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Brig. Fred Tolit is expected to give judgment on the case on Thursday, April 18.
How it started
Drama started unfolding in May 2005. That was the time when the NRA was on tenterhooks, with President Yoweri Museveni seeking an amendment to the Constitution to contest for a third term in office.
The President had faced resistance from top NRM historicals including Eriya Kategaya, Amanya Mushega, Augustine Ruzindana, Miria Matembe and Brig Henry Tumukunde among others.
During the 2001 presidential election, Tumukunde and his colleagues had vigorously campaigned for Museveni and always emphasized that was the NRA leader’s last term in office.
However, as the 2006 presidential elections drew closer, it became clear that Museveni was determined to prolong his presidency, breaking Tumukunde’s heart.
Fearless, as he was known, Tumukunde in 2005 started appearing on radio talk shows in Kampala, pouring scorn on Museveni’s ambitions.
He reportedly told listeners while appearing on a Kampala radio station in 2005: “I am sure you know how many people call themselves very pro the President and I am sure even in the Forces People who have got either sympathy or levels of patronage, so you would not want to leave such a person hovering on top of a force.
It interferes even with orders and main direction of the force… and I do know how much time one needs in power really to make a difference.”
Tumukunde further said Museveni had ruled for too long, and the army had refused to retire him, yet junior officers had been promoted and retired.
The controversial Brigadier further noted that even if he retired, he would not join Museveni’s party, NRM, but the newly formed Progressive Alliance Party for its “brilliant ideas.”
It was then believed that Tumukunde was the brain behind the party and its financier and intended to use it against Museveni.
All indications were that Museveni could not stomach such type of piercing criticism and threat on his hold on power by a member of the defence forces, friend and NRA war star.
Things fall apart
Tumukunde was not done.
At the time, the army brought forward the Uganda Peoples’ Defence Bill 2003 for debate in Parliament.
According to then Chief of Staff Maj Gen Joshua Masaba, the UPDF Forces Council met, discussed and approved the contents of the said Uganda Peoples’ Defence Forces Bill, and directed all UPDF representatives in Parliament to support the said Bill.
The President is the Commander-in-Chief and the Chairperson of the Uganda Peoples’ Defence Council that elects representatives of the UPDF in Parliament.
Masaba said when the said Bill was tabled before Parliament, Tumukunde, an army MP, did not represent the views of the UPDF Forces Council but “gave positions that were different.”
He further noted that Tumukunde’s conduct in Parliament was contrary to both the decision taken by the UPDF Forces Council and the UPDF “Standing Instructions given to all Army Representatives in Parliament, namely to be listening posts for the UPDF in Parliament to provide guidance to Parliament in military matters when need arises, and to consult the UPDF Forces Council on controversial issues that arise in Parliament.”
Masaba further faulted Tumukunde on contacting the press without approval by any UPDF authority and making public statements over the radio which were prejudicial to good order and discipline of the army.
Museveni later summoned Tumukunde for a meeting at State House, Nakasero where the President raised the two issues with the Brigadier and expressed his displeasure with the officer’s conduct.
On May 27 2005, Museveni summoned the petitioner for a High Command meeting.
During the meeting attended by UPDF Command, Tumukunde was directed to write to the Speaker, resigning.
“This directive had a deadline of 12 hours. This explains my writing on weekend. The purpose of this communication is to draw your attention to the above directive and to accordingly comply. Please do not hesitate to contact me if you need any further clarification,” Tumukunde wrote to the Speaker.
A few days later, Tumukunde was arrested and placed under military detention.
The operation in which heavily-armed soldiers raided the Brigadier’s home and scaled the wall fence, was coordinated by then UPDF Political commissar, Kale Kayihura, Col Dick Bugingo and Brig James Mugira among other officers.
On May 3, 2005, Tumukunde was charged before the General Court Martial. In the first count, he was charged with conduct prejudicial to good order and discipline contrary to section 66(1),(2) and (5) of the UPDF Act.
In the second count, he was charged with spreading harmful propaganda contrary to section 38(1) and (2) of the UPDF Act.
According to prosecution, RO/III Brig. Henry Tumukunde, on or about the 5th day of May 2005, while at Radio One Station, Kampala Central Division in Kampala District, without permission or authorization from the appropriate authorities, appeared on a talk show hosted by David Mushabe and made public speech and/or statements on Radio one 90.0 F.M Radio Station which conduct or act is prejudicial to good order and discipline of the Army (UPDF).
Prosecution alleges that while still a serving army official, Tumukunde made certain remarks on radio without authorization from his bosses which the UPDF Command regarded as contrary to the Army Code of Conduct and as disparaging to the name and reputation of the UPDF.
He was later incarcerated at the Officers’ Mess in Kololo, a Kampala suburb for almost two years.
Being aggrieved with the actions of the President and Commander-in-Chief, Tumukunde unsuccessfully filed Constitutional Petition No.6 of 2005 challenging the actions of the President and Commander-in-Chief in the Constitutional Court.
