UPDF Amendment Bill: What If The Other Voice Was Listened To?

By Spurb Ernest

Alaso said the Parliament has made its major contribution to the instability, political uncertainty and human rights suffering in Uganda.

The endorsement of the Uganda People’s Defence (UPDF) Amendment Bill by Parliament continues to draw mixed reactions as it awaits Presidential assent.Human and political actors say the Parliament missed the chance to correct vices committed under the military courts. 

Alliance for National Transformation Party (ANT) Acting National coordinator, Alice Alaso said Parliament abandoned the due process in the rules that govern the procedure for purpose of passing a bad law.

“The UPDF Amendment Bill has been forced down the people of Uganda, it is an attacks on constitutionalism, constitutional order and the rule of law said “Alaso a former Member of Parliament. 

“A bad law to further kidnap and torture of civilians by the court martial. Even those who voted for you should be worried. In the case of public Order Management Act, the former Prime Minister tasted its application live. May the return of civilians to court martial came round to the very door step of those who enacted it” she added.

Alaso said the Parliament has made its major contribution to the instability, political uncertainty and human rights suffering in Uganda. 

She pledged solidarity with all efforts to overturn what she described as a bad legislation.

Generally, there is a consensus that the amendments as passed by Parliament were long overdue save for clauses that require the trial of civilians in military courts. There is feeling that with the new structures in command, pension, remuneration as medical services the welfare of the soldier would be better catered for.

  “As you realize, this whole conversation relates to one issue. Trial of the civilians in military courts” said Bugweri MP Abdu Katuntu.               

Katuntu has through out the process called for a conversation among lawyers and the Attorney General’s Chambers to have the issue of trial of civilians and other related UPDF soldiers resolved before they headed to the amendment process and final adoption of the Bill.           

He was seemingly ignored including on the fact the some lawyers had been confused by the judgments from the Justice of the Supreme Court Led by the Chief Justice Alphonse Chigamoy Owiny-Dollo.   He had suggested the need to go to the specifics on what judge said what in January 31st Supreme Court ruling on trial of civilians in military courts.                 

According to Katuntu, by doing so, the parliament would have narrowed the point of interrogation. “What did the judgement say? And if we are implementing this judgment, what are the confines” he said.          

“As you do realize, different judges had different arguments then they came to the same conclusions” he said.    

As the Parliament rushed to ensure that the Bill is debated and passed with in this session, there is a feeling that the process may have missed some arguments and conclusions on matters of law that would have led to a consensus on some of the controversies. “It will help us other than having a general conversation about trial trial, civilian civilian” stated Katuntu before the Committee reported back to Parliament.             

The Attorney General, Kiryowa Kiwanuka had during the debate and at the Committees stated that the Supreme Court did not rule against the trial of civilians in military courts. 

Other lawyers have argued otherwise. Now it appears that the house was led to a guess work on what each of the judges said. Some lawyers have stated that these matters could again be put before the Constitutional and Supreme Courts in the even that one comes up to challenge the new law when it comes into effect.  

There is also concerns about the denial of soldiers the right of appeal and the rights under the Human Rights Enforcement. These and other issues were raised at the Committee that processed the Bill but they were not carried during the debate on the floor of Parliament.

Abdu Katuntu had insisted that whoever was talking about courts Martials needed to know that even soldiers needed justice.

“Because even soldiers need justice. They need justice and they should be tried professionally. So we are not here to protect the interest of civilians. We are here to protect of everybody who appears in the court martial” he stated.

Some lawyers who are considering filing a petition against the new law  it does not give soldiers the right of appeal that exists for ordinary murder trial after the t High Court. Civilians normally go through two appeals through the Court of Appeal and Supreme Court.   

This matter had been raised by Lawyer, Jude Byamukama, the Managing Partner at JByamukama & Co. Advocates.                

“Because if somebody is tried for murder before the General Court Martial the Bill said they have only one right of appeal that is the Court of appeal and it closes there” said Byamukama who has had the opportunity to represent soldiers in court. He has explained the denial of the soldiers to exercise the right of appeal through all the stages raises questions about equality of the law.                      

“Because those people are charged with murder. It can’t be that a civilian charged with murder should have two appeals. And soldier charges with murder has one appeal. It simply creates s system that is not fair” said Byamukama before the Parliament passed thee Bill into law. 

Byamukama had wanted the Parliament to include a clause in the amendments in the Bill to have the UPDF law cross referenced to the Human Rights Enforcement Act.

“What that means is that accused persons who are charged in the military Justice system cannot benefit from the provisions of human rights enforcement Act,” he noted.   Lack of wider consultations before the bill was passed 

There have been complaints that members of Parliament and generally the public were not granted ample time to consult on the Bill because the executive was seemingly in a rush. 

Byamukama has stated that the lack of wider consultation could lead to the legal challenge about the law once it comes into force.

“Article 38 of the constitution gives the citizens the right to people to participate in public affairs. And in many countries, our equivalent of article 38 of the constitution has been interpreted to mean that when parliament is enacting legislation, there should be sufficient opportunity for citizens to make submissions” Byamugisha argued.

The Uganda Law Society which has sued the government on a similar matter for instance wrote to the Clerk to Parliament declining to appear before the committee chaired by Stephen Baka Mugabi. The ULS said it had not been given ample time to study the Bill.

Lawyer and FDC Vice President, Yusuf Nsibambi has equally stated that the “rush” of the Bill through the joint Committee and later through Parliament was ill-motivated. He has also state that the government didn’t t not follow the constitution when it came up with the amendments.  “Whatever happened is unconstitutional.

“The Supreme Court did not decided that Parliament should make good law out of a bad law. The decision had two key matters for us to consider as Ugandans.  That it is unconstitutional to present and hear matters to do with civilians in a military court. Because military courts are disciplinary committees of the military. They court said they have no competence and jurisdiction to handle matters which are supposed to be in civilian court” he said “Where we have officers liked judges trained and with competence to handle such issues”