Opposition strongman Dr Kizza Besigye is seen brough to the military court by prison officers in Kampala on December 10, 2024. PHOTO/ABUBAKER LUBOWA
The prosecution team during Kizza Besigye’s appearance in the General Court Martial (GCM) recently made a spectacle of themselves when they attempted to deviate from the universal norms and safeguards of a fair trial, which is sacrosanct in the dispensation of justice.
While appearing before the military court last week, Besigye’s lawyers, Erias Lukwago and Eron Kiiza, attempted to persuade the presiding judge, Brig Gen Robert Freeman Mugabe, that their client enjoys the principle of freedom from self-incrimination and enjoys the right to a fair trial.
“.... UPDF shall promote, respect, and protect this Constitution and the fundamental human rights of Ugandans and we are saying that a right to a fair hearing is not negotiable. And we are saying the right of Besigye and Lutale to choose their lawyers, even to change them is not negotiable. So if you have not read those provisions, you shouldn’t come here to mislead the court,” argued Eron Kiiza.
Defence lawyer Erias Lukwago submits as Ugandan opposition Ugandan opposition figure Dr Kizza Besigye and his co-accused Obeid Lutale are in the dock at the General Court Martial in Makindye, Kampala, where charges on offences related to security and illegal possession of two firearms and 8 rounds of ammunition were read to them on November 20, 2024. PHOTO/ABUBAKER LUBOWA
Earlier, Lukwago had warned against the prosecution team’s suggestion that Besigye should testify against himself, which also violates the right to a fair trial.
“Mr Chairman, it is the prosecution to make out the case, sufficient particulars must be given, warranting the accused persons to prepare their defence. So we are at a stage where the State must bring these facts before this honourable tribunal before we talk about their defence. It is the UPDF that is charging the accused persons. It is the same institution that presumably arrested them and that’s a fact. So it would be again fairly unreasonable for the prosecution to ever imagine that the onus is on the accused persons to bring evidence,” Lukwago posited.
The right to a fair trial is a non-derogable right under Article 44 of the Constitution and international human rights law.
Do military courts and tribunals have the competence and impartiality exhibited by other courts of judicature?
Military courts pale in comparison to civilian courts
Section 81 of the UPDF Act establishes the General Court-Martial. “There shall be a General Court Martial which shall have both original and appellate jurisdiction over all offences and persons under this Act,” reads in part Section 81 of the UPDF Act. The same section says the military court shall consist of a chairman who shall not be below the rank of lieutenant colonel; two senior officers; two junior officers; a political commissar; and one noncommissioned officer, all of whom shall be appointed by the High Command for one year.
From this Section, it means the panel is not made up of professional lawyers as it is with the civil courts that only employ advocates who have completed the post-graduate Diploma at the Law Development Centre(LDC) and have become judicial officers at different ranks of magistrates, registrars, judges, or justices.
Also, the General Court-Martial may sit at any place in Uganda but the civilian courts have established courtrooms where the judicial officers sit and conduct their court business.
On the other hand, the civilian courts were established under the 1995 Constitution of Uganda under Article 126, which states that judicial power comes from the people. The courts are part of the Judiciary, which is one of the three arms of the Ugandan government. The Judiciary’s role is to oversee justice in the country and to promote the rule of law and order.
In addition, Article 128(1) states; “In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority”.
The civilian courts are headed by the Chief Justice, the 4th most important personality in the country after the President, Vice President, and the Speaker of Parliament.
Current court structure
The current civilian court structure consists of the Supreme Court at the apex, a Court of Appeal/ Constitutional Court, the High Court, and the Magistrates Court. Also, there are the Local Council Courts. On the other hand, the General Court Martial has one appeal division should a party not be satisfied with the judgment of the first instance court.
How the justice system plays out
The Criminal Justice System follows the adversarial system of litigation such that judicial officers only listen to the submission of the parties and do not play an inquisitorial role, unlike the General Court Martial, where those who lack elementary legal skills may not be able to draw this distinction. The role of the former Security Minister, the late Elly Tumwine, as the head of the General Court Martial illustrates this anomaly. Tumwine often detained lawyers possessed with the temerity to question his flawed application of the rules of evidence.
The rules of evidence may vary in the military courts and tribunals compared to other courts of judicature. For instance, the prosecution team may not understand the basics of hearsay evidence and its exceptions, including a dying declaration, and the pros and cons of accomplice evidence.
The rules for the admissibility of evidence such as that in an electronic form may also vary. The reliability of electronic evidence depends on proper collection, preservation, and production in court, and any lacuna in that regard would render such evidence vulnerable in regard to its probative value, in courts of judicature.
The panel of the General Court Martial where Dr Kizza Besigye and Obeid Lutale were charged with offences relating to security, illegal possession of two pistols and eight rounds of ammunition. PHOTO / ABUBAKER LUBOWA
The General Court Martial does not have assessors while the other courts of judicature have assessors as provided in Section 3 of the Trial on Indictments Act. The role of assessors is to offer a persuasive view of the case under trial though their decision does not bind the presiding judicial officer.
Magistrates, Judges, and Justices must fulfill a specific academic and practice requirement laid out by the Judicial Service Commission (JSC) to be appointed as Magistrates, Judges of the High Court, and Justices of the Court of Appeal and Supreme Court, unlike the General Court Martial where some of those on the panel are not advocates.
