Courts and Churches: Decolonizing faith and fundamental freedoms in Uganda

On 22 December 2017, I received news which most of us dread – that my father, Ijuka Kabumba, had passed away.

Since then, the joy of the Christmas season is one I cannot quite feel until after 24th December – the date of his burial. From that time, the end of the year is not so much one of celebration, but of reflection and introspection.

Mortality is a powerful prism for understanding the meaning of life, and putting into context events that take place here on earth. Certain things that seem so important – money, qualifications, material possessions and so on – turn out to be not quite so significant after all, especially as compared to such things as meaningful faith, loving families, genuine friendships and similar things.

One also understands the need to find a balance between service to the community and humanity in general, on the one hand; and time to, care for, oneself, on the other. On this note, this will be my last column for 2024, as I take off the next four weeks to rest, relax and recharge.

In this final column of the year, I would like to share two stories which – while ostensibly unrelated – both speak to certain kinds of ‘faiths’ we hold onto, and which might require re-assessment.

The first is from 2017. It was the morning of my father’s burial, at about 4am on 24th December 2017. I heard my grief-stricken and almost hysterical paternal aunt ask my (now deceased) mother: ‘Ijuka akaatura’? The literal translation is: ‘Did Ijuka declare?’ – but in full context my aunt was enquiring into whether my father had, while alive, declared Jesus Christ to be his personal Lord and saviour.

When my mother responded in the affirmative, my aunt visibly calmed down and we were all able to catch some sleep until daybreak. Evidently, the question came from a place of love. However, if one thinks about it even briefly, it is certainly problematic.

It is to suggest that, if indeed there is a heaven, my father – one of the most moral human beings I have ever known (I know a son can be forgiven for such a generous view of their father, but I suspect this particular assessment would stand up to objective scrutiny) would not enter it simply for failure to utter one particular formulation of words in their lifetime.

Conversely, it would also suggest that if, for instance, Adolf Hitler – directly and indirectly responsible for the deaths of tens of millions of people in World War II – had simply uttered those words at the time of his death, he would have made it to that same heaven. I shudder to think of a post-death universe in which such a perverse state of affairs obtains.

And, I dare say, if this is the ‘heaven’ available, I am not sure that it is one which I would desire admittance into.

But to extend the thought even further – assuming that my father’s entrance to heaven were based on uttering those particular words, which would allow him to be reunited with his own father (who presumably is there on account of having been, by all accounts, a notable lay Christian preacher – responsible for bringing ‘light’ to that part of Kigezi in which my father was born) then what of my great grandfather?

As far as I am aware, he was a (rather committed) polygamist – and one who might not have quite ‘kwatura-d’ in his lifetime. It seems to me that, under the ‘kwatura’ formula – the envisaged heavenly family reunion might be a rather unsatisfactory one, in which only one person was reunited with their father (and this is without even going into the chain of other ancestors and assorted relatives in the family tree who might find themselves in different parts of this celestial landscape).

Does this not strike at the heart of the very concept of heaven – if its essence inevitably involves separation from one’s loved ones, with the possible added torment of the knowledge that they might, at worst, be resident in a place where the (non-derogable) right to freedom from torture, cruel, inhuman and degrading punishment (guaranteed under Article 24 of our Constitution) is violated on a daily basis?

It was evident to me then, as it is now, that there is something deeply unsatisfactory about the faiths whose introduction in this part of the world coincided with the colonial moment.

The second story took place sometime around April 2018. It was the first Easter after my father’s burial, and we were back in Nyakitabire village checking on his grave and ensuring that all was in order.

Towards the end of that visit, I received a call informing me that a certain neighbour of mine (I own a small piece of land somewhere in Luwero) was in the country (from the United Kingdom where he is ordinarily resident) and that he had summoned the Local Council (LC) Committee to help us resolve some kind of boundary dispute.

