We continue with our series of articles on the performance of Uganda’s Judiciary in constitutional transformation. A fortnight ago, I focused on the post-Amin Judiciary, illustrating that the Judiciary had learnt nothing and forgotten nothing. The courts, like their predecessors, upheld unconstitutional actions and hoisted political expediency above the rule of law.
Today, I give a precursor to the performance of the Judiciary in the current political dispensation. I demonstrate how liberation movements deal with judicial power. At the start of fighting to capture political power, liberation movements demonstrate high levels of commitment to good governance, human rights and rule of law. This makes them attractive and endears them to the people. With this, they become a gem for the media, academics, and international actors yearning for political change.
Once they capture power and are morphed to become the government, they immediately turn to the courts to achieve their objectives. In the first place, they need the courts to legitimise their capture of power. They are also eager to demonstrate to the world that they are running a State standing on the pillars of the doctrine of separation of powers. This requires a Legislature, a Judiciary, and an Executive. However, to consolidate their power, they slowly start to establish control over the courts. But, they cannot achieve this without controlling the law-making processes.
This is to ensure the laws are in their favour, and to later enforce these in the courts they control. For the National Resistance Movement (NRM), its political ideology was documented in the bush in the 10-Point Programme. However, the programme did not say anything express about judicial power or the rule of law. It, however, made a commitment to ‘democracy’, which included ‘popular democracy’. Popular democracy was crafted to be exercised through ‘people’s committees at the village, muluka [parish], gombolola [sub-county], saza [county] and district level.
On assuming power, the Resistance Council (RC) courts – now known as Local Council (LC) courts – operated alongside the regular Judiciary, which now required reconstruction. The RC courts were conferred with the authority to adjudicate cases between people at the grassroots level. They would order reconciliation, declaration, compensation, restitution, costs, apology and attachment and sale. In synch with the approach of liberation movements, the NRM from the start viewed courts as a key component of a complete State.
But in addition, the courts were used as an instrument of political control. They became tools to establish social control and sideline political opponents. Most used here to control opponents has been the criminal law. In regimes of this character, the courts are usually pushed to become willing actors in the enforcement of the control, using the law. Nevertheless, for purposes of gaining international acceptance, the courts are allowed a certain degree of independence. At this stage, the regime has little worry about the effects of this independence since it enjoys popular support.
Nonetheless, it remains alert not to allow the courts to stray and build irreversible control of political, social and economic matters. As political support wanes, the regime squeezes the courts and asserts more control. At this stage, the regimes use an instrument which has been described as ‘court curbing’. This entails all the strategies which dominant political actors use to counter the unfavourable decisions of courts. Legal scholar Aydin-Cakir, has defined ‘court-curbing’ as ‘all kinds of government policies, attempts and actions aiming to weaken the Judiciary and turn it into a subservient institution’.
Both formal and informal strategies will be used for this purpose. The formal strategies mainly use legal processes such as changing the law to weaken the courts or refusing to change the law to strengthen the courts. The informal strategies include the use of non-legal means to weaken the courts. This could include co-opting judicial officers to be sympathetic to the regime.
It could also include ensuring that the courts are staffed by cadre judges who align with the ideology of the regime. Politically compliant judicial officers are rewarded with such incentives as promotions or secondment to juicy positions outside the Judiciary. Non-yielding officers, those who try to stick to judicial independence and fidelity to the law, are sidelined. Even when deserving, they are denied promotions and sometimes forced to leave the Judiciary.
Collectively, the Judiciary starts to yield, with judicial officers diving into survival mode. In ‘politically sensitive cases’, panels of judges build a practice of writing single judgments based on consensus, as dissenting becomes suicidal. Also, competent but likely non-compliant candidates are blocked from joining the Judiciary. Appointment processes are deliberately tempered to yield to such control. Furthermore, corruption is allowed to flourish in the Judiciary. No serious action is taken against errant judicial officers; occasionally, only ‘small fish’ are whipped. ‘Big Fish’ are deliberately shielded.
Corruption becomes the modus operandi of some lawyers who pursue cases in courts. By this time, this becomes a revered skill of winning cases. On some occasions, acting positions are used to force judicial officers to ‘work’ for confirmation by being ‘good’, ‘non-radical’, and ‘non-activist’ judges. When the Judiciary collectively tries to stand for the law and the people, its budget is squeezed. In addition, some members of the community of legal practitioners are co-opted to be the engines of lawsuits or drafting of the laws required to cement the political control. Different key positions in the legal profession are stuffed with these.
These will come from all spheres of the legal profession, including legal practice, in-house lawyers and legal academics. These lawyers also invest efforts in weakening the collective will of lawyers desirous of promoting the rule of law, human rights, democracy and independence of the courts. Some commit time to weakening the society of lawyers using such strategies as lawsuits, divide and rule methods, and badmouthing. Legal professionals are encouraged to focus on practice that enforces commercial law, and law schools are forced to tow to this.
Legal practitioners and academics focusing on protecting the rule of law and human rights are harangued and belittled. Some are harassed and even sent to prison or forced into exile. The outcome of all the above is that the power of the courts to hold the Executive accountable is decimated. In turn, the legal profession loses campus, and the traditional respect it commands in the eyes of the public is lost. Ultimately, access to justice becomes a mammoth task, especially for ordinary people with neither power nor the financial muscle. At the end, the nation loses focus and descends into bad governance as those enjoying the privileges of power sip imported brewed coffee and dance away at banquets.