The first two columns in this series identified the ‘original sin’ of the founding of Uganda’s judiciary – as an appendage of colonial power, rather than as a genuine safeguard for constitutional values, in place to check executive and parliamentary power.
Indeed, there was no ‘parliament’ to check, since from 1902 to 1920 the Head of State – the Commissioner – was empowered under Article 12 of the 1902 Order-in-Council to make law for the ‘peace, order and good government’ of the Uganda Protectorate.
The people of Uganda could expect little justice from such a court and, by and large, received only such morsels of accidental relief that might be expected from a bench (styled ‘His Majesty’s High Court of Uganda’ under Article 15 of the 1902 Order-in- Council) so constructed.
The hope for a transformative judiciary in the post-independence period would be quickly dashed by the 1966 decision in Ex Parte Matovu in which the judges in the ‘new Uganda’ showed themselves to be just as willing to be used to serve the ends of autocratic (and military) power as the pre-1962 judges had been in the service of colonial power.
While, before that decision, the Court may have been described as the Court of Uganda, when the judges rose after reading that decision, the Court was well and truly Obote I’s Court. And so it would remain until January 1971, when Amin took the reins of executive power in Uganda.
As we pointed out, from 1971-1979, Amin did all in his power to undermine and subordinate judicial power, although it proved to be resilient at critical junctions. Amin appointed Uganda’s first Ugandan Chief Justice – Benedicto Kiwanuka – and also became the first Ugandan Head of State to kill a Chief Justice (or judge for that matter).
As we are all aware, he would, in addition to the hundreds of thousands of other Ugandans killed, also have the dubious distinction of being the first Ugandan President to kill an Archbishop of the Church of Uganda, a Vice Chancellor of Makerere University and several other prominent public servants.
And yet, the dark period of Amin presents us with some possibilities as to what judiciaries (and Chief Justices) can and should do, in the face of overwhelming politico-military power. In the first place, it is extremely telling that while Amin was able to dispense with the entire parliament for the whole duration of his presidency, he found himself unable to do away with the judiciary. And so, he resorted to three main things.
First, intimidation of judges, as the murders of Chief Justice Benedicto Kiwanuka and Judge Raphael Sebugwawo Amooti demonstrated. Second, he passed legislation which limited access to courts and the remedies available therefrom.
Third, he gradually positioned military courts as a parallel mechanism to the ordinary court structure – and civilians increasingly found themselves facing soldiers purporting to be ‘Judges’. Nonetheless, in the face of these direct and indirect attacks, the judiciary of Uganda continued to try to execute its role in this difficult time.
And the example of Chief Justice Benedicto Kiwanuka (and that of other Judges like Russell and Judge Sebugwawo) continues to stand as an example of judicial courage and conviction in the protection of fundamental constitutional values.
When Amin’s government fell in 1979, the UNLF government under Yusuf Lule re-appointed Wambuzi as Chief Justice (replacing Chief Justice Mohammed Saied who occupied the role in 1975 as Wambuzi took up the role of President of the Court of Appeal for East Africa).
Wambuzi’s second stint as Chief Justice would not last long, however. In the run up to the sham elections of 1980, the Chairperson of the ruling Military Commission, Paulo Muwanga, appointed a UPC stalwart, George Japheth Masika, as the new Chief Justice – technically displacing Wambuzi without formally dismissing him.
Referring to this incident in his 2014 autobiography titled The odyssey of a judicial career in precarious time: My trials and triumphs as a three-time chief justice of uganda Wambuzi observes as follows: ‘I spoke to Muwanga who was head of the Military Commission and asked him what was happening.
He appeared to feel sorry and said he did not know when he signed the law that I would thereby leave office. He advised me to speak to “Milton”’ (at p.134). Of course, the ‘Milton’ in question was Obote, who was plainly orchestrating the sequence of events necessary for his second-coming.
In the event, it was Chief Justice Masika who swore in Obote as the new President following the clearly rigged elections of 1980. Evidently, Obote had long appreciated the need to have his own Court once again, something he achieved with the judiciary led by George Masika. According to a March 1989 report by Amnesty International titled Uganda: The human rights record 1986-1989, ‘… President Obote’s Chief Justice, George Masika, was a political appointee who scarcely bothered to hide his partiality.
In 1984 he wrote to the President recommending that all the leaders of the DP should be detained’ (at p.17). In the end, the fates of these two men would prove to be so interwoven that when Obote was overthrown in July 1985, Masika followed him to exile. Essentially, Chief Justice Masika came and went with Obote II.
There is no record of any particularly notable decision he made, nor of any critical institutional steps he took in the promotion of the rule of law and good governance in Uganda. Clearly, from 1980 to 1985 when Obote fell, the Court was Obote II’s Court.
In the manner of things, the Tito Okello regime which replaced Obote appointed its own Chief Justice, a British Expatriate Peter Allen (who had first come to Uganda in 1955 to join the colonial police force, before turning to a legal career and rising up the ranks of the judiciary).
