|Justice James Ogoola: ‘The age of the rule of tear gas’|
Justice James Ogoola slams NRM on tear gas, Black Mamba; questions Supreme Court decision on Besigye electoral petitions
On October 8, 2012, Uganda Law Society marked Rule of Law day at the Imperial Royale hotel in Kampala. A keynote address titled, ‘The rule of law in Uganda: fifty years of trial and tragedy’, was delivered by the cerebral Justice James Ogoola, chairperson of the Judicial Service Commission. We reproduce his poetic, bold and candid paper:
Happy Birthday to us all on this, the eve of Uganda’s Fiftieth Anniversary!
Implicit in the theme of this address is the question: Have these 50 years been years of trial or years of tragedy for the Rule of Law? For purposes of this presentation we shall divide these 50 years of Uganda’s post-independence judicial life into five different Ages – namely:
(i) the Age of Reason;
(ii) the Age of Tension;
(iii) the Age of Chaos, Anarchy, and Tyranny;
(iv) the Age of the Calm Before the Storm; and
(v) the Age of the Twilight preceding the Jubilee Year.
The Judiciary is doubtless the preeminent player in any discussion of the Rule of Law. She it is who is the midwife to the birth of the Rule of Law. She it is who is the diligent nurse that feeds the baby with the milk of nurturing. And she it is who is the trustworthy steward, the chief custodian, entrusted with the authority and privilege to shepherd the population and the state in matters touching on the Rule of Law.
But the Judiciary is by no means the exclusive actor on the constitutional stage where the drama of law is played out day in and day out. Other equally significant players occupy the constitutional space and play a critical role in the evolving drama. Most notable of these others is the Executive arm of state - particularly so the Presidency, the Army and the Police.
That being the case, let us ponder the issue of the state of the Rule of Law in Uganda from the point of view of our country’s 50-year history. What has been the score card of the Executive and of the Executive’s organs and agencies as concerns the Rule of Law?
First and foremost has been the phenomenon of the Presidency in Uganda. Each and every one of the parade of presidents we have had in the country swears an oath to bear true allegiance to the country and fidelity to the law; in particular, to uphold, to protect and to defend the nation’s constitution as by law established.
In so doing, every president undertakes to rule by law, to protect the laws of the land against untoward assaults, and to uphold all the lawful orders of the courts of the country. But what has been the reality on the ground? The reality of that solemn presidential oath has, individually and collectively, been less than edifying – more in the direction of horrifying. We will go step by step through all the major exploits of the myriad presidents and presidencies that this country has had – from independence, to date.
The founding non-executive president of the brand new nation declined to assent to certain parliamentary enactments affecting the results of the post-independence, constitutionally mandated referendum on the ultimate fate of the Buyaga-Bugangaizi counties straddling the history, geography, politics and economics of Bunyoro and Buganda.
It is perhaps safe to say that this act, in combination with others closely associated with it, did set into motion the seismic political-cum-constitutional crisis that engulfed the young nation: leading to the 1966 storming of the royal palace, the London exile of that incumbent president, and the seizure of power by the then Executive Prime Minister, who promptly arrogated to himself the office and title of president (with highly exaggerated executive powers), and who then effectively dissolved the then kingdoms and pseudo-kingdoms existing within the Republic of Uganda.
The second president will forever be remembered for many things: good and bad alike, in equal measure. For one, he will be remembered for waging the pre-independence freedom struggle; ushering in national independence from the yoke of foreign domination; and laying a nationalistic foundation for building the new state, brick by brick. But perhaps significant among them all, his name will forever be engraved in the concrete of history as the Pigeon-hole-president – a constitutional engineering feat that was anathema to and the very antithesis of the rule of law.
