Dear reader, first of all, apologies for the absence of this column last week.
I had to choose between working on addressing the crisis in the judiciary, and writing about it. Given the urgency of certain developments last week, the first imperative (working) necessarily took precedence over the latter (writing).
It seems that, with every passing day, the clear need for systemic introspection – and wide-ranging reform – in the judicial branch, becomes even more evident. Nonetheless, before we move on to a full-scale description of the nature and manifestations of the crisis that the Ugandan judiciary currently finds itself in, we must conclude our examination of its historical antecedents.
The other week, we left off at the critical moment of 1966, in which Obote had overthrown the 1962 Constitution and the Judiciary (led by the Nigerian Chief Justice Egbert Udo Udoma) had provided legal legitimacy for this usurpation by the invocation of the ‘Kelsen theory’. The 1966 moment effectively established the Udo Udoma Court as Obote’s Court – available to do his bidding.
Having aided and abetted him in committing the ultimate sin against democracy, there was little else that Court would – going forward – be unwilling or unable to do in facilitating or justifying any further violations of constitutional values and principles. Obote now had his own Constitution (first the 1966 one and later the 1967 document), and his very own Court.
In time, Obote would go on to suffer the same fate he had meted out on Muteesa II in 1966, when he was himself overthrown by Idi Amin on 25th January 1971. Having legitimized the unconstitutional change of government in 1966, how could Obote’s Court now protest against another application of Obote’s own methods?
In the event, the judiciary was not required to pronounce itself on the legality of the 1971 coup, as no one ever challenged it in court. In fact, Amin had gone much further than Obote himself had in 1966. Through Legal Notice No.1 of 1971, Amin suspended critical parts of Obote’s 1967 Constitution, including the provisions for the supremacy of the Constitution; amendment of the Constitution; legislative powers and others.
While Obote had bothered with Constitutions and Parliament, Idi Amin effectively did away with both. Effectively, Idi Amin became the supreme law; and – in law and in fact – he became the Parliament of Uganda. The one branch of government Amin initially left more or less undisturbed was the judiciary.
Indeed, it was Amin who gave the country our first Ugandan Chief Justice – Benedicto Kiwanuka – who was appointed on 27th June 1971 (having been among the 55 political detainees released by Amin following his coup). However, Amin’s honeymoon with the Judiciary did not last long.
Truth be told, it could not have lasted long. One cannot suspend the Constitution, and Parliament, and then purport to respect the integrity and independence of the Judiciary. One of the attacks by Amin on the Judiciary came by way of the Detention (Prescription of Time Limit) Decree No.7 of 1971, which permitted detention of certain persons without trial for up to 6 months.
Amin also pronounced the Armed Forces (Power of Arrest) Decree No.13 of 1971 which gave soldiers extensive powers of arrest. The Decree provided that: ‘a soldier or a prison officer may, without an order from a court and without a warrant, arrest any person whom he suspects on reasonable grounds of having committed or being about to commit any of the following offences: an offence against the person; an offence relating to property, or malicious injury to property’.
This power was extended by Decree No.26 of 1972 (which was issued in October 1972 but was stated to apply retrospectively). In addition, on 8th May 1972, Amin issued the Proceedings Against the Government (Protection) Decree No.8 of 1972, which essentially provided his regime from any actions, among other things: ‘done for the purpose of maintaining public order or public security in any part of Uganda, or for the defence of Uganda or for the enforcement of discipline or law and order or in respect or anything relating to, consequent upon or incidental to any of those purposes’.
To its credit, the Ugandan Judiciary in this darkest of times attempted to push back against Amin’s excesses and assaults upon individual freedoms and liberties. One of the bravest voices in this regard was that of a British Judge Russell, in the 1971 case of Efulaimu Bukenya v Attorney General.
Efulaimu Bukenya claimed damages for injuries he sustained when he was shot at by a soldier in plain clothes. In finding for the plaintiff, Judge Russell noted that: ‘There appeared to be a widespread but mistaken belief that the police, soldiers or private citizens were lawfully entitled to arrest persons whom they reasonably suspect of having committed or being about to commit designated offences by shooting them in cold blood. Such was unlawful …’ Judge Russell’s views were a direct challenge to the patently unconstitutional and unconscionable provisions of the Armed Forces (Power of Arrest) Decree, which had created an air of impunity – emboldening security officers and private persons in equal measure to have a callous disregard for human life and liberty.
The defence of human rights and liberties was also bravely championed by Chief Justice Benedicto Kiwanuka in his role as the head of the judiciary and guardian of whatever had been left of the constitution and law in Uganda. Indeed, as a May 1974 Report issued by the International Commission of Jurists recounts, Chief Justice Kiwanuka had been steadfast particularly in defending the right to liberty.
On 28th August 1972, for instance, in granting bail to one accused person, Kiwanuka observed as follows: ‘As I have said in many cases, the police should wake up and start to realize the importance of a citizen’s freedom. Men should not be held in custody longer than is absolutely necessary.’
