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‘Obuntu Bulamu’and the ICJ: A final note on Judge Sebutinde

Justice Julie Sebutinde

Justice Julie Sebutinde

Since I started writing this column, about seven months ago, the piece that has attracted the most negative feedback is last week’s, which reflected on the role that religion – in particular the Pentecostal movement – in Uganda might have played in informing the more extreme positions arrived at by Judge Sebutinde in South Africa v Israel.

Even some of my otherwise most moderate, thoughtful and informed colleagues – peers and seniors – on this occasion felt compelled to reach out in censorial terms. It was okay to criticize the Judge’s Dissenting Opinion, as I had on 31st January, they said. However, in their view, it was improper to suggest a religious basis for it, as I did on 7th February.

This was especially since, they argued, Judge Sebutinde nowhere in her decision expressly invoked a religious ground nor referenced a biblical verse. I respect these views, although I obviously disagree with them. I was hoping that last week’s column would be my last comment on the subject of Judge Sebutinde’s Opinion.

However, just a few hours after submitting it to the editors on Tuesday 6th February, news came filtering in from The Hague that Judge Sebutinde had been elected Vice President of the ICJ. Even a few minutes into the news cycle, a most predictable interpretation had started to be given to what would otherwise have been an important, but uncontroversial, development.

The spirit of this interpretation was perhaps best captured in the remarks of one of Uganda’s most distinguished, respected – and respect worthy – public figures, Hon. Miria Matembe.

In a video clip circulated on social media, recorded from what appeared to be a testimony or sermon delivered at All Saints’ Cathedral, Hon. Matembe observed: ‘I couldn’t keep quiet on this ... I tell you there is nothing that excited me like God who can act so quickly and stand with those who stand with him. Do you know why I am saying this? I tell you ... You know this case against Israel, registered by South Africa and you know how our Born-Again Justice Julia Sebutinde stood up...stood up for what is right...[...]...So, when the judgment came, I said “Yeah, she is right”, even before I read the judgment. Because I know since she knows the Lord, she knows what the Lord wants.

I said “Yes she’s right” ... And people wrote and they disowned her and all that kind of thing and me I was saying “God, uphold her”. And can you imagine, that now ... she has been disowned by us, but owned by God [her] creator. Can you imagine? Few days ... the Lord says “I am the Lord, and you cannot question me, and let me show you”.

He elevates her and she is elected by the very people that she disagreed with ... They elected her to become the Vice [President] of the International Court ... You people ... You people ... Surely, if anybody cannot believe that God lives and he acts quickly, and for those who stand for him ... I can assure you this is clear evidence for you Ugandans that God is working ... [...] ... Praise the Lord. Let us pray. Let us take this one as a clear testimony that our God lives. That our God is faithful. That whoever stands with him ... even if you are alone ...’

Evidently, she was speaking for many. And it is precisely this posture, and the danger it poses for the exercise of public power, that last week’s column attempted address. I am compelled to write this final note, only because failing to do so might allow interpretations of Judge Sebutinde’s election, in the mould of that proposed by Hon. Matembe, to stand unchallenged.

It is important, I think, to place Judge Sebutinde’s election in its more mundane and, I suspect, real world context. In the first place, the elections for the President and Vice President of the ICJ were always going to be held on 6th February 2024.

This is rooted in the history of the Court, whose first Judges were elected on 6th February 1946. At the first meeting of the Court on 3rd April 1946, the Judges elected José Gustavo Guerrero (from El Salvador) as President and Jules Basdevant (from France) as Vice President.

Judge Guerrero was eventually succeeded as President by Judge Basdevant on 6th February 1949, beginning a sequence of elections for President and Vice President on that date, consistent with Article 21 of the Statute of the ICJ, and with the rules of the Court (as established in 1946 and as subsequently revised in 1972, 1978 and 2019). As such, the elections of 6 February 2024 can be understood as only a function of a long- standing ICJ institutional calendar, rather than as a divine arrangement.

