Supreme court, low expectations: Why the decision in Kabaziguruka is good, but not enough

It was United States President George Walker Bush who in a speech in 2000 referred to the ‘soft bigotry of low expectations’.

In that instance, he was making a case against affirmative action, and arguing for a strictly merit- based societal order. As this column has previously argued, we disagree with the core of that reasoning, as it glosses over certain historical and systemic realities which might affect the opportunities – and eventually achievements – of various groups within a particular society.

Luckily, in our context, the legitimacy of affirmative action (for the purpose of redressing historical injustices) is specially recognized, and in fact mandated, under Article 32 of the 1995 Constitution. Nonetheless, on its own, Bush’s formulation presents an interesting, which might be applied more accurately in other contexts.

One of those, in my view, relates to the decision of the Supreme Court of Uganda 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). While many Ugandans, including many in the legal community, profusely celebrated the decision – broadly to the effect that civilians cannot be tried before military tribunals – my own feelings were rather mixed.

Certainly, the decision is to be welcomed. It was the correct decision. However, are we to be effusively grateful to the Supreme Court for simply doing the job they are paid (relatively well) to do? It seems to me that, to almost obsequiously thank the Supreme Court for merely stating the correct constitutional position is, in fact, to denigrate and even patronize that court.

It is to somehow suggest that we expected it to get the answer wrong. That is to set a very low bar for what is supposed to be the highest court in the land. It is to exhibit – in the starkest way – the soft bigotry of low expectations. One of the most basic expectations we the citizens must have of the judiciary, is expeditious justice.

This fundamental notion is etched in Article 126 (2)(b) of the 1995 Constitution, which requires all courts to, among other things, apply the principle that: ‘justice shall not be delayed’. Unquestionably, the critical decision of the Supreme Court in Kabaziguruka was inordinately delayed.

To his credit, the Chief Justice Alfonse Chigamoy Owiny-Dollo, felt compelled to explain this delay (at pages 19-20 of his judgment). He observed that the case had ‘suffered an unprecedented affliction by a host of adversities’ which created ‘an imperative need to clarify on what transpired within that period’.

In accounting for the delay, he outlined ‘[a] grave and persistent series of events that characterized the lifespan of [the] appeal’ including: (i)a fire in the Chief Justice’s chambers on 27th April, 2022; (ii) flooding in the Supreme Court building; (iii) the retirement of Justices Paul Mugamba and Justice Ezekiel Muhanguzi; and (iv) the deaths of Justices Rubby Aweri Opio and Stella Arach-Amoko.

This account was somewhat compelling – indeed almost reminiscent of the biblical plagues which were said to have afflicted the Egyptian Pharaoh’s people, land and palace when he failed to render earthly justice in accordance with divine standards.

The account was corroborated by Justice Mike Chibita, who similarly addressed the issue (at pages 1-2 of his judgment). Referring to what he acknowledged was ‘a point of public interest’, he affirmed the Chief Justice’s account of the ‘unprecedented occurrences’ which had ‘indeed hindered and stood in the way of expeditious disposal of [the] appeal’.

To his additional credit, Justice Chibita offered to the Ugandan general public what the Chief Justice had perhaps inadvertently omitted – an apology, noting: ‘[s]uffice to say that any delay in dispensing justice is always regrettable, whatever the cause’.

While the explanation proffered by the Chief Justice for the delay in Kabaziguruka is plausible, it becomes less so when placed within the larger context of the Supreme Court’s general performance historically, and that of the judiciary as a whole. In this light, one cannot avoid the inescapable conclusion: that the judicial system in Uganda is woefully inefficient, systemically broken and in a crisis which seems to be evident to everyone but the Judiciary itself.

According to the Judiciary’s Annual Report for the financial year 2023/2024, for instance, the Supreme Court took an average of 1,043 days (about 3 years) to complete cases before it (see page 28). It is difficult to see how such a period can be said not to constitute a ‘delay’ in terms of Article 126 (2) (b) of the Constitution.

For its part, in the same period the Court of Appeal/ Constitutional Court required an average of 1,522 days (about 4 years) to complete cases before it (see page 30). Seen in this light, the delay in delivering Kabaziguruka is evidently not something out of the norm – indeed, it is an expeditious judgment which would have been surprising.

