Military court: Tool for punishing Opposition?

National Unity Platfrom (NUP) party supporters and aides  of former presidential candidate Robert Kyagulanyi, alias Bobi Wine, arrive at the General Court Martial in Makindye, Kampala, for bail application hearing on February 8. PHOTO/KELVIN ATUHAIRE

In February 2016, Forum for Democratic Change’s (FDC) Michael Kabaziguruka had just won the Nakawa Division parliamentary seat. 

His party’s presidential candidate, Dr Kizza Besigye, who had lost to President Museveni in an election whose results he disputed, had declared what he termed as a “defiance campaign” against the government.  

However, Mr Kabaziguruka could be initiated into Parliament, the security agencies, which believed Mr Kabaziguruka was a key cog in Dr Besigye’s defiance campaign, pounced and charged him with 22 others at the General Military Court Martial with hatching a plot to overthrow Mr Museveni’s government - using sanctuaries of Kampala, Wakiso and Luweero districts - the State claimed.

Sporting a blue shirt – the colour of his FDC party - in August 2016, Mr Kabaziguruka and his co-accused were arraigned before Lt Gen Andrew Gutti’s court martial and what happened thereafter could go down in history as one of the most dramatic days in the much-feared military court’s history. 

Mr Kabaziguruka, who in January this year lost his bid to get a second term in Parliament, not only refused to answer the questions fired by Gen Gutti’s panel, but also turned up in court with no lawyer, and rejected free legal representation by Maj Patra Asha, who had been made available by the court, defiantly insisting that since he is a civilian, he was appearing before an illicit court.

“I’m a civilian who should be tried in a civilian court. I have the capacity to hire a private lawyer but I can’t because I am in the wrong court. If you force me to be tried here, I prefer to represent myself,” Mr Kabaziguruka said, triggering a thunderous ovation from FDC supporters who had crammed the courtroom.

Five years later, the court martial is once again in the spotlight for being used as a tool to imprison Opposition activists following a disputed election in which Mr Museveni was declared winner.  

The difference is that this time round, those on the receiving end are mostly the aides and supporters of National Unity Platform’s (NUP) Robert Kyagulanyi, popularly known by his moniker Bobi Wine, who, just like Dr Besigye, is contesting Mr Museveni’s January 14 victory, claiming it had fraud written all over it.  
Mr Kyagulanyi’s associates Ali Bukeni, alias Nubian Li, and Edward Ssebufu, alias Eddy Mutwe, plus 49 others were rounded up in January as they accompanied Mr Kyagulanyi to campaign in the Lake Victoria island district of Kalangala. 
They were first charged in a magistrate’s court, which granted many of them bail, but they were immediately rearrested and charged in a military court with being in possession of ammunition.    

Fore more than the 35 years he has been in power, Mr Museveni has openly castigated the civil justice system, insisting that it is painfully slow and he has suggested the military’s involvement in the judicial processes. 

Indeed, during the 2010 State-of-the-Nation Address, Mr Museveni offered that corruption cases involving civilians be brought before that court martial instead of a civilian court. “…there are loopholes in the trial of corrupt officials in the civilian courts because courts waste a lot of time searching for evidence. Therefore, referring corrupt officials to the court martial is a new idea, which the MPs should explore.”

Although Parliament hasn’t acted on Mr Museveni’s proposals, his statement goes to show how much he wants to place a category of cases under a court which is directly under his control and has increasingly been used not against corrupt officials, like the President had intimated, but against his critics.  

“It [court martial] is partial and compromises the rights of those it perceives as opposed to the regime in power,” Mr Eron Kiiza, a lawyer who specialises in human rights and has defended a number of suspects before the military court, says.  
Mr Kiiza’s assertions perhaps hold more weight in light of February 15, 2020 ruling by the court, in which it denied Mr Kyagulanyi’s supporters bail for what it called fear of initiating riots.

“This court finds that if released on bail, the accused will continue acts of violence. Bail is, therefore denied,” Gen Gutti said in his ruling to their bail application.  
“The court just does politics for the President. That’s all,” Mr Kiiza says.

Besides being charged with the powers to appoint the chairman of the General Court Martial and 19 other members without any known levels of independent vetting, Mr Museveni’s grip on the court was demonstrated this month when Gen Gutti wrote to the Chief of Defense forces (CDF), Gen David Muhoozi.
The crux of the letter was an inquiry about Mr Museveni’s promise during campaigns to have the charges against the former police chief, Gen Edward Kale Kayihura, dropped.  “… The above subject matter refers. Attached herein is a list of the group’s leadership as per our voice conversation yesterday. The youth approached me seeking progress on His Excellency’s promise on Gen Kale Kayihura case before this court while he was conducting his presidential campaign in Kisoro District,” Gen Gutti’s February 2 letter reads in part.

Gen Kayihura stands charged before the military court on a number of accounts touching on unlawful repatriation of Rwandan refugees back to their country and failure to protect war materials. 

