Ex-soldiers returning from Middle East detained, face court martial

1982 coup suspect Hezekiah Ochuka is escorted to court during his trial by a court martial. Ochuka, a Senior Private in the Kenya Air Force, was hanged for the offence in 1987. [PHOTO: FILE/STANDARD]

By NYAMBEGA GISESA

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Kenya: The single largest trial of soldiers since the 1982 abortive coup is expected to kick off Monday when 27 soldiers appear before a court martial facing various charges.

Most of them will face charges of desertion of duty after they allegedly left the military unprocedurally several years ago for greener pastures abroad.

The soldiers are alleged to have left their bases without being released by the Department of Defence to join private security contractors.

The soldiers were recruited by a US-based firm to provide various security services in war-torn countries including Iraq, Afghanistan and Kuwait.

Having survived the killings in these countries and instead of enjoying the fruits of their risky undertakings DoD now wants them to answer for their rash actions.

“We were asked to go to our former military bases and be cleared officially,” said an ex-serviceman detained at Mtongwe Kenya Navy base. “On arrival we were arrested, given military uniform and told to either join the service or face a court martial.”

The soldiers who have now been detained for over 40 days without trial or formal charges are expected to face a court martial at the Mtongwe Naval Base.

Military law

The legal and communications department at the Kenya Defence Forces told The Standard on Sunday that the men are expected to face desertion charges according to military law.

The penalties for desertion include life imprisonment.

“The Chief Justice has appointed a judge advocate and all the men who are being treated as deserters will face due process as from Monday,” military spokesperson Colonel Willi Wesonga told The Standard on Sunday. “If they will be found innocent then they will be let free.”

DoD spokesman Bogita Ongeri confirmed that the ex-soldiers were being held and that due process of the law will be followed in dealing with them.

“There is a way that someone leaves the military honourably and follows the procedures to clear and for now that will be determined once the law is applied,” he said.

However, the ex-soldiers read malice in DoD’s actions.

They claimed that they informed the military of their intention to leave after serving the mandatory nine years.

“We sent resignation letters to our commanding officers requesting to be allowed to leave the armed forces for greener pastures,” one of the soldiers said.

All the men whom we spoke to sought anonymity for fear of further reprisals from the military.

One of the soldiers being held at the Navy base in Mtongwe said that upon their return to the country, they were requested to go to their respective military bases to clear officially from the military.

However, on arrival some of them were arrested, given military uniform and told to either join the service or face a court martial.

The soldiers claimed that some of their colleagues had been released from the military since the start of the year and as late as in early March.

“It seems that it all depends on who you know in the military,” one of them complained.

Lawyer Kamunde Njue who is representing 20 of the 27 held protested yesterday over the manner in which the ex-soldiers had been ambushed and held without any explanation.

Njue said some of the detainees had been arrested and held for over 45 days after they voluntarily returned to the Navy headquarters to clear and yet no one is communicating to them.

He also protested that the military was taking long to constitute a court martial to have them formally charged.

Voluntary return

“Our clients are not being treated fairly and what is happening is like detention without trial; this is already a punishment before they are tried. Our clients are not getting any formal communication as to why they are being held and are only relying on rumours,” Njue said.

Col Wesonga argued that it was risky to give bail to the detainees since they had already deserted the military and thus there was no assurance the ex-soldiers would not run away from the country.

The court martial is composed of between three and six senior officers well versed in matters of law and is usually presided over by an officer of the rank of a lieutenant colonel and above.

The Judiciary nominates a judge or a magistrate to sit in the proceedings.

“The role of the judge is to ensure that the Constitution is observed,” said a senior officer who did not wish to be named since he is not allowed to speak for the military. “The presiding officer in consultation with his colleagues would take the final decision. The judge only advises them,” he said.

But according to Ahmednassir Abdullahi, who until recently was a member of the Judicial Service Commission, the court martial is a military affair and the Judiciary is not involved in such cases.

“I am not sure about how they conduct their cases but what I know is that the Judiciary does not play a part in employing judges,” he said.

The accused servicemen can hire their own lawyers, but one will be provided for those who cannot afford to hire their own.