Secondly, while the elections are by secret ballot, inevitably the Judges take into account a variety of factors in choosing the holders of the offices of President and Vice President. In this context, it may be recalled that while, in terms of Article 2 of the ICJ Statute, judges are elected ‘regardless of their nationality’, the importance of diversity and inclusion both on the Court and in its leadership remains a critical concern.

To start with, under Article 3 (1) of the ICJ Statute, no two judges of the Court may be nationals of the same State. In addition, under Article 31 (2) of the same Statute, if the Court includes a judge of the nationality of one of the parties appearing before it, any other party may choose a person to sit as a judge in respect of that particular matter.

Further, under Article 9 of the Statute, it is provided that in electing Judges of the ICJ, the electors must bear in mind, among other things, ‘that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured’.

This concern – of representation and legitimacy – would become especially pronounced following the Court’s disastrous decision in the South West Africa Cases (Ethiopia and Liberia v South Africa), of 1966, in which the ICJ held that that the applicants lacked legal standing to challenge South Africa’s apartheid policies in present-day Namibia.

Since that time, the Court became quite sensitive to legitimacy concerns arising not only from the substance of its decisions but also, arguably, the composition of its own leadership. An example of this was the step taken to atone for the tragedy of 1966 through the issuance of the progressive 1971 Advisory Opinion in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 of 1970 (‘the South West Africa Advisory Opinion’).

Eight years later, in 1979, the ICJ elected the leading Nigerian Jurist, Taslim Olawale Elias, as the first African Vice President of the Court. Judge Elias would serve as the first African President of the ICJ, when he acted in that role from 1981 (upon the death of President Humphrey Waldock) to 1982. In 1982 he was elected as President in his own right, serving in that capacity until 1985.

Since that time, a number of Africans have been elected either to the Presidency or Vice Presidency, including Judge Kéba Mbaye of Senegal (Vice President from 1988 to 1991); Judge Mohammed Bedjaoui of Algeria (President from 1994 to 1997); Judge Abdulqawi Ahmed Yusuf of Somalia (Vice President from 2015 to 2018, and President from 2018 to 2021). Unfortunately, the Court took much longer to reflect gender diversity – both on the bench and in its leadership.

The first female Judge to be elected to the Court was Judge Rosalyn Higgins of the United Kingdom, who took her seat in 1995. She would also be the first female President of the ICJ, serving from 2006 to 2009. Since then, only one other woman has served as President of the Court – Judge Joan Donoghue of the United States, who served from 6th February 2021 to 5th February 2024.

In this regard, Judge Sebutinde’s election to the ICJ in 2011, and her assumption of her seat on 6th February 2012, was important not just in terms of her own merits as a legal scholar, but also in so far as it made the Court more reflective of the diversity of the international legal community.

As such, in electing Judge Sebutinde – the first African woman to serve on the ICJ – as Vice President, on 6th February 2024, it is not inconceivable that the Judges of the Court were alive to the need to continue in the tradition of ensuring that, as much as possible, the leadership of the Court reflect the diversity of the legal community whose ends it serves.

Put differently, far from the suggestion that her election was the result of divine intervention, the much simpler (although, I admit, far more boring and less dramatic) explanation might be found in the Judges’ important and legitimate concern for inclusion and representation in the Court’s leadership.

Seen in this context, Judge Sebutinde might be deemed to have been elected not because of her Dissenting Opinion in South Africa v Israel (as the Uganda Pentecostal community seems to be determined to believe), but in spite of that Opinion. It is on this note that we would wish to end our discussion of the now famous Dissenting Opinion.

In our view, Judge Sebutinde’s election as Vice President of the ICJ should not serve as a moment of triumph, but one for reflection and introspection. In stepping into that role, she stands on the shoulders of giants – Taslim Elias, Kéba Mbaye, Mohammed Bedjaoui, Abdulqawi Ahmed Yusuf, Rosalyn Higgins and Joan Donoghue.

