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Well, isn't it nice to live in a democracy? It seems like eons ago when we bitterly complained about the judiciary's frailty in the face of a Godzilla-like executive branch of government, (see, 'It's Newspaper Style to Leak Gov't Secrets,' The Monitor November 26, 2003).
Then, in a space of just 14 days, the six wise old men (and woman) of the Supreme Court handed down two judgements that were stunning both in their emphatic unanimity, and in the potency of their political undertone.
On January 29, the Supreme Court annulled the Constitutional Amendment Act 2000.
The act was the enabling law for the controversial referendum on political systems in the same year, although it was passed after just two hours' debate, contrary to the procedural rules of Uganda's Parliament.
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IT IS WRONG: Some of the Justices of the Supreme Court (L-R) George Kanyeihamba, Arthur Oder and Benjamin Odoki at last week's ruling (File photo). |
In practical terms the ruling has severely weakened the NRM's ability to hold a referendum to lift Article 105 (2) that limits presidential term limits.
The Supreme Court also struck down the draconian provision that protected Parliamentary records (the Hansards) from public scrutiny, especially during court proceedings.
Thirteen days after that judgment, the same court declared certain sections of the Penal Code Act (1964), relating to the publication of false news inconsistent with the constitutional guarantees of freedom of _expression_ and of the press.
In plain English, the learned friends affirmed that government had no business prosecuting journalists for publishing false news by claiming that this would alarm the public.
Well, first; years of dodging political judgements; then two in two weeks. The good Justices are anything but poodles. This is indeed why we have three branches of government. The Executive (NRM) proposes laws and executes them. It makes budgets, names streets, fights Joseph Kony, Rwanda, the Kabilas, etc.
The Legislature (the Parliament of Uganda) makes laws to guide these Executive policies. It passes finance and taxation laws, it lays down the law for the naming of streets and passes laws to fight wars (though it has not had much luck in influencing recent foreign adventures), and generally passing some good, some bad, and occasionally some ugly laws.
The Judiciary settles disputes in both private and public life according to laws proposed by the Executive and passed by the Legislature.
For example, if you are a big man who has children with a woman you no longer want to see or be seen with, that woman can sue for child support and not only embarrass you, but force you through the courts, to pay up. Essentially, the Judiciary is punishing sexual dalliances past, and present bad manners.
The courts also settle disputes between the political types, as the above two rulings clearly indicate. So while we should enjoin impartiality on the judges, we should not expect their rulings not to have any political resonance (which inevitably pisses off some sections of society).
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POWERFUL? The Supreme Court at Mengo, Kampala (File photo). |
It is the same way the other ttwo government branches work. In 1990, an Executive decision awarded an extra (and free) 1.5 weighing points to the entry grades of women who were entering Makerere University. The Gender Weighing Scheme boosted women's numbers at the University, but it also prevented some deserving men from joining the University, or studying their preferred courses because a few 'empowered' women were taking their places.
No matter how you wing it, guys in this particular constituency will forever be bitter about what they can only see as an unfair decision that blocked them from a free and deserved university education.
In early 1998, the Legislature passed the Income Tax Bill with a woeful lack of quorum (we know this thanks to the Hansards).
This law raised the percentage of workers' income that was eaten up by Paye As You Earn (PAYE) to 30 percent and made almost all allowances including actual lunch and transport money liable to tax.
The good MPs then returned with another law (this time with quorum) that exempted them from this taxation. Only professional people who earn Shs 500,000 and are taxed can appreciate the bitterness compared to MPs who earn Shs 5 million and are not taxed.
It's a terrible thing, this politics; but it's also the way of the world.
Have no doubt therefore that the Judiciary is also as much a political player as the other two branches of government.
In the very recent past for example, the courts have stopped The Monitor from publishing the Constitutional Review Report and the Tinyefuza Inquiry into UPDF's Ghost Soldiers, apparently because the publication of these reports would alarm the public.
