ARTICLES

Military courts and human rights: A critical analysis of the compliance of Uganda's military justice with the right to an independent and impartial tribunal

Ronald Naluwairo

Lecturer, School of Law, Makerere University, Kampala, Uganda; Research Fellow, Advocates' Coalition for Development and Environment

SUMMARY

The United Nations Human Rights Committee has emphasised that the right to a fair trial (which includes the right to an independent and impartial tribunal) applies in full to military courts as it does to the ordinary civilian courts. Based mainly on Uganda's military justice legal framework, this article critically examines the compliance of the country's military courts with the right to an independent and impartial tribunal. It is established that Uganda's military courts fall far short of meeting the essential objective conditions for guaranteeing the right to an independent and impartial tribunal. First, they do not have adequate safeguards to guarantee their institutional independence, especially from the military chain of command. Second, the judge advocates appointed to Uganda's military courts do not have adequate security of tenure. Third, the judge advocates and members of Uganda's military courts do not have financial security. To address these deficiencies, a number of recommendations are made, including establishing the office of an independent principal military judge to be in charge of appointing judge advocates to the different military tribunals; establishing the office of an independent director of military prosecutions to be in charge of prosecutions within the military justice system, including appointing prosecutors to the different military tribunals; providing the judge advocates with security of tenure; and prohibiting the performance of a judge advocate or member of a military court from being used to determine his or her qualification for promotion or rate of pay.

