KAMPALA INTERNATIONAL UNIVERSITY

THE ROLE OF COURTS -MARTIAL IN THE ADMINISTRATION OF

JUSTICE IN UGANDA- A CASE STUDY OF THE UPDF COURTS- MARTIAL

BY

VI CENT NSUBUGA

LLB/10195/81illU

SUPERVISOR

MR OGWAL SAMUEL

DISSERTATION SUBMITTED TO THE SCHOOL OF LAW IN PARTIAL

FULFILLMENT OF THE REQUIREMENTS FOR THE A WARD OF THE

BACHELOR OF LAWS DEGREE OF KAMPALA

INTERNATIONAL UNIVERSITY

AUGUST2016

DEDICATION

This dissertation is dedicated to my parents, the late Daudi Luka Malengezi and ' !

Mrs. Catherine Kazebukyeye Malengezi.

Further dedicated to my dear wife Nalongo Nakidde Betty, children Virgo, Victor,

Vivian and Victoria.

ACKNOWLEDGMENT

I would like to thank my supervisor Mr Ogwal Samuel who has unreservedly

guided me all through so that I produce this dissertation.

I would also like to thank Col. Wasswa and Col Felix Kulaigye who appreciated

my desire to acquire legal knowledge and afforded me the requisite environment to

achieve my childhood dream of being a learned friend.

Special thanks to Mr. Jean Bosco Berege for his brotherly heart and financial

contribution towards completion of this course, not to forget my Friends Brenda

Nyapidi, Asaph Ntanda, Jackson and Justine Mufunbya who have been very

helpful in my academic life.

Once again, in a special way, I would like to thank my dear wife, children, Saul,

Fred and nephews- Dr. Tony Mubiru and Jude for their Love and care during my

entire time in the law school.

ii

DECLARATION

I, Nsubuga Vicent, hereby declare that the dissertation entitled the role of courts I

martial in the administration of justice in Uganda- A case study of the UPDF

Courts-Martial is a result of my own research and that it has not been submitted

in part or in full for my other degree or to any other university.

Signature.~.

])hi~ ~(k< Date ... .... ... ...................... .

