President Museveni (L) and Chief Justice Alfonse Owiny-Dollo. PHOTO/COMBO
Lawyers and human rights activists have dismissed President Museveni’s reaction to the landmark ruling by the Supreme Court that stopped the trial of civilians in military courts. They said the President’s comments are tantamount to attempts to sabotage the will of the people, undermine the doctrine of separation of powers, and overthrow the 1995 Constitution.
The doctrine of separation of powers centres on the idea that the power of government should be divided into the Executive, Judiciary, and Legislative arms to prevent any one arm from gaining too much power and to create checks and balances to protect citizens' liberty.
The justices of the Supreme Court on Friday, in a majority landmark judgment of 6:1, declared it unconstitutional to try civilians before military courts. The judges cited lack of independence and fairness by the army court to those who appear before them.
But President Museveni, in response at the weekend, branded the decision of the highest court in the land as “wrong." He also said this country is not governed by judges only but by all the people of Uganda.
Mr. Norbert Mao, the Minister of Justice and Constitutional Affairs, was quick to play down public concerns. “That was his [President’s] opinion; but he swore to uphold the Constitution. I wouldn’t read too much into it. Why do you pick out [only] a line in the long statement?” Attorney General Kiryowa Kiwanuka yesterday declined to comment on the subject matter and simply said he would not talk to this publication.
What the Constitution says: Article 128 of the Constitution of Uganda guarantees the independence of the Judiciary and states that the courts shall be independent in exercising their judicial power and not subject to control or direction from any person or authority. These provisions essentially protect the Judiciary from external interference in its decision-making processes.
Erias Lukwago, lawyer, and Kampala Lord Mayor: “It was not a surprise to us, and indeed if he [President Museveni] had not lambasted the judges, it would be news. He's known for not having respect for the rule of law. Separation of powers to him is just semantics. All he knows is all power is invested in the Executive arm; that is his thinking. In practical terms, there is no difference between him and the past leaders, especially Idi Amin. The only difference is that Amin ruled by decree, but this one (President Museveni) tinkers with Parliament. His embodiment is that other organs of the government don’t have the will of the people, but only the Executive.
It's that mentality that makes him tinker with things. The decision was made by an appellate court; so the only choice he has is to go back and tinker with the law in Parliament. But he is going to open up another war. Article 92 says Parliament shall not enact a law that has the effect of altering a decision of the court. So, how is he going to change the law? Parliament cannot bring a law that overturns the judgment of the Supreme Court. That is the catch-22 situation he is finding himself in.”
Peter Walubiri, constitutional lawyer: “My disappointment is with the people of Uganda, including the media, who have refused to believe the reality that we don’t have a constitutional government. Mr. Museveni runs this country as part of his empire and uses the Constitution when it favours him.
So, for him, the courts are under him and are just one of those organs he wants to use, including the General Court Martial. He thinks he has overriding powers over them. All those institutions, including the Judicial Service Commission, don’t mean anything to Mr. Museveni; they are just tools for him to use, and even their occupants know that.
Henceforth, there is going to be a big fight between Mr. Museveni and the courts. The Supreme Court has acquitted itself; it’s up to Ugandans to defend the Constitution. The dice are cast, so let’s see what Ugandans will do as they watch Mr. Museveni throw away the constitutional order. Clearly, that letter [Mr. Museveni’s letter] commits treason. Article 3 of the Constitution gives us a duty to resist the overthrow of any constitutional order or an attempt at it. So by Mr. Museveni trying to push for the trial of civilians in military courts, and yet the Supreme Court has declared it unconstitutional, he is clearly committing treason and should be headed for Luzira.”
Dr. Livingstone Ssewanyana, Executive Director of the Foundation for Human Rights Initiative (FHRI): “Foremost, I welcome the ruling. It is a victory for justice and reminds us that courts must ensure fairness and justice for all. We have always argued against the trial of civilians in military courts because we can't get justice at all from there. I consider the President's comments as unfortunate and uncalled for because, in a country that upholds the rule of law, there are three organs, one of them being the Judiciary, which interprets the law.
So, if he (Mr. Museveni) doesn’t believe in the rule of law, it means we are faced with a dark past where the law was undermined and led to the death of Chief Justice Benedicto Kiwanuka. We believe in the rule of law and the Judiciary, and we shall fight on. If Mr. Museveni thinks civilians should be tried before the military courts, he is misadvised. And if he amends the law, we shall continue fighting them. In essence, the courts did the right thing, and we believe that every law-abiding citizen must always advocate for the rule of law.”
