THE OBSERVER

Delayed Justice, Part III: Understanding politics behind

constitutional decisions

September 20, 2017

Written by Sulaiman Kakaire

In this last of the three-part series on documenting the 22 years of the Constitutional court, SULAIMAN

KAKAIRE analyses the nature of reliefs the court has been granting and how politics has influenced the

court's work.

When the Constitutional court started its work in 1995, many litigants proclaimed it as a watershed moment

in Ugandas judiciary given that there were several pending cases that needed constitutional interpretation.

It was expected to settle these matters expeditiously.

Things seemed to go smoothly until the courts biggest test came in 1997. Gen David Sejusa, then known

as Maj Gen Tinyefuza, sought to retire from the army after being appointed a presidential adviser.

However, the state objected to this, claiming he did not take the right procedure as guided by then minister

for state Defence, John Patrick Amama Mbabazi.

Gen Sejusa challenged the rejection of his resignation and on April 25, 1997, the Constitutional court

unanimously agreed with Sejusa that since the president had appointed him as a senior presidential

advisor on defence and internal affairs, he had been removed from the army and, as such, his resignation

process was not a matter of military law as argued by the attorney general.
(L-R) Justice Minister Kahinda Otafiire talks to Attorney General William Byaruhanga and Chief

Justice Bart Katureebe

Incidentally, current Chief Justice Bart Katureebe was the attorney general at the time and he appealed

the matter in the Supreme court, which agreed with him that the appointment of Sejusa as a presidential

advisor did not amount to him leaving the army as it was a mere secondment to serve in the civil service.

Justice Kenneth Kakuru argues that the Constitutional courts decision was instrumental in the sense that

it underscored the values of constitutional interpretation.

There was a clear appreciation of the context of our Constitution of promoting individual freedoms and he

issue of interpreting the constitution in the liberal and purposive way with the aim of promoting of human

rights, he says.

Kakuru further notes that the decision explains the political context within which the court was born.
Our politics at the time was devoid of the culture of constitutionalism. So, it was thought that maybe the

Constitutional court can be the custodian of constitutionalism, he said.

Isaac Ssemakadde, a budding constitutional lawyer, told The Observer early this month that constitutional

courts across the world are political.

What must be examined is the political objective of the court in question. For instance, the constitutional

court of the US is composed and behaves based on the politics of the day. In South Africa, their court

embarked on the political journey to do away with racial discrimination that had plagued their country. You

see, the democratisation process is not for the legislation or executive only but the court must be part of

the process, he said.

As to whether Ugandas Constitutional court had an objective, Ladislaus Rwakafuuzi, a lawyer, told The

Observer this was the case from inception.

If you look at the way it went through its work at the beginning, it showed the court had a political objective

of promoting constitutional democracy. When you look at the Tinyefuza case, it shows courage and

establishing values to guide the court, he said.

However, he adds that the court got distracted from this objective because it was hijacked by the executive.

There was no political will on the part of the executive to let the court go about its work. This is why it took

President Museveni almost two years to substantively constitute the court. From 1995, there was almost

an ad hoc court, in essence, they adopted judges Patrick Tabaro and Stephen Egonda-Ntende to

tentatively compose the court. When they decided the Tinyefuza case contrary to what the executive

wanted, it was disbanded, he said.

In the wake of the Tinyefuza case, some lawyers who practiced before the court thereafter argue that the

tone of the court changed.

Justice Kakuru, one of the practitioners then, argues that the following year, most of the cases that sought

to challenge the constitutionality of offences of sedition and publication of false news got dismissed on

technical objections by the state.

This started with the minority dissenting opinion of Justice Seth Manyindo in the case of Salvatori Abuki,

where Manyindo held that some sections of the Witchcraft Act were not unconstitutional. Majority opinion

was that the provisions were unconstitutional.

After the Abuki case, subsequent cases filed in the Constitutional court were dismissed on technicalities.

Sixteen cases, some of them where I acted as the lawyer, where dismissed on funny grounds, Kakuru

said.