iii

SUPERVISORS'S DECLARATION

I Ogwal Samuel, hereby declare that this dissertation is the original work of

Nsubuga Vicent, accomplished under my supervision.

~~~~ •••• !"':' "'l-: : ... ~ .... • ................ .................... . OGW AL SAMUEL

Date: ... t~J .. t".). ~~!.~ ..................... ·

iv

liST OF ACRONYMS

UPDF Uganda People's Defense Force

GCM General Court Martial

ULS Uganda Law Society

ere Commander In Chief

BN Battalion

FCM Field Court Martial

AG Attorney General

DIV Division

UDC Unit Disciplinary Committee

NCO Non Commissioned Officer

CMAC Court Martial Appeal Court

v

TABLE OF CONTENTS

DEDICATION ............................................................................................................ i

ACKNOWLEDGEMENT ...................................................•.......................................... ii

DECLARATION ........................................................................................................ iii

SUPERVISOR'S DECLARATION ................................................................................. iv

LIST OF ACRONYMS ................................................................................................. v

TABLE OF CONTENTS ............................................................................................. vi

CHAPTER ONE ···································i·······.···························································1 ! I

1.0 Introduction ....................................................................................................... 1

1.1 Back ground ...................................................................................................... 1

1.2 Statement of the problem ................................................................................... 4

1.3 Research questions ............................................................................................ 5

1.4 Objectives of Research ....................................................................................... 5

1.5 Specific objectives .............................................................................................. 5

1.6 Justification of the study ..................................................................................... 5

1. 7 Research methodology ....................................................................................... 6

1.8 Review of the relevant literature .......................................................................... 6

CHAPTER TWO ....................... ~ ......... J ...... ; ............ , ......................................... 11

COURT MARTIAL HIERRACHY AND JURISDICTION IN THE UPDF ................. 11

2.0 Introduction ..................................................................................................... 11 2.1 Unit disciplinary committee ............................................................................... 12

2.2 The division court martial. ................................................................................. 12

2.3 General court martial ........................................................................................ 13

2.4 Court martial appeals court ............................................................................... 14

2.5 Field court martial ............................................................................................ 14

CHAPTER THREE ............................................................................................ 16

CHALLENGES IN THE ADMINISTRATION OF JUSTICE BY COURTS MARTIAL IN I

UPDF ................................................. 1

••••••••••••••••••• ~ ••••••••••••••••••••••••••••••••••••••••• 16

3.0 Introduction ..................................................................................................... 16

vi

3.1 Perception challenge ........................................................................................ 16

3.2 Legal challenges ............................................................................................... 20

CHAPTER FOUR .............................................................................................. 24

SUMMARY OF KEY FINDINGS ........................................................................ 24

4.0 Summary of key findings .................................................................................. 24

CHAPTER FIVE ............................................................................................... 26

5.0 Recommendations ........................... j ................................................................. 26 , I

BIBLIOGRAPHY ...................................................................................................... 28

vii

CHAPTER ONE

1.0 Introduction

The role of courts martial in the administration of the justice in Uganda has

overtime been a subject of considerable controversy. The people's controversial

perceptions greatly inclines on the peculiarity of the way the military as an

institution perceives justice visa-vi th~ uniqueness 1 of military operations, and on

the other hand, what law scholars and the general public ordinarily consider

what entails dispensation of justice to be.

The issues of controversy have mainly resolved around the respect of the rule of

law and fundamental human rights, in particular the right of a fair and just trial.

However, it's pertinent to consider the historical background of courts-martial

and the essence of the foundation of such courts in order to fully understand the

role they play in the administration of justice1

1.1 Back ground 1

Trial of military personnel accused o'f service off~nces is almost as old as the

institution of the army itself. For instance, in United Kingdom (UK), regulation of

the discipline of the army dates back to the year 1279 through the statute of

Edward in 12792•

It was enacted that by virtue of royal prerogative, the sovereign of England has

a right to command all the military forces of the nation. The royal prerogative

also accorded the crown the power to regulate and discipline the army.

The crown's jurisdiction over military offences was exclusive, but its jurisdiction

over civil offences convicted t:>y the ~oldiers was coordinated with that of civil , I

courts.

1 http://www.Stephen.stratford.co.UK/history.eom.htms 2 1bid

1

Military law was administered in the court of the constable and marshal. The

constable was the commander and the Marshal was the second in command of

the king's armies. At a later period, the rules and ordinances became known as

articles of war. These set out a number of purely military offenses to wit;

disobedience/ cowardice and desertion.

The principal punishment prescribed were death1 mutilation flogging or forfeiture ! I

of possessions.

