Big Story: Why the State Charges Civilians in Military Courts

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April 30, marked exactly four months that Ssentamu Robert Kyagulanyi aka Bobi Wine’s former campaign team have spent in prison ever since they were arrested in the Lake Victoria Island district of Kalangala.

The group led by Ali Bukeni also known as Nubian Li, was first charged with unlawful assembly and engaging in acts that are likely to spread an infectious disease.Initially the accused who numbered 126 people were produced before the Masaka district Chief Magistrate and granted bail. However, 46 of these, instead of being released were driven at breakneck speed to Kampala where they were produced before the Makindye based Military Court Martial. 

Here, the chairman Gen Andrew Gutti, charged them with being found in possession of four AK47 bullets.Of the 49 that were charged in the military court, only 13 were granted bail. The 36 have been denied bail now thrice. Their efforts to challenge their denial of bail and their trial as civilians in a military court also ended in disappointment as the presiding judge, Esta Nambayo said she saw no merit in the petition.

In their petition, Nubian Li and 48 others had not only challenged the Military Court’s power to try them but also contended that their trial was illegal because they were facing similar charges in the Masaka chief magistrate’s court. But in her judgment delivered on March 16, Nambayo said the offences with which Nubian Li and others were being charged in the Court Martial are different from those offences at the Chief Magistrate’s Court at Masaka.

“I find that the charging of the Applicants at the General Court Martial at Makindye is within the law,”  Nambayo’s judgement reads in part. “The record of proceedings from the General Court Martial shows that the Court Martial followed the right procedure within the law… What has to be determined by the General Court Martial is whether or not the Applicants committed the offence with which they were charged. Therefore, I find no merit in this application and it is hereby dismissed from Court.” 

As a result, Nambayo threw back the applicants to the Court Martial. But why does the state prefer trying political opponents in military rather than civilian courts?

Background

In the history of the NRM and Yoweri Museveni presidency, Kyagulanyi’s civilian supporters are not the first to be tried in a military court for crimes that are also triable in the civil courts. After the 2001 general elections in which Retired Col. Dr Kizza Besigye who had just abandoned the Movement challenged President Museveni, the state’s military machine swung into action arresting many who had closely worked with Besigye. Like in Kyagulanyi’s case, many were later released but 22 were kept in custody for a longer time. These included among others, Besigye’s brother Joseph Musasizi Kifefe who eventually died days after he was released from prison. 

The 23, including Besigye who returned from exile to run again for the presidency in 2006, were accused of forming a rebel group called People’s Redemption Army with the aim of forcefully overthrowing the lawfully constituted government. At first the group was charged with treason in the civil courts which eventually granted them bail pending the hearing and disposal of the case. 

The state didn’t like this. In 2005 and later in 2007, armed security personnel stormed the High Court in Kampala and forcefully rearrested the suspects who had been granted bail.Meanwhile, like in the case of Kyagulanyi supporters, new charges emanating from the same facts were brought against them in the Court Martial that was then under the chairmanship of the now security minister Gen. Elly Tumwine. 

It had to take the intervention of the Constitutional and Supreme Court to rule that it was illegal to try people in two courts for offences that emanate from the same facts. Both Courts also ruled that the Court Martial neither has powers to try people who are not subject to military rule nor does it have powers to try some offences like treason and being found in possession of military hardware.

In the end, the Constitutional Court ordered that all the 23 accused people be released from prison and no any other case should be brought against them emanating from the cases for which they had been arrested. “This court cannot sanction any continued prosecution of the petitioners where during the proceedings, the human rights of the petitioners have been violated to the extent described above.  No matter how strong the evidence against them may be, no fair trial can be achieved and any subsequent trials (as it) would be a waste of time and an abuse of court process,” the justices ruled.

One of the 23 suspects was Robert Darius Tweyambe from Rukungiri district. Speaking to Uganda Radio Network on phone, Tweyambe said the state uses the military court because for it takes orders and it doesn’t question them. “You take civilians to the Court Martial which you know you control 100 percent,” Tweyambe said. “With civil courts although he [Museveni] has influence over them, they can exercise some independence and release suspects as they have done before. But when Museveni wants to hold you longer, he will take you to the Court Martial because there he’s totally in charge.”

Tweyambe says the NUP lawyers should challenge in the constitutional court the trial of its people in the court martial because there is precedent already set that the charges against them as civilians can’t be tried in the Court Martial.

Michael Kabaziguruka, the MP for Nakawa division has also in the past clashed with the state. He was also charged in the same military court with treason. Kabaziguruka however also ran to the Constitutional Court to challenge his trial. A ruling in the case is yet to be given. Like Tweyambe, Kabaziguruka said the military court is Museveni’s walking stick. “In the military, order is order; the commander in chief who is the president complains about you and then sends you to his kangaroo court presided over by a general who has no knowledge of the law,” Kabaziguruka said. 

Asked why the military still tries civilians for offences beyond their mandate, Medard Lubega Ssegonna who is the lawyer for Nubian Li and others, said what’s happening now is the definition of impunity. “The soldiers cannot defy the orders of the commander in chief and that’s why we’re are challenging the constitutionality of the Court Martial. The law talks about trying people in an independent and impartial tribunal established by law and the Court Martial has never been established by the constitution,” Sseggona said. 

Asked what they aim at achieving from court yet prevailing judgments are not being respected, Sseggona said the fight for democracy is a continuous struggle. “The country is at war with a group of fascists, you don’t rest until you are there,”Sseggona said. “So, we continuing with those declarations until such a time when we shall  see that this thing doesn’t continue passing off as a court. What else can we do; you want us to grab their guns and release the suspects; no we are not as crude as them.”

Efforts to speak to Brigadier Flavia Byekwaso, the spokesperson of the Uganda People’s Defence Forces were futile as she didn’t pick repeated calls to her known telephone number. 

But while presiding over a case in which Kyagulanyi was charged with being found in possession of a gun in 2018, Gen Gutti said they will charge anybody who veers into the military lane. He said those who ended up in the Court Martial actually take themselves their when they engage in actions that are a preserve of the military.


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