Did Constituent Assembly err in creating Constitutional Court?

Recently, television footage showed retired Supreme Court Justice George Kanyeihamba weeping at the Constitutional Court. The footage also showed the petitioner, MP Gerald Karuhanga, demonstrating that the offices of the Registrar and Deputy Registrars were locked and the court registry empty of any staff. They had all fled.

The reporter explained that they had fled to avoid the filing of a constitutional petition against the then acting Chief Justice/head of the Constitutional Court Steven Kavuma who was due to appear before Parliamentary Appointments Committee for approval as Deputy Chief Justice that afternoon.

If the petition was filed the petitioner would most likely claim the matter was subjudice and effectively block the approval. If it was filed after Justice Kavuma was approved and sworn in, well it could be urged that it was overtaken by events.

The spokesman of the Judiciary gave a very curious explanation. She denied what we all saw on television and added: “it was just a coincidence there was no one at the registry to attend to them.” She then claimed that if the registrar of the Constitutional Court was absent, Kanyeihamba should have sought the services of registrars of other courts.

I believe she meant the registrars of the Supreme Court or High Court. Interesting proposition.

Maybe it is time to debate whether we need a Court of Appeal/Constitutional Court in this country.

Up to 1995, Uganda’s court structure consisted of the High Court and one final court above it referred to as Supreme Court and at other times as Court of Appeal. There was no other court between the two.

The Odoki Commission after collecting the views of Ugandans on page 446 of its report stated that the majority of submissions it received from the people had little disagreement with the then existing structure – The Supreme Court, The High Court and the Magistrates Courts. Neither the people of Uganda nor the Commission recommended creation of the Court of Appeal or a Constitutional Court. So, where did it spring from?

In the Constituent Assembly the chapters on Judiciary, Legislature and Executive were assigned to Select Committee II for analysis and recommendations to plenary. The Court of Appeal was a creation of this committee. The motion to create it was moved by Emmanuel Kirenga (R.I.P) on February 6, 1995. It was supported by members George W. Kanyeihamba, Kaboyo John, Sam Ringwegi, George Zziwa and Philemon Mateke. When the motion was put to a vote; it received twenty two votes in favour, one against it and five abstentions.

But even with its creation, the Committee refused to vest it with jurisdiction to interpret the Constitution.

Prior to 1995, the jurisdiction to interpret the Constitution was vested in the High Court. The Odoki Commission recommended a continuation of this. That is what was submitted to Select Committee II.

However, On February 15, 1995, (after creation of the Court of Appeal) Joseph Mulenga, the chairman of that Committee (R.I.P), moved the following motion:
“Any question as to the interpretation of this Constitution shall be determined by the Supreme Court sitting as the Constitutional Court and its decision shall be final.” When the matter was put to a vote, it was unanimously passed.
Later, George Kanyeihamba convinced a few members of the Committee to file a minority report opposing the decision of the committee.

I was one of the members who supported the minority position. We sought to convince plenary to vest the Court of Appeal/Constitutional Court with jurisdiction to interpret the Constitution with the deputy Chief Justice as its head. After debate plenary adopted the position of the minority and the Constitutional Court was born.

Without doubt Kanyeihamba was the midwife of the Constitutional Court as we know it today. Without the minority report, plenary would have endorsed the committee position.

There is one cardinal principle which is to be found in most legal systems - the right to be heard. The actions of the Judiciary in general and the Constitutional Court in particular (and not just registry staff) deprived Gerald Karuhanga the right to be heard.

But that is just one aspect of not being heard. I have instructions in respect of four constitutional petitions pending in the Constitutional Court. These are Moses Mwanda Vs Attorney General alleging General Kayihura’s appointment and approval by Parliament is unconstitutional and praying he vacates office.