I committed to making myself available as soon as possible. About two days later, the meeting happened. Together with a land surveyor, the LC Committee started its enquiry. I had omitted to mention that my neighbour is a Muganda – one whose family has been on the land for generations – at least since the early 1800s.

Indeed, he bears the family name of an important politician in Kabaka Mwanga II’s Court. I might also mention that the entire LC Committee was composed of Baganda. It seemed
to me, at some point in the proceedings, that my neighbour attempted to subtly influence the Committee’s determination in his favour, including through gratuitous references to certain cultural norms.

He, for instance, brought it to the Committee’s attention thatI had cut certain trees on a portion of my land which was certainly not in dispute – I suppose to stress the pernicious impact that ‘unrestricted foreign immigration’ might have.

As an aside, I learnt from then on to be distinctly more conscious of the need to preserve certain trees, which might have not only environmental benefits but also bear cultural sensitivities. But, I digress. To their credit, the LC Committee were strictly guided by the findings of the surveyor, who determined that, in fact, the true boundary lay deep into my neighbours ‘territory’.

Not only was he wrong in attempting to challenge the placement of my fence, it transpired that his own fence had in fact been placed several feet into my own part of the land. But his ‘crimes’ did not stop there.

In so doing, he had also enclosed a portion of land which had traditionally been used as an access route, a fact which became evident in the course of the proceedings as we discovered
a well-trodden and unmistakable path which several persons present remembered using as children.

All in all, in the space of about two hours, this small team of about 7 officials had done justice – which was so manifest that my neighbour, his wife, and adult sons accepted the Committee’s determination without question. And there has been no further dispute or trouble since.

I developed a very deep and abiding respect for the LC system – and the potential for popular or ‘democratized’ judicial power. This is why I am sometimes not a little bemused when I hear Judges and Magistrates in Uganda refer to LC Courts disparagingly.

It seems to me that, if anything, our learned friends on the Ugandan benches might have a lot to learn from the ordinary folk who manage the LC system. The LCs do not have robes, wigs or high soundings titles.

They do not use English (let alone Latin), and do not receive significant budgetary allocations, imposing building, guards, drivers or other immunities, privileges and exaggerated facilitation. And yet they are not bedevilled by ‘backlog’ cases: their justice is swift, open, transparent, participatory – and with results which usually enjoy such a high degree of legitimacy as to attract consensual compliance.

Indeed, it seems to me that the Supreme Court, Court of Appeal and High Court (not to mention all Magistrates’ Courts) have a great deal to learn from Local Councils – and should perhaps seriously consider benchmarking these very serious systems for some guidance around the delivery of substantive justice (in the terms envisaged under Article 126 (2)) of the 1995 Constitution.

These two stories, from 2017 and 2018, invite a reflection around some of the ‘faiths’ we currently hold. Maybe it is time we looked beyond priestly and judicial robes, holy books and legal texts – and required both the Church and State (for avoidance of doubt, I use ‘Church’ here to denote all organized religious denominations) to continually demonstrate their utility, relevance, logic, legitimacy in light of our past, present and envisaged struggles, needs, difficulties, hopes and aspirations.

Our very freedoms may depend on precisely such an undertaking. If, for instance, these (relatively recent) faiths prompt the passage of laws destined to make the lives of peaceful and otherwise law-abiding citizens intolerable, is this a development we should not deeply question and pushback against?

On the other hand, assume a Judge were to issue an injunction prohibiting Christians from celebrating Christmas this December (or Eid al-Fitr in March 2025) – is this an edict that should be respected, or complied with?

If the gap between legality and legitimacy continues to widen – as it so evidently has at all levels of the Ugandan judicial system – does the call for ‘respect for the law’ and recourse to the normal processes of legality continue to hold?

I have no doubt that, in sha’ Allah, we shall continue to grapple – at conceptual and practical levels – with these and related questions in the coming year. I wish you a most restful and pleasant holiday season, and – life and health permitting – I look forward to continue have constitutionally conversing with you in late January 2025.

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.