Prime Minister Amama Mbabazi and the late Brig Noble Mayombo crafted parts of the army law that have ensnared Brig Henry Tumukunde, a senior NRM official has told The Observer.
Commenting on the origins of Tumukunde's fallout with the establishment and its tortuous aftermath, the official said that the "draconian" clauses of the UPDF Act were aimed at suppressing the dissenting views of army officers, especially on the question of the so-called third term for President Museveni.
"With foresight and at the time of political uncertainty especially in regard to the issue of lifting presidential term limits, it was agreed that the clause of airing harmful propaganda be inserted to cow some officers who wanted to speak out openly against amending the Constitution," said the official familiar with the Act, who requested to remain anonymous to speak freely.
By the time the UPDF Act was tabled and debated in the Seventh Parliament in 2005, Amama Mbabazi held the two sensitive dockets of Defence and Attorney General, earning him the tag "super minister".
Mbabazi and Mayombo, then a fast-rising officer, were believed to be close confidants of the president. During the plenary session in 2005, Mbabazi, then acting Attorney General after the death of Francis Ayume, dictated the tempo and pace of the debate on the UPDF bill and the then Speaker Edward Ssekandi often consulted him.
At the peak of the debate, Mbabazi had a sharp exchange with then Lands minister Maj Gen Kahinda Otafiire over whether the outspoken general was a member of the coveted historical High Command. A few days later, Mbabazi returned with a list which excluded Otafiire's name. Many insiders believe the list was approved by the Commander-in-Chief.
The latest revelation comes days before the State completes its submission in the trial of the former intelligence Tsar, which has spanned over eight years.
But army publicist Col Felix Kulayigye told The Observer today: "Those who want some of those clauses removed want anarchy. For Tumukunde, he has been arraigned in court and we expect him to defend himself. If he had been detained without trial, then he would say the army behaved badly. The clauses help to maintain discipline in the army because everyone cannot wake up and make unfounded allegations."
What happens in the next few days and weeks on the Court Martial front could prove critical to the fate of Brig Tumukunde. Sources close to Tumukunde, who is facing charges of spreading harmful propaganda, believe he is a prisoner of conscience and "the repugnant and archaic" clauses in the UPDF Act that were enacted to target dissenters like him.
Prosecution alleges that Tumukunde, during a talk-show which aired on Radio One, May 27, 2005, made statements without authorization and contrary to sections 66(1),(2) and (5) of the UPDF Act. According to the UPDF Act, a person subject to military law who spreads harmful propaganda commits an offence and is, on conviction, liable to suffer death where there is failure of operation or loss of life or, in any other case, liable to life imprisonment.
Spreading harmful propaganda means discouraging other soldiers from carrying out an operation, speculation about an operation, making oral or written statements ill of the Defence forces or of the government not being constructive criticism. It could also be interpreted as spreading false stories intended to undermine support for or morale of members of the Defence forces or to incite support for or boost morale of the enemy.
However, Tumukunde's attorneys believe the State will have a tall order securing a conviction against him, especially if he appeals in case he is convicted in the General Court Martial (CGM), which they believe acts on the whims of the appointing authority.
"Actually, I'm worried of continuing to come before this court because anything out of here is better for me," Tumukunde told the court-martial chaired by Brig Fred Tolit, early this month.
His lawyers are already aware that the host of the programme during which Tumukunde is said to have aired the harmful statements, David Mushabe, has refused to hand over a copy of the recording to the court martial. As a way of extricating himself from the GCM, Tumukunde has reportedly instructed his attorneys to prepare for an appeal, where he believes he will get an acquittal.
"He [Tumukunde] wants this long trial in the biased court martial to end so that he can appeal in the Constitutional Court or the Appeal General Court Martial, which he believes is impartial," says a source.
His attorneys will also attempt to prove that what he aired was constructive criticism and free speech, which is accepted and demonstrably justified in a democratic dispensation, as provided for in the Constitution. They will also try to draw parallels between Tumukunde's views and other controversial statements made by officers like Gen David Sejusa and Maj Roland Kakooza Mutale.
At the time of his arrest, though, Tumukunde was a serving officer representing the army in the Seventh Parliament, he had joined other regime malcontents to reject the lifting of presidential term limits.
"Today he is paying the price for what he said and can only be forgiven if he repents in the open," said a source.
On May 28, 2005, Tumukunde was forced to resign his seat in Parliament and arrested subsequently.
Raid at his home
On the day of his arrest, truckloads of military police stormed Tumukunde's house which is opposite the residence of the British High Commission security team in Kololo. The soldiers who were under the command of then Col Dick Bugingo, the bellicose military police boss, at about 8pm scaled the wall fence of Tumukunde's house before jumping inside. Because he was a high-ranking officer, the army had decided to send then chief of staff, Brig Joshua Masaba, to oversee the raid at Tumukunde's house.
Alongside Masaba was then Brig Kale Kayihura who was a presidential advisor on Military Affairs and then Maj James Mugira, who was the deputy CMI boss. According to sources, a scuffle broke out between the British High Commission security team and the officers who had come to execute Tumukunde's arrest. But Masaba and his team prevailed. At the time of his arrest, Tumukunde's children had coincidentally returned from school and were removing their suitcases from the vehicle when the soldiers pounced.
Tumukunde's children fruitlessly tried to block their father's arrest. A source revealed that on seeing Kayihura and Mugira, the children were shocked because they knew the two senior army officers as close friends to their father. A van had been brought to transport him but Tumukunde rejected such niceties, preferring to board a pickup truck instead.
He was carted off to jail at the officers' mess on then Acacia avenue where he was incarcerated for over one and a half years. Many of those who visited him during his arrest claim Tumukunde was kept in a single room, whose conditions resembled that of a dungeon and was deprived of communication with other prisoners.
"It was like solitary confinement," a source told The Observer.
At the premises, 50 heavily-armed military police soldiers and four senior officers were deployed to closely watch over the installation. Sources say the arrest was supposed to break the spirit of Tumukunde who upon his release would be remorseful and apologetic for his actions.
But on January 9, 2013 while appearing before the court martial, Tumukunde refused to defend himself, says he would rather go to Luzira.