Sunday, 29 March 2015

MUSEVENI MISTOOK THE JUDICIARY FOR HIS ARMY COURT MARTIAL

Introduction
Recently dictator Museveni relented and appointed Justice Katurebe as the substantive Chief Justice after two years of arrogantly refusing to honor the same choice that had been recommended by the constitutionally mandated Judicial Service Commission (JSC). Still he went ahead to irregularily appoint Justice Stephen Kavuma as the Deputy Chief Justice a move that is being contested by patriotic Ugandans in court. Museveni's actions (past and present) are designed to compromise the independence of the Judiciary. Once he succeeds in bringing the judiciary under his feet, it will mark the end of the little hope that Ugandans are holding on. He has his personal military court martial where is the Chief Justice, Principal Judge, Director of Prosecution, and Commissioner of Military Prison.

Commando raid on court
Following his disputed 2001 presidential elections and the fear of an armed uprising, Museveni resorted to gross violation of human rights characterised by extra judicial killings, arrest, torture, and detention without trial of suspected opposition supporters. The dreaded Operation Wembly operatives and other quasi security outfits were created. Torture and detention is ungazzetted detention facilities dubbed Safe Houses became the order of the day. Also at hand was the military court martial where civilians were charged with treasonous and terrorism related offences the Iddi Amin style. A special court martial was put ni place headed by Gen Elly Tumwine. The only task for this court was to legitimise detention without trial, malicious prosecution, persecution and injustice.

It is against this background that in November 2005Museveni's military commandos raided the High Court in Kampala to reverse a court decision granting bail to the leader of opposition Dr Besigye and his co-accused. The following day they were taken to the General Court Martial and charged with the same offenses and remanded to Luzira Prison The Uganda Law Society successfully challenged the irregularity pertaining to the concurrent proceedings in both the court martial and the High Court. NRA's Major Asingura Kagoro swore an affidavit whereby he argued that: "the UPDF decided to deploy security personnel at the High Court premisses for purely security reasons. Terrorists were going to rescue the accused and make them disappear." During the hearing the High Court had concurred with the petitioners that the raid on the High Court by the commandos had been intended to instill fear in the Judge and other Judicial Officers and to induce them to be impartial and feel dependent on the state. That it was also designed to serve as a warning that if you did not enter a favorable judgement they would be in danger.

During the hearing, the constitutional court had relied much on the precedents laid down in the leading cases of Attorney General Vs Maj General David Tinyefuza and Tumushabe Vs Attorney General. In the former Justice Kanyeihamba had argued in favor of the state that: "The constitution has empowered parliament and not the judiciary to to supervise the executive when the later is exercising its functions in military operations." He added that: "Courts should refrain from reviewing decisions relating to military affairs unless they have to. The armed forces are instruments of the state, equipped, disciplined and trained to exercise physical force in the interest of of the state." At the time Museveni had hastly appointed Justice Kanyeihamba to the Supreme Court to specifically deal a blow to Gen Tinyefuza's petition. Indeed he did deliver a heavy blow but a decade later the now retired Justice Kanyeihamba was filmed shedding tears in the corridors of the Supreme Court building over frustration by Museveni's agents. Dr Besigye got his freedom and the trial of civilians in the court martial was declared illegal. Museveni vowed to appeal the decision or to fight it politically. He took up the second option when he embarked on infiltrating the Judiciary with cadre Juges and Justices. The same Major Asingura Kagoro later on swore another affidavit in respect of Habeas Corpus arguing that accused Dr Kiiza Besigye had been legally remanded by the General Court Martial and that the warrant of commitment had been extended by the same court without the accused even appearing before the same court martial. Court ruled that since the General Court Martial had no powers of trying him, it could not extend his remand warrant.

Who is Kagoro Asingura?
Now Colonel Kagoro Aloysius Asingura hails from Tooro and is a son to a former Education Officer. He joined the NRA in late 1985 while he was in High School at St Leos' College Kyegobe. He did basic military training in Semuliki Game Reserve and Buhweju in Ibanda. After take over he served as a military instructor at the NRA Political School in Namugongo under Kakooza Mutale. Later he joined the Presidential Protection Unit (PPU) where he served as an Aide De Camp (ADC) to the First Lady. Following an incident where the first lady refused a plane to take off unless her Aide Kagoro Asingura was on board, Museveni gave him one hour to pack his personal belongings and family and vacate the PPU premisses. Kagoro was dumped at the army headquarters from where he opted to go back to school. Through mature entrance, he joined Makerere University for a Bachelor of Laws degree (LLM). Thereafter he served as a Legal Officer under the army's Directorate of Legal Services. It is that capacity that he presided over the controversial summary trial and execution of the two soldiers in Karamoja where he was the Judge Advocate of the Field Court Martial. During the hearing of the highly political petitions for Dr. Besigye, Kagoro Asingura was a personal Assistant to the Inspector General of Police Kalekyezi Kayihura.

