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UGANDA: Every Ugandan is potentially subject to military law

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HOW EVERY UGANDAN IS  POTENTIALLY SUBJECT TO MILITARY LAW

Published on Change of Guards Blog on February 4, 2018.

1.   “The Constitution established three arms of government.  The military belongs to the executive arm of government.  In fact it is the coercive arm of government……… I think the military as a disciplined and professional force ought to refrain from causing unnecessary stampede in some sections of society by appearing to act or acting as if it is a law into itself.

The constitution ordained civil courts with jurisdiction for the protection of human and civil rights for both civilians and members of the defense forces who are charged with criminal offenses.  The jurisdiction of military courts should not be invoked, except for the purpose of maintaining and enforcing discipline in the force.

Therefore, proceedings may be brought against a member of the defense forces or a civilian for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing discipline.

     Lady Justice C. K. Byamugisha –  ULS Vs AG Constitutional Petition No. 8 of 2005.

2.   “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.  Therefore, until S.119 (1) (g) and (h) of the UPDF Act is repealed or declared to be unconstitutional by a competent court, it will remain valid, effective and enforceable regardless of the misgivings of human rights advocates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.”

        Jotham Tumwesigye (JSC) –  2012 civil appeal challenging the trial by the General Court Martial of Ssali Mohammed.

3.   “The armed forces are instruments of state, equipped, disciplined and trained to exercise physical force in the interest of the state.  Courts should refrain from reviewing decisions relating to military affairs unless they have to.  The exercise of judicial powers must be within proper bound and should fall short to the point beyond which it might be considered as an intrusion in the powers of coordinate branches namely the executive and legislature.  The constitution has empowered Parliament and not the judiciary to supervise the executive when the later is exercising its function in military operations.”

     G. Kanyeihamba (JSC) –  AG Vs Gen. Tinyefuuza (Ssejusa) in Constitutional Appeal No. 1 of 1997.

4.  “The decision to deploy the UPDF at the High Court that day and the acts that accompanied it are certainly a matter that lies within the province of the executive authority of this country which Article 98 of the constitution vests in the President……. I take judicial notice of the fact that many times intelligence information regarding security operations and the decision to conduct them and I deed the reasons for such operations are matters treated with extreme confidentiality and secrecy in the interest of national defence and security.”

      Cadre Steven Kavuma (JSC) in AG Vs ULS Constitutional Petition No. 8 of 2005.

The unresolved issue of the army’s role in civilian policing is back in the public domain.  It has been resurrected by recent events namely the arraignment before the military court martial of some police officers and their civilian conspirators over alleged kidnap of Rwandese refugees; the Commando raid on Parliament and beating up of opposition legislators; and the most recent army crackdown on leadership of the infamous brutal regime militia, the Boda Boda 2010.  The leader of the Boda Boda 2010, Mohammad Kitata and 13 of his top executives were last week arraigned before the the army’s UDC and remanded.

All the accused are civilians who were charged with offences related to failure to protect war materials and unlawful possession of military stores under the UPDF Act.  They are considered to be subject to military law by virtue of S.119 of the UPDF Act.  Driven by guilty consciousness, the army Spokesman, Col. Deo Akiiki had this to say; “It should be noted that S.119 of the UPDF Act provides for persons subject to military law.  It further provides under S.119 (1) (h) and (i) that every person found in unlawful possession of arms, ammunition or equipment ordinarily being the monopoly of the defence forces, becomes subject to military law.  It is on the basis of the above that the mentioned persons have appeared in the military court.”

Because of the imminence brutality with impunity that the groups had subjected citizens to, Ugandans are up in excitement over their arrests and arraignment.  However they forget one pertinent issue; the military regime is resetting grounds for subjecting every citizen to military law.  The top regime functionaries currently being arraigned before military courts may end up being let off the hook.  Moreover, they did whatever they did with full blessing of the highest authority in the land i.e the Museveni and his police chief, Gen. Kalekyezi.

