Jailed officer challenges legality of court martial

By Maureen mudi

A former Navy officer serving a three-year jail term is challenging the legality of court martials to hear and determine criminal charges against members of the Armed Forces.

In an application first of its kind, former Warrant Officer Two, Justus Ngumbao moved to Mombasa High Court, seeking for a declaration that the court martial is a nullity.

The ex-officer had worked at the Navy since 1983 but was dismissed together with Senior Private Nelson Katana Masha on conviction of receiving bribes for military recruitment by a panel of officers on February 17.

Through his lawyer Gikandi Ngibuini, Ngumbao argued before Justice Festus Azangalala that all the members of the court martial, apart from the judge advocate, were unqualified in legal matters.

"Their experience in dealing with criminal matters is wanting. The court lacked independence and impartiality and there was no chance for justice since all the members were of a higher rank than the accused," said Ngibuini.

Separation of powers

He argued that the Armed Forces was part of the Executive and should not be allowed to encroach on the Judiciary, under the principal of separation of powers.

"All the sitting members are members of the Armed Forces and it amounts to a violation if Section 77(1) and Section 72 of the Constitution," he argued.

The lawyer argued that he wrote a letter on February 28 to the Legal Services Branch of the Kenya Navy to be supplied with a copy of the proceedings but was not successful.

He said the applicant suffers from high blood pressure, a fact known by the Navy officials and during his incarcerations at Shimo La Tewa Maximum Prison, he had to be admitted in hospital due to medical complications.

Abstract on evidence

In an affidavit sworn by Ngumbao, he argued that a Lieutenant Colonel Kituku, a commanding officer at Mtongwe, investigated the matter and served him with the abstract of evidence on December 8, last year, despite the court martial being convened three days back.

"A determination of any criminal matter is a serious judicial exercise which decision may result in serious consequences and that is why the law requires matters to be heard by an independent and impartial court," he argued.

He said a court martial should confine itself to dealing with matters of pure discipline and not matters affecting the criminal rights and liabilities.

The lawyer further said the convener, investigator, presiding officer, prosecutor and its members are all members of the Armed Forces, adding that it was a classic example of being a judge in its own cause.