|Brig. Michael Ondoga, UPDF (right)|
The difficulties of seating the panel in high-profile cases are apparent in this account
of the trial of Brigadier Michael Ondoga
, former commander of Uganda's troop contingent in the African Union Mission in Somalia. "Ondoga faces service offences that reportedly resulted into loss of lives and army equipment, diversion of fuel, loss of troop morale and feeding soldiers on food rations and consumption of dirty water . . . ." One member was disqualified because she had celebrated when Brig. Ondoga and a co-accused were arrested, but the defense later offered to allow her to serve because their concerns had been allayed. The prosecutor has objected on the ground that a member who has been removed cannot be restored to the panel. Despite the apparent loss of a quorum, the court-martial seems to have taken evidence. According to New Vision
, "Lt. Col. Edson Muhanguzi, a key prosecution witness, told court recently that Ondoga penned a confidential letter to the army chief of defense forces (CDF), Gen. Katumba Wamala[,] in which he highlighted the anomalies in their operation in Somalia." If any readers can clarify the process, please do so in a comment.
In Canada, pursuant to s.167 of the National Defence Act, a general Court Martial is composed of a military judge and a panel of five members. In R v. Wilcox, 2010 CMAC 534, the military judge proceeded with only four members. The Court Martial Appeal Court ordered a new trial because of the potentially substantial effect that the process followed had on the fairness of the trial. The prosecution had time to review the position it had taken at trial where it insisted on proceeding with only four members and consented to the new trial.ReplyDelete
I should add that another member also wanted to be excused from the panel because he was afraid that the trial would not be completed in time for him to join a one-year training course in the USA and his family who had already moved there. The judge refused his demand for recusal, thereby putting that member in a delicate position with respect to the length of the panel deliberations upon conclusion of the hearing. He had to be present at the beginning of his course otherwise he could not take the course. He would have to cancel all his arrangements in the USA and come back to Canada. This perspective increased the likelihood that he might be tempted to agree with the conclusion of the other members to shorten the length of the deliberations.
In any event, s.167 requires a panel of five and the accused is entitled to a panel of five.