As fate would have it, the naysayers and sceptics had their day. The Supreme Court placed the last nail in the coffin of a case whose ramifications, had the decision gone south, would have spelt particularly intriguing scenarios for the country’s political trajectory and tested President Museveni on many fronts. Those who know him say the ageing President leaves nothing to chance. As the bar and bench spent the day in court, he was in the south western district of Kasese minding his business.
The Constitutional Court and Supreme Court decisions in the age limit case, though widely expected to swing as they have, even before they were filed, in a country where political cases are increasingly becoming predictable, must be put in historical context. A historical survey of our judicial trends is important precisely because, first, as the Bible states in Ecclesiastes 1:9, “What has been will be again, what has been done will be done again; there is nothing new under the sun.”
In literature scholarship, one gains deeper understanding by looking at a piece from a historicist perspective. A case in point is Orwell’s works, such as Animal Farm which is better appreciated by reflecting on the political events of the 20th Century, particularly Russia before and during the Stalin era.
Roland Barthes, in The Death of the Author, acknowledges that an author is always a product of his time: the author ‘can only imitate a gesture that is always anterior, never original’. Historicism argues that, “literature is a product of its age and the meaning of a text can only be discovered by fitting it around other discourses from the same period.”
In equal measure, Uganda’s judicial journey is a product of a) its own history, b) the context and circumstances of the epoch under scrutiny and c) a product of the politics of the day. To read judgments devoid of these contexts is to grope in intellectual darkness and dance to the rhythm of adolescent naivety.
We shall, therefore, demarcate the analytical boundaries of this week’s Supreme Court decision with a less normative-prescriptive but more historical-descriptive lense. Only by taking a flight down memory lane can we appreciate where we are and how we got here.
Constitutional and human rights law expert, Prof Joe Oloka-Onyango of Makerere University’s School of Law in his November 2015 inaugural lecture, ‘Ghosts and the Law’ dives to the deep end of the political question doctrine and in analysing the notorious ex parte Matovu case, helps us appreciate the 2019 Supreme Court decision.
On February 24, 1966 Apollo Milton Obote, prime minister of Uganda, called the press to say he was suspending the Constitution and blowing the candle on the positions of President and Vice President. By tweaking the 1962 Constitution, Obote, as Museveni and Parliament for that matter did, hoped to find an answer to a political question. After all, some say, Constitutions are living documents, not frozen ice cubes in a deep freezer or artefacts hanging loosely in a museum; in short, the supreme law of the land, flows, like a gentle river, with the times.
That argument, though reeking of Niccolò di Bernardo dei Machiavelli (Italian philosopher of the Renaissance period) outlook to modern politics, is not entirely out of taste with practical realities.
Prof Oloka writes that Matovu’s case marked the first real test of the post-colonial Judiciary.
Sir Udo Udoma, who had been Chief Justice of Uganda since 1963, assisted by two British judges, Dermot Joseph Sheridan and Jeffreys Jones, were faced with a question that tested the validity of the ‘pigeon hall’ Constitution and by extension legitimacy of Obote’s government.
On this question, Oloka recounts, “The court was more circumspect.”
The Chief Justice held, “… any decision by the Judiciary as to the legality of the government would be far reaching, disastrous and wrong because the question was a political one to be resolved by the Executive and the Legislature which were accountable to the Constitution, but a decision on the validity of the Constitution was distinguishable and within the court’s competence.”
Relying on the theories of Austrian legal philosopher and jurist Hans Kelsen (about the meaning of a legal revolution) and the more-recent case of State vs Dosso, which had legitimated a coup d’état in Pakistan, the court upheld a Constitution that had in fact been introduced by extra-constitutional means.
“In finding that the 1966 (pigeon-hole) Constitution had been properly introduced, Matovu’s decision ultimately upheld the extra-constitutional usurpation of power by the Obote government and gave it judicial validity and legal cover. While such a decision can with hindsight be criticised, the obvious constraints the court was operating under are quite clear. As Carlson Anyangwe has pointed out if the judges in the Matovu case had failed to cooperate, the consequences for them would have been dire,” Oloka notes.
