Court of Appeal gives lease of life to soldier

The Court of Appeal sitting in Gulu District has in a unanimous decision quashed the conviction and life sentence of a UPDF officer accused of murder and robbery.
The appellant court, instead, ordered a retrial, in the High Court, of 2nd Lt Ambrose Ogwang who has since June 18, 2010 been fighting a conviction and subsequent death sentence by the 3rd Division Court Martial.
The sentence was reduced to life in prison by the General Court Martial on September 13, 2012 and confirmed by the Court Martial Appeal Court on July 12, 2013.
In the third appeal, the first before a non-military court, Justices Kenneth Kakuru, Fredrick Engonda-Ntende and Hellen Obura ruled that the trial court had been wrongly constituted to include a person who participated in apprehending Mr Ogwang.
The three member bench reasoned that the said officer could be a witness to the offences under trial and not as one of the members trying the offences.
Further, the court said the action to substitute the “incompetent” member with a new member of the court more than halfway through the trial was equally wrongful and contrary to section 198(c) of the UPDF Act. The provision requires a member of the court to have been present throughout the trial in order to participate in delivering the final verdict.
“We quash the conviction of the appellant on count 2 and set aside the sentence imposed upon him. We had been inclined to order a retrial, pursuant to section 240 of the Uganda People’s Defence Forces Act, 2005, before the 3rd Division Court Martial. However, upon further consideration it appears that there are fundamental constitutional barriers to that course of action as we shall presently explain.”
“…we order the retrial of the appellant before the High Court of Uganda which is the court with the jurisdiction to try the offences which the appellant stands charged with.”

DDP ordered
Court ordered the Director of Public Prosecutions (DPP) to produce Mr Ogwang before a magistrates court within 14 days from the date of the ruling to formally be informed of the charges he is facing.
Both the DPP and the High Court were directed expeditiously retry the suspect given the time he has spent in custody.
The justices reasoned that sending Mr Ogwang for retrial in a UPDF Court would violate Article 28(1) of the Constitution that emphasises a fair trial before an independent and impartial court or tribunal.
“Persons subject to military law, like all other people in this country, enjoy fundamental human rights which may only be limited in the manner provided by the Constitution. The officers and militants of the UPDF do not give up their fundamental rights and freedom on account of joining the UPDF,” the justices said.
They added: “Such rights and freedoms are available to officers and militants of the UPDF as much as they are available to the rest of Ugandans and others that live here in this country as they are inherent in every person. There may be limitations to such rights and freedoms but such limitations are governed by Article 43 of the Constitution and are to be strictly construed.”

Principles of law
In the 20 page judgment, the justices discuss the jurisdiction of military courts asserting they are quasi-judicial bodies that must observe certain principles of law similar to police disciplinary courts and other jurisdiction bodies.
“We take solace in the foregoing remarks of the Supreme Court that emphasise that Chaper 4 rights apply to all persons. In that case it was a question of the fundamental right to liberty and entitlement to bail. The UPDF Act could not override the Constitution. Similarly the right of any person charged with a criminal offence to be tried by an independent court is sacrosanct under Article 28 (1) of the Constitution. Such right cannot be overridden by the UPDF Act.”