Lawyers for the 26 former Kenya Navy soldiers serving life terms for allegedly deserting Mtongwe Naval Base in 2007 and 2008 have launched appeals at the High Court in Mombasa with scathing attacks on the conduct of the military tribunals that convicted them.
The former servicemen and an officer are serving life jail terms at Shimo la Tewa Prison in Mombasa following their conviction by three military courts between March last year and early this year.
On Wednesday, their lawyers said the three military courts that convicted them were not properly constituted to conduct trials and had no power to pass life sentences.
The defence lawyers argued that the military trials were a travesty and did not meet the fairness standards established by the 2010 Constitution. One appellant said his trial leading to conviction lasted only 30 minutes.
“It is not possible that the court martial deliberated on the evidence from both sides for 30 minutes before passing their verdict because particulars of the dissertation were not clear and nothing showed what the appellant is alleged to have committed to warrant his life sentence,” said lawyer Gikandi Ngibuini, who is representing Sergeant Paul Gichini.
Gikandi told Justice Muya that the verdict on Gichini was a mockery of justice, alleging that not a single reason was given to justify why the appellant was found guilty.
“We don’t know whether the court martial found the appellant guilty beyond reasonable doubt,” he told the High Court.
Gikandi further argued that when his client allegedly deserted in 2007, military officials were serving under the Armed Forces Act and not the Kenya Defence Forces Act enacted after 2010 under which Gichini was charged.
The lawyer further argued that the military court failed to consider that his client legally resigned from the navy and that when he returned in 2014, he should have been charged with absenteeism, not desertion.
The defence lawyers also accused the military courts of conducting illegal trials that ended up dispensing discriminatory justice based on non-existent laws. They questioned how these tribunals could convict the former soldiers for deserting “during war time” when Kenya was not involved in any external military aggression in 2007 and 2008 when they left base to work for US security firms in Kuwait, Iraq and Afghanistan.
On Friday, the appeals continued with 12 appellants raising their objections to their convictions before Justice Muya.
Defence lawyers Henry Kurauka and Michael Mwanyale said the court martials that condemned their clients only comprised laymen who relied on evidence from the KDF tribunal.
Kurauka said the prosecution should have been undertaken by a legal officer from the military and that the panelists on the tribunal were to make a verdict or declare sentence through votes.
“Article 51 of the Constitution provides that fair trial should be done by an independent tribunal. The court martial is not mentioned under section 51,” he said.
Kurauka argued that even if his clients were guilty, the maximum sentence the tribunals could hand them was two years and that the members of the court that listened to the evidence against the ex-soldiers were not the ones that passed the verdict.
According to Kurauka, when the verdict was passed, one of the sitting members of the board, Major Mwangi Karanja, was absent.
“The absence of Major Karanja, a member of the sitting tribunal, makes the conviction panel different from the tribunal panel and that amounts to miscarriage of justice in passing the verdict,” he said.
But Alexander Muteti, a public prosecutor, said the issue of who tried the accused was an afterthought that should not arise because there was a director of military prosecution who guided the court martials in reaching their final verdict. “As long as a quorum of the court is present, absence of one member cannot hinder proceedings,” said Muteti.
On his part, Mwanyale said the court martial never returned any specific findings after the conviction as required in law.
“Proceedings cast doubts whether the county was at war at the said time and none of the witnesses explained when the country was at war, with who and when Parliament approved the [alleged] war,” he argued.
The lawyer argued that soldiers are not condemned to serve in the military for life and can leave through resignation. He argued that the military courts were biased against some suspects because one of the ex-soldiers, Jared Nyakamba, was, allegedly, only dismissed from the forces while his colleagues were condemned to life imprisonment for the same crime.
State prosecutor Eugene Wangila said the verdict by the court martial on the 12 appellants was properly constituted in respect to the military laws and the convicting panel were well trained lawyers.
“Disregard the argument that the appellants were tried by laymen because they were tried by an advocate judge and the prosecuting panel were well trained lawyers,” said Wangila.
Wangila said Nyakamba was freed by the court martial after he pleaded guilty of deserting the forces.