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* LLB (Makerere), LLM (Cambridge), PhD (London); rnaluwairo@law.mak.ac.ug. I thank Prof Mashood Baderin who supervised my PhD research from which much of the analysis in this article has been drawn. I am also indebted to the two anonymous reviewers for their insightful comments on the earlier draft of this article.
1 Military law is a body of rules which regulates the conduct of members of the armed forces. The major objective of military law is to ensure discipline and good order in the armed forces. See AB Dambazau Military law terminologies (1991) 75.
2 See generally sec 179 of the Uganda Peoples' Defence Forces Act 7 of 2005 (UPDF Act). It is not possible to establish exactly how many cases are handled by Uganda's military courts. However, between 1992 and 2009, it was reported that the General Court Martial registered 554 cases, out of which 391 were disposed of. See The Monitor 3 August 2009. In addition to the General Court Martial, Uganda's military courts consist of the Court Martial Appeal Court, eight division courts martial and 70 unit disciplinary committees. See R Tukachungurwa 'The legal and human rights implications of the trial of civilians in military courts in Uganda: A comparative analysis' unpublished LLM dissertation, Makerere University, 2012 11.
3 International Covenant on Civil and Political Rights, adopted 16 December 1966; GA Res 2200A (XXI) UN Doc A/6316 (entered into force 23 March 1976). Uganda acceded to ICCPR on 21 June 1995.
4 The African Charter on Human and Peoples' Rights, adopted 27 June 1981 (entered into force 21 October 1986). Uganda ratified the African Charter on 10 May 1986.
5 See para 22 Human Rights Committee General Comment 32: Right to equality before courts and tribunals and to a fair trial CCPR/C/GC/32.
6 As above.
7 Civil Liberties Organisation & Others v Nigeria (2001) AHRLR 75 (ACHPR 2001) para 44. See also Principle 2 of the Draft Principles Governing the Administration of Justice through Military Tribunals (Principles on Military Justice) UN Doc E/ CN.4/2006/58 (2006).
8 Para 4 General Comment 32 (n 5 above).
9 Office of the High Commissioner for Human Rights Human rights in the administration of justice: A manual on human rights for judges, prosecutors and lawyers (2003) 115.
10 S Trechsel Human rights in criminal proceedings (2005) 46.
11 Para 19 General Comment 32 (n 5 above).
12 See arts 10 & 14(1) respectively.
13 Constitutional Petitions 02 of 2002 and 08 of 2002 (unreported).
14 Art 128(1) of the Constitution provides the guarantees for ensuring the independence of Uganda's courts. Among these guarantees are included the requirements that the courts should not be subject to the control or direction of any person or authority; that the judiciary should be self-accounting; and that the salaries, allowances, privileges, retirement benefits and other conciliations of service of judicial officers should not to be varied to his or her disadvantage.
15 Para 19 General Comment 32 (n 5 above). See also Principle 3 of the Basic Principles on the Independence of the Judiciary, adopted 6 September 1985; UN Doc A/ conf./121/22/Rev 1 1B.
16 Basic Principles on the Independence of the Judiciary (n 15 above) Principle 4. See also Morris v United Kingdom (2002) 34 EHRR 52 para 73.
17 See Principle 13 of the Principles on Military Justice (n 7 above).
18 R v Généreux [1992] CanLII 117 (SCC) 1.
19 R v Généreux 62.
20 As above. Sec 11(d) of the Canadian Charter of Rights and Freedoms provides for the right to an independent tribunal, among other things.
21 Act 24 of 2007.
22 Sec 184B(4).
23 Sec 184A(4).
24 Secs 184C(1) & 184F(1).
25 Sec 184E(2).
26 Judge advocates are the persons who advise military courts on issues of law and procedure.
27 R v Généreux (n 18 above) 63.
28 As above.
29 As above.
30 See art 111.22 of the Queen's Regulations and Orders for the Canadian Forces.
31 R v Généreux (n 18 above) 58.
32 Para 19 General Comment 32 (n 5 above). See also Principle 11 of the Basic Principles on the Independence of the Judiciary (n 15 above).
33 Principle 10 Basic Principles on the Independence of the Judiciary (n 15 above).
34 Principle 13 Principles on Military Justice (n 7 above).
35 Para 47 Principles on Military Justice (n 7 above).
36 (20 00) AHRLR 262 (ACHPR 2000) para 60.
37 Incal v Turkey (2000) 29 EHRR 449 para 67.
38 Para 46 Principles on Military Justice (n 7 above).
39 Incal v Turkey (n 37 above) para 68.
40 As above. See also the concerns expressed by the European Court in Findlay v United Kingdom (1997) 24 EHRR 211 paras 75 & 76.
41 Principle 12 Basic Principles on the Independence of the Judiciary (n 15 above).
42 Para 20 General Comment 32 (n 5 above).
43 Para 5.2 UN Doc CCPR/C/78/D/933/2000 (2003).
44 Para 8 HRC Concluding Observations: Armenia CCPR/C/79/Add 100.
45 Incal v Turkey (n 37 above) para 68.
46 Valente v Queen [1985] 2 SCR 704.
47 R v Généreux (n 18 above) 58.
48 R v Généreux 60.
49 R v Généreux 36.
50 See eg Incal v Turkey (n 37 above) para 71and Gunes v Turkey (Application 31893/96) judgment of 25 September 2001, para 46.
51 Holm v Sweden, judgment of 25 November 1993, Series A 279-A para 30. See also Cooper v United Kingdom [2003] EHRR 48843/99 para 123.
52 My emphasis.
53 See eg Cooper v United Kingdom (n 51 above) paras 120-125.
54 R Naluwairo 'Military justice, human rights and the law: An appraisal of the right to a fair trial in Uganda's military justice system' unpublished PhD thesis, University of London, 2011 171.
55 Arts 10 & 14(1) respectively.
56 Para 21 General Comment 32 (n 5 above).
