By Haggai Matsiko
Can MPs’ petition to EAC court stop Museveni, Muhoozi?
The decision by some MPs to sue President Yoweri Museveni in the East African Court of Justice over the army promotions announced on May 24 and 25 has raised question over what it seeks to achieve.
Nicholas Opiyo, a Kampala lawyer told The Independent that the jurisdiction of the EAC Court on matters of rule of law has previously been interpreted in a very narrow sense and that such a case would face a lot of challenges.
In his view, “the significance of such a case lies in mounting political pressure at a regional level that the political environment in Uganda does not augur well for the EAC”.
Mps, Fungaroo Kaps Hassan, the chairman parliamentary Committee on Defence and Internal Affairs, Ssemujju Ibrahim Nganda, Mwiru Paul, and Patrick Baguma Ateenyi, say the promotions contravene and violate the UPDF Act.
These promotions among others saw General Katumba Wamala replace Aronda Nyakairima as the new Chief of Defence Forces (CDF).
Fangaroo told The Independent that they decided to lodge the case because the management and operation of the military is improper, unconstitutional and threatens democracy in Uganda.
“Army institutions like the Army Council and the Commissions Board are not working at all, the President has supplicated them,” Fangaroo told The Independent, “what you have now is the rise of personal rule, which poses a danger because the army will not listen to another President but the one that has personalised it. This arrangement has distorted civil-military relations.
In their application to the East African Court of Justice, through their lawyers Nyanzi, Kiboneka & Mbabazi Advocates, the MPs argue that the President, who is also the Commander-in-Chief (CiC), has no constitutional, statutory or legal mandate to promote officers of the UPDF.
They say the mandate to promote army officers rests with the Commissions Board which selects officers to undergo courses, recommends officers to undertake promotion exams after successful completion of requisite courses and then give advice to the CiC on the promotion of officers to different ranks;
“The promotion made by the President/Commander-in-Chief and reported in the newspapers did not comply with the UPDF Act as they were neither done by the Commissions Board nor were courses undertaken or promotion exams done by the promoted officers in accordance with the provision of the UPDF Act, 2005,” their application reads in part.
The MPs application comes at the heels of a story by The Independent exposing the manner in which President Museveni promotes army officials—an issue that has stirred a lot of controversy within the public and army circles.
This controversy threatens to stoke fires in the Uganda Peoples Defences Forces, which is the lifeline of President Museveni’s nearly three-decade rule.
The army promotions issue keeps rearing its ugly head—something that prompted Museveni to personally defend the decisions surrounding it before his top commanders in May this year.
A few weeks ago, a senior army officer attacked the way army promotions are awarded. Before long, another officer has been extradited from Somalia for asking President Museveni’s son Muhoozi Kainerugaba and Commander Special Forces Command (SFC) about discrepancies in army promotions.
Muhoozi, is personally on the spot because he is often pointed out as one of the biggest beneficiaries of these promotions having rapidly attained the rank of Brigadier General in a record 12 years. Aronda Nyakairima achieved this too in the same number of years but, some say, his credentials from the 1986 National Resistance bush war that brought Museveni into power cannot be compared to Muhoozi’s.
Special Forces illegal
Now the MPs argue that even Muhoozi’s territory, the Special Forces Command (SFC) that among other guards his father and other VIPs and sensitive installations, is an illegal, unlawful and unconstitutional armed force as a service of the UPDF since it is not a prescribed force under the UPDF Act.
They say, SFC is clearly a personal army raised for the benefit, purpose and objective of an individual (President Museveni) as a Praetorian guard or Elite guard similar to that of absolute rulers, despots, tyrants and autocrats.
Following restructuring, UPDF officials, it appears forgot to amend the law to cater for the two services, SFC and the Reserve Forces that were added on the original two arms—Land Forces and Air Forces,
The Independent exclusively reports that earlier this year, a key meeting took place at Mbuya barracks, the army headquarters. Aronda, then still the CDF attended the meeting.
Among others were officials from the Reserve Force, which is headquartered in Bombo barracks and headed by Maj.General Levi Karuhanga. The meeting was meant to resolve the crisis over funding the Reserve Force, which was practically broke.
Reserve Force illegal too
Sources inside the UPDF intimated to The Independent that at the meeting, the UPDF Director of legal, Ramadhan Kyamulesire told Aronda and everybody else that allocating the Reserve Force money would land the army bosses in trouble as per the law, the Reserve Force was illegal. The meeting resolved to look into amending the law in order to legalise the Force.