A senior officer of the rank of a Colonel who is also versed in law will be appointed to help the civilian lawyers understand how the military operates.

According to the Kenya Defence Forces Act No.25 of 2012, Section 54 (1) and (2), “the rights of an arrested person in Article 49 of the Constitution may be subject to limitation in respect of a person to whom this Act applies as set out in subsections (2) and (3).

Mixed reactions

The KDF Act Section 54 (2) permits “the holding of an arrested person without bail”.

KDF’s legal and communications department said that the “deserters” have limited rights.

The Constitution says that the limitation for such persons should be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

The former soldiers said there were mixed reactions from their commanders over their resignation requests.

“Our resignation wishes were either granted, declined or ignored,” the soldiers said.

According to the KDF Act of 2012 termination of service of members of regular force occurs upon retirement, resignation, termination of commission, dismissal from service or discharge from service.

The Act says: “Where the Defence Council declines to approve resignation request under sub section (7), the Defence Council, shall within reasonable time and in writing, communicate such decision and reasons for declining.”

This is the first time in 30 years since the trial of the masterminds of the1982 failed coup that such a high number of soldiers are being tried at once.

The officer who spoke to us on condition of anonymity said the court martial is necessary to serve as a warning to other officers who might wish to leave.

“The government has spent a lot of money training them to be the people they are. They have been equipped with vital knowledge and skills in order to serve this country. They cannot then run off to pursue their own selfish ends the way they want,” he said.

War zones

Formerly known as Kellogg, Brown & Roots now KBR, a multinational engineering, construction and private military contracting firm recruited most of the soldiers currently under detention.

The men served as truck drivers, mechanics, plumbers and security escorts among other jobs.

The KBR company — the largest non-union construction company in the US – offers its services in various war zones around the world. The firm holds a larger contract with the US government than any other firm in Iraq and employs the highest number of private contractors.

Kellogg Brown & Root Services, also runs support services at the US military bases in Camp Lemonnier, Djibouti, and Manda Bay, Kenya.

The Kenyans left Kenya Armed Forces to join the private firm as from mid 2000s.

In November 2007, for the second time in as many months, KBR placed advertisements in a local newspaper looking people to work in “contingency operations” for US and coalition forces in Iraq, Afghanistan and Kuwait.

Another company, Sentry Security of East Africa Limited, a liaison company for Sentry Security of East Africa, USA, contracted by the US Government also recruited some 800 Kenyan ex-military men and former police officers to serve in war-torn Iraq.

At the time, KBR said it intended to recruit individuals with expertise in transport, supply chain management, food service and information management.

Other qualifications were in network and telecommunications, logistics, sports and recreation, maintenance, business and support projects among other fields.

The company cautioned prospective employees that the assignments will be dangerous and promised an attractive package in terms of great pay and excellent benefits including paid vacations and more.

“We were paid according to the number of hours worked and the difficulties in the places where we worked,” one of the soldiers said.

Lucrative job

He added: “You could make about Sh1million in a month. While serving in the Kenyan military the soldiers earned an average of Sh40,000 per month.”

The lowest paid Kenyan received more cash than the lowest paid US Army officer in rank serving in Iraq.

The soldiers are reading malice in the manner that they are being treated. “There has been an amnesty that has over the years given room to those who come back to be officially discharged from the Kenyan military. How come we are now being arrested?” one of the soldiers asked.

Our investigations have established that a total of 27 soldiers are being detained at Mtongwe where majority of them have been held incommunicado at the guard rooms (cells) for over a month now.

The ex-servicemen are accusing KDF of abusing their human rights that include the right to be served with charges before trial and the right of being given ample time to prepare for defence.

One said: “They plan to catch us off guard and jail us because we don’t know the kind of charges we are facing and we have not been given time to seek legal advice.”

According to the KDF Act of 2012, a person is deemed to have deserted when they leave the Defence Forces or fail to rejoin the Defence Forces.

It also happens when one enlists in another defence force without having been discharged or resigned or when one is absent without leave for a continuous period of more than 90 days.

The punishment for desertion could be as severe as life imprisonment.

— Kipchumba Some, Jacob Ngetich and Geoffrey Mosoku contributed to this story