On 15th February 2024, in an opinion published in New Vision entitled 'Why judiciary's independence is not absolute', the Minister of State for Lands, Hon. Sam Mayanja, himself a lawyer of several years' standing, proffered a number of interesting views on the nature and function of judicial power.
This followed similarly interesting views advanced on the same subject by the learned Attorney General, Hon. Kiryowa Kiwanuka, at the opening of the new law year, on 9th February 2024.
According to Hon. Mayanja, judicial independence is not absolute, being necessarily limited by, among other things, the terms of Articles 99 (executive authority) and 126 (popular norms and values) of the Constitution. Hon. Kiwanuka had similarly expressed the view that there was nothing inherently nefarious in the President expressing views to the judiciary on a matter of public concern - being, as he is, the Fountain of Honour under Article 98 of the Constitution.
It might come as a surprise to the readers of this column to learn that I agree, to some extent, with the views expressed by these two senior lawyers. Certainly, not only as a citizen himself, but also as the head of the Executive branch of government, the President has the right - and in some instances even the duty - to make his views known regarding the interpretation and application of the Constitution.
Indeed, Chapter Eight of the Constitution went to great lengths in articulating a vision of a Uganda in which judicial power would not only be democratized and popularized, but also demystified.
Under Article 126 (1) of the Constitution, for instance, we are informed that judicial power is derived from the people of Uganda and that it must be exercised in the name of the people and accordance with the law and the norms, values and aspirations of the people.
A no less important - although very much more overlooked - provision is that under Article 127 of the Constitution, which requires that Parliament make a law providing for the participation of the people in the administration of justice by the courts. Unfortunately, this dictate is yet to be implemented - close to three decades since the adoption of the Constitution.
At the same time, aspects of the remarks by Hon. Mayanja and Hon. Kiwanuka are problematic - and potentially misleading - in so far as they ignore certain critical aspects of Uganda's historical and contemporary governance.
In the first place, as Hon. Mayanja acknowledges, Uganda's judiciary was born in iniquity, in the wake of the colonial encounter. Article 15 (1) of the 1902 Order-in-Council (Uganda's first 'Constitution' for all practical purposes) provided as follows: 'There shall be a Court of Record styled "His Majesty's High Court of Uganda" ... with full jurisdiction, criminal and civil, over all persons and over all matters in Uganda.'
Thus, like other aspects of the colonial state, the judiciary at the time was specifically established to serve the ends of empire - a role it executed to the letter. This would see the creation and application of such nefarious doctrines as the 'Act of State', invoked in such cases as R v. Besweri Kiwanuka (1937) and Mukabwa & Others v Mukubira & Others (1954).
Basically, the doctrine proscribed courts from reviewing the legality of acts which were deemed to be manifestations of British imperial authority in colonial overseas territories. Following independence, those who took the reins of state power quickly realized that the machine they had inherited from the British worked better without the inconvenience of democratic constraints.
Thus, invariably, only a few years after 1962 (in 1966 to be exact) the Ugandan judiciary invoked the 'Kelsen' theory - in the Ex Parte Matovu case, to validate Obote's extra-constitutional change of power. In essence, the Court resurrected the spirit and effect of 'Act of State' doctrine.
Thus, the 'ghost of Ex Parte Matovu' (as baptised in Prof Oloka Onyango's famous 1996 article in the Makerere Law Journal) can be said to be an iteration of an older apparition, one which has continued to appear in various other guises over the years in Uganda - as the political question doctrine' (in the 2011 case of CEHURD and Others v Attorney General), the 'substantiality test' (invoked in all the presidential election petitions decided by the Supreme Court since the enactment of the 1995 Constitution) and others.
At the core of all these doctrines is the abdication of judicial power in the face of executive overreach. It was this trend which the 1995 Constitution sought to arrest, in terms of the various arrangements enacted for judicial independence - and the democratic exercise of judicial power.
