Anxiety as military courts condemn nine soldiers to life imprisonment

Some of the 25 ex-soldiers when they appeared before a court martial at the Kenya Navy base in Mtongwe, Mombasa. [Photo: File/Standard]

This week, military courts at the Mtongwe Naval Base in Mombasa stepped action against soldiers accused of deserting their military posts in wartime by sentencing eight to life imprisonment, sparking fear and anxiety among 18 detained former conscripts facing similar  charges.

Twenty-five former servicemen and an officer who left the military in 2007 and 2008 were detained at the Mtongwe naval base when they went to seek clearance documents earlier this year.

The soldiers say they lawfully resigned in 2007 and 2008 to work for US security firms in Kuwait, Afghanistan and Iraq, but the military claims they were deserters.

Their lawyers dispute the State’s contention that their clients deserted the military in wartime and argue that Kenyan forces were not engaged in any hostilities in 2007 and 2008.

In an appeal case on the same matter in Malindi after the State had denied the bail to the detainees, Justice Hannah Okwengu also raised questions about what war the State was referring to and if it was ever approved or gazetted by Parliament.

Beyond doubt

Meanwhile, the soldiers’ lawyers insist that the only war they are aware of involving Kenyan forces in recent times was declared in November 2011 when the Kenya Defence Forces entered Somalia to fight the Al Shabaab terror group.

The three servicemen were sentenced on Friday, exactly a week after four were also condemned to jail for life and transferred to Shimo la Tewa Maximum Security Prison, outside Mombasa.

Friday’s conviction brings to nine the number of soldiers condemned to spend the rest of their lives in jail. On Wednesday, Alfred Egesa Ketole became the sixth soldier to be jailed for life by one of the three military courts chaired by Judge Advocate Elizabeth Usui on a guilty conviction. Usui is also senior principal magistrate for Kwale.

On Friday evening, it was Romano Ntongori’s, George Mtambari’s and Simon Mbugua’s turn before the court chaired by Mrs Usui. They were declared guilty and sentenced to life imprisonment.

And on November 21, Leonard Kitombe, Moses Simiyu Nyongesa, John Mutua and Samuel Malombe were sentenced to life imprisonment by a court martial chaired by Usui assisted by a panel of soldiers, according to reports from the courts which are not opened to the public.

Lawful resignations

Sources at Friday’s trial quoted the panel issuing a joint ruling saying that “the cases have been proved as charged,” after Usui summed up the prosecution evidence and asked the panel to find out if charges against the three “have been proved beyond reasonable doubt”.

In the latest three cases, the panels returned verdicts of guilty and the sentences were pronounced instantly by the judge advocate.

But the soldiers’ lawyers cried foul over the spate of and pace of convictions. They pointed out that their clients’ former cell mate was charged with a lesser charge of desertion and jailed for 18 months by the military court. The lawyers said the soldier has since been set free on bond pending appeal before Justice Martin Muya at the Mombasa law courts.

Lawyers Daniel Kamunda and Michael Mwanyale questioned the State’s definition of war and wartime and said they would appeal against the convictions.

“We are going for appeal because there are high chances they will be acquitted of the charges,” said Mwanyale.

 “I am confident the court will give grant bail pending appeal because there are high chances of the appeal succeeding,” Kamunda said.

The lawyers have consistently argued that their clients lawfully left the military through resignation to seek the jobs overseas and even produced letters to that effect.

The prosecution had argued that the accused failed to prove he had been discharged honourably from the Navy and was therefore guilty of deserting his military post which is punishable with life sentence.

The Court Martial rejected Mwanyale’s argument that the accused had resigned after presenting his resignation letter. The first former military officer to be sentenced to life imprisonment was Lieutenant Jeffery Pepela.

He is the only officer among the detainees and his lawyer Ben Musundi has said he has already applied for bail pending appeal.

Judge Advocate

Lt Pepela, who was in charge of Maritime Surveillance Radar Station (Masura) in Malindi, was found guilty of deserting his post on October 23, 2007.

He was detained when he returned to Mtongwe base when he came to seek a clearance letter after getting a job with a foreign petroleum prospecting firm in Turkana.

He was the first to be convicted to life imprisonment by a tribunal chaired by Judge Advocate Joyce Gandani who is also senior principal magistrate in Mombasa.

A third tribunal is chaired by judge advocate Samuel Gacheru who is also Mombasa’s Principal magistrate.

Pepela had told the tribunal that after resigning he joined KBR, a US security firm in Iraq, where he worked as a labour foreman before returning in 2009. He also revealed that he went to Afghanistan in 2011 but returned to Kenya in the same year because of bad weather.

In May, Assistant Director of Public Prosecution Alex Muteti told the Court of Appeal in Malindi that the 27 were among more than 500 soldiers who had deserted KDF in the last five years.