Did Sebutinde overshoot the glass ceiling this time?

Justice Sebutinde, then had shaken the police and military and grown into the most famous anti-corruption figure in the country.

A poll in a daily had readers overwhelmingly vote her as the woman of the year 2002, and a group of death-row inmates even wrote a song titled, Sebutinde Come Back, in which they appealed for a second chance.

But the scale of justice, symbolised by the vey minzani (weighing scale) that can be swayed by wind, is so fickle. Just one stern, albeit controversial dissension against what appears like a foregone conclusion and suddenly it appears as if the lady justice has gone from shattering the glass ceiling for women emancipation to dangerously overshooting it.

Justice Sebutinde cracked a seismic divide last Friday when she, alone among 17 judges, voted against all six provisional measures South Africa had filed before the International Court of Justice (ICJ) when accusing Israel of committing genocide in Gaza.

“South Africa has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel and of which the applicant complains, were committed with the necessary genocidal intent, and that as a result, they are capable of falling within the scope of the Genocide Convention,” Justice Sebutinde said in her dissenting opinion.

Sebutinde had instantly become the most trending person on social media globally—after Liverpool manager Jurgen Klopp—before Donald Trump’s defamation case took to the skies.

Africans were aghast. Sebutinde, many said, had betrayed the conscience of Africa on the Palestinian question.

Vexed
South Africans, especially, accused the Ugandan judge, the first African woman to sit on the ICJ bench, of betraying all crimes imaginable. The words of their icon, Nelson Mandela, rang out louder than a muezzin call for Fajr (dawn) prayer: “We know too well that our freedom is incomplete without the freedom of the Palestinians.”

A section of Ugandans vented on social media, accusing Justice Sebutinde of casting Uganda in the crosshairs of a sniper’s scope.

Cartoonist Chris Ogon has a caricature on his social media in a record time. It depicted Justice Sebutinde blocking her ears with her middle fingers as South Africa jabbed a protest flag in her face. Her eyes were covered with the Star of David, the symbol on the Israeli flag, and had adorned a dress in Israeli colours.

Some observers were dismayed that Israeli judge Aharon Barak had voted in favour of at least two of the six demands made by South Africa yet Sebutinde had found cause to dissent.

The Uganda government was quick to distance itself from the dissension. Ambassador Adonia Ayebare, Uganda’s Permanent Representative to the United Nations, said Justice Sebutinde’s ruling did not represent Uganda’s position on the situation in Palestine, while former spy master Gen David Sejusa suggested morality was trampled on.

The turnaround has been shocking. This is the same Lady Justice who voted against Uganda when the ICJ found the UPDF guilty of working with rebels in the 1998-2003 war in the Democratic Republic of the Congo (DRC).

Colourful past
A first African woman to sit on the ICJ bench, Sebutinde starched her collar to envious stiffness when her bold handling of the judicial inquiry into corruption in institutions like police endeared her to the nation.

It was the Sebutinde Commission that wrote an 800-page report pronouncing the police a department ‘mafia-type organisation’ that routinely shook down the public, colluded with criminals, and quashed investigations in exchange for bribes. The report, dated May 19, 2000, said the commission found “plenty of circumstantial evidence suggesting that Karim was a prime suspect in the murder of Kiddu.”

Gerald Kiddu was a business associate of Karim Hirji working under Dembe Group of Enterprises. The popular rally driver was shot dead in a friend’s house in Bunga, a suburb of Kampala, in 1997.

The report also recommended that former Criminal Investigations Department (CID) director Chris Bakiza and other senior officers under him be charged with offences ranging from corruption to robbery with violence.

Not done, Justice Sebutinde headed an investigation of the revelations that Gen Salim Saleh, who is also President Museveni’s brother, had pocketed $800,000 (Shs3b) bribe to use public funds to purchase two military helicopters that couldn’t fly. The junk helicopters purchase scandal also pinned businessman Emma Katto and Kwame Ruyondo.

Beautiful with prim and proper make-up, Justice Sebutinde was admired in the nation for everything as her name crossed the borders for her fiery probes.

Still bold…
That Lady Justice on the “Sebutinde Commission” has certainly not lost her boldness as many equally defended her dissension as one from a judge who had separated the law from sentiment.

