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 Uganda's judiciary given that there were several pending cases that needed constitutional interpretation. It was expected to settle these matters expeditiously.
Things seemed to go smoothly until the court's 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 for state Defence, John Patrick Amama Mbabazi.
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.
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 court's decision was instrumental in the sense that it underscored the values of constitutional interpretation.
"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 Constitutional court can be the custodian of constitutionalism," he said.
Isaac Ssemakadde, a budding constitutional lawyer, told The Observer early this month that constitutional courts across the world are political.
"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 the process," he said.
As to whether Uganda's Constitutional court had an objective, Ladislaus Rwakafuuzi, a lawyer, told The Observer this was the case from inception.
"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 establishing values to guide the court," he said.
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 wanted, it was disbanded," he said.
In the wake of the Tinyefuza case, some lawyers who practiced before the court thereafter argue that the tone of the court changed.
Justice Kakuru, one of the practitioners then, argues that the following year, most of the cases that sought to challenge the constitutionality of offences of sedition and publication of false news got dismissed on technical objections by the state.
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 was that the provisions were unconstitutional.
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 court to be at a collision course with the executive.
"The case of Tinyefuza had serious political implications and its reception by the executive could have influenced the subsequent conduct of the court," he said.
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.
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 the case for not complying with the rule.
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 interpretation of the Constitution is required.
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.
POLITICAL QUESTION DOCTRINE (PQD)
Whereas practitioners before the court litigated against the technical objections, there remained one im- pediment; "the political question".
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, fearing to rub the executive the wrong way.
However, when the petitioners went to the Supreme court in 2002, it trashed the Constitutional court for abdicating its duty.
"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 a case concerned with maternal health care.
"Indeed, the matter never even reached a hearing on the merits because the court agreed with the attorney general's 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 Constitutional court had the jurisdiction to determine the case.
Although the court has had to internally deal with its own politics, the executive's politics has also clouded the court's work in various ways.
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 court's decisions, wherein the court was declaring provisions of old statutes as null and void, the executive proposed, "Excluding from the Constitutional court the power to nullify an expired statute."
Well, the executive-proposed amendment did not succeed, but even then, the executive has refused to support in the enforcement of the Constitutional court decisions.
In an article entitled "Human Rights and Public Interest Litigation In East Africa: A Bird's 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 remedies they stipulated."
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 harmony with the constitution.
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 that progressive minds are the minority.
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.
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.
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 dream of being the custodian of constitutionalism.
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 instances where lengthy judgments are needed.
"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 court's 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 judiciary's 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 should provide an explanation; failure do so should attract disciplinary action.
Secondly, all judicial officers with judgement pending beyond the standard should not be allowed to take on new cases until they have cleared all judgements pending."
When contacted last week, Chief Justice Katureebe said they have implemented the recommendations but he is yet to receive findings from the follow-up.
"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 are being made to fight it.
"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 that my office is concerned as well about the issue of backlog," he said.
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 that govern courts.
"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 amendments are effected so as to make the court efficient," Katureebe.
This article is a product of The Watchdog and was produced with support from the African Centre for Media Excellence (ACME).