By the 17th century/ military courts began to adopt a set of procedures.

Then/ they were of two kinds/ to wit; the general/high and regimental/law.

The general court had a wide authority and could try officers and soldiers of any

rank. It was advised on the matters of law by the judge advocate/ a civilian who

was usually a professional lawyer. The regimental court was a lesser standing/ it

received no legal guidance and could try only officers below the rank of a major.

At the outbreak of World War I in /19141 there were four different types of I

courts-martial in the British army to wit;

The regimental court whose composition was a minimum of three members who

usually belonged to the same unit as the accused/ and the court had jurisdiction

to try only other ranks but not officers and a warrant officers.

District court martial was composed of a minimum of three members/ but at

least one of whom must have been serving in a different unit to that of the

accused and had jurisdiction to try all soldiers other than commissioned officer.

General court martial was composed 9f a minimum number of four members and

maximum of nine members and therE! was a requirement that no member of the

court would be serving in the same unit1 as the accused. This court had

jurisdiction to try officers and soldiers of any rank and could pass any sentence

including the death sentence.

2

Lastly was the field court martial. This was composed of three members, a

minimum of two. It had jurisdiction of the general court martial, but could only

be convened if the ·accused was on active service and therefore was not

practicable to try him in other military courts. During the four year world war I,

this court passed a total of 3,000 dea~h surfaces, but it is crucial to note that out

of those death sentences, only l1% vJere ~onfirme'd by superior authorities3.

Apart from the fact that regimental courts were allowed in 1920, the basic

structure of military courts has remained unaltered.

The procedure during trial is now identical to that of civil criminal courts, but it is

paramount to note that courts martial in United Kingdom like civilian courts to no

longer sentence offenders to death penalty4•

In Uganda, courts martial system of justice is traced back in the early days of

colonialism when the British Jaws and practices started operating in Uganda5.

British East Africa which included Kknya; Ugand~, Nyasaland and Tanganyika

was where the king's African Riffles performed both military and internal security

functions and later served outside these territories during the world wars. The

rank and file were drawn from the natural inhabitants, whereas most of the

officers were seconded from the British army. Uganda in particular was under

the 4th battalion and sth battalion.

In post independent Uganda, courts martial involvement in the administration of

justice picked momentum during the regime of presidency Idi Amin Dada and

especially after the passing of the Trial by military tribunal's decree in 19736•

3 Ibid 4 5.15(2) of the rights Act 1998 5 5. 15(2) of the 1902 O.I.C 6 Decree no 12 of 1973. The decree was enacted and passed by Gen ldi Am in as the president and legislature of the republic of Uganda on 24'h June 1973. It gave powers to the defence council to appoint as a military tribunal. 5.4 gave powers to the president to order trial of civilian by military tribunals where he was satisfied that their acts would bring government under concept.

3

Currently, the 1995 constitution of the republic of Uganda provides for Courts

Martial7, and the Uganda peoples defense forces Act 2005 (UPDF Act)8 and the

regulations there under provides for the administration of justice in the army.

1.2 Statement of the problem

UPDF courts martial play a vital role in the administration of justice in Uganda

through different levels of courts created by the UPDF Act9. These courts martial

have different rules of procedures that govern their operations which are

sometimes different from the rules in ordinary/civilian courts. For example courts

martial permit summary trials and sentencing as well as the peculiar nature of

the proceedings in the field court martial 10• The aforementioned peculiarity in the

rules of courts martial visavi their counterpart civil courts has always been a

centre of controversy- to wit; many scholars have pointed out that the trial

process in the courts martial falls s~ort of the tenets of a fair trial yet it's the

bedrock and a foundation of justice i~ any justice! system.

The constitution of Uganda recognizes the right to a fair trial and classifies it

among the Non derrogable rights11.

However, despite the aforementioned view, majorly the scholars and other

civilian population, the government and military in general have held their

ground in justifying the necessity of such a peculiar procedure of courts martial

in the administration of justice specifically for purposes of enforcing discipline ,

speed and efficiency which tenets are notoriously known in all militaries the

world over. This research therefore seeks to investigate the role of courts martial I .

in the administration of justice in 1the UPDF,' establish the rationalization,

strength, and loopholes embedded therein

7 Article 129 (1) and article 210 8

UPDF Act 2005 9 Part VIIi UPDF Act 2005 10 S. 191 and 200of the UPDF Act 11 Article 28 (1) & 44 (c)

4

and give the necessary

recommendations for the improvement in the way courts martial dispense

justice.

1.3 Research questions I

i. Whether UPDF courts martial follow the established legal principles while

dispensing justice.

ii. Whether the UPDF courts martial respect human rights while dispensing

justice

iii. What are the weaknesses in the courts martial system of UPDF.

iv. What are the areas of reform in the dispensation of justice by courts

martial of UPDF.

1.4 Objectives of Research

Major objective

The major aim of this research study is to identify the strength and weaknesses

of the UPDF courts martial with the view of providing recommendations for

enhancing their role in the administration of justice in Uganda.

1.5 Specific objectives

i. To have an in-depth understanding of the way courts martial administer

justice in Uganda.

ii. To establish the weaknesses within the courts martial in Uganda.

iii. To highlight areas for reforms ih the courts 71artial in Uganda.

iv. To propose appropriate recommendations.

1.6 Justification of the study

The role of military in maintaining national peace and security, and defending

Uganda's sovereignty can not be underestimated. In executing their duties

however, the army has sometimes fallen short of the people's expectations.

5

Antecedents of Uganda's militaries show that they have engaged in human rights

violations on top of other service offences. Perpetrators of such have always

