What you need to know:
- The Constitutional Court has in recent months made headlines by issuing judgments that have been praised as progressive by legal analysts.
- As the court mandated to interpret the Constitution clears its in-tray, Derrick Kiyonga writes that the optics have not been good for Uganda’s apex court where a heap of critical case files are gathering dust.
Attorney General (AG) Kiryowa Kiwanuka didn’t waste time with a notice of appeal to the highest court in the land, making it clear that he will challenge the Constitutional Court judgment that annulled a section in the Computer Misuse Act that criminalised offensive communication.
“Take notice that the respondent is dissatisfied with the decision and orders of Justice Richard Buteera, DCJ; Justice Kenneth Kakuru, JA/ JCC; Hon Geoffrey Kiryabwire, JA/ CC; Hon Lady Justice Elizabeth Musoke, JA/ JCC; [and] Justice Monica Mugenyi, JA/ JCC given at the Constitutional Court of Uganda sitting at Kampala on January 10, 2023; intends to appeal to the Supreme Court of Uganda at Kampala against the whole said orders therein,” the Attorney General wrote in his intention to appeal.
Should the AG concretise the appeal through filing a memorandum of appeal, the workload of the Supreme Court will increase that bit more. The court has so far failed to deliver judgments in a number of critical cases that touch on the democratisation process of Uganda and delivery of justice.
In 2021, the Constitutional Court, in a majority decision of 3-2, outlawed the trial of civilians in military courts following a petition filed by Mr Michael Kabaziguruka. The former Nakawa MP, in 2016, petitioned the Constitutional Court over his trial by the General Court Martial on treason charges.
The State has the right to try civilians in the military courts, thanks to Sections 119 (1) g and h of the UPDF Act No7/2005, sub-sec (g), that stipulate: “…. every person, not otherwise subject to military law, who aids or abets a person subject to military law in the commission of a service offence; and (h) every person found in unlawful possession of (i) arms, ammunition or equipment ordinarily being the monopoly of the defence forces; or (ii) other classified stores as prescribed, is subject to military law, and can be tried in military courts as appropriate.”
The Constitutional Court moved to quash all this following Mr Kabaziguruka’s petition.
“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, who was joined by Justice Kenneth Kakuru and Hellen Obura in outlawing the trial of civilians in military courts, 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,” Justice Kasule ruled.
He further reasoned that the provisions in the UPDF Act subject 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 Director of Public Prosecutions (DPP). He concluded that this was “inconsistent and in contravention of the intent, purpose, and overall spirit of Articles 28 (1), 126(1), and 210(b) of the Constitution.”
The Constitutional Court, among other things, ordered that military courts hand over files of civilians under its custody to the registrar of the High Court’s criminal division. This order, inter-alia, nevertheless couldn’t be implemented because the AG reacted by running to the Supreme Court. Mr Kiwanuka got an injunction freezing the Constitutional Court’s decision.
In 2021, a Supreme Court Coram of seven justices that included Chief Justice Alfonse Owiny-Dollo, Stella Arach-Amoko, Rubby Opio Aweri, Faith Mwondha, Prof Lilian Tibatemwa, Ezekiel Muhanguzi, and Mike Chibita heard the AG’s appeal.
Nearly two years later, the Supreme Court is yet to deliver the much-awaited judgment. This has left the litigants perplexed. “They said they will be delivering the judgment on notice, but they have never notified us. It’s a known principle that justice delayed is justice denied because now I remain suspect and I remain under the same conditions that were set by the court [High Court Criminal Division],” Mr Kabaziguruka told this publication, adding that he cannot “think straight” because he has been “denied some liberties.”
Buck stops with CJ
Critics of the Supreme Court like Mr Isaac Ssemakadde—the chief executive officer of Legal Brains Trust (LBT)—blame CJ Owiny-Dollo. They cite Rule 20 of the Supreme Court rules that states: “The sittings of the court and the matters to be disposed of at those sittings shall be determined by the Chief Justice and shall be advertised and notified in such a manner as the Chief Justice may direct; but nothing in these rules shall preclude the court from disposing of any business that has not been advertised or notified.”
CJ Owiny-Dollo told Monitor that the delivery of judgments at the Supreme Court was complicated when Justices Muhanguzi and Paul Mugamba retired last year. “We have not had justices until recently when [Justices Christopher Madrama, Elizabeth Musoke, and Stephen Musoke were appointed].”
Out of the seven justices who were on Mr Kabaziguruka’s case, it is only Justice Muhanguzi who has retired. It’s not clear whether the panel will be reconstituted to draft in a new judge. “Once the justices arrive at the Supreme Court, we shall call lawyers to decide on what to do because we have submissions. So, we shall consider if we get any of the new judges to study the submissions or we repeat the hearing,” Justice Owiny-Dollo said.
Another headache that Justice Owiny-Dollo has is what to do with cases in which Justice Opio-Aweri—who died late last year—was involved in but judgment was never delivered. “That’s the problem now the Supreme Court has. Did Justice Opio-Aweri die after writing judgments of the cases he had heard? If not, will the cases be heard again?” Mr Caleb Alaka, one of the lawyers who represented Mr Kabaziguruka in the Supreme Court, wondered.
