Inside the move to expand Uganda’s Supreme Court

Supreme Court justices led by Chief Justice Alfonse Owiny-Dollo (3rd left) before they sat to hear a presidential election petition filed by former presidential candidate Robert Kyagulanyi, alias Bobi Wine, on February 11, 2021.  PHOTO / ABUBAKER LUBOWA

What you need to know:

  • Whereas the Justice and Constitutional Affairs ministry argues that “an increase in population, crime rate, and increased awareness among the public of their legal rights… has resulted in high demand for Judiciary use”, as Derrick Kiyonga writes, critics of the move don’t contend with this.

Uganda’s Supreme Court was last Sunday thrust into the public domain when this newspaper exclusively revealed plans to expand its bench from 11 to 21 justices.

The court is currently staffed with 10 justices, with a quorum of seven needed to determine constitutional appeals.

Elsewhere, five justices sit when determining normal appeals.

This notwithstanding, the Justice and Constitutional Affairs ministry believes an expansion is due for the Supreme Court along with the Court of Appeal and High Court. It reasons that “an increase in population, crime rate, and increased awareness among the public of their legal rights… has resulted in high demand for Judiciary use.”

It adds that a lack of manpower “has led to acute case backlog both in the upper bench and lower bench.”

Consequently, parallels have been drawn between Uganda and the United States of America. The latter’s Supreme Court has nine justices yet the US population (329.5 million in 2020) by far outnumbers Uganda’s (45.74 million in 2020). The Judiciary, however, says treating this as a numbers game in a straitjacket manner is counterproductive.

“People who go to court now are such a small percentage. Reason? The courts are too far away from people. The cost of litigation is too high. If the cases are resolved at a high speed like what we are trying to do now, it means the volume of litigation is going to go up,” Chief Justice Alfonse Owiny-Dollo told Saturday Monitor, adding, “Similarly, the volume of appeals to the High Courts, to the Court of Appeal, and the Supreme Court will go up.”

While the Supreme Court of the United States (Scotus) was established in 1789, the Supreme Court of Uganda (SCOU) is the product of the promulgation of the 1995 Constitution. The SCOU stands out at the top of the judicial pyramid as a final court of appeal in Uganda.

With one exception, it only decides cases on appeal from lower courts. The exemption is presidential election petitions where the court has original jurisdiction. This means an aggrieved candidate in a presidential election may petition the Supreme Court directly.  

Landmark cases

The SCOU’s landmark decision in its 17-year history is arguably the Susan Kigula case. The justices ruled in the case back in 2009, that the death sentence is no longer mandatory upon conviction. The decision made clear that judges have discretion on whether to impose a death sentence or not.

The Mifumi case in 2015, in which the judges upheld the entrenched culture of bride price in Uganda, was also equally consequential. The Mifumi case ruling also outlawed the habit of seeking a refund in case a marriage collapses.

“The return of bride price connotes that the woman in the marriage was some sort of loan. But even in a sale, the cliché is that goods once sold cannot be returned, or goods once used cannot be refunded for,” Former Chief Justice Bart Katureebe reasoned before rhetorically asking, “If that cannot be done in respect of common goods such as cows and cattle, why should it be applied to a woman in marriage?”

In her dissent, Justice Esther Mayambala Kisaakye pointed out that not all tribes in Uganda have the custom of demanding a refund of the bride price at the end of a customary marriage. She further held that the majority of justices of the Constitutional Court erred when they held that they could not take judicial notice of the custom and practice of paying bride price. 

“Given the dire consequences that a woman, her family, and partner may face from a husband who is demanding a refund of his bride price, it is not far-fetched to envisage that the requirement to refund bride price may force women to remain in abusive and failed marriage against their will,” she opined before ruling that bride price is constitutional.

Different script, cast

The Mifumi case can easily tempt one into thinking that the SCOU is polarised by the culture wars that the Scotus is familiar with.

“We have quite different systems. You recognise that in America, they really have a lot of powers in the states. The states make their laws, at the end of the day, you find divisions with blue states (Liberals) and the red states (Conservative),” veteran lawyer Dan Wandera-Ogalo says, adding, “In the Senate, the politicians look for judges who think as they think.”