been brought to book i.e. Courts mabal to ensure that discipline prevails within ' !

the army.

It is pertinent to note however that in the course of administering justice, courts

martial like civilian courts, are obliged to adhere to the critical tenets of the rule

of law, in particular, presiding over fair trials as stipulated by the constitution 12

and other international benchmarks in the administration of justice. The extent,

to which the aforementioned tenets are adhered to, is the justification why this

research study has been undertaken.

1.7 Research methodology.

The research basically applied qualitative redearch methodology, though

quantitative methods were applied to a small extent in the data collection

process. The research applied a desk research of the literature in this field.

Both primary and secondary data was used in the study; Primary data included

literature in libraries on courts martial. In the same light, secondary data

collected from the internet and materials for libraries was also used.

1.8 Review of the relevant literature

The topic on the role of courts marti,l in the administration of justice in Uganda

is not new in Uganda's literature. However it shbuld be noted that there has

been no comprehensive study on the same. The available literature is in form of

news paper articles, a few papers authored by scholars and human rights

reports, all of which throw limited insight on the topic.

12 1995 constitution of Uganda

6

First and foremost among the scholars who have attempted to contribute to this

literature is Dr. Ronald Naluwairo13 . 1

He points out that the role of courts martial in the administration of justice is a

subject to considerable controversy revolving around the respect of the rule of

law and fundamental human rights, in particular, a right to a fair trial.

He points out that no dispensation of justice can be talked about when the

bedrock and fountain of justice, to wit, right to a fair trial is questionable in any

system.

He refers to the provisions of the constitution of the republic of Uganda (1995)

!

where a right to a fair trial is among the non derogable rights. . I .

Good enough, Dr. Ronald Naluwairo in his paper, acknowledges the fact that

there has never been a comprehensive study on dispensation of justice in the

Uganda military. This assertion justifies the need of the study which will certainly

give more insight on the subject.

As the author discusses further, the issue of fair trial in courts - martial, GCM in

particular, he referred to the trial of Besigye and 22 others who were charged

with the offence of terrorism and unlawful possession of fire arms. The offence

of terrorism is created under Anti-terrorism Act 2002, and the Act specifically

provides that such offence is only tria?Je by the high court14 .

I (

The author further refers to the ULS constitutional petition against AG15 where

the court held inter alia that, the court did not have jurisdiction to try the offence

of terrorism. And specifically points out the ruling of Justice Constance

Byamugisha who explained that the court that has no jurisdiction cannot be said

to accord the accused a fair trial.

13 Trials and tribulations of Rtd. Col. Dr. Kiiza Besigye & 22 others: October, 2006 14 5:6 of the Anti-terrorism Act 2002 15 UL5 VAG (constitutional petition no 18 of 2005

7

He further reveals in his paper .that tHe GCM is not a competent court because it , I

is presided over by incompetent judicial officers, yet this has a dire effect on the

crucial tenet of a fair trial. He hinges his argument on the fact that there is no

provision requiring officers of the court including the chairperson to have legal

training or background although there is a provision of the judge advocates to

advise court on matters of law and procedure, but the advocate is not a member

of court and doesn't take part in decision making.

Further the author discussed in detail a crucial element of a fair tri~l in GCM to

wit, its independence and impartiality. He contends that impartiality refers to the

state of mind or attitudes of the tribural in relation to the issues and the parties

in a particular case, where as judicia'! independerice connotes not only state of

mind or attitude in the actual exercise of judicial functions, but also a status or

relationship to others - particularly influence from the executive branch of

government. He avers that the GCM members are appointed by the executive

high command which is headed by the C.I.C, that there is no sufficient

institutional independence of the court from the military hierarchy and from the

executive due to the fact that members of the court are serving military officers

in the army and therefore, operate under the chain of command.

To sum it all, Dr. Ronald Naluwairo's paper analyses dispensation of justice and

strictly within the general court mar~ial in Ugandp, his paper leaves out many

issues of concern and which explain the history of establishment of courts martial

system un answered. He rather focuses only on the GCM, yet there are several

levels of courts martial below and above the GCM which I would wish to explore

more, hence the relevancy of this study.

On reviewing further literature on the research topic, I came across the East

African journal of peace and human rights where Dr. Ononia Henry authored a

8

I periodical Article titled -soldering and constitutional rights in Uganda, a case

study on the Kotido military executions16

In his article, He analyzed the constitutionality of execution of the two soldiers

attached to "B" company of the 67thsn of the Uganda peoples defense forces

who were executed by a firing squad for allegedly killing one Fr. Declan O'toole

and two other persons in karamoja in North Eastern Uganda on 21st march 2002.

The soldiers were publicly executed on 25th March 2002 after a trial of less than

three hours before a field court martial which found them guilty of the triple

murder. Following the executions th1re was an outcry from such organizations

like the HRC and Amnesty institutional at the hurried nature of the trial and

executions as well as the legality of the FCM and the death penalty.

He avers that military courts are required to apply the rules of procedure and

evidence in the manner that approximates those of proceedings before civilian

courts.

He critically looked at what he termed as a thread of evidence that was educed

to arrive at the conviction of the suspects.

He further argued that jurisdiction of FCM and its operations is limited to war

situations and military operation ~nd ·in that 1

regard, he considered the

circumstances where the two soldiers were tried not adequate enough to qualify

to circumstances of a war situation.

However, its important to note that Dr. Henry Onaria's Article limited its

