By Ian Katusiime
The arrest and on-going trial of former intelligence chief, Gen. David Sejusa, is putting President Yoweri Museveni on the spot for allegedly pursuing political objectives through the courts. Sejusa is charged with insubordination, conduct prejudicial to good order, absence without official leave, and two counts of participating in political activities.
After General Court Martial Chairman Maj. Gen Levy Karuhanga remanded Sejusa to Luzira Maximum Security Prison on Feb.2, the decorated moustached guerrilla war-hero likened his incarceration to what used to happen during the dark days when the dictator, Gen. Idi Amin, was president.
“I am being held in the same dungeon Amin held me in 1976; the ‘Cell of No Return,” Sejusa read from what appeared to be notes he had scribbled on a paper.
The court chairman cut him short and dismissed court. Sejusa’s lawyers have raised a preliminary objection to their client’s trial at General Court Martial basing on the fact that Sejusa has a case before the High Court to declare whether he is serving army officer or not. They argue that, their client cannot be subject to a trial where he is being accused of contravening the UPDF Code of Conduct when another court is yet to decide whether he is still a member of the UPDF.
Sejusa’s defence team led by David Mushabe and comprising lawyers such as Kampala Lord Mayor Erias Lukwago, Ladislaus Rwakafuzi, Max Mutabingwa, Michael Mabikke, Yusuf Nsibambi and one of his sons, David Munungu, urged the former Coordinator of Intelligence services not to take plea, as this would make him subject to the jurisdiction of the court.
However, the lawyers were overruled after the Judge Advocate, Lt Col George Kattinda, invoked Section 62 of the Trial Indictment Act which states that when an accused person refuses to take plea, a plea of not guilty shall be entered.
The trial has sparked a slew of commentary.
Retired Supreme Court Justice George Kanyeihamba, known for his maverick legal views said of the matter: “The court martial is a subordinate court and is subject to the jurisdiction of the High Court. If the issue is pending before the High Court, then it takes priority. If the High Court determines he is not a member of the UPDF anymore, then the case at the Court martial must be dropped.”
Others say it is pointless go on and on about the legalities of Sejusa’s trial when the court was set up as a way of dealing with wayward officers.
Sejusa has been a vocal critic of President Museveni since he fled into exile in 2013. His criticism continued after he returned to the country in December 2014 and the military decided to formally charge him after he said, while on a panel CBS FM radio that the Feb. 18 elections are a waste of time and only a people’s insurrection would change government.
But even Kanyeihamba was reluctant to foray into the politics.
“Politics are judged in parliament, not courts of law. I deal with legal, justice and constitutional affairs,” he told The Independent in an interview.
It appears, however, that it is impossible to divorce Sejusa’s military trial from his political stand-off with Museveni. According to military doctrine in Uganda, a suspect before the General Court Martial is tried by an officer of the same or higher rank, but on the first day of trial, Karuhanga comfortably took his seat as Chairman of the court, as his senior Sejusa was brought in the dock.
Rwakafuzi told The Independent, “Our biggest worry is that the court is appointed by the President and can be dissolved by the President. It has no independence, safety of tenure and the President is not an ordinary President. He is not like the Commander in Chief of Kenya or Tanzania. He is involved in the day to day administration of the army”.
According to Rwakafuzi, Museveni as President can use the military to try anyone he disagrees with and dictate the charges he wants preferred against the person. “The judges have no security of tenure and yet the court can award serious punishments like death or even jail someone for 100 years. It is very unfair; the members should have tenure and some independence. The way it stands, someone can even lose their pension.”
He states further that the High Command is the highest organ of the army and Museveni continues to be its Chairman.
Rwakafuzi however revealed that practice of trial by peers is merely practice not the law. Rwakafuzi told The Independent the idea of filing an injunction at the High Court to bar trial at the inferior military court was mooted although he says this has its own limitations. “If the High Court says it will not stop the military from trying Sejusa, there is little we can do. We filed a similar application in December.” Sejusa’s brushes with command structures are well documented. In the bush war, Museveni detained him in a bunker for questioning his authority. Less than 10 years after the bush war had ended, Sejusa made clear his intention to retire by petitioning the Court of Appeal. Although the latter court ruled in his favour in 1996, the Supreme Court ultimately quashed his wishes. Even after he was promoted to a four star General in 2005, and made Coordinator of Intelligence Services, those close to the General said he was no longer in his element, and that Sejusa felt it was a demobilisation ploy.
When Sejusa filed an application at the Civil Division of the High court in 2015, his petition stated that he had been constructively retired from the army. According to the petition, Sejusa was not receiving a salary and was not deployed anywhere. The hearing resumes in April and it is the basis of his lawyer’s objection to the trial. So why has the army persistently refused to retire Sejusa?
Mukasa Mbidde, a lawyer and Member of Parliament in the East African Legislative Assembly says the arrest and trial of Sejusa two weeks to the elections portrays confusion in the affairs of the state.
“He has been an army man and long clamoured for retirement. I do not understand the nature of Museveni’s agreement with him or what Museveni reneged on,” Mbidde said, “but trying him for making political statements when his petition is still before the High Court does not make sense.” Mbidde says more reason to wonder is because of history of a serving soldier as a Minister.
“The late Gen Aronda Nyakirima was serving partisan interests of a political party that was declared winner in the 2011 elections. Another serving army officer Gen Kale Kayihura, has been making statements in favour of the ruling party. This is a lot of nonsense. We are not going to have an election. The system is designed to perpetuate one individual for the next five years.”
Chief of Defence Forces Gen Katumba Wamala who ordered Sejusa’s arrest has in recent days been quoted by media making political statements. While presiding over a cleaning exercise by UPDF officers, Katumba is reported to have warned presidential candidates against their rhetoric on the country’s health facilities.
Kayihura, the Inspector General of Police has been more brazen in his remarks. A few months ago, Kayihura revealed in an interview, that any police chief would be living in denial if they believed they were not meant to serve the interests of the ruling party. Sejusa’s trial at the court martial is unlike others and should give UPDF food for thought. For the first time, the High Command is trying one of its own. While appearing on Capital Gang, a few years ago, Bugweri County MP Abdul Katuntu warned about the trouble of imprinting individuals’ names (members of the High Command) in the UPDF Act Schedule. “Will they delete it when one of them falls out with the establishment?”
Richard Sewakiryanga, Executive Director of the National NGO Forum says it would have been helpful to resolve the Sejusa case amicably since negotiations with Museveni had already been going on. “To arrest him at such a particular time, creates anxiety in everyone’s mind. There has been a lot of back and forth between Sejusa and the regime from 1996. This is a historical challenge that should be resolved.”
Sewakiryanga says Sejusa is an old man and Museveni’s plans of reforming him will not amount to much. “There should be a mechanism of consensus to put an end to this; it has dragged on for far too long”.
Paddy Ankunda, UPDF spokesperson, regarding Sejusa’s trial, said “every dog has its day”. Some could interpret his comment to mean one day each member of the High Command or other high ranking officers could hypothetically have their day in the dock. As of now, it is Sejusa taking the stand.