Saturday, May 21, 2016

Military justice in Kenya

The Daily Nation has this lengthy account of military justice in the Kenya Defence Forces. Excerpt:

Court documents seen by the Sunday Nation provide interesting insights into the military's "hard justice" with soldiers being held in detention for long periods without trial and, in certain cases, being summarily dismissed.
"Very sadly, there is an alarming extent to which the military violates the rights of its staff," says Mr Katwa Kigen, a lawyer representing a soldier who has been in military detention since July last year. He says the detention is illegal. 
However, military spokesman Colonel David Obonyo defended the decisions taken by the court.
The article reviews a variety of cases, involving both officers and enlisted personnel, with the government spokesman pushing back on criticism. For example:
One interesting case is that of Lt Col Lukale Moses Sande, a former legal specialist in the military, who was summarily dismissed from the force in May 2014 after 13 years of service. 
Lt Col Sande's letter of termination reads, in part: "The above named senior officer whose termination of commission with benefits has been approved will proceed on annual/terminal leave." 
The letter is signed by Lt Col D.M. Mutegi on behalf of the Chief of Defence Forces. Lt Col Sande was never court-martialed or given notice to show cause, said Mr Were. 
"How do you go to work and get a termination letter out of the blue[]?" he asked. 
[Defense attorney Odera] Were contends that the termination was illegal since only the President has the powers to terminate Lt Col Sande's commission according to Section 251(a) of the KDF Act that deals with senior officers above the rank of a major. 
Lt Col Sande has sued the KDF in the High Court and is seeking Sh56 million in salary and allowances for the years he would have served until the age of 56, according to military rules. 
His dismissal, he say, is against the Employment Act 2007. 
However, Col Obonyo said the officer was not being honest about his dismissal. 
"He knows very well why he was dismissed. Ask him to tell you. He (Lt Col Sande) is a renowned lawyer and it is mischievous and unfair for him to come to the media about it," he said.
Another interesting case involves Major Laban Nyambok, who has been in military detention since April 2015 on suspicions of corruption at the Defence Forces Medical Insurance Scheme (Defmis). 
He was among eight soldiers court-martialed in November 2015. Major Nyambok, a medical verification officer at Defmis, has been held in confinement for more than a year, way above the 42 maximum days prescribed in Section 140 of the KDF Act. 
However, Mr Were says the military does not have the jurisdiction to try his client for the crimes he was being accused of. 
Section 124 of the KDF Act says any soldier suspected of corruption ought to be tried in civil courts under the Penal Code or the Economics Crimes Act.
What about the judges? According to defense attorney Were:
"The judge-advocate [a chief magistrate seconded from the civilian judiciary] is merely a figurehead in a court-martial. He is there to fulfill a legal requirement but not make the ultimate decisions."

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