Now the MPs are pointing fingers at SFC, which too is a creation of 2012, when the older Special Forces and former Presidential Guard Brigade was restructured.
Apart from the SFC, the MPs argue that the President’s appointment of the Chairman of the General Court Martial is also illegal and so is that of his brother Gen.Caleb Akandwanaho aka Salim Saleh to head the committee that will scrutinise the retirement of army officers and advise him (the CiC).
The MPs want the court to declare these “impugned acts of the President” as a breach or an infringement of Articles, 5, 6, 7 and 123 of the EAC Treaty. Article 123, notes that in “order to promote the achievement of the objectives of the Community…”particularly with respect to the eventual establishment of a Political Federation of the Partner States, the Partner States shall establish common foreign and security policies.
The MPs also want the court to interpret whether the actions of the Ugandan government as a partner state are unlawful and inconsistent with the provisions of the Treaty and also exercise its mandate, authority and powers and bring Museveni’s government to book.
In referring the matter to the EAC court, the MPs cite several articles including Article 30 of the Treaty for Establishment of the East African Community (Treaty).
Article 30 of the treaty, provides that any person who is a resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.
Why regional court?
Asked why they applied to the EAC court instead of local courts, Nganda told The Independent that he is “more comfortable with a regional court given the current shape of the local courts with no judges”.
Nganda added that bearing in mind that the case by Ogwang never took off, it is hard to get any judge to preside over such a case and if they attempted, for it to ever take off.
“It would end there,” Nganda said, “you can imagine four years ever since the UPC officials lodged their case, it has never been heard. With issues to do with the army in this country, in future, we will have to go the ICC [International Crimes Court].
Nganda was referring to a 2009 case, in which the head of UPC’s Communication Department, Benson Ogwang Echonga, and a group of lawyers on August 18 2009 petitioned the Constitutional Court to declare as unconstitutional the promotion of the five officers from the same ethnic background to the highest rank in the Army. The army officers then were Gen. Yoweri Museveni, Gen. Salim Saleh, Gen. David Tinyefuza, Gen. Elly Tumwine and Aronda.
Aronda, in his prepared defence, then noted that the promotion of the five Generals “was based on both civil and military training…”
But even with this case, given Museveni’s regional clout, questions linger about whether such a court can do anything. Nganda maintained that since the EAC court is a legitimate court established by protocols that establish the EAC, failure to work on the case would be the court’s problem.
The application adds that President Museveni’s acts in the command, control and management of the UPDF are inconsistent with Article 99 and the Presidential Oath in the Fourth Schedule of the Constitution and by extension infringe on provisions of the Treaty.
They add that the current command structure, operations, functioning, control and management of the UPDF by the President “in violation and contravention of the UPDF Act, 2005 breaches the principles of good governance, rule of law, accountability and democracy” in many ways.
They say the acts have the effect of personalising the UPDF and rendering it a force that is only loyal, subservient and subject to the personal whims and command of the incumbent President as a personal army.
To the MPs, this is an ominous sign of anarchism within the EAC that will stifle or reverse the achievements of the East African Community in real terms and as envisaged under the Treaty.
They add that the constitutional and statutory role and functions of the UPDF as a national army that is professional, nonpartisan, subordinate to the civilian authority, among others have been compromised and whittled away and replaced with loyalty, subservience and partisan to the person of the President.
“The constitutional qualifications of the UPDF officers have been discarded and replaced by loyalty and subservience to the Commander-in-Chief or his “blue eyed” cronies,” the MPs application reads in part, “service in the UPDF is at the pleasure and personal whim of the CiC who after recruitment determines the promotion, deployment and discharge.
The application adds that the current command structure, operations and functioning of the UPDF outside the legal framework translates the adage, that “where the rule of law stops, tyranny begins”, into reality which bodes very badly for the EAC and renders the fundamental principles and objectives of the treaty, illusory and unachievable.
According to the application, the current state of affairs in the UPDF, also bodes bad for a peaceful transition from the incumbent to another President, as the SFC that is loyal and subservient only to the incumbent would in the style and fashion of the Praetorian Guard of absolute rulers, despots and tyrants resist all such efforts and restore the incumbent onto power against the will of the people.
“Under the current command, structure, operations and functioning,” the application adds, “an elected president who is purely civilian without any military background would find it difficult if not impossible to exercise his constitutional and legal mandate to control and manage the UPDF.”
The MPs add that under the current command structure and functioning of the UPDF, the peoples’ will and civilian authority enshrined in the Constitution is illusory and practically has been overthrown and replaced by the President.