The Chairperson of the Commission of Inquiry into land matters, Justice Catherine Bamugemereire, at one of the public hearings. PHOTO BY RACHEL MABALA
When Justice Catherine Bamugemereire was reading her judgement in which she agreed that trying civilians in military courts was unconstitutional, she first went back into history and pointed out that military justice systems, including in the so-called developed world, were arbitrary and tyrannical. In Uganda, she traced the trial of civilians to the Idi Amin era where she said the military was used as a tool for political control, with widespread unfettered abuse of power leading to human rights violations.
“Military tribunals tried civilians and soldiers alike, and the legal process was often arbitrary, with little regard for fairness or due process. The military justice system was politicised. Under the military era, military tribunals took precedence over civil courts,” Bamugemereire said.
It has been one year since Bamugemereire was promoted from the Court of Appeal to the Supreme Court, but this idea of the military overrunning civilian authority is something not new to her. She encountered it in 2019 when, as the head of the commission put in place by President Museveni to investigate land wrangles, she decided to visit prime plots in Mutungo, a Kampala suburb.
Bamugemereire wanted to visit Block 237 plots 67, 48, 29, and 59, where the External Security Organisation (ESO) intended to build its headquarters. The commission had picked interest in the land after Mr. Muhammad Kasasa, who has since passed on, complained that he had sold four plots of land to ESO but was never paid, and the money only existed on paper.
During that standoff, Mr Moses Kafeero, who at the time was the Kampala Metropolitan Police commander, failed to persuade the Uganda People's Defence Force (UPDF) soldiers, who were not only armed but at one point cocked their guns, to allow Bamugemereire to access the land.
“That’s what we have been telling Justice Bamugemereire—that some people [soldiers] are above the law,” one of the residents said during the impasse. It was clear that Justice Bamugemereire wasn’t going to have her way, and to aggravate the situation, the four soldiers were later awarded medals by the State.
Government spokesperson Ofwono Opondo was unambiguous about the move at the time. “Because of the meticulous way these officers conducted themselves, President Museveni decided to confer on them meritorious awards,” he said in 2019.
To pour salt into the wound, the Constitutional Court, of which Justice Bamugemereire was a member, quashed her land report on the grounds that it had hijacked the court’s powers.
“The acts of the land commission of inquiry of exercising judicial power by issuing orders preserving status quo on the second petitioner’s land and issuing a warrant of arrest for businessman Abid Alam for failing to comply with the commission’s directives and obstructing its work were in contravention of Articles 2 and 126 of the Constitution,” Justice Cheborion Barishaki wrote in the lead judgment.
It should be remembered that as the 2021 elections were approaching, the Ugandan government took a rather dramatic step by gazetting the red beret insignia as part of the UPDF. Besides the red beret, the gazette dated September 18, 2019, prohibited the sale or wearing of any attire that resembled army uniforms, such as side caps, bush hats, and ceremonial caps.
To gazette the red beret, the National Resistance Movement (NRM) government—which has been in power since 1986—invoked Section 160 (1) of the UPDF Act, which provides that, “The minister shall, by notice published in the gazette, declare and make known the marks when applied to any arms, clothing, equipment, vehicle, aircraft, or boat, shall denote them as property of the State.”
Section 160(2) (c) of the same Act lays out the punishment for those who contravene Section 160 (1), stipulating that “any person who unlawfully receives, possesses, sells or delivers any army clothing, equipment, vehicle, aircraft, or boat bearing a mark referred to in subsection (1) or forbidden by or under this Act to be sold, pledged or otherwise disposed of, commits an offence and is, on conviction, liable to imprisonment for life.”
The Ugandan authorities had more within the law to punish civilians who continued to wear red berets since Section 119(1) of the UPDF Act stipulates that, “Any person found under unlawful possession of any equipment ordinarily being the monopoly of the defence forces and other classified stores as prescribed, is subject to military law and can be tried in military courts as appropriate.” The offence carries a maximum sentence of life imprisonment upon conviction.
With that, stealthily sporting plain clothes, armed men in what came to be known as “drones” had, from 2020, according to opposition groups, snatched hundreds of National Unity Platform (NUP) activists from markets, taxi stops, petrol stations, roadsides, and homes and taken them to unknown destinations where they were either tortured or, in the worst-case scenarios, killed. In other instances, they were paraded before the court martial on the account of wearing red berets.
The frustration with the way the court martial administers justice played out on February 1, 2023, when Muhydin Kakooza, a NUP supporter, lashed out at the military court’s panel, which is headed by Brig Freeman Mugabe.
Kakooza, together with more than 30 other NUP supporters, had been on remand for more than 20 months after being charged with possessing explosives, a charge that the army ultimately failed to prove or even bring a witness to testify.
For the umpteenth time, when this case came up, Lt. Gift Mubehamwe, the military prosecutor, sought another adjournment, promising to produce witnesses during the next hearing. This prompted Kakooza’s ire.
“You will just have to kill me, but I will never stop supporting political change. You should free us. All we want is justice. Just let us free,” Kakooza said. “We have spent two years on remand. Why are you persecuting us for supporting Kyagulanyi? Why are we rotting in jail because of politics?” Kakooza asked before giving the court some spontaneous advice. “Better jail us for life than bringing us here without justice,” he added.
When she was breaking down the now-nullified Section 119 of the UPDF Act, Justice Bamugemereire said it provided the extent to which the jurisdiction of the court martial swung so wide as to subsume civilians and expand offending.
“The wide-ranging offences that such courts martial can try have opened wide the door to try any and every person the GCM [General Court Martial] would wish to try. Taken as it is, jurisdiction is an overreach,” Bamugemereire said.
In her analysis, Bamugemereire said that unlike the Director of Public Prosecutions (DPP), who is constitutionally charged with prosecuting criminal cases, the structure of the courts martial raises concerns as to the impartiality and fairness of the trial of individuals who are not subscribed to the military.
“Leading up to the making of the 1995 Constitution, the Constituent Assembly was emphatic about the necessity to guarantee a free and fair trial and other due process rights and the critical need for the independence of the courts martial, stressing that their role be limited to handling military-specific offences against military personnel. The GCM, currently set up under the UPDF Act, is fundamentally incompatible with the constitutional safeguards for a fair hearing and is unconstitutional. Therefore, its exercise of judicial power is unconstitutional,” Bamugemereire said.
