How govt plans to fix military courts

The (UPDF) Act amendments follow the Supreme Court verdict that military courts have limited jurisdiction over the trial of civilians and the handling of criminal cases involving soldiers.

This followed a petition filed by former Nakawa MP Michael Kabaziguruka. Subsequently, the Supreme Court justices, led by Chief Justice Alfonse Owiny-Dollo, ruled that all pending criminal cases against civilians and soldiers at the military court must stop and the files transferred to the civilian courts.

Attorney General Kiryowa Kiwanuka presented the draft amendments to the National Resistance Movement (NRM) parliamentary caucus meeting at State House Entebbe on Friday.

Key among the proposals is that the General Court Martial shall be headed by a chairperson qualified to be appointed a judge of the High Court and not below the rank of major general.

The current UPDF Act was silent on the qualification of the chairperson and required that he or she at least hold the colonel rank.

The amendments also propose that the General Court Martial has two members who are advocates of the High Court and two senior officers who are advocates of the High Court.

The proposal also requires that members of the General Court Martial be appointed by the High Command in consultation with the Judicial Service Commission.

It also proposes that they shall serve for a three-year term but are eligible for reappointment.

The amendments, however, propose that a person aggrieved by a decision of the General Court Martial may appeal to the Court of Appeal. Where a death sentence is imposed, the sentence shall be subjected to confirmation by the Supreme Court.

“Where the General Court Martial imposes a sentence of death, the sentence shall not be executed until the expiration of the time within which notice of intention to appeal against conviction may be given. If a notice of intention to appeal is duly given, the sentence shall not be executed until the appeal has been determined or abandoned,” the draft seen by New Vision reads.

The amendments also state that the General Court Martial shall be an independent institution.

“The members of the court martial shall, in the performance of their judicial functions, be independent and impartial and shall not be subject to command,” the draft amendments state.

It also states that where a member of the military court department commits an offence under this Act or any law, they shall be subject to the jurisdiction of the court martial.

The amendments also propose the establishment of a unit and division court to replace what was known as unit or division disciplinary committees.

According to the amendments, each Unit Court Martial shall be headed by a chairperson with a bachelor’s degree in law, and a postgraduate diploma in legal practice and hold a rank not below captain.

The chairperson will be assisted by the administrative officer of the unit, the political commissar, the regiment sergeant major, one junior officer and one private. All will be appointed by the High Command in consultation with the Judicial Service Commission.

“The Unit Court Martial shall have the power to try any offence under this Act or any other written law, in respect of which the penalty does not exceed a minimum sentence of five years,” the proposed amendment reads.

For the Division Court Martial, the amendment states that it shall be headed by a chairperson who shall not be below the rank of lieutenant colonel and an advocate of the High Court.

The amendments say the Division Court Martial will have the powers to try any offence under the UPDF Act and other written law, other than an offence in respect of which the maximum penalty is death.

Disability compensation

The draft law proposes that where an officer or a militant suffers disability as a result of an injury, disease or illness attributable to, or hastened by his or her service, the pension authority shall grant the officer a monthly disability compensation equivalent to his or her degree of disability.

On top of that, the disabled officer will be entitled to a monthly helper’s allowance and an additional pension or gratuity equivalent to the disability compensation in active service on retirement.

The disability compensation shall range from sh150,000 to sh1.5m, while the helper’s allowance per month will range from sh75,000 to sh750,000, depending on the severity of the disability.

Medical board

The amendments also propose the establishment of a medical board chaired by the chief of joint staff and seven other members who are also joint staff of departments such as legal, human resource, political commissar, gratuity and compensation, among others.

The medical board is responsible for examining and assessing the medical condition of an officer or militant referred to it.

Members’ pension

The amendment states that pension and gratuity will be paid to an officer for an aggregated period of 15 years from the retirement date.

However, for officers who are disgracefully dismissed from the forces, the draft amendments say such a person will not be entitled to pension, gratuity or any other terminal benefits.

Ammunitions

The amendments also list 40 different arms and 26 different ammunitions which are the monopoly of the Uganda People’s Defence Forces.

If passed into law, all members of the defence forces and civilians in possession of illegal guns will be subject to military law and tried by the court martial.

What others say

The National Resistance Movement party director for information and publicity, Emmanuel Dombo, told New Vision that the amendments majorly deal with the composition, structure, jurisdiction, tenure and quorum of the court martial.

“The chairman explained the genesis of the court martial and why it’s still important. Members were given time to discuss the amendments, after which they came up with a number of resolutions which were adopted,” Dombo said without divulging the details of the discussion.

He said the amendments will soon be tabled in Parliament by the Attorney General for discussion.

However, when contacted, shadow attorney general MP Wilfred Niwagaba (Ndorwa East) argued that the Supreme Court verdict is very clear that the court martial has no business trying civilians.

Therefore, any attempt to bring it back through the amendments will be unconstitutional.

“Members of the ruling party should be careful when making laws. They may think that they are making laws targeting the opposition but it will catch up with them,” Niwagaba said.

Although MP Medard Ssegona (Busiro East) had not yet seen the amendments, he said: “We shall resist it.”

Arnold Kimara, a managing partner at Kimara Advocates and Consultants, said although he had not yet seen the amendments, “You cannot amend a law that renders a court judgement null.”

Civilians to be subjected to military law

According to the amendments, a civilian will be subjected to military law if he or she is found in unlawful possession of arms, ammunition or equipment, which is ordinarily the monopoly of the Uganda People’s Defence Forces.

The amendments also say a person will be subjected to military law if they aid or abet a person subject to military law to commit murder, aggravated robbery, kidnap with intent to murder, treason or misprision of treason.

The amendments further state that a person shall be subject to military law if, without authority, is found in possession of, sells or wears a uniform of the national army.

The amendments say a person who commits such offences as outlined in the Act shall be treated as if he or she were a militant of the rank of private unless he or she holds a certificate from a commanding officer of the unit revocable at the pleasure of the officer who issued it or of any other officer of equal or higher rank, entitling that person to be treated as an officer of a particular rank.

For persons who have ceased to be subject to military law, the amendments state that such persons shall, for the purpose of trial, be considered to have the status and rank that he or she held immediately before he or she ceased to be subject to military law.