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Delayed Justice, Part III
Delayed Justice, Part III
In this last of the three-part series on documenting the 22 years of the Constitutional court, SULAIMAN
KAKAIRE analyses the nature of reliefs the court has been granting and how politics has influenced the
court's work.
When the Constitutional court started its work in 1995, many litigants proclaimed it as a watershed moment
in Ugandas judiciary given that there were several pending cases that needed constitutional interpretation.
Things seemed to go smoothly until the courts biggest test came in 1997. Gen David Sejusa, then known
as Maj Gen Tinyefuza, sought to retire from the army after being appointed a presidential adviser.
However, the state objected to this, claiming he did not take the right procedure as guided by then minister
Gen Sejusa challenged the rejection of his resignation and on April 25, 1997, the Constitutional court
unanimously agreed with Sejusa that since the president had appointed him as a senior presidential
advisor on defence and internal affairs, he had been removed from the army and, as such, his resignation
process was not a matter of military law as argued by the attorney general.
(L-R) Justice Minister Kahinda Otafiire talks to Attorney General William Byaruhanga and Chief
Incidentally, current Chief Justice Bart Katureebe was the attorney general at the time and he appealed
the matter in the Supreme court, which agreed with him that the appointment of Sejusa as a presidential
advisor did not amount to him leaving the army as it was a mere secondment to serve in the civil service.
Justice Kenneth Kakuru argues that the Constitutional courts decision was instrumental in the sense that
There was a clear appreciation of the context of our Constitution of promoting individual freedoms and he
issue of interpreting the constitution in the liberal and purposive way with the aim of promoting of human
rights, he says.
Kakuru further notes that the decision explains the political context within which the court was born.
Our politics at the time was devoid of the culture of constitutionalism. So, it was thought that maybe the
Isaac Ssemakadde, a budding constitutional lawyer, told The Observer early this month that constitutional
What must be examined is the political objective of the court in question. For instance, the constitutional
court of the US is composed and behaves based on the politics of the day. In South Africa, their court
embarked on the political journey to do away with racial discrimination that had plagued their country. You
see, the democratisation process is not for the legislation or executive only but the court must be part of
As to whether Ugandas Constitutional court had an objective, Ladislaus Rwakafuuzi, a lawyer, told The
If you look at the way it went through its work at the beginning, it showed the court had a political objective
of promoting constitutional democracy. When you look at the Tinyefuza case, it shows courage and
However, he adds that the court got distracted from this objective because it was hijacked by the executive.
There was no political will on the part of the executive to let the court go about its work. This is why it took
President Museveni almost two years to substantively constitute the court. From 1995, there was almost
an ad hoc court, in essence, they adopted judges Patrick Tabaro and Stephen Egonda-Ntende to
tentatively compose the court. When they decided the Tinyefuza case contrary to what the executive
In the wake of the Tinyefuza case, some lawyers who practiced before the court thereafter argue that the
to challenge the constitutionality of offences of sedition and publication of false news got dismissed on
This started with the minority dissenting opinion of Justice Seth Manyindo in the case of Salvatori Abuki,
where Manyindo held that some sections of the Witchcraft Act were not unconstitutional. Majority opinion
After the Abuki case, subsequent cases filed in the Constitutional court were dismissed on technicalities.
Sixteen cases, some of them where I acted as the lawyer, where dismissed on funny grounds, Kakuru
said.
In hindsight, Kakuru said the abandonment of the liberal and purposive approach was due to the fear by
The case of Tinyefuza had serious political implications and its reception by the executive could have
Some of the technicalities upon which the court could refuse to grant reliefs sought include the 30-day
rule, political question doctrine, defects in pleadings and the jurisdiction on ground that the court is not an
enforcement court.
30-DAYS RULE
The 30-days rule was raised in the 1997 case of Uganda Journalists Safety Committee and Haruna Kanabi
vs Attorney General.
The petitioners sought for the nullification of some sections of the Penal Code Act, which provided for,
among other things, the offences of sedition and false news. Rule 4(1) of Legal Notice 4 required a petition
to be lodged within 30 days after the date of the breach complained of in the petition. The court dismissed
Subsequently, the 30-days rule was declared unconstitutional in the 2003 decision of Uganda Association
of Women Lawyers vs Attorney General. The court held that the aforesaid rule was inconsistent with the
Constitution to the extent that it imposes restrictions on the right of access to the Constitutional court.
For petitions that were rejected on grounds that the Constitutional court was not an enforcement court for
human rights, the Supreme court settled the 1998 matter of Ismail Serugo vs Kampala City Council and
Attorney General, by ruling that the Constitutional court had jurisdiction to enforce human rights where
Similarly, the court has clarified that the 1995 Constitution empowers any citizen to file a petition to enforce
constitutional provisions, regardless of the fact that they are directly or indirectly affected by the act
complained of.
Whereas practitioners before the court litigated against the technical objections, there remained one im-
In 2000, when Dr Paul Kawanga Ssemogerere and Zachary Olum challenged the constitutionality of the
Referendum and Other Provisions Act 1999 as well as having been passed by parliament without due
regard to the requirements of quorum and procedures laid down by the Constitution, the Constitutional
court shied away from determining the case on grounds that it had no jurisdiction to inquire into political
questions.