In hindsight, Kakuru said the abandonment of the liberal and purposive approach was due to the fear by

the court to be at a collision course with the executive.

The case of Tinyefuza had serious political implications and its reception by the executive could have

influenced the subsequent conduct of the court, he said.

Some of the technicalities upon which the court could refuse to grant reliefs sought include the 30-day

rule, political question doctrine, defects in pleadings and the jurisdiction on ground that the court is not an

enforcement court.

30-DAYS RULE

The 30-days rule was raised in the 1997 case of Uganda Journalists Safety Committee and Haruna Kanabi

vs Attorney General.

The petitioners sought for the nullification of some sections of the Penal Code Act, which provided for,

among other things, the offences of sedition and false news. Rule 4(1) of Legal Notice 4 required a petition
to be lodged within 30 days after the date of the breach complained of in the petition. The court dismissed

the case for not complying with the rule.

Subsequently, the 30-days rule was declared unconstitutional in the 2003 decision of Uganda Association

of Women Lawyers vs Attorney General. The court held that the aforesaid rule was inconsistent with the

Constitution to the extent that it imposes restrictions on the right of access to the Constitutional court.

For petitions that were rejected on grounds that the Constitutional court was not an enforcement court for

human rights, the Supreme court settled the 1998 matter of Ismail Serugo vs Kampala City Council and

Attorney General, by ruling that the Constitutional court had jurisdiction to enforce human rights where

interpretation of the Constitution is required.

Similarly, the court has clarified that the 1995 Constitution empowers any citizen to file a petition to enforce

constitutional provisions, regardless of the fact that they are directly or indirectly affected by the act

complained of.

POLITICAL QUESTION DOCTRINE (PQD)

Whereas practitioners before the court litigated against the technical objections, there remained one im-

pediment; the political question.

In 2000, when Dr Paul Kawanga Ssemogerere and Zachary Olum challenged the constitutionality of the

Referendum and Other Provisions Act 1999 as well as having been passed by parliament without due

regard to the requirements of quorum and procedures laid down by the Constitution, the Constitutional

court shied away from determining the case on grounds that it had no jurisdiction to inquire into political

questions.

Observers say this was exposition of the fact that the court was scared of inquiring into political questions,

fearing to rub the executive the wrong way.

However, when the petitioners went to the Supreme court in 2002, it trashed the Constitutional court for

abdicating its duty.

The Constitutional court is under a duty to make a declaration, one way or the other. In denying that they

had no jurisdiction to make a declaration on this petition, the learned majority justices of the Constitutional

court abdicated the function of that court, read the lead judgment by Prof George Wilson Kanyeihamba.

Even then, Prof Joe Oloka-Onyango, a constitutional law lecturer at Makerere University, observes that;

despite the impressive and fairly progressive jurisprudence that has developed over the past two

decades...the PQD lives on... the PQD was successfully upheld by the Constitutional court in the case of

CEHURD vs the Attorney General, Oloka observed during his professorial inaugural lecture in 2015.

In the CEHURD case, Oloka said the court declined to find the government in violation of its obligations in

a case concerned with maternal health care.

Indeed, the matter never even reached a hearing on the merits because the court agreed with the attorney

generals preliminary objection that the case called upon the court to make a determination of a political

question, he said.

CEHURD successfully appealed against the decision and the Supreme court reiterated its view that the

Constitutional court had the jurisdiction to determine the case.

POLITICAL CLOUDING

Although the court has had to internally deal with its own politics, the executives politics has also clouded

the courts work in various ways.

In 2005, during the process of amending the Constitution, the executive came up with the government

white paper containing comments and proposals on the report of the Constitutional Review Commission

and government proposals on constitutional issues not addressed in the Report of the Commission.
So, in an attempt to deal with the Constitutional courts decisions, wherein the court was declaring

provisions of old statutes as null and void, the executive proposed, Excluding from the Constitutional court

the power to nullify an expired statute.

Well, the executive-proposed amendment did not succeed, but even then, the executive has refused to

support in the enforcement of the Constitutional court decisions.

