Constitutionally Speaking…Free Eron Kiiza!

About two weeks ago, I received a death threat.

It was all the more interesting because the messenger made no attempt to hide his face, and delivered it in the most incongruous of places – a grocery store.

And so it was that on a rather pleasant Saturday afternoon, in broad daylight, a soldier quite plainly communicated that any ‘constitutional speech’ was tolerable, except where it concerned certain individuals and certain things. I could not help but notice that he was very ill at ease.

Indeed, at some point in the ten minute or so conversation, he made it clear that were he to be forced to carry out his threat, it would be a most unpleasant task for him. I believed him. We often think of evil in terms of caricature. The devil, for instance, is often ascribed the most grotesque features in religious and other texts.

In fact, evil often takes the most mundane forms. As the German-American philosopher and historian Hannah Arendt noted in her 1963 book titled Eichmann in Jerusalem: A Report on the Banality of Evil: ‘Eichmann was not Iago and not Macbeth, and nothing would have been farther from his mind than to determine with Richard III “to prove a villain.”

Except for an extraordinary diligence in looking out for his personal advancement, he had no motives at all… He merely, to put the matter colloquially, never realized what he was doing… It was sheer thoughtlessness—something by no means identical with stupidity—that predisposed him to become one of the greatest criminals of that period.

And if this is “banal” and even funny, if with the best will in the world one cannot extract any diabolical or demonic profundity from Eichmann, this is still far from calling it commonplace… That such remoteness from reality and such thoughtlessness can wreak more havoc than all the evil instincts taken together which, perhaps, are inherent in man—that was, in fact, the lesson one could learn in Jerusalem.’

The point Arendt makes is that evil is often not the single act of a depraved individual. It is actually effected by the everyday actions – and inaction – of everyday people, many of whom can lay claim to ‘only doing their job’. It is no different in Uganda. The case of Eron Kiiza brings into particularly sharp relief the precarious place in which the last semblances of law and legality find themselves in today’s Uganda.

Eron is in prison today because he vociferously protested the violation of law and constitutional principle in the face of the most potent threat to civil liberties and human rights in Uganda – the army. A significant part of his dispute with the tribunal he interfaced with – the General Court Martial of the Uganda Peoples’ Defence Forces – stemmed from his refusal to refer to them as a ‘court’, in spite of their insistence in this regard.

Of course, the larger dispute related to his contestation against the power of that tribunal to try his clients – Rtd. Col. Dr Kizza Besigye and Hajji Obeid Lutale Kamulegeya. In the course of those proceedings, on 7th January 2025, the Court Martial summarily convicted him – without even the semblance of a trial or even the most cursory enquiry – and sentenced him to nine months’ imprisonment for ‘contempt of court’.

A few days later, on 31st January 2025, Eron would be vindicated by the Supreme Court of Uganda when in Attorney General v Hon Michael Kabaziguruka (Constitutional Appeal No.2 of 2021) it found that the General Court Martial had no power to try civilians (which it defined to include retired soldiers).

Indeed, Justice Elizabeth Musoke went even further, expressing the view that the General Court Martial was not a subordinate court as envisaged under Article 129 (1) (d) of the Constitution but only a disciplinary body for the UPDF in terms of Article 210 (a) and (b) of the same document (at page 18 of her decision).

Let us be clear, if the Constitution meant anything in Uganda, the General Court Martial would never have purported to convict – let alone sentence – Eron in the first place. This was done in a manner which offended all known principles of Eron’s right to a fair trial as recognized under Article 28 of the 1995 Constitution – and by extension the core of his right to liberty (guaranteed under Article 23).

In addition, and just as critically, such treatment of an Advocate of the High Court – in the course of his representation of persons charged with serious criminal offences – inevitably deprived his clients of access to his services, and compromised their own right to a fair trial (for an analogous authority in this regard, see the 1969 case of Muyimba and Others v Uganda).

