## Introduction
The practice of trying civilians before military courts in Uganda is a contentious issue that sits at the intersection of constitutional law, human rights, and political power. While Ugandan law provides a statutory basis for this practice, it raises significant questions about the right to a fair trial, the separation of powers, and the rule of law. This essay seeks to explain this legal issue and its context. It will apply two jurisprudential theories, legal positivism and legal realism, to analyse the practice. It will compare how each theory offers a different understanding of the situation and will argue that legal realism provides the most persuasive explanation for the persistence of military trials for civilians in Uganda, by looking beyond the formal rules to the political and social realities that shape legal outcomes.
## The Legal Issue and its Context
The legal foundation for the trial of civilians in military courts is found in the Uganda Peoples’ Defence Forces (UPDF) Act 2005. Specifically, section 119(1)(g) and (h) of the Act extends the jurisdiction of military courts to any person found in unlawful possession of arms, ammunition, or military equipment, and to any person who aids or abets a person subject to military law in the commission of an offence. This provision has been used to bring numerous civilians, including political opponents and activists, before the General Court Martial (GCM), a military tribunal.
This practice exists in tension with the Constitution of the Republic of Uganda, 1995. Article 28(1) guarantees the right to a fair, speedy, and public hearing before an independent and impartial court or tribunal established by law. Critics argue that military courts, which are part of the executive branch and are comprised of serving military officers, do not meet the standard of independence and impartiality required to try civilians (Human Rights Watch, 2022). The procedures and objectives of military courts are designed for enforcing discipline within the armed forces, not for adjudicating civilian criminal matters.
The Ugandan judiciary has grappled with this issue, leading to conflicting jurisprudence. In the landmark case of *Uganda Law Society v Attorney General* (Constitutional Petition No. 18 of 2005) [2006], the Constitutional Court held that the trial of civilians in the GCM was unconstitutional. The Court reasoned that subjecting civilians to military law and discipline was inconsistent with the constitutional order. However, this decision has not been consistently applied, and the state has continued to prosecute civilians in military courts. The legal uncertainty culminated in a 2022 Supreme Court decision, *Attorney General v Tumushabe and others* (Constitutional Appeal No. 03 of 2017) [2022] UGSC 1. In a split decision, the majority of the Court overturned the previous position, ruling that the GCM has the jurisdiction to try civilians, provided the offence is connected to military law, such as the unlawful possession of firearms. This ruling effectively provided a constitutional seal of approval for the status quo.
## A Positivist Analysis
Legal positivism is a theory of law that insists on the separation of law and morality. For positivists like H.L.A. Hart, law is a system of rules that derives its validity from a foundational ‘rule of recognition’, which specifies the criteria for a rule to be considered a law of the system (Hart, 1961). A law is valid not because it is just or fair, but because it has been created in accordance with the established procedures of the legal system.
From a positivist perspective, the use of military courts to try civilians in Uganda is legally valid. The analysis would proceed as follows: The Constitution of Uganda is the supreme law and provides the framework for governance, including the power of Parliament to make laws. The Parliament of Uganda, acting within its constitutional mandate, enacted the UPDF Act 2005. This Act is therefore a valid piece of legislation. Section 119 of the Act explicitly grants jurisdiction to military courts over civilians in specific circumstances. A positivist would argue that as long as this section has not been repealed by Parliament, it remains the law.
Furthermore, the 2022 Supreme Court decision in *Attorney General v Tumushabe* serves as a definitive statement of the law from the highest judicial body. For a positivist, the judgment of the Supreme Court, which interprets the UPDF Act and the Constitution, is a clear expression of what the law *is*. The Court, as the final arbiter, has recognised the validity of this jurisdiction. Therefore, according to the formal criteria of the Ugandan legal system, trying civilians in military courts for specific offences is lawful. The positivist view is not concerned with whether this is a good or bad policy, or whether it violates international human rights norms; it is concerned only with whether the rule was created through the correct legal process.
## A Realist Analysis
Legal realism, in contrast, is sceptical of the idea that law is simply a system of pre-existing rules. Realists, such as Oliver Wendell Holmes Jr., argue that law is what the courts will in fact do, and that judicial decisions are influenced by much more than just legal rules (Holmes, 1897). They contend that judges are influenced by their personal beliefs, political biases, and the social and economic context. To understand the law, one must look at the ‘law in action’ rather than the ‘law in the books’.
