Questions raised about military's judicial system

Saturday March 4 2017

Defence Cabinet Secretary Raychelle Omamo (left) and Brigadier John Warioba (centre) and General Samson Mwathethe of the Kenya Defence Forces in Kismayo, Somalia on December 24, 2016. PHOTO

Defence Cabinet Secretary Raychelle Omamo (left) and Brigadier John Warioba (centre) and General Samson Mwathethe of the Kenya Defence Forces in Kismayo, Somalia on December 24, 2016. PHOTO 

By NYAMBEGA GISESA
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In January, 2015 during an annual check-up at the Mandera military camp, an audit established 10,000 rounds of ammunition were missing from the barrack’s armoury.

How could such a high number of bullets just disappear? This unanswered question forced the top ranks of the military into action to unravel the mystery.

Soon after, Senior Private David Wamae was put on trial before a court-martial – a judicial court for trying members of the armed services accused of offenses against military law – for stealing the ammunition.

But it is these proceedings that have renewed questions on the military’s judicial system.

First, in his defence, Senior Private Wamae stated he did not have any links with any officer working in the armoury nor was he ever posted in the armoury section in his entire eight years of service.

During his trial, the Judge Advocate, the only civilian who sits at the court-martial bench, questioned how someone who does not work in the armoury could steal so much ammunition.

Secondly, it was put before the court that the crime allegedly happened when the Senior Private was on leave. How then could he have gained access to one of the most guarded facilities in the barracks?

The soldier claimed the plan was hatched to teach him a lesson for insisting on taking a leave of absence, which he had been denied several times.

'BEING RECALLED'

“Five days down my leave, two Majors and a Sergeant visited my home and informed me I was being recalled  for questioning in respect to the loss of the 10,000 rounds of ammunition and that everyone was being questioned and after the questioning I would be allowed to go back home,” he says.

But, he alleges, immediately upon arrival he was detained at the barrack’s cells as a suspect. The detention lasted for five months during which the former soldier claims he received no information pertaining to the case and neither was he questioned.

The case is among those cited in the recently published report “Criminal Justice System in Kenya: An Audit”, which calls for the reform of the country’s court-martial system.

“The current structure of the Court Martial provided for in the legislation does not adequately address impartiality concerns,” the report says in part.

The report, published by the National Council of Administrative Justice, rebukes how military dispenses justice.

It accuses military courts of being notorious for fair trial infringements ranging from “failure to hold the trial in an open court, denial of legal representation to inadequate time given to prepare.”

PROVIDING RULINGS

The report further questions the role of the Judge Advocate who is tasked with providing rulings only on matters of law, leaving the ultimate decision to be taken by military officers and giving the impression that the court does not provide impartial and independent decisions.

“The structure of the Act which leaves the Judge Advocate only deciding matters of law could be constitutionally contested on the grounds that the Court Martial is not a wholly independent or impartial court, as required in terms of fair trial rights. Currently officers both prosecute and decide on matters of fact, including the guilt or innocence of the accused,” reads part of the report.

Other than the case of Senior Private Wamae, the report also highlights the imprisonment of Corporal Jeremiah Kataka, Senior Private Daniel Thuo, Private Joachim Gakure and Private Matthew Kipkemoi as among examples of the need for reforms in the court system.

Private Kataka was charged in October, 2014 for deserting work for six months from September 18, 2012 when he worked at Elwak Camp near Mandera.

“Jeremiah (Private Kataka) wrote three letters within the months he was away to the Army Commander requesting to be excused from duties since he was feeling that KDF (Kenya Defence Forces) work was not his calling. No replies were given to his letters and hence decided to go back to work,” the report says.

AN ACCUSATION

He was later on taken before a court-martial and accused of desertion. His lawyer was denied access to the military court during sessions.

Instead, Private Kitaka was “offered a military lawyer who was of a junior rank compared to the prosecutor and was therefore unable to represent him adequately without being seen as breaking the chain of command.”

When he declined and opted to conduct his own defence, the report says: “He called for the letters he had written to his Army Commander requesting to be relieved off his duties be brought forward. However, the commander denied to have received such a letter from him and since he had no copies, he was left with no option but to accept the verdict of guilty as charged.”

Judge Advocate Tim Okello, who has served on several occasions, says the courts fail to effectively dispense justice.

“Interestingly, members of Court Martials can be sacked or disciplined for failure to convict. There is normally a lot of pressure on them and this makes them lack independence,” says Mr Okello.

For instance, in January, 2015 an entire court-martial panel was retired after it acquitted an accused soldier. According to the Law Society of Kenya, such incidences have led to innocent individuals being jailed.

'NOT BOUND'

Mr Okello also cites the composition of the court, which largely constitutes career soldiers except the Judge Advocate, as a major impediment to justice.

“The military men and women who sit in the panel are not bound by the Judge Advocate who can be overruled,” he says.

Paul Kauku, an officer with the Legal Resources Foundation, says Judge Advocates only serve secondary roles.

“They are given records of the entire case prepared by the military panel. For it to look legal, they are asked to rubber stamp the whole process,” Mr Kauku says.

Department of Defence’s Spokesperson Bogita Ongeri told the Nation that he had no records of number of soldiers who have been found guilty by the courts in the recent past.