The past four columns in this series have analyzed the roots of the contemporary crisis in the Ugandan judiciary, from their problematic foundations in the 1902 Order-in-Council to the more recent manifestations of this systemic collapse.
In the column last week, we suggested that there were four main reasons why the judiciary has failed to live up to the promise – in Chapter Eight of the 1995 Constitution – of a truly independent bench, that is to say: i) challenges within the text and design of the Constitution itself; ii) parliamentary inaction; iii) opportunities missed by the courts themselves; and iv) the political context of Uganda.
We dealt with the first three. Today, we handle the fourth factor. The judiciary was meant to act as a check on executive and parliamentary power. However, this could only work where the executive and parliamentary branches were periodically replaced, allowing for their relative strength to be tempered by the stability of the judiciary.
This is because, by its very nature, the judiciary is the weakest of the three branches of government. In his famous 1748 book, ‘The Spirit of Laws’, the French political philosopher Baron de Montesquieu described judicial power as being ‘next to nothing’ as compared to the power of the executive and parliament.
The inherent weakness of the judicial branch was similarly elaborated by Alexander Hamilton, one of the Founding Fathers of the American political system. In the Federalist No.78, he observed that: ‘Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
The Executive not only dispenses the honours, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.
It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.’ This explains the unique safeguards accorded to judiciaries under most constitutional arrangements, including assurance of security of tenure, protection from alteration of terms of service to their detriment and so on.
Judges are specially protected under the Constitution, so that they can in turn protect and defend the Constitution – from abuse by the Executive, Parliament and occasionally even the people themselves. The Courts, not being themselves subject to the vicissitudes of electoral democracy, are theoretically better able to protect and safeguard the broader principles and values of the constitutional order – should push come to shove.
At the same time, the longevity and stability of the judiciary – relative to the Executive and Parliament – is also supposed to allow various political constituencies to shape the character of the judiciary. As various political parties acquire (and lose) power, their judicial appointments would conceivably reflect their various visions for the nature of the country’s governance, with the result that the judiciary would look somewhat like the diverse political communities it was meant to both serve and check.
This would increase the democratic legitimacy of the judiciary and indeed make it better suited to perform the role envisaged for it under Article 126 (1) of the Constitution, that is to exercise judicial power in the name of the people and in accordance with their norms, values and aspirations. This, in broad strokes, is the political theory behind the structure of the separation of powers – and checks and balances – under the 1995 Constitution.
And it is this system that Museveni – using both the sword and the purse – has completely undermined since 1995. In 2005, with both financial inducement and military intimidation he effected the removal of the first important limit to an imperial presidency – term limits (under Article 105 (2)) – leaving room open for him to rule indefinitely.
Then in 2017, again using both force (intrusion into the parliamentary chamber by security operatives) and an appeal to the self-interest of members of parliament (a purported two-year extension of their own mandate), Museveni prevailed upon the Parliament to remove the age- limit (under Article 102 (b)).
In these two fundamental breaches, some of the most basic and fundamental pillars of the 1995 Constitution were demolished. The Constitution had vested significant authority in the office of the President in the expectation that the holder of that office would periodically change.
Instead, the holder of that office – who came to power in 1986 by force of arms, and who superintended the making of the 1995 Constitution itself – obstinately refused to go. In so doing, he bent the Constitution out of shape, almost beyond recognition – and effectively replaced the Constitution with himself as the supreme law of the land.
The result is that Museveni has achieved what no other leader of Uganda (whether in the colonial period or since independence) was able to: be directly responsible for the appointment of every single serving High Court Judge, and Justice of the Court of Appeal and Supreme Court.
He has also appointed every Chief Justice and Deputy Chief Justice since 1986, and every Principal Judge and Chief Registrar since 1995. As might be expected, with that ever-increasing power, has come ever-increasing contempt for the courts.
In June 2004, for instance, when the Constitutional Court dared to invalidate the Referendum (Political Systems) Act of 2000 he noted that: ‘the major work for the judges is to settle chicken and goat theft cases but not determining the country’s destiny’.
Similarly, in March 2007, when a High Court Judge granted bail to persons suspected of rebels with the Peoples’ Redemption Army (PRA), the court premises were surrounded by a shadowy paramilitary outfit – the so- called ‘black mamba’ – who physically prevented the release of those persons.