Gen Sejusa, a trained lawyer, said the situation in Gaza “convinces me” that the law should not operate independently of morality and decency.

“Like one put it: ‘Law is a moral science and judges (like in this case) must decide as moral agents, and the law must reflect the beliefs and values of the society,” he argued on X, formerly Twitter.

But from a legal perspective, Justice Sebutinde might be alone but she is not frightened. Her bold dissension is reminiscent of legendary English judges Sir Owen Dixon and Lord Tom Denning — the latter the most famous English judge of the 20th Century.

Lord Denning’s dissent of 1951 became the rule in England and was later adopted in other jurisdictions of the common law, including Australia. In 1951, he gave a significant dissenting judgment in the case Candler Vs Crane, Christmas & Co, regarded as a “brilliant advancement to the law of negligent misstatements” and which was later approved of by the House of Lords in Hedley Byrne & Co Ltd Vs Heller & Partners Ltd [1963].

Lord Denning, who lived from 1899 to 1999, argued that every judge, be he ever so high, is also subject to the discipline of the law.

“The law should be obeyed,” he said. “Even by the powerful.”

A political question?
For Sebutinde, it would be corrosive of the rule of law, and destructive of obedience to the law, if judges did not themselves conform to, and uphold, clearly settled rules of law.

And, deciding that the case was not a legal dispute susceptible of judicial settlement by ICJ, Sebutinde instead called for a diplomatic or negotiated settlement.

“In my respectful dissenting opinion, the dispute between the State of Israel and the people of Palestine is essentially and historically a political one, calling for a diplomatic or negotiated settlement, and for the implementation in good faith of all relevant Security Council resolutions by all parties concerned, with a view to finding a permanent solution whereby the Israeli and Palestinian peoples can peacefully coexist,” she said.

Israel had described the case as a “despicable and contemptuous exploitation” of the court and demanded it be treated with contempt.

But the court maintained it had the jurisdiction to hear the case – even as the decisions avoided directly tackling the genocide accusations… at least for now.

While emotions are still renting the air over her dissension, history is usually the best judge. Lord Denning was persistently stubborn in his dissenting opinions.

But Justice Sebutinde, for what she is known, must have held a profound legal view to arrive at such dissensions, well knowing the moral campus was against her call, and that the public sentiment would crucify her on the cross.

And that is where history becomes the best judge. For Justice Sebutinde, it might not be long as the ICJ continues hearing the case.

Who is Sebutinde?
Background

Born in February 1956, Justice Sebutinde is serving her second term at the ICJ. She has been a judge at the court since March 2021.

Sebutinde attended Lake Victoria Primary School in Entebbe. After finishing primary school, she went to Gayaza High School. She later pursued her degree at Makerere University and received a bachelor of laws degree in 1977, at the age of 21.

Later, as part of her education in 1990, at the age of 34, she went to Scotland where she earned a Master of Laws degree with distinction from the University of Edinburgh. In 2009, the same university honoured her with a doctorate of laws, recognising her contributions to legal and judicial service.

Press release
Government of Uganda’s January 27 statement

The government of Uganda further notes the opinion of Judge Julia Sebutinde on the matter. The Government categorically clarifies that, the position taken by Judge Sebutinde is her own individual and independent opinion, as is the case with all other judges, in accordance with Article 2 of the ICJ Statute. Therefore, her opinion does not in any way reflect the position of the Government of the Republic of Uganda.

The statement by the Uganda Government, distancing itself from Sebutinde’s opinion, offered comical relief in this sad episode. Of course, Sebutinde’s opinion is personal to her and her alone. She does not represent the Uganda Government. She cannot represent the Uganda Government. It is only in Uganda where some judges are representatives of “the appointing authority,” Muniini K Mulera in a January 30 Daily Monitor op-ed piece. 

Clearly, the political context of a dispute does not necessarily diminish its legal character […] In fact, it may well be the case that politically sensitive matters might benefit from the identification, and determination, of any legal facets thereby implicated,” Busingye Kabumba in a January 31 Weekly Observer op-ed piece. 

Sub-Editor: Richards Adde