19 former soldiers jailed for job desertion appeal court ruling

A High Court Judge in Mombasa has ordered prison authorities to produce 19 former soldiers who were recently convicted to life imprisonment before a civilian court. Justice Martin Muya also ordered the three military courts to supply defence lawyers and the High Court with the proceedings leading to the convictions between March 2014 and mid this month.

The soldiers, who were accused of deserting their naval stations in 2007 and 2008 ‘during war time’ to work for US security firms in Iraq, Afghanistan and Kuwait were convicted and jailed by three Judge Advocates.

However, they have appealed the verdict and conviction on the grounds that the Government charged them illegally in military courts, yet they are civilians after resigning. However, the Government maintains they are still serving soldiers because they, allegedly, did not resign, procedurally.

The soldiers have also accused the military tribunal of failing to admit their resignation documents as proof that they were lawfully allowed to leave the armed forces.

In their appeal, the soldiers claim that the Kenyan military was not engaged in any war when they quit.

They further allege that they have been charged and convicted under the Kenya Defence Forces Act of 2010, yet they left the force before it was enacted. Justice Muya ordered the commandant of Shimo La Tewa Prison, where they are serving the sentence, to produce the inmates to the High court on February 6, for the hearing and consolidation of their bail application.

“The Court Martial is hereby ordered to supply the court proceedings to the appellants on February 6. The appellant are also ordered to be produced in court on February 6 when their cases will be consolidated with others coming on the same day,” said Justice Muya.

Muya gave this order after the inmates’ lawyer Michael Mwanyale, applied for the cases to be consolidated with those already filed and will becoming for the hearing of bail application pending appeal. Mombasa Senior Principal Joyce Gandani, Kwale Senior Principal Usui and Mombasa Principal Magistrate Samuel Gacheru presided over the three courts. The trial in the courts of Usui and Gacheru have been finalised.

However, one of the convicts, John Kangethe Mwangi, was sentenced to 14 months as the others were handed life imprisonment despite facing similar charges. Mwanyale also applied to be supplied with the Court Martial proceedings for each appellant and asked the court to order for the production of the soldiers.

Double standard

They have now appealed against the sentence because the Court martial in question was illegally convened because Kenya Defence Forces has no Director of Military Prosecutor authorised to prosecute them.

They complained that court martial members were biased because some soldiers who were facing similar charges were sentenced to 18 months after pleading guilty. “We were given excessive, punitive, unreasonable and discriminatory sentence. Jared Nyakundi, who was accused of the same offence and convicted on his own plea of guilty was sentenced by the same panel to 18 months in jail,” read their affidavit. The soldiers, who want to the conviction and sentence to life imprisonment quashed accuse court martial of being selective and applied double standard in the application and interpretation of Armed Forces. They have also stated that the court martial was convened within the specified period, saying they were subjected to court martial more than 42 days in the military custody.

The soldiers accused the members of court martial of making a finding that they were in active service under the Armed Forces Act, yet the charge had been preferred under Kenya Defence Forces Act under definition of active service which was radically different.

They complained that the court martial members who are all soldiers of not returning specific findings on issues for determination summed up by Judge Advocate. They accused the panel of basing their finding on defective charge sheet contrary to the evidence which was given.

The tribunal is being accused of reaching to conclusion that they were guilty as charged without any sound legal basis, and even refusing to admit documents and evidence they tendered in the court.

The court martial erred in both fact and law in presuming the accused were guilty even before they were convicted. Court Martial members are senior military officers who arrived at the decision of sentencing the soldiers after the trial which was presided by Judge Advocates from the Judiciary.

According to Court Martial rules, the Judge Advocate’s mandate is to only guide the military jury members on matters of law, but when it comes to judgment, they are the ones who decide whether the soldier being tried is guilty or not.

During the delivery of the judgment, a senior member of the military tribunal is the one who reads the conviction and sentence as the Judge Advocate watches in disbelief even if the verdict is against the law.

In his ruling after the application, Justice Muya also ordered the appellant to be produced in Court on June 6 when their cases will be consolidated with other soldiers who have already appealed.