Uganda: The Crisis in the Ugandan Judiciary

I write today's column mainly with young Ugandans (the Gen Zs) in mind - those who are protesting corruption and bad governance in Uganda.

My fellow citizens, you organized a march to parliament on 23rd July 2024, and expected that you would be able to freely and peacefully assemble and demonstrate - a right guaranteed under Article 29 of the 1995 Constitutional (not to mention several international and regional human rights instruments).

Instead, many of you found yourselves arrested, charged with such strange and absurd offences as being 'idle and disorderly', 'common nuisance' and even 'attempted hate speech'. Even at that point, many of you reasonably expected that the judicial officers before whom you would be brought would quickly see through the charade and allow you to promptly regain your freedom.

Instead, you found yourselves remanded for seven or more days. Even then, many of you surely thought that the applications for bail would be more or less automatic, consistent with your right to liberty (under Article 23 of the Constitution) and the fundamental presumption of innocence (enshrined in Article 28 (3)(a) of the same Constitution).

Instead, you, your friends and family had another rough introduction to the Ugandan judicial system, as you found yourselves having to literally beg for and earn your freedom - including through presenting sureties who had to be deemed 'substantial' (incidentally one State attorney challenged some of your parents' capacity to act as such on the basis that they were too old, notwithstanding the advanced - and rapidly further advancing - age of the President!), posting bail of various amounts (cash and non-cash) and other indignities.

I would like to attempt to explain to you - and your friends and family (especially siblings and parents) - that none of these things are normal (or even constitutional), although there has been a longstanding attempt to normalize them. It is important that you appreciate this so that you realize the scale of the work to be done.

It is not only Parliament which is in shambles. The judiciary too is in a severely dilapidated state (never mind the shiny new court buildings which are increasingly paraded as symbols of a 'new judiciary'). The truth of the matter is that the judiciary of Uganda is in very deep crisis.

It is important to understand the origin, nature and extent this crisis - as a first means of devising real means of decisively confronting it.

Today, I will describe the historical origins of this crisis, as a means of grounding the discussion that will follow. The judiciary, like many aspects of the Ugandan State, is rooted in colonialism.

It suffers the original sin of many of the other anti-people, anti-freedom, and anti- democratic features of that State. One of the earliest instruments which established colonial rule in Uganda - the 1902 Order- in-Council - also established the current format of the Ugandan judiciary.

Article 15 (1) of that Order-in-Council was to the effect that: '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.'

Dear gentle Gen Z reader, evidently, the Court thus established was not one instituted for the benefit of the Ugandans who came before you. As its name suggested, it was His Majesty's court - to serve the aims and purposes of the sovereign authority whose name it bore.

It would also necessarily be staffed at the highest levels by agents of empire - as a listing of the Chief Justices of the colonial period demonstrates: Sir William Morris Carter (1912 -1920); Charles James Griffin (1921-1932); Sidney Solomon Abrahams (1933-1934); John Harry Barclay Nihill (1935); Robert Evans Hall (1935-1937); Norman Whitley (1937-1947); David Edwards (1947-1952); John Bowes Griffin (1952-1956) and Audley McKisack (1956- 1962).

On the other hand, as the cases of the time memorialize, the persons who sought justice from those courts were invariably African Ugandans: Katozi; Kahizi; Nasanairi Kibuka; Yowasi Pailo; Mwenge; Migadde; Besweri Kiwanuka; Mukwaba; Mukubira; Godfrey Binaisa; Daudi Ndibarema and others. The Court was not for the people of Uganda, but rather was established for imperial purposes. In the service of power and control, rather than freedom and liberty.

This would be evident in the kind of 'justice' that flowed from these courts. Aside from the few early cases when the colonial State was still struggling to get established, most the cases of the period reflect a rigid adherence to and defence of colonial power.

This was, for instance, evident in the 1937 case of R v Besweri Kiwanuka which concerned the terms of the Buganda Agreement vis-à-vis the text of the 1902 Order-in-Council. In finding that the Buganda Agreement could not prevail over the Order-in-Council, the High Court

invoked (or more accurately conjured up) the legal doctrine of the 'Act of State'.

According to the Court, the proclamation of the Order-in-Council had been a manifestation of Her Majesty's jurisdiction over Uganda, which exercise of jurisdiction (or power) could not be challenged in any British Court. Several aspects of this case are telling. First, the identification of law as power.

