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The jurisprudence of Justice Fredrick Martin Stephen Egonda-Ntende

Justice Fredrick Egonda-Ntende

Justice Fredrick Egonda-Ntende

On Saturday, 15 June 2024, all (legal) roads led to the small village of Makoka, in Kamuli district, Eastern Uganda.

The occasion was a thanksgiving service, held by Justice Fredrick Egonda-Ntende, for the gift of life and the award of the Honorary Doctor of Laws (LLD) of Makerere University.

The LLD, awarded at the 74th graduation ceremony of Makerere University, held on 29th January 2024, was a most timely one – which celebrated a life of committed and dedicated service to good governance and the rule of law in Uganda and around the world. The official citation for the award recounted a number of significant milestones achieved in a distinguished 40-year career, in the areas of legal practice, academia and national and international adjudication.

It mentioned his service as Vice President of the Uganda Law Society, Judge of the High Court of Uganda (1991-2000), Chairperson of the Judicial Training Committee of Uganda (1996-1997), Justice of the Court of Appeal of Uganda (2000 – present), Judge of the Court of Appeal of East Timor (2000-2001), International Judge attached to the United Nations Mission in Kosovo (2002-2004), Acting Justice of the Supreme Court of Uganda (May 2008-January 2009), and Chief Justice of the Seychelles (2009-2014).

Today, I wish to focus on that part of the LLD citation which concerned his contribution to the jurisprudence of Uganda. It particularly highlighted six decisions as examples of his unique approach to the judicial role – one which has cemented a legacy that will be celebrated for many years to come: i) Osotraco Limited v Attorney General (High Court Civil Suit No.1380 of 1986); ii) Fredrick Kato v Ann Njoki (High Court Divorce Cause No.10 of 2007); iii) In Re Nicholas Mwanje and Brenda Nakidde (High Court Family Cause No.78 2009); iv) Major General David Tinyefuza v Attorney General (Constitutional Petition No.1 of 1996); v) Salvatori Abuki and Another v Attorney General (Constitutional Case No.2 of 1997); and vi) Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No.3 of 2006).

While all law students, lawyers and judicial officers are aware of these decisions – it is of critical importance that the general public appreciate what was done in these cases, as a blue print for what still needs to be done, and should be done, in the inevitable future work of rebuilding the decrepit structure that currently pretends to be Uganda’s constitutional order.

We can perhaps begin at no better point than with the decision in Osotraco Limited v Attorney General, rendered on 20th March 2002. The issue was whether the plaintiff who had been successful was entitled to an order for eviction as against the respondent.

The challenge was that there existed a law – Section 15 (1)(b) of the Government Proceedings Act – which among other things, prohibited courts from issuing orders for the recovery of land or property as against government. Faced with the clear terms of such a statutory provision, many Ugandan Judges would have simply said:

‘I am sorry, my hands are tied’. However, Judge Egonda-Ntende (as he then was) took note of the fact that this provision was not in conformity with the 1995 Constitution of Uganda.

He noted that the Act had become part of the law of Uganda in 1957, during the colonial period, and reflected the position in the United Kingdom as at that time. Under the UK system, judicial power was exercised in the name of the reigning monarch, so that it would be anomalous for a judge to issue an order against the Crown.

The position was different under the 1995 Constitution, Article 126 (1) of which clearly stipulated that judicial power was derived from the people of Uganda and had to be exercised in their names. Judge Egonda-Ntende also felt that to uphold the terms of Section 15 (1)(b) of the Act would be inconsistent with Article 126 (2) of the Constitution, which required that justice be done to all regardless of their social or economic status (Article 126(2)(a)) and that substantive justice be administered without undue regard to technicalities (Article 126 (2)(e)).

A successful litigant had an enforceable right to property under Article 26, and to deny them an eviction order would be inconsistent both with this right and to the right to an effective remedy and substantive justice under Article 126.

