Last week, this column engaged with the various ways in which law (including constitutional law) is shaped by such basic human emotions as love, fear, hatred, envy, prejudice and others.
Although this simple fact is often forgotten, it should not be surprising. With the possible exception of the Ten Commandments – which Moses suspiciously descended with after a period of time spent alone at the top of a mountain) – laws are made, implemented and interpreted by human beings.
They are thus inevitably touched (or, as some might argue, tainted) by human emotion. Today, we continue to reflect on the manifestations, and implications, of this basic fact, for constitutional contestation and adjudication in Uganda. As earlier noted, we can locate human emotion at the base of most statutes and judicial decisions, if we care to look. Indeed, the Constitution itself is full of emotion.
The Preamble, for instance, recalls a dark past of ‘political and constitutional instability’ as well as ‘tyranny, oppression and exploitation’. Evidently, the framers of the Constitution were consumed by the fear of returning to this problematic history.
This fear could also be located in such constitutional checks as the two-term presidential limit (Article 105 (2)); the presidential age limit (Article 102(b)) and the prohibition of coups d’état (Article 3). On the other hand, the document was also infused with a great deal of hope.
In the first place, this was again reflected in the Preamble with spoke a commitment to ‘building a better future by establishing a socio-economic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress’.
This sentiment was also implicit in such provisions as the National Objectives and Directive Principles of State Policy; Article 8A (the requirement of governance ‘based on principles of national interest and common good’); Article 79 (the duty of Parliament to make laws ‘for the peace, order, development and good governance of Uganda’); the Bill of Rights (Chapter 4) and the guarantees of judicial independence (Chapter 8).
Human sentiment – especially the fear of, and prejudice against, certain persons or groups of persons – is also reflected in a range of other laws and judicial decisions. Poor persons were, for instance, targeted by Section 168 of the Penal Code Act, which created the offence of being a ‘rogue and vagabond’ – based partly on ‘having no visible means of subsistence’.
It is also evident in guidelines relating to bail, with such requirements as that sureties be ‘substantial’ (a code-word for rich, employed, professional, land-owning persons). Most unfortunately, it also manifests in the provisions of civil procedure law which allow the imprisonment of civil debtors. Mercifully, th ‘rogue and vagabond’ offence was found to be unconstitutional, in the case of Francis Tumwesige Ateenyi v Attorney General (Constitutional Petition No. 36 of 2018), and is no longer on our statute books.
Similarly, Judge Stephen Mubiru took a step in Geoffrey Opio v Felix Obote and 2 Others (Consolidated Miscellaneous Applications Nos. 81 and 82 of 2018) at chipping away at the law allowing for the criminalization of poverty through imprisonment of civil debtors.
Persons with intellectual and psychosocial disabilities were also historically dehumanized by such references – in the Penal Code Act and the Trial Indictment Act among others – as ‘idiots’, ‘imbeciles’, ‘criminal lunatics’ until this language was declared unacceptable by the Constitutional Court in CEHURD and Daniel Iga v Attorney General (Constitutional Petition No.64 of 2011).
Prejudice against women and girls was evident in a judicial rule which required that evidence in cases of sexual assaults be corroborated. Here too, it took the insight of certain brave judicial officers to recognize that such ‘judicial practice’ was nothing more than a cover up for sexism.
Notably, Judge Sempa Lugayizi observed in Uganda v Peter Matovu (Criminal Case No.146 of 2001) as follows: ‘… court has not come across any empirical data or basis for the belief that women are greater liars than men or, for that matter that they are much more likely to lie than to say the truth in matters concerning sexual allegations.
For that reason, it seems that both the belief and the resultant rule have no logical basis.’ This approach would be upheld by the Court of Appeal in Patrick Basoga v Uganda (Criminal Appeal No.42 of 2002) and by the Supreme Court in Fred Ntambala v Uganda (Criminal Appeal No.34 of 2015).
In the Ntambala case, the point was particularly taken up by Justice Prof Lillian Tibatemwa-Ekirikubinza who stressed (citing her 2005 text – Criminal Law in Uganda: Sexual Assaults and Offences Against Morality) that the old rule was rooted in the sexist belief that women were ‘by nature peculiarly prone to malice and mendacity’ and was ‘absurd’ and ‘not legally justifiable’.
We can cite one additional example of legally entrenched prejudice (out of several more) – the Witchcraft Act of Uganda – which singles out a particular kind of religious practice for criminalization. Although some aspects of this legislation (particularly the punishments of banishment) were ameliorated by the Constitutional Court in Salvatori Abuki and Another v Attorney General, the law continues to stand as a prime example of legalized fear and prejudice against one faith system – African Traditional Religion – which ironically happens to be the only one indigenous to Uganda.