coverage on the dispensation of justice in the UPDF only to the FCM, criticizing

its peculiar rules and operations, yet neglecting the fact that there are several

other courts martial in the military justice system and not putting into

consideration the history that led to establishment of the FCM and the peculiar

procedures ancillary to it and the military justice system of the world over. This

16 Soldering and constitutional rights in Uganda. T~e kotido military executions-published in 2003 by Dr. Henry Onaria (vol 9, issue 1 pages 87-114)

9

research intends to explore more into the aforementioned and hence its

justification.

A few other articles to wit - olandason Wanyara17 narrate the trial of a civilian in

third Div court martial and later sentencing her to death for having killed her

soldier husband. But most of these articles do not analyze the legal issues behind

the trial itself.

Human rights watch published a report18 containing the military courts trying

civilians. Its report mainly was f~unded on the lack of jurisdiction and

competence by courts martial to try civilians to lwit - accused of committing

violent crimes and arrested in the operation code named wenbley19 as well as

Civilians arrested with fire arms in the karamoja disarmament operation. The

report cited the findings of the Supreme Court in the appeal by the AG in 200620

where court unanimously barred the courts martial from trial of civilians.

However, its evident that this report concentrated only on one aspect of the

courts martial to wit;- their jurisdiction, several other pertinent legal issues

pertaining courts martial roles in the administration of justice in the UPDF were

left out thus justification of this study.

1

17 The new vision 16th Sept 2010-army surfaces with to death at Bibia 18 Righting military injustice addressing Uganda's I . 19 Unlawful prosecutions of civilians in military co6rts created by tHe president in June 2002 20 AG V ULS constitutional appeal No.1 of 2006

10

CHAPTER TWO

COURT MARTIAL HIERRACHY AND JURISDICTION IN THE UPDF

2.0 Introduction

This chapter gives an insight in the 9perations of courts martial in the UPDF. It

gives, in a detailed manner the different courts martial that there is in the UPDF

their composition and jurisdiction in the exercise of their judicial mandates.

According to national objectives and directive principles of state policy embedded

in the 1995 constitution 21 , all organs of state and people of Uganda shall wok

towards the promotion of national unity peace and stability. National objectives

IV is to effect that the state and citizens of Uganda shall at all times defend the

independence, sovereignty and territorial integrity of Uganda. The supreme law

of Uganda mandates the UPDF to ensure that such national objectives are a

reality. In that regard, Article 208 of the 1995 constitution creates the UPDF, 209

enumerates its functions and article ~10 provides pn how UPDF shall be kept in

the path of discipline while executing its constitutional mandate.

Resulting therefrom, the UPDF Act 2005 was enacted with a cardinal purpose of

regulating among others on how discipline shall be enforced on to the service

men thereby creating service offences, sanctions against them, and above all

creating courts at different levels of the army with different compositions and

jurisdictions.

21 The 1995 constitution of the republic of Uganda

11

2.1 Unit disciplinary committee

The lowest in hierarchy of military courts is the unit disciplinary committees. It is

established by the provision of S. 195 of the UPDF Act22 .

S. 195 of the Act provides that there shall be a unit disciplinary committee for

each unit of the defense forces which shall consist of a chairperson who shall

not be below the rank of captain, the administrative officer of the unit, the

regiment sergeant major or compa1y sergeant major of the unit two junior

officers and one private. I

All the seven members listed above; do not have to be present in order to

constitute court. Sub-section 2 of S. 195 of the UPDF Act provides that the

quorum of the unit disciplinary committee shall be five members including the

chairperson.

The UDC has jurisdiction to try any person for any non capital offence23, and it is

also within the UDC's jurisdiction to impose any sentence authorized by law. A

party aggrieved by the decision of the UDC can appeal its decision of the GCM24

or petition the DCM for revision of the! dedsion of the UDC. . \

2.2 The division court martial

s. 194 of the UPDF Act is to effect that there shall be to each division or

equivalent formation of the defense force a division court martial. It is composed

of seven (07) members who are, the chairperson who shall not be below the

rank of a major, two senior officers, two junior officers, apolitical commissioner

and one NCO. All these members are appointed by the high court and their

tenure of office is one year, but eligible for re-appointment25•

22 UPDF Act 2005

23 S. 195 (3) of the UPDF Act 2005 24 5. 227 of the UPDF Act 2005 25 5. 247 of the UPDF Act 2005

12

The DCM has unlimited original jurisdiction to try all service offences under the

UPDF Act and to pass any sentence authorized by law.

In addition to the designated members of the court as provided in S. 194, this

court has other staffs, to wit; the secretary who is mandated to record the

proceedings of the court. A judge advocate who advises court during its

proceedings on the law and procedures and a prosecutor26• Regulation 76 of the

! I UPDF rules of procedures provide for a defending officer to the accused in case

of trial of capital offences or an advocate for the defense of the accused before

court27•

2.3 General court martial

The GCM is established by S. 197 of the UPDF Act, it consists of chairperson, two

senior officers, two junior officers, a political commissar and one non

commissioned officer. The chairperson must not be below the rank of Lt Colonel.

The Act also is to the effect that the high command shall appoint such number of

reserve members as it may decide to sit on the court, any of whom may be

called upon to sit as a member of the court for the purpose of constituting a full

court or of realizing quorum .

When trying the accused person for a capital offence, all members of the court

are required to be present, but in any other case, the quorum is five (05)28 •

Decisions of court are by majority opinion and when a decision is reached, it's

biding on all members of the court2~. S. 201 (2~ makes it an offence for any

265. 198 (a) 27 S. 2002 28 S. 198 (c) 29 Section 201 (1)

13

member who takes part in the proceedings of court martial and later

disassociates him or her from the decision of court.

The jurisdiction of GCM is provided for under S. 198 of the UPDF Act to the effect