Elias, for instance, published the famous 1972 text ‘Africa and the development of international law’ in which he sought to situate Africa as a genuine and equal author of the international law project (a laudable project although not without its own pitfalls, as scholars like James Thuo Gathii have noted).

For his part Mbaye is famous for his persistent articulation of the notion of the ‘right to development’, while Bedjaoui championed, among other things, the ‘New International Economic Order’ (NIEO). Yusuf has also been a champion for Africa in the international legal order, writing the 2014 book ‘Pan Africanism and International Law’ and co-founding the African Foundation for International Law.

Higgins has also had a long-standing interest in the position of the ICJ relative to Africa, exemplified by, among other things, her 1966 article ‘The International Court and South West Africa: The implications of the Judgment’ and the chapter ‘The International Court of Justice and Africa’ in her 2009 book ‘Themes and Theories: Selected Essays, Speeches and Writings in International Law’.

Judge Sebutinde is uniquely placed, as Vice President of the ICJ to continue the important task of making international law work for all, including the more marginalized and excluded parts of the international community. In this regard, and this is partly where the limits of the approach adopted by Taslim Elias’ 1972 book are apparent, it is worth noting that modern international law has problematic historical roots.

As Anthony Anghie noted in his seminal 2005 text ‘Imperialism, sovereignty and the making of international law’, international law was historically designed, formulated – and routinely modified – in the service of colonial conquest and domination. In more recent times, the racist roots of international law remain evident – for all to see – in such provisions as Article 38 (1) (c) of the Statute of the ICJ which provides, among other sources of international law, for those ‘general principles of law recognized by civilized nations’.

There are, of course, no prizes for guessing which nations were seen as ‘civilized’, and thus ‘true’ members of the international community, and those which were considered to be ‘barbarians’ and ‘savages’: sub-human communities to be seen not heard, to be used and abused rather than respected and included.

One of Judge Sebutinde’s roles, therefore – whether she acknowledges it or not – must be to lend her important voice in the service of humanity as a whole, including communities and nations traditionally excluded from international society: those formerly (and in some ways still) seen by some as being savages and barbarians.

One of the ways she can do this is by firmly rooting her judicial opinions in a solid appreciation of the dignity inherent in every human being, and consciously advancing a jurisprudence which reflects, surfaces and entrenches this human dignity.

To provide but one example, if she had adopted such an approach in South Africa v Israel, she might have (like the Israeli Judge Aharon Barak), even if minded to find for Israel, certainly have been able (as he did) to draw upon humanitarian considerations, and stand (as he did) with the majority of the Court in relation to a minimum core of provisional measures, that is to say, provision of humanitarian assistance, and the prevention and punishment of incitement to commit genocide.

Incidentally, the ICJ has on at least one previous occasion – the 1949 Corfu Channel Case (United Kingdom v Albania) – recognized ‘elementary considerations of humanity’ as a ‘general and well-recognized principle’.

Judge Sebutinde might have seized the opportunity, even in her Dissenting Opinion in South Africa v Israel, to not only ground her reasoning in this general principle of law – to find a minimum core duty of basic humanitarian assistance and prevention of incitement to genocide – but also to inform the world of the shared provenance of such humanitarian considerations within the values of African peoples (whether termed ‘Ubuntu’ in Southern Africa, or ‘obuntu bulamu’ in Luganda, and in doubtless many other African languages).

In the shoes of Judge Sebutinde, I would consider my election as Vice President of the ICJ as an opportunity to do better. Not as a moment of triumph – certainly not as divine recompense for an Opinion which failed to take into account even ‘elementary considerations of humanity’ (‘obuntu bulamu’) – but rather as an opportunity for introspection and re-dedication to the cause of using high judicial office to achieve humane justice.

To refer to the motto of our shared alma mater, King’s College Budo: Gakyali Mabaga – so little done, so much more to do. And here we must leave our discussion of Judge Sebutinde’s Dissenting Opinion of 26th January 2024.

