As a young graduate law student in the United States, over 18 years ago now, among the most consequential classes I took was one on American Constitutional Law, taught by Professor Richard Davies Parker.
This was not so much because of the substantive content of the course – most of which I have forgotten anyway over the years. Rather, it was mainly on account of a simple idea he suggested and demonstrated – that constitutional law (perhaps all law) is ultimately informed, animated and driven by such basic human emotions as love, fear, hatred, prejudice, envy and others.
Thus, it is not enough to simply examine the minutiae of law through a close reading of cases, statutes and so on. Quite often, this only provides one with a most superficial, and often misleading, view of the matter at hand.
These are important tasks of course, and the ‘technique’ of law (constitutional and statutory interpretation and so on) remains critical. However, a ‘technical’ or ‘mechanical’ approach to law is severely limited, and limiting, if not accompanied by an understanding of human beings – and what drives them.
And human beings, at their core, are simple people. Judges and Magistrates, out of their robes and wigs, are ordinary human beings. The same is true for legislators, lawyers, ministers, soldiers and so on.
Therefore, while the various crises which are now manifesting in the Ugandan body politic – including the judicial one to which this column has dedicated great attention over the past months – can on one level be viewed under the prism of law, they must just as importantly be appreciated as deeply and fundamentally human crises.
Take, for instance, the recent case of Mr. Edward Sebuufu (otherwise known as ‘Eddy Mutwe’). He has been failed at so many levels by so many human beings who took a number of decisions which betrayed their own humanity: those security officers who abducted him from his home; those who tortured him (including any doctors and medical officers employed in safe houses); those who drove him from the ungazetted detention center to court; the people (including police officers) at the court who went to great lengths to ensure that journalists did not cover the physical abuse evident on his person; the state prosecutor who preferred the charge of ‘aggravated robbery’; and the judicial officer who remanded to prison, rather than ordering the immediate release of, a torture victim.
All of these were choices – each with consequences. In each of those instances, the human emotion involved may have been fear (of General Muhoozi Kainerugaba, who publicly admitted to, and gloated over, Eddy Mutwe’s abduction, incarceration and torture) or ambition – the hope for advancement in their careers as a reward for going ‘above and beyond’ (or more, accurately, below or beside) the call of duty.
For others, the actions are founded in resignation and apathy, with such rationalizations as: ‘If I do not do it, someone else will.’ It is this fear, or unprincipled ambition – or both – which is then written into such legal texts as charge sheets, remand orders, rulings denying applications for bail or habeas corpus and so on.
The new proposed amendments to the Uganda Peoples’ Defence Forces Act – the UPDF (Amendment) Bill No.15 of 2025 – can be understood in similar terms. Every one of the Members of Parliament going to debate this over the next few days or weeks is aware of the legal position – although they will pretend not to be.
They also know the spirit of the Bill, brought as yet another nail in the coffin of Uganda’s constitutional and democratic order. They know the essence of the Supreme Court’s decision in the case of Attorney General v Hon. Michael Kabaziguruka (Constitutional Appeal No.2 of 2021, arising from the decision of the Constitutional Court in Constitutional Petition No. 45 of 2016). And yet, the great majority of them will proceed to pass it, after only the barest pretence at considering and debating it.
They will do this out of fear (mainly of Yoweri Kaguta Museveni and his son Muhoozi Kainerugaba) or out of ambition (the desire for re-election through state financial support and access to the tools of state intimidation) – or both.
Greed will also be a factor, only that in this case they appear to have taken this a notch higher, having sought and received the financial inducement – One Hundred Million Uganda Shillings – in advance.
Thus, very basic human sentiments – fear, ambition, greed – will be clothed in the language of legality and parliamentary procedure: gazetting of the Bill; appearance on the Order Paper; First, Second and Third Readings and so on. This framing – of law as emotion – can also help us to understand that most strange and unfortunate decision of the Constitutional Court in Fox Odoi and Others v Attorney General and Others (Consolidated Constitutional Petitions Nos 14, 15, 16 and 85 of 2023).
I suspect that at the root of the unnecessarily long-winded (203-page) decision of the Court were basic human emotions: fear, hatred and prejudice. This led to a decision that was so internally tortured and inconsistent, and so incongruent with both the Constitution and the Court’s own previous jurisprudence (Charles Onyango Obbo and Another v Attorney General, Constitutional Appeal No.2 of 2002; Muwanga Kivumbi v Attorney General, Constitutional Petition No. 9 of 2005; and, particularly, Adrian Jjuuko v Attorney General, Constitutional Petition No.1 of 2009 among others) as to be both legally unsound (on the basis of the doctrine of per incuriam) and patently illegitimate.
Perhaps the most telling evidence of the extra-legal considerations at play in Fox Odoi is the fact that one of the Justices – His Lordship Richard Buteera – sat on, and headed, the panels in both Adrian Jjuuko and Fox Odoi.