Observers say this was exposition of the fact that the court was scared of inquiring into political questions,
The Constitutional court is under a duty to make a declaration, one way or the other. In denying that they
had no jurisdiction to make a declaration on this petition, the learned majority justices of the Constitutional
court abdicated the function of that court, read the lead judgment by Prof George Wilson Kanyeihamba.
Even then, Prof Joe Oloka-Onyango, a constitutional law lecturer at Makerere University, observes that;
despite the impressive and fairly progressive jurisprudence that has developed over the past two
decades...the PQD lives on... the PQD was successfully upheld by the Constitutional court in the case of
CEHURD vs the Attorney General, Oloka observed during his professorial inaugural lecture in 2015.
In the CEHURD case, Oloka said the court declined to find the government in violation of its obligations in
Indeed, the matter never even reached a hearing on the merits because the court agreed with the attorney
generals preliminary objection that the case called upon the court to make a determination of a political
question, he said.
CEHURD successfully appealed against the decision and the Supreme court reiterated its view that the
POLITICAL CLOUDING
Although the court has had to internally deal with its own politics, the executives politics has also clouded
In 2005, during the process of amending the Constitution, the executive came up with the government
white paper containing comments and proposals on the report of the Constitutional Review Commission
and government proposals on constitutional issues not addressed in the Report of the Commission.
So, in an attempt to deal with the Constitutional courts decisions, wherein the court was declaring
provisions of old statutes as null and void, the executive proposed, Excluding from the Constitutional court
Well, the executive-proposed amendment did not succeed, but even then, the executive has refused to
In an article entitled Human Rights and Public Interest Litigation In East Africa: A Birds Eye View, Prof
Oloka-Onyango argues that although the voice of the judiciary has been growing in confidence, some of
its decisions do not have a marked impact, either because the state defied them and reintroduced
legislation to thwart the decision... or because the courts themselves were not very clear in terms of the
For instance, the executive and parliament have not amended provisions of the Penal Code Act, Divorce
Act and the Succession Act that have been declared unconstitutional to see that the pre-1995 laws are in
SELECTING OF PANELS
It also appears that the executive also controls the Constitutional court through the deputy chief justice
(DCJ). Since the Tinyefuza case, the DCJs who have acted in the court have always decided in line with
the executive side. In cases that are politically sensitive, the DCJ selects a panel that manifestly shows
For instance, when the NRM sought for the eviction of the then NRM rebel MPs from parliament, the panel
included; Justices Steven Kavuma, Augustine Nshimye, Faith Mwondha and Richard Buteera, whom the
MPs thought were pro-NRM. Remmy Kasule was the only member of the panel considered to be
progressive.
Justice Remmy Kasule had the only dissenting judgment in the rebel MPs case
The MPs; Theodore Ssekikubo, Wilfred Niwagaba, Barnabas Tinkasiimire and Muhammad Nsereko,
sought for the reconstitution of the panel but this was to no avail.
Indeed, the justices decided in favour of the NRM although their judgment was eventually reversed by the
Supreme court, which agreed with the dissenting opinion of Justice Kasule.
STRATEGIC RETHINKING
Weighing in on the journey of the court, most stakeholders The Observer interviewed for this special report
said there is need for strategic rethinking to inform the new direction of the court if it is to live up to its
On delayed justice and backlog, Justice Kakuru proposes that the court can also adopt the practice of
having standard judgements of three to four pages since most of the principles are settled, except in
It is the only way we can clear backlog in the court and also determine most of these cases expeditiously.
After all, most of the principles, upon which these cases are decided, are settled, he said.
Senior lawyer Peter Walubiri agrees with Kakuru and adds: alternatively, the courts rules should think of
making brief or summary judgments and give reasons later like it is the case with presidential election
petitions.
Other proposals include guaranteeing security of tenure for justices of the court.
On backlog, the judiciarys committee that investigated backlog in the court, recommended that the chief
justice should demand that: all judicial officers with cases whose judgement has been pending since
December 2015 should submit all their judgements to his office by April 30, 2017 beyond which they
Secondly, all judicial officers with judgement pending beyond the standard should not be allowed to take
When contacted last week, Chief Justice Katureebe said they have implemented the recommendations
I have tasked the committee to do the follow-up for me and next month they will be giving their findings,
he said.
JUDICIARY SPEAKS OUT
Whereas Katureebe acknowledges the backlog plaguing the court, he could not state what interventions
I cannot micro-manage. I cannot go there and fix the cases. The deputy chief justice is there; I have been
engaging him on that issue and I cannot share with you the contents of the correspondences but just know
When contacted, Justice Kavuma directed us to send him an email raising our questions and clarifications
sought in regard to this special report. He has not yet replied to the said email.
Nevertheless, Katureebe told us that as the judiciary, they are engaged in a process to amend the rules
We have an ongoing exercise to review the rules. Retired Justice Wilson Tsekooko is the lead consultant
on this project. All those suggestions proposed by the stakeholders are going to be considered so that
skakaire@obsserver.ug
This article is a product of The Watchdog and was produced with support from the African Centre for