(2007), Robinson Kasozi Vs Attorney General (challenging the mode of elections to Parliament of Worker’s representatives, persons with Disabilities, Army and Youth as unconstitutional,(2010) Kizza Besigye Vs Attorney General challenging the “affecting results in a substantial manner” provisions in the Presidential Elections Act as unconstitutional (2009) and Dan Mugarura Vs Attorney General and Electoral Commission challenging the appointment and approval of all Commissioners of the Electoral Commission. Also he prays that they vacate office (2009).

I have begged and complained about the failure to fix them for hearing to no avail. My several complaints are copied to, among others, the Judicial Service Commission, the Law Council, the Law Society and the Attorney General. My clients have received no help from any of them.

In the complaint of August 22, 2013, I informed the Registrar that my appearance in constitutional petitions numbers 16 and 23 filed by National Resistance Movement against the “rebel” Members of Parliament was embarrassing me. That petition was filed on May 20, 2013, fast tracked to the extent of the Constitutional Court ordering us to file and counter file affidavits in the registry on a Saturday and a Sunday.

The case itself was heard on a day to day basis and judgment delivered on February 21, 2014. What could I tell Moses Mwanda whose petition has been pending since 2007 when he asked me why I was giving special treatment to the Ssekikubo case. I concluded in my said letter – “The Constitutional Court should be the last place where discrimination on account of political beliefs is manifestly seen to exist”.

I pleaded with the Registrar to fix for hearing these old petitions. That was in August 2013. I am still waiting for a reply. The age limit petition filed this year is in fast track. Kanyeihamba is right to weep.

The fundamental question is to ask whether the Constitutional Court is dysfunctional. As early as the year 2000 there was disquiet about the court. On appeal, in Paul Ssemogerere Vs Attorney General a Supreme Court justice stated “I agree with Twinomujuni JA where he laments in his dissenting judgment that in the Constitutional Court “we appear to be bent on adjudicating this court out of existence by declining to exercise jurisdiction conferred expressly or by implication”.

Over time this has extended to refusing to file or fix petitions for hearing and fast tracking particular cases.

That is the best way for the court to go out of existence. It appears to support the view (which I do not subscribe to) that the major work of judges is to settle chicken and goat theft cases but not determine the country’s destiny.

Were the majority in Select Committee II right after all in refusing to vest the Court of Appeal with jurisdiction to interpret the Constitution? Did George Kanyeihamba and a few of us who agreed with him make a grave mistake?
Should we have listened more to the majority before rushing to plenary with a minority report? Select Committee II comprised some of the best legal minds in this country.

They included Chief Justice Bart Katureebe, former Chief Justice George Masika, former Attorney General Joseph Mulenga, then minister for Constitutional Affairs Sam Njuba, veteran politician Ben Wacha, former High Court judge Hensley Okalebo, former minister Omara Atubo, former minister Emmanuel Kirenga, Sam Ringwegi, Charles Owor, Aloysius Liiga, Pius Kawere, advocate Urban Tibamanya, Miria Matembe and Okwakol Nathan.

The current Justices of the Constitutional Court have to collectively take charge of their court and prove that such distinguished personalities were mistaken in not trusting them with our Constitution.

That plenary was right in adopting the minority position. That the people of Uganda and the Odoki Commission were wrong when they were categorical about the court structure they wanted namely Supreme Court, High Court and Magistrates Courts.

If the Judges fail to do so, it will mean the majority in Select Committee II were right. Only the Supreme Court can be trusted with our Constitution.

The unemployed youth problem
To watch the midwife being treated in such a shabby way frightened me. “Constitutional Law and Government in Uganda” by George Kanyeihamba was the standard book we used at the law school decades ago.

The man has been minister of Justice, minister of Commerce and above all Attorney General in this country. He was a Member of Parliament (NRC), a Justice of the Supreme Court, judge of the African Court Human and Peoples Rights and chair of the International Commission of Jurists.

The question which came to my mind was: If a man with such credentials can be reduced to tears, what will happen to us ordinary lawyers?

The writer is an advocate