This was a highly sophisticated line of thought. It was also a masterful approach to constitutional application and enforcement. At the same time, Judge Egonda-Ntende was conscious that he might be accused of usurping the powers of the Constitutional Court, which under Article 137 has the exclusive mandate of constitutional interpretation.

As such he made a point of expressly pointing to the terms of Article 273 (1) of the Constitution, which is to the effect that courts have to construe any existing law ‘with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with [the] Constitution’.

He determined that he was merely construing the Government Proceedings Act with such modifications as required to make it consistent with the Constitution (as per Article 273 (1)) and was not, strictly speaking, interpreting the Constitution (under Article 137).

Incidentally, this decision was appealed to the Court of Appeal, which on 30th June 2005 unanimously upheld the reasoning and orders issued in the High Court. If there had been any doubts as to the analytical rigour and legal grounding of Judge Egonda- Ntende’s decision, this certainly dispelled them.

What is particularly striking about the Osotraco decision is that it was a deeply authoritative elaboration of the meaning and purpose of the 1995 Constitution – yet one rendered by a High Court Judge, in respect of an ordinary civil matter.

Unfortunately, and this must be said – this 2002 High Court decision stands in stark contrast to a number of recent decisions from the Constitutional Court of Uganda – including that in Fox Odoi v Attorney General (rendered in April 2024), in which that esteemed tribunal appeared to be unaware of its own previous precedents; appeared to refer to statutory provisions (including some annulled by the Constitutional Court itself ) as a means of obfuscating constitutionally safeguarded rights and values; and asserted notions (such as a ‘presumption of constitutionality’ with respect to Acts of Parliament) that were so deferential to legislative power as to almost amount to an abdication of the function of constitutional adjudication.

The decision in Osotraco, in my view, is one of the best – if not the very best – decision in terms of what it means to breathe life into a Constitution, issued by a court in Uganda since 1894. I have no doubt whatsoever, that it will continue to be studied by generations of students, legal scholars and judges for decades to come.

Judge Egonda-Ntende would continue this purposeful approach to the judicial function in the case of Fredrick Kato v Ann Njoki, a decision he handed down on 29th January 2009. This case concerned Section 3 (1) of the Divorce Act which was to the effect that where all parties to divorce proceedings were Africans, jurisdiction in the matter had to be exercised by a Magistrate Grade 1 or a Chief Magistrate.

Under Section 3 (2) of the same Act, all other instances, jurisdiction lay exclusively with the High Court. The question was whether this provision was consistent with Article 21 of the 1995 Constitution which prohibits, among other things, discrimination based on race or colour.
Judge Egonda-Ntende noted that the Divorce Act had first come into force in Uganda on 1st October 1904, and had never been reformed since that time – over a century later.

He observed that it was difficult to reconcile the differential treatment of races under Section 3 with the terms of Article 21 of the Constitution, with the result that the statutory provision had to be considered to be null and void to the extent of its inconsistency with the supreme law (as per Article 2 of the Constitution). Judge Egonda-Ntende was again alive to the jurisdiction of the Constitutional Court regarding interpretation of the Constitution, and – citing his decision in Osotraco – used the same constitutional basis as in that earlier case, that is to say, the power granted to all judges (under Articles 273 and 291) to read existing law with such modifications, adaptations and qualifications as to make render such law consistent with the Constitution.

Having found Section 3 of the Divorce Act to be inconsistent with the Constitution, Judge Egonda-Ntende concluded that access to the High Court in divorce matters would no longer be a function of race but rather one of the pecuniary jurisdictions of the courts in question. A matter involving matrimonial assets in excess of Ugx 50,000,000 (the upper limit of the Magistrates’ court jurisdiction) had to be filed in the High Court.

One with no assets in contention, or with assets below Ugx 50,000,000 could be filed in a Magistrate’s court. In this matter too, Judge Egonda-Ntende rendered a decision which addressed a legislative injustice that had stood for over a century, and which thereby restored the dignity and humanity of Ugandans in the context of divorce proceedings.