In an article entitled Human Rights and Public Interest Litigation In East Africa: A Birds Eye View, Prof

Oloka-Onyango argues that although the voice of the judiciary has been growing in confidence, some of

its decisions do not have a marked impact, either because the state defied them and reintroduced

legislation to thwart the decision... or because the courts themselves were not very clear in terms of the

remedies they stipulated.

For instance, the executive and parliament have not amended provisions of the Penal Code Act, Divorce

Act and the Succession Act that have been declared unconstitutional to see that the pre-1995 laws are in

harmony with the constitution.

SELECTING OF PANELS

It also appears that the executive also controls the Constitutional court through the deputy chief justice

(DCJ). Since the Tinyefuza case, the DCJs who have acted in the court have always decided in line with

the executive side. In cases that are politically sensitive, the DCJ selects a panel that manifestly shows

that progressive minds are the minority.

For instance, when the NRM sought for the eviction of the then NRM rebel MPs from parliament, the panel

included; Justices Steven Kavuma, Augustine Nshimye, Faith Mwondha and Richard Buteera, whom the

MPs thought were pro-NRM. Remmy Kasule was the only member of the panel considered to be

progressive.
Justice Remmy Kasule had the only dissenting judgment in the rebel MPs case

The MPs; Theodore Ssekikubo, Wilfred Niwagaba, Barnabas Tinkasiimire and Muhammad Nsereko,

sought for the reconstitution of the panel but this was to no avail.

Indeed, the justices decided in favour of the NRM although their judgment was eventually reversed by the

Supreme court, which agreed with the dissenting opinion of Justice Kasule.

STRATEGIC RETHINKING
Weighing in on the journey of the court, most stakeholders The Observer interviewed for this special report

said there is need for strategic rethinking to inform the new direction of the court if it is to live up to its

dream of being the custodian of constitutionalism.

On delayed justice and backlog, Justice Kakuru proposes that the court can also adopt the practice of

having standard judgements of three to four pages since most of the principles are settled, except in

instances where lengthy judgments are needed.

It is the only way we can clear backlog in the court and also determine most of these cases expeditiously.

After all, most of the principles, upon which these cases are decided, are settled, he said.

Senior lawyer Peter Walubiri agrees with Kakuru and adds: alternatively, the courts rules should think of

making brief or summary judgments and give reasons later like it is the case with presidential election

petitions.

Other proposals include guaranteeing security of tenure for justices of the court.

On backlog, the judiciarys committee that investigated backlog in the court, recommended that the chief

justice should demand that: all judicial officers with cases whose judgement has been pending since

December 2015 should submit all their judgements to his office by April 30, 2017 beyond which they

should provide an explanation; failure do so should attract disciplinary action.

Secondly, all judicial officers with judgement pending beyond the standard should not be allowed to take

on new cases until they have cleared all judgements pending.

When contacted last week, Chief Justice Katureebe said they have implemented the recommendations

but he is yet to receive findings from the follow-up.

I have tasked the committee to do the follow-up for me and next month they will be giving their findings,

he said.
JUDICIARY SPEAKS OUT

Whereas Katureebe acknowledges the backlog plaguing the court, he could not state what interventions

are being made to fight it.

I cannot micro-manage. I cannot go there and fix the cases. The deputy chief justice is there; I have been

engaging him on that issue and I cannot share with you the contents of the correspondences but just know

that my office is concerned as well about the issue of backlog, he said.

When contacted, Justice Kavuma directed us to send him an email raising our questions and clarifications

sought in regard to this special report. He has not yet replied to the said email.

Nevertheless, Katureebe told us that as the judiciary, they are engaged in a process to amend the rules

that govern courts.

We have an ongoing exercise to review the rules. Retired Justice Wilson Tsekooko is the lead consultant

on this project. All those suggestions proposed by the stakeholders are going to be considered so that

amendments are effected so as to make the court efficient, Katureebe.

skakaire@obsserver.ug

This article is a product of The Watchdog and was produced with support from the African Centre for

Media Excellence (ACME).