TRYING CIVILIANS IN THE COURT MARTIAL: A LOOK INTO THE CASE OF KABAZIGURUKA VS A.G CONST. PETITION.

Following a post shared on his LinkedIn account, Mutanda Abubaker which is similarly reflected on his blog THE MATANDA SPACES, Counsel Mutanda Abubaker shares his insights on the recent decision of the constitutional case of KABAZIGURUKA VS A.G CONST. PETITION NO. 46 OF 2016

The post which is titled,

"TRYING CIVILIANS IN THE COURT MARTIAL: A SIMPLE EXPLANATION OF THE DECISION OF THE CONSTITUTIONAL COURT IN KABAZIGURUKA VS A.G CONST. PETITION NO. 46 OF 2016"

and was posted on July 18, 202, goes as follows,

"Security must not be used as a tool to settle political questions, but have congenial relations with all."

In this photo, the writer as Guild President IUIU, led a team of student leaders to have an interaction with the leadership of Gaddafi barracks and military school in Jinja under the auspices of the patriotism Club.

A few weeks ago, the Constitutional Court handed down a decision with a majority declaring the trial of civilians in the Court martial unconstitutional. Government has since appealed this decision in the Supreme Court, and secured a stay.

The judgment that is a few pages over 100 was widely distributed on social media, and one would hope that whoever was interested read it. Knowing how legalistic judgments can be, and our literacy challenges however, (hides face) coupled with the stress of the lockdown, it appears many did not have the opportunity to understand the reasoning of the Justices. As a human rights lawyer who was excited with the decision, I have therefore summarized what the majority decision was and its basis in simple less technical terms.

DECISION

The decision in short is that civilians cannot, and should not be tried in the Court martial. Further, that only soldiers are subject to the Court martial for service offences. As such criminal offences should be tried in civil Courts for all (including soldiers) as the Court martial does not have jurisdiction/power beyond service offences.

REASONING

The reasons the Justices advanced for holding as such were principally;

That the Constitutional provision under which the UPDF Act (that creates the Court martial) was enacted does not bring civilians under the authority of the Act/Court martial. The said Article 210 of the 1995 Constitution of the Republic of Uganda provides that;

“Parliament shall make laws regulating the Uganda Peoples’ Defence Forces and, in particular, providing for—

(a) the organs and structures of the Uganda Peoples’ Defence Forces;

(b) recruitment, appointment, promotion, discipline and removal of members of the Uganda Peoples’ Defence Forces and ensuring that members of the Uganda Peoples’ Defence Forces are recruited from every district of Uganda;

(c) terms and conditions of service of members of the Uganda Peoples’ Defence Forces; and

(d) the deployment of troops outside Uganda.”

This is the Article upon which parliament based to make the UPDF Act that creates the Court martial, and a thorough reading of that Article reveals that the framers did not foresee civilians being brought under the purview of such regulation.

What the Article reveals however (according to the Justices and I agree) is that the Court martial is a tribunal to regulate the conduct of soldiers for service offences. This is in the way among others; the law council regulates lawyers, and the Uganda Police professional standards unit regulates the conduct of police officers.

Imagine the law Council subjecting a none Advocate to its jurisdiction or a Police Officer being tried for a criminal offence before the professional standards unit!

The second thread of reasoning was that the Court martial does not pass the tests of independence and capacity to offer a fair hearing (as contemplated by the Constitution) to those brought before it. The Justices raised the following premises to support that finding;

a) The nature of appointment and administration of the Court, the nature of the oath taken by officers of the Court martial that is different from that of Judges where, whereas Judges swear to uphold the Constitution, military officers swear to bear allegiance to the commander in chief, the lack of security of tenure for the Judges in the Court martial that do not allow them to act independently among others.

The court martial in fact, the Justices ruled, is a part of the Executive, just as the prosecution is. Hearing criminal cases therefore means the Executive is a prosecutor and Judge in its own case which, in the wisdom of the Justices of the Constitutional Court does not pass the test of independence.

