ARTICLES

The role of the judiciary in the promotion of democracy in Uganda

Ben Kiromba Twinomugisha

Associate Professor and Dean of Law, Makerere University, Kampala, Uganda

SUMMARY

The article examines the role of the judiciary in the promotion of democracy in Uganda. The article recognises the fact that the democratisation process requires the involvement of many stakeholders, including the judiciary, the legislature and the executive. However, it is argued that the judiciary has a stronger constitutional responsibility for securing the integrity of democracy through the protection of fundamental human rights and the resolution of electoral disputes. It is argued that courts can be utilised as arenas in the struggle for democratisation and the rule of law. Judges must feel compelled to select those values and principles from the Constitution which best promote democracy. Through their boldness, judges can push the government so that it may move forward on the journey of democracy. Judges must accept an aggressive law-making function regarding all categories of human rights.

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* LLB, LLM, LLD (Makerere), Dip LP;btwinomugisha@law.mak.ac.ug. This is a reworked version of a paper delivered at the annual partners' conference of the LLM (Human Rights and Democratisation in Africa) held at the University of Pretoria, 8 and 9 December 2008.
1 See eg D Lake & M Baum 'The invisible hand of democracy: Political control and the provision of public services' (2001) 34 Comparative Political Studies 587;         [ Links ] A Sen Poverty and famines (1981);         [ Links ] D Stasavage 'The role of democracy in Uganda's move to universal primary education' (2005) 43 Journal of Modern African Studies 153.         [ Links ]
2 This is captured by the Preamble to the Constitution, which recalls Uganda's 'history which has been characterised by political and constitutional instability' and the 'struggles against the forces of tyranny, oppression and exploitation'.
3 J Oloka-Onyango 'Judicial power and constitutionalism in Uganda: A historical perspective' in M Mamadani & J Oloka-Onyango (eds) Uganda: Studies in living conditions, popular movements and constitutionalism (1994).         [ Links ]
4 As Paul observes, independence constitutions in Anglophone Africa 'were like negotiated treaties. They were often more the product of ad hoc bargaining in London than the reflection of popular demands and manifestations of indigenous political culture ... Once independent, the regime could change the Constitution to suit local needs, and not surprisingly, to tighten its control over the political system.' See JCN Paul 'Some observations on constitutionalism, judicial review and the rule of law in Africa' (2001) 35 Ohio State Law Journal.         [ Links ]
5 Eg, in Re Ibrahim (1970) EA 162, Jones Ag J stated that 'one cannot look behind a valid detention order, as it must be assumed that a minister ought to be, and is deeply concerned about the liberty of the subject, and only issues a detention order after considering all the information before him. In coming to a conclusion he weighs all the evidence and acts (not merely on the advice of a police officer only). In particular he has the interests of the state in mind and he is assumed to have acted judicially in arriving at the conclusion.'
6 See eg F Kityo v Attorney-General (1983) HCB 56 and Re: Buregyeya (1985) HCB 99 where the High Court decided that the detention orders issued against the applicants were defective. For a detailed discussion of most of the cases during the 1960s and 1970s, see Oloka-Onyango (n 3 above).
7 On the initial policies of the NRM after the bush war, see NRM The ten point programme (1990).
8 JJ Barya 'International support to no-party democracy in Uganda' in J de Zeeuw & K Kumar (eds) Promoting democracy in post-conflict societies (2006).         [ Links ]
9 On the discourses on democracy, see eg AH Birch The concepts and theories of modern democracy (1993);         [ Links ] BO Nwabueze Democratisation (1993);         [ Links ] S Issacharoff et al The law of democracy: Legal structures of the political process (2001);         [ Links ] T Sono 'Comments on democracy and its relevance to Africa' (1992) 3 African Perspectives: Selected Works 29;         [ Links ] D Ronen 'The challenges of democracy in Africa: Some introductory observations' in D Ronen (ed) Democracy and pluralism in Africa (1986).         [ Links ]
10 See eg U Baxi 'Universal rights and cultural pluralism: Consumerism as a site of state formative practices' (2000) 21 Cardozo Law Review 29.         [ Links ] On poverty eradication as a democracy issue, see B Twinomugisha 'A critique of Uganda's poverty eradication action plan' in K Matlosa et al The state, democracy and poverty eradication in Africa (2008) 298.         [ Links ]
11 Art 1(1) of the Constitution. See also the Preamble to the Constitution.
12 Arts 1(2) & (4) of the Constitution.