He appealed to Supreme Court where judges reasoned it was unconstitutional for Tumukunde to be forced to resign.
Chief Justice Benjamin Odoki ruled: “Clearly the appellant could not be compelled to resign his seat in Parliament except in accordance with the Constitution and relevant laws. He could have been recalled by his constituency the UPDF but this was not done.”
He added: “In the absence of any formal recall by his constituency the only thing that his superiors could do if he was no longer suitable to represent his constituency, was to advise him to voluntarily resign in accordance with the provisions of Article 83 (1) (a) of the Constitution which provides: A Member of Parliament shall vacate his or her seat in Parliament, if he or she resigns his or her office in writing signed by him or her and addressed to the speaker.”
It was not until the intervention of First Lady Janet Museveni and Gen Salim Saleh that Museveni budged an inch, leading to his release.
From jail, Tumukunde started battling the cases in court martial.
It remains unclear why the case has dragged on for almost a decade but insiders say Museveni expects Tumukunde to author a public apology if he is to regain “complete freedom.”
Tumukunde struggled to contain the anger and frustration with the Court Martial’s delay to give a verdict on his case.
However, anger overrode reason and patience in April 2013 when Tumukunde blasted Museveni and his government for betraying ideals that inspired the 1981 – 86 bush war that ushered NRA into power, statements that rattled the army.
“I am a victim of not getting free competition. If I was given free competition, I am sure I would have made an impact,” Tumukunde told a gathering during the installation of Mathew Rukikaire as honorary canon of St. Emmanuel Cathedral in Kinyansano, Rukungiri District.
“Those who reach people who deny us free competition please communicate this because we fought for freedom such that freedom may rain on us. The lack of free competition disadvantaged people like Rukikaire,” Tumukunde said in a veiled attack on Museveni.
As if this was not provocative enough, Tumukunde hailed Museveni’s arch rival Col. Kizza Besigye as a “good doctor” who saved hundreds of lives during the bush war struggle.
“When we were in the bush, I was shot. We never had many doctors but the first doctor to treat me was Dr Kizza Besigye. He was a very good doctor I don’t know why he chose to go into murky politics,” said Tumukunde.
While appearing before the military court this year, the Brigadier boldly said he was sick and tired of a trial that has spanned almost a decade.
“Send me to Luzira Maximum prison now instead of keeping me here in a trial that has lasted almost a decade,” Tumukunde told the court’s boss Brig. Fred Tolit, adding, “Please give a judgment on my case. I am ready to go and serve at Luzira.”
During another hearing, in what appeared as a move to win public sympathy, Tumukunde wondered why of all army officers he was the only one being “persecuted.”
He told court: “Why me? Mr Chairman, I seek your indulgence to personally react to some issues. This court should treat this case as a yardstick to other UPDF soldiers innocently suffering just like me. It should be noted that it is only me at my rank who spent one and half years in a dilapidated Kololo facility, which some journalists mockingly prefer to refer to it as a five-star facility.”
He added: “Year 44 and year 52 are very critical. Imagine for nine years on court bail and for you to go somewhere, you must seek permission and sometimes the person to grant such permission is not around. That aside, I volunteered to serve in this army and [never] hoped to be treated selectively. Suppose I spoke on spectrum which I deny, I know of many senior army officers who speak a lot of negative things and are not treated like me, Mr Chairman, why me, why me?”
According to section 137 of the UPDF Act, the charge of spreading harmful propaganda carries a maximum penalty of death or life imprisonment.
Death vs life
Analysts say Museveni has of late been reconciling with enemies including the family of departed President Milton Obote. He recently paid a visit to Obote’s widow, Miria at her home in Kololo.
Museveni also attended the marriage ceremony of Obote’s son Jimmy Akena and Betty Amongi in Oyam District a fortnight ago.
The President has also forgiven former security minister in Obote’s government, Chris Rwakasisi.
Rwakasisi is said to have psychologically tortured Museveni’s departed mother Esteri Kokundeka. He was released from Luzira Prison where he spent over two decades.
And a few years ago, the President took steps to reconcile with Mzee Boniface Byanyima. Museveni grew up at Byanyima’s residence in Ruti, Mbarara before falling apart with the family after Besigye married Winnie Byanyima before contesting for president.
Insiders say it is more likely that Tumukunde could be exonerated of any wrongdoing by the military court to avoid losing more support in Rukungiri, the Brigadier’s birthplace.
Rukungiri leaders recently met Museveni and expressed displeasure at how their “son” was being “persecuted.”
Museveni would also not want to antagonise army officers friendly to Tumukunde.
However, a military official who spoke to Chimpreports on condition of anonymity, said failure to “penalize” Tumukunde would “breed impunity in the army with officers defying the Commander-in-chief.”
The official blames Tumukunde for being headstrong and attacking the President in public.
Nevertheless, the Thursday ruling will set a precedent for dealing with the paradox of discipline in the army and freedom of speech.