Two human rights organisations have raised the red flag on the UPDF court martial, explaining that its trials "are fraught with substantial and procedural irregularities that render the attainment of a free and fair trial structurally and procedurally unachievable."
According to a report, which was prepared by the Uganda Human Rights Commission (UHRC) and the UN Office of the High Commission for Human Rights (OHCHR) after a study of the military court martial, the institution routinely violates the rights of those who appear before it.
"Key among the violations are that: suspects are denied the right to a speedy trial, evidence obtained through torture is routinely accepted in evidence without inquiry into allegations made by suspects, suspects do not have adequate facilities to prepare their defence, the legal service provided during trials by the UPDF falls far short of the requisite standards and there are overt violations of the presumption of innocence," says the 47-page report.
Highly-placed sources revealed to The Observer that the contents of this report, titled, Justice for civilians in Uganda's military courts: an analytical report, were discussed in a June 2016 Army Council meeting. Thereafter, the senior leadership of the UPDF, which comprises the army council, decided to shelve the document without making a decision on it.
The report, which becomes public at a time when Nakawa MP Michael Kabaziguruka is battling his trial in a court martial, makes a series of recommendations to the UPDF court martial, the Supreme court and Parliament. Kabaziguruka petitioned the High court saying the court martial did not have the right to try him, but he lost that case.
In their report, the rights bodies recommend that the court martial should urgently process and implement the transfer of civilian cases as earlier mentioned, dispose of cases that have no evidence or witnesses traced, and release on bail suspects who have spent the constitutionally-mandated period on remand.
The report further says that because all suspects before the court who cannot afford private lawyers are represented by UPDF officers, the suspects doubt the impartiality and quality of legal service provided.
"We recommend that the court allow all accused persons before the court martials to have choice of lawyer and state briefs to private lawyers to defend the accused persons as most are charged with capital offences," it says.
When contacted over the report on Tuesday, the UPDF spokesperson, Lt Col Paddy Ankunda, asked for a copy of the report from The Observer so he could study it. Two days later, Col Ankunda insisted that the UPDF is within its legal rights to try civilians in the military courts.
"We will have to consult the [UPDF] directorate of legal affairs before we respond to that report [in detail]. But what we are convinced about is that the law gives us the mandate to try civilians in the court martial," he said.
To reinforce his argument, Col Ankunda cited two clauses from Section 119 of the UPDF Act, which address the controversial issue of civilians that can be subjected to military law.
"The following persons shall be subject to military law... (g) 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 other classified stores as prescribed," explains the UPDF Act.
However, the report cites the Constitutional court ruling in the Uganda Law Society vs Attorney General case of 2009, which says trying civilians in a military court violates Article 28 (1) of the Constitution that calls for a fair hearing.
"...as a general rule civilians should not be tried by military courts, where the civil courts have competent jurisdiction to try them ...those civilians who fall under sections 119(1)(g) and (h) could be adequately dealt with in the civil courts where they expect to get a fair trial," explains the ruling.
The report makes other recommendations to the court martial, including that it should develop a mechanism to handle cases that are long overdue, as well as for investigating torture allegations.
"We recommend that the court put in place an independent mechanism to ensure investigation into allegations of torture by the courts and directives for handling of evidence and testimony allegedly obtained through torture in compliance with appropriate human rights standards," says the report.
The report urges the Supreme court to urgently provide clarification and direction on the question of trial of civilians in military courts and the exercise of concurrent jurisdiction between the military and the civilian courts over certain offences.
"The decision of the Constitutional court and the Supreme court in the Uganda Law Society vs Attorney General case has been given varied and contradictory interpretation by both the lower courts and the JLOS institutions," it notes.
To parliament, the report recommends an amendment of the UPDF Act to, among others, establish a fulltime court martial that is functional at all times with fulltime personnel for each division of the army, and with personnel who possess the appropriate legal qualifications.
In its explanation on why the amendments to the UPDF Act are needed, the report says, "The judicial function in the court martial is exercised by military personnel who may not have legal training. Court martial office bearers are appointed on an annual basis. As a result, the court is non-functional for part of the year, leading to backlog of cases."
During the 2005 trial of former presidential candidate Kizza Besigye and 22 others in the High court, Justice John Bosco Katutsi ruled that the "continued detention of Besigye on a purported warrant of commitment from the GCM was illegal, unlawful and in contempt of the High court order to release the applicant on bail."
Later, the Uganda Law Society filed a petition to the Constitutional court for clarity on the issue. What they got, however, was a series of contradictions. In January 2009, the Constitutional and Supreme courts gave different and conflicting interpretations to the judgments of the court.
To this day, according to the two rights bodies, there is no consensus of the implication of the decisions of the courts; and there are hundreds of civilians waiting uncertainly for their trials before the CM.
The rights bodies' study, which was compiled by independent researchers, with data collected during the period between September 2012 and March 2013, found that the UPDF has taken advantage of the uncertainty to continue the trial of civilians in military courts across the country.
"In the 5th division, division headquarters at Acholi-Pii, there were eight civilian detainees-all arrested on allegations of possessing guns, while the 503 Brigade Commander informed OHCHR that, "there were about 16 civilian detainees in their detention facility...," the report says.
The report also stings the UPDF on the capacity of the court martial to provide speedy trials, saying several structural factors deprive the military court of the capacity to adhere to and provide for a fair and speedy hearing.
"While part of the rationale provided by the military for resorting to military tribunals as the preferred fora for the trial of military personnel and civilians was that they would dispense justice quickly; the delays in trials before the CM is one of the most glaring failures in the military justice regime," says the report.