THE OBSERVER

Justice Delayed, Part II: Petitioners bemoan delayed justice in Constitutional court

September 18, 2017

Written by Sulaiman Kakaire

In this second part of the three-part series on the 22 years of the Constitutional court, SULAIMAN
KAKAIRE examines the effect of backlog in the court, and how politics has remained a stumbling block to
efficiency.

The backlog in the Constitutional court has had an effect on the nature of reliefs that come from it. In many
cases, the parties could have already moved on by the time the court decides a case.

According to constitutional lawyer Peter Walubiri, this makes the courts judgments to be postmortem.
They are basically for academic [purposes] or posterity but do not affect current events; yet ideally the
decisions should primarily influence current events that is why the framers deemed it fit that the matters
should be heard expeditiously, he says.

Lawyer Peter Walubiri

Take Muwanga Kivumbis 2005 constitutional petition against the attorney general, challenging the
constitutionality of section 32 of the Police Act which empowered the police to stop the holding of an
assembly or rally or public procession allegedly upon reasonable grounds.

Kivumbi ran to the court seeking a quick relief after police stopped him from holding rallies to mobilise
against the parliaments plan to lift presidential term limits.

Although the Constitutional court declared the provision to be unconstitutional, the said judgment was
made in May 2008 when the petitioners grievance could not be addressed.

Ladislaus Rwakafuuzi, the lawyer in Kivumbis case, regrets the delay. It was absurd that the good
decision came when the term limits had already been lifted and the elections had been held, he said.

There are several other cases of a similar nature, including some that are pending before the Constitutional
court yet events influencing them have changed or the parties in those cases have moved on.

For instance, Justice Kenneth Kakuru says before he joined the Constitutional court bench in 2013, he
had filed several petitions but more than five years later, they are yet to be decided.

After the 2011 elections, I filed cases challenging the constitutionality of electing members of parliament
representing special interest groups on political party tickets. In my view, they are not to be voted on party
tickets because when they are elected through political parties, they, by implication, abandon the
constituency they are representing, he says.

Unfortunately, these petitions have not been heard yet we have gone through elections.

Similarly, in 2011, Kakuru also filed a petition challenging the constitutionality of provisions of the Political
Parties and Political Organizations Act, which prohibits state-funding of political parties without
representation in parliament.

Those provisions are not only discriminatory but they are not in line with the principle of promoting multi-
party dispensation. All parties, upon registration, must be funded by the state as a way of supporting them.
You see, it is like a national team that expects to get players from local teams that are not supported. How
do you expect the good players to emerge?

Currently, there are at least 117 petitions and 97 constitutional applications yet to be heard by the
Constitutional court even when they have pended before the court for more than two years.
EROSION OF RULE OF LAW

Backlog in the Constitutional court has not only led to the granting of post-mortem orders but it is eroding
the rule of law.

Human rights lawyer Isaac Ssemakadde, who is current pursuing several cases pending before the court
said that the inefficiency in the court has affected the culture of rule of law since there are many acts or
omissions that go without reprimand.

When you petition to determine the constitutionality of a would be violation and the court does not expedite
its work within a reasonable time but decided to do it at a later date the consequence of it is that the
impugned act would stand for some time and this promotes impunity, which in a long run erodes the rule
of law, Ssemakadde said giving an example of a case his organization (LBT) filed challenging the
approval procedure used by Parliament while vetting presidential appointees.

Currently, the appointments committee vets appointees and goes ahead to approve on behalf of
Parliament. In our view [as petitioners], we challenge that procedure on ground that a committee of
Parliament cannot usurp the power of parliament to approve appointees. Parliament is speaker and
members of parliament. It is not a committee, Ssemakadde said, adding that; it is absurd that this illegality
has not been undone since court is yet to determine the case in spite of the fact that it was filed more than
two years ago.

Eventually, Nyanzis legal team filed a constitutional petition but Ssemakadde, one of the lawyers on the
Nyanzis legal team, fears that Nyanzis petition is going to suffer the same fate.

If we had not secured the interim reliefs Stella [Nyanzi] would be going through the unconstitutional mental
examination because the court could not have determined the petition expeditiously as required by the
law, he said.

INTERIM MEASURES

Internally, the Constitutional court seems to have devised means of doing justice in spite of the fact that
there is backlog in the court.
 Justice Kenneth Kakuru

Currently, there is no specific rule in the Constitutional court that empowers it to grant interim reliefs.
However, the court derives that mandate by seeking refugee from Rule 23 of the Constitutional court rules,
which empowers the court to apply the Court of Appeal rules, with such modifications as the court may
consider necessary.

Walubiri told The Observer that this procedure adopted by the court is instrumental in seeing that timely
justice is achieved in the constitutional court.

Interim reliefs are necessary for purposes of achieving justice and also to avoid rendering the main case
a nugatory. So, they protect a status quo. Assuming you are losing your property and the case cannot be
heard in time because of backlog, which is a reality in the court, you cry out to the court and get an interim
injunction. This is what we do for our clients, he said.