Then, when in 2013 Chief Justice Benjamin Odoki reached the mandatory age of retirement, Museveni nonetheless purported to ‘re-appoint’ him as Chief Justice, an anomaly which continued until August 2014, when the Constitutional Court in Hon. Gerald Kafureeka Karuhanga v Attorney General held such appointment to be null and void. Evidently, the President had attempted to have and to hold, for better or for worse, his very own Chief Justice: directly beholden to him for his irregularly occupied office.
And the attacks – and contempt – have not ended. The case of Supreme Court Justice Dr Esther Mayambala Kisaakye, whose troubles appear to have started in the course of the determination of the Hon. Robert Kyagulanyi’s petition challenging the results of the 2021 presidential elections, is one example.
She seems to have been left in a strange legal limbo – with the proverbial sword of Damocles hanging over her head: on the one hand not being subject to the logical constitutional procedure for removal of a judge (the appointment of a special tribunal under Article 144), and on the other, not being allowed to retire.
The clear message (or warning) to judicial officers appears to be that no one is safe from intimidation and extra-legal (or quasi-administrative) sanction – not even a Justice of the Supreme Court. Another instance of presidential contempt for the judicial branch was evident in the May 2022 appointment of sixteen High Court Judges on an ‘acting basis’ for two years.
Fifteen of these were recently ‘confirmed’, with the fate of one – Judge Faridah Bukirwa – remaining hanging. Again, the trend appears to signal a return to the time when Judges held office ‘during the pleasure’ of His Majesty, the King of the United Kingdom (whose position in Uganda the President now apparently occupies).
These are some of the ways in which the promise of an independent judiciary under Chapter Eight of the Constitution died or – more appropriately – was killed. To quote from TS Eliot’s 1925 poem, ‘The Hollow Men’: ‘This is the way the world ends/Not with a bang but a whimper’.
Almost thirty years after the adoption of the 1995 Constitution, it is clear that the death of judicial independence has been achieved by a thousand cuts rather than by a single blow.
We have Lazarus with us. The (wo)man is dead. And we can weep, and leave it at that. Or we can attempt a resurrection. This resurrection cannot be by doing ‘business as usual’. It is sad, for instance, to see competent and dignified lawyers (be they legal practitioners, academics, civil servants and so on) lobbying for judicial office by appealing to relatives, friends and in-laws of the First Family – in the full knowledge that it is there, rather than in the Judicial Service Commission, that the real decisions are made.
Can such judicial officers – procured through such a process – be trusted to defend the Constitution?
But perhaps we can even ask a more primary – and fundamental question: If, as is evidently the case, the Presidency now suffers from a deep democratic deficit (a polite way to say that he is an autocrat, a military dictator holding office through increasingly incredible elections), can such a person pass on ‘good title’ to judicial office? Can judicial power granted by an autocrat be exercised democratically?
Every law student is quickly introduced, in their first year, to the principle in contract law: Nemo dat quod non habet – ‘one cannot pass on better title than they have’. We cannot really have a people-centred judiciary when it is appointed by a President whose continued stay in power has been at the cost of the negation of all constitutional safeguards originally aimed at creating and sustaining a constitutional democracy.
What is to be done then? The current abnormal times in which we find ourselves require abnormal courage and sacrifice. Lawyers, judges and citizens must be able to find within themselves the courage to go without certain material comforts (or offices) – or to endure certain decidedly uncomfortable situations (including imprisonment, exile or even death) – in order to win for ourselves, our children and grandchildren the dignity of full and equal citizenship in this small space of the earth to which we can lay claim.
If we choose to do so, it shall not be without precedent. This Friday (20th September), the Ugandan judiciary will rightly remember the life
of Chief Justice Benedicto Kiwanuka – now recognized for his heroic defence of constitutional values in the face of Idi Amin’s brutality.
However, we collectively dishonour the life and sacrifice of Benedicto Kiwanuka – and, worse, mock it – if we only pay lip service to the values for which he lived, and died. We shall end here the chronological description of the ‘death and death’ of the Judiciary in Uganda, from 1902 to present.
Nonetheless, our commentary on the crisis afflicting this important branch will necessarily continue even as we address other contemporary questions of constitutional import in the weeks and months ahead.
It is partly in this spirit that we shall, next week, reflect on the ongoing campaigns for Uganda Law Society (ULS) leadership – particularly the race for the presidency of the society – and the direct link between this struggle and the broader struggle for freedom and genuine democracy in Uganda.
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.
