Hard justice: How Kenya’s military deals with errant soldiers

Former Kenya Defence Forces soldiers appear before a court martial where they were charged with desertion on February 6, 2015, in Mombasa. In the past two months, KDF has court-martialed and jailed two soldiers with mental problems. PHOTO | KEVIN ODIT | NATION MEDIA GROUP

What you need to know:

  • Some countries have an entire section of the military to diagnose and treat serving or retired soldiers suffering from PTSD.
  • In March, a soldier who had just returned from operations in Somalia hanged himself in his home in Bukalama village, Busia County.
  • A soldier who survived the deadly January 15 attack by Al-Shabaab in El Adde, Somalia, told the Sunday Nation that only his physical wounds had been addressed.
  • Last year, KDF sources - who spoke in confidence - indicated the military court-martialed at least 80 soldiers.

The Kenya Defence Forces (KDF) is in the spotlight for the manner in which it treats soldiers charged with committing offences under military law, including some who are suffering from mental conditions.

In the past two months, KDF has court-martialed and jailed two soldiers with mental problems, one of whom developed the condition after serving in 'Operation Linda Nchi' in Somalia four years ago.

KDF is now part of the African Union Mission in Somalia.  

Court documents seen by the Sunday Nation provide interesting insights into the military’s “hard justice” with soldiers being held in detention for long periods without trial and, in certain cases, being summarily dismissed. 

“Very sadly, there is an alarming extent to which the military violates the rights of its staff,” says Mr Katwa Kigen, a lawyer representing a soldier who has been in military detention since July last year. He says the detention is illegal.

However, military spokesman Colonel David Obonyo defended the decisions taken by the court.

“Court martial is an open court and the accused are free to have their lawyers. Decisions that are taken there are based on facts of law and evidence,” he said.

In March, Senior Private George Bwire was sentenced to one year in prison for desertion although four military doctors concurred that his actions were triggered by mental problems he developed as a result of serving in Somalia in 2012. 

The four doctors found that Private Bwire had suffered from psychosis and post-traumatic stress disorder (PTSD) in 2012, after he came back from KDF duties in Somalia.

The American National Institute of Mental Health describes PTSD as “a disorder that develops in some people who have seen or lived through a shocking, scary, or dangerous event”. 

Symptoms include angry outbursts, difficulty in sleeping, depression, anxiety, and bad dreams, among others. If left untreated, some of these people could become social misfits.

MENTAL DISORDERS
If not diagnosed and treated early, the condition can turn chronic. In some cases it has led to sufferers committing suicide.

Some countries, including the US which has been involved in wars outside its territory over the years, have an entire section of the military to diagnose and treat serving or retired soldiers suffering from PTSD.

Inquiries by the Sunday Nation indicated that Kenya does not have a similar arrangement. 

A recent study by the Rand Corporation, an American non-profit think-tank, found that by September 2014, 20 per cent of the 2.7 million US soldiers who served in Iraq and Afghanistan had PTSD and other mental illnesses.

Military doctors who examined and treated Private Bwire, including his commanding officers, all said that he developed mental problems coming from the war zone and it was on the basis of their testimony that the judge-advocate in the court-martial made a bizarre ruling on the case.

The judge-advocate is a chief magistrate seconded from the Judiciary to the court-martial to ensure that proceedings meet constitutional requirements.

In Private Bwire’s case, he recommended that the director of military prosecutions terminate the case.

“I think I have said enough… to lead to a conclusion that the accused is not in his current state, capable of defending himself in this trial. Any other conclusion would be fallacious… He is very much, a person under treatment for his mental disorders,” reads part of the ruling by Judge-Advocate Felix Kombo delivered on October 10, 2015.

But Mr Kombo, in the concluding paragraphs of his ruling, contradicts himself by saying the soldier has a case to answer.

“However, I have found that the accused has a case to answer in all charges. I do not think an acquittal is the best course forward in these circumstances,” he said, giving the military the greenlight to proceed with the trial. 