In the instant case, Walubiri argues that the remedial measure resorted to by the Constitutional Court is
based on the fact that the court does not listen to cases expeditiously.

The law abhors a vacuum. You cannot suffer a wrong without a remedy, he said.

The application of this rule has brought some controversy as acknowledged recently by the Constitutional
court in the recent case of Murisho Shafi and others vs attorney general. The controversy was about the
number of justices to determine such application.
In the 2007case of James Isabirye v Attorney General, court held that: this rule if applied to constitutional
miscellaneous applications would entail modification in the interpretation to the effect that a full bench to
hear this application would constitute five justices and not three. In the premises, the panel for handling
interim orders would also consist of three justices and not a single judge.

Subsequently, the Constitutional court moved away in from this position in the case of George Owor vs
Attorney General moved away from its previous decision by holding that a single justice of the court had
the jurisdiction to hear such an application.

The court observed: We have now carefully considered our decisions in the Isabirye case and Olara
Otunu case in light of section 13 of the Judicature Act...Rule 53(1) and 2(b) appears to conflict with section
13(1) of the Judicature Act which gives a single justice power to exercise the powers of the Court in
interlocutory matters.

In George Owor case, the court stated, as its reasoning for the aforementioned holding, that justices of
the Court of Appeal are too few and too busy to bring together a panel of five justices to hear applications
for interim orders or interlocutory applications. Therefore a single justice of the Court should be able to do
so.

After a review of the authorities and the confusion caused by the two differing authorities, the court recently
in the case of Murisho held that while determining interim reliefs arising from constitutional petition the
Coram must be five justices of the court.

Court observed that; Jurisdiction is first and foremost not founded on convenience but on the law.
Secondly in practical terms a court with fourteen judges [full complement being fifteen] can constitute a
standing panel of five judges for a specific period to hear any urgent matters. This may be on a fortnightly,
monthly, or quarterly roster. After all constitutional matters are supposed to take precedence over any
other business before the Court.

Kakuru, who was a member of the panel in the Murisho case, told The Observer that court should stick to
the constitutional provisions and rules of the court.

Why dont we have these cases fixed? The constitution and rules are clear that constitutional matters
take precedence. And is required to have the petitions listened to throughout the weekend. This shows
you how important constitutional matters are, he said.
In his decision, Kakuru observes that although interim orders were well intended, they have grossly been
abused by both courts and litigants.

Court further observed that the interim reliefs are bad in a way that once the interim order has been
granted, the petitioner substantially obtains the relief sought in the petition and ceases to have any further
interest in its determination.

The court too loses interest in the matter and does not bother to fix it for hearing. This is illustrated by the
fact that a report of this court presented at the 19th Annual Judges conference held between 26th-30th
January, 2017 indicates that there are 309 Constitutional petitions and 241 Constitutional applications
pending hearing at this court. Many of these were filed more than five years ago.

Apparently, there are some practitioners who have faulted the court in its decision in the case of Murisho.
They argue that interim reliefs do not involve interpretation of the constitution and should be taken as
interim reliefs.

What they should do is devising means of fighting abuse. For instance, there are instances when they
can be granted yet denied others. What criterion is followed? Walubiri said citing an example when he
became a victim of the abuse.

In 2010, Walubiri handled the case of Joseph Bossa vs Attorney General and Electoral Commission,
where the petitioner sought for declarations that the act of the electoral commission of compiling and
updating a national voters register which was used for the 2011 presidential, parliamentary and local
government elections is more than the total adult population of Uganda when the register was compiled
in 2010.

Whereas in the said petition Walubiri sought for an interim injunction before the elections, it was not fixed
or heard until after the elections.

He said that if the application had been granted the opposition could have been the happiest people.

The interim orders could have served some justice because that case has never been heard to date. The
debate should be on streamlining how these interim reliefs are granted because there is some abuse,
Walubiri said.

GOING ABOUT THE ABUSE

In filing an application for interim reliefs, Nyanzis legal team had foresight of the abuse in the court and
indeed thought strategically in that direction.

Ssemakadde, one of Nyanzis lawyers, told The Observer that whereas they applied for interim reliefs in
the constitutional court by being aware of the politics and abuse in the court they still applied for stay of
proceedings under the MTA in the trial because it too is empowered to grant such applications.

For the latter case, it is always hard for the trial court to grant such applications but our client was lucky.
If it was not for this foresight our clients fate would have been that bad because it is almost four months
since we filed that application but court is yet to think of fixing it. Can you imagine, Ssemakadde said.

Although Ssemakadde filed for interim reliefs in the court, his view of them is to the contrary.

I think that any reasonable court or person is supposed to respect the constitutional petition. So, the
moment one proves existence of the petition, any person or authority whose authority is constitutionally
challenged based on that petition, they are supposed to suspend exercise of such authority pending the
determination of the petition, Ssemakadde said adding that jurisprudence to that effect is needed.

Apparently, this sort of jurisprudence operates well in circumstances where there is expeditious
determination of petitions.

skakaire@observer.ug

This article is a product of The Watchdog and was produced with support from the African Centre for
Media Excellence (ACME).