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:
(1) The infamous double invasion of the High Court premises in December 2005 and March 2007 by the elite agents of the Army under their nom de guerre (battle name) of Black Mambas;
(2) The ugly bloody scenes of excessive bare-knuckles force exhibited by the peoples’ police service in cleansing the country’s streets, highways, and byways of opposition pedestrians who choose to walk to work; or, even worse, who dare to walk to freedom.
Most, unfortunately, the spectre of the daily pall of lethal smoke vomited from the inexhaustible armoury of police canisters, hangs heavy over the heads of the populace like a dark nimbus cloud. It sends a chilling message into the Nation’s sitting rooms, office rooms and even the court rooms.
Worse, the daily photos and TV pictures of the uniformed police heavily garbed in riot gear heaving, sweating, wrangling, and battling it out with unarmed politicians, pedestrians and the press amidst fumes of toxic tear gas, are a searing, suffocating experience in national anguish and agony. The ubiquitous pall of deadly tear gas envelopes the cityscape and the landscape under a dark cloud of doubt: Doubt, as to the efficacy of the citizens’ enjoyment of their inherent rights of association, expression, and protestation?
Doubt as to the permissible boundaries demarcating the extent and content of the state’s mandate to keep law and order? Doubt as to whether in validly executing its function, the police bears no moral responsibility to restrain its strong hand of might so as not to stray into appearing to trample roughshod the frail citizen’s rights underfoot?
There is, therefore, the real danger that when all the gas and cloud has settled, history may well record this as the Age of the Rule of Tear Gas, rather than the Rule of Law. The more the pity – especially given that this is the administration that unveiled and bequeathed to the country a stellar Constitution: the best researched, the most debated, and the most liberal and efficacious constitution of all our former constitutions: a model in the region, a guide on the continent. Therefore, the tear gas cloud of doubt (coming, as it has on the very eve of the golden jubilee celebrations of our country’s emancipation and liberty), would be a most regrettable legacy. But then, the judgment of history, ripened by the maturity of time, can be horribly harsh: unforgivingly harsh!
For 50 odd years, Uganda has had its own Judiciary anchored in its own homegrown constitutional dispensation. What then, in terms of the rule of law, can that Judiciary show for these many years? What has been the profile of the Judiciary? What have been its high points and its low points? How does the Judiciary acquit itself on this momentous score?
The Udo Udoma court
The transition from a colonial constitutional era to the era of an indigenous national court was, understandably a slow transition. Chief Justice Udo Udoma had to be borrowed from a sister African jurisdiction (Nigeria) to provide the first black judge and head of the post-independence Uganda.
His Lordship the Chief Justice must have busied himself engrossed in issues of Africanising and indigenising the court, and transforming the ethic and culture of the court from an essentially Anglocentric imperial appendage to a modern judicial institution promoting and protecting the rights of an independent, liberated citizenry of a newly emancipated sovereign state, thirsty for the true rule of law.
That court’s work and role were, therefore, clearly cut out – namely: to conceive, gestate and give birth to a new dispensation of real justice and genuine rule of law, unbismirched by colonial folly or imperial impudence. Ironically, the most celebrated jurisprudence to come out of the Udo Udoma Court will for ever be the celebrated case of Ex Parte Matovu – a cerebral expose on the ugly reality of coups d’etat.
The Ben Kiwanuka court
Not much is known or written about the court headed by the second Chief Justice of Uganda (who was in truth the first indigenous Ugandan Chief Justice): Benedicto (“Ben”) Kiwanuka, a scion of the independence political struggle; president general of the Democratic Party; and first Chief Minister of the self-governing State of Uganda (1961-62) - now turned Chief Justice of the high bench of his beloved land.
His claim to a coveted entry into the country’s judicial history book derives from two factors:
(1) His indomitable courage and boldness in the face of danger, even extreme danger. He had the judicial backbone of steel when – in the face of terror and horror – he granted an order of habeas corpus ordering the government of the formidable Idi Amin to produce before a court of law a valuable prisoner of that tyrannical regime;
(2) His guts in all this led to the capital consequence – which the courageous Chief Justice feared not. He paid the supreme price with his own life: He was dragged like a chicken thief out of his own court room, led to the slaughter house; and there, like the sacrificial lamb, butchered and quartered on the judicial hill of Golgotha – his mutilated body has never been found to this day: the first (and hopefully last) judicial martyr of Uganda. This, the uncompromising price of the rule of law: a priceless ransom paid a mere 15 years or so into the life of the new nation!