Lawyer Odera Were, who is representing Private Bwire, said of the ruling: “The judge-advocate is merely a figurehead in a court-martial. He is there to fulfill a legal requirement but not make the ultimate decisions.”

Private Bwire had also been charged by the military for attempting suicide. Col Obonyo said the sentence was fair.

“Yes, he had mental issues, but he was treated and became well. There is nowhere in the KDF Act that bars us from taking the decision we took.”

Kenya Defence Forces officers, who are on trial for desertion, appear before a court martial on April 10, 2014. Statistics on the prevalence of PTSD in the Kenyan military is hard to come by since such records are a closely guarded secret. PHOTO | LABAN WALLOGA | NATION MEDIA GROUP

BIZARRE INCIDENCES
Mr Were is representing six out of eight soldiers who were court-martialed in November last year. “The fate of these soldiers is usually long decided before they are brought to the court,” he said.

Statistics on the prevalence of PTSD in the Kenyan military is hard to come by since such records are a closely guarded secret.

However, reported incidents of soldiers harming themselves or others point to a worrying state of affairs.

In March, a soldier who had just returned from operations in Somalia hanged himself in his home in Bukalama village, Busia County.

Family members say that Joash Ochieng Magar, 52, had been sent on indefinite leave after he exhibited signs of mental instability before he committed suicide.

And on April 25, Senior Private Mutua Kyombo shot dead his girlfriend Elizabeth Kivuva, in Kitui Town after their love affair went sour.

Police say he later shot himself fatally in the chin after engaging police in a shootout that lasted more than two hours.

A soldier who survived the deadly January 15 attack by Al-Shabaab in El Adde, Somalia, told the Sunday Nation that only his physical wounds had been addressed.

He was yet to receive any psychological treatment for trauma.

“I am at work now,” said the soldier who spoke in confidence. “No one has asked me to go for treatment and no one has asked me about my mental state. I am fine, though, apart from the sleeping problems I have been experiencing since then.”

Two weeks ago, another soldier, Senior Private Justus Makasi, was sentenced to nine months by a court martial for desertion at Recruits Training School, Eldoret.

According to court documents, family members told the military that he developed mental problems following the death of his father.

His brother told the court-martial that they took back the soldier to his base in Eldoret on three different occasions but each time he would escape soon after.

He had not served in Somalia or any other battle front.  

'UNWARRANTED TERMINATION'
Col Obonyo said that military doctors who examined Private Makasi concluded that he was not suffering from any mental problems and was fit to stand trial.

Besides these cases, documents seen by the Sunday Nation provide insights into the military’s tough and unflinching justice system.

One interesting case is that of Lt Col Lukale Moses Sande, a former legal specialist in the military, who was summarily dismissed from the force in May 2014 after 13 years of service.

Lt Col Sande’s letter of termination reads, in part: “The above named senior officer whose termination of commission with benefits has been approved will proceed on annual/terminal leave.”

The letter is signed by Lt Col D.M. Mutegi on behalf of the Chief of Defence Forces. Lt Col Sande was never court-martialed or given notice to show cause, said Mr Were.

“How do you go to work and get a termination letter out of the blues?” he asked.

Mr Were contends that the termination was illegal since only the President has the powers to terminate Lt Col Sande’s commission according to Section 251(a) of the KDF Act that deals with senior officers above the rank of a major. 

Lt Col Sande has sued the KDF in the High Court and is seeking Sh56 million in salary and allowances for the years he would have served until the age of 56, according to military rules.

His dismissal, he say, is against the Employment Act 2007.

However, Col Obonyo said the officer was not being honest about his dismissal.

“He knows very well why he was dismissed. Ask him to tell you. He (Lt Col Sande) is a renowned lawyer and it is mischievous and unfair for him to come to the media about it,” he said. 

Another interesting case involves Major Laban Nyambok, who has been in military detention since April 2015 on suspicions of corruption at the Defence Forces Medical Insurance Scheme (Defmis).

