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‘Values, norms & aspirations’: An additional note on judicial independence in Uganda

FILE Supreme court judges

FILE Supreme court judges

Last week, this column reflected on the issue of judicial independence, in the context of certain remarks by the Minister of State for Lands, Hon Sam Mayanja and the Attorney General, Hon Kiryowa Kiwanuka.

This discussion has also been forced into the public domain by a determined and consistent push by a section of members of the Uganda Law Society (ULS, including Phillip Karugaba, Isaac Ssemakadde, Sarah Kihika Kasande, Mohmed Mbabazi, Anthony Odur, Daniel Walyemera, Ivan Bwowe, Peter Walubiri, Lillian Drabo, Jude Byamukama, Frank Kanduho, Eron Kiiza, George Musisi, Willian Muhumuza, Mugagga Mukuve, Peter Arinaitwe and others.

These voices are important, especially in the context of the rather lackadaisical stance adopted by the Uganda Law Society (ULS) – in the face of a steady pattern of executive actions aimed at diminishing the integrity and independence of the judicial branch.

SOPHISTICATION

The difficulty of the present moment reflects the sophistication of those who appear to be insistent on reducing the judiciary to something akin to a department in the Ministry of Justice, or an office in Statehouse. A classic example in this regard are the statements by Hon Mayanja and Hon Kiwanuka.

While true at a certain technical level (the fact that judicial power is itself not unlimited) they ae nefarious when placed in the context of a broader pattern of the erosion of judicial power as established under the 1995 Constitution. For instance, when in June 2004 the Court of Appeal invalidated the Referendum (Political Systems) Act of 2000, President Museveni revealed his view of judicial power, saying: ‘[the] major work for the judges is to settle chicken and goat theft cases but not determining the country’s destiny’.

Later, in March 2007, when court granted bail to suspected rebels of the Peoples’ Redemption Army (PRA) the High Court premises were brazenly invaded by a shadowy paramilitary force (the so- called ‘Black Mamba’) which was intent on ensuring the accused persons’ continued detention.

This contempt would continue to be evinced in word and in deed in the years that followed. On 7th December 2018, for example, at a function organized by the Justice Law and Order Sector (JLOS) and the International Justice Mission (IJM), the then Chief Justice, Bart Magunda Katureebe voiced his frustration at the marginalization of the judiciary, noting: ‘Can you imagine us ( judicial officers) [having] to convince government that the Judiciary is important?

I had a meeting with the Minister of Finance on Thursday December 6, 2018 to make a case that law and order is a priority area ... Some people don’t understand how to make priorities but the struggle continues.’ By all indications, this struggle – of having the judiciary perceived as a co-equal branch of government, with a critical role to play in national governance – continues todate.

Thus, while it is strictly speaking, true that the judiciary cannot be a law unto themselves the challenge in Uganda is more around judicial vulnerability than it is regarding judicial tyranny. The history of the judiciary in Uganda – briefly stipulated in last week’s column – is not one of strength but one of weakness.

It is a judiciary whose story includes a Chief Justice, Ben Kiwanuka, martyred in 1972 for having stood up to the tyranny of a self- declared life president. In such a context – of a judiciary which still needs support and facilitation to grow into its full potential as an effective check against executive and legislative power – it might very well be the case that the (otherwise legitimate) concerns raised by Hon. Mayanja and Hon. Kiwanuka are poorly-timed and potentially counterproductive.

Uganda has come a long way since 1972. And certainly, Museveni is not Idi Amin. However, the judiciary is not yet where it was intended to be when the 1995 Constitution adopted. Indeed, the danger with the Mayanja-Kiwanuka framing is that it may actively roll back – psychologically and perhaps even actually – the safeguards contained in Chapter Eight of the Constitution.

I think, in this regard, Sir Francis Bacon’s exhortation to English judges, in his 1625 essay entitled ‘Of Judicature’ in which he noted that: ‘Let judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.’

The spirit – if not the letter – of Hon. Mayanja and Hon. Kiwanuka’s approach, coming as it is in a context of judicial weakness rather than strength – seems to be in Sir Bacon’s mould, asking judges to be restrained in the face of presidential power. The 1995 Constitution does not create a throne – although all indications point to attempts to force one upon Ugandans (complete with a Queen Mother and Crown Prince).

Indeed, neither does it seek to create lions. Instead, it does the opposite. It creates servant leaders, deriving powers from the people, sharing power and checking power – with the ultimate goal of ensuring that power continues to rest in the people. This is the essence of Article 1, which declares that power belongs to the people with the requirement that they exercise that power in accordance with the Constitution.

The Constitution then declares its supremacy, under Article 2. In Uganda, therefore, it is the people that are powerful and it is the Constitution which is supreme, binding all persons and authorities in Uganda – binding the Executive, including the President (consistent with Article 99), the Parliament (consistent with Article 79) and the Judiciary itself (consistent with Article 126).

That said, there is still some value in have a continuing discussion around the nature, and potential limits, of judicial power in Uganda. An important check in this regard is embedded in Article 126 (1) of the 1995 Constitution, which both requires judges to exercise judicial power ‘in conformity with law’; on the one hand, and at the same time directs them to do so ‘in the name of the people’ and in accordance with ‘the values, norms and aspirations of the people’.

