Writer: Gawaya Tegulle. PHOTO/FILE
Eneke the bird, Chinua Achebe told us in Things Fall Apart, was asked why she was always on the wing. “Men have learnt to shoot without missing,” said she. “So, I have learnt to fly without perching.”
I haven’t read Achebe in the last three years, but Eneke flashed like lightning in my mind when I saw the list of new appointments to the High Court and Court of Appeal.
Just so we are clear, the Court of Appeal also sits periodically as the Constitutional Court – a bad idea, if you ask me; and in respect of which I have previously argued that a democratically progressive nation ought to have a separate court dedicated to constitutional interpretation. But then again, we are neither progressive nor a democracy... and now that I think of it keenly, we are a country, not a nation. So, I guess I’ll spare you, my dear, any further ink on this trajectory of analysis.
This column did advise, last September, that if a certain dude (how appropriate!!), who trades as Isaac Ssemakadde, became president of the Uganda Law Society (ULS), it would be business unusual. Looking back now, I feel the language I used was much too mild, given what has transpired since “Hurricane Isaac” hit town with the “Radical New Bar (RNB)” – designed to upset and thereby reform the existing political and social order in and around the legal circles.
When Ssemakadde won the race, I told some news media that his victory meant the stars were aligned in a rather interesting fashion and my favourite, Donald Trump, would therefore win the American election. Now, looking closely, it’s hard to think that the two presidents – of the ULS and the US – are not in touch, given the radical approach (punctuated with sweeping executive orders) with which they began their tenures. And since president Ssemakadde swore in four months before president Trump, you cannot accuse him of copying his US counterpart. The two men ought to chat over coffee!
The Democrats are still struggling to cope with the ‘Trump Tornado’. But the Uganda government, which led an unsuccessful fight against Hurricane Isaac, has come up with the perfect antidote: the recent appointment of new judges of the High Court and Court of Appeal. When the fire is a radical Bar, the fireman usually turns up with a conservative Bench.
Oh, by the way, judges preside over trial courts where they hear evidence, make rulings, and render verdicts. Justices serve on appellate courts like the Court of Appeal and Supreme Court, where they hear appeals, and the Constitutional Court, where they make constitutional interpretations. You can take that to the bank!
A bigger Bench, on the face of things, is very good; because more judicial officers should mean efficiency and lots of justice. But that illusion of good news will lift once you begin scrutinising the list, paying due attention to the antecedents of each of the judicial officers in issue. I have done exactly that. And it is my considered opinion – counter-intuitive to the last drop – that we just might face one of those situations where more fetches you less.
We’ll be okay with ordinary cases; the judges and justices are all competent. But when it comes to political cases, please manage your expectations.
I think... I think... We're witnessing the evolution of a conservative Bench, if you look at the list for the High Court and Court of Appeal. There is a critical core number on or in each list – at least five on the Court of Appeal and at least half of the High Court – which, given their antecedents, will be tending or inclined to maintain existing political views, conditions, or institutions. The picture is even clearer when you check who didn’t get the job.
Over the last decade, the tale of judicial capture by the ruling party has been told better by looking at who doesn’t get in, or from those already in, who doesn’t go up. Did you also notice that the appointments were done quickly before radical lawyers get on the Judicial Service Commission?
Those who fancy rewriting history using the courts should not get excited. Lately, lawyers and litigants have gotten bolder in litigation, and “Hurricane Isaac” and the RNB have compounded things.
In answer, Eneke the bird has taken to the wing.
The writer, Gawaya Tegulle, is an advocate of the High Court of Uganda [email protected]