‘Demise of constitutionalism’
Fifty three years later, Kampala Lord Mayor Erias Lukwago, who was one of the advocates for the petitioner, told this writer after the judgment, his tone laden with disillusion, “I am mourning the demise of constitutionalism in my country. Contrary to what Justice Lillian Tibatemwa stated, the Supreme Court jettisoned the fundamental principles of constitutionalism at the altar of political expediency.”
Political expediency, if one may borrow Mr Lukwago’s words, has been at the heart of these judicial battles right from 1966. Let’s take leave from Matovu’s case to appreciate why 2019 is more of the same diet.
Following Matovu’s case, Oloka notes, “The one other court challenge to an unconstitutional change in government failed largely because the Judiciary took the view that political matters should be left to politicians to resolve. Hence, in the 1980 case brought to challenge the removal of Yusuf Lule only 68 days after he had been sworn in as president to replace the deposed Idi Amin in 1979, the court declined to rule that the action of the National Consultative Council (NCC) had in fact been unconstitutional.”
The court instead stated that not only had the circumstances of the case been overtaken by events, but also that the consequences of making such a declaration would be “grave indeed”.
“If the influence of Matovu had only been confined to the legality of violent changes in government perhaps the damage it did could have been limited. However, the Political Question Doctrine—the essence of the ghost of ex parte Matovu—found its way into most cases which even simply challenged the exercise of executive power. Thus, in the case of Opolot vs Attorney General which concerned the dismissal of the then commander of the army for refusing to execute the order to attack the Kabaka’s palace, the court held that the Ugandan president had inherited the prerogative powers of the British monarch to dismiss at will officers in its service.”
A few decades down the road, Opolot’s case replayed itself in the court room when Gen David Tinyefuza (now Sejusa) challenged government’s move to block his resignation as an army officer, calling it forced labour, this after he made controversial remarks in Parliament in respect of the northern Uganda war.
The Constitutional Court granted Gen Tinyefuza’s application to leave the army, but the Supreme Court took the country back to the Opolot days when in the lead judgment, Justice George Kanyeihamba, “laid out what has perhaps become the most influential statement on the relationship between three arms of government in the post1995 era”.
Justice Kanyeihamba held: “The rule appears to be that courts have no jurisdiction over matters which arise within the Constitution and legal powers of the Legislature or the Executive. Even in cases where courts feel obliged to intervene and review legislative measures of the Legislature and administrative decisions of the Executive when challenged on the grounds that the rights or freedoms of the Individuals are clearly infringed or threatened, they do so sparingly and with the greatest reluctance. The accepted principle is that courts will not substitute their own views of what is public interest in these matters, especially when the other co-ordinate powers of government are acting within the authority granted to them by the Constitution and the law.”
Then came the Miria Matembe vs Attorney General case wherein the courts again reverted to judicial restraint.
Oloka states, “In Miria Matembe’s case, the Matovu/Tinyefuza doctrine was invoked to bar interference by the court in the making of a Bill in Parliament. By a majority of 4 to 1 the court decided that, the Constitution does not require this court to supervise the functioning of the Legislature in every aspect and at all the stages of its work. The greatest care must be taken to ensure that as far as possible the principle of separation of powers is duly observed by the three arms of government to avoid unnecessary erosion of each other’s constitutional functions otherwise good and balanced governance may be unduly hampered.”
Justice Mpagi-Bahegaine disagreed sharply with her colleagues, “Generally, and while not conclusive, the construction given by Parliament to the provisions of the Constitution dealing with legislative procedure is accorded great weight but at the same time it has to be born in mind that this being a constitutional republic where the Constitution is supreme and not a Westminster Model (Parliamentary democracy), the courts as the bulwark of constitutionalism have to remain vigilant about the legislative procedure in the House, since there is no other available tribunal to determine whether the legislature has complied with the constitutional provisions. The Judiciary would be failing its mandate if it closed its eyes to any infraction on the ground that it is too early in the process, to interfere.”