Sarah Bireete, Executive Director for Centre for Constitutional Governance: “When you read the President’s letter, it's like he was misguided, so we give him the benefit of the doubt. The second issue is that the President refers to or sides with the people, but the Supreme Court decision was premised on the Constitution, which was made by the people. Remember, the Supreme Court’s decision is premised on the wishes of the people. President Museveni should further take note that judicial power is from the people, so ultimately, the Supreme Court decision is about the people and the rule of law. If the executive arm and other organs, including the UPDF, fail to implement the orders of the Supreme Court, they would have overthrown the Constitution.”
Prof. Christopher Mbazira, lecturer, Makerere University: “The starting point is that we have a Constitution, and this is a document that was enacted through a democratic process. The Odoki Commission collected the views from the people [to frame the 1995 Constitution], which clearly stated that because of the dark history, there was a need for a clear distinction between the three arms of government (the Executive, Legislature, and Judiciary).
The key reason for the separation of powers is to check the excesses of the other arms of government. The Judiciary adjudicates cases, which is why previously he (President Museveni) accepted the ruling on the petition against the presidential election results that were in his favour. So, should we go back and invalidate his previous victories that upheld his re-election and were declared by the same courts? The Judiciary needs to be supported to do its mandate.”
Norbert Mao, minister of Justice and Constitutional Affairs: “That was his [President’s] opinion; but he swore to uphold the Constitution. I wouldn’t read too much into it. Why do you pick out [only] a line in the long statement?"
Museveni's full statement
Fellow Ugandans, especially the Bazzukulu.
Greetings. I have just come back from wonderful inspection trips for wealth creation in Busoga and Lango. It is wonderful to see our village People waking up and using the Sh. 1million of PDM and the Emyooga money to join the money economy with ekibaro (cura, aimar, otita).
However, on getting back to Kampala, I was sorry to hear of the wrong decision by the Supreme Court in the matter of the fire-arms armed civilians being tried by the Military Court Martial. This is a method which we the freedom fighters support because it reinforces the Civilian Judicial System to defend the lives of our People against Criminals armed with guns. If you are not a soldier, why do you arm yourself with guns and, moreover, for criminal purposes and illegally, that are a monopoly of the Armed Forces?
If you voluntarily acquire these guns, why should you complain when you are tried in a forum that deals with those matters when soldiers are involved?
Nevertheless, according to the summary AG gave me on the phone, there appears to be some positive movement among our foreign oriented Judges even in this matter. First, Justices Chibita and Mugyenyi, sided with the logic that we the simple People understand and supported the guns armed criminals being tried in the Court Martial.
ICYMI:
Salutations to those two Judges. Secondly, even the CJ ruled that the Court Martial could be used if adjustments are done here and there. I salute that contribution. Even the others who ruled against us, had some interesting comments that will be followed up that point towards the need for some rationalization in the procedure of trying civilians in the Military Courts.
Somebody wondered why even a soldier should be tried in a Military Court for rape. We shall analyze all that. However, one of the aims of the military courts is to protect the Army against crime and to ease procedures.
How easy will it be to try soldiers who have stolen Army rations in civilian courts because stealing is an offence in the penal code? Why not try them in the military court with a right to appeal to the higher National Courts if you are not satisfied?
The Military Courts, helped us to discipline Karamoja. We cannot and will not abandon this useful instrument for stability. Civilian magistrates were even fearing to go to Karamoja. The Military Courts have pacified Karamoja and also saved the thousands of Karachunas (warrior youths) that are now guests of the State in the Prisons, who could, probably be dead by now in their confrontations with the Army.
Anyway, the country is not governed by the Judges.
It is governed by the People –all of us Ugandans, that are old enough to vote. In the matter of the Constitution and other legislations, we govern ourselves by having Referenda or Constitutional amendments or amendments of the laws by Parliament.
The Judges interpret the laws: let, therefore, the Attorney-General propose the amendments to the constitution of the laws to help our Judges in future from interfering with this useful self-protection instrument for the Country and also remove any irrationalities if any.
If jurisdictions in the Western Countries can provide that a man can marry another man or a woman another woman, why can’t ours provide that a criminally minded civilian that acquires a gun for criminal intentions, be tried in a Military Court?
Back to some of our Judges, the rape, corruption, etc., cases are tried in Military Courts to protect the institution of the Army. The guns armed illegal operators should be tried, initially, in Military Courts to protect the Society.
Signed:
Yoweri K. Museveni
President of Uganda
RELATED STORIES: Trial of civilians in military courts illegal, judges rule