Judge Egonda-Ntende’s frustration with legislative (and Executive) lethargy would also be apparent in his decision in In Re Nicholas Mwanje and Brenda Nakidde, rendered on 1st July 2009. The matter concerned an application for guardianship by an American couple. Having determined that the applicants were suitable adoptive parents, Judge Egonda-Ntende then had to determine whether Ugandan law permitted such an inter-country adoption.

The challenge was that, under Section 46 of the Children Act, applicants were required to have resided in Uganda and fostered the children for 36 months prior to making any such application. Incidentally, at the time there was a Court of Appeal decision – In the Matter of Francis Palmer (Civil Appeal No.32 of 2006) and the Matter of Howard Amani Little (Civil Appeal No.33 of 2006) – on the point, but the divided opinions issued in that consolidated case had created more confusion than certainty as to the appropriate approach in this respect.

In the face of this dilemma, Judge Egonda-Ntende observed: ‘The Court of Appeal decision, given the conflicting legal positions taken by each justice, provides no authoritative guidance as to how this court should exercise its power in granting orders of legal guardianship. In the result, perhaps, I must turn to simply one question. Is the grant of such an order in the best interest of the children?’

He observed that the children in respect of whom the application had been made needed a home with loving parents and a family, something which had eluded them since the death of their parents. There was no evidence that any governmental support, whether from the central or local levels, had been provided to them and others like them, and they had thus far only survived with the assistance of local non-governmental organization.

There had been no offer from any Ugandan or non-Ugandan resident in Uganda to adopt them since the passing of their parents. In these circumstances, Judge Egonda-Ntende was satisfied that it was in the best interests of the children that the applicants be allowed to adopt them and return with them to their own home in the United States of America.

At the same time, he observed that Section 46, in so far as it made it inter- country adoptions almost impossible, was possibly inconsistent with Article 34 of the Constitution (which required laws relating to children to be enacted in their best interests) and with Uganda’s obligations under Article 3 (1) of the United Nations Convention on the Rights of the Child (1990).

In this regard, he called both for the reform of this part of Ugandan law as well as for the signature and ratification of the 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. In the event, Parliament responded to Judge Egonda-Ntende’s calls for reform with the 2016 amendment to the Children Act which, among other things, modified Section 46 to make intercountry adoptions easier, while at the same time ensuring proper safeguards for children in such proceedings.

Unfortunately, at its end, the Executive branch of government is yet to sign the Hague Convention – a measure which would go a long way in promoting and protecting the rights and welfare of children thus adopted. This is shameful and irresponsible - especially in the wake of revelations of a growing racket with regard to such adoptions (involving lawyers and even certain highly placed judicial officers) – in which some Ugandan children with alive but impoverished parents have literally been sold for profit to (sometimes unsuspecting) American couples.

For his part, Judge Egonda-Ntende’s decision in Nicholas Mwanje – as in Osotraco and Fredrick Kato and no doubt his whole body of judicial work – was evidently rooted in humanity, and a concern for the rights, dignity and welfare of the parties before him. In next week’s column, we shall conclude our examination of Justice Egonda-Ntende’s jurisprudence and further reflect on whether and how more of this kind of emancipatory – and decolonial – jurisprudence can be generated from current and future generations of Ugandan jurists.

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.


+1 #1 Phillip Karugaba 2024-07-04 07:41
Fantastic! I was only aware of Osotraco. Thank you for sharing.
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0 #2 Akot 2024-07-04 14:02
Uganda is just for Rwandese Museveni, tribal leaders, ministers, mps & all others in posts, but not for the poor ordinary powerless tribally divided ruled!

Non of the above ever talk about how Ugandans live in the Uganda they are well payed, well accommodated & live so well with tax money!

Why will poor powerless tribally divided ruled Ugandans go for next fake elections to ensure they remain poor & ignored officially, legally, constitutionally?
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0 #3 Julian Mukiibi 2024-07-07 06:31
Awesome analysis, how I wish we had many Judges of this caliber!
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