Constitutionally speaking…The final word

When I first wrote this column, on 2nd August 2023, I explained that my choice to write it had been informed by five major considerations:

i) the duty to give back to a country which had already given me so much;

ii) the domination of Uganda’s public square by largely uninformed and sometimes malevolent actors;

iii) the burden on my generation to do our part in building our nation;

iv) as a response to the challenge posed by Dr. Jimmy Spire Ssentongo, Prof Issa Shivji, and others – to academics to play more active roles in national discourses;

and v) as an extension of my pedagogical responsibilities (professional and personal), the column being an additional means by which to offer an alternative view to that which might be found elsewhere.

At the start of 2024, in my column of 17th January of that year, I reiterated these five foundational motivations, and also noted as follows: ‘There might come a time when I feel I have said all I could.

At that point, I promise, I will not overstay my welcome. I am reminded in this sense of a certain Ugandan who a few years ago used to write letters to the editor under the pseudonym “Mbaroraburora” – literally meaning “I just look at you/them” – which apparently signified that person’s state of resignation and despondency regarding the state of affairs in Uganda.

I might, also, get to this point – at some stage. However, one is not entitled to be resigned unless one can genuinely point to their efforts to change the status quo – by the means best available to them.

As an academic, the pen (or computer) is the means best suited for me – and this column continues to be the best mechanism for this contribution.’ Essentially, I was indicating that when I felt there was nothing more to be said, I would stop writing this column. Dear reader, that time has come.

One main development made it clear to me that Uganda has crossed the Rubicon – the appointment of Dr Flavian Zeija as Chief Justice. In the morning of 22nd January this year, Ugandans woke up to the news that Dr Zeija had been appointed Chief Justice of Uganda, to replace Chief Justice Alfonse Chigamoy Owiny-Dollo who had reached the mandatory age of retirement (70 years) on 18th January.

Strangely, it also transpired that the parliamentary vetting and approval of the Chief Justice had already been conducted that morning. It seems as if everything possible under the sun had been done to ensure that no one knew the person so appointed until after the fact.

There is simply no way to sanitize such a grossly illegitimate process – one which brings disrepute to the institution of the judiciary, and calls into great question its ability to dispense true justice.

The Judicial Service Commission (itself certainly irregularly constituted, given the absence of representatives from the Uganda Law Society), which is constitutionally manage the process of identifying suitable candidates to such offices, left Ugandans with more questions than answers, including:

i) How many people applied for the position?;

ii) Who were shortlisted, and why?; and

iii) How many candidates were eventually recommended to the President, and why? A process which is so devoid of transparency, and of the full and active participation of ordinary Ugandan citizens, cannot deliver a Chief Justice who enjoys the trust and confidence of the people of Uganda.

At a time when the judicial branch has come under significant, and justified, scrutiny for its collective failure to fulfil its envisaged role as a co-equal branch of government, willing and able to check the excesses of the executive and legislative branches, the mode of this appointment sends an unmistakable message: the judiciary is now an extension of, and inevitably tainted by, the illegitimacy of the executive and parliament.

The branches of government cannot, and will not, check each other – they will rather act in concert to further entrench Museveni’s military rule. The symbolism, timing and implications of the appointment are unmistakable.

Unfortunately, there are inescapable parallels between Chief Justice Zeija’s appointment and that of Chief Justice George Japheth Masika of the Obote II period. Chief Justice Masika was appointed by Obote’s right-hand man, Paulo Muwanga (the then Chairperson of the ruling Military Commission) to the position in the run-up to the infamous 1980 elections.

Indeed, it was Masika, a dyed-in-the-wool UPC cadre, who swore in Obote as President, following UPC’s ‘electoral victory’. Unfortunately for Masika, when Obote was eventually overthrown in July 1985, he was forced to follow him into exile.

Regrettably, for Chief Justice Zeija, his appointment to that office is distinctly Masika-like in its timing, and in the illegitimacy of the appointing authority. It is no small matter, symbolically, that the Chief Justice of Uganda was sworn in (on Saturday, 24th January), not at the official State House in Entebbe (as his predecessors have usually been) but rather at the President’s private farm in Kisozi, Gomba district.

The Chief Justice’s first order of business was then to constitute a panel of Supreme Court Justices to hear and determine a‘presidential election petition’ filed by a one Robert Kasibante (a presidential candidate who garnered 0.3% of the votes cast, according to the ‘results’ released by the Electoral Commission).

In the event, Kasibante has since applied to ‘withdraw’ his ‘petition’ – leaving the path open for President Museveni to be sworn in by Chief Justice Zeija a few weeks from now.