57 As above.
58 (2000) AHRLR 180 (ACHPR 1995).
59 Constitutional Rights Project case (n 58 above) para 14 (my emphasis).
60 As above.
61 Dictum by Lord Hewart in R v Sussex justices ex parte McCarthy (1924) 1 KB 256 259.
62 See Daktaras v Lithuania, judgment of 10 October 2000, para 32. See also Valente v The Queen (n 46 above) 689.
63 Para 46 Principles on Military Justice (n 7 above).
64 As above.
65 Sec 2 of the UPDF Act (n 2 above) defines 'military court' to mean a summary trial authority, a unit disciplinary committee or a court martial.
66 See the definition of 'court martial' in sec 2 of the UPDF Act.
67 Under sec 198 of the UPDF Act, in the case of division courts martial and the general court martial, the High Command is given powers to appoint reserve members, any of whom may be called upon to sit as a member of the court for the purposes of constituting a full court or realising a quorum.
68 See secs 194, 197(1) & 202(c) of the UPDF Act. The High Command is comprised of mainly the top military hierarchy of the UPDF. According to sec 15(1) of the UPDF Act, it is comprised of the President; the Minister responsible for defence; members of the High Command on 26 January 1986; the Chief of Defence Forces; all service commanders; the Chief of Staff; all Service Chiefs of Staff; all Chiefs of the Services of the Defence Forces; all commanders of any formations higher than a division and all Division Commanders, inter alia. A disturbing issue with this composition is that the law entrenches certain individuals as members of the High Command, ie members of the High Command on 26 January 1986. The names of these individuals are listed in the third schedule to the UPDF Act. While the contribution of these individuals to the liberation of Uganda is highly appreciated, in a true democracy, it is not acceptable to entrench individuals in legal frameworks.
69 See sec 202(b) of the UPDF Act.
70 Sec 196(1) UPDF Act.
71 According to art 144 of the Constitution, a High Court judge can only be removed from office on recommendation of an independent tribunal (comprised of three persons being either judges, former judges or advocates of at least ten years' standing) that he or she is unable to perform the functions of his or her office arising from infirmity of the body or mind, misbehaviour or misconduct, or incompetence.
72 Cooper v United Kingdom (n 51 above).
73 Informal discussion with a former member of the Court Martial Appeal Court.
74 See art 144(2) of the Constitution.
75 Regulation 3(1) of the UPDF (Court Martial Appeal Court) Regulations, Statutory Instrument 307-1. It is worth observing that many important aspects of the Court Martial Appeal Court are not stipulated in the principal legislation (ie the UPDF Act), but are instead provided for in the regulations. One of the major implications of this arrangement is that many aspects of this court can be changed at any time by the Minister responsible for defence without parliamentary oversight or approval.
76 ER Fidell 'Military judges and military justice: The path to judicial independence' (1990) 74 Judicature 18-19.
77 Fidell (n 76 above) 19.
78 Principle 11 Basic Principles on the Independence of the Judiciary (n 15 above) (my emphasis).
79 See secs 197(1) & 194 of the UPDF Act and n 75 above.
80 Para 169(c) Report on the Mission to Guatemala, UN Doc E/CN.4/2000/61/Add.1.
81 According to sec 198(a) of the UPDF Act, all members of the division courts martial and the general court martial are eligible for re-appointment.
82 According to sec 195(1) of the UPDF Act, a unit disciplinary committee is comprised of the Chairperson who should not be below the rank of captain, the administrative officer of the unit, the political commissar of the unit, the regiment sergeant major of the unit, two junior officers and one private.
83 n 13 above.
84 As above.
85 R v Généreux (n 18 above) 58.
86 Sec 55(1)(f) UPDF Act.
87 R v Généreux (n 18 above) 59.
88 As above.
89 Sec 55(1)(f) UPDF Act.
90 R v Généreux (n 18 above) 60.
91 Basic Principles on the Independence of the Judiciary (n 15 above) Principle 11.
92 Findlay v United Kingdom (n 40 above) para 73.
93 Constitutional Rights Project case (n 58 above) para 14 (my emphasis).
94 Gunes v Turkey (n 50 above).
95 Gunes v Turkey (n 50 above) para 43.
96 As above.
97 As above.
98 Naluwairo (n 54 above) 171-174.
99 Sec 119 of the UPDF Act gives military courts jurisdiction over many categories of civilians. In Uganda Law Society v Attorney-General of the Republic of Uganda, Constitutional Petition 18 of 2005 (unreported), the Constitutional Court held by a majority of three to two that the trial of civilians by military courts was not inconsistent with the right to an independent and impartial tribunal as protected in art 28(1) of the Constitution. With respect to the justices of the Constitutional Court, this cannot be a correct decision. This article has firmly established that, under Uganda's current military justice legal framework, the country's military courts cannot comply with the right to an independent and impartial tribunal.
100 Incal v Turkey (n 37 above) para 72.
101 As above.
102 Status of Forces Agreements are bilateral or multilateral agreements which establish the framework under which military personnel of one country operate in another country. For a good discussion of Status of Forces Agreements, see RC Mason 'Status of Forces Agreement (SOFA): What is it, and how has it been utilised' 12 March 2012 http://www.fas.org/sgp/crs/natsec/RL34531.pdf (accessed 12 September 2012).         [ Links ]