Court Martial is under High Court
<b>By Andrew Kasirye</b><br><br>Article 23(6) (b) of the Constitution of Uganda makes it mandatory for the High Court and subordinate courts to grant bail on reasonable conditions where a person has been remanded in custody for 120 days for an offence triable by High Court and subordinate courts.
By Andrew Kasirye
Article 23(6) (b) of the Constitution of Uganda makes it mandatory for the High Court and subordinate courts to grant bail on reasonable conditions where a person has been remanded in custody for 120 days for an offence triable by High Court and subordinate courts.
The plight of Henry Tumukunde brings this legal issue into the spotlight because he has been on remand for over six calendar months and was denied bail again on December 15, 2005.
Has the chairman of the General Court Martial (GCM) been advised by the Judge Advocate that the Constitution is the supreme law of the land? Article (2)(1) of the Constitution declares the Constitution to be the supreme law of Uganda with binding force on all authorities and persons throughout Uganda including the GCM!
No institution is exempted from constitutional compliance except the Field Court Martial for purposes of Article 137(5) where questions of constitutional interpretation arise. It becomes apparent, therefore that the GCM is subject to every provision of the constitution.
The GCM is established by an Act of Parliament under Chapter 12 of the Constitution. Under Article 210 Parliament was mandated to enact laws to regulate the UPDF’s organs, structures, recruitment, appointment, discipline and termination from UPDF. On the basis of this Article I am led to conclude that the GCM was established for purposes of maintaining the discipline of the UPDF.
I have researched broadly about the role of Court Martials in the United Kingdom, Australia and the United States which has tempted me to accuse our Parliament of having overstepped its jurisdiction by enacting legislation creating a parallel system of justice for the UPDF with jurisdiction to try civilians who are not employed by the UPDF and who are not escorting the UPDF during the ordinary course of its duty.
Military law and the jurisdiction conferred upon the service tribunals worldwide has restricted scope of disciplinary authority necessarily extended to breaches of ordinary criminal law.
It is my considered opinion that the crimes to be tried by Court Martial were to be crimes committed on active service outside the jurisdiction of the ordinary courts or in circumstances and places where the jurisdiction of the ordinary courts could not be exercised.
But this does not place Court Martials within the ambit of courts established to constitute the judicial systems entrusted with administering the law of the land.
For this reason I respectfully find fault with the UPDF Act and the present manner in which the GCM conducts its business for several reasons :
Firstly, the GCM has refused to recognise and apply the Constitutional provisions relating to bail. Evidently, Brig. Henry Tumukunde now qualifies for mandatory constitutional bail under Article 23(6)(b) and the only discretion enjoyed by the GCM is to set reasonable bail conditions. It is not open to the Chairperson of GCM to refuse bail on ground of previous bail violations.
He simply has no constitutional jurisdiction to refuse bail after the six months elapsed. It is important to observe that the Chairperson has repeatedly committed the same error by declining to release the PRA suspects on bail, after the Constitutional Court pronounced itself in the petition of Joseph Tumushabe versus Attorney General, last year.
This conduct of the GCM under the present Chairperson is ipso facto a grave violation of constitutional due process rights.
Secondly, the exercise of jurisdiction over civilians by the GCM effectively ousts the jurisdiction of the ordinary civil courts.
If this had been the intention of the Constituent Assembly then the Constitution would have expressly provided that the unlimited jurisdiction of the High Court in all matters does not extend to civilians being tried by the GCM.
The civil judicial authority would have been created subject to military justice! Chapter Eight of the Constitution establishes the Ugandan Judicial System and describes the Court structure from the highest to the lowest in the hierarchy.
The order begins with the Supreme Court, Court of Appeal, High Court and such subordinate courts as Parliament may establish. The first three courts are specifically described as superior Courts of Record.
