Sunday August 10 2014

From the judges to politicians: Grow up, do your jobs properly

By Bernard Tabaire

Even for a jaded Ugandan, the back-to-back judgements the Constitutional Court issued in the last several days carried spark: they put pretentious politicians in their place, even if momentarily.

Smarting from being lectured to by the Canadian foreign minister, Speaker of Parliament Rebecca Kadaga returned from Quebec in October 2012 to promise Ugandans a Christmas gift in form of having the anti-homosexuality Bill passed by year’s end. The gift came a year late.

It is a gift of hate, bigotry, intolerance, ignorance and arrogance. No wonder the Bill, not even appearing on Parliament’s order paper for the day, was sneaked in for passage. Issues of quorum did not bother Madam Speaker – a lawyer to boot. She who once was concerned with rights of women thought, and still thinks, nothing of the rights of homosexuals. Not that she is obliged to promote both. It is just worth noting here for the record.

The lack of quorum aspect came back to bite her inside her robes when the Constitutional Court unanimously annulled the Anti-Homosexuality Act on August 1. The MPs will of course pass the Bill again in large numbers. Quorum will not be an issue. Good on them. Two things, however, are clear enough.

One is that Parliament led by Speaker Kadaga disregarded its own procedures in passing the jail-the-gays law. As Ugandan lawyers say, Parliament ‘perpetrated an illegality’. Bigotry does that to people.
Two, the matter of same-sex relationships is now part of general public discourse in Uganda. It is no longer a peripheral issue to be whispered about. Even after the law was passed, some homosexuals refused to flee the country, or to go underground. They kept their heads publicly up, damn the actions of the bigots. Boy, they even went ahead with earlier plans to have their annual pride parade. It is slated for this weekend.

In filing a constitutional challenge, several prominent Ugandans made clear that ignorance of the majority on key rights issues must not go unchallenged. They staked their reputations. They are ready to return to court to challenge the constitutionality of the law that Parliament is sure to pass with virtually every member attending, including many who are LGBTI but are too scared to denounce the hate directed at their kind because that would be political suicide.

The back-and-forth is keeping the issue alive longer. That is a very good thing. Besides, the jokes about (dated) presidential views on oral sex will stay with us for decades. Another very good thing.
Of course, the enlightened thing to do now would be to drop the misguided law, keep the hatred inside our bigoted selves and we all live and let live. That will not happen. And so the fight is joined. We each have to choose our sides, with courts occasionally interceding.

Beyond the anti-gays law, the court’s other intercession had more embarrassing news for politicians, especially the President and his increasingly pitiful Attorney General. The Constitutional Court, by majority decision, quashed the appointment of retired Chief Justice Benjamin Odoki as Chief Justice. One judge singled out Attorney General Peter Nyombi for giving President Museveni “fake” advice regarding the reappointment of a grandfather who is past 70 – the mandatory retirement age for judges.

Mr Nyombi, who is appealing the decision, does not carry the blame alone. Why was President Museveni so interested in Mr Odoki yet the Judicial Service Commission, whose advice the Constitutional Court said is binding, had provided other names because Mr Odoki did not obviously qualify to return as chief justice?

Mr Odoki was quoted the other day claiming the debate is not about him the individual. That is glib talk. To show otherwise, Mr Odoki should withdraw his name publicly from any discussion of him being Chief Justice again. He should declare he is not interested in being considered for such a job. That will end the story. We will get somebody else as Chief Justice and the judiciary may well flourish.
Until that happens, it remains a mystery to me why a man who has distinguished himself for so long would accept to pop out of retirement to undo a decent legacy. Sometimes I want to be a seer to peer into the souls of such men. No matter, the courts are here.

Mr Tabaire is the co-founder and director of programmes at African Centre for Media Excellence in Kampala.