that the GCM shall have unlimited original jurisdiction under this Act, and shall

have and determine all appeals refer1ed to it from decisions of DCM and UDCS.

The GCM shall have revisionary powers in respect of any finding, sentence or

order made or imposed by any summary trial authority or UDC.

2.4 Court martial appeals court

This court is a creature of S. 199 of the UPDF Act. It consists of the chairperson

who shall be an advocate qualified for appointment as a judge of the high court

of Uganda, two senior officers of the defence forces and two advocates who are

members of the defense forces.

There shall be a registrar of the CMAC who shall be a legally qualified person · 3o I ·

appointed by the high command . ' 1

The quorum of the court shall be five (OS) when considering an appeal involving

a sentence of death and three (03) in any other cases31•

The CMAC is the highest court in the hierarchy of courts martial. It is strictly an

appellate court which hears and determines appeals from person who have been

tried and convicted by the GCM

2.5 Field court martial

The UPDF Act provides for a special fourt called the field court martial32, which

shall consist of the field commander of the operation as the chairperson and

30 5. 199(3) 31 5. 199 (4) 32 5. 200

14

eight (08) other members appointed in writing by the deploying authority before

departure.

Provision of S. 20333 make such members to wit ; the prosecutor, witness for the

prosecution, provost officer, and any person who prior to the proceedings of the

court participated in the investigatiorls of the ca~e against the person charged

ineligible to serve on the field court martial.

The FCM has jurisdiction to try all service offices and pass any sentence

authorized by law including the death sentence. Decisions of field court martial

are not appealable to any cou~4 •

S. 200(2)/5is to the effect that the FCM shall only operate in circumstances

where it is impracticable for the offender to be tried by the UDC or DCM.

33 The UPDF Act 2005

34 S. 227 (1)

35 The UPDF Act 2005

15

CHAPTER THREE

CHALLENGES IN THE ADMINISTRATION OF JUSTICE BY COURTS

MARTIAL IN UPDF

3.0 Introduction

Administration of justice in courts martial In UPDF is faced with a multiplicity of

challenges ranging from legal challenges to mere perceptions from the society.

This chapter transverses the legal and extra legal challenges affecting

dispensation of justice by courts martial in Uganda.

3.1 Perception challenge

Administration of justice in the military has been a subject of considerable

discussion in Uganda more so among the scholars and the general public. But it

should be noted that such misconcep~ions regarding the way justice is dispensed

in the military in not only controversi~l in the public and civilian eye here locally,

but even globally.

Societal misconception and criticism of the way justice is dispersed in the courts

martial is historical and rather confusing to society. This is basically grounded on

the fact that society is reluctant to recognize the peculiar nature of military

operations and the necessary discipline required to accomplish military tasks

visavi the ordinary criminal cord systems and procedure.

Modus operandi of field court martial

The expeditious nature with which thJ FCM operatys is one such case that brings

desperation of justice by the military in Uganda under spot light more so in the

eyes of the general public.

One of such scholars who have a negative view of the modus operandi of the

FCM is Dr. Onania Henry. He contends that the execution of the two soldiers

attached to "B" company of the 67Inf. Bn of UPDF who were executed after trial

16

before the FCM for having killed one Fr. Deec/ar OToole and two other persons

in karamoja in North Eastern Uganda on 21 march 2002 was unconstitutional.

He avers that the trial was so expeditious, suspects convicted on a thread of

evidence, and that the court ought tb have appliyd the rules of procedure and

evidence in a manner that approximates those of proceedings before civilian

courts.

Such perceptions mainly form the basis of criticisms hurled towards the modus

operandi of courts martial mainly the FCM. However, such perceptions need to

take note of the historical peculiar nature of military operations and the

respective service offences triable by military courts.

Historically, armies have been governed by military criminal codes, which did not

apply to society at large and they have used their own tribunals for the trial of

offences36• I

Domestically, the 1995 constitution of the republic of Uganda is to the effect that

the legislature should regulate the UPDF, in particular by providing for different

organizations and structures. Automatically this implies among other organs, the

military court37.

The UPDF Act38 was enacted in fulfillment of article 210 of the constitution. It

creates peculiar offences only limited to military related duties and are termed as

serviceoffences39•

Such distinction between military justice system and civil justice system are also

evident in other foreign legal jurisdi~tions, for ekample in constitution of the

United States of America (USA)40. It's provided that the congress shall have

36 w. winttrop.military law and precedents 2"d edition 1920 37 Article 210 1995 constitution 38 UPDF Act 2005 39 5. 2 UPDF Act 40 us constitution article 1 & 8

17

power to make rules.for the government and regulation of the land and naval

forces. This constitutional provision has been interpreted as authorizing the

enactment of a criminal code which applies only to the military and a creation of

a separate system of tribunals for the I trial of these1 offenses.

In the case of Uganda Jaw society and another V AG41 Justice Kavuma justified

the peculiar nature of courts martial when he held inter alia that, the existence of

a separate and a different courts systems for the military is pertinent for the

purposes of enforcing discipline and efficiency in the army and is central to the

aspiration of the people of Uganda and is supported by compelling reasons.

The historical and constitutional grounds for a separate military criminal code

and justice systems is buttressed by the practical necessity.

Criminal law in civilian society general;Jy has a preventive as well as rehabilitation ! !

function. It restricts anti-social behavior to enable people live together in

accepted social patterns. To the contraly, the successful accomplishment of

military missions requires more than prevention of anti-social behavior, but

rather, it requires absolute royalty and a commitment found in few other places

in society. This royalty and commitment are so important to the society as a

whole, that the critical law is used to make certain it exists. This resounds the

ruling of Justice Kavuma in ULS v AG42•