Forget the law for a moment and ask a common sense question: would it? The CRC collected all its views in plain view from all interested parties. So, we all knew going in, that the NRM wanted an imperial life presidency; it wanted to abolish the Human Rights Commission; it wanted to dilute the powers of the Inspector General of Government; it wanted to reduce the qualifications of potential judges and change their tenure from life appointments to contracts; it also wanted permission to grab people's land.
We knew all this before Prof. Fredrick Ssempebwa's team penned the CRC report. Also, thanks to some very public statements from the President, his Minister of Defence, Army Commander and the General Court Martial, we are all aware that UPDF is riddled with ghost soldiers, and has had them possibly since 1990 when 10,000 odd Rwandans deserted to form the Rwandese Patriotic Army.
So which Ugandans was the Bench kidding when it upheld government assertions that publication of this very public information would cause public alarm?
What about the 2001 Supreme Court ruling that affirmed Col. Kizza Besigye's assertions that President Museveni's electoral win had been marred by massive rigging, state-inspired violence and intimidation, but still failed to rule in his favour?
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| AFTER THE RULING: (L-R) Alex Rezida, Andrew Mwenda and James Nangwala bask in victory (File photo). |
One has to be truly naïve not to see the political nature of these rulings. Court-enforced prior restraint against the media goes against several articles of the Constitution-especially Articles 20-21; 29; 38; and 41-which is the supreme law of the land.
In the Besigye case, the Justices clearly agreed with him but could not push the envelope any further, which is understandable in the prevailing acrimony of that presidential election.
The wise men must have pondered all the unknowns (remember all those senior UPDF officers who had campaigned for, and said they would never serve anyone but Commander-in-Chief Lt. Gen. Museveni?).
They must also have pondered the huge financial cost of another election. They decided not to be responsible for the potential chaos that would follow a fair but calamitous judgement.
So while law experts believe the Supreme Court erred in indicting the election and simultaneously upholding it, one can understand where they were coming from. The judges, like other Ugandans, have lived through some very bad times, when it was not even possible to seek court redress for anything, leave alone to challenge the government.
All over the world, courts of law make these kinds of political rulings. Most (in)famous is perhaps the 2000 US Supreme Court ruling that halted Al Gore's campaign to have a Florida vote recount, a decision that ultimately denied him the presidency. Briefly, Gore beat George Bush by more than half a million popular votes, but had to win Florida's Electoral College votes to secure the White House.
It transpired that many poor people in Florida (who usually vote for Gore's Democratic Party) had been unfairly, even illegally, barred from voting by the Republican-led state bureaucracy headed-surprise, surprise-by Bush's brother and State Governor, Jeb Bush.
The legal machinations that unfurled in the 36 days between the November 7, 2000 poll and the December 12, 2000 US Supreme Court ruling exposed the humbuggery of the US electoral system for all to see, and culminated in probably the most political decision ever handed down by the nine judges of America's highest court.
Voting strictly along ideological lines, the US Supreme Court ruled 5-4 that the US electoral process had to be completed by midnight on December 12, 2000.
This effectively left Al Gore with the impossible task of forcing a Republican-led State of Florida to speed-recount all the votes in the state in the few hours before the midnight hour.
It was a bridge too far, and Gore conceded.
The initial squeamishness of President Bush's first year in power (especially before September 11, 2001) therefore, dates back to that December day when the five Republican-appointed Justices used their numerical strength to defeat the four Democrat-appointed Justices.
Most telling of the political nature of this ruling was the declaration that the verdict would only be binding in the specific matter of Bush vs. Gore, and never be used as a precedent, which is standard practice with Supreme Court decisions all over the world. Obviously, the Justices felt a bit embarrassed.
One of the dissenting Justices, John Paul Stevens even wrote a minority report saying, "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
Again in the US, the State Supreme Court in the US state of Massachusetts declared last month that it was unconstitutional for homosexual couples to be denied the right to be wedded in exactly the same fashion as straight couples. As of May 1, 2004, therefore, Massachusetts will give gays vows similar to those in Namirembe and Rubaga Cathedrals.