The draconian, UPDF Act traces its history from the equally draconian NRA Code of Conduct that was the Jungle Law during Museveni’s five years guerrilla war.  This Code of Conduct was was designed with the sole aim of silencing dissent amongst fighters who were to a greater extent hostages of Museveni’s manipulation. It was only suitable for the then prevailing circumstances but unfortunately, upon taking over power, it was simply renamed the NRA Statute and later the UPDF Act.  Mindful of the country’s political history whereby civilian politicians have always used soldiers to effect political changes, provisions like the infamous S.119 were included.

It deals with persons who aid, abet or assist in anyway a person who is subject to military law in the commission of a service offence and those in unlawful possession of weapons and other stores which are a monopoly of the UPDF, to be tried under the same act.

The same Act goes further to list a wide range of offences, many of which already exist on other statutes more especially the Penal Code Act. In the same regard, it defines service offence as “an offence under this act or any other act for the time being in force committed by a person while subject to military law.”  Under  S.197 (1) the UPDF Act makes it a service offence for “any person subject to military law who does or omits to do an act which constitutes an offence under the Penal Code Act or any other enactment.”

The aim here was to undermine the civilian courts by confining as many civilian and servicemen offenders to injustice under military law and its courts.

The act describes “War Materials” as arms, munitionnions, part of arms, explosives and other materials ordinarily reserved for the army.”  In this context “failure to protect” would only apply to those in whose custody such war materials are entrusted and in the event he or she fails to guard, maliciously damages, tampers with or mishandling resulting in damage, allowing to be handled by unauthorized persons or loss etc, the section would be applied.

In the instant case the Boda Boda 2010 suspects were allegedly found with military caps and bionets.  I can’t agree more with Engwau (JSC) in ULS Vs AG,  Constitutional Petition No. 8 of 2005 thus; “there is no law on our statute books providing for arms, ammunition or equipment being a monopoly of the defence forces.

” What if a civilian family member, friend or neighbour of a service man or woman is found in possession of dry ration (beans, maize flour  biscuits or tinned beef) or other stores like bedding and household equipment supplied by the same?  It reminds me of the colouring of army fuel in green in order to restrict its use to only military service.  However, owing to the usual sectarian consideration, we saw mock criminal proceedings against Colonels Arthur Musinguzi and Bright Rwamirama (now a Minister) taken to a civil court instead of army court over theft of army funds so that the matter could easily be dismissed for lack of cooperation from the same army authorities.  Since the two had been in charge of  managing the army’s finances, the theft of money was purely a service offence.

The 1995 Constitution delegated Parliament to enact the UPDF Act.  Museveni instead manipulated parliament to exceed its powers by including S.119 that extends the jurisdiction of the military courts to cover civilians.  In the same regard, though the constitution subordinates the army to the civilian authority, Parliament created a kangaroo military court martial with criminal jurisdiction equaling to that of the civil High Court.

By restricting the control of all criminal prosecution to an independent Director of Public Prosecution, save for the Court Martial, the framers of the constitution were mindful of the fact that the operations of army courts were restricted to only service offences.  Instead, the army went ahead to put in place its own Director of Public Prosecutions who acting on directives from above sanctions criminal charges related to terrorism, illegal possession of firearms, etc. which are outside military law.

Very soon we may see the army courts handling family, land, tax, trade and such other matter.

The  constitution places the duty to preserve law and order and to protect life and property on the police.  For the last 32 years, Museveni has been systematically destroying the police in preference for the military’s involvement in civil policing.  That is why decades ago, he enacted a provision in the UPDF Act that stipulates thus;  “the army may come to aid civil authority in emergency situations if called out for service in aid of civil power in any case in which a riot or disturbance of peace occurs or likely to occur if likely to be beyond the power of the civil authority to suppress or prevent.”