Military law has a motivating as well as preventive function; it not only must

deter improper conduct, but. also rust promote an attitude of respect to

authority and adherence to discipline.1 Discipline instills in a soldier willingness to

obey an order no matter how unpleasant or dangerous the task to be performed.

Discipline conditions the soldier to perform his duty even if it requires him to act

in a away that is highly inconsistent with his basic instinct for self preservation.

41 ULS & Ano.V AG 42 1 bid

18

Therefore, the need for discipline in the military justifies having separate justice

procedure because the military offences have no counter parts in civilian life.

In civilian life, for example, if an employee dis-obeys the instructions of the ' I

employer, or is absent from work, the potential consequences may be serious,

but not so serious to justify the imposition of criminal sanctions. The worker may

be fired, or some other sanction may be applied. How ever on the other hand,

the potantial consequence of disobedience of an order or absence from duty in

the military is so great that the criminal sanctions are too harsher and justified.

Inherent to the concept of discipline, and necessity for the accomplishment of

the military mission is the superior - subordinate's relationship. The

consequences of combat do not permit a plan of action to be debated where

decisions frequently must be madr on a split second basis, and where

disobedience of an order may result riot only to the danger to the individual who

disobeys, but also to the mission, military unit and ultimately to the nation, to

say nothing to his comrades whose very lives might depend on the proper

execution of an order.

Therefore in light to the insight on the special nature of military operations which

among others, the pertinent nature of always having military man power, such

an expeditious system of military justice to wit - the FCM must operate with

reasonable promptness, undue delay in the disposition of service cases is

harmful to the general operation of the army unlike to the counter- part civil

criminal system. I

19

3.2 Legal challenges

Powers of some courts martial haye been challenged to be offending the i .

provisions of the constitution of the republic of Uganda43 specifically the death

sentence from the field's court martial which is not appealable, is a great issue of

concern to the general society.

In the case of Uganda law society and another V the AG,44 the petitioners

contented that the immediate execution of the convicted two soldiers in total

disregard of article 22 (1) of the constitution of the republic of Uganda was as

un constitutional act by the FCM and deserved to be declared so. The article45

is to the effect that no person shall be deprived of life intentionally, except in

execution of a sentence passed in a fair trial by court of competent jurisdiction in

respect of a criminal offence under the laws of Uganda and the conviction and

sentence have been confirmed by the highest appellate court.

In defence to the petition, the respondents averred inter alia that articles 137

(5) and 121 (6) of the 1995 constitution of Uganda recognizes the special nature

of FCM and therefore, the flamers of the 1995 constitution of Uganda did not

intend that article 22 (1) of the constitution would apply to the field court

martial.

The aforementioned articles to wit; Article 137(8) is to the effect that the field

court martial in decisions are exempted from being referred to the constitutional . I .

court for interpretation and therefore connoting 1 that field courts martial are

special in nature from other courts, Whereas Article 121 of the constitution on

the prerogative of mercy, clause 6 excempts convictees of FCM from benefiting

from the prerogative of mercy by the president of the republic of Uganda.

So, in combination of the aforementioned Articles of the constitution of the

republic of Uganda, the respondents strongly averred that the FCM's activities did

"1995 constitution of the republic of Uganda 44 Constitutional petition No:2 & 8 of 2002 45 Article 22(1) of the constitution of the republic of Uganda

20

not offend the 1995 constitution. In the majority court holding, court held In a

lead judgment by justice Twinomuju~i to which three other justices concurred,

inter alia that, the fact that military courts are special courts and that in certain

aspects they need special provisions especially the FCM to enable them operate

effectively and efficiently, the constitutional court has no powers to bend the

constitution in order to accommodate special needs whether legitimate or not of

the army.

She cited article 2 (1) and (2) to emphasize the supremacy of the constitution, it

is important to note however that the foregoing decision over turned an earlier

decision of the same court in the matter of Uganda law society V AG

constitutional application No.7· of 20cl3 . In that tease, court held that the field

court martial is a special court which should not be bogged down by appeal

procedures.

Court further held that article 137 (5) of the constitution also recognizes the

special nature of field court martial in that if a question as to the interpretation

of a provision of the constitution arises in any proceedings before it, such a

question cannot be referred to the constitutional court for a decision.

Again by clause 6 of article 121 of the constitution, the provision is that Article

relating to the prerogative of mercy fo not apply to convictions and sentences

imposed by a field court martial. They held furthe~ that it's clear from the above

that the constitution itself regards a field court martial as a special court which is

only established to maintain law and order and military discipline in a field of

operation where to employ the normal courts structures would create problems

for the field commanders. Therefore parliament never intended Article 22(1) to

apply to field court martial.

21

I Another legal challenge in the administration of justice in the courts martial is in

regard to Article 28(3)46 visa-vi the administration of justice specifically by the

FCM.

Article 28(3) is to the effect that every person who is charged with a criminal

offence shall in case of any offence which carries a sentence of death or

imprisonment for life, be entitled to legal representation at the expense of the

state.

However practice has shown that the FCM operates in disregard of this

constitution requirement. Section 76 0f the rules of procedure47 provides for the ' !

prosecutor and defending officer and their duties and S. 77 provides for who

qualifies as an advocate or defending officer.

To the contrary in the case of Uganda law society and another V AG48• The lead

justice Twinomujuni observed thus ................ " A look at the proceedings of the

