Dr. Ronald Naluwairo Senior Lecturer, School of Law, Makerere University

1. THE PRINCIPLES AND GUIDELINES ON THE RIGHT TO A FAIR TRIAL IN AFRICA, MILITARY JUSTICE AND UGANDA’S EXPERIENCE Dr. Ronald Naluwairo Senior Lecturer, School of Law, Makerere University Senior Research Fellow, ACODE

2. OUTLINE OF THE PRESENTATION • Introduction • The Principles and Guidelines on the Right to a Fair trial and Legal Assistance in Africa • Applicability of the Principles and Guidelines on the Right to a Fair Trial in Africa to Military Justice • The Right to a Fair Trial in Uganda’s Military Justice System • Conclusion

3. INTRODUCTION • The African Charter on Human and Peoples’ Rights (adopted in June 1986 and entered into force in Oct 1986) is the foundation of the Principles and Guidelines on the Right to a Fair Trial in Africa • Art 7 provides for the right of every one to have his cause heard and this comprises (the right to an appeal to competent national organs against acts of violating his fundamental rights; the right to be presumed innocent until proved guilty by a competent court or tribunal; the right to defence, and the right to be tried within a reasonable time by an impartial court or tribunal. Art 7 also prohibits condemnation of a person for an act or omission which did not constitute a legally punishable offence at the time it was committed. • Art 26 requires States party to the African Charter to guarantee the independence of courts • Art 30 establishes the African Commission on Human and Peoples’ Rights (ACHPR) as the major AU body to promote human and peoples’ rights and ensure their protection in Africa

4. INTRODUCTION (Continued) • Under Art 45 (b), one of the major mandates of the ACHPR is to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples' rights and fundamental freedoms upon which African Governments may base their legislations • It is under this mandate that the ACHPR developed the Principles and Guidelines on the Right t0 a Fair Trial in Africa

5. THE PRINCIPLES AND GUIDELINES ON THE RIGHT TO A FAIR TRIAL AND LEGAL ASSISTANCE IN AFRICA(May 2003) • Formulated to “…lay down principles and rules to further strengthen and supplement the provisions relating to fair trial in the Charter and to reflect international standards.” • Comprised of 19 sections dealing with: General principles applicable to all legal proceedings; Judicial training; the Right to an Effective Remedy; Court Records and Public Access; Locus Standi; Role of Prosecutors; Access to Lawyers and Legal Services; Legal Aid and Legal Assistance; Independence of Lawyers; Cross Boarder Collaboration among the Legal Professionals; Access to Judicial Services; Right of civilians not to be tried by military courts; Provisions applicable to arrest and detention; Provisions applicable to proceedings relating to criminal charges; Children and the right to a fair trial; victims of crime and abuse of power; Traditional Courts; and Non-derogation from the right to a fair trial

6. Sections Most Relevant to the Right to a Fair Trial • Section A which deals with the general principles applicable to all legal proceedings (Fair Hearing, Public Hearing, Independent Tribunal, and Impartial Tribunal) • Section L provides for the right of civilians not to be tried by military courts. The Section states that the jurisdiction of military courts shall be to determine offences of a purely military nature committed by military personnel • Section N dealing with provisions applicable to proceedings relating to criminal charges (notification of the charge, right to counsel, right to adequate time and facilities to prepare defence, right to an interpreter, right to trial without undue delay, rights during a trial, prohibition of second trial for same offence and the right of appeal • Section R which provides that the right to a fair trial is non-derogable

7. The interpretation of the different guarantees of the right to a fair trial in the Principles and Guidelines is generally consistent with international standards The Right to an independent Tribunal • The independence of judicial bodies and judicial officers shall be guaranteed by the constitution and laws of the country • The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for decision is within the competence of a judicial body as defined by law • Military or other special tribunals that do not use the duly established procedure of the legalprocess shall not be created to displace the jurisdiction belonging to the ordinary judicialbodies • There shall not be any inappropriate or unwarranted interference with the judicial process nor shall decisions by judicial bodies be subject to revision except through judicial review • All judicial bodies shall be independent from the executive branch • The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged • Any method of judicial selection shall safeguard the independence and impartiality of the judiciary • The sole criteria for appointment to judicial office shall be the suitability of a candidate for such office by reason of integrity, appropriate training or learning and ability

8. Right to an Independent Tribunal (Continued) • No person shall be appointed to judicial office unless they have the appropriate training or learning that enables them to adequately fulfil their functions, • Judges or members of judicial bodies shall have security of tenure until a mandatory retirement age or the expiry of their term of office, • The tenure, adequate remuneration, pension, housing, transport, conditions of physical and social security, age of retirement, disciplinary and recourse mechanisms and other conditions of service of judicial officers shall be prescribed and guaranteed by law • Promotion of judicial officials shall be based on objective factors, in particular ability, integrity and experience • Judicial officials may only be removed or suspended from office for gross misconduct incompatible with judicial office, or for physical or mental incapacity that prevents them from undertaking their judicial duties • Judicial officials facing disciplinary, suspension or removal proceedings shall be entitled to guarantees of a fair hearing including the right to be represented by a legal representative of their choice and to an independent review of decisions of disciplinary, suspension or removal proceedings • States shall endow judicial bodies with adequate resources for the performance of its their functions.

9. The Principles and Guidelines Strengthen and Compliment the Provisions in the Charter E.g., • Section L which provides for the right of civilians not to be tried by military courts • Section R which provides for non-derogation from the right to a fair trial NB: The question is whether or not in strengthening and complimenting the right to a fair trial provisions in the African Charter, the ACHPR did not cross the line by creating new obligations for states altogether than those they agreed to in the Charter!

