Judges know the law, and also understand politics

Tuesday July 31 2018

Nicholas Sengoba

Nicholas Sengoba  

By Nicholas Sengoba

Whenever Ugandan President Museveni or his interest is the subject of a legal matter in the Ugandan courts of law, I recall some interesting pronouncements he made in the past relating to the Judiciary and legislation.

The first was in 1993 following the enactment of the Traditional Rulers (Restitution of Assets and Properties) Statute 1993, which saw John Barigye Ntare VI enthroned as the Omugabe of Ankole. The government quickly annulled Barigye’s coronation because ‘it was not popular.’ The proponents of Obugabe decided to take the matter to court. Museveni made it clear at a press conference that his government would not allow the restoration of Obugabe in Ankole.

A reporter then asked Museveni what would happen if the courts decided that the restoration of the Obugabe bwa Ankole was legal. A rather irritated Museveni answered ‘…we will resort to politics!’
The second was captured in the September 2007 report of the International Bar Association titled Judicial Independence Undermined: A Report on Uganda.

Page 20 dealt with the incident when the Constitutional Court on June 25, 2004 handed down a judgment ruling that the Referendum (Political Systems) Act 2000 - passed by Parliament without quorum- was unconstitutional.
“…This provoked harsh criticism from the President directed specifically at the court and Judiciary. In a televised speech delivered on Sunday, June 27, 2004, President Museveni stated: ‘A closer look at the implications of this judgment […] shows that what these judges are saying is absurd, doesn’t make sense, reveals an absurdity so gross as to shock the general moral of common sense. […]In effect what this means, is that this court has usurped the power of the people […]. This court has also usurped the power of Parliament, to amend the Constitution. Government will not allow any institution, even the court, to usurp the power of the Constitution in any way.’

A few days later, President Museveni was quoted as saying “the major work for the judges is to settle chicken and goat theft cases, but not determining the country’s destiny’.

In 2017 at a victory party organised for the 317 MPs, who voted for the removal of Article 102(b), Museveni said: “I want to salute the 317 MPs, who defied intimidation, malalignment and blackmail and opted for a flexible Constitution to deal with the destiny issues of Africa instead of maintaining Uganda on a path of unimaginative, non-ideological, neo-colonial status-quo. By so doing, they enabled us to avoid the more complicated paths that would have been required.” (wording of Julius Barigaba – The EastAfrican July 28 - August 3, 2018). I recall for this act of gallantry, the MPs in the midst of great fanfare and merrymaking, had the title of ‘The New Historicals’ bestowed upon them. Historicals in NRM parlance are very important people who contributed immensely to the 1981-86 liberation war that brought the NRM to power.

So when the Constitutional Court sitting in Mbale determined in a 4:1 majority decision that the amendment of Article 102(b) to remove age limits for standing as president and chairpersons of district councils was constitutional, you somehow felt that the court was fully awake to political realities on the ground.

Judges are very intelligent human beings who were not born yesterday. They understand the environment in which they operate and, most especially, the view of the Executive arm of the Ugandan State in regard to the Judiciary as the place to decide chicken and goat theft cases. They know of the numerous options at the disposal of the Executive, which are detailed above, which include ‘resorting to politics and over ruling them by ‘taking complicated paths’ if required. I am sure most people were hoping for the best, but expecting the worst the worst from Mbale. It is worth noting that if or when the petitioners appeal to the Supreme Court, the matter at hand will still be one of ‘national importance’ and not a case of a stolen goat or chicken. Secondly, President Museveni will still be in charge. In my opinion, however angry some people may be, lasts week’s judgment was a fairly credible representation of the political realities on the ground.

Approached without emotion, it will further help in the conversations regarding President Museveni as the key if not main player in the destiny of Uganda hence forth. As things stand now, to a great degree, what will happen in as far as regime change or hand over of power is concerned, will be dependent on what Museveni wishes and how he decides to act.

Baring an act of God, ill health or a surprising moment of history like a military coup, I am skeptical that the courts and elections will play a decisively determinant role. Parliament where his NRM party has a majority shall rubber stamp his desires. That is why it makes a lot of sense to impress it upon him and candidly convince him as a person that there is no risk, but a lot of benefits if he decides to control and map out his exit.

Anything short of this, will only deliver exciting dramatic episodes and disappointments, to some, like what happened in Mbale.

Mr Sengoba is a commentator on political and social issues. [email protected] Twitter:@nsengoba