The Constitutional Court, sitting in the eastern district of Mbale, delivered its much awaited judgment in the famous ‘age limit case’ with a Coram of four out of five justices of appeal essentially giving a lease of life to the age limit lifting and dealing a blow to a half clever attempt by legislators to extend their current five-year term by two years.
True to the spirit of Article 126, Justices Remmy Kasule and Kenneth Kakuru in the 814-page long judgment laboured to share the political and constitutional history of Uganda, summarised in the preamble of the Constitution as one of political turbulence and constitutional instability.
To bear that historical perspective in mind in adjudication of a case where, for all intents and purposes the elephant in the room was amendment of the Constitution to remove the only stumbling block to another chance for President Museveni to run again 2021, past 75 years of age, is to breathe life to law and give life to the Constitution.
It is not surprising, therefore, that sections of the public are showering Justice Kakuru with flattery for they are awake to the reality that when all is said and done, the question of the day is, was the constitutional amendment by a majority NRM Parliament, in the way it happened, to give one man chance at what some speculate is a life presidency project, in lieu of our history, in order?
It is at that juncture that the political question doctrine sets in. What the Constitutional Court was faced with was perhaps more of a political than legal question.
In his 2015 professorial inaugural public lecture titled, “Ghosts and the Law” Makerere University law don Prof Oloka-Onyango notes that, “Ugandan law has long been haunted by ghosts. They come in many varied shapes and sizes—as the Common Law itself, as the Doctrine of Precedent and even in the manner, dress, deportment and language of our courts. All these are the ‘Ghosts of History Past, Present and Future.’
In the arena of Constitutional Law and governance the ghost appears in the form of the Political Question Doctrine (PQD), a concept most associated with the 1966 High Court decision, Uganda v. Commissioner of Prisons, ex parte Matovu.
“There is the backward-looking one which supported the extra-constitutional overthrow of government in 1966 and paved the way for military dictatorship, judicial restraint and conservatism.”
Therefore, try as we shall to analyse judgments in the strict letter of the declarations of the judges, we cannot help but be alive and awake to the reality, across historical time and geographical space, that courts work in a socio-economic and political context which shapes their own decisions but also public perceptions of the same.
Prof Oloka-Onyango in his book, When Courts Do Politics: Public Interest Law and Litigation in East Africa quotes Prof John Griffith, who opines that, “Neither impartiality nor independence necessarily involves neutrality. Judges are part of the machinery of authority with the state and as such cannot avoid the making of political decisions. What is important is to know the bases on which these decisions are made.”
Law, he argues, is part of the superstructure and is generated by the economic base on which it is constructed. In short, he argues, “Law is a tool designed mainly to protect the interests of dominant socio economic groups and hence cannot avoid the broad brush of politics.” In fact, what courts decide is dictated by, in part, legal realists argue, political, social, moral preferences of individual judges.
Kirk Jenkins in a 2016 article titled, “Competing Theories of Judicial Decision Making: Attitudinalism and Legal Realism” asserts that, “Attitudinalism holds that judges vote based upon their individual ideologies set against the facts of a specific case. For example, a judicial conservative will require substantially more extreme facts before being willing to condemn the conduct of a police investigator than a liberal will.
Conversely, a judicial liberal will approve of government interference in business based upon a lesser showing of need than a conservative will require.
Judges are, according to the theory of attitudinalism, simply politicians sitting behind a Bench. This has been attacked as simplistic with proponents of New Institutionalism arguing that institutional context and factors are far more important than the politics of individual judges.
In an interview with this writer published in the Saturday Monitor on April 30, 2016, retired Supreme Court Justice Wilson Tsekoko said, “Yes, that thing [cadre judges] is there. It seems to be increasing because occasionally you get some of the judgments and you can’t understand they are from judges who are supposed to be independent. There are rumours some judges consult some politicians when they have cases with political implications to get a shape of the ruling. This is terrible! It is not proper.”
There is context to this. In the early 1990s, merit seemed to have characterised appointment to the bench. Perhaps the political context at the time didn’t require as much scrutiny on who becomes judge especially if the parameters were twisted to political loyalty.
Justice Tsekoko who represented President Milton Obote in 1980 when Mr Yoweri Museveni, then a presidential candidate, sued him following statements doubting his citizenship was appointed to the High Court and worked his way to the pinnacle of the judiciary. The same is true with the late Justices Arthur Oder and Mulenga.
In 2001, when Dr Kizza Besigye challenged Museveni’s election, the two, (one DP, other UPC) declared that his re-election be annulled while in 2006 the same duo, now joined by Prof George Kanyeihamba declared that the election be annulled. In a way, it appears, at last from these two petitions, that judges who have ruled against Mr Museveni have also had an opposition background. This would itself beg the question on whether, at least in the eyes of those sympathetic to Museveni, they were independent.
One judge who heard the 2006 petition told this writer in confidence, that two of the judges who ruled against Museveni had a premeditated mind and even before evaluating evidence were set to annul the election.
On the other hand, in 2006 and 2001, the president’s election was saved by among others Deputy Chief Justice Benjamin Odoki who has since remained in good books of the Museveni administration. Chief Justice Bart Katureebe who in 2006 upheld the president’s election in 2016 joined eight others to uphold the president’s election when Mr Amama Mbabazi challenged the same.
Be that as it may, the President seems to have learnt his lessons and since then, stands with a sieve at the door of the courts.
