Presidential immunity and the paradox it has created in Uganda

NRM candidate Yoweri Museveni on the campaign trail in 2016. PhotoS/ FILE

What you need to know:

  • In Uganda, just like elsewhere in the world, a president is insulated from court proceedings. But increasingly as presidential powers are being checked the notion is being questioned with double standards being cited in Uganda, writes Derrick Kiyonga.

To date, it’s not clear if he knew the ramifications of his suggestion, but in 2013 lawyer Severino Twinobusingye put the Constitutional Court between a rock and hard place.
Out of the blue, he popped from his seat and told the five justices that President Museveni would be willing to testify and be cross-examined by defence lawyers.
Twinobusingye was part of the ruling National Resistance Movement (NRM) party team of lawyers that was asking the court that interprets Uganda’s Constitution to kick out Members of Parliaments Wilfred Niwagaba (Ndorwa East), Theodore Ssekikubo (Lwemiyaga), Barnabas Tinkasiimire (Buyaga West) and Muhammad Nsereko (Kampala Central) on account that they lost their seats after the party expelled them for breaching NRM’s discipline code.

The response of the MP’s legal team was swift. They made a formal application asking the court to compel Museveni to come to court such that he is cross-examined on the contents of the affidavit he had deponed in support of his party’s case.
Medard Lubega Sseggona, one of the lawyers representing the MPs, said there was a need for the President to stand in the witness dock to be grilled because his affidavit not only contained falsehoods, but it had issues dating back to the 1960s that younger people are not familiar with.
“So, it would only be fair to call him to court to substantiate these issues,” Sseggona, the Busiro East MP, insisted, adding that the cross-examination would keep within the constraints of the affidavits Museveni swore.

Lawyer Caleb Alaka gave Sseggona a helping hand. “We want to test the truthfulness, honesty and veracity of his evidence. He chose to subject himself to these ordinary proceedings and we are going on to treat him as an ordinary citizen,” he said.
Ultimately, justices Steven Kavuma, Remmy Kasule, Augustine Nshimye, Faith Mwondha and Richard Buteera wouldn’t bring the President to the dock on grounds that the MP’s legal team wasn’t specific on which issues they wanted to put to Museveni.
“No specific area in the affidavits has been identified to the court that needs clarification. We don’t see any need to grant leave of court,” the five justices agreed in unison.
When the case went to the Supreme Court, NRM lawyers led by Joseph Matsiko insisted that the Constitutional Court was right not to call Museveni to be fired questions citing Article 98(4) of the Constitution which insulates a seating President from court proceedings.

Nevertheless, Matsiko said that there is nothing in the Constitution which stops the President on his own volition to voluntarily come to court as a witness or even as a party. 
For the MPs, Alaka wanted the Supreme Court to fault the Constitutional Court on grounds that it should not have asked for what questions were going to be put to the deponent, Museveni, before exercising its discretion not to allow cross-examination. 
He argued that cross-examination serves several purposes, one of which is to test the character of the witness and the truthfulness of his or her evidence.
“Cross-examination of a witness is part of the right to a fair hearing guaranteed by Articles 28 and 44 of the Constitution,” Alaka submitted, adding that the Constitutional Court exercised its discretion wrongly in not allowing the President to be cross-examined on his affidavit.

Singer Richard Kawesa

In agreeing with the Constitutional Court, the Supreme Court said that Article 98(4) is clear and unequivocal. The justices went on to cite  the Constitutional Court judgement in the  2005 case of  Henry Tumukunde vs the Attorney General in which Justices Mukasa-Kikonyogo and Christine Kitumba held: “The acts of the President in appropriate cases can be challenged in courts of law; however while holding office, the President shall not be liable to court proceedings in any court.”
The Supreme Court added: “According to the above authorities and others cited by counsel, the rationale for the grant to the President of the privilege and immunity from court proceedings while holding office is to ensure that the exercise of presidential duties and functions are free from hindrance or distraction, considering that the chief executive of the government is a job that, aside from requiring all the office holder’s time, also demands undivided attention.”

American case of Nixon vs Fitzgerald
Deciding whether a president is liable to court proceedings, judges normally cite the American case of Nixon vs Fitzgerald. 
The background of this case, which has been used as standard, was that in 1968, Arthur Fitzgerald, then a civilian analyst with the United States Air Force, appeared before a congressional committee and testified about inefficiencies and cost overruns in the production of the C-5A transport plane.
Approximately, one year later he was fired, an action for which former US president Richard Nixon took responsibility.
Fitzgerald, who was seeking damages, sued a number of government officials including Nixon who had been ousted from the presidency under acrimonious circumstances, among the respondents.

In a controversial decision that split the American Supreme Court, 5-4, it was ruled that the president couldn’t be sued civilly for his official acts. That private lawsuit grounded on the president’s official acts, the American Supreme Court ruled, would lead to distraction and distortion — the president would be distracted from his official duties and he might change his official policies in the wake of a civil suit.
The judgement didn’t stop the Knight Institute to drag Donald Trump when he was incumbent in 2018, to the court for Southern District of New York asserting that the president and his communications team violated the First Amendment by blocking seven people from his personal Twitter account because they criticised Trump or his policies.

Trump had to unblock the people after the court ruled that the president’s Twitter account constitutes a “public forum” under the First Amendment and that the president is, therefore, barred from blocking speakers from the account on the basis of viewpoint.
The spanner was thrown into works in the case of [Bill] Clinton Vs Jones, when the American Supreme Court clarified that a president is subject to civil suits for actions committed before assuming the top seat of the country. 
The doctrine of separation of powers, the American Supreme Court ruled, does not require federal courts to stay all private actions against the president of the United States until he leaves office.

