The arrest of senior police officers last week by the Chieftaincy of Military Intelligence, CMI, and their arraignment before the General Court Martial has raised procedural questions, which might expose the entire trial process to legal challenge, sources have suggested.
Julius Odwe, a retired deputy inspector general of police, said the arrest of police officers by CMI was strange.
“The normal process could have been, if there was an investigation into any misconduct or criminality by the police, the investigation could have been managed and coordinated by the police under the supervision of the Director of Public Prosecutions in case of criminal proceedings and the Professional Standards Unit, in case of any alleged professional misconduct,” Odwe, who retired in 2011, said.
Odwe argues that ordinarily “if an investigation reveals that there was some criminality committed by any person; be it a police officer, such a person is supposed to be arrested by the police, if it is done by another person, such a person after effecting the arrest is supposed to surrender the person to police.”
Under Uganda’s laws, other security agencies like CMI should ideally intervene in support of a police action.
“There is no way that CMI assumes the role of the police because even when the police abdicates its duties or roles, there are in-built mechanisms within the Police Act that enable the same police to deal with its internal weaknesses,” Odwe said.
Last week, Okoth Ochola, the deputy inspector general of police, surrendered two senior police officers and seven lower-ranking personnel to CMI. They were later on charged with kidnapping and being in illegal possession of firearms contrary to the UPDF Act.
Those charged include; the commandant of Police Professional Standards Unit, Senior Commissioner of Police Joel Aguma; Senior Superintendent of Police Nixon Agasirwe, former commander of Police Special Operations; Sgt Abel Tumukunde of the Flying Squad, Assistant Superintendent of Police James Magada from Crime Intelligence; Faisal Katende under the Flying Squad and Amon Kwarisima.
Civilians charged were Rene Rutagungira, a retired soldier in the Rwandese military, and Bahati Mugenga Irunga, a Congolese national.
The accused are alleged to have kidnapped and forcefully repatriated Lt Joel Mutabazi, a former bodyguard of Rwandan president Paul Kagame, who had been granted political asylum in Uganda. Mutabazi and Jackson Kalemera were among several other refugees repatriated back home where they faced threats to their lives.
Police spokesman Asan Kasingye has said the force was completely in the dark about the arrests of its people.
“I cannot tell why the police officers were being arrested,” Kasingye said. “If this is to do with professional misconduct, that should have been handled in accordance with Part VI of the Police Act.”
The section he refers to establishes a disciplinary procedure for all police employees.
Section 49 provides that there shall be established a police disciplinary court at every police unit, thus, (a) force headquarters; (b) regional or extra-regional police headquarters; (c) district or division headquarters; (d) police stations; and (e) police post or police detachment. The police disciplinary court shall upon hearing and determining any disciplinary matter involving a police officer have powers to award any punishment authorised by or under this Act.
It adds: The power of disciplinary control of a police officer— (a) of or above the rank of assistant commissioner shall vest in the Police Authority; and (b) below the rank of assistant commissioner shall vest in the Police Council acting through a police disciplinary court. Upon the trial process and a finding of guilt is recorded against a police officer, section 47 of the Police Act provides that the police authority, besides other penalties, shall have the power to dismiss a police officer of or above the rank of assistant superintendent of police.
However, the dismissal of a police officer of or above the rank of assistant commissioner of police shall be subject to the written approval of the president.
It is provided under the Police Act that the existence of disciplinary proceedings is not a bar to criminal proceedings, which proceedings shall take precedence.
Dr David Mushabe, a practicing lawyer who has represented people like Gen David Sejusa before the General Court Martial, said the choice of criminal proceedings against police officers being conducted by CMI was informed by practical prudence, not the law.
“It is illegal but the basis for this was that it appears that the police could not have investigated itself,” Mushabe said.
Mushabe says the police officers should have been charged in the civilian courts since they are not subject to military law.
CMI has justified the trial under section 119 of the UPDF Act, which provides that persons subject to the military law include; every person found in unlawful possession of arms, ammunition or equipment ordinarily being the monopoly of defence forces or other classified stores.
This provision of the UPDF Act has, however, been subject to constitutional interpretation in the case of Attorney General vs Uganda Law Society, wherein Justice Joseph Mulenga (then a justice of the Supreme court) held that, “For an offence under an Act other than the UPDF Act to be within the jurisdiction of the General Court Martial, it must have been committed by a person subject to military law.”
Other members of the Supreme court panel included; former Chief Justice Benjamin Odoki, Supreme court justices John Wilson Tsekooko, George Wilson Kanyeihamba, Bart Katureebe, James Ogoola and Christine Kitumba.
In the ULS case, the brief facts were that in 2005, Col (Rtd) Dr Kizza Besigye and 22 others were remanded at Luzira prison pending trial by the High court on an indictment for treason and concealment of treason.
On November 16, 2005, the accused persons appeared before the High court (Lugayizi J.) at Kampala, on a bail application.
The judge granted them conditional bail. But before they could be released, a group of heavily armed security agents (the ‘Black Mamba’) invaded the court, interrupted the processing of release and as a result the accused persons were returned to Luzira.
The next day, they were taken to the General Court Martial where they were charged with terrorism and unlawful possession of firearms.
Following interpretation of the provisions of the UPDF Act as being against the articles 28 and 44 of the Constitution on fair trial, Mulenga held that; “In the instant case it was not alleged, let alone shown, that the accused persons committed either of the two offences while they were subject to military law. Without that link, neither of the two offences can be called a service offence within the meaning of the said definition.”
Caleb Alaka, a lawyer leading the police officer’s legal team, told The Observer yesterday that they plan to focus on the procedural breaches.
“We are preparing a constitutional challenge of the entire process. We think they should have taken the police officers to the civilian courts or the police courts. Besides, they are not subject to military law,” Alaka said.