Examining the military’s place in judicial processes
What you need to know:
- To try civilians in military courts or not is one of the debates that have engulfed Uganda’s body politic for years. In the first of a two-part series, Derrick Kiyonga examines how civilians in Uganda came to be tried in military tribunals and the ramifications that have followed.
Mr Julius Buwembo runs a butchery in Entebbe, 22 miles southwest of the Ugandan capital of Kampala.
For the last year or so, as a way of fulfilling bail conditions, Mr Buwembo has had to report every Friday to the much-feared General Court Martial (GMC) in Makindye, Kampala.
An an avid supporter of former presidential candidate Robert Kyagulanyi, alias Bobi Wine, Mr Buwembo was arrested by the military after their spotters zeroed down on him for printing and pinning Mr Kyagulanyi’s presidential campaign posters.
Back then, the government had designated the red beret as official military clothing that could land members of the public who sported it in jail.
After being subjected to several beatings at a “safe house”, Mr Buwembo says was manned by the Chieftaincy of Military Intelligence (CMI) personnel, he was charged at the GMC together with a number of other National Unity Platform (NUP) party supporters who also sported red berets. The beret is easily the most recognisable signature of Mr Kyagulanyi’s NUP party.
Section 160 of the 2005 Uganda People’s Defence Act (UPDF) says anyone found in possession of military clothing “is liable on conviction to imprisonment for life.”
Mr Buwembo was, therefore, incarcerated as Ugandans went to the polls in January 2021.
Months later, on June 1, 2021, Lt Gen Andrew Gutti oversaw a GCM session that granted Mr Buwembo bail.
Mr Buwembo vividly remembers the day, if not for his release then, the fact that Gen Katumba Wamala nearly met his waterloo moment.
“We keep on reporting at the Court Martial. When we go for trial, no witness comes to testify. They then adjourn, and the story continues. They just waste our time,” Mr Buwembo said.
By the look of things, Mr Buwembo was lucky because many of the people who were charged at the GCM in 2021 are still languishing in jail with no prospect of their cases being heard.
The frustration with the way GCM administers justice played out on February 1, when Mr Muhydin Kakooza—another NUP supporter—lashed out at the military court’s panel headed by Brig Freeman Mugabe.
Mr Kakooza, together with more than 30 other NUP supporters, has been on remand for the last 20 months after being charged with being in possession of explosives. For the umpteenth time when this case came up, Lt Gift Mubehamwe—the military prosecutor—asked for another adjournment. He promised 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,” Mr 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?” Mr Kakooza asked in a clip that went viral on social media.
Undone, he gave the court some spontaneous advice: “Better jail us for life than bringing us here without justice.”
The trial of civilians in military courts has been the subject of intense debate in Uganda ever since Idi Amin formed the East African first military tribunal to try civilians suspected of committing grave crimes such as treason, rape, and terrorism. Amin was Uganda’s president at the time. Upon conviction on these charges, the sentence was death by firing squad.
The first Ugandan civilian to be executed by Amin’s military tribunals was Badru Ssemakula, who was accused of being a robber.
“Indeed, the uncertainty of the regime as to how the executions would be received was evident in Kampala where the decision was taken at the last minute to execute Badru Ssemakula on grounds of kondoism; not guerrilla activity,” Thomas James Lowman writes in his thesis titled Beyond Idi Amin: Causes and Drivers of Political Violence in Uganda, 1971-1979.
Amin’s military tribunals, according to Mr David Naluwairo, a lecturer at Makerere University’s School of Law, violated all the tenets of the right to a fair trial. First, Mr Naluwairo says, the tribunals were composed of illiterate individuals who had no basic understanding of the law.
Second, he adds, they were often staffed with serving military men whose only basis of appointment was loyalty to President Amin. In other words, they could be relied upon to convict whoever was deemed an opponent to the regime.
“Third, Amin’s military tribunals often proceeded on the premise that suspects were guilty of the offences with which they were charged,” he says, pointing out an instance when a suspected rebel was sentenced to death by firing squad on the basis of ‘curious entries’ in his diary, which he could not explain.
When the National Resistance Movement (NRM) swept to power in 1986, President Museveni issued a legal instrument through Legal Notice 1 of 1986, which mirrored the legal instrument that had ushered Amin into power in 1971.
Whilst Amin’s legal instrument suspended certain provisions in the 1967 Constitution, specifically those concerning Executive power and legislative, Mr Museveni’s legal instrument in a similar fashion did not suspend or amend the fair trial rights guarantees contained in Section 15 of the 1967 Constitution.
“All organs exercising judicial power,” Mr Naluwairo says, “were anticipated to respect and uphold these rights. When it came to the administration of military justice, the former Luweero rebels introduced and maintained two rigid codes—the Code of Conduct for the NRA (National Resistance Army) and the NRA Operational Code of Conduct.”
He adds: “They were originally designed to regulate the behaviour and conduct of the NRA soldiers during its five-year Bush War against the Obote government.
They were subsequently appended as a schedule to Legal Notice 1 of 1986, which ushered the NRM into power. Legal Notice 1 of 1986 modified but did not repeal the 1964 Armed Forces Act. The Act continued in operation to the extent that it was not modified by the proclamation.”
These newly introduced NRA Codes of Conduct had extensive significance as they were seen as a huge setback in terms of protection and enjoyment of the right to a fair trial in the administration of justice by Uganda’s military courts. For instance, the codes abolished the Court-Martial Appeal Court and instituted the GCM as the supreme trial organ of the military justice system.