10. APPLICABILITY OF THE AU PRINCIPLES AND GUIDELINES TO MILITARY COURTS • In Section L of the Principles and Guidelines to the Right to a Fair Trial in Africa, it is clearly indicated that military courts are required to respect the fair trial standards enunciated in the African Charter on Human and Peoples’ Rights and in the Principles and Guidelines on the Right to a Fair Trial

11. THE RIGHT TO A FAIR TRIAL IN UGANDA’S MILITARY JUSTICE SYSTEM: SOME ISSUES AND CONCERNS • Uganda is party to both the ICCPR and the African Charter on Human and Peoples’ Right. These treaties were domesticated in the national legal system • Art 28, Cap 4 and art 128 of the Constitution of the Republic of Uganda 1995 provides for the right to a fair trial and the attendant obligation of the state • In Attorney General v Joseph Tumushabe, Const. Appeal No. 3/2005, the Supreme Court of Uganda stressed that “the Constitution guarantees to every person the enjoyment of the rights set out in Chapter 4 except only in the circumstances that are expressly stipulated in the Constitution.” It further held that military courts are not exempted from the constitutional command to comply with the provisions of Chapter 4 of the Constitution

12. Trial of Civilians in Military Courts Inconsistent with international and regional human rights standards, the law (UPDF Act 2005, Section 119) gives military courts wide jurisdiction over many categories of civilians • Civilians who serve in the position of an officer or militant in any force raised and maintained outside Uganda and commanded by an officer of the Uganda defenceforces; • Civilians who voluntarily accompany any unit or other element of the defence forces which is on service; • Civilians who serve in the defence forces under engagements by which they agree to be subject to military law; • Civilians who aid or abet a person subject to military law in commission of a service offence; • Civilians found in unlawful possession of arms, ammunition or equipment ordinarily being the monopoly of the defenceforces; and • Persons not subject to military law who committed offences while subject to military law.

13. Trial of Civilians (Continued) • In its Concluding Observations and Recommendations on Uganda’s 3rd Periodic Report 2009, the ACHPR explicitly recommended that Uganda should “…introduce legal measures that prohibit the trial of civilians by military courts.” • To-date, no legal measures have been induced to prohibit the trial of civilians by military courts

14. The Independence and Impartiality of the Military Courts The law does not provide adequate safeguards to guarantee the independence and impartiality of military courts • Members of Uganda’s military courts, the judge advocates and the prosecutors are all serving military personnel • The judge advocates, prosecutors and members of the military courts are all appointed by the same authority i.e., the High Command (comprised of the top-most commanders of the UPDF and chaired by the CiC) (See Sections 194-202 of the UPDF Act) • There are no known objective criteria for appointing, re-appointing, suspending and dismissal of the judge advocates and the members of the military courts • The law is silent about the security of tenure of the judge advocates. In practice, they are appointed to serve for a period of one year. • Members of military courts serve for a period of one year. They are eligible for re-appointment

15. Independence and Impartiality (continued) • The financial security of the judge advocates and members of the courts is not prescribed and guaranteed by law. There are no special measures in Uganda’s military justice legal framework for the determination of conditions of service for the judge advocates and members of military courts as judicial officers as is required by the right to an independent tribunal. • In the Uganda Law Society and Jackson Karugaba case v. Attorney General, Const. Petn. Nos. 2 and 8/2002, the Constitutional Court rightly held that “…it is not possible for Uganda’s military courts to be independent and impartial given the current laws under which they are constituted and the military structure within which they operate.”

16. The Right to a Public Hearing • Hearings conducted by the Division Courts-Martial and the Unit Disciplinary Committees in barracks pose a challenge for members of the public to attend • Members of the public are increasingly being excluded from attending hearings in the GCM and the CMAC on grounds of national security • The GCM and CMAC court rooms are generally not big enough.

17. The Right to Trial Without Undue Delay • Appointment of members of military courts and the judge advocates is not always done in time • Some trials are conducted very fast that the essence of justice cannot be guaranteed e.g., The Kotido Military Executions where the court-martial convicted two soldiers for murder. The investigation, trial and execution took place less than 72 hours after the alleged crime was committed. • Other cases take too long to be disposed of e.g, Brigadier Henry Tumukunde’s case took 7 years. • According to the HRC, cases that delay in the military courts are mainly as a result of the military courts taking long to convene and the many adjournments

18. The Right of Appeal No general right of appeal from decisions of military courts to the civilian superior Courts • No appeal lies from the Court Martial Appeal Court to any other court, except cases of appeal against convictions involving death sentence and life imprisonment which have been upheld by it. See Reg 20 (2) of the UPDF (CMAC) Regulations • The implication of this arrangement is that for most part, military justice is run as a parallel system of administration of justice. This arrangement also denies the civilian superior courts of record the opportunity to supervise the administration of justice in the military.

19. CONCLUSION • The ACHPR should be commended for coming up with the AU Principles and Guidelines on the Right to a Fair Trial. They strengthen and supplement the African Charter provisions on the right to a fair trial and they are generally consistent with the international standards e.g., as enunciated in the Basic Principles on the Independence of the Judiciary and HRC’s GC 32 OF 2007. • It remains to be seen how African Governments and states will utilize these Principles and Guidelines to ensure fair trial compliant military justice systems. • Although Uganda’s military justice system is better compared to what it was during some of the past regimes, many reforms are still needed to make it compliant with the regional and international standards concerning the right to a fair trial

20. END OF THE PRESENTATION I thank you very much for listening to me Dr. Ronald Naluwairo Senior Lecturer, School of Law, Makerere University Senior Research Fellow, Advocates Coalition for Development and Environment