OWEYEGHA AFUNADUULA: Uganda: Is the Judiciary failed or failing?

“O LORD, how long must I call for help before you listen, before you save us from violence? Why do you make me see such trouble? How can you continue to look on such wrong doing? Destruction and violence are all around me, and there is fighting and quarreling everywhere. The Law is weak and useless, and justice is never done. Evil people get the better of the righteous, and so justice is perverted”.(Habakkuk, 1: 2-4).

This citation is from the Bible Book of Habbakuk. Biblical Prophet Habbakuk was active in service of God near the end of the 7th Century BC. Just like was the case then, today in Uganda destruction and violence are rampant, the laws are weak and useless, justice is never done or seen to be done, and is frequently perverted in service of power and the rich. It is rare for the rich and powerful to lose property and money to the poor in case the poor seeks redress in our courts of Law. It was never like this before. It is a Musevenian invention, ostensibly in pursuit of a Middle class and a Middle income economy.

Around the 5th or fourth Century BC, Biblical Prophet Joel was equally concerned about injustice and the rising violation of the truth in court, and of judges taking bribes to prevent especially the poor from getting justice in the courts, when he said:

“You people hate anyone who challenges injustice and speaks the whole truth in court. You have oppressed the poor and robbed them of their grain…I know how terrible your sins are and how many crimes you have committed. You persecute good people, take bribes and prevent the poor from getting justice in the courts”.(Joel, 5:12).

What Prophet Joel was concerned with is what Ugandans are getting increasingly concerned with: injustice, marginalisation of those who speak against injustice, persecution of good people, rising crime, bribes, preventing the poor from getting justice in the courts, robbing the poor and oppressing them. Ugandans are indeed concerned about bad leadership and bad governance which includes injustice in the Courts of Law.

Lawyers are frustrated by what is going on in the courts of Uganda. One lawyer told me recently “Justice in Uganda is now traded and bought”.

I have also increasingly heard many people with money say, “A poor person cannot win any case in Uganda”. This remark is based on the truism that bribes are given to judicial officers to pervert justice in favour of those who pay the bribes. One Lawyer who slept knowing he had won the case for his client woke up to find that the reading of the judgement had changed.

So that is now the true Uganda President Tibuhaburwa Museveni has built in the last 36 years of his Presidency. It is also the kind of justice system and Judiciary that his Presidency has imposed on Uganda. He is the one who appoints and has appointed most of the judges during the 36 years he has been in power. Virtually all the judges he found when he captured the instruments of power through the barrel of the gun have retired from the Judiciary. Some are those he himself characterised as cadre judges. These are cadres of NRM.Others served in his government before in different capacities. For example, the Chief Justice, Owiny Dollo, served as a Minister in the NRM Government, but also as a lawyer for the President in a case in which the President was accused of electoral fraud. The President was cleared of electoral fraud by a Bench of Judges headed by Chief Justice Owiny Dollo.

Is the Judiciary of Uganda failed or failing?

Not yet. But the Judiciary is bogged by the Law-Morality question. According to the Constitution of Uganda, it is legal for the Executive to appoint judges. However, this constitutional act raises issues of morality and conflict of interest if he appoints judges who served as Ministers in Government, or represented him as his lawyers in cases in which he was accused of electoral fraud. It is even more serious in terms of morality and conflict of interest in the Judiciary if a Judge who is closely associated with the President or with some other person being sued, refuses to leave a case in which it has been pointed out that he is going to be constrained in his judgement by his proximity to the accused.

Yet this was the case in which former Presidential candidate Kyagulanyi Ssentamu sued the President of electoral fraud. Justice Owiny Dollo, in the true spirit of resistance of the NRM, insisted that he would chair the Bench of Judges that heard the case. He did and the President was overwhelmingly cleared of electoral fraud. In another case in which the Deputy Speaker, Anite Among, was sued by a citizen, who feared conflict of interest of the judge who was hearing his case, Justice Ssekaana, because he is a great friend of the Deputy Speaker. The Judge resisted excusing himself from the case. The Chief Justice had already set a precedent for him, and that could have strengthened his resolve to resist.

The question of Law and morality is real, and has severally been debated at Campuses of Law. Most, however, agree that what is legal is not necessarily moral, and what is moral should not necessarily be illegal. Slavery is wrong even if legal. Changing the Uganda Constitution to remove Presidential term limit and age limit was legal but morally wrong. If passed by the Parliament of Uganda, making MPs elect the President as some members of NRM have suggested, will be legal if it becomes law, but morally wrong.

What is true is that in extreme cases, Judges have to exercise their own moral judgement to determine what the law is. Besides, legal interpretation basically always requires moral judgement because legal materials are often inconclusive.

Therefore, morality and legality are interconnected. Justice, which law seeks to ensure, is more of a moral than a legal issue. The judicial processes involve a lot of morality as much as legality.The challenge is and remains how to balance morality and legality (law) in justice.

For meaningful and effective management of Justice in Uganda morality and legality must be balanced. But this is not enough. Conflict of interest and Executive influences must be excluded from judicial processes. Otherwise the Musevenian Era may emerge as the era when the end of Justice in Uganda arrived.

For God and My Country