Yet in Uganda, there is still contention on whether a President should be sued or not.  Recently, the Constitutional Court at affirmed that a President can’t be sued. 
The petition stemmed from a suit veteran artiste Richard Kawesa filed at the Commercial Court in 2019 accusing Museveni of infringing on his copyrights in the song Another Rap.
Museveni had used the song during the 2011 election to identify with young voters but in the suit, Kawesa insisted that Museveni had registered the copyright of the song without his consent or without paying adequate compensation and royalties.
The artiste then asked the court to issue a permanent injunction restraining the President from infringing on his copyright, but Museveni, who has been ruling Uganda since 1986, had a simple defence: He is a President and he can’t be sued thus Kawesa’s case should be summarily thrown out.

The case was thrown out, prompting Kawesa to dash to the Constitutional Court. He said Article 98(4) absolutely clarified that he wasn’t suing Museveni for his actions as the President, but rather for his private actions.
“The petitioner, therefore, contended that it was permissible to sue and hold a sitting President liable, especially where he/she did the act constituting the cause of action in his private capacity,” the petition partly read.
Justice Christopher Gashirabake, who wrote lead the judgement, said there was no need to look much into the petition since it’s settled law in Uganda that a President is not subject to court proceedings.

“It is my considered view that since the question on the nature of presidential immunity under Article 98(4), which is the same question arising in this petition, has been considered in the above-cited cases, this court needs not to consider the same question in the present case,” Justice Gashirabake ruled.
“Furthermore, I noted that the petition also sets out allegations that the petitioner’s rights to fair hearing and property were infringed due to the petitioner’s inability to have his case against the respondent [Museveni] tried. In my view, those allegations relate to enforcement of rights and don’t have to be considered as this court doesn’t have jurisdiction to try matters for enforcement of rights.”

A team of lawyers representing President Museveni in the 2021 presidential election petition consult each other at the Supreme Court in Kampala. PHOTO/ ABUBAKER LUBOWA

Justice Christopher Madrama, one of the five judges on the coram, agreed with Justice Gashirabake but he could let the matter go without offering Kawesa some advice.
“The fact that the President is not liable to any legal proceedings in any court does not per se shut out the petitioner from attempting any other lawful engagement on his claims with the President or his representatives in an attempt to have his claim addressed amicably,” he said. 
“In the absence of any other constitutional means to have his claims considered, the petitioner has to wait until the President leaves office if he desires to commence any action in any court with regard to his claims.”
Kawesa who said he had tried to solve the matter amicably before going to court warned that the judgement would have wider ramifications.

“To a simple mind and on the surface, this Constitutional Court ruling might appear as a Kawesa vs Museveni issue, but if we let this judgement go unchallenged, every property owner in the land - be it an embassy, church, mosque, cultural institution, local or multinational corporation (including the five justices who made the ruling and Mr Museveni himself), will have contributed to teaching the next President(s) of Uganda that ‘might is right’ and by so doing deny themselves the fundamental right to property; the right to own, take care of, eat or even sell one’s lamb in peace,” Kawesa said.
While courts are saying Museveni, the President can’t be sued, they are fine with him suing other parties.

Currently, Museveni is in the High Court where he is accusing Daily Monitor of defamation.   The newspaper’s legal team asked High Court to stay proceedings after it filed a petition in the Constitutional Court in which they want the court to resolve if a President can sue in light of the aforementioned Article 98(4) but the court was having none of it.
“The court’s power to exercise discretion to stay court proceedings before it can be exercised judicially and in the public interest. The same should not be used to cause delay of hearings or inconvenience to the other party or result in public mischief should be granted,” Justice Musa Ssekaana ruled last year.
“In the result for the reasons stated herein above this application to stay proceedings in this matter fails and the court shall proceed to set the suit down for hearing.”

Lawyers weigh in
“Presidential immunity presents a paradox because on one hand the oath by which the President takes office requires the President to uphold the Constitution and specifically to ensure the welfare of citizens can be protected and served through observance of their rights,” says Isaac Ssemakadde the executive director of Legal Brians Trust. 

“Now you can’t have in the same Constitution that guarantees property rights and says nobody shall be deprived of their property unless that person is given adequate compensation, then you have Article 98 that says the President shall not be liable for any action in court. So the challenge is how can the same President be allowed to deprive you of any property and yet is supposed to uphold property rights by the same Constitution.” 
According to constitutional law expert Peter Walubiri, the idea that the President can’t be dragged to court rhymes well with the “monarchical republic that’s Uganda today”.  
“It’s part of the monarchical order where the king is above the subject. It’s not part of a democratic setting. It’s one of the things we should at the earliest opportunity remove from our Constitution,” he says. 
To show how dangerous presidential immunity is, Walubiri refers to the property rights contest. 

“Can you imagine if the president grabbed my land and he takes my land but I can’t sue him then he stays [in power] for 40 years, by the time he leaves and I sue him I have already lost out. Even if I’m compensated it’s too late. My children have missed out on school. Or I might be a member of his Cabinet and he assaults me physically and he just gets away with it. And he has numbers in Parliament, you can’t impeach him.”
Though the Constitution insulates the incumbent from any form of legal proceedings, the same Constitution allows litigants to drag the incumbent to the Supreme Court in a presidential elections petition.
“It’s allowed because they say you can’t challenge his victory without attaching him because that would amount to condemning him without hearing him which goes against the Constitution,” Walubiri explains.