Wednesday September 13 2017

Will the new Deputy Chief Justice deal with the elephant in the room?

Anthony Masake

Anthony Masake  

By Anthony Masake

As the world watches, in awe, the mighty power of an independent Judiciary that preserved the rule of law and made history in the recent landmark Supreme Court decision in Kenya, Uganda’s Judiciary finds itself fighting – or rather begging – for its rightful place as an arm of government.

On September 8, the Appointments Committee of Parliament approved Justice Alfonse Owiny-Dollo; a man with quite an illustrious career, as the new Deputy Chief Justice (DCJ) of Uganda. His appointment draws the curtains on a preposterous attempt to prolong the unpopular stay of the retiring Justice Stephen Kavuma beyond the mandatory retirement age of 70.

While at the helm of the court, Kavuma repeatedly single-handedly issued controversial ‘stupid’ interim orders that infringed on rights of individuals, the public and operations of Parliament. He was a polarising figure.

According to Article 136 of the Constitution of Uganda, the DCJ is the head of the Court of Appeal and is, therefore, in charge of the administration of that court. When there is a question as to the interpretation of the Constitution, Article 137 provides that the Court of Appeal sitting as the Constitutional Court, shall determine the matter.

The Constitutional Court is a critical pillar for the respect of constitutionalism and observance of the rule of law. It is so important that many contend, rightly so, that it should be fully separated from the Court of Appeal.

Justice Owiny-Dollo takes over the reigns of the court at a time when it is clogged with several constitutional petitions that raise serious constitutional questions.
Several provisions in the Public Order Management Act 2013, the Anti-Pornography Act 2014, and the Computer Misuse Act 2011 are being challenged in that court for being inconsistent with the Constitution. Despite repeated appeals from advocates, during the tenure of Justice Kavuma, many of these petitions remain unheard.

The courts, through the use of public interest and strategic litigation, present the last line of defence in challenging repressive laws that are often smuggled or coerced through on the floor of Parliament. It presents an opportunity to delve deeper into the reasoned arguments based on evidence to critically assess consistency of the issues in question with the Constitution. The court has, therefore, denied Ugandans that opportunity for far too long. For unknown reasons, the petitioners are failing to have a day in court, despite the urgency of the issues they raise. We are all aware of the injustices that have been visited upon many people in the name of the Public Order Management Act and the Computer Misuse Act in flagrant violation of constitutionally guaranteed freedoms.

Today, we are witnessing the recently established Pornography Control Committee take steps to enforce vague and subjective offences under the Anti-Pornography Act – a law that is so vague that it even considers poems or “sexting” criminal provided they arouse someone’s sexual feelings. Incredible. Its important to note that the Constitution instructs the court to expeditiously dispose such petitions as soon as possible, and may, for expeditious hearings, suspend any other matter pending before it.

To borrow the words of Chief Justice Marshall, “it is emphatically the province and duty of the judicial department to say what the law is.” I am convinced that after hearing the petitioners’ arguments, such repressive laws and their creatures, such as the anti-porn committee, shall be a thing of the past.

The legacy of Justice Alfonse Owiny-Dollo at the apex of the Constitutional Court will largely be shaped by what he decides to do. In fact, these are no lofty goals. It is what fidelity to the law requires. Will he take on the elephant in the room or will he, conveniently, look the other way?

Mr Masake works with Chapter Four Uganda. Twitter: @masakeonline