Military courts in a democratic South Africa: in search of their judicial independence

v Attorney General of the Republic of Uganda. 12However, in that country, the focus of most challenges has been concerned with the use of military courts to try civilians rather than a substantive attack on the military justice system.Canada, however, stood out as a leader in the reviews of military court systems for some time because it reviewed its system way before the jurisdictions cited although some of these have now made far reaching strides. 13 In South Africa, military courts have been under pressure to transform since the adoption of the new Constitution in 1996 (Constitution). 14 In 1999, certain aspects of the courts-martial system were constitutionally and successfully challenged in Freedom of Expression Institute and Others v President, Court Martial and Others. 15 In this case, the High Court found certain aspects of the system to be in violation of the right to a fair trial which includes the right to be tried by an independent tribunal.This challenge resulted in the overhaul of the system in the same year which resulted in the adoption of the Military Discipline Supplementary Measures Act 16 of 12 (2006) UGCC 10 http://www.ulii.org/ug/judgment/constitutional-court/2006[accessed on 16 July 2012].This case dealt with several issues most of which are not directly relevant to this study.Some of the issues dealt with were the constitutionality of concurrent proceedings in the High Court and in the General Court-Martial based on the same facts, and the status of courts-martial within the justice system in Uganda.On the latter question, the Constitutional Court of Uganda held, by a majority decision, that the General Court-Martial was the equivalent of the High Court in the civil court system.Furthermore, the Court found it to be constitutionally permissible for civilians in certain cases to be tried by military courts provided the principles of the rules of natural justice and the rules of evidence and procedure were strictly followed.However, in the instant case, the Court held that the General Court-Martial had no jurisdiction to try the accused (civilian) because the court-martial was excluded from trying offences such as terrorism.These were only triable by the High Court.It is worth noting that the Uganda Peoples Defence Forces Act 7 of 2005 hardly shows any commitment to judicial independence and impartiality. 13 For a discussion of military law reforms in Canada, see D McNairn 'Military Law Reform in Canada' (2003) New Zealand Armed Forces Law Review 51.This country was forced to grant tenure until age of retirement for military judges in 2011 in the case of R. v. Leblanc 2011 CMAC 2. 14 Constitution of the Republic of South Africa, 1996. 151999 (2) SA 471 (C).

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