And, if that Constitution had been allowed to work as designed, in its fullness, the vision of an independent judiciary (as contemplated particularly in Article 128) might have been realized. Nonetheless, as we are all aware, the Constitution is not self-executing. It relies, for its life and health, on the passion, dedicated and constant work of various 'nurses', 'doctors', 'nutritionists' and 'gym instructors'.
Key among these are actors within the Executive, Parliament, the Judiciary, the citizenry, civil society, the academia, members of the legal community and others. Of these, however, the most basic guarantors or underwriters of constitutional health are the citizens of Uganda. Indeed, Article 3 (4) of the Constitution places a duty upon all Ugandans to defend the Constitution (a duty reiterated in parts of Article 17 of the same Constitution).
Unfortunately, for a variety of reasons, many Ugandans have been either unable or unwilling to do the work necessary to protect even the most basic guarantees for democratic order and constitutional values (including judicial independence).
I cannot help but think, in this regard, of the description by Judge Lugakingira of the nature and attitude of Tanzanian citizens in the 1993 case of Christopher Mtikila v Attorney General: 'First of all, illiteracy is still rampant ... By reason of this illiteracy a greater part of the population is unaware of their rights, let alone how the same can be realised.
Secondly, Tanzanians are massively poor. Our ranking in the world on the basis of per capita income has persistently been the source of embarrassment ... By reason of limited resources the vast majority of our people cannot afford to engage lawyers even where they were aware of the infringement of their rights and the perversion of the Constitution.
Other factors could be listed but perhaps the most painful of all is that over the years since independence Tanzanians have developed a culture of apathy and silence. This, in large measure, is a product of institutionalized mono-party politics which in its repressive dimension, like detention without trial, supped up initiative and guts. The people found contentment in being receivers without being seekers.'
This description seems to apply with equal force to the citizens of Uganda in 2024. President Museveni's inordinately long stay in power has had a corrosive effect not just on the institutions of State and respect for the Constitution, but also on the self-confidence of citizens and various political actors.
One by one, the Executive (and in particular the Presidency) has slowly but surely swallowed, or is in the process of swallowing, other sites of legitimate power which were either designed, or could have been expected, to restrain executive power in a constitutional system of checks and balances.
The judiciary itself has, over time, become a part of this compromised system. Through no fault of their own, all the Judges and Justices of the courts of judicature in Uganda are bound up in the tragedy of Uganda's governance crisis in so far as, to a man and a woman - they are all appointed under an instrument signed by President Yoweri Kaguta Museveni.
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It was not meant to be like this. The Constitution had envisaged periodic changes in the holder of presidential power which would have allowed for periodic changes in the balance of executive and judicial power. Judges would naturally have felt compelled - even if out of pure self-interest, if for no other reason - to be circumspect in their interpretation and application of the law, in the knowledge of the transience of executive power.
Instead, President Museveni has turned himself into a permanent fixture in Statehouse with the attendant result that it is not inconceivable that a judicial officer might be tempted to ask themselves 'What does Mzee want?' when faced with the adjudication of cases, particularly those in which the Presidency has a strong interest or opinion.
After all, the reality is that, by a stroke of Mzee's pen, one can move from being a Magistrate or legal practitioner to a High Court Judge, from a High Court Judge to a Justice of the Court of Appeal/Constitutional Court and from the Court of Appeal to the Supreme Court (comment on the Judiciary Administration Act).
As such, while ordinarily there might be nothing intrinsically wrong with His Excellency Yoweri Kaguta Museveni expressing his thoughts on the judicial process (whether through letter, speech or other forum), the reality is that given Uganda's history and political context, such 'thoughts' may be understood to be in the nature of directives - with all the negative implications that portends.
In next week's column, we shall deal more concretely with attempts by individuals and groups (especially members of the legal community) to push back against erosion of judicial independence; and further address the response (or lack thereof) by the judicial branch in this regard.
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.