court martial will reveal that the accused were not even informed that they had a

right to legal representation. When the prosecution witnesses completed giving

evidence in the accused would be given opportunity to cross examine, but in

most cases, they had nothing to ask and yet the case had complex issues. This

gross contravention of Article 28 (3) I( e) of the constitution cannot be cured by

the fact that there was a military legal' officer present throughout the trial.

Too, in the periodical article released by Dr. Henry Onani49, he wrote

this; ........... "Even if it was to be presumed that captain Kagaro Asingura was a

legal officer in terms of sub-section (b) of S. 12 of the statute50, its clear as to

the role of such an officer and its primarily to sit and advise the court during its

proceedings on the law and procedure. In effect, legal representation in this case

46 The constitution of the republic of Uganda 1995 47 The UPDF (rules of procedure) regulation-statutory instrument 307-1 48 ULS & author VAG constitution petition no.2 of 2002 49 Soldiering an constitutional rights in Uganda: th1e kotido military executions 50 The 1992 NRA statute , I

22

is not to the accused soldiers. It can only be concluded that the right to legal

representation was not adequately guaranteed as is required under the provided

of the 1995 constitution".

So in conclusion of the a foregoing, this legal challenges in the administration of

justice especially by the FCM calls for serious attention because it touches the

gist of the underogable rights as provided by article 44 (c) of the 1995

constitution of Uganda.

23

CHAPTER FOUR

SUMMARY OF KEY FINDINGS

4.0 Summary of key findings

Historically, the armies of the world over have had a unique and peculiar justice

system separate from other criminal <[odes. Military criminal codes do not apply

to society at large. The existence of a 1separate and different court system for the

military is pertinent for the purposes of enforcing disciplines and efficiency in the

army.

The overall purpose of criminal law in civilian society should be viewed as

different from the purpose of military justice system. Where as the former has a

preventive as well a rehabilitative function, the later targets absolute royalty and

commitment.

Military law and justice system altogether targets deterrence of improper conduct

and promotes an attitude of . respe9t of authority and adherence of disciple.

Discipline, unlike in the general society, is pertirlent in the proper conduct of

military operations. a soldier must be willing to obey an order no matter how

unpleasant or dangerous the task to be performed. The afore going explains the

harsh sanctions in the UPDF Act 2005 so that soldiers are motivated and

prevented for falling short of the necessary discipline demanded by the tasks

assigned to the profession of soldering.

The special nature of FCM"s in such aspects to wit-the speedy nature in the

conduct of court process has been recognized by the courts of judicature in

Uganda. In the case of Uganda law society and another V AG, court noted how

pertinent discipline is required in the kccomplishm~nt of military tasks, emphasis

was put on the experience of combat situations where decisions must be made

on a split second basis and where disobedience of such decisions may be

24

disastrous to the individual who disobeys, the military unit to which he belongs

and to the entire safety of the nation.

However, the same court in the same matter emphasized that when considering

the requirement of a speedy trial in the FCMs, speed must be measured against

the requirement that the trial prostrates fairness as is envisaged in he 1995

constitution of the republic of Uganda I , I

25

CHAPTER FIVE

5.0 Recommendations

Harmonizing the UPDF Act with the constitution.

Article 2 of the constitution ofthe republic of Uganda makes it the supreme law i

of Uganda and it's to that effect that any law that is inconsistent with it shall be

void. S. 227 of the UPDF Act which exempts decisions of the FCM from being

appealed against, should be revisited more so if the sentence of the FCM is

death, such provisions should conform to article 22 (1) of the constitution of the

republic of Uganda.

Secondly, trial in the courts martial should adhere to the crucial tenets of a fair

trial as embodied in article 28 of the constitution of Uganda. Special emphasis

should be put on clauses; (e) of article 28. This calls for a need of more legally

competent offices required at all le'fels of courts martial. This will eventually

ensure that justice in the military is r\ot only done, but will be seen to be done

more so in eyes of civilian society who keep referring to our courts martial as

kangaroo tribunals.

For the purposes of curing the conflicting jurisdiction especially between the GCM

and the High Court of Uganda, Article 12 of the 1995 constitution of the Republic

of Uganda should be revisited. Article 129 of the constitution provides for courts

of judicature, and it's to the effect that the judicial power of Uganda shall be

exercised by the courts of judicature which shall consist of

a) The supreme court

b) The court of appeal

c) The high court of Uganda and

d) Such subordinate courts as parliament may by law establish.

26

Article 129 (1) (d) has sometimes been construed by some sections as meaning

that the G.C.M is subordinate to the high court, yet others believe that these are

courts of the same level.

I recommend therefore that this cbnflict should be sorted out through an ' !

amendment of Article 129 of the constitution to especially include the courts

martial as courts of judicature, and also to define their jurisdiction visavi its

counter-part civilian courts.

27

BIBLIOGRAPHY

Text books

The constitutional and political histo~ of Uganda1 from 1894 to the present by

the Justice George William Kanyahamba

Military law and precedents 2nd edition 1970 by W. Winttrop

Journal articles

Soldiering and Constitutional Rights and Freedoms in Uganda published in the

East African Journal of Peace and Human Rights 2005 val 11:2.

Trial and tribulations of Rt. Col Dr. Kiiza Besigye and 22 others October 2006 by

Dr. Ronald Naluwairo.

News papers articles

Army surfaces with death at Bibia-the New Vision 16th September 2012

Reports

Human Rights Watch: Righting Military Injustice

Statutes

The 1995 constitution of the republic of Uganda

The UPDF Act 2005

The 1992 NRA statute

The Rights Act 1998-United Kingdom

The Constitution of the United States of America

28

Websites

http:/lwww.stephen.stratford.co.UK/h\storv.eom.htms ' I

Case law

Uganda Law Society VAG (Constitutional Petition No. 1 of 2005).

AG V ULS Constitutional Appeal No.Ol of 2006

ULS and Another VAG Constitutional Petition No. 2 and 8 of 2002

29