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 No7/2005, 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 DPP 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 Back 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.
The Role of Military Intelligence
In relation to the law above, the Chieftaincy of Military Intelligence (CMI) in UPDF is mandated under the law to investigate and assemble evidence before prosecution can take place. In this process, investigations take different dimensions including inviting, arresting, searching and interviewing both suspects and would-be witnesses. And this brings me to the recent hullabaloo in the media about one Francis Matovu, a business man in Kampala.
Matovu was arrested by Police along Entebbe road around early August. Since we work closely with other agencies in dealing with national threats, police notified us about this arrest. Eventually, it was found out that his name featured very prominently in CMIs investigations about Gen David Sejusa’s treasonable self-declared offences. It is on this basis that we requested police to allow us interview Mr Matovu to establish his links with the renegade general. It is a known fact that Gen Sejusa openly declared war on the government of Uganda which is a treasonable offence under Sec 23 of the Penal Code Act Cap 120.
Mr Francis Matovu whose name appeared in the media recently has been featuring in most investigative reports about Gen Sejusa. Unsurprisingly, the businessman has on his own admission stated that he is a close associate of Gen Sejusa (See The Weekly Observer of 22 Aug 2014). He also admits that he has been making financial remittances to Sejusa in the UK.
Important to note is that many names have featured in our investigations about General Sejusa. However, Mr Matovu has been clearly resourcing Gen Sejusa as he admits himself. Isn’t this reason enough for CMI to invite him to assist in the investigations?
Importantly, Mr Matovu was not detained, tortured or even held for eight hours as he claims. In fact he did not stay for longer than three hours at CMI headquarters.
By and large, CMI will continue to pick interest in whoever works for Gen Sejusa for as long as we are investigating this matter. Besides, the government of Uganda is in advanced stages of asking the UK government to hand him over for prosecution. What needs to be understood is that those (both civilians and the army) who shall be found to be aiding and abetting him shall be prosecuted under the laws of Uganda.
The writer is the Defence & UPDF Spokesman