The enduring legacy of Benedicto Kiwanuka

I thank Chief Justice Bart Katureebe for inviting me to give this inaugural lecture in memory of the first Ugandan Chief Justice of our country, the late Benedicto Kagimu Mugumba Kiwanuka. I am not sure what prompted the invitation, given the many excellent choices that were open to the Chief Justice. I have wondered whether this was informed by the fact that I am the one who succeeded Chief Justice Benedicto Kiwanuka as Chief Justice or whether this choice was simply fortuitous.
As you are all aware, the late Chief Justice was picked from his chambers on these very grounds by state actors of the government of the day, and to this day, has never been seen alive.

I still vividly recall that day –September 21, 1972 – when the late Chief Justice was abducted. I remember coming to this High Court on that day, and being immediately struck by an eerie silence which appeared to engulf the entire grounds. I rang the Chief Registrar to enquire into what might have happened.

He said: ‘Don’t you know? The Chief Justice has been taken!’ In shock, I responded: ‘Whatever for?’ No satisfactory answer was, of course, forthcoming at that time. I do also remember that, before that fateful date, following Idi Amin’s release of Benedicto from prison, and his appointment of him as Chief Justice, the late Benedicto always sat very close to the president at all state functions. Over time, I noticed a growing distance between the two, with the Chief Justice being progressively moved from the first row, then the second, and the third and so on. I was compelled to ask Benedicto: ‘What is happening?’ His response was: ‘I don’t know. Let us wait and see.’

Why I succeeded Kiwanuka
It may be apposite, in this regard, to ask why I succeeded the late Chief Justice, knowing that I could be the next victim. At the time, I thought that maybe the murder of one Chief Justice was one too many and that not even Idi Amin could try it a second time.
In the event, I would myself survive that dark period – and go on to serve as Chief Justice on two other occasions. It is perhaps also because of this vantage position, that Chief Justice Bart Katureebe thought I would do some justice to this reflection on the late Benedicto Kiwanuka’s life and service and the meaning of his legacy for judicial power and constitutionalism in contemporary Uganda.
In my view, to truly appreciate the legacy of Benedicto Kiwanuka, it is important to understand something of his life – as well as the circumstances of his death.
Life and death of Benedicto Kiwanuka
Benedicto Kiwanuka was born on May 8, 1922 – about 20 years after the establishment of the first High Court for the Uganda Protectorate, and long before any Africans would be appointed judges in that Court. Benedicto would be one of the first Ugandan lawyers, gaining admission to the Gray’s Inn [ one of the four Inns of Court (professional associations for barristers and judges) in London, UK] in 1956. He would rise to be the Chief Minister in July 1961, and the first prime minister of Uganda when the country achieved internal self-government on March 1, 1962. He would also become the first Ugandan Chief Justice of our country.

Fight for Independence
He played a critical role in securing the independence of Uganda, and was a major figure in the early post-colonial life and politics of the nation. His political activity led to his imprisonment by president Milton Obote in 1969. He would eventually be released, alongside about 54 other political prisoners, by Idi Amin following the 1971 coup. Amin then appointed him Chief Justice on June 27, 1971.
It would appear that the immediate cause of Kiwanuka’s murder was his refusal to sacrifice the rule of law to satisfy the dictates of Idi Amin. For this, Benedicto would be killed on September 22 at Makindye Military prison, in the most harrowing of ways. Unfortunately, to date, neither the people of Uganda nor his family have been accorded the opportunity of being able to give his remains a decent burial. In addition, no arrests have ever been made, nor any prosecutions undertaken against those believed to be responsible for the abduction and murder of the late Chief Justice. The failure to provide justice to the late Chief Justice in itself exposes the depths to which we had sunk as a country. I am reminded, in this regard, of Genesis Chapter 4, verses 10 to 12, in which we are informed that the Lord said to Cain, who had killed his brother Abel:
What have you done? The voice of your brother’s blood is crying to me from the ground. And now you are cursed from the ground, which has opened its mouth to receive your brother’s blood from your hand. When you work the ground, it shall no longer yield to you its strength. You shall be a fugitive and a wanderer on the earth.
It seems to me that Benedicto Kiwanuka’s blood continues to cry out from the ground, asking that his death not be in vain, and that his legacy of a fearless commitment to justice and the rule of law be protected as a national trust and heritage.

Kiwanuka’s legacy
The core of Kiwanuka’s legacy is the need for unwavering judicial independence even in the face of great challenges.
The post-independence Ugandan Judiciary did not have a solid foundation in the tradition of judicial independence. The legacy of Kiwanuka – of judicial commitment to the rule of law in the face of impossible odds – is, therefore, even the more incredible and enduring given the poisoned chalice of judicial subservience and deference inherited from the colonial period.
If this is the legacy of Kiwanuka, the natural question, I think, that arises for us today is this: If the late Benedicto Kiwanuka were alive today, and he was speaking to us now in Uganda, what would he be saying to us?