Moreover, at the time Fox Odoi was decided, His Lordship Buteera was Deputy Chief Justice and Head of the Constitutional Court. It is difficult to imagine that His Lordship was unaware of that critical precedent of his Court – Adrian Jjuuko – especially since it was specifically, and severally, referenced and invoked in the submissions in Fox Odoi.
How can one reconcile the obvious technical competence and experience of His Lordship Buteera (and that of the rest of the panel in Fox Odoi) with this major lapse (incidentally only one of several in the substance of that decision)?
One can only make sense of this if one considers the Justices as human beings – susceptible to basic human emotions. When one considers the possibility that – out of fear, hatred or prejudice – they might have proceeded from the basis that the petition in Fox Odoi had to fail, then worked their way backwards to torture the law to fit this result, a great deal of the basic constitutional errors and inconsistencies evident in that decision can be understood.
It seems to me that the Adrian Jjuuko decision was one which simply failed to be tortured into submission in this particular instance, leading to its conspicuous omission from the entirety of the 203-page Fox Odoi decision.
The result was a decision which brings to recollection a 1969 text by the American anthropologist Lloyd Ashton Fallers entitled ‘Law without Precedent’. Unfortunately, the constitutional damage wrought by the decision in Fox Odoi – a Constitutional Court decision reached without a critical Constitutional Court precedent – will continue to have significant ramifications for human rights and democracy in Uganda for a very long time to come.
To take but one example, in the editions of this column published on 22nd and 29th May 2024, I warned that the conclusions in Fox Odoi regarding public participation in legislative processes effectively rendered irrelevant the provisions of Articles 1, 8A (together with Objective II (i) of the National Objectives), 36 and 38 of the 1995 Constitution.
The Court effectively diminished the prospect of active citizenship envisaged under the Constitution and clothed Members of Parliament with inordinate power, on a theory of delegated responsibility. Certainly, as might be expected, the Parliament of Uganda took this to heart and have since been emboldened into acting with ever-increasing impunity.
Effective consultation has increasingly been replaced by the only the most cursory nods towards the existence of the citizen as an actor in our constitutional democracy. Now, as Parliament this week starts the farce of ‘debating’ the UPDF Amendment Bill, it is accompanying this with the tokenism and mockery of public consultation that was legitimized in Fox Odoi.
Thus, on Tuesday, 13th May 2025, the very same day on which the Bill was scheduled for its First Reading in Parliament, The New Vision (at page 31) and the Daily Monitor (at page 32) carried notices inviting members of the public wishing to appear before the Committee on Defence and Internal Affairs to submit written memoranda to the Office of the Clerk to Parliament by Wednesday, 14th May 2025.
No person of goodwill would consider this to be any serious invitation to Ugandans to provide input into a Bill. And yet, this is precisely (among many other grotesque violations of the Constitution – which we laboured to highlight in this column in May and June last year) what the Constitutional Court, headed by the Deputy Chief Justice Emeritus Richard Buteera, bequeathed to us in the Fox Odoi decision of 3rd April 2024.
In the column next week, we shall continue to explore the ways in which basic human emotions – love, hatred, fear, prejudice and others – colour, for better or for worse, constitutional discourse, interpretation and application, with very real impacts on the lives of very real human beings.
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 Legal Philosophy.
Thank you for this. Very enlightening indeed. Loved learning about the analytic frameworks “torture the law”, “law without precedent” and “delegated responsibility.” I feel immensely civically educated.
I agree entirely with the author save his views on the AHA, which I think is largely constitutional.
A very good article that is easily followed and understood by Non Legal minds like myself. Looking forward to reading the author’s subsequent articles
Thanks Dr. Kabumba. It is indeed a sad testament of a tortured country.
In other words, the more the corrupt (broken) leadership, the more the dubious and oppressive laws (The More corrupt the state, the numerous the laws, Cornelius Tacitus, Annals [C.116 AD]).
Love, fear, hatred and others: Human emotion and the 1995 Constitution. In simple national consititutional understanding for a lay person, the human emotions are a reality. Human emotions is life in itself. Most probably that is why USA in the country where the writer was properly educated in constitutional governance and many more countries have written constitutions. Other countries like Great Britain do not have written constitutions. Of course it does not mean such countries do not have emotions that can be well written on paper! The Ganda tribes people too in their Ancient African Kingdom state never had a written constitution. The written constitution or written (political) Agreements one reckons have limited recorded emotions. Indeed some are dysfunctional. Look at the current 3rd or 4th English written Red constitution of that self-styled African President he is holding, as if it is a holy book like someone holding a Holy bible. A law has a precendent. That is something done or said that may serve as an example or rule to authorize or justify a subsequent act of the same. This new English book of a Uganda dodgy constitution instructs to be translated in all the vernacular languages of this country. Not done and never will it ever be done. The Uganda National Anthem is sungis or sung or sang in English, and many citizens with their children who are not obliged to learn the English language cannot sing it. While the Ganda tribes people who are hated as non Pan-Africans sing nicely their African Kingdom state Anthem in their Ganda language so well and emotional one always wants the Ganda kids to repeat it one more time!