A further irony, of course, is that the law apparently has no recourse against more insidious forms of religious chicanery, including the solicitation – occasionally with spiritual menaces – of significant sums of money (sometimes in the millions of United States Dollars) from impoverished congregations.
Clearly, law – the product of human beings – reflects all that is human in us, for better or for worse. An understanding of this basic fact – of the human emotion behind law and judicial decisions – is a critical first step in allowing those human beings whom law was intended to serve to be able to take back full ownership of that law.
Law, including law in its most oppressive sense – survives partly because it (and its institutions and officers – judges, lawyers and so on) sometimes receive undue deference. I can do no better here than to cite this extract from President Yoweri Kaguta Museveni’s address to the Uganda Law Society on 25th February 1987: ‘Depending on the nature of the State in a given society, law can be an instrument of oppression and exploitation, or of social justice and progress. Law is not always synonymous with justice.
It can be but it may not be. What is legal is not necessarily what is just. Law can be used by the strong against the weak; by the rich against the poor; by the minority against the majority.
Historically, law has been used by the oppressor against the oppressed. During the slave period, slaves were owned and disposed of like chattels and it was perfectly legal to own a slave.
The NRM government is strongly opposed to having laws on our statute books which serve the interests of the minority as against the majority of our people, or which in any way serve to promote injustice or advance backward interests in our society.’ One key takeaway from Museveni’s statement is the recognition that we should not unduly respect law – or lawyers, Judges and other actors in the ‘legal industry’.
We are entitled to step out of the system set up by legal actors (including extra-legal actors like the armed forces, and dominant political actors) and examine it from a social justice or ‘impact’ perspective.
Good law, whether it comes from Parliament or from judicial determinations, can be seen and felt. It can be tasted, and smelt. In this regard, it is ironic that, in 2025, the NRM government is forcing through a law – the UPDF Amendment Bill (including through the illegitimacy of a one-day window for ‘public consultation’), whose contents have already been impugned by the Supreme Court of the land, clearly aimed at serving a most narrow political interest of persecuting real or perceived political opponents!
This irony is further strengthened when some of those opponents are illegally abducted, detained and tortured, ostensibly for the purpose of ‘teaching them Runyankore’. To understand the law in Uganda – and to fulfil its greater purpose (the achievement of social justice and good governance) we must demystify it.
There can be no liberation from the tyranny of oppressive law without some understanding, and demystification, of law and its institutions. We cannot, for instance, start to credibly and sustainably challenge the undeniable crisis of the Judiciary in Uganda without understanding that institution as a group of ordinary human beings, interpreting and applying law made by 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.
There can be no liberation from the tyranny of oppressive law without some understanding, and demystification, of law and its institutions. NRM currently has opened up its ambitions of becoming a military junta and dynasty in the Republic of Uganda. The military junta often comes to power as a result of a coup d’état or civil war. The junta may either formally take power as the nation’s governing body, with the power to rule by decree, or may wield power by exercising binding (but informal) control over a nominally civilian government(parliament and former administrative systems). These two forms of junta rule are sometimes called open rule and disguised rule. Disguised rule may take the form of either civilianization or indirect rule. Civilianization occurs when a junta publicly ends bits of military features but continues its dominance. For example, the junta may terminate the martial law or part of it, forgo military uniforms in favour of civilian attire, and colonize government institutions with former military officers, and make use of political parties or mass organizations. The indirect rule of NRM involves the junta’s exertion of concealed, behind-the-scenes control over a civilian puppet using national elections and a compromised judiciary! The Kingdom state is no longer interested in such ambitions and it is not going to continue to participate in Uganda national elections which are violent, rigged, and full of Gerrymandering. The periodic organised national elections are not free and fair. The weak national opposition is well aware of such blatant election crimes where it demanded electrol reforms without any success for many years and counting. If you cannot beat them follow them is unfortunately what the Uganda national opposition have decided to do!
On reading this insightful piece, my mind hovered over the case of Charles Twine, the former Police CID spokesperson. He was brought before the Chief Magistrate’s Court, days after his family reported him missing. The twist is that, unlike the NUP, Muslims and others who go missing (abducted) later appear in court tortured, broken, frail, limping, and dying, Twine appeared in court in one piece. The law is blind to the perpetrators of this heinous crime. Is it because he didn’t need to be taught Runyankore? Some doubters maintain that Twine’s case is a stunt to deflect the obvious tribalistic undertone in the numerous arrests of particular sections of the population.
The helpless state Uganda finds itself in is due to the useless elections Uganda has been relegated to, courtesy of the cowardice of the Supreme Court of Uganda and their ignoring of the preamble to our constitution, which has shamelessly declared that these bogus elections were what the framers of our constitution envisaged for us!