Current challenges
I am sure that Benedicto Kiwanuka would survey the current state of constitutionalism and the rule of law in Uganda today and draw our attention to the matters which need our immediate attention. He would then provide some possible solutions.
What then is the state of constitutionalism and the rule of law in Uganda? Certainly, progress has been registered since the very dark days of Idi Amin.

But, are we there yet? And, in any case, where should we aspire to be?
In this regard, apart from the guarantees of judicial independence under Chapter Eight of our Constitution, we can look to international and regional standards regarding judicial independence and the administration of justice. In particular, the African Commission at its 19th Ordinary Session in Burkina Faso, adopted a very strong resolution on the Respect and Strengthening on the Independence of the Judiciary.

In this resolution, the African Commission requires African States to: i) repeal all their legislation which are inconsistent with the principles of respect of the independence of the Judiciary, especially with regard to the appointment and posting of judges; ii) provide, with the assistance of the international community, the Judiciary with sufficient resources in order to enable the legal system fulfil its function; iii) provide judges with decent living and working conditions to enable them maintain their independence and realise their full potential; and iv) incorporate in their legal systems, universal principles establishing the independence of the Judiciary, especially with regard to security of tenure.
As against these standards, Uganda faces a number of challenges in the context of administration of justice.

Intimidation and disrespect of the judicial branch
There remains significant intimidation and disrespect of the Judiciary and judicial officers. One of the ways this has manifested has been in terms of the defiance of court orders by government officials. I will only cite a few examples.
In June 2004, following the Constitutional Court’s finding that the Referendum (Political Systems) Act of 2000 was invalid, the head of State, on national television, informed the country that the Judiciary essentially had no significant role to play in the affairs of State, noting that: ‘The major work for the judges is to settle chicken and goat theft cases but not determining the country’s destiny’.
In addition, in November 2005 a paramilitary group invaded the precincts of the High Court and prohibited the release of suspects who had been granted bail.

This would re-occur on March 1, 2007. On that day, after the grant of bail to suspected rebels by the High Court of Uganda, a group of armed men – presumably belonging to a security forces unit known as the ‘black mambas’ – invaded these very grounds. After surrounding the precincts of the court, they undertook an operation which frustrated the bail granted to the suspects and prohibited their release as per the court order.
Later, in November 2013, during proceedings to impeach Lord Mayor Erias Lukwago, the line minister, Mr Frank Tumwebaze, opted to proceed with a meeting called for this purpose, notwithstanding a court order forbidding the same. Indeed, on that occasion, the advocate who attempted to deliver the order was severely assaulted by police, who had formed a fortress around the meeting venue.
In 2016, on August 10 to be precise, a mob appears to have been mobilised to prevent efforts to institute a private prosecution, under the Prevention and Prohibition of Torture Act, against the then Inspector General of Police, Gen Kale Kayihura. The mob threatened lawyers at the Chief Magistrates Court in Makindye, forcing them to seek sanctuary in the chambers of the then Chief Magistrate Richard Mafabi (now deceased).
Perhaps most recently, this disrespect has been expressed in a July 2018 speech by the head of State, following the decision rendered by the Constitutional Court in the ‘age-limit petition’ in which he said that ‘the judges are not the ones in charge of the country’ and that the NRM MPs and the people could ‘make the necessary Constitutional reforms, judges or no judges’.

Suffocation and disempowerment of the Judiciary
The above trend points to the fact that there is still so much to do if we are to achieve the full independence of the Judiciary. The intimidation and disrespect of the Judiciary aside, there is an even more insidious pattern of disempowerment of the Judiciary through denying it any meaningful operational funds.
This has been highlighted on several occasions by various stakeholders, both from within and outside the Judiciary, over a long period of time.

For instance, during celebrations to open the new law year 2015/2016, the then Acting Chief Justice Steven Kavuma noted that the state resource allocation to the Judiciary was grossly insufficient.
The inevitable result of this under-funding is evident in terms of the human and other resources available for justice delivery. According to a report by Parliament Watch Uganda:
Only 53 Per cent of court houses throughout the country are housed in Judiciary owned buildings, while the rest of the courtrooms are either rented premises or buildings of local administration in the respective districts. The Court of Appeal in Kampala is renting a building where there is a bar on one floor, a bank on another and a restaurant on the other. The security of the judicial officers in such circumstances cannot be guaranteed.
The effects of these challenges to the administration of justice are manifest. The intimidation and underfunding of the Judiciary leads to a less effective, less motivated and less robust judicial branch. In this regard, the numbers – in terms of unresolved cases or ‘case backlog’ – speak for themselves. According to the 2015 National Court Case Census, for instance, the case backlog amounted to 114,809 cases.

