Lawyers disagree with Museveni on independence of judiciary

A section of Ugandan lawyers has disagreed with President Yoweri Museveni over his recent statements questioning the independence of the judiciary. 

While speaking at the 5th Annual Memorial Lecture of the first Ugandan chief justice Benedicto Kiwanuka, Museveni last Wednesday admitted that his government has sometimes defied court orders and that there is a need to amend the prerequisite for the independence of the judiciary, arguing that the concept is being abused by some judicial officers. 

Museveni said that the judiciary cannot be entirely independent of the other arms of the government and proposes that there should be a convergence of principles of justice because he sees a problem if it's only the judiciary that is benefiting to the detriment of the citizens.

The president was responding to the Uganda Law Society president Bernard Oundo, who accused security personnel of not respecting and implementing court orders. Oundo said such practices threaten the independence of the judiciary, rule of law, and constitutionalism.  

According to the lawyers, the judiciary’s independence should not be questioned or subject to the amendment because it is provided for under the constitution. Some lawyers have since described Museveni’s statements as unfortunate and regrettable. Humphrey Tumwesigye,  says that it is unfortunate that such a statement came from the president - most especially on a day when the country was celebrating the life of a person who was murdered fighting for justice. 

He says such statements are an indication that Uganda has not yet reached a level where every arm of government should be allowed to do its job without influence from the executive.

“Because, when all other arms of government have failed the citizens, the last hope should be the judiciary. That’s why its independence is very important. But advocates and judges must be ready to make the resident district commissioners - RDCs respect court orders and anybody not respecting the court orders should be sued for contempt of court orders”, says Tumwesigye. 

Likewise, George Musisi notes that the framers of the constitution did this well knowing different functions for all arms of government and the court was left as the neutral arbiter.  Musisi says that it would be wrong for the executive to start making decisions and disregarding rule of law and to show that it's only one arm of government in fighting for the interests of the citizens.

"What makes it more sad is that it came on the day when we were celebrating a man who is celebrated for having fought for the rule of law in this country and constitutionalism. The argument by the president that it is only the executive which has the interests of the citizens at heart is false. Because when our lawmakers were making the constitution, they did different functions for different arms. The only neutral arbiter for all the citizens is the court. Otherwise, if parliament thinks that the executive is not pro-citizens and parliament starts also doing work for the executive or if the executive thinks that parliament is not pro-citizens and the executive starts making decrees that would mean anarchy and a breakdown of constitutionalism as we know it," said Musisi.

Stanley Okecho says that the president needs to be lectured on the independence of the judiciary, the tenets, and its crucial role in a democracy. He adds that it is unfortunate that he admitted that the executive has interfered with the enforcement of court orders.

“The executive is supposed to implement the law, parliament legislates, and the judiciary interprets. In the event that there has been an erroneous interpretation, structures within the court system can remedy all injustices. I acknowledge the fact that he admits that some of our problems are historical”, said Okecho.

Andrew Mumpenjje argues that a court order is valid until set aside by that very court or an appellate judicial body, and therefore, enforcement of court orders cannot depend on the moods of the president and its agents as this erodes both the rule of law and independence of the judiciary.

“A judge's order cannot only be right if the president finds it right. It is right until set aside regardless of what the president feels. The president is the fountain of honour, but he himself is not above the law. The same constitution that made him the fountain of honour is also the one that caters for the independence of the judiciary in Article 128. So he should not overstretch his powers. They have a limit," Mumpenjje said. 

"Court orders must be respected no matter how erroneous until they are overturned or set aside by an appellant or by a higher court. Before that, a court or order is a court order that must be respected. So the president can't say that sometimes the courts are illegal or improper. In any case, who is the president, does the president sit as an appellant court? I the president a lawyer who can assess whether a court order has been issued properly. Even if he was a lawyer, he doesn't have the powers to assess whether the court order has been issued properly and assess which order to respect and which one not to respect," he added.

Phillip Munaabi contends that it is becoming a common practice that Museveni uses such kind of language and gestures whenever he gets a chance to address a gathering of the judiciary and the lawyers.

Munaabi says the amendment Museveni seeks is already enshrined in the mission of the judiciary which states "to be an independent, competent, trusted and accountable judiciary that administers justice to all and therefore Museveni ought to let the courts and its officials operate free from interference.  He notes that short of this, Museveni is creating power dockets outside court that may one day act against his interests.

“His RDCs and security forces are not lawmakers but should act within the confines of the law. I have seen complaints by the president himself to authorities about people grabbing his land in Gomba, he has defended several presidential election petitions before the courts of law and he has respected and accepted the orders therefrom. This way, he is seeking for an independent and unbiased opinion from a third party because what belongs to him without a 'convergence of principles of justice," added Munaabi.