The design of Article 126 (1) suggests that the framers of the Constitution were mindful that there might be instances where the law is out of step with the ‘values, norms and aspirations’ of the people. What is to be done in such a case? What happens where, for instance, the law allows for the attachment of a church or a mosque – but it appears that Ugandans do not feel comfortable with such an action?

Or where the Constitution and law allows for freedom of movement, but the movement of a particular group of people (such as the ‘Balaalo’) causes significant ethnic tension with the potential for violence or even civil war? Certainly, in all these instances, the Judiciary is – and must continue to be – ‘independent and not subject to the direction or control of any person or authority’ (as stipulated under Article 128 of the Constitution).

But in these instances, can the judiciary be ‘independent’ from, or insensitive to, the ‘values, norms and aspirations’ of the people from whom their power is derived and in whose name it is exercised (in terms of Article 126 (1))?

DEATH PENALTY

This tension was in issue in the case of Susan Kigula & 416 others v. Attorney General (Constitutional petition No 6 of 2003) which challenged the constitutionality of the death penalty in Uganda. In controversially upholding this medieval punishment, some of the Justices of the Constitutional Court reflected on the extent to which public opinion could be factored into the exercise of the judicial function.

In that case, Justice Twinomujuni observed as follows: ‘I do not agree that public opinion is an irrelevant factor. It is a very relevant factor because of Article 126 (1) of the Constitution . . . In the interpretation of this Constitution and indeed any other law, the views of the people, wherever they can be reasonably accurately ascertained, must be taken into account.

This is a command which no court can ignore.’ For his part, however, Justice Okello, emphasized the equal importance of fidelity to constitutional text, noting: ‘While . . . the norms and aspirations of the people must be taken into consideration when interpreting this Constitution, the language and spirit of the Constitution must not thereby be compromised.’

Although the case went up to the Supreme Court, this particular point was not addressed by the justices of that court. Aside from apparent impasse reached in Kigula in terms of the weight to be given to constitutional text relative to public opinion, is the related question as to how such popular ethics and sentiments might be ascertained.

A rather neat approach in this regard was suggested in a decision delivered in 2004, in the matter of Charles Onyango Obbo and Andrew Mwenda v Attorney General (challenging the constitutionality of the offence of ‘false news’), wherein Byamugisha Ag JSC suggested that these ‘values, norms and aspirations’ could be located within the text of the Constitution itself: ‘... the framers of the Constitution had the peculiar circumstances of this country in mind when they enacted the Constitution.

These are highlighted in the preamble as political and constitutional instability, tyranny, oppression and exploitation. They stated the goals to be attained. These were to be unity, peace equality, democracy, freedom, and social justice. I consider these to be the values, norms and aspirations of the people in this country that have to be nurtured.’

While Byamugisha Ag JSC’s approach provides part of the answer, I am not sure that it is a complete one. Certainly, it might be possible to find some of these values within the Constitution itself, including in the words of the Preamble – and in the National Objectives and Directive Principles of State Policy.

At the same time, does this preclude courts from taking account of public feeling and sentiment (as indicated in opinion polls, referenda and so on) – as Justice Twinomujuni suggested in Kigula? In the Mathew Kanyamunyu Muyogoma v Uganda (Miscellaneous Application No.151 of 2020), in which the applicant sought to have the court suspend his trial for murder pending the pursuit of a traditional reconciliation process (‘mato oput’) Judge Stephen Mubiru seemed to suggest a negative answer to this question, observing: ‘Although a court should not shrink from applying the values, norms and aspirations of the people to any new and extraordinary case that may arise, however, since minds could easily differ over the contents of such values, norms and aspirations, their identification and application cannot be based on pure judicial intuition. It brings to mind the proverbial metaphor of the “very unruly horse and when once astride it you never know where it will carry you” ... It would be wrong for a judge to set out in pursuit of a personal policy agenda and hang the law.’

IDEATIONAL INDEPENDENCE

As I see it, in the months and years to come, as the Courts struggle with various value and ethics-laden questions, this aspect of the judicial function – and judicial independence – will increasingly be foregrounded.

To this extent, aside from concerns around judicial independence from executive overreach, an important consideration may have to be the issue of ‘ideational independence’. If Judges and Justices are mandated to take into account ‘values, norms and aspirations of the people’ then, among other things, all of the people should be accorded equal access to the judiciary – in formal and other settings – to articulate their various visions for the shape and future of our constitutional trajectory.

To take but one example, it would be problematic if – in terms of perception or reality – one section of society appeared to have unique, special or privileged access to the courts.

In this regard, it is interesting that since 1995, Parliament is yet to establish Qadhis’ courts to handle aspects of Muslim personal law (marriage, divorce, property inheritance, guardianship etc) as contemplated under Article 129 (1)(d); and Muslims generally remain underrepresented within judicial ranks and in judicial activities.

This is not proper. If Article 126 (1) is to mean anything the values, norms and aspirations of all the people – not some of the people, should be treated seriously and respectfully. Similarly, if Article 126 is to find full expression, then Article 127 – which requires Parliament to make a law providing for the participation of the people in the administration of justice – should also be finally, and fully, implemented.

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.

Comments

0 #1 Akot 2024-03-04 21:16
How can thered be [judicial independence in Uganda] when it's not a country any more but Rwandese Museveni's family business & Ugandans fight for posts, fight one another to ensure his lifetime rule & transfer of power to his son, instead of saying;

- NO to the tribalistic system and,

- UNITING to ensure they become owners of their
land again & govern as they wish?
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