13 The first post-independence elections were held in 1980 after the fall of Idi Amin. In the period 1993 to 1994, the Constituency Assembly elections were held to elect delegates to debate the Report of the Constitutional Commission and promulgate the Constitution. In 1996 presidential and parliamentary elections were held. These were followed by the 1997-1998 local council elections and the 2000 referendum on political systems. In 2001 and 2006, presidential and parliamentary elections were conducted. The 2006 elections were held under a multi-party dispensation.
14 G Judith 'Political significance of the Constituency Assembly elections' in HB Hansen & M Twaddle (eds) From chaos to order: The politics of constitution making in Uganda (1994).         [ Links ]
15 Presently, the President with the approval of parliament appoints the Chairperson and members of the Electoral Commission (art 60(1) of the Constitution). Given that the ruling party has a majority in parliament, all the nominees by the President are usually approved. The Constitution accords the Commission independence, which shall 'in the performance of its functions, not be subject to the direction or control of any person or authority' (art 62 of the Constitution). However, because of the partisan nature of the Commission as exhibited in past elections, there have been calls for the amendment of the Constitution to ensure that the Chairperson is a retired judge with members appointed in consultation with the major and credible political parties in the country.
16 UNHCR 'Promotion of the right to democracy' Commission on Human Rights Resolution 1999/57 http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.RES.1999.57.En?Opend (accessed 13 February 2009).         [ Links ]
17 n 16 above, para 1.
18 n 16 above, para 2(c).
19 UNHCHR 'Promoting and consolidating democracy' Commission on Human Rights Resolution 2000/47 http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.RES.2000.47.En?Opend (accessed 13 February 2009).         [ Links ] This has been stated by the United Nations General Assembly in 'Promoting and consolidating democracy' A/RES/55/96 http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.RES.55.96.En/Opendocument (accessed 13 February 2009).         [ Links ]
20 n 19 above, para 1(b). See also Commission Resolutions 2001/41, 2002/46 & 2003/36.
21 NEPAD 'Declaration on Democracy, Political, Economic and Corporate Governance' AHG/235 (XXXVIII) Annex I, para 7.
22 As above.
23 n 21 above, para 10. For an elaborate discussion of NEPAD's goals of democracy and good governance, see AMB Mangu 'Assessing the effectiveness of the African Peer Review Mechanism and its impact on the promotion of democracy and good governance' (2007) 7 African Human Rights Law Journal 355 361.         [ Links ]
24 Art 4(m) of the AU Constitutive Act.
25 N Barber 'Prelude to the separation of powers (2001) 60 Cambridge Law Journal 59 71;         [ Links ] P Kurland 'The rise and fall of the doctrine of separation of powers' (1986) 85 Michigan Law Review 592 603.         [ Links ]
26 JR Nolan et al (eds) Black's law dictionary (1990) 849.         [ Links ]
27 Objective I of the Constitution.
28 A Barak The judge in a democracy (1989);         [ Links ] J Dugard 'Judging the judges: Towards an appropriate role of the judiciary in South Africa's transformation' (2007) Leiden Journal of International Law 20.         [ Links ]
29 Art 126(1) of the Constitution.
30 Art 50 of the Constitution.
31 On the importance of the judiciary, especially the Supreme Court as the guardian of the Constitution and the promoter of good governance and democracy in Nigeria, see eg the judgment of Mustapher JSC in AG Abia v AG Federation (2006) 16 NWLR (Pt 1005) 265 454 (Supreme Court).
32 CM Peter Human rights in Tanzania: Selected cases and materials (1997) 484.         [ Links ]
33 Art 128(1) of the Constitution.
34 Art 128(2) of the Constitution.
35 Art 128(3) of the Constitution.
36 PT Mukubwa 'Ruling from the grave: Challenging antiquated constitutional doctrines and values in Commonwealth Africa' in J Oloka-Onyango (ed) Constitutionalism in Africa (2001) 288.         [ Links ]
37 n 27 above.
38 Art 137(1) of the Constitution.
39 Arts 137(3)(a) & (b) of the Constitution.
40 Constitutional Petition 5 of 2002.
41 Secs 18(1)(a)-(d).
42 Sec 18(2).
43 Parliament of Uganda: Parliamentary Debates (Hansard) Official Report, 1st session, second meeting; Issue 6; 3 April 2002 to 16 May 2002 2045-6.
44 As above.
45 As above.
46 As above.
47 On 28 July 2005, Uganda held a referendum to decide whether the country should remain under the movement system or should move to a multi-party system of government. Though the voter turnout was low, 90% voted in favour of a return to multi-party politics.
48 Constitutional Appeal 2 of 2002. The Constitutional Court had dismissed the case on technicalities.
49 Art 29(1)(a) of the Constitution.
50 On the nexus between democracy and media freedom, see B Twinomugisha 'Is there media freedom in Uganda?' (1998) East African Journal of Peace and Human Rights 1.         [ Links ]
51 (1984) 5 NCLR 736.
52 n 51 above, 747.
53 Art 41 of the Constitution. See also Paul K Ssemogerere & 2 Others v Attorney-General, Constitutional Appeal 1 of 2002, where sec 121 of the Evidence Act that gave the state unfettered discretion whether to release official information on grounds of national security was declared unconstitutional since it contravened art 41 of the Constitution.