The crisis in the Ugandan judiciary becomes even more stark when one considers the situation of constitutional petitions and appeals, which by their very nature have significant implications for the rights of all Ugandans. The 1995 Constitution envisaged that constitutional matters would be given priority. To this end, Article 137 (7) is to the effect that: ‘Upon a petition being made or a question being referred under this article, the Court of Appeal shall proceed to hear and determine the petition as soon as possible and may, for that purpose, suspend any other matter pending before it.’

This preferential treatment for such matters was premised on the special character of the Constitution itself, which is the supreme law of Uganda, with binding force on all authorities and persons throughout Uganda (Article 2(1)). It also follows that where any law or custom is inconsistent with any provision of the Constitution, that other law or custom is, to the extent of the inconsistency, null and void (Article 2 (2)).

At the same time, while all Ugandans may know intuitively that a particular law or action is unconstitutional, the determination in this regard is reserved to the Court of Appeal (as Constitutional Court) and Supreme Court (as the appellate body in constitutional matters). Even when it is as plain as daylight that something is unconstitutional – and where the liberty, rights and even lives of Ugandans are being lost and violated as a result of an unconstitutional law or practice, we are forced to wait for the Constitutional Court to determine that this is in fact the case.

Unfortunately, as pointed out above, the Constitutional Court is not quick in providing these determinations. In the 2023/2024 financial year, for example, the Constitutional Court determined a total of 66 constitutional petitions, leaving 173 petitions pending at the close of that period (see page 30 of the above quoted Report).

In other words, in that period, the Constitutional Court provided an ‘answer’ to only 66 questions asked of it, leaving 173 ‘answers’ unprovided. Thus, with respect to the fundamental law of the land, there were as at the end of that period, 173 pressing questions – going to the root of both the nature of our governance and the safeguarding of our liberties – with no responses.

However, and this is where the real disfunction exemplified by the Kabaziguruka delay becomes evident, even for some of those constitutional cases where an ‘answer’ had been provided, such an answer was effectively discounted by way of appeal to the Supreme Court combined with a stay of the Constitutional Court’s decision.

Such a position would not have been so problematic if, at the Supreme Court, the definitive determinations of those queries were forthcoming. Unfortunately, more often than not, it appears that the Supreme Court is the place where constitutional questions go to be buried, rather than settled.

Taking the financial year 2023/2024 again, the Supreme Court only determined 3 constitutional cases, leaving a total of 29 such cases pending (see page 28 of the above-quoted Report). In other words, in that period, the Supreme Court determined only 3 Kabaziguruka-type cases, with another 29 ‘Kabazigurukas’ remaining without resolution.

This reality – of delayed justice as a norm rather than an exception in the Ugandan judiciary – is borne out even by a consideration of the Kabaziguruka case record itself. The matter was filed in 2016, determined by the Constitutional Court in July 2021(after five years), and the appeal from that 2021 decision finally determined in 2025.

Are we to believe that the delay at the Constitutional Court is similarly attributable to the ‘biblical plagues’ which appear to have afflicted the Supreme Court?

Unfortunately, there are real world consequences to this delayed justice. A good insight into these was recently provided by the Ugandan civil society group – Agora – through its Uganda Prisons Exhibition. According to a summary of the Exhibition published by Agora: ‘[a]lmost half of Uganda’s prison population of 78,057 are on remand with some people on remand for over 15 years.’

A particularly egregious case highlighted in the summary, and quoting findings by the Human Rights Committee of the Uganda Parliament, is that of Alfred Byamukama, who has spent 28 years on remand. Can this situation also be explained by floods and fires at the various court premises?

The effect of judicial delay – and the depth of the judicial crisis undeniably exposes – is even more pernicious when one has regard to doctrine of prospective annulment broached by various Justices of the Supreme Court in Kabaziguruka the essential effect of which is to suggest that the pronouncement of unconstitutionality (especially with respect to criminal matters) only operates going forward and not backwards.

This is a separate question which should seriously occupy the attention of the legal community, and Ugandans in general. There are, of course, several other issues which arise from the decision both in terms of its content and the response to it (including the response from the army and the President). And no doubt Ugandans will over the next days, weeks, months and years discuss these.

For today, however, it is important that the Supreme Court be reminded that from the Supreme Court, supreme answers are to be expected, delivered at supreme speed and with supreme efficiency. Ugandans, should not be content with any less. It follows that, as a starting point, we must continue to put the court to task to deliver the other several ‘Kabazigurukas’ pending before it – especially given the idea of the largely prospective effect of annulments.

Put simply, for this column at least, the Judiciary of Uganda remains very much on trial.

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