He was among eight soldiers court-martialed in November 2015. Major Nyambok, a medical verification officer at Defmis, has been held in confinement for more than a year, way above the 42 maximum days prescribed in Section 140 of the KDF Act.

However, Mr Were says the military does not have the jurisdiction to try his client for the crimes he was being accused of.

Section 124 of the KDF Act says any soldier suspected of corruption ought to be tried in civil courts under the Penal Code or the Economics Crimes Act.

Major Nyambok took a plea before the court-martial on Friday.

Lawyer Kigen took issue with the military’s lengthy detention of soldiers without trial. One of his clients, Senior Private Hillary Chumba, has been in military detention since July last year.

Kenya Navy Warrant Officer Two Justus Charo Ngumbao is taken away by Military Police officers to Shimo la Tewa prison after he was sentenced by a court martial, at the Kenya Navy Base in Mtongwe, Mombasa. Court documents seen by the Sunday Nation provide interesting insights into the military’s “hard justice” with some soldiers being held in detention for long periods without trial. PHOTO | GIDEON MAUNDU | NATION MEDIA GROUP

'BAITED, THEN COURT-MARTIALED'

Like majority of those facing court-martial, Private Chumba, 43, has been charged with desertion between January and July last year.

However, Mr Kigen said his client had not been paid the required half-salary since July 2014.

Col Obonyo told the Sunday Nation that the soldier had not re-applied to be paid his salary after it was stopped when he deserted for the first time in 2014.

In addition, he was demoted from full corporal to lance corporal in August 2014. Two months later, in October 2014, he was further demoted to a senior private.

He said he absconded duty to take care of his sick child and sick, widowed mother.

“Our client is not necessarily questioning the Defence Force’s space to discipline him, whenever justified, but is aggrieved at the use of the opportunity to discipline him to instead dehumanise and degrade him,” said Mr Kigen.  

Private Chumba served in Somalia between January 2012 to January 2013 and as a member of the United Nations peace-keeping force in Sierra Leone.

He has petitioned the Attorney-General and the Office of the Ombudsman to intervene.

Col Obonyo said that some of the accused soldiers are considered a flight risk hence the need to hold them in “close arrest” until their cases are heard and determined. 

He added that accused soldiers often obtain High Court injunctions against court-martials, which delay the process.

In 2015, KDF sources - who spoke in confidence - indicated the military court-martialed at least 80 soldiers.

Mr Were expressed concern at the high rate of punishment and dismissal. 

“You are casting off young men with military skills. What do you think they will do?” asked the lawyer.

In 2014, the KDF baited back and later court-martialed 26 ex-navy soldiers who had resigned between 2007 and 2008 allegedly to join private military contractors aiding the US military operations in Afghanistan and Iraq.

REVISE COURT
The court-martial sitting in Mtongwe Navy Base in Mombasa handed down life sentences to all of them last year, a decision that was later rescinded by the High Court.

The soldiers were found guilty of absconding from duty and sentenced to serve two years in jail. 

Mr Charles Mwalimu, a lawyer who defended four of the 26 soldiers, said the court-martial ought to be professionalised and reformed to align it with the 2010 Constitution.

“It used to be an ad hoc court under the old Constitution but it is a substantive one, like the Kadhi’s court, under the new Constitution. However, it should be delinked totally from DoD. If this is done, it will bring some meaning to military justice,” he said.

Mr Mwalimu is representing three soldiers facing court-martial, two of whom have been charged with desertion.

One of the soldiers was sentenced to 20 months in jail on February 25 for deserting duty yet the accused fell sick on the way from Afmadhow in Somalia to a military base in Liboi, Kenya.

“In my two years practising law at the court-martial, I have never seen anyone acquitted,” said Mr Mwalimu.

When found guilty, most court-martialed soldiers are jailed, demoted and finally discharged, thus losing all their retirement benefits.