One senior judge in an interview on condition of anonymity told this writer that Justices of Appeal Remmy Kasule, Egonda Ntende and Solomy Balungi Bbosa (now at the International Criminal Court) reached a point of frustration during the reign of retired Deputy Chief Justice Steven Kavuma so much that the three resigned to awaiting a government law in the works that will allow judges continue getting their salary in retirement and take early retirement.
The three are some of the most senior judges on the bench and were frustrated watching their juniors somersault their way to the Supreme Court, being isolated from politically sensitive cases and some of their judgments being tucked under the carpet by the then Deputy Chief Justice.
Justices Bbosa and Egonda were left out of the Deputy CJ job when Mr Kavuma retired while Kasule will retire sooner than later as Bbosa sighs with relief in The Hague, freed from the murky politics of Uganda’s bench.
Therefore, the Ugandan bench or particularly Supreme Court and Constitutional Court of 2018 is markedly one that has gone through the motions of evolution that attests to the thin line between politics and law right from the basics of appointment.
This leaves the Constitutional Court in a very difficult place, at least in so far as its public perception and image, which Justice Owiny Dollo is determined to redeem after a beating by Mr Kavuma, in a tricky place.
They are damned if they do and damned if they don’t. The price can be high. The public is hesitant to give them the benefit of doubt and awaits with a sledge hammer to hit at them for every decision they make, even predicting some and when their predictions turn out right, using that to affirm their prejudices and biases.
In Kenya, where Chief Justice David Maraga led Supreme Court annulled Uhuru Kenyatta’s election, the impact is already being felt with a cut in the judiciary budget including for on going projects. Whereas we may have no evidence to arrive at the conclusion that the budget cuts are a result of the presidential election petition decision, circumstances, especially in light of a president who went around throwing tantrums and promising to deal with the judiciary, don’t lie while humans may.
For instance, sections of the public, at least from reading social media commentary and listening to broadcast media voices, were and remain cynical about the decision of the court to save the Constitution Amendment Act albeit a flawed process that followed its passage, an angle only Justice Kakuru in his dissenting decision paid attention to and relied on as the basis to declare the entire law unconstitutional and void.
For instance, the judges happily note that Parliament extending its term by two years was an act in bad faith and abuse of legislative power, in essence piercing the legislative veil, so to speak, and telling the legislators, it is not enough, as Deputy Attorney General argued, to say you have power to amend the Constitution.
Spirit of the amendment
The spirit of the amendment, public participation and the process must be audited. In effect all the five judges exercised clarity of mind and thought on this issue but only Kakuru applied the same standard to the amendment of the Constitution to remove the age limit, itself having been a product of the same process and peppered with similar intentions.
Be that as it may, the Constitutional Court’s decision on Thursday, even when Ms Winnie Kiiza vows to appeal, stands out for its restraint on Parliament’s power to legislate and amend the Constitution as casually as they did to meet their interests.
Mr Wandera Ogalo who was counsel for the petitioners in the case told Sunday Monitor in an interview on Friday, “The decision is key in many respects, it has reinstated and reaffirmed the sovereignty of the people because we were drifting towards parliamentary sovereignty and the power of the elites in executive and parliament so the court has shown that the constitution is a restraint on power, not to be used to do whatever you want.”
He opines that the adoption of the basic structure doctrine, the idea that the Constitution has pillars which can’t be tinkered with by implication or infection lest it loses its sui generis (unique) texture also stands out from the decision.
“One of those pillars is democracy and Parliament has no authority to amend this and other pillars. This is a good development for our constitutionalism although the court should have looked at the entire process as Justice Kakuru in his dissenting judgment did.
A flawed process such as the one leading to the amendment of the Constitution vitiates the Act Parliament has passed and it is erroneous to try to argue that the acts complained of that contravened the constitution were not widespread because this is not an election petition,” Ogalo said.
While the decision leaves MPs with egg on the face with their ploy to secure an extra two years thrown out, and President Museveni’s age limit stumbling block removal secured, clearing the way for him to run for president for as long as he still has verve, the decision is yet another building block in our jurisprudence.
Sections of the public wanted the age limit provision struck out but Ogalo argues that a decision of court doesn’t become less independent simply because the court didn’t say what the public wants to hear.
Experience in the court room and life generally perhaps affords Mr Ogalo the maturity and emotional intelligence to appreciate that in life, as Argentinian footballer Lionel Messi once said, “Sometimes you have to accept you can’t win all the time.”
So the Constitutional Court, alive to the political question that touches the political life of the President and the attendant interests and dynamics therein, played safe, eroding threads of confidence in members of the public on political matters but also saved face by putting parliament in order.
It wins and loses ground, true to Lionel Messi’s lesson about life – you cannot win all the time but also alive to some legal scholars’ view that judges are everything but politicians in judicial wigs who operate in a context of politics and economics.
As Deputy Chief Justice Alphonse Owiny Dollo noted in his lead judgment citing with approval the case of S vs Marwane 1982 (3) SA 717 (AD), at page745, where Justice Millar of the Appellate Division of the South African Supreme Court stated, with regard to acceptable approach to interpretation of a Constitution, that, “For so long as this Constitution stands, the right to challenge the validity of legislation passed by the legislative authority will remain, as will the Supreme Court’s power – and its duty, when properly called upon so to do – to test the validity of the challenged legislation by reference to the provisions of the Constitution.”
In essence, Parliament in exercise of its legislative power, does so within the scope of boundaries and contours established in the Constitution that feed into the trough of checks and balances among the Executive, Legislature and Judiciary.