It must also be said that, if the Constitution still had any real meaning in Uganda today, Eron – and all other similarly situated persons across
the country (from Dr. Besigye and Kamulegeya to the National Unity Platform detainees and countless other Ugandans languishing in Kitalya and other prisons) – would have been back home with his family a few days following the 31st January Supreme Court decision in Kabaziguruka.

That Eron and these several other Ugandans continue to remain in detention is an indictment of the entire so-called ‘Justice, Law and Order Sector (JLOS)’ in Uganda – and yet another manifestation of the veritable crisis in the Ugandan Judiciary that we have long bemoaned.

If the Constitution is really what it says it is (the Supreme Law under Article 2); and if the Supreme Court is what it purports to be – the supreme expositor of the law in Uganda – how can it then be the case that Eron Kiiza and all other similarly placed Ugandan citizens continue to suffer such manifestly and flagrantly illegal detention?

There might be a ‘Sector’ – but there is certainly very little Justice, Law – or even Order – to be found within it. In truth, there is not a single soldier, police officer, prisons official, government lawyer or even judicial officer who honestly, or seriously, thinks that Eron’s imprisonment is legally justified – or justifiable.

However, each of the persons involved in handling his case is consciously – or unconsciously – proving Arendt’s thesis. Each one of them, every day, makes individual choices which cumulatively enable and facilitate the diminution of not only Eron’s but our collective human rights and human dignity. It demonstrates the banality – the bureaucratization (and even judicialization) – of evil.

Evil is not one bad person doing one terrible thing – it is many otherwise decent Ugandan professionals failing to do the right thing, the principled thing. It is the officers who carried out the order to arrest an Advocate doing his lawful duty. It is the prison warders who effected (and continue to effect) the order to keep that Advocate in jail.

It is the Senior State Attorney who argued that the Advocate in fact received a very light sentence, and that he could in fact have been sentenced to up to five years’ imprisonment under the law.

It is the High Court which declined to give full effect to the age-old and most powerful writ of Habeas Corpus (one explicitly recognized and protected under Articles 23 (9) and 44 (d) of the Constitution) to realize Eron’s freedom from manifestly illegal and unconstitutional detention.

If the High Court, clothed with unlimited original jurisdiction under Article 139 of the Constitution and inherent power under statute, prevaricates – in a matter regarding the personal liberty of a person who is both a citizen of Uganda and an officer of the Court – is the Constitution not well and truly dead and buried?

That document, it shall be recalled, requires that justice not be delayed (Article 126 (2) (b)) and that substantive justice be administered without undue regard to technicalities (Article 126 (2)(e)). The High Court continues to have the ability to do the right thing – and I sincerely hope it does right by Eron, and by the Constitution.

The young man who threatened my life about two weeks ago appeared to be decent – even likable. I am sure that he was ‘only doing his job’. It is also quite possible that he has a family to care for, and other demands in life to meet. He probably has a nickname, which close friends and loved ones call him by – and no doubt generously contributes to weddings and funerals (and other occasions requiring communal solidarity) like any other dutiful member of society.

Indeed, those various Ugandans similarly involved with various aspects of Eron Kiiza’s case are doubtless human beings – Ugandans like the rest of us, with similar experiences of the struggles, stresses and strains of life in this republic. I suppose, that being – none of us – wholly good or bad, we retain within ourselves the capacity to make daily choices which have more beneficial rather than deleterious short, medium and long-term outcomes.

I hope that each one of our fellow citizens handling my brother Eron Kiiza’s case finds it within themselves to do the right thing by him – and by his constitutional rights. And that the same is done for Dr. Besigye, Hajji Kamulegeya, the NUP detainees and the thousands of other Ugandans suffering similar unjust deprivation of liberty.

To do otherwise is to fail to be, within oneself, fully humane – and human. It is to fail to be fully alive. Essentially, it is to be dead. Is it not, then, futile for dead men and women to threaten others with death? Is it not, similarly, futile for those who are themselves kept hostage by an Octogenarian leader and his putative Crown Prince, to imprison a fellow citizen like Eron Kiiza? In freeing Kiiza – and all other persons similarly situated – you are freeing yourselves.

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.