When Courts Do Politics: Oloka-Onyango casts light on Judiciary and politics

With the Constitutional Court sitting in the eastern district of Mbale to determine a consolidated petition challenging a contentious Constitution Amendment Act, a book by seasoned legal scholar Prof Joe Oloka-Onyango has shed light on the relationship between courts and politics.
The Constitution Amendment Act being challenged in the Constitutional Court was passed by Parliament last year and, among other provisions, extends the term of Parliament by two more years, removes age limits for the President and also extends the presidential tenure from five to seven years.
In the book When Courts Do Politics, Prof Oloka-Onyango tackles some of the controversial issues that have dogged the Ugandan Judiciary over the years, ranging from the method of nomination and appointment of judges, separation of powers between the various arms of government and the evolution of courts of law to adjudicate in petitions challenging presidential elections.
The book was launched in Kampala last week.
Prof Oloka-Onyango handles the touchy issue of presidential elections challenged in courts, an area he says was previously “off-limits” for the courts but has since had the third arm of government sucked in.
But, as a note about the book says, presidential election petitions have since the 2000 George Bush-Al Gore petition in the United States, the number of election petitions has been increasing, especially in Africa with cases in Côte d’Ivoire, Ghana, Zambia, Nigeria, Zimbabwe and Sierra Leone.
Presidential elections have thrice been unsuccessfully challenged in Uganda with the Supreme Court on all occasions conceding that the Electoral Commission and President Museveni had violated the constitution, but then turning around to invoke the “substantiality test”.
Mr Oloka-Onyango writes that “many countries typically excluded presidential elections from determination by the Judiciary” but quickly adds that many jurisdictions have since “transferred the power to adjudicate the election of a president to the judicial arm of the state.”
This is a situation he describes as the “judiciarisation of politics”.
But even with this “judiciarisation of politics”, cases of courts overturning a presidential election are still very rare. In Uganda, the Supreme Court twice issued split rulings in cases of Dr Besigye challenging President Museveni’s election.
In Kenya, the Supreme Court last year boldly ruled that the Independent Electoral and Boundaries Commission (IEBC) had conducted the election of Uhuru Kenyatta contrary to the dictates of the constitution and electoral laws and ordered for a re-run.
Speaking during the launch of the book, Chief Justice Bart Katureebe, who led the Supreme Court panel that considered former presidential candidate Amama Mbabazi’s challenge of President Museveni’s 2016 election, talked of the difficulties in dealing with presidential petitions in Uganda.
Justice Katureebe said the Constitution did not envisage a presidential case where the Electoral Commission, the purported arbiter between competing candidates, would be a “problem”.
The Electoral Commission was accused of not complying with the Constitution and electoral laws by Dr Kizza Besigye [2001 and 2006] and Amama Mbabazi in the 2016 election challenge.
“When we made the Constitution we wanted to provide for a situation where if there is someone who has created another, you have an umpire,” Justice Katureebe said.
“You have an independent electoral commission which will be funded to build up to the elections. Those provisions did not anticipate a situation where the Electoral Commission itself is the problem.”
The Supreme Court ruled that the Electoral Commission had both in 2001 and 2006 conducted elections that were not compliant with the provisions of the Constitution.
“If you don’t annul the election then you are a stooge. At the end of the last one[2016-Amama Mbabazi vs President Museveni and EC], some people on Facebook were even saying I should be assassinated,” Justice Katureebe said of the criticism he faced on social media after upholding Mr Museveni’s disputed 2016 election.
The nine Supreme Court judges that Justice Katureebe led in dismissing Mbabazi’s petition conceded that although there were irregularities in the 2016 elections, they never affected the final results of the election in a substantial manner to justify an annulment.
Justice Katureebe argued at the book launch that nullifying an election should presuppose that the re-run will be of better quality than the nullified election.
“It’s a very simple thing; to nullify the election is a simple thing. But the nullification of an election, in my view, cannot be an end in itself. It must be a process to lead to better election results than what has been done previously,” Justice Katureebe said.
Quoting Prof John Griffith in the book The Politics of the Judiciary, Prof Oloka-Onyango writes that “neither impartiality nor independence necessarily involves neutrality; Judges are part of the machinery of authority within the State and as such cannot avoid the making of political decisions. What is important is to know the bases on which these decisions are made.”
