|Lt. Col. Paddy Ankunda, UPDF|
For quite some time now, legal minds in this country have been debating the issue of whether the military courts martial have the legal mandate to prosecute civilians or not. To some people, taking civilians before a military court may appear draconian especially if they haven’t bothered to find out how these courts world over get the power to try civilians. For starters, let me delve into the law.
According to Sec 119 (1) g and h, of the UPDF Act No 7/2005, sub sec (g) stipulates that every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence; and (h) every person found in unlawful possession of (i) arms, ammunition or equipment ordinarily being the monopoly of the Defence Forces; or (ii) other classified stores as prescribed, is subject to military law and can be tried in military courts as appropriate.
This was further supported by the ruling in Civil Appeal No 04 of 2012, between Namugerwa Hadija (Appellant) and the [Director of Public Prosecutions] and the Attorney General (respondents). Namugerwa Hadijah in that appeal challenged government on whether or not it was right for her brother Ssali Mohamed to be tried in the Military General Court Martial. The appellant claimed in her application that her brother was a civilian and that therefore the General Court Martial had no jurisdiction over him. The High Court had earlier dismissed her application and her appeal to the Court of Appeal had also been dismissed. Unsatisfied with these court decisions, she further appealed to the Supreme Court of Uganda, the highest court in the land.
The appellant’s brother, Ssali Mohamad along with two others was on 14 Jan 2011 were arrested and charged before the military court with Aggravated Robbery and two other offences relating to the Firearms Act. To cut the long story short, Ssali Mohamad had been found in unlawful possession of a B[l]ack Star Pistol Number P99A with which it was alleged he robbed one Edson Nuwamanya of a motorcycle in Makindye suburb of Kampala. He was accordingly charged for unlawful possession of a firearm and ammunition according to Sec 3(1) and 2(a) and (b) respectively of the Fire Arms Act.
In his judgment, the lead judge, His Lordship Jotham Tumwesigye, JSC stated thus... “it is clear to me that civilians in Uganda can become subject to military law and once they become subject to military law, they will be tried by the General Court Martial”. The judges further concluded that… “…therefore, until Sec 119 (1) (g) and (h) of the UPDF Act is repealed or declared to be unconstitutional by a competent court, it will remain valid, effective and enforceable regardless of the misgivings of human rights advocates about it”.
It is also on the basis of this law that the UPDF General Courts Martial have tried and will continue to try civilian personnel who come, by their own choice, within the ambit of these sections of the law quoted above. The UPDF Act under Section 2 describes clearly the service offences for which serving officers and their accomplices may be tried. For example, the General Court Martial is currently prosecuting those civilians who conducted the Rwenzori attacks in Bundibugyo and Kasese using arms. In these attacks, it is clear that the suspected planners, coordinators and financiers were high profile members of the society. Fortunately, all human beings are equal before the law and as such the planners and executors will be treated equally under the law.