Mr Wandera-Ogalo says Ugandan judges restrict themselves to the law; unlike the Americans.

“Here, we look at the statute and interpret, but [the Americans] pretend that they are looking at the constitution [when in fact] their rules of interpretation are guided by ideology—conservatism or being progressive,” he says, adding, “But for us here, our judges aren’t having that baggage of political ideology. Countries that evolved from the British system look at the statute and give meaning to the statute.”  

Uganda is not just a former British colony but also a third world country. This, some critics contend, means the society has not yet reached the level of indulging in ideological differences.

“Ideological differences are at a particular stage of socio-economic development. In a simple communal economy, people live the same lifestyle, people use the same basic means of production and survival,” Mr Peter Walubiri, a constitutional law expert, says, adding, “There are no classes and there is no segregation among the people.”

Mr Walubiri says all of this changes “as society grows socially and economically.” This leads to the creation of “the urban poor and… the elite.” He proceeds to note thus: “We are still at the low radar… we are looking for the daily meal, but a few elites who have been educated in capitals, who run NGOs [non-governmental organisations] funded by Western bodies begin to articulate these things like reproductive rights and to influence.” 

‘Ideological orientation’

In his book titled When Courts Do Politics, Prof Joe Oloka-Onyango reveals that Uganda flirted with the ideology of socialist legality after getting her independence in 1962. He, however, hastens to note that socialism had little impact on the actual operations of the Judiciary. 

“Indeed, ideology in Uganda, and the place of the courts within it mainly crystallised around a furore that erupted in the illustrious magazine Transition following the trial and rather a lenient sentencing of a mercenary involved in clandestine activities in the (then) Belgian Congo (now the Democratic Republic of the Congo),” Prof Oloka-Onyango wrote, adding, “What followed was a debate between several political and legal luminaries about the appropriate role of the Judiciary in a newly independent country such as Uganda, and the place of ideology with respect to the courts’ decisions.”

In his book, Prof Oloka-Onyango cites Ali Picho—the author of the Transition article, who argued that the Judiciary in Uganda lacked the “ideological clarity” necessary to meet the aspirations of the newly independent state’s citizens.

“Those who engaged with Picho over the issue pointed to the ‘overall lack of ideological clarity within the State at large,’” Prof Oloka-Onyango says, adding, “They also pointed out that the Ugandan government had in fact failed to transform the conditions of economic dependence… inherited from the colonialists, and thus it was ludicrous to expect the Judiciary to be any different from the state in which it was operating.”

Although Ugandan judges can’t be seen to be ideological, the SCOU and other lower courts have always been seen as a political tool of the ruling National Resistance Movement (NRM) party. The SCOU has under its belt three presidential petitions. All of them have been dismissed.

Public confidence

The court also, by a majority judgment of 4-3, confirmed the scrapping of the presidential age limits from the Constitution in 2019. The outcomes—all of which have been in favour of President Museveni—have been greeted with pessimism and doubts in almost equal measure. Some legal experts claim public confidence in the institution is at a record low.

“The selection of judges is now controlled more than ever. They just can’t appoint people they are not sure about in terms of political thinking,” Mr Walubiri told Saturday Monitor, adding, “So, the expansion of the court will definitely create more openings for people who believe in the system we have today.”

Supreme Court premises in Kampala. PHOTO / MICHAEL KAKUMIRIZI

In justifying the need to increase the number of SCOU justices, the Justice and Constitutional Affairs ministry pointed to a logjam of cases, which stands at 323 out of the 651 pending in the in-tray.

But some legal experts reckon the SCOU’s work is too little to justify its proposed expansion.

“Will the 21 really have work?” Mr Wandera-Ogalo asked. “You can expand the Court of Appeal because that means people don’t have to crowd from Fort Portal, from Arua, from Jinja, to come to Kampala. So, the expansion of the Court of Appeal makes sense, but expansion of the Supreme Court justices to 21; I am not buying it. …. many people don’t reach there. Many people lose steam at the Court of Appeal level. We have been in these and we know.”

