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Eron Kiiza v court martial: A battle 12 years in the making

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Lawyer Eron Kiiza in the dock at the General Court Martial. PHOTO / ABUBAKER LUBOWA

On the face of it, it seems from the moment last year Eron Kiiza removed his coat in the courtyard of the much-feared General Court Martial and did about 30 press- ups he was a marked man. The gangly Kiiza, who is one of the battery of lawyers representing Opposition doyen Dr Kiiza Besigye and his colleague Obeid Lutale Kamulegeya, is a man from Ntungamo District, who has always prided himself in being loud. 

For instance, in his poetry book, Pregnant Poems, Kiiza says that Poetry is best enjoyed when read out loudly while gesticulating or acting like a performer on stage.” 

From the time Besigye and Kamulegeya were charged, Kiiza has stayed true to being loud, at one point telling the court martial last year thus, “ I went to law school for five years and this constitution was promulgated in 1995 and article 221, there are articles in my head… says that UPDF shall promote, respect, and protect this constitution and the fundamental human rights of Ugandans and we are saying that a right to fair hearing is not negotiable,” Kiiza loudly told the seven-member court martial panel led by Brig Robert Freeman Mugabe.

The loud one

The court martial isn’t used to loud, energetic if not fearless lawyer since many people who appear normally humble themselves in fear of facing off with the military but this is a battle that Kiiza has wanted for years as he believes that there is need for civilians to assert their constitutional superiority over the military. 

The court-martial is a military tribunal, which tries civilians too. Still, soldiers here expect civilians to replicate the military disciplinary code of conduct which is characterised by soldiers who are quick and willing to respond to orders and who understand and comply with regulations but Kiiza wasn’t willing to comply.


At the end of last year, Kiiza's rather abrasive style, drove Brig Richard Tukacungurwa, the court martial judge advocate ( a person who advises the military court on legal matters ) to snap: “ You will join your client there,” he said whilst pointing at the accused’s dock.

When the court martial was in recess after Kiiza and his colleagues made it clear that they wouldn’t proceed unless the Law Council issued Martha Karua, Besigye’s lead lawyer, a
practising certificate, President Museveni intervened in the discourse defending the court martial as Eyokyeero, a Runyankore word that means reinforcement.

“I have seen the arguments in the papers by some lawyers regarding the correctness of some civilians being tried in the court martial. I want to affirm that, that move was correct and useful and it has contributed to the stabilisation of Uganda. Why? It is the NRM that in the year 2005 enacted this law through Parliament. This was because of the rampant activities of criminals and terrorists that were using guns to kill people indiscriminately,” Museveni said.

Though Museveni claimed that a court martial was ostensibly instituted to stem criminality Kiiza was last Tuesday sentenced to nine months in prison for getting into a quarrel with soldiers who had tried to block him from entering court.

Kiiza being jailed by the court martial is rather ironic because for about 12 years he has been practising law and he has challenged the trial of civilians in the court martial.

Enter Kiiza 

Kiiza’s efforts to tackle the trial of civilians in the military courts started in 2014 when the Rwenzori region, covering the districts of Kasese and Bundibugyo, experienced an episode of intense violence. Armed assailants, who the state claimed were Bakonzo militia, attacked villages, police units and army barracks, leading to the death of over 70 including civilians, state forces and some of the attackers themselves,
with some mass graves related to the violence and its aftermath are still being uncovered.

In the aftermath of the violence, 56 civilians were charged in a ilitary court that sat in Kasese District while 114 civilians were charged before a military court in neighbouring Bundibugyo District, prompting Opposition politicians Yokas Bwambale Bihande, then representing Bukonzo East; Winfred Kiiza, then representing Kasese as the Woman MP, and William Nzoghu, then representing Busongora County North, to asked lawyers led by the Legal Brain Trust (LBT) to help the suspects.

At that time Kiiza, whose speciality was civil-military relations and was working with Niwagaba & Mwebesa Advocates but also volunteering with LBT, was charged by veteran human rights lawyer Ladislaus Rwakafuzi to strategise on how best to serve justice to the suspects who he said were already unfairly being tried by the court martial that is supposed to discipline errant soldiers but not civilians who are supposed to be handled by the Director of Public Prosecutions (DPP) and the police.