More to be done
Although there are measures the Judiciary can take to mitigate this fundamental malaise, it is clear that the core cause of this situation is a fundamental and structural one – to do with facilitation of the judicial branch – and which ultimately must be resolved at that level. As Chief Justice Bart Katureebe observed at the opening of the present law year, the Judiciary’s efforts to wipe out case backlog have been ‘severely affected by a critical shortage of judicial officers and prosecutors and logistical challenges and underfunding of the courts’.
Indeed, in March 2016, the ceiling of the Court of Appeal premises collapsed. Luckily, no litigants or judicial officers were injured. However, the roof caving in, literally, is a most symbolic reminder of the dire state of the Judiciary in Uganda today.”

Concluding thoughts

I will end with a few reflections as to what we must individually and collective do if we are to truly respect and live up to the legacy of Benedicto Kiwanuka.
First, in light of the continuing challenges to constitutionalism and the rule of law in Uganda, the enduring legacy of Benedicto Kiwanuka must be that there must be an end to impunity in our country by State actors, and this seems to be as much a problem today as it has been in the past with maybe variations of extent.
Second, in the fight against impunity, the Judiciary and its courts play a cardinal role in concert with the other players in the criminal justice system of the country. For the Judiciary to play its true role, there are prerequisites that it must possess. First of all, it must be manned not by one Benedicto Kiwanuka but many ‘Kiwanukas’. The integrity of the judges and magistrates must be unquestionable. These men and women must also possess sound learning. These qualities were evidently in ample supply in Benedicto Kiwanuka.

The men and women that preside over our courts must display courage and fortitude to speak the truth to power at all times, through their judicial decisions and through other appropriate fora.

They must do this even though they know that the powers that be will no doubt be annoyed by such decisions and will, at the very least, deride them with all sorts of name calling. As the example of Kiwanuka demonstrates, Ugandan judges in the past have not been found wanting when truly tested in this regard. I am gratified, also, that we have recent examples of robust responses to the Executive overreach.

For example, after the vigilante attack on the Chief Magistrates’ Court in August 2016, the Chief Justice Bart Katureebe firmly pointed out to the State and the population that the rule of law had to be followed, if anarchy was to be avoided. The Judiciary should continue to be this bold, if it is to struggle through the current and future hazardous times.
Third, I think it is time the role of the Chief Justice as a vital part of the Judicial Service Commission was reconsidered. It will be recalled that under the 1967 Constitution, the Chief Justice headed the Judicial Service Commission, and was, therefore, able to play a significant role in the appointment and discipline of judicial officers. This was altered under the terms of Article 146 of the 1995 Constitution. The result is a situation where all three senior members of the Judiciary – the Chief Justice, Deputy Chief Justice and Principal Judge – who head the Judiciary, the Court of Appeal and the High Court, respectively – have no role in ensuring that only fit and proper persons are appointed to, and remain on the Bench. This is an anomaly, which should be urgently corrected if we are to achieve a truly functional and effective Judiciary.

Respect for the Judiciary
Fourth, the Judiciary should be respected by all institutions of the Executive branch, including the Directorate of Public Prosecutions, the Police Force, the Prisons Services and all other security agencies. Ideally, before a person is charged with an offence, there should be credible evidence to support the charge. Indeed, in many cases, this time honoured practice is respected. However, increasingly, there is a group of persons who are arrested first and charged in different courts and investigations commence thereafter.

These charges often relate or have their source in political differences of the day. Reports of torture of these suspects are common place. This divergence in the handling and treatment of suspected law offenders is at the heart of the problem that our nation faces today, and must be addressed without delay.

Independence of the Judiciary
Fifth, the independence and effectiveness of the Judiciary is linked to the health and well-being of the other branches of government, including the Parliament. Parliament as the branch of government responsible for legislation and oversight over the two other branches of government, should be respected and protected. The invasion of Parliament by armed personnel last year, for instance, was as egregious a violation of the sanctity of that chamber as were the armed intrusions onto these very grounds, as I have described earlier.

Parliament too, should respect and support the other branches of government, including the Judiciary. Only in this way can we achieve the democratic government we committed ourselves to under the 1995 Constitution.
Over the last three decades, we have seen what was heralded as a fresh start for the nation. A new Constitution was promulgated. Old institutions were revamped and new institutions were created to foster a new Uganda.

All manners of reforms were planned and executed. We were filled with hope. I had the privilege to head the Judiciary for part of this period, and I must take responsibility for my part in all this. However, it has been 18 years since I retired. My successor too retired. And now it is Chief Justice Bart Katureebe’s responsibility to take the Judiciary forward. In this regard, he will require the support of all judicial officers and support staff.
The Judiciary, with the Chief Justice at its helm, should be united in a commitment to fulfilling the Constitution promise of doing justice to all manner of persons, without fear or favour. In that way, we shall be able to truly honour and exemplify the rich legacy of the late Chief Justice Benedicto Kiwanuka.