To this singular predicament, he added yet another conundrum: the introduction for the first (and prayerfully last) time in Uganda of the indefensible specter of a law for Preventive Detention (i.e. the arbitrary and summary arrest and incarceration of citizens without recourse to due process). Ironically five of his own cabinet ministers (including the very author of the law himself) soon became the first victims of this obnoxious law. His, the rule of guile and intrigue. His, less than the rule of law.
The third president showed neither guile nor intrigue in running the affairs of state. Except for his instinctive animal cunning for self-survival, he exhibited neither ingenuity nor subtlety in the administration of the country.
Nor, indeed, did he manifest even mere pretence for either constitutionalism, good governance or the rule of law. His, but crude, naked and brutal assault on every precept of law, on every canon of the Constitution, and on every commandment of the rule of law. He seized power by the bleak butt of the gun; and for over eight odd years, kept that power and defended his turf and himself by the brutal barrel of that same dread gun.
Only through the malevolence of the bellicose barrels of the Tanzanian super guns, guided by the benevolence of Divine Providence, was the tyrant president dislodged from his oppressive patch – but not before he had callously butchered and dispatched the Chief Justice of the country, the Archbishop of the Church, the Inspector General of Police, the Vice Chancellor of the then only university, and scores of his own cabinet ministers and minions – among hundreds of thousands of others!
To heap searing coals on the aching conscience of the populace, the masochist butcher of Uganda introduced the chilling phenomenon of public executions by firing squad in the open town square – the first (and, again, prayerfully the last) of their kind in the country!
All these proved beyond any shadow of doubt – if proof be needed – that the presidency of 1971-79 knew not, cared not, and gave no damn at all about the rule of law. This, after all, the Age of Chaos and Anarchy. This, the Age of Terror and Horror!
The impulsive and dramatic exploits of that Age, such as the expulsion of Asians, left the courts of the country denuded of nearly all judicial personnel – beginning with the hapless magistrates from all over the country, and ending in a near-exodus of expatriate judges of the higher courts.
The fourth, fifth and sixth presidencies (under the purely transitory regimes of Prof Yusuf Lule, Godfrey Binaisa, the close conclave of Prof Edward Rugumayo’s “Gang of Four”, and the Military Commission of Paulo Muwanga and Brigadier Oyite Ojok) – were all remarkable more for the raw, clandestine, shady and Machiavellian ousters of their respective incumbents than for their protection or defence of the rule of law.
Thanks to their canny ingenuity, the country experienced very swift presidential successions: commencing with the dislodging of its first post-Amin president within a mere 68 days – doubtless a meteoric record anywhere in the world - followed immediately thereafter by another president who, as the harsh truth dawned, would not be allowed to appoint, deploy or reshuffle his own cabinet ministers. When he dared to do so, it was him who unceremoniously faced the rough edge of the tough boot of his more powerful “juniors”.
This, not the Rule of Law. This, the Rule of the Puppet Strings. This, not the Age of Reason. This, the Age of Tension. The seventh Presidency brought back the resurrected apparition of the second president – who largely travelled the same troublesome path and traversed the same trying terrain as before – only this time with a measure of vengeance:
Following the controversial general elections of 1980, a rag tag band of “bandits” run to the bush, only to return to the capital, a mere five years later, wielding the victorious gun of war – with which they seized power from a duo of largely illiterate Army Generals (of the Okello & Okello Company ), who had themselves grabbed that same power a mere five months before from the coup-prone Presidency of Dr Milton Obote.
In all this, the lexicon of the day, the vocabulary of the Age was military might, gun power, and sheer primitive force. Theirs, the Rule of Kifuba (crude force) – not the Rule of Law. Naturally, it took the bush warriors a long time, prime sacrifice and national agony to transform the Age of Chaos and Tyranny into the present Age. What then has been the state of affairs vis a vis the rule of law during this present Age; this twilight to our milestone jubilee?
The chronicles of this Age will record many momentous things done or left undone in the areas of economics, politics and peace. In the arena of the rule of law, however, the record will not fail to script the following troublesome spots on the large canvass of our nascent history:
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