As the Supreme Court is still procrastinating, the Constitutional Court has kept piling the pressure. This was certainly the case at the end of 2022 when it—for the second time—ruled that trying civilians in military courts is unconstitutional. In a majority judgment of 3-2, Justice Musoke—who was joined by fellow Justices Kakuru and Kiryabwire—agreed with retired army officer Capt Amon Byarugaba, Hasibu Kasiita and Mathias Rugira that the army court can’t try civilians because Parliament wrongly gave it the jurisdiction to do so.
“In the present case, the 1995 Constitution places limits on Parliament legislative power with regards to the establishment of courts of judicature to try civilians to the circumstances stipulated under Article 129 (1), namely power to establish a subordinate court of judicature. The other courts of judicature were established by the framers and listed under Article 129 (1), and these are the Supreme Court, the Court of Appeal, and the High Court,” Justice Musoke ruled.
“In my view, Article 29 (l) sets out an exclusive list of courts that may exercise judicial power with regard to civilians. Therefore, for that purpose, Parliament has no power to establish a court under another provision of the 1995 Constitution. Certainly, it could not proceed to do so under Article 210, which concerns the UPDF, for the framers of the 1995 Constitution never intended for the UPDF to be vested with judicial functions in respect to civilians,” she added.
Cost of the backlog
The Supreme Court is also struggling to hear cases in which billions of shillings are at stake. For instance, in 2020, following a petition filed by LBT, the Constitutional Court ordered businessman Hassan Basajjabalaba to refund to the Central Bank Shs142b he got from the markets and Constitutional Square lease compensation.
Although on paper it looked like it had secured a victory, LBT wasn’t satisfied. It dashed to the Supreme Court contending that the Constitutional Court had shielded commercial banks such as Orient and Tropical from liability yet according to the civil society organisation, they had participated in scrupulous transactions.
In 2021, when the case came up before Justices Owiny-Dollo, Arach-Amoko, Opio-Aweri, Mwondha, Tibatemwa, Muhanguzi, and Chibita, it was adjourned on the account of the death of veteran lawyer Joseph Byamugisha—the lead counsel of Bank of Uganda. When time passed by without a hearing from the Supreme Court, the Centre for Legal Aid—which represents LBT—wrote to the Supreme Court complaining about the delay.
“An adjournment of more than 15 months is difficult to justify to our clients,” the Centre for Legal Aid wrote, adding, “The central bank, four financial institutions, two former senior ministers in the Cabinet, and five companies associated with Mr Hassan Basajjabalaba are implicated in this 11-year-old multimillion-dollar anti-corruption and asset recovery claim involving a wide range of issues for constitutional interpretation.”
The gravity and nature of the issues at stake, the Centre for Legal Aid said, “including a claim for interest are such that they demand an expeditious disposition in the interest of the nation. Accordingly, we humbly pray that the matter is allocated to an early hearing date in the next possible constitutional session.”
Apex court in flames
Hearing of cases at Uganda’s apex court was further exacerbated when a fire outbreak in the Chief Justice’s chambers put it under lock and key.
“The landlord has been duly notified to assess and rectify the defects. For these reasons, the top management of the Judiciary has decided, and I hereby direct that the Supreme Court be closed as the premises undergo renovations and rectification of defects,” Justice Owiny- Dollo wrote last May.
While the Supreme Court has got new premises, a tug-of-war between Justices Owiny-Dollo and Esther Kisaakye means Uganda’s apex court can’t catch a break.
The fallout essentially started as soon as Justice Owiny-Dollo took over the office in 2020, but came to public view in 2021 during the hearing of the presidential petition filed by former presidential candidate Robert Kyagulanyi, aka Bobi Wine, challenging President Museveni’s victory in the 2021 polls. It has since been taken to the Constitutional Court. Justice Kisaakye has taken on the entire Judiciary, accusing them of sidelining her to the point of denying her a salary.
Rumblings aside, litigants would want to see the Supreme Court hearing cases and issuing judgments. One of the cases that the court has not heard is the appeal by the Attorney General challenging the Constitutional Court judgment that annulled the controversial Section 8 of the Public Order Management Act (POMA) that was invoked by police to crush Opposition gatherings.
POMA defines a public meeting as a gathering of two or more people and every organiser is required to fill out a form at a police station. Therein that person has to state his or her name, physical address, postal address, immediate contact, occupation, and age.
Justice Cheborion Barishaki led the Constitutional Court in nullifying it. He said the provision had become 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. 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,” Justice Barishaki ruled in a petition filed by Human Rights Network, the Development Network of Indigenous Associations (DENIVA), the Uganda Association of Women Lawyers (FIDA), Butambala County lawmaker Muwanga Kivumbi and Rtd Bishop Zac Niringiye.
Mr William Byaruhanga, the AG at the time, filed a notice of appeal. He made clear his intention to appeal the judgment. “Take notice the Attorney General being dissatisfied with judgments/orders of Justice Cheborion Barishaki, Justice Geoffrey Kiryabwire, Lady Justice Elizabeth Musoke, and Justice Kenneth Kakuru dated March 26, 2020, intends to appeal to the Supreme Court against judgment.”
Three years later, the Supreme Court has never heard the case and the parties seem to be not interested.
“I prefer not to comment on the matter,” Mr Onyango Owor, who represented the petitioners at the Constitutional Court, told Monitor.