The Jeffreys Jones commission
Justice Jeffreys Jones was a British judge on the Ugandan High Court of the early 1970s. Idi Amin was the military president of the country. Two American journalists dared to come to Uganda to report on Amin’s grotesque excesses of governance. The two scribes never left Uganda alive.
Their limp bodies were found bludgeoned and dumped in the deep wilderness of the rain socked forests of western Uganda. Enter Judge Jeffreys Jones: Chairman of a Judicial Commission of Inquiry into the chilling deaths of the American duo. The indefatigable judge worked tirelessly under enormous difficulty; wrote his scathing report – but pronounced himself on it from the safe distance of Nairobi, Kenya, to which locale his Lordship had diligently retreated for sanctuary to escape the vengeful wrath of Idi Amin: prime culprit in the illuminating report.
All this but a shrill and eloquent testimony to the sorry state of the rule of law obtaining in the very Dark Ages of this country’s history.
In the election petition challenging the presidential elections of 2001, the Supreme Court found a cascade of electoral breaches against the respondent and the Electoral Commission. Nevertheless, the court concluded that the breaches were not serious or substantial enough to warrant overturning the viral results of the infected election.
The above conclusion, though technically correct and valid, raised many professional and political eyebrows – generating, as it did, critical doubts about the court’s resolve and commitment to the rule of law. At issue, in the eye of the court of public opinion, was the exercise of the court’s discretion in weighing the “substantiality” of the litany of electoral offences that the court itself painstakingly affirmed to have existed, only to turn around and find them wanting and insubstantial.
Right or wrong the court’s conclusion may well be. However, the history books are likely to script the public’s perception more boldly than the reality and validity of the court’s holding in this extra contentious matter of the presidential election. The court has handled with aplomb and rectitude many cases in which its light has shone bright. Among such have been cases touching on capital punishment, treason, sedition and the diverse rights and freedoms of the press.
On all these the court has stood strong, steadfast and supportive of the rule of law; and has, thus, emerged on the right side of history. But, without a shadow of a doubt, the Judiciary’s reputation in this modern Age of the jubilee’s twilight will stand vindicated and redeemed by its courageous resolve to respond with extraordinary bravery and boldness to the Black Mamba’s brazen invasion of the Temple of Justice.
That, seemingly fleeting, moment will forever illumine the tides of time to tarry as the shining pearl in the country’s judicial crown of jewels.
The Justice Order Commission of Inquiry
Upon the onset of the NRM regime in the mid-1980s, Justice Arthur Haggai Oder (RIP) was commissioned to chair a Judicial Commission of Inquiry into widespread flagrant abuses of the justice system. The learned judge’s diligent and well-researched report made bold forays into the dark dungeons of this country’s past extra-judicial exploits of impunity.
Pity it is then that not much was attempted, let alone achieved, by way of righting the egregious wrongs of the past that were so clearly unmasked by this judicial report – a report that stands as an illuminating candle amidst the dim and dump dungeons of regressive exploits against the rule of law.
This then is but a brief synopsis of how our country has fared over the first 50 years of its history as an independent sovereign entity. There have been mighty storms buffeting the seascape of justice and the rule of law. There have been heroic stands taken to deflect – and even to confront head-on – the savage assaults on the independence of the judicial function.
The struggle, no doubt, will continue steadfast in its illustrious journey into the second jubilee, the platinum jubilee, of this country to ensure that our population, our institutions and our leadership truly aspire to uphold, defend and protect the nation’s fundamental tenets of justice and the underlying precepts of the rule of law as established in our sacred constitution and in all associated international legal instruments to which Uganda is a party.
And so, we end as we started: Have these been “Fifty Years of Trial or Tragedy?”
Happy Birthday to Us All!
Happy Birthday to Uganda!
Felicitations to the Pearl of Africa!
For God and our Country.