trial of civilians in military courts just because they acquire firearms of any kind, such a law is a non-starter and is unconstitutional. Any law that is inconsistent with a provision of the constitution is null and void meaning it has no legal effect.

Dr Kiiza Besigye (unseen) is brought to Makindye Military Court Martial in November 2024. © 2024 Badru Katumba / AFP

Another thought would be that well Parliament would just have to amend the Constitution and repeal Article 92 so that it can do whatever it likes. Well, this is also a non-starter. Article 92 of the Constitution also safeguards an important principle which is the independence of the judiciary. According to the decision of Male Mabirizi v Attorney General, the independence of the judiciary is a cardinal element that forms part of the basic structure of our constitution. Basic structure means those parts of the constitution which if removed, the constitution would lose its identity and be changed beyond recognition. Parliament has no power to amend the basic structure as that would amount to creating a new constitution. Thus, Parliament cannot amend the constitution to remove Article 92 as that would tantamount to changing the basic structure of the constitution. On that ground, this course of action would also be unconstitutional.

5. Conclusion

The executive and the legislature have a duty to obey and comply with court decisions even if they disagree with them. The solution is not in amending laws to defeat the holding of a court. The trial of civilians in military courts is unconstitutional and will remain to be so. This is a fight that has been waged for over twenty years and the people of Uganda have finally won. WE ARE NOT GOING BACK.

*The writer is a lawyer and the Executive Director of Lex Amica.