Prof Oloka-Onyango also tackles the controversy that often shrouds the process of nomination and appointment of judges.

Appointment of judges
Nomination and appointment of judges has always been an issue of contention in Uganda with accusations that the Bench is stuffed with “cadre judges” keen to appease the political establishment but not make judgements based on evidence produced in court.
Retired Justice Wilson Tsekooko has previously warned that the number of cadre judges at the Supreme Court bench is on the high, which is undermining the integrity and independence of Uganda’s Judiciary.
When Deputy Chief Justice Alfonse Owiny-Dollo was approved to the position last year by Parliament’s Appointments Committee , he was keen to declare himself a “non-cadre”, saying he had never been to the National Leadership Institute in Kyankwanzi, the ruling NRM party’s mentorship school.
CSOs and some judges argue that judicial officers should be subjected to open vetting so that they can be appointed based on integrity and not loyalty to the appointing authority, as is deemed to be the case with majority judges in Uganda’s benches.
Currently the Judicial Service Commission (JSC) nominates judges to the President who are then vetted and approved by Parliament’s Appointments Committee. Those against this process say it lacks robust checks as both the JSC and Parliament are controlled by Mr Museveni.
On this dispute of nomination and appointment of judges, Prof Oloka-Onyango notes that with the exception of Kenya, the nomination and appointment of judges in East African countries “is generally much less public and hence less obviously political”.
The more secretive the nomination and appointment of judges is, the more “political” it is.
To resolve the question of the processes to follow with the appointment of judges, Prof Oloka-Onyango writes that countries such as Japan, Switzerland and some states in the US even conduct partisan balloting where the political party of the candidate is made clear to all and sundry.
“Mostly countries have not followed this model, perhaps in fear about what this may say about the price or prejudice of ‘elected’ justice,” Prof Oloka-Onyango writes.
Top judicial officers – Chief Justice and Deputy Chief Justice – in Kenya are subjected to public interviews and the process there has been praised for being more transparent. Members of the public are allowed to table petitions challenging the suitability of judges to hold judicial office.
To enhance the transparency process, Kenya’s Judicial Service Commission publicly publishes the names of officers who apply for top judicial positions and their results before nominating the names to the president.
But Prof Oloka-Onyango writes that the politics that judges operate in must be considered even if the process of appointment is important.
“The mechanics of appointment and vetting of judges is only one part of the picture. Central to an examination of the place of politics in relation to the operation of the Judiciary,” he writes.
Justice Katureebe says the nullification of Kenyan president Uhuru Kenyatta’s election had nothing to do with the manner of the appointment of judges, arguing that his 2013 victory had not been nullified by the judges appointed under the same process.
“When in Kenya the election was nullified [in 2017], here they said that because of the Kenyans the way they appoint their judges, the judges are independent. But they forget that [Justice Willy] Mutunga and his team had gone through the same process but had refused to nullify the election,” Justice Katureebe said.
Justice Katureebe was referring to the 2013 ruling by the Kenyan Supreme Court led by then Chief Justice Willy Mutunga that rejected a petition by candidate Raila Odinga challenging Kenyatta’s election.
Referencing the case where three MPs petitioned the Supreme Court challenging President Museveni’s re-appointment of Justice Benjamin Odoki as Chief Justice, Prof Oloka-Onyango explains that the case vindicated the argument that “political issues will always be present in such processes”.
Mr Oloka-Onyango explains that “the inordinate delay in appointing a new Chief Justice in Uganda – resulting in a court challenge to the President’s attempt to re-appoint the incumbent— illustrated that irrespective of the mode of selection, political issues will always be present in such a process”.
In a majority judgment of 4-1 the Gerald Karuhanga and others vs Attorney General, the Supreme Court observed that there is no single provision in the 1995 Constitution that provides for the re-appointment of a retired Chief Justice to the same position.
On the separation of powers, Prof Oloka-Onyango writes that “constitutional supremacy” can be summed down into three tenets.
All organs of the state-including the Executive, the Legislature and the Judiciary –are bound by the Constitution, at least on the face of it.
“It also means that a system of mutual checks and balances, rather than outright separation between the organs of government, is in operation, leading to a certain degree of uncertainty and even tensions between them,” Prof Oloka-Onyango writes.
The third tenet is that a system of mutual checks and balances, rather than outright separation between the organs of government, is in operation, leading to a certain degree of uncertainty and even tensions between them.