Robert Kabushenga and Col. Kyamulesire, UPDF’s Legal Services Director, argued recently on Radio One’s Spectrum talk-show that the GCM has parallel original jurisdiction with the High Court and is on the same footing as the High Court of Uganda. Their contention is premised on the provisions of the UPDF Act which set up the GCM.
The flaw in this argument is apparent if you read the Constitution as a whole because there is no constitutional mandate conferred upon Parliament to establish another court of unlimited original jurisdiction.
In fact, Parliament did not enact the UPDF Act under Chapter Eight of the Constitution (Judiciary: Administration of Justice) which sets up the judicial system of Uganda. The UPDF Act was enacted under Chapter 12 with a heading “DEFENCE AND NATIONAL SECURITYâ€. Article 208(2) of Chapter 12, states that the UPDF shall be inter alia subordinate to civilian authority as established under this Constitution. The Judicature Act which regulates the administration of justice makes no mention of Military Courts or parallel systems of justice.
One need not be a Constitutional Law Professor to realise that serious errors were committed during the enactment of the UPDF Act which resulted into a trespass upon the unlimited jurisdiction of the High Court of Uganda. My third contention is that the range of offices in the UPDF Act is so broad as to provide for punishment of conduct unrelated to discipline of the Defense Force!!
The administration of military justice by court martials should be restricted to the control of the forces and to maintain discipline. Offences created outside this umbrella can also be competently and effectively adjudicated upon by well financed and equipped civil courts of judicature.
The GCM does not even have the professional competence to adjudicate over this broad spectrum and has demonstrated inability to apply basic judicious etiquette. Finally, some of the fundamental characteristics of a court are missing from the GCM.
The administration of justice requires that citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction.
Once the dispute has been submitted to the judicial body the parties should be able to rely upon there being no usurpation by any other person at the function of that court to decide disputes according to law.
All persons and the parties should be able to rely upon obtaining in that forum, the arbitrament of a tribunal which is free from bias against any party and the final decision will be based upon evidence adduced before it in accordance with procedures adopted in courts of law.
The GCM has violated universally accepted norms of judicial etiquette and, unlike ordinary civil courts where the Judicial Service Commission established a complaints procedure, there is no complaints mechanisms in case standards of justice are compromised.
Article 23(6) (b) of the Constitution of Uganda makes it mandatory for the High Court and subordinate courts to grant bail on reasonable conditions where a person has been remanded in custody for 120 days for an offence triable by High Court and subordinate courts.
The plight of Henry Tumukunde brings this legal issue into the spotlight because he has been on remand for over six calendar months and was denied bail again on December 15, 2005.
Has the chairman of the General Court Martial (GCM) been advised by the Judge Advocate that the Constitution is the supreme law of the land? Article (2)(1) of the Constitution declares the Constitution to be the supreme law of Uganda with binding force on all authorities and persons throughout Uganda including the GCM!
No institution is exempted from constitutional compliance except the Field Court Martial for purposes of Article 137(5) where questions of constitutional interpretation arise. It becomes apparent, therefore that the GCM is subject to every provision of the constitution.
The GCM is established by an Act of Parliament under Chapter 12 of the Constitution. Under Article 210 Parliament was mandated to enact laws to regulate the UPDF’s organs, structures, recruitment, appointment, discipline and termination from UPDF. On the basis of this Article I am led to conclude that the GCM was established for purposes of maintaining the discipline of the UPDF.
I have researched broadly about the role of Court Martials in the United Kingdom, Australia and the United States which has tempted me to accuse our Parliament of having overstepped its jurisdiction by enacting legislation creating a parallel system of justice for the UPDF with jurisdiction to try civilians who are not employed by the UPDF and who are not escorting the UPDF during the ordinary course of its duty.
Military law and the jurisdiction conferred upon the service tribunals worldwide has restricted scope of disciplinary authority necessarily extended to breaches of ordinary criminal law.
It is my considered opinion that the crimes to be tried by Court Martial were to be crimes committed on active service outside the jurisdiction of the ordinary courts or in circumstances and places where the jurisdiction of the ordinary courts could not be exercised.