It is possible that Chief Justice Kiwanuka’s keen appreciation of the importance of human rights, including the right to bail, was informed by the flagrant violation of his own rights – including his own politically motivated detention by Obote in 1969 which had lasted until Amin’s 1971 coup.
Chief Justice Kiwanuka would continue his defence of the fundamental rights of citizens – and indeed all persons in Uganda – with his notable ruling on 8th September 1972, in which he granted an application for the writ of habeas corpus in respect of a British businessman, Donald Stewart, who had been detained on spurious charges.
In granting the application, Kiwanuka observed that: ‘There was a prima facie case of wrongful detention that is required in a case of this kind’ and that ‘The military forces of this country have no powers of arrest of any kind whatsoever’. Like Judge Russell, Chief Justice Kiwanuka’s remarks were a clear pushback against Amin’s draconian Armed Forces (Power of Arrest) Decree of 1971.
These words by Chief Justice Kiwanuka are timeless. His courage in Uganda’s darkest post-independence hour, when such courage was sorely required, will continue to stand as a shining example of what a Judge – let alone a Chief Justice – is supposed to be. It brings to mind the equally timeless and powerful dissenting judgment by Lord Atkin in the famous 1942 English case of Liversidge v Anderson in which he observed that: ‘In this country, amid the clash of arms, the laws are not silent.
They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty … that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law …
I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.’ Lord Atkin’s allusion to the clash of arms was a reference to, and a rejection of, an old Latin maxim: inter arma enim silent leges – translated as ‘For among arms, the laws are silent’.
The examples of Chief Justice Kiwanuka, and Judge Russell, are powerful reminders that the law need not, and must not, be silent in the face of military arms. In can, and must, speak. But it can only speak if given voice by those – particularly Judges – whose role it is to articulate the law.
As we are all aware, Chief Justice Benedicto Kiwanuka paid the ultimate price for his determined defence of the rule of law. On 21st September 1972, just thirteen days after his ruling in the Donald Stewart habeas corpus application, Kiwanuka was dragged from his chambers at the High Court by three security officers, forced into a light blue Peugeot, and driven off to his death.
The general consensus is that he was killed on 22nd September 1972, becoming the arguably the first judicio-legal martyr in our country’s post-independent history. Kiwanuka would be succeeded in his role as Chief Justice by Samuel William Wako Wambuzi. Reflecting on why and how he accepted the bloodied position of Chief Justice when its most recent occupant had met such a gruesome end, Chief Justice Wambuzi observes at page 4 of his 2014 autobiography entitled The odyssey of a judicial career in precarious time: My trials and triumphs as a three-time chief justice of uganda that: ‘I felt extremely uncomfortable and insecure, but I had to carry on. I believed that my insurance policy was the unlikelihood of a repetition of the incident, an obviously false hope, but there was nothing else to hang on to.’
Following Kiwanuka’s martyrdom, Amin’s assault on the judiciary continued almost unabated. In the first place, in June 1973, he issued the Trial by Military Tribunal Decree No.12 of 1973 which allowed the military to exercise judicial power over persons (including civilians) whose conduct was ‘calculated to intimidate or alarm members of the public or to bring the military under contempt or disrepute’.
Any ‘appeal’ from such tribunal would be heard by Uganda Defence Council, with Amin having the final say in any such ‘trial’. Later, on 25th March 1975, he issued the Economic Crimes Tribunal Decree under which certain ‘economic crimes’ as ‘over-charging’, ‘hoarding’, ‘smuggling’, ‘illegal currency sales’ and others were similarly triable by military tribunals, and with persons convicted liable to suffer death.
Even then, the Judges of this time continued to demonstrate remarkable resilience in the face of brutish and crude military power. The period would see the martyrdom of another Judge, Raphael Sebugwawo Amooti, the President of the Industrial Court, who was killed by State Research Bureau officers on 13th March 1978.
Like Judge Russell and Chief Justice Kiwanuka, Judge Sebugwawo had stayed true to his judicial oath, and had delivered judgments in industrial matters even where these affected the business interests of security officers. The 1971-1979 period is arguably the darkest one in our country’s history – including with respect to the integrity and independence of the judicial branch of government.
At the same time, it also presents some of the most shining examples of judicial courage and resilience in the face of military arms. The Judiciary, led by Chief Justice Benedicto Kiwanuka, was true to the Latin maxim: Fiat justitia, ruat caelum – ‘let justice be done, though the heavens fall’. Faced with the crisis of a military onslaught, the Judiciary did not have a crisis of courage.
Is the current crisis in the Judiciary of Uganda – led by Chief Justice Alfonse Chigamoy Owiny-Dollo – primarily one of courage? Or are there other systemic factors at play? We examine this issue in detail next week.
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.
