The Court Martial elsewhere

By Gawaya TegulleThe death by firing squad of two UPDF soldiers has opened debate, not only on the wisdom and fairness of the Field Court Martial as a forum of dispensing justice in the army, but more importantly, its constitutionality.On March 25, Private Abdullah Mohammed and Corporal James Omedio were executed publicly in Kotido after a Field Court Martial found them guilty of murdering an Irish priest, Father Declan O’Toole, his cook and driver.The investigation, trial and execution took place within less than 72 hours after the crime, a haste which was widely questioned by the Ugandan public and passionately condemned by various sections of the Irish civil society and the international community.Controversy was heightened by the bizarre pronouncement that the accused would be executed - even before court had began hearing the case.Defence minister Amama Mbabazi defended the UPDF move as perfectly constitutional and well within the legal parameters of Ugandan military law.The law governing the Court Martial is the National Resistance Army (NRA) Statute 1992. This law provides for the existence of military law, stipulates who is subject to it and the hierarchy of the military court system, as well as the parameters within which each court may operate.This Statute establishes five kinds of Court Martial –– the Unit Disciplinary Committee (UDC), Field Court Martial, Division Court Martial (DCM)and General Court Martial (GCM). The fifth is the Court Martial Appeal Court that dispenses appellate jurisdiction only, arising from the decision of the General Court Martial.Under section 76, the UDC is the lowest and is chaired by a Captain or above. Its jurisdiction is limited to cases other than those involving murder, manslaughter, robbery, rape, treason, terrorism and disobedience of lawful orders resulting in loss of life.A case beyond UDC jurisdiction is referred to the DCM which is headed by a Major or a higher-ranking officer and has unlimited jurisdiction –– it may try any offence under the NRA Statute.The GCM has both original and appellate jurisdiction over all persons and offences in the army and may sit anywhere in Uganda. The Field Court Martial is a special military court designed to dispense summary justice in war situations. It is different from the General Court Martial and the Division Court Martial in that it serves in situations considered impracticable for these two types of court martial to apply.A war front is one of those out-of-the-normal situations where it is simply impracticable for the army to take weeks and months conducting investigations and sitting in court sessions for long periods of time.The idea is that a quick investigation must be conducted, a quick (and presumably thorough) trial held, the verdict pronounced and justice duly dispensed.Much of the time the public romanticises military service as honourable without exception — highlighted by famous battles, displays of courage under fire and medals earned. But military researchers say this is not always the case. Many soldiers’ military service is not always courageous and honourable. Much of what actually happens is what soldiers would not brag about to their families. Army life is hard, and desertion, insubordination, cowardice under fire, theft, murder, and rape are not uncommon –– like any other humans under pressure, soldiers can make mistakes.Section 92 of the Statute stipulates the following penalties: death being the highest, followed in descending order by imprisonment for two or more years (including life sentence), dismissal with disgrace from the army, imprisonment for not more than two years and dismissal from the army.Next is detention, reduction in rank, communal labour, forfeiture of seniority, suspension, severe reprimand, reprimand, caution, fine, stoppages and such other minor punishments as may be prescribed.Under section 91 of the Statute the President, who is also the Commander-in-chief of the army, may exercise his prerogative of mercy over all decisions of all court martials –– with the exception of the Field Court Martial.Article 121 of the Constitution that bestows the prerogative of mercy on the President stipulates in agraph (6) that he cannot reverse the decision of the FCM –– which in its more common forms results in the death penalty because of the urgent nature of the circumstances and the implications on national security, being on a war front.Military legal experts say the biggest questions in the Kotido saga are:l Is the Karamoja case a war front that warrants the application of a Field Court Martial? The problem with the FCM is that it is a first and last court; its decisions cannot be appealed. Safety for a suspect lies only in avoiding the FCM in the first place.l Given that this was more of a case involving sheer thuggery –– an ambush and killing –– why did the army not refer it to a civilian court?l Or if the army preferred to use the Court Martial, why did they not opt for a Division Court Martial? The advantage of a DCM is that the process is less hasty and the accused can appeal the decision to the General Court Martial and after that to the Court Martial Appeal Court.The Presidential prerogative of mercy can also be applied, if need be.More importantly, legal experts argue that the Constitutionality of the FCMs is suspect when the NRA Statute is interpreted in light of Article 22 of the Constitution, which stipulates:“No person shall be deprived of life intentionally except in execution of a sentence passed in a fair trial by a 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.”Worthy of mention is that Article 22 does not make an exception to the rule. So while article 121 (6) in effect upholds the FCM’s right of non-questionability, it does seem to contradict article 22.Ben Wacha, an expert in military law, also has a problem with the FCMs. “The NRA Statute was made before the Constitution came into being,” he says. “The Constitution intended that there should be a procedure of hearing cases, leading to an appeal in the highest court if need be. I do not think the Constitution intended that any other law should operate outside the application of the Constitution.”As long as FCMs are accepted under our laws and they have been operational, then they qualify as competent courts,” says Zam Zam Nagujja, Deputy Director of Legal Affairs at the Movement Secretariat.“The only way one can contest their competence is to go to the Constitutional court to interpret their role in light of article 22.”ends