Sham Court Martial
Unlike the civil courts which are a creature of the the constitution and are referred to as Courts of Judicuture, army courts are a creature of a parliamentary Act. Article 129 of the constitution identified Courts of Judicature as the Supreme Court, Court of Appeal, High Court "and such subordinate courts as may be prescribed by parliament." Article 210 of the constitution empowered parliament to make laws  regulating the army in terms of its organs and structures. However, its worth noting that unlike the Uganda Police Force where the constitution clearly stipulated its command, the constitution by Museveni's design is silent on the army's command. This loophole has given Museveni a free day in running the army as his private security company.

Parliament made the UPDF Act No. 5 of 2005 whereby S.197 creates the court martial to deal with service offences committed by members of the armed forces (servicemen) who contravene military law. Unfortunately S.2 of the Act describes service offence as to include any offence under any other Act thus giving it a blanket description. The so called courts under the NRA are the Unit Disciplinary Committee (UDC) for every Unit, the Division Court Martial (DCM) for each army Division, the General Court Martial (GCM) for the entire army and the top most but dormant Court Martial Appeal Court. The General Court martial has both original and appellate jurisdiction over lower military courts. Appeals from the General Court Martial lie to the Court Martial Appeal Court from where they go to the normal Court of Appeal and then to the Supreme Court. As a rule of practice, military courts dont hand civil matters. Officials handling the General Court Martial are supposed to be appointed by the High Command but Museveni assumed this role where he solely appoints them for a one year tenure though Gen Tumwine served for years as long as his special task was still valid. For over a decade now, the Court Martial Appeal Court has been presided over by Elly Turyamubona the former Registrar of the Supreme Court. His career was destroyed when he took up the court martial job hoping that it would elevate his status and career only to be grounded since there is no serious business at the army's appeal court. Imagine at the time he was a Registrar, now Justice Opio Aweri of the Court of Appeal was a mere Chief Magistrate at same court building in Mengo.

Apart from the Judge Advocate who is a lawyer, the rest of the six other members are lay people. Actually apart from Gen Tumwine who had been assigned a special task, those who are assigned to the court martial are usually the officers whom either Museveni cant find a place to deploy them or they are undergoing rehabilitation. The role of the Judge advocate is to advise court on the law. There are Defence Councils who are also Lawyers and army officers whose role is to defend the accused where the army is the complainant.  In some instances the army hires cadre civilian Lawyers to mascarade that they are defending the accused. For those few accused who afford to hire their own private Lawyers, the Court Martial makes sure that they either harass or frustrate them until they loose interest. In some instances, some civilian Lawyers end up being compromised more especially after the court prosecutors arrange secret meetings between the Lawyer and CMI. Both the Judge Advocate and Defence Council belong to the Directorate of Legal Services but where the stakes are high, CMI directly controls the two.

Article 120 (2) of the constitution prohibits the Director of Public Prosecution (DPP) from instituting criminal proceedings in the court martial. The Anti Terrorism Act stipulates that "no person shall be prosecuted under the Act unless the DPP has consented. The same applies to the offence of abuse of office that is currently facing Col Bantariza before the Court martial. Yet Museveni prefers to try terrorism related offences in the court court martial. The Prosecutors in the court martial belong to the department of military intelligence (CMI) and specifically under its Special Investigation Bureau (SIB). The CMI complains, arrests, investigates, prosecutes and manages both Museveni's pardon or imprisonment in case of custodial sentence. Therefore it is CMI through its prosecutors who run the show in the court martial. It is very common for CMI to hold round table conferences with court members where the stakes are high in some cases.

