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VI. Compounding the Abuse: Prolonged Detention, Courts Martial

360-day Detention Before Setting a Date for Trial

The Ugandan Constitution, article 28 provides: “(1) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.”¹⁸¹

However, aspects of the current system in handling capital cases in particular mean that this right is often violated. There are three tiers or stages the defendant must pass through before trial. There is the initial forty-eight hour period before being charged—as described above, commonly violated. After the initial charges are made, in capital cases, the prosecution can relax. The Ugandan constitution provides that suspects charged with a capital offense—which includes treason and terrorism—may be held in pre-trial detention for up to 360 days.¹⁸² At the 360^th day, the case is set for trial, at which time evidence must be available to warrant holding the defendant further, and when the defendant enters his plea. If by the end of 360 days there is not sufficient evidence to warrant a trial, then the defendant must be freed.

This lengthy period of 360 days allows for and encourages police and prosecutorial inefficiency in the gathering of evidence.¹⁸³ Certainly the police are not under any time pressure to collect evidence while it is still fresh. Although the prosecutor is required to appear at the magistrates’ court every two weeks or so with the prisoner, the prosecutor routinely says, “Investigation still pending,” or “the investigation is still continuing, we need a further remand.” The court routinely grants another adjournment and remands the prisoner to prison.

Prolonged Detention Awaiting Trial: As Years Go By…

Even if the evidence is sufficient for trial, the defendant must wait again. The wait for trial may be the longest period of all, and there is no time limit set by legislation on this stage, regardless of whether or not the defendant has been able to post bail.

The indefiniteness of the time the defendant must wait for trial, usually in jail because of unavailability of bail, can be converted to pressure on the defendant to abandon his right to fair trial and to sign a request for amnesty, thereby admitting guilt.

Thus there are few cases of treason or terrorism that actually are tried. The charges are used instead to justify prolonged arbitrary detention, sometimes for years.

Civilians Tried in Courts Martial

According to the government of Uganda, a law of 1989 permitted civilians found in association with the military in the commission of crimes could be tried in courts martial.¹⁸⁴ The court martial has wide jurisdiction, not only over retired military officers but also over civilians believed to be acting together with any active duty or retired soldier or officer. Thus, in the Bukenya case in October 2003 (above), nine persons were charged with terrorism before a court martial, although only one was military, and he was retired.¹⁸⁵

Trying civilians in a court martial (a military tribunal) is an abuse of the civilian defendant’s rights to a fair trial. Courts martial abridge many constitutional and international rights of military personnel, and this is usually justified on the basis of greater need for discipline in the armed forces. To impose these limitations on the rights of civilians and ex-military personnel, however, is not reasonably related to this justification. Those who leave the military after serving a term are civilians for other purposes; they are not required to reside in barracks, wear uniforms, and so forth. Mere membership in the army in youth should not be the basis for life-long subjection to jurisdiction of the military justice system.

In a significant departure from the fair trial rules in civilian courts, the judges in a court martial are military officers who are not required to, and do not have, any legal training. They are advised by a qualified lawyer, called a judge advocate, who is not a member of the court martial and does not have a vote on the proceedings.¹⁸⁶

Courts martial rarely grant bail, which is a serious limitation for civilians who constitutionally enjoy the right to more freedom of movement than do military personnel. However, in one aspect that is marginally better than in the civilian courts, the defendants in courts martial have the right to an attorney when they are charged with a death penalty offense, rather than only at trial, and the ministry of defense will appoint a lawyer if they do not have one.¹⁸⁷ However, these lawyers lack independence. The right to retain private counsel is at the discretion of the court martial, usually granted.

The rules of evidence are flexible in the court martial and much lies in the discretion of the judges, who are not lawyers. Therefore confessions obtained through alleged torture may be more easily admitted in the court martial trial.