Author: Moses Khisa. PHOTO/FILE
We are back to an old controversy at the heart of Uganda’s checkered political history – the military and military power. An opposition leader, Dr Kizza Besigye, is currently on trial in the military court martial, the supposed judicial arm of the army. Not for the first time, and not the first civilian to appear before this body meant for members of the armed forces.
Uganda has gone through cycles of misrule and sheer abuse of power for very long, indeed, and someone who has been here long enough, cannot help notice the appalling replays of past bad practices. The current government has harkened to the military court at different times, primarily against otherwise legitimate political opponents and citizens whose only crime is supporting the opposition side.
President Museveni has held a very strong conviction that the military court-martial system is better than regular courts of law. With this conviction that a military court is better at delivering justice than the judicial branch of government, the current rulers over the decades constructed a parallel military court system, not for the exclusive trial of suspects involved in war-related acts or armed violence but as an alternative to civil courts. The catch though, is that this parallel court system is a political weapon, not an avenue for fighting crime or delivering justice to victims of heinous acts.
Unlike the current leadership of the Judiciary that appears unable to denounce the use of the military court martial to subvert justice, in the past, the Judiciary not only ruled against the travesty of justice through the court martial but also the top leadership openly and strongly spoke out, going as far as protesting.
Recall the near unanimous decision of the Constitutional Court in the 2005 case of Uganda Law Society versus the Attorney General on the powers and status of the General Court Martial.
Except Justice Steven Kavuma, all other judges in the case ruled against the court martial on every issue argued before them. I should note that Justice Kavuma later became a regime hatchet man on the bench, gained notoriety for subverting the cause of justice when he was simultaneously Acting Deputy Chief Justice and Acting Chief Justice! Even with an explicit rebuke in the 2005 ruling, the government and army were undeterred.
They continued to hold and try civilians in the court martial, invaded the High Court in Kampala twice in 2005 and 2007 to re-arrest civilians released on bail.
The leadership of the Judiciary at the time took a firm and principled stance against the egregious violation of the Constitution, the abuse of the rule of law and blatant disregard of court decisions and orders. In an unprecedented and bold move, the Judiciary went on strike.
Declaring a week-long strike, the then Acting Chief Justice, Lady Justice Leticia Kikonyogo, cited the ‘repeated violation of the sanctity of the court premises, disobedience of court orders with impunity and the constant threats and attacks on the safety and independence of the Judiciary and judicial officers’ as the reasons for the strike.
This was nearly 20 years ago, and we are still at it. The menacing phenomenon of the military court martial trying civilians underscores the fundamental nature of the system of rule in Uganda today – the military is the fulcrum and militarism remains the core ideology and modus operandi. We have civilian politics and politicians, of course, and having formally ‘retired’ from the army, the man at the top supposedly seeks the people’s vote every five years in a ‘democratic’ processed. But beneath this façade of civilian government is the real power – the gun. The gun brought the current rulers to power, it is has kept them in power and will likely determine their future stay at the helm. The rulers often flirt with the rule of law and can respect courts of law where it is convenient.
They run a bloated and dysfunctional civilian government where elites get coopted and granted access to spoils of the system in ways that helps procure legitimacy and regime sustenance.
They took us through a comprehensive and consultative constitution-making process that resulted in our supreme law document, which was for the most part progressive and nice-sounding. When convenient and their power is not threatened, they will selectively follow provisions of that document and even respect aspects of court rulings in accordance with that supreme law and others law. But in the final analysis, it is military power that matters. That military power is in no small measure reflected in the court martial.