The Order-in-Council was a manifestation of power, which power could not be legally challenged. Secondly, the admission of the 'ownership' or identity of the Court - as a British court, albeit one exercising power in Uganda. Like yourselves in the aftermath of the 23rd July 2024 march, Besweri Kiwanuka found himself at a mercy of a court exercising power over him, without being accountable to him.

It was an alien court, with alien judges, exercising alien law and inevitably producing alien 'justice'. A similar approach would be adopted by the High Court in the 1954 case of Mukabwa and Others v Mukubira and Others. This was probably one of the most important challenges to power ever presented by Africans in the colonial period.

It essentially questioned the legality of the deportation of Kabaka Muteesa II by Governor Cohen in 1953. As in the Besweri case, the plaintiffs in Mukwaba sought to rely on the terms of the 1900 Buganda Agreement - to essentially hold the British to the terms of a document they had negotiated and signed. Unfortunately, but not unsurprisingly, the Court again invoked the 'Act of State' doctrine to hold that the Agreement could not be relied on to constrain Her Majesty's power in and jurisdiction over the Uganda Protectorate (including the Buganda Kingdom).

Clearly, real justice (whether in terms of process or substance) could hardly be expected to come from such courts. As the Kenyan Constitutional lawyer and academic Yash Vyas would later observe: 'During the colonial era, the judiciary was an integral branch of the executive rather than an institution for the administration of justice. The colonial administration was mainly interested in the maintenance of law and order.

It had no respect for the independence of the judiciary or for the fundamental rights of the ruled. The judiciary was that part of the structure which enforced law and order. It was therefore identifiable as an upholder of colonial rule. To an average citizen, the judiciary, as an instrument of control of the executive power, lacked credibility and therefore enjoyed little respect.' (See Y Vyas 'Independence of the Judiciary: A Third World Perspective' 11 Third World Legal Studies (1992) 127 at 131)

This is precisely the kind of judiciary Uganda inherited at independence in 1962 - one which had been an instrument or appendage of the executive branch, lacking legitimacy and enjoying very little trust or respect from the people over whom it exercised power. By 1963, Uganda would also have its first African Chief Justice - the Nigerian Sir Egbert Udo Udoma (following KG Bennet who acted in the role from 1962-1963).

The question at this point was: would the judiciary in post-independent Uganda prove any different from that experienced in the colonial period? The colonialist had formally gone - but had the structure of the State (including the judiciary) changed?

What followed 1962 was a brief honeymoon period, which only lasted until 1966 when, again as all Ugandans know, Obote used the army to attack Kabaka Muteesa II's palace, abolishing traditional institutions (and the 1962 Constitution which established them) and assuming full presidential power under first the 1966 'pigeon-hole' Constitution and later the 1967 Constitution.

In this critical moment came the first major test of the judiciary since independence, in the 1966 case of Uganda v Commissioner of Prisons, Ex Parte Matovu. The case essentially challenged the legality of Obote's 1966 Constitution. Unfortunately, as the courts had done during the colonial period, the High Court headed by Justice Udo Udoma found in favour the manifestation of power, rather than the defence of liberty, democracy and self-determination.

This time, however, instead of referring to the 'Act of State' doctrine, the Court invoked another equally power-leaning theory - the 'Kelsen theory' to justify the legalization of Obote's coup. Young Ugandans, do not be fooled by the high-sounding words: whether 'Act of State' or 'Kelsen' - all such phrases (and there are many other such phrases as we shall see next week) - are simply the means by which courts announce their cowardice or betray their complicity with raw power.

In Luganda, one would say 'bapondoose'. But you see, Judges (their 'Lordships') do not like to admit when they are being cowardly, duplicitous or servile. They find ways of covering this up in heavy legal jargon. Where necessary, several cases will be cited, with heavy footnotes.

Indeed, if a grave sounding Latin phrase can be found in some dusty legal text in some dark corner of the library, it will be duly invoked and solemnly pronounced. We have stopped the story in 1966 - having briefly looked at how courts (mis) behaved until that point.

Let us pick it up from there next week, when we assess the extent to which, if at all, the current judiciary - led by the Chief Justice His Lordship Alfonse Chigamoy Owiny-Dollo - has managed to effectively check executive (and parliamentary) power; to earn (and keep) credibility and legitimacy and to consequently enjoy the respect of the people of 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.

Uganda: The Crisis in the Ugandan Judiciary

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