In the column next week, we turn to more national issues – specifically, an emerging concern within Ugandan legal circles: the question of judicial independence; the role of the Uganda Law Society (ULS) and, critically, the relevance of the legal profession in the context of Uganda’s contemporary governance crisis.

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

Comments

0 #1 Henry Mugisa 2024-02-14 10:54
DR Kabumba, I wouldn't have any problem with one being influenced by their spiritual beliefs or affiliations in making judgments.

In the bible King Solomon in 1 Kings 3:9 asks God for wisdom and if you the scripture further he used the wisdom to make a sound judgment.

in this case basing on her judgement the Lady Justice made a very sound judgment regarding the approach towards resolving this conflict.
Reference
https://youtu.be/WE4tB0SePGQ?si=52igrJmg580_v3OX
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+2 #2 PaulM 2024-02-15 09:02
Quoting Henry Mugisa:
DR Kabumba, I wouldn't have any problem with one being influenced by their spiritual beliefs or affiliations in making judgments.

In the bible King Solomon in 1 Kings 3:9 asks God for wisdom and if you the scripture further he used the wisdom to make a sound judgment.

in this case basing on her judgement the Lady Justice made a very sound judgment regarding the approach towards resolving this conflict.
Reference
https://youtu.be/WE4tB0SePGQ?si=52igrJmg580_v3OX


Remember most Palestinians are Muslims so its certainly not ethical or professional to do as you suggest.

Imagine a moslem judge convicting you for eating pork or drinking alcohol
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0 #3 Akot 2024-02-18 17:26
PaulM, thanks.

[most Palestinians are Muslims], this is why all muslim/arab countries are with them to ensure Israel is erased!

FREE food, medicins for Palestinians go first to Hamas to ensure they are in good health to fight Israel!

Not even USA/UK/EU understand they too, are in quagmire as their lands are being filled with migrants mainly muslims & will take possession their lands, as Sudanese Idi Amin did with Uganda!

Rwandese Museveni ensured Ugandans are powerless tribally divided ruled & used muslims, who have made stand in Uganda!

Ugandans MUST WAKE UP or they are doomed for good, especially if it's muslims ovethrowing Rwandese Museveni!

Putin has assured opposition leaders are in exile or dead, even the one in tight Russian prison!

But Museveni has no tribal land in Uganda & NO to the tribalistic system & UNITY are all Ugandans need & not fight one!
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-1 #4 Lakwena 2024-02-19 10:09
Quoting PaulM:
Quoting Henry Mugisa:
DR Kabumba, I wouldn't have any problem with one being influenced by their spiritual beliefs or affiliations in making judgments.

In the bible King Solomon in 1 Kings 3:9 asks God for wisdom and if you the scripture further he used the wisdom to make a sound judgment.

in this case basing on her judgement the Lady Justice made a very sound judgment regarding the approach towards resolving this conflict.
Reference
https://youtu.be/WE4tB0SePGQ?si=52igrJmg580_v3OX


Remember most Palestinians are Muslims so its certainly not ethical or professional to do as you suggest.

Imagine a moslem judge convicting you for eating pork or drinking alcohol

'
But PaulM, except among "Extremist Fundamentalist" Muslims such as the Salafi, in dire-straight/need and to save life, in his wisdom Mohamed (PBUH) allowed the eating of pork, if and when it is the only food available.
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-1 #5 Ebmok 2024-02-19 11:48
Genocide is the intentional destruction of a people in whole or in part. It is as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".

So, the trigger to the national acts of defense i.e. on 7th October 2023 by that radical group is clear genocide; premeditated as clearly portrayed by their rhetoric and all the material, education system and infrastructure they have set up for decades.

This group's ideology in which they openly celebrated their "success" is very dangerous to humanity and doesn't show remorse other than deserving of a clearing of the perpetrators. TALK ABOUT THE "ENTARAHAMWE"!? (sic)

The military response of the aggrieved doesn't in any way suggested a genocide. NB: If you reside in a glass house and commit a heinous act against mightier than thee, you may suffered huge damage even if you use human shields to draw sympathy.
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