## Facts

- Second Lieutenant Ambrose Ogwang was a serving officer in the Uganda People’s Defence Forces (UPDF).
- Ogwang deserted his unit and, during the period of desertion, allegedly committed civilian crimes in Mbale, including robbing civilians, taking civilian hostages, and shooting a civilian police officer.
- The prosecution alleged that on March 23, 2010, at Plot 16 Kumi Road in Mbale, Ogwang shot and killed Inspector of Police Koire George William with a sub-machine gun.
- Ogwang was indicted on two Penal Code Act counts: (1) robbery, contrary to sections 285 and 286(1), and (2) murder, contrary to sections 188 and 189.
- Relying on the Uganda Peoples Defence Forces Act, 2005, which purported to give military courts jurisdiction over crimes committed by persons subject to military law (including ordinary civilian offences), Ogwang was tried in the military justice system rather than the ordinary criminal courts.
- On June 18, 2010, the 3rd Division Court Martial convicted Ogwang of murder and sentenced him to death; the record did not show a verdict on the robbery count.
- Ogwang pursued appeals within the military appellate chain (General Court Martial and the Court Martial Appeal Court), and the matter ultimately came before the civilian Court of Appeal as a third appeal.
- Before the Court of Appeal, Ogwang challenged (among other matters) the constitutionality of military courts exercising broad, general jurisdiction over civilian crimes, arguing that military courts are not independent courts for purposes of constitutional fair-trial protections.

## Issues

1. Whether it is constitutional for military courts, under the UPDF Act, to exercise general subject-matter jurisdiction over ordinary Penal Code offences committed by servicemembers, including offences against civilians.
2. Whether the structure and status of military courts satisfy the Constitution’s requirement that criminal liability be determined by an independent and impartial court or tribunal.
3. If the military court lacked constitutional jurisdiction to try the Penal Code murder charge, what effect that defect had on Ogwang’s conviction and sentence.

## Decision

- The Court of Appeal held that it is unconstitutional for military courts to exercise blanket, general criminal jurisdiction over ordinary civilian offences committed by servicemembers.
- The Court concluded that, to the extent the UPDF Act purported to place all offences by persons subject to military law within military-court jurisdiction (including ordinary Penal Code crimes), that reading conflicted with constitutional requirements of judicial independence and fair trial.
- The Court set aside Ogwang’s court-martial murder conviction and sentence as having been entered by a tribunal exercising unconstitutional jurisdiction.
- The Court indicated that ordinary Penal Code prosecutions of this kind belong in the regular civilian courts, not in the court-martial system.

## Legal Principles

- Statutory grants of power to military tribunals must conform to the Constitution; legislation cannot create a parallel system of general criminal courts for servicemembers that displaces the ordinary judiciary in civilian criminal matters.
- Military courts are primarily disciplinary tribunals within the armed forces; their proper role is limited to matters of service discipline and related offences, not the general trial of ordinary Penal Code crimes.
- Constitutional fair-hearing guarantees require determination of criminal charges by an independent and impartial court; institutional ties to the military chain of command bear on whether a tribunal can be used to try ordinary civilian crimes.
- Where a conviction results from proceedings conducted in a forum that lacks constitutional authority to try the charge, the conviction and sentence cannot stand.

## Conclusion

Ogwang v. Uganda holds that Uganda’s military courts may not constitutionally exercise broad, general jurisdiction over ordinary Penal Code offences committed by servicemembers, particularly where the alleged conduct is a civilian crime; on that basis, the Court of Appeal set aside Ogwang’s court-martial conviction and sentence for murder and affirmed that such prosecutions belong in the ordinary civilian courts.


Ogwang v. Uganda, [2018] UGCA 82 (2018)