Even more controversial than gay marriage however, is the April 10, 2001 Dutch law that permits both euthanasia and assisted suicide, making it possible that you can jump on KLM/Kenya Airways and head to Holland only so the doctor can help kill you off!
Believe it not too, a murderous villain like Joseph Kony would be spared his life if he were tried before a court in the European Union (now with 25 countries), because they have adopted a protocol that bans the death penalty in all circumstances.
Even Osama bin Laden would escape the guillotine because Protocol No. 13 to the European Convention on Human Rights clearly states that: "[the EU] reiterates its longstanding and firm position against the use of the death penalty in all circumstances - a punishment which impairs the human dignity, increases the level of brutality and provides no added value in terms of deterrents.
"Consequently, the death penalty is abolished in all European countries," the Protocol declares. All over the world, courts have legalised prostitution, the recreational use of marijuana, given the same rights to life of human beings to animals, and a slew of other socially off-colour stuff.
There are many among us who would disagree, even cringe at these legal extremities of the law. But fact is, living with others requires tolerance.
Especially if these people have been allowed to be what they are by a competent court. It's often said that the true test of a democrat is the humility to tolerate views we disagree with.
It has recently been mentioned in these pages that when the courts rule for the government, there is no official reaction (except some smugness perhaps), but when they rule for the Democratic Party, or against an NRM Member of Parliament in an election petition, then they are villainous and disruptive.
The bench has for example, been awarding huge sums of money against the government, but barring the clear conflict of interest cases (like some ministers whose law firms have won huge awards against the government they work for), many of these verdicts have been the result of an out-gunned, out-numbered and out-sourced Attorney General's Chambers.
Attorney General Francis Ayume recently acknowledged that his State Attorneys are no match for the lawyers-for-hire. And no wonder...they earn Shs 500.000 per month, compared to Shs 300 million for some private lawyers according to Ayume.
It's not all money either. The Messrs & Co. Adv. are smarter, more read, more motivated and more ambitious. They are indeed more likely to have won the Attorney General's Prize and the Chief Justice Prize (awards given to the top law students at Makerere University and the Law Development Centre), than the State Attorneys.
But what happens when decisions go against the government? Well, President Museveni's position is very clear: the Judiciary is out to get his government; and if he had his way, he would replace most judges with NRM cadres.
This is probably the sentiment behind the proposal to lower the number of years one needs to be eligible for appointment to the bench. NRM cadres who came of age in the years since 1986 are not anywhere near raking up the time that CJ Ben Odoki or JSC Joseph Mulenga have put on their clocks.
It is in this overall socio-economic context that these court rulings must be read. As equal but separate partners in the running of the Republic of Uganda, the judges (certainly the ones at the top of the food chain) are demanding for legislative and political reforms before Uganda can join the other democracies.
It's not enough to have a constitution as comprehensive as ours (it even guarantees the right to a clean environment!), but then whittle down citizens' rights with a systematic and blatant disregard for the same law.
No one can control private thoughts and conversations, so stories of the condescending arrogance of the ruling elite regarding their right to run the affairs of Uganda cannot be tested in a court of law.
But it's comforting to know that there are many hypocrites in the NRM ranks who publicly proclaim the sovereign rights of peasants (including their right to elect a life president), while privately despising them and calling them village idiots. If the current Kenyan situation is good for anything, it should teach us all to have a little humility.
In the meantime, a political image clean up would not hurt. It would for example, help for the Constitution to have only one provision about eligibility for election to public office, including the presidency: anyone born within the borders; no other qualifications.
The Speaker could also schedule round-the-clock sittings of Parliament to harmonise all the country's laws. It would help a great deal too, if the Executive resisted the temptation of proposing laws that are clearly discriminatory. For example, a Presidential Election Statute for 2006 that prohibits anyone who has not lived in Uganda for say two or three years from standing (no prizes for guessing who the target of such a provision would be).
If the rules of engagement are fair, it would help to learn to lose honourably.
There is no shame in losing to a better person. | 