54 As above.
55 n 48 above, 21.
56 As above.
57 (1989) 2 SCR 1326. He also cited Lingen's case 12/1984/84/131, where the European Court of Human Rights observed that 'freedom of expression ... constitutes one of the essential foundations of a democratic society and one of the basic conditions of its progress and for each individual's self-fulfilment'.
58 As above.
59 Uganda Electoral Commission Report on the Presidential Election (2001);         [ Links ] S Makara et al Voting for democracy in Uganda: Issues in recent elections (2003).         [ Links ]
60 On the functions of the Electoral Commission, see arts 61(1)(a)-(f) of the Constitution.
61 Cap 140 Laws of Uganda.
62 Cap 142 Laws of Uganda.
63 Sec 57(1) of the Act.
64 Sec 57(2) of the Act.
65 Sec 57(3) of the Act.
66 Secs 57(5)(a)-(c) of the Act.
67 Sec 57(6) of the Act.
68 Election Petititon 1 of 2001 (Supreme Court Uganda).
69 See secs 18-25 of the Electoral Commission Act and sec 27 of the Presidential Elections Act.
70 Sec 57(6)(c) of the Act.
71 Constitutional Petition 1 of 2006.
72 It should be noted that using elections as a test, Museveni's popularity has been dwindling over the years. In 1996, he scored 75%, in 2001 he got 69% while in 2006 it was 59%. There are fears within the ruling establishment that should he stand in 2011, he may score less than 50%, inevitably leading to a re-run of the election.
73 Presidential Election Petition 1/2006.
74 P Tumwine Mukubwa Free and fair democratic elections (2004).         [ Links ]
75 The East African 12 February 2001.
76 As above.
77 Art 79 of the Constitution.
78 Constitutional Petition 2 of 2002.
79 'Museveni rejects referendum ruling' The Daily Monitor 28 June 2004 1.         [ Links ] The President has recently called for the auditing of judgments to ensure that they reflect the aspirations of the people. At an annual judges' conference, the President proposed that an agency should be established to audit biased judicial decisions. In my view, there is no need for a judicial audit. Auditing judgments is a deliberate attempt by the executive to usurp the powers of the judiciary and interfere with its independence. Where a litigant is dissatisfied with a judgment, he or she may appeal or seek judicial review.
80 As above. Recently, the High Court released accused persons in a treason trial on bail. A section of the security forces called the Black Mamba (with masked faces) invaded the High Court premises in a bid to re-arrest the accused. The judicial officers, including the principal judge, were literally forced to stay in the High Court building with the accused until after the Black Mamba had left. The advocates for the accused had no alternative but to request the presiding registrar to send them back to Luzira prison for fear that they may be captured at night. Following this sad state of affairs, the entire judiciary and all advocates, for the first time in the history of the country, went on a sit-down strike for a week until the President had to issue a written apology promising that such an incident would not happen again.
81 Sec 57(2) of the Presidential Elections Act.
82 Sec 57(3) of the Act.
83 See eg sec 57(7) of the Presidential Elections Act.
84 Nolan et al (n 26 above) 847.
85 See eg The Environmental Action Network (TEAN) v Attorney-General and National Environment Authority, Misc App 39 of 2001. For a discussion of cases where the court has relaxed locus standi requirements in accordance with art 50(2) of the Constitution, see BK Twinomugisha 'Some reflections on judicial protection of the right to a clean and healthy environment in Uganda' (2007) 3 Law, Environment and Development Journal 3 http://www.lead-journal.org/content/07244.pdf (accessed 27 February 2009).         [ Links ]
86 Simon Kyamanywa v Uganda, Constitutional Reference 10 of 2000.
87 Act 13 of 2000.
88 Constitutional Petition 6/2003 (CC).
89 For an elaborate discussion of how the death penalty conflicts with human rights in Africa, see L Chenwi Towards the abolition of the death penalty in Africa (2007).         [ Links ]
90 It should be noted that the Supreme Court has handled other cases, especially concerning parliamentary elections, where the appellants alleged that elections were conducted contrary to the provisions of the Constitution, the Electoral Commission Act and the Parliamentary Elections Act and that the non-compliance affected the results in a substantial manner. See eg Kakooza John Baptist v The Electoral Commission & Another, Electoral Petition Appeal 11 of 2007. See also Amama Mbabazi v Garuga Musinguzi, Election Petition Appeal 1 of 2001; Abdu Katuntu v Kirunda Kivejinja, Election Petition Appeal 24 of 2006; Mukasa Anthony Harris v Bayiga Michael Philip Lulume, Election Petition Appeal 18 of 2007; Gola Nicholas Davis v Loi Kageni Kiryapawo, Election Petition Appeal 19 of 2007; and joy Kabatsi Kafura v Anifa Kawoya Bangirana and Electoral Commission, Election Petition Appeal 25 of 2007.
91 Incidentally, civil disobedience is recognised as being in defence of the Constitution (arts 3(1) & (2) of the Constitution).