Kiiza even dismissed the suggestion that they were going to represent former Coordinator of Intelligence Agencies, David Sejusa.
“The Rwenzori Justice Mission lawyers have no contact with Sejusa at the moment and any suggestion to the contrary is false. I encourage all Ugandans to support the Rwenzori Justice Mission.“Injustice anywhere is a threat to justice everywhere,” Kiiza said, quoting Martin Luther King Jr.

 Aronda saga

In 2015, Kiiza once again challenged the military’s involvement in civilian affairs when he challenged Gen Aronda Nyakairima’s appointment as minister of Internal Affairs by President Museveni. According to the court documents, Kiiza wanted the court to throw Nyakairima out of his office because the Cabinet Nyakairima, a soldier, joined as a minister is a partisan institution since Uganda is under a multiparty indulgence.

“Uganda is currently ruled by the NRM government and all members of the Cabinet are partisan owing to Article 117 and the common law doctrine of collective responsibility. It is not constitutionally or practically possible for a person who is part of the Cabinet to be non-partisan,”Kiiza’s petition read.

Kiiza contended that Nyakairima’s appointment offends Article 2 of the Constitution, which makes the Constitution Uganda’s supreme law.

Kizza said that Nyakairima’s ministerial appointment breached Sections 37 and 99 of the Uganda People’s Defence Forces Act 2005. These sections bar soldiers from civil employment.
By extension, Kiiza argued, an officer would have to retire from the army before taking up civil employment.

Kiiza’ insisted that the office of the minister is a political office hence Nyakairima’s appointment contravenes Section 16 of the Political Parties and Organisations Act, 2005, which prohibits soldiers from participating in partisan politics.

Army vs civilians

According to Kiiza, by Museveni appointing Nyakairima to the said ministerial position, he offended Articles 99 (1), 2, and 3 of the Constitution, which enjoin him as the president to respect,abide,uphold, and safeguard the Constitution and other laws.

He argued that Nyakairima’s appointment contravened Article 208(2) which stipulates that every member of the UPDF must be non-partisan and subordinate to civilian authority.
Accordingly, he insists that the Cabinet Nyakairima joined as a minister is a partisan institution since Uganda is under a multiparty dispensation.

“Uganda is currently ruled by the NRM government and all members of the cabinet are partisan owing to Article 117 and common law doctrine of collective responsibility. It is not constitutionally or practically possible for a person who is part of the Cabinet to be non-partisan,” Kiiza’s notes read.

Equally, he maintained that under constitutional Article 208 (2), civilian authority includes the Cabinet, hence Nyakairima, a military person, cannot be part of civilian authority. 

“One cannot be part of civilian authority and at the same time
be subordinate to it. For a senior army officer to join the Cabinet, the effect is for the military to be fused with civilian authority to which it is supposed to be subordinate. Can a person be subordinate to himself?”Kiiza said in his
petition.

The Attorney General defended Nyakairima’s appointment saying that it conformed to Arti cle 113 of the Constitution. The article stipulates: “Cabinet ministers shall be appointed by the President with the approval of Parliament or persons qualified to be elected Members of Parliament.”

That article, the Attorney General said, does not preclude a serving army officer,adding that Nyakairima did not become a politician by joining Cabinet, as one can serve the government without doing politics.
What Kiiza was fighting to end would later come to be the basis of Anna Ruess's doctoral thesis titled Politicisation, professionalisation, and Personalisation of the Uganda People’s Defence (UPDF) Uganda’s army despite attempts to professionalise to delink itself from partisan politics.

“In the face of sharp criticism from the Opposition and civil society, the NRM regime tightly clings onto institutions of systematic politicisation of the army rooted in the revolutionary war and inscribed in the legal and institutional framework of the UPDF; army representatives in Parliament, political education for soldiers and ‘patriotic training’ of citizens by the army, and the productive role of the UPDF,” said Ruess.

Ten months after Kiiza filed his petition he heard nothing from the Judiciary in terms of hearing his case, prompting him to write a protest letter which was characteristically buttressed in poetry.

“Justice is like pancakes, it needs to be served hot. Cold, it is distasteful and detestable. Justice is like a rose, you want
to draw close to your noses and swim in sweetness,” said Kiiza whose petition was never heard until it was overtaken by events following the death of Nyakairima.

But in the letter to the Judiciary dated June 10, 2014, he had wondered,“If a lawyer is frustrated by the very institution which regards me an officer, woe unto the layman on the street who is teargassed or locked up for 50 hours in the police cell or denied accessing the City Square or stopped from holding meeting by police.”