The NRA has had and continues to have a good number of Lawyers within its rank and file. Interestingly no Lawyer has ever been appointed to head the General Court Martial. Instead it is the officers whom the army has failed to deploy (katebe) who are seconded to the court martial. In Tumushabe Vs AG court the holding to the effect that the General Court Martial was subordinate to the High Court but this was reversed in ULS Vs AG where it was held that the general court martial is equal to the High Court only that it does not have powers to try civilians. Imagine the General Court Martial Chairman be it Gen Tumwine (Fine art), Gen Angina ('O' level), Brig Tolit (primary school teacher), Col Sula Semakula (Primary Seven) and others are at the same status as those High Court Judges!!! In the NRA, the Lawyers if not attached to the court martial they are used by top office bearers as their Aide De Camps or Military Assistants. Others are deployed to different units as Legal Officers including even even Para-legals. Remember the case of then Sgt Harry Rurekyera the then paralegal who had signed contracts in the Ministry of Defence as revealed by a probe in the late 90s.Imagine a one Maj. Louis Opolot Otaget a Lawyer is deployed in Palisa district to overseen poverty eradication under NAADS!!!!!

Since the Lawyers in the army dont do any serious legal practice, it is very common to find many of them partnering with other Lawyers in town for private practice. During the tenure of many of them in the court martial, they connive with SIB officers to take bribes and to extort from soldiers who are accused of theft and abuse of office thus compromising investigations and prosecutions. This is very common where the regime has no vested interest in (security) in the accused. Criminal investigations in the army are carried out by SIB but in cases where the regime has a security/political interest, it is the specialised units like JATT and Counter Intelligence that lead the investigations. In some special interest cases they register the involvement of police expertise in evidence gathering not because they want a successful prosecution but simply to avoid embarrassment during mock trials. The case of Col Bantariza is a clear example; he stole the money just as is the norm with anyone holding office in the NRA but prosecutuin has failed even to prove if the tractor was a donation from Ministry of Finance or not.

Prosecutors in military courts are always armed with signed Warrant of commitment to prison and can send any one arrested by CMI to any prison in Uganda even without appearing before a court martial. They have been having trouble with normal government prisons where victims get access to their relatives, lawyers and human rights NGOs. They find solace in their own prison under the dreaded military police barracks  dungeons. Under the Military Police prison, any suspect can be picked for interrogation and torture in safe houses and denied access to relatives, lawyer, NGOs and indefinite detention without trial. The case in point is the on going trial of Col Bantariza where one of his co-accused after suffering prolonged detention without trial had to succumb to accepting to testify against the accused in exchange for freedom. The defence counsel had this to say in submission for a no case to answer: "This court needs no tutorials that a Captain on remand such as PW3 who attracts the attention of a whole CDF (then Gen Aronda) to the extra ordinary extent of putting pen to pepper to determine who accesses the Captain when he is in jail, who talks to him, over what, that can not be said to be ordinary detention. We have not been told by prosecution that the CDF's office has an extra mantle of  being the clearing house for the visitors seeking audience with detainees in Military Police prison installations." Its only the army Chief Gen Aronda who would grant written permission for any one to access the witness when he was still a suspect and detainee. The 12 years of detention without trial of Capt (retired) Amon Byarugaba allegedly over treasonous activities linked to the PRA is another example of the evils of the court martial. Preferential treatment on orders from above is normal in the court martial. Col Kimbowa shed tears when he was denied bail to attend to his over 90 years old ailing dad. Shortly after, instead it is his mother who passed away and he was given seven days to go and attend the burial after which he was detained again. It is not clear how in law one can term the seven days a detainee is given to attend to go home and attend a burial. Families of Ssejusa's former Aides are craving to meet Museveni so that he pardons their sons and husbands who are detained by the court martial. The list of the court martial vices are endless and Museveni is at the center of it all. Generally, court martial under NRA are not worthy being called courts of law. They are instead tools of injustice to both the accused and the victims of crime. Cpl Rwakihembo shot dead three people including his wife. He was taken through a mock trial and sentenced to 95 years imprisonment so as to cool down the emotions of citizens, shortly after it was reduced to 35 years and finally settling at three years. This is because the convict is a home boy whose leniency was negotiated by elders from his home area.

Museveni manages the court martial as his personal court that he uses to intimidate and scare dissent, to avenge disagreements but more so to deal with real and imaginary political opponents. He is the Chief Justice, Director of Prosecution, Chief Investigator, complinant and Judge in matters before the court martial. He appoints and fires the officers who man the court martial and can prefer any charge and withdraw it or pardon any one accused before a court martial even before such a person is convicted. It is these powers that he exclusively enjoys over the operations of the court martial that tempt his to extend such influence to the Judiciary. If his current push on scraping bail in some criminal charges succeeds,then he will have a field day in dealing with his political opponents.

INFORMATION IS POWER







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