Thus it was that when Museveni and his NRM/A captured power in January 1986, it was Chief Justice Allen who swore in the new president on the steps of parliament.
By this time, the trend of regime-Chief Justices and regime-Courts had been so clearly established that it was only to be expected that Museveni’s focus would soon be trained upon control of the judiciary.
Following the expiry of Chief Justice Allen’s temporal appointment in 1986, Museveni declined to renew it, choosing instead to re-appoint Wambuzi as Chief Justice (making him the only person who can claim the distinction of having occupied that office three times under three different regimes).
However, Museveni remained uneasy with the judiciary he was forced to work with. Indeed, for a long time after 1986, one of his most frequent and persistent complaints was that while the NRM was pursuing its ‘revolution’ through the executive and legislative branches, their programme was being resisted – and perhaps even actively undermined – by what he termed ‘Obote Judges’.
This would remain a major challenge for Museveni, one which he eventually solved through ensuring that he manipulated the political system to outlast and compromise all democratic structures and mechanisms for restraint. There were two main phases in Museveni’s subordination of the judiciary: i) the pre-1995 period; and ii) the post-1995 period.
In the 1986-1995 period, a number of things happened. The very first was the issuance of Legal Notice No.1 of 1986 – an action which was clearly advised by lawyers and which made Museveni (like Amin before him) a direct descendant and beneficiary of the 1966 Ex Parte Matovu decision, rendered by the Obote I Court.
The Legal Notice announced Museveni as having taken over power forcefully – and as exercising the fruits of that successful revolution – in terms of the ‘Kelsen theory’ upheld by the 1966 decision. Under it, Museveni chose which parts of Obote’s 1967 Constitution would continue in operation (executive, legislative and judicial power; parts of the bill of rights and other provisions) and which ones (elections, political party activity and others) would not.
Museveni evidently inherited Obote’s Constitution, Obote’s methods – and the core of Obote’s Court. Museveni then appointed one of the Judges he had ‘inherited’– Judge Arthur Haggai Oder – to head a Commission of Inquiry into human rights violations in the country from 9th October 1962 to 25th January 1986.
This signaled to the judges that he would work with them to advance the rule of law in Uganda. At the same time, as the temporal scope of the Commission’s mandate indicated Museveni was also setting a limit in terms of the extent to which judges could exercise real oversight over the political power of the NRM.
Next, in 1988, Museveni appointed a twenty-one-member Constitutional Commission, headed by another one of the Judges he had ‘inherited’– Judge Benjamin Josses Odoki – to enquire into a new Constitution for Uganda.
As Aili Mari Tripp has observed in ‘The politics of constitution making in Uganda’, a book chapter in LE Miller (ed) (2010) Framing the State in times of transition: Case studies in constitution making: ‘… almost to a person, the body was made up of strong supporters of the Movement system.
It included both the political commissar of the NRM and his counterpart in the National Resistance Army (NRA). Not one member of the commission openly opposed the Movement system’ (at p.161). It was a Commission the contents of whose ‘Draft Constitution’ might have been predicted from the start of its work.
Then, and directly connected to the 1986 Kelsenian Legal Notice, in 1989 the NRC unilaterally extended its term (and that of the NRM) by an additional four years. This was a bold betrayal of the promise made by Museveni and the NRM in 1986 that they only required a three-year ‘transitional period’ within which to restore democracy to Uganda.
The extension relied on the convenient excuse that the Constitutional Commission required sufficient time to complete its work. And so, Judge Benjamin Odoki was – knowingly or unwittingly – useful to Museveni in two ways.
First, he headed and thereby sanitized, a Commission whose very structure could only result in a text skewed, in fundamental ways, to ensure that the core interests of the NRM (especially the proscription of political party activity in the short and medium term) were achieved.
Secondly, and here there was perhaps something of a coincidence between his own (and the Commission’s) interests and Museveni’s, the Commission he headed provided the immediate excuse for the undemocratic extension of the NRC term.
It was in this context that elections to the Constituent Assembly (CA) were held in 1994, under conditions guaranteed to ensure NRM-leading delegates were returned (with political parties banned, and all candidates only being permitted to conduct campaigns at rallies convened by the government).
And it was this CA which then ‘delivered’ the 1995 Constitution. Indeed, notwithstanding the language of the 1995 Constitution, whose Preamble claims that it was made by ‘We the People of Uganda’, by all indications that document was the product of the same machinations which had informed the structure of the 1988 Constitutional Commission; ensured the undemocratic extension of the NRC in 1989; and tightly controlled both the elections to the CA and the subsequent debates in that body.
Museveni finally had, like Obote before him, his very own Constitution. What remained was for him to acquire his own Court. In the column next week, we shall examine exactly how, in the post-1995 phase, Obote’s Court (and ‘His Majesty’s High Court’ before that) was transformed into what it now is – Museveni’s Court.
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