By suddenly withdrawing the petition challenging President Museveni’s victory in the sham election of January 14, Robert Kyagulanyi, aka Bobi Wine, the former presidential candidate for the National Unity Platform (NUP) betrayed the citizens of this country big time. How could he?
The moment he filed this petition in the Supreme Court, it ceased to be a matter for himself and his party. It became a matter of public interest. Its withdrawal confirms something I already said. I wrote recently in this paper that we are now crowded into the “theatre of the absurd.” What goes on in there is not about the elevation of the human spirit. It is about the meaningless of life.
Still, I seriously believe that the NUP petition needed to be heard, if only to remind us of the centrality of the Judiciary’s role in resolving major controversies in our country. Indeed, the Supreme Court and the Constitutional Court are extremely crucial in interpreting the Constitution upon which rests this entity uniquely known as the Republic of Uganda.
Article 132 (1) of the Constitution tells us tersely that “The Supreme Court shall be the final court of appeal.” So, what Bobi Wine has denied us is the opportunity for us to determine by ourselves, individually or in groups, what sort of justices of the law can best serve the Supreme Court’s high purpose.
Bobi Wine dismisses the bench that was to hear his petition on the grounds that the Supreme Court, especially three of its judges, Chief Justice Alfonse Owiny-Dollo, Justice Mike Chibita and Justice Ezekiel Muhanguzi, would be biased against him because they have in the past worked for President Museveni. Perhaps Bobi is right.
But we, the people of Uganda, are not entirely stupid. We should have been given the opportunity to judge for ourselves if the bench of nine justices, including Owinyi-Dollo had the judicial temperament to invalidate any actions by the President or his agents, which might have conflicted with the Constitution before, during or after the January 14 polls.
I, for one, would have been keenly interested in observing how those nine bewigged individuals would decide which of the many prayers of Bobi Wine they would dismiss outright and which ones they would allow to stand.
Bobi has denied us an opportunity to judge the judges.
Judges are human beings. They have individual value systems that include allegiance to certain political values.
And, of course, they know which side of their bread is buttered. Here is where we must lay a big chunk of the blame for bias on the Constitution itself, which allows the President, like the President of the United States, to name judges to the Supreme Court. (To make matters worse, the law allows the President to appoint the Electoral Commission.) This must stop.
Personal political values aside, these people went to law school where they armed themselves with theories of constitutional interpretation. We needed to listen to them elucidate their biased theoretical basis for deciding specific aspects of Bobi Wine’s petition. Bias is everywhere.
In the American justice system, the justices of the law are known to be openly divided into two main camps. One camp has justices who are known to be “judicial activists.” These are the ones who are prone to invalidate some acts or decisions of the federal or state governments.
Then there is the camp known as “advocates of judicial restraint.” These are the ones who are reluctant to use their judicial power to invalidate any federal/state acts/decisions.
What is my point here? The people who interpret the Constitution are not from outer space. They are breathing, talking and thinking Ugandans. That is why we needed to see how many of them would break ranks with colleagues to express dissenting opinions.
During the July 2018 Constitutional Court ruling that removed the age limit clause from the Constitution, Justice Kenneth Kakuru broke ranks with his four colleagues, including then Deputy Chief Justice, Owiny-Dollo.
Justice Kakuru instantly became a hero to many Ugandans when he reasoned forcefully that the lack of public participation in the processes that led to the removal of Article 102 (b) from the Constitution invalidated the amendment. Many of us agreed.
It is possible that something like this could have come up again to give some of us a faint hope for change from this suffocating status quo.
Dr Akwap is the deputy vice chancellor for academic affairs at Kumi University. firstname.lastname@example.org