The trials and tribulations of Rtd. Col. Dr. Kizza Besigye and 22 others: a critical evaluation of the role of the general court martial in the administration of justice in Uganda
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When the Chairperson of the Sessional Committee on Defence and Internal Affairs at the time, Hon. Simon Mayende introduced the Uganda Peoples Defence Forces (UPDF) Bill for the Second Reading, he informed Members of Parliament that the Bill was expected to harmonize military law with the Constitution and to improve the administration of justice in the UPDF. The Bill was developed within the overall context of professionalizing the UPDF.It was passed into law (i.e. The UPDF Act, Act No.7, 2005) in March 2005. The indictment and various trials of Rtd. Col. Dr. Kizza Besigye and 22 others, present one of the first major tests of whether the new law has achieved its intended objectives. In particular, the trials provide the opportunity to examine the compliance of the UPDF Act with the Constitution with particular regard to issues of administering justice, especially as dispensed by the General Court Martial (GCM). This Working Paper is an analysis of the role of the GCM in the administration of justice in Uganda. The paper makes the following key observations, conclusions and recommendations: • Any State organ that purports to exercise judicial power in Uganda must adhere to certain minimum international and constitutional standards of administering justice. In particular, such organs are obligated to protect and uphold the fundamental right to a fair hearing. The right to a fair hearing is multifaceted and very broad in nature. It includes the right to a public hearing by a competent, independent and impartial court. It also includes the right to be presumed innocent until proved guilty, the right to legal counsel, and the right not to be subjected to double jeopardy, among others. In their totality, these rights constitute the minimum standards for administering justice in a democratic society. • The indictment and trial before the GCM of Rtd. Col. Dr. Kiiza Besigye and 22 others sparked off a wave of public concern over the competence of the military court to conduct a fair and just trial in keeping with the above mentioned rights. It also presented an opportunity for a re-examination of the role of this court in the administration of justice in the country. While observing that the law governing the GCM has several laudable provisions on the right to a fair hearing, the paper makes the following conclusions: (i) The military court is established outside the Constitutional frame work for the exercise of judicial power and the administration of justice in Uganda; (ii) (iii) The court is not an independent tribunal. It lacks the minimum guarantees for an independent and impartial tribunal, which include; security of tenure of the members of the court, financial security and institutional independence with respect to matters of administration that relate directly to the exercise of the tribunal’s judicial function; (iv) The court lacks the necessary legal personnel for the effective administration of justice; and (v) The concurrent jurisdiction of the military court and the High Court to try offences of a generic nature defeats the main objective and rationale of the law against double jeopardy. The paper also questions the rationale of trying civilians accused of non-military offences, moreover in courts that are not designed to try non-military personnel. The GCM is incompetent to interpret and uphold the fundamental human rights of accused civilians. The court also lacks the necessary legal capacity to deal with the legal intricacies and evidential technicalities that most civilian offences present. The paper concludes with the following recommendations: (i) The GCM should be stripped of the jurisdiction to try civilians of non-military offences; (ii) The GCM should be made explicitly subordinate to the High Court; (iii) Appeals from the military court should go to the High Court in line with the Constitutional framework for the exercise of judicial power and the administration of justice in Uganda; (iv) The appointment of members of the GCM should be made by an independent body, preferably the Judicial Service Commission (JSC) on recommendation of the High Command; (v) The GCM Chairperson should be a retired, non-serving army officer appointed for a non-renewable six year period; (vi) The rest of the members of the GCM should be appointed for a period of three years, renewable only once, subject to satisfactory performance. This arrangement provides the necessary security of tenure of members of the court and guarantees sufficient continuity and institutional memory, and; (vii) In order to enhance the GCM’s capacity to handle complex legal issues and to help build public confidence in the court, the Chairperson of the court should be a person qualified to be appointed a Grade I Magistrate, while the rest of the court members should have legal training or a background of at least the equivalent of an ordinary diploma in law.