In a normal situation, it would not be advisable for a jurist to accept appointment to the position of Chief Justice, in circumstances and in a context such as that pertaining to the 22nd January 2026 one.

Indeed, President Museveni has himself consistently condemned lawyers and judicial officers who knowingly make common cause with bad political actors. This was, for instance, the crux of his persistent criticism of the late Benedicto Kiwanuka in relation to his choice to work with Idi Amin.

In this regard, on 27th September 2021, at the 4th Benedicto Kiwanuka Memorial Day (hosted by the Uganda Judiciary), President Museveni noted: ‘I also disagree with Benedicto Kiwanuka. Why would you be Chief Justice in Amin’s government? Everybody should have walked away. Amin did not understand anything. Had everybody walked away, the Amin problem would have been resolved sooner.’

President Museveni repeated this critique the following year, on 21st September 2022, at the 5th Memorial, where he observed: ‘For us we don’t think it was correct for (Ben) Kiwanuka to accept to be chief justice for Amin. You couldn’t talk of judicial independence with Amin. How can Amin say this and you come to the Supreme Court to say the other …’.

The time has come for Ugandan lawyers and jurists to ask themselves similar questions in relation to appointments offered by President Museveni, especially at this time when the legality and legitimacy of his governance is at its lowest point since 1986.

Uganda has just gone through perhaps its strangest ‘election’ since 1995 – one in which the ‘winner’, with ‘72%’ according to the Electoral Commission appears ill-at- ease, perhaps through the knowledge of the means by which this ‘victory’ was procured.

It was a period in which Ugandans saw more soldiers than electoral officials deployed; in which opposition politicians were arrested before and after the polls (in a context where many persons arrested from the 2021 elections remain in prison on remand); the internet shut down; the licences of several NGOs suspended (particularly those working around the areas of governance, human rights and electoral democracy); several people killed and the homes of political actors raided and violated.

Where once the NRM at least pretended at democracy, we appear to now have entered the zone of almost gleeful impunity. The manner of Chief Justice Flavian Zeija’s appointment, in its uncannily shadowy and hurried nature, unfortunately is inextricably linked to this context – of growing impunity borne out of, and magnified by, the illegitimacy of Museveni’s presidency.

It is, tragically, the fruit of an evidently poisonous tree. While there may be circumstances where such fruit might be edible, more often than not, poisonous trees produced poisonous fruit, which in turn produce more poisonous trees. Already, this is proving to be true with respect to the health of the judiciary as an institution.

If anyone had held out hope for a revitalization of the judicial branch under new management, this has already been lost with the failure to extend even the courtesy of an invite to the Uganda Law Society Executive to the opening of the New Law Year earlier this month (prompting the Radical New Bar to justifiably hold a parallel event), and the ongoing prosecution of Male Mabirizi for ‘malicious information’ and ‘hate speech’ against Chief Justice Flavian Zeija and Justice Musa Ssekaana of the Court of Appeal.

In what has now come to be standard fare for the Ugandan judiciary, Mabirizi was casually remanded, with any hope for bail (if at all) being possible at his next appearance before the Buganda Road court on 18th February 2026.

Evidently, far from being over, the era of pre-trial punishment through unreasonable remand periods and unjustifiable refusal to hear and determine bail applications (among several other injustices) appears set to reach new heights.

Similarly, if Justice Esther Kisaakye had hoped for an amicable resolution to her predicament (which itself followed the aborted proceedings in Hon. Robert Kyagulanyi’s 2021 presidential election petition), I am sure the treatment of the ULS and of Male Mabirizi under the ‘new Judiciary management’ has put paid to such expectations.

This dim prognosis for the Judiciary under Chief Justice Zeija is rendered even darker when placed in the context of probable political developments expected over the next few months – particularly movements to position Muhoozi Kainerugaba to replace his father as President, thereby confirming the death of Uganda’s democracy, and concretizing our country’s condemnation to a dynastic ethno-military dictatorship.

By all indications, this seems to be set to be effected by a constitutional amendment in which the country will move from direct presidential elections to a parliamentary system in which the leader of the majority party heads the government.

Seen in this light, the 58-year-old Chief Justice may be set to superintend over the final burial ceremonies of the 1995 Constitution, in the course of the 12-year period between his appointment and projected retirement. In such a context, what value is there in ‘constitutionally speaking’?

How can one speak of, or to, a document which is, by all indications, as dead as a doornail (to borrow Akena Adoko’s description of the 1962 Constitution)? In these circumstances, while I am deeply grateful to the editors of The Observer for having extended to me this important forum over these years, I must now fulfil the promise I made to the readers of this column: to stop speaking the moment it was clear that there was nothing more useful to be said.

The writer is Senior Lecturer and Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and International Law.