Perhaps extracts from the horses’ mouths may summarize the decision better.

Kasule Ag. JCC

“The beginning of the preamble to the Constitution of Uganda is to the effect that; –

WE THE PEOPLE OF UGANDA:

RECALLING our history which has been characterized by political and constitutional instability;….”

It is a fact of Uganda’s history, both past and recent, that the political and constitutional instability that is the subject of “Recalling” has been due to the army and those others, armed at the material time, overthrowing the Constitution and relying on military power to govern suppressing the civil authorities.

While the positive role of the military in the country’s affairs of ensuring peace and safety in the country ought to be recognized, appreciated encouraged and protected, this role must always have its origin and be carried out in strict compliance with the Constitution. This must be so, so that every citizen of Uganda, whatever the status, or standing in the country, does not repeat the evil of the past history of this country whereby the army acted contrary to discipline, terrorized the citizenry by violating the people’s basic rights and freedoms.

The military must enforce military discipline to those serving under the military establishment and must do so in strict compliance with the Constitution. In all other situations of governance, the military must subject itself to the civil authorities and not subject civilians to the military judicial system that is not independent and impartial.”

Obura JCC

“The respective laws (for lawyers, police, accountants, architects, medical and dental practitioners) established these specialized disciplinary courts, tribunals, committees or councils restricted their functions to handling of disciplinary matters that are peculiar to their disciplines/professions. The membership of these specialized bodies are therefore drawn from members of the profession who know the rules of their trade. They need not be lawyers or Judges because they handle purely disciplinary and other matters that relate to their profession.

I am of the firm view that the Constituent Assembly which made the Constitution had in mind that kind of arrangement when they gave parliament the mandate to make laws regulating the discipline of the UPDF among other things. I do not think they intended that the disciplinary court established under the laws made by parliament would have such wide mandates as to hear all offences under the Penal Code Act and any other enactment in force.

By so saying, I am by no means undermining or downplaying the key role the military plays in our national security and the need for strict enforcement of discipline in its rank and file. I am very much aware of our history of undisciplined military men who terrorized the citizens of this nation and caused the death of many just as I am also aware of the gross abuse of excessive powers of military tribunals which was used to solve political issues through tramped up charges, mock trials, condemnation of the innocent and their public execution during the dark days of our history.

Both history left this country with scars that cannot be forgotten and so they must be guarded against. It is the duty of this Court to enforce provisions of the Constitution and ensure that the fundamental rights and freedoms enshrined therein are enhanced and protected. I am convinced that military can effectively handle matters to do with discipline of persons subject to military law and reserve other criminal offences under the Penal Code Act and other enactments for the civil Courts to handle without compromising our national security.”

Kakuru JCC

“Let me add if I may that, ordinarily members of the military in this country are tried by civilian Courts for non-service offences. In Uganda Vs Hussein & 12 others CC No. 0001 of 2010 non Ugandan terrorists were tried and convicted on a number of offences under the Anti-Terrorism Act but a civilian Court. Over 60 innocent people had been killed while watching world football cup finals peacefully in a playground. They were not tried by the Court martial.

"…one would have to question why Uganda Vs Thomas Kweyoro H.CCC 10 of 2011 the proceedings were instituted in civilian Courts while the petitioner herein is before the Court martial. Kwoyoro is facing 93 criminal charges in respect of war crimes and crimes against humanity emanating from his role as a top LRA commander for over 20 years. I have not been able to find the rationale…If there is, such a reason is unjustified and unconstitutional.”

Yes, you read it from the Justices.

With all honesty, I have always thought that the position stated by the Justices is a no brainer. That we have to debate it, go through appeals and this entire hullabaloo says a lot about our status and commitment to a democratic society."

For the full decision, send request to matandaah@gmail.com

To see more his wonderful posts follow through on his blog https://thematandashrine.wordpress.com/.

Waboga David.