He added: “If you have 11 in the Supreme Court and you are looking at judgments from Court of Appeal of three judges, that means at any time, you can have two panels sitting: 5-5.” 

CJ Dollo begs to differ. He tells Saturday Monitor thus: “With the expansion of judicial officers, more people will be interested in litigation because they won’t wait for four or three years for their cases to conclude. I want, if a case spends six months in court, the judicial officer must write to the Chief Justice explaining why it has taken that long.”

He added: “When you build a base, you know the appeals will go up. That’s why we are expanding the Court of Appeal from 15 to 56. You know the people from Kisoro won’t appeal to the Court of Appeal because Kampala is far… How many more people, who are dissatisfied now, will appeal after the Court of Appeal is in Mbarara? They will be a lot more than when the court was in Kampala.”

Whilst some Americans are vouching to expand the Scotus to ensure the bench is representative of their ideological thinking, legal experts in Uganda believe the SCOU’s proposed expansion is all about getting jobs for people who identify with the regime and also winning back Uganda’s middle-class professional elites.

“This must now be a spillover effect of the patronage system. They cannot expand the Cabinet any further and Parliament comes with its own hurdles. So, they have to bloat the Judiciary with the petite bourgeoisie,” Isaac  Ssemakadde, the chief executive officer of Centre for Legal Aid, tells Saturday Monitor.

Supreme Court’s in-tray

There are currently a number of politically sensitive cases before the Supreme Court of Uganda (SCOU) justices.

Poma case

The court is yet to determine the fate of Section 8 of the Public Order Management Act (Poma), which police used to cite before dispersing Opposition rallies and gatherings. This comes after the Constitutional Court nullified that particular section.     

“…the said provision became a tool that the police directed to partisan purposes under the guise of preserving public order. All efforts must be made by all arms of government to protect this young constitutional democracy,” Justice Chebrion Barishaki of the Constitutional Court ruled in his lead judgment of 2020, adding, “The enactment of Section 8 of Poma by the Legislature following this court’s decision striking down a similar provision in the Police Act was a blatant attempt at disregarding the checks on legislative powers.” 

Civilians in court martials

The SCOU has also to deliver a judgment concerning the legality of trying civilians in a military court, which the Constitutional Court found unconstitutional but the Attorney General appealed.   

“The practical effect of all this is that by operation of Sections 119 (1) g and h of the UPDF Act, the General Court Martial and any other military courts under the said Act, are purported to be vested with jurisdiction to try anyone in Uganda, whether a member of UPDF or not for any crime under the Penal Code Act or any other enactment. All that is required for this to happen is to allege that one who is a civilian aided and abetted one subject to military law to commit that crime,” Justice Remmy Kasule of the Constitutional Court, who has since retired, said. “This is grossly unconstitutional since Article 210(b) [of the Constitution] restricts the General Court Martial and any other military court to exercise jurisdiction as to discipline over only members of the UPDF.”

He also proceeded to note thus: “By the General Court Martial extending its jurisdiction to try civilians, who are not members of the UPDF in respect of all offences under the Penal Code Act and other enactments, it subjects ordinary civilians to criminal prosecutions that have no safeguards of a fair trial and proper administration of justice, the ensuring of which is a constitutional duty of the DPP. This is inconsistent and in contravention of the intent, purpose and overall spirit of Articles 28(1), 126(1), and 210(b) of the Constitution.”

Public opinion

The two cases will have an effect on how people perceive the Supreme Court. While the jury is out, some legal experts reckon the verdicts in either case will not realign long-standing views.

“You will begin to see a statute Judiciary that is defined purely by intellectual rigor and competing for ideological values like those of the United States Supreme Court only after Yoweri Museveni and all those who lived through the so-called Idi Amin days have ceased occupying the larger-than-life status, which they currently occupy in our public life. Until then, expect the status quo of a captive, haunted Judiciary to continue,” Ssemakadde said.

Chief Justice Alfonse Owiny-Dollo concludes thus: “The person who says there is no work [at the Supreme Court] is thinking of the present. If you are expanding the High Court, then you have to expand the Court of Appeal and also the Supreme Court. That’s the argument. We didn’t wake up and say we need to expand these courts.”