By doing away with the Court-Martial Appeal Court, the ruling government had not only canceled servicemen’s rights of appeal but also removed the country’s military justice system from any inspection by civilian authority.
“They also removed the power to appoint judge advocates from the Chief Justice and vested it in the chairperson of the High Command. The High Command was given power to appoint both the members of the court martial and the prosecutors,” Mr Naluwairo wrote in his paper titled The Development of Uganda’s Military Justice System and the Right to a Fair Trial: Old Wine in New Bottles’, adding, “Inconsistent with the right to a fair trial, the High Command – a non-judicial body – was given the power to vary decisions of the court-martial.”
The Ugandan Parliament passed the UPDF Act in 2005. The legislation gives a framework for the military courts to operate. Just like Amin’s military tribunals, the UPDF Act didn’t insulate civilians from being prosecuted within military courts or restrict trials of civilians in the military courts.
Under Section 179 of the UPDF Act 2005, any person subject to military law who commits a service offence can be tried by a military court. Under Section 119 of the same law, persons subject to military law include civilians who serve in the position of an officer or militant in any force raised and maintained outside Uganda and commanded by an officer of the defence forces; who voluntarily accompany any unit or other element of the defence forces, which is on service in any place; who serve in the defence forces under engagements by which they agree to be subject to military law; who aid or abet a person subject to military law in commission of a service offence; and everyone found in unlawful possession of arms, ammunitions or equipment ordinarily being the monopoly of the defence forces or other classified stores as prescribed. Every person who commits a service offence while subject to military law is also liable to be charged and tried by military tribunals, notwithstanding that they have ceased to be subject to military law since the commission of the offence.
In an attempt to ensure all Uganda’s military courts are legally competent, Section 202 (b) of the UPDF Act 2005 provides that at any proceeding of the court-martial, there must be an advocate. In case of a Unit Disciplinary Committee, a para-legal to advise the court during its proceedings on issues of law and procedure is a must.
During the parliamentary debates prior to the enactment of the UPDF Act 2005 and its precursor – the UPDF Act 1992, some lawmakers contended that such a provision would suffice to make Uganda‘s military courts legally competent.
“It is submitted that in Uganda’s circumstances, the mere presence of an advocate at the court martial to advise the court on issues of law and procedure is not sufficient to fulfil the requirement of ensuring that military tribunals are legally competent. First of all, the advocates are not members of the court and do not participate in the deliberations on the findings of the court, nor do they take part in the sentencing,” Mr Naluwairo says, adding, “Secondly, not all military tribunals have advocates to advise them on issues of law and procedure. There is, for instance, no provision for advocates to advise a summary trial authority on issues of law and procedure. In fact, the UPDF Act expressly provides that “there shall be no legal officer at a summary trial.”
To make matters worse, in practice, advocates are infrequently appointed to the military courts. The defence put up by Amama Mbabazi when he ran the rule over the Defence docket at the time was against having legally qualified persons as members of military tribunals. It was argued that, save at the Court Martial Appeal Court, issues of law rarely arise in the proceedings before the other military tribunals.
“In most of the levels of trial courts, it is a question of establishing facts whether people did it or did not do it,”Mr Mbabazi said, adding, “We do not really need professional lawyers to do that.”
Yet the members of military courts who would have filled the legal competence absence of the military tribunals are generally not required to be legally competent. Other than the Court Martial Appeal Court where it is mandatory that the chairperson should be an advocate qualified for appointment as a judge of the High Court of Uganda, and that the court should be composed of two other advocates among other members, there is no legal requirement that members of military tribunals in Uganda should have appropriate legal training.
“So how can you take civilians to such tribunals?” Mr Eron Kiiza, who has represented several opposition activists in the military courts across the country, wondered.
It’s a question that has a rich resonance for Mr Buwembo.
Civilian courts are capable
Ugandan civilian courts have, for instance, shown the capacity to manage highly sensitive cases. Take the trial of 13 men who were accused of being the masterminds of the 2010 Kampala twin bombings. Despite being accused of being in possession of explosives and carrying out an operation that led to the death of more than 70 people, the State didn’t charge them at the court martial. They were instead arraigned before the International Crimes Division (ICD).
In the end, the presiding judge Alphonse Owiny-Dollo handed down sentences ranging from life in prison, 50 years, and community service to eight of the men, while five were acquitted.
Despite the civilian courts exhibiting credibility in handling such sensitive cases, the Museveni administration prefers to put military courts at the heart of a number of judicial processes. This certainly was the case in the early 2000s when the President ordered an operation codenamed Wembley headed by then Col Elly Kayanja.
When the operation stood accused of carrying out extra-judicial killings, Mr Museveni came to its defence. He reasoned that the operation was necessary, thanks to the ineptitude of the police and Judiciary.
“The robbers, the police, and the Judiciary were related just like the palate and the tongue. The police would make the statements poorly and the thirsty magistrates would release the robbers to continue terrorising people,” Mr Museveni said.
During the 2010 State-of-the-Nation Address, the President expanded his narrative by saying corruption cases involving civilians be brought before the court martial instead of civilian courts.
He opined thus: “…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.”
Whereas Mr Museveni, much like Amin, has a lot of confidence in military courts in trying civilians, many observers have expressed their doubts about their legal competence to determine cases in a manner that’s acceptable by the Constitution, as well as international legal frameworks that Uganda is a party to.