If he had been charged before the civilian courts, the President would legally have no say in the court process until it is concluded. After the conclusion of the court processes, the President may, through the prerogative of mercy, pardon a convict. 

But in the military court, as Gen Gutti’s letter suggests, the President’s word is key even in as far as determining whether a suspect’s trial goes on to conclusion. 
  With the court martial increasingly seen as being used as a tool to punish political opponents, civilians charged before this court have found a way of taking their cases to civilian courts, where they believe Mr Museveni’s control is minimal. 
  While Mr Kyagulanyi’s supporters and handlers decided to first ask for bail at the military court, Mr Kabaziguruka didn’t give the army court this opportunity as he fundamentally believed he had no business as a civilian being charged in the military court. 

Army officials rationalise charging civilians under their court citing Section 119 (1) g and h of the UPDF Act No7/2005, sub-sec (g), which stipulates: “…. every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence; and (h) every person found in unlawful possession of (i) arms, ammunition or equipment ordinarily being the monopoly of the defence forces; or (ii) other classified stores as prescribed, is subject to military law, and can be tried in military courts as appropriate.”

But Mr Kabaziguruka was having none of it.  The burly MP first challenged the military proceedings in the High Court’s Civil Division, citing Article 129 of the Constitution. 

The Article stipulates that the judicial power of Uganda shall be exercised by the courts of judicature, which shall consist of the Supreme Court of Uganda; the Court of Appeal of Uganda; the High Court of Uganda. 

“In our Constitution, we don’t have the court martial, that’s why I am saying I should be tried in a court recognised by the Constitution,” Mr Kabaziguruka said. 

He further invoked Article 210 of the Constitution, which gives Parliament powers to regulate the UPDF. 

“The Article doesn’t mention anywhere that civilians can be tried in the court martial; it is simply a disciplinary tribunal for soldiers,” he said before dismissing the military court, arguing that it was abusing the rights of Ugandans. 

Justice Patricia Basaza Wasswa of the High Court, however, didn’t agree with Mr Kabaziguruka, saying the issues he had raised had already been determined by Uganda’s superior courts, including the Supreme Court.  

The Supreme Court case that the State normally cites to rationalise the trial of civilians in military court is that of Hadijah Namugerwa vs the Director of Public Prosecutions (DPP) and the Attorney General.

 Ms Namugerwa, in 2012, had challenged the trial of her brother Mohamed Ssali, a civilian, in the military court.  

Just like the High Court, the Court of Appeal dismissed her case and she took the battle to the Supreme Court, where she wasn’t successful either. 
“…it is clear to me that civilians in Uganda can become subject to military law and once they become subject to military law, they will be tried by the General Court Martial, ” Justice Jotham Tumwesigye, who has since retired, wrote in the lead judgment, adding: “Therefore, until Section 119 (1) (g) and (h) of the UPDF Act is repealed or declared to be unconstitutional by a competent court, it will remain valid, effective and enforceable regardless of the misgivings of human rights advocates about it”.   
Despite the setback, Mr Kabaziguruka didn’t go back to the court martial as he managed to secure bail at the High Court’s Criminal Division and he later secured an injunction staying his trial at the court martial after he filed a constitutional petition, which to-date, has never been determined, in which he is challenging the military court proceedings. 

The list of Mr Museveni’s opponents who have been charged at the military court keeps on growing, having started with Dr Besigye in 2005 and most recently Mr Kyagulanyi joined the illustrious group.  

Dr Besigye’s trial was stopped in its tracks by the Constitutional Court on grounds that the State had charged him with treason in both the civil court and the military court, which amounted to double jeopardy.

“We cannot stand by and watch prosecutions mounted and conducted in the midst of such flagrant, egregious and mala fide violations of the Constitution and must act to protect the constitutional rights of the petitioners in particular and the citizens of Uganda in general, as well as the rule of law in Uganda by ordering all the tainted proceedings against the petitioners to stop forthwith and directing the respective courts to discharge the petitioners,” the Constitutional Court ruled.

Gen Sejusa case

Gen David Sejusa, a former coordinator of intelligence agencies, just like Mr Kabaziguruka, used the civilian courts in 2016 to escape the court martial, where he had been charged with participating in political activities, insubordination and absconding from military duty contrary to the military law.

Although the High Court’s criminal division easily gave him bail after presenting two civilian sureties, the court martial had refused to grant him the same on ground that his two sureties presented; Kampala Lord Mayor Erias Lukwago and Deo Kizito, a surgeon, were not substantial enough and could not compel an army general to honour his bail conditions.

The court, which was then led by the late Maj Gen Levi Karuhanga, demanded serving army generals to stand surety for Gen Sejusa, who had insisted that he had been “constructively” retired from the army.  

Gen Sejusa’s trial at the military court couldn’t proceed after Justice Margaret Oguli-Oumo, who has since retired, agreed with Gen Sejusa that denying him salary over the years and not being deployed meant that the army had constructively discharged him.