The offence committed under courts of judicature must be clearly defined and its ingredients laid out as provided in specific laws such as the Penal Code Act or the Anti-Terrorism Act, but this may not strictly apply under the General Court Martial.
Article 28 (12) provides that except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law. It’s against this backdrop that several politicians and lawyers have likened the military court to a “kangaroo court” which lacks independent oversight and may be used to pursue personal vendettas.
“The court martial has been turned into a tool of oppression by Gen Museveni because he has full control of the military courts. He decides who gets charged in the court-martial, what charges are preferred against that person, and who does or doesn’t get bail,” Mr Robert Kyagulanyi NUP leader said yesterday in Kampala while addressing Opposition politicians.
He added: “He uses it to punish and intimidate his opponents and we condemn that. Here, we come together knowing that Dr Besigye and Hajj Obeid cannot and will not get justice in that military court. We, therefore, jointly demand that their charges be dropped and if they can’t be dropped, let them at least in a civilian court because they are civilians. We demand that those bogus charges be dropped.”
Military officers are seen as they prepare to lead Ugandan opposition figure Dr Kizza Besigye to the dock at the General Court Martial in Kampala, more than three days after he went missing in what his family originally termed as a 'kidnap' in Nairobi, Kenya on November 16, 2024. PHOTO/ABUBAKER LUBOWA
The General Court Martial may not follow the requirements of the Evidence Act to meet the threshold of an admission and confession during criminal trials as is the case in courts of judicature where a confession for instance will not stand if it was procured through violence, force, threat, inducement or promise.
The courts of Judicature ensure that during criminal trials, the burden of proof does not shift to the accused, and it is entirely the prosecution to prove the case against the suspect beyond a reasonable doubt.
Section 101 of the Evidence Act provides that whoever desires any court to give any judgement as to any legal right or liability dependant on the existence of facts, which he asserts must prove that those facts exist, and when one is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. It follows the common law principle that he who denies need not prove his/her guilt.
The courts of Judicature ensure that they take judicial notice of all Acts of Parliament and statutory instruments and all Acts of Parliament of the United Kingdom now or in force in Uganda, amongst others.
What do lawyers say?
Caleb Alaka, a lawyer, said the military court is a tool of repression controlled by a puppet master, unlike civilian courts, which have a semblance of independence.
“The military is essentially intended to be a disciplinary tribunal for military people. To be very frank and honest, there is no justice that can be dispensed in that court. Military people take orders so the aspects of fairness and independence are not there. When you come to the civil courts, there is some level of independence because a judge will fear to pick up a phone and call another judge over a case they are handling,” Mr Alaka said.
He added: “The experience before a military court is terrible. I was held for some hours just because I said I was robbed [being dressed in professional attire] and I could not enter a dock to be detained.”
In 2005, the court then presided over by the late Elly Tumwiine, detained counsel Alaka over alleged contempt of court after he refused to enter into a court dock while robbed after he protested the arrest of Dr Besigye’s lawyer, Erias Lukwago.
The late Tumwiine scoffed at lawyer Alaka that he had seen more ‘robbers’ and he would not allow to be intimidated.
Mr George Musisi, one of the lawyers of NUP members (standing) during his submission at the General Court Martial in Makindye, Kampala, on September 27, 2022. PHOTO | ABUBAKER LUBOWA
George Musisi, a lawyer who has in the past appeared before the military court criticised the torture that lawyers, litigants, and journalists have to go through to access the heavily guarded institution.
“The first one that comes off my head is the physical one. The other day, when Kiiza Eron and other lawyers were protesting the orders to leave their phones outside the courtroom, it reminded me of some of the appearances before that court where we had been asked to leave our phones behind and yet the prosecution had their phones. They forget that phones have lately become tools of trade for lawyers,” lawyer Musisi said in a telephone interview.
Adding: “Since it’s a military institution, the search is more rigorous than the civilian courts. There was a time they even demanded that we leave behind our car keys, so they mentally harassed and tortured and by the time you start court, you are not yourself.”
Regarding the presentation of evidence, Mr Musisi said that sometimes the state presents defective charge sheets that result in the detention of civilians on flimsy charges. “They sanitise illegality in that court by remanding civilians who have been abducted for days or even months,” he said.
About the courts
Appointment
Under the civilian courts, the Judicial Service Commission is the government body that is mandated with the recruitment and discipline of errant officers. However, from the rank of registrar to judges of the High Court, Court of Appeal, and Supreme, the officers to these positions, are recommended by the Judicial Service Commission from whom a list is sent to the President to appoint from. The judges have one more recruitment step that they go through of appearing before the Parliament for vetting.
On the other hand, the members of the General Court Martial are appointed by the High Command, chaired by the President.
The appointment of the judicial officers is on a permanent and pensionable basis while those of the military court, are appointed on a short-term tenure of one year which is renewable once.
Pay
Judicial officers are lately among the highly paid public servants with the High Court judges earning about Shs23m per month, Court of Appeal, Shs24m, Supreme Court, and Shs25m. The pay is untaxed by the Uganda Revenue Authority (URA).
The lower officers like a Senior Principal Grade One Magistrate earn Shs8.5m with the lowest ranked judicial officer, a Grade Two Magistrate now being paid Shs3m. There was no readily available information on how much the military court members earn, whether a monthly salary or allowances whenever they sit.