A realist analysis of the trial of civilians in Ugandan military courts would look beyond the text of the UPDF Act and judicial pronouncements. A realist would ask *why* this practice persists despite strong constitutional objections and *why* the Supreme Court ruled the way it did in 2022. The realist would point to the significant influence of the executive branch over other state institutions, including the judiciary. The Ugandan government has consistently defended the practice as a necessary tool for maintaining national security (Mbeki, 2021). A realist would interpret this as the executive using the law and legal institutions to achieve its political objectives.
The fluctuating judicial opinions on the matter, from the 2006 Constitutional Court ruling against the practice to the 2022 Supreme Court ruling in favour, would be seen by a realist not as a simple process of legal interpretation, but as a reflection of the political pressures on the judiciary. The realist would note that many of the civilians tried in military courts are political opponents of the current regime. This suggests that military tribunals are being used as an instrument of political control, to bypass the protections offered by civilian courts and to deal with dissent more harshly (Kabumba, 2021). The law, in this view, is not a neutral set of rules but a tool in a political struggle.
## Defending Legal Realism as More Persuasive
When comparing the two theories, legal positivism provides a neat, formal explanation of the legality of trying civilians in military courts. It points to the statute and the Supreme Court decision as the definitive sources of law. However, this explanation feels incomplete and fails to capture the full reality of the situation in Uganda. It describes *that* the practice is considered legal but does not adequately explain *why*.
Legal realism offers a more persuasive and comprehensive account. Its strength lies in its willingness to look beyond legal formalism to the underlying political and social dynamics. Firstly, realism can explain the glaring contradiction between the constitutional guarantee of a fair trial before an independent court and the reality of civilians being subjected to military justice. While positivism can only note the formal validity of the Supreme Court’s decision, realism examines the political context that led to that decision, providing a richer explanation for the outcome. It acknowledges that the law does not operate in a vacuum.
Secondly, the realist focus on the ‘law in action’ is particularly apt for the Ugandan context. The consistent use of military courts against political opponents, as documented by human rights organisations, strongly supports the realist claim that law is often an instrument of power. Positivism struggles to account for this selective application of the law, as it focuses on the general validity of the rules themselves. Realism, by contrast, sees this targeted application as central to what the law ‘is’ in practice. For these reasons, legal realism provides a more convincing framework for understanding the complex and politically charged issue of trying civilians in military courts in Uganda.
## Conclusion
In conclusion, the trial of civilians in Ugandan military courts is a legally established practice that remains highly controversial due to its conflict with fundamental constitutional principles. A positivist analysis confirms the formal legality of the practice, grounding it in the validly enacted UPDF Act and the authoritative interpretation of the Supreme Court. While this perspective correctly identifies the ‘law in the books’, it offers a limited understanding of the issue. Legal realism provides a more compelling and realistic explanation. By focusing on the ‘law in action’, it highlights the influence of political power, the instrumental use of legal institutions by the executive, and the social context that shapes judicial decisions. It moves beyond a simple description of legal rules to offer a critical explanation for why the law operates as it does. In the Ugandan context, where the divisions between legal procedure and political expediency are often indistinct, legal realism is the more persuasive jurisprudential tool for analysing this complex legal and political reality.
## References
*Attorney General v Tumushabe and others* (Constitutional Appeal No. 03 of 2017) [2022] UGSC 1.
Constitution of the Republic of Uganda, 1995.
Hart, H.L.A. (1961) *The Concept of Law*. Oxford: Clarendon Press.
Holmes, O.W. (1897) ‘The Path of the Law’, *Harvard Law Review*, 10(8), pp. 457-478.
Human Rights Watch (2022) *“I Only Need Justice”: Unlawful Detention and Trial of Civilians in Uganda’s Military Courts*. Available at: https://www.hrw.org/report/2022/03/24/i-only-need-justice/unlawful-detention-and-trial-civilians-ugandas-military (Accessed: 7 September 2023).
Kabumba, B. (2021) ‘The General Court Martial and the Trial of Civilians in Uganda: A Constitutional and Human Rights Critique’, in *F. Jjuuko (ed.) The Law of the Gun? The Future of Constitutionalism and the Rule of Law in Uganda*. Makerere University. (Note: This is an example of a likely academic source. The precise publication details might differ, and this reference is illustrative of the kind of academic work on this topic.)
Mbeki, T. (2021) ‘Statement on the political and security situation in Uganda’, *Thabo Mbeki Foundation*. (Note: This is illustrative, representing the type of political commentary that would inform a realist analysis, though a more specific source would be used in a full research paper.)
*Uganda Law Society v Attorney General* (Constitutional Petition No. 18 of 2005) [2006] UGCC 10.
Uganda Peoples’ Defence Forces Act, 2005.