But this does not place Court Martials within the ambit of courts established to constitute the judicial systems entrusted with administering the law of the land.
For this reason I respectfully find fault with the UPDF Act and the present manner in which the GCM conducts its business for several reasons :
Firstly, the GCM has refused to recognise and apply the Constitutional provisions relating to bail. Evidently, Brig. Henry Tumukunde now qualifies for mandatory constitutional bail under Article 23(6)(b) and the only discretion enjoyed by the GCM is to set reasonable bail conditions. It is not open to the Chairperson of GCM to refuse bail on ground of previous bail violations.
He simply has no constitutional jurisdiction to refuse bail after the six months elapsed. It is important to observe that the Chairperson has repeatedly committed the same error by declining to release the PRA suspects on bail, after the Constitutional Court pronounced itself in the petition of Joseph Tumushabe versus Attorney General, last year.
This conduct of the GCM under the present Chairperson is ipso facto a grave violation of constitutional due process rights.
Secondly, the exercise of jurisdiction over civilians by the GCM effectively ousts the jurisdiction of the ordinary civil courts.
If this had been the intention of the Constituent Assembly then the Constitution would have expressly provided that the unlimited jurisdiction of the High Court in all matters does not extend to civilians being tried by the GCM.
The civil judicial authority would have been created subject to military justice! Chapter Eight of the Constitution establishes the Ugandan Judicial System and describes the Court structure from the highest to the lowest in the hierarchy.
The order begins with the Supreme Court, Court of Appeal, High Court and such subordinate courts as Parliament may establish. The first three courts are specifically described as superior Courts of Record.
Robert Kabushenga and Col. Kyamulesire, UPDF’s Legal Services Director, argued recently on Radio One’s Spectrum talk-show that the GCM has parallel original jurisdiction with the High Court and is on the same footing as the High Court of Uganda. Their contention is premised on the provisions of the UPDF Act which set up the GCM.
The flaw in this argument is apparent if you read the Constitution as a whole because there is no constitutional mandate conferred upon Parliament to establish another court of unlimited original jurisdiction.
In fact, Parliament did not enact the UPDF Act under Chapter Eight of the Constitution (Judiciary: Administration of Justice) which sets up the judicial system of Uganda. The UPDF Act was enacted under Chapter 12 with a heading “DEFENCE AND NATIONAL SECURITYâ€. Article 208(2) of Chapter 12, states that the UPDF shall be inter alia subordinate to civilian authority as established under this Constitution. The Judicature Act which regulates the administration of justice makes no mention of Military Courts or parallel systems of justice.
One need not be a Constitutional Law Professor to realise that serious errors were committed during the enactment of the UPDF Act which resulted into a trespass upon the unlimited jurisdiction of the High Court of Uganda. My third contention is that the range of offices in the UPDF Act is so broad as to provide for punishment of conduct unrelated to discipline of the Defense Force!!
The administration of military justice by court martials should be restricted to the control of the forces and to maintain discipline. Offences created outside this umbrella can also be competently and effectively adjudicated upon by well financed and equipped civil courts of judicature.
The GCM does not even have the professional competence to adjudicate over this broad spectrum and has demonstrated inability to apply basic judicious etiquette. Finally, some of the fundamental characteristics of a court are missing from the GCM.
The administration of justice requires that citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction.
Once the dispute has been submitted to the judicial body the parties should be able to rely upon there being no usurpation by any other person at the function of that court to decide disputes according to law.
All persons and the parties should be able to rely upon obtaining in that forum, the arbitrament of a tribunal which is free from bias against any party and the final decision will be based upon evidence adduced before it in accordance with procedures adopted in courts of law.
The GCM has violated universally accepted norms of judicial etiquette and, unlike ordinary civil courts where the Judicial Service Commission established a complaints procedure, there is no complaints mechanisms in case standards of justice are compromised.