In the event of such a situation, the Act grants soldiers police powers and in this context civil authority means the President, Minister, IGP, and DPC.  This is the background to the recent events that are causing both excitement and worry to Ugandans whereby the army seems to be taking over civilian policing.

In all the incidents, there is no evidence that the stipulated civil authority requested for the aid of the military.  Whether in commando raids on courts of law, attacks on unarmed civilians in Kasese, commando raid on parliament, brutal suppression of opposition assemblies, raid on civilian homes etc, there is no evidence of invitation.  That is why it is common for military personnel to be dressed in police uniform during such barbaric attacks.

There is no doubt whatsoever that military courts are used and abused by Museveni to enhance his military dictatorship. He personally appoints members of the General Court Martial by signing the instruments of office which are renewable on an annual basis. Therefore, the army courts are neither competent nor independent thus cannot to be fair.   In our (http://changeofguards.blogspot.ca)  past articles we wrote and widely shared about military courts thus;

1.  NRA GENERAL COURT MARTIAL – A MUSEVENI TOOL FOR DETENTION WITHOUT TRIAL, 10/5/201

2.  WHAT SECRETS ARE IN THE COURT MARTIAL – 22/7/2016

3.  WHAT IS SECRET ABOUT MUSEVENI’S GAO? –  31/12/2017

Members of the armed forces have continued to suffer  in silence at the hands of the military courts.  In the past civilians were salvaged from the claws of regime security outfits like JATT, KAP, Opn Wembley and their military courts by loud condemnation by local and international human rights organisations.  The regime now feels it has been long enough for Ugandans to have forgotten the past and is now repackaging and reintroducing the vice.

Otherwise, since there is no clear criteria in determining who is to be charged before the Kangaroo military courts, going by the draconian provisions of the UPDF Act, every citizen is a potential candidate.  Why Mohammad Kitata from whose regime-sponsored offices a military cap and bionet were recovered and not the following;

  1.  Kanyamunyu who shot dead the late Akena is before the civil court.

2.  Regime socialite, Bryan White who recently shot and injured someone in an attempted murder  is before the civil court and the matter  is being swept under the carpet.

3.   Fred Gatakaya who is accused of shooting dead a Chinese national is before the civil court.

4. The King of Rwenzururu and his subjects who are facing similar charges before the civil court yet the 2014 Bundibugyo attackers are before the Court Martial.

5.  Tycoon Protus Magara from whom an AK 47 and ammunition were recently recovered is not yet produced in court because its some big shot who supplied him with the said gun.

6. The highly connected businessman, Godfrey Muhirwa who is alleged to have used an illegally held gun to shoot dead two police Constables in October 2014 appeared before the civil court.

The list is endless.

What about the thousands of arms that were and continue to be illegally distributed to the regime cadres in the western region?  What about Buganda Lukiiko’s Ssenkayi who was armed by the secret services as he spied on the Kabaka?

What is clear is that the choice of criminal proceedings before the army courts is determined by the need to suppress political dissent on one hand and on the other hand to save regime cadres by way of a cover-up.  This is the same technique being used in the recently instituted Police Disciplinary Court which is handling capital offences like abuse of office, torture, robbery etc.  Most interesting is the fact that before this police court criminal charges are instituted in the names of the IGP and not the state of Uganda and an accused is not allowed to have a defense Lawyer.

The worst is in the offing whereby the regime’s lead secret service (CMI) which is the complainant, the arresting and investigating agency and now the lead custodian of regime security has instituted its own kangaroo court in the names of CMI Unit Disciplinary Committee (UDC).  The same CMI is the Prosecutor, defence and Judge in the same court.  If the regime had intended to bring justice to the victims of Boda Boda 2010, such criminal proceedings should have been instituted in civil courts to allow easy access to victims and the general public instead of the heavily guarded and no-go zone, CMI headquarters.

You are all worse off than Muhammad Kitata.

INFORMATION IS POWER AND DEFIANTLY “HITTING ON THE HEAD” IS THE WAY TO GO.

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