This seems, from reading both the judgments of Justice Kenneth Kakuru (Constitutional Court) and Justice Prof Lillian Tibatemwa (Supreme Court) in the ‘age limit’ case, the same position the dissenting justices have adopted, holding, quite passionately as their retired predecessor did, that Parliament cannot, on the Judiciary’s watch, be given a pat on the back for violating the Constitution. Even more, that no court worth its name, as Lukwago argues, can sanction and condone violent legislative processes. Minority decisions don’t take the day though and can only be persuasive authorities.
When Brigadier (as he then was) Henry Tumukunde landed into trouble with the Kampala establishment a few years ago, his woes, like Sejusa’s, ended up in the courts of law when he sued the Attorney General and Electoral Commission, challenging his removal as army MP by the High Command.
The Constitutional Court held, “…even when constitutional rights are asserted, some questions are too political for the courts to give legal answers.”
On appeal, Justice Kanyeihamba found, “...any decree, order or action” of Parliament or an official (including the President) could be challenged if it adversely affected a citizen.”
Kanyeihamba’s decision in Tumukunde’s case, Oloka cheekily notes, “represented a significant intellectual journey from Tinyefuza”.
That ‘intellectual transition’ from the Tinyefuza case would later take another twist in the Supreme Court (appeal of the Paulo Ssemogerere case), when Justice Kanyeihamba reiterated the doctrine of constitutional supremacy, asserting that: “In Uganda, courts and especially the Constitutional Court and this (Supreme) Court were established as the bastion in the defence of the rights and freedoms of the individual and against oppressive and unjust laws and acts. Courts must remain constantly vigilant in upholding the provisions of the Constitution.”
Why are these, and more authorities, important and relevant to the 2019 Constitutional Court and Supreme Court decisions in the age limit case?
It is to demonstrate that across the valleys and hills of our country’s history, judges have trekked the mountain of the ‘political question doctrine’ with extra-ordinary restraint and counter balanced the circumstances in which they operated, with the law, striking a delicate balance that let politicians have their way.
As it stands, legislative processes, right from 1966 to 2019, have stood in favour of those who controlled the means of coercion and state power and the courts have found nice English to cover up politicians’ mess.
It doesn’t matter therefore, it appears, whether the Executive puts MPs at gun point, the courts will always somersault their way of the situation, letting the politicians clean their mess.
In an interview with this writer in September 2017, a few days after Kenya’s Supreme Court bit the judicial bullet and annulled president Uhuru Kenyatta’s re-election, Chief Justice Bart Katureebe said: “In Uganda if you nullify an election, you have 20 days within which you must correct whatever mistakes and hold another election. Isn’t that something that the country ought to be thinking about? Or are we going to be saying no matter the consequences the election should be nullified irrespective of whether what follows is a free and fair election.”
The Chief Justice’s response speaks both to socio-political realities, actually, inadequacies the law doesn’t address but also, quite cleverly, is an admission of the extent to which courts in Uganda can go, as our history has demonstrated, to fix political questions.
This week’s decision was in effect a referendum in the minds of Ugandans on President’s Museveni’s continued presidential appetite and whether the Constitution should be mutilated to let him overcome a legal obstacle in the age limit.
How the Constitution is amended doesn’t seem to bother the courts, the point that Prof Tibatemwa and Mr Kakuru tried in vain, to interest their colleagues to appreciate. In effect, it is okay, the courts have found from 1966, for the Executive to beat up, blindfold, bribe MPs and violently secure a constitutional amendment for political questions are too sacred for courts to answer.
To have held that the amendment of the Constitution was improperly done, therefore, just like the 1980 court case on Yusuf Lule’s government’s validity, was not only a question of law as it were, but also a complex political question that went to the root of the country’s transition debate from Museveni’s 33 year rule. It portended serious ramifications on the country’s political trajectory.
In the past, Ugandan judges, right from Udo Udoma in 1966, have not kept their antennae off the political circumstances of the day. In 2019, 53 years later, the majority of the judges lived to the reality: Courts will not solve political equations. And yet, Ugandans expect miracles but the courts have demonstrated infectious tenacity and even pricking, if not, irritating disinterest in diving into the pigsty that is high voltage political debates. It is, as John Patrick Amama Mbabazi would say, more of the same.