As Uganda celebrates its 63rd Independence anniversary and 30 years of the 1995 Constitution, we need to reflect on the extent to which our legal system has been liberated from the claws of the colonial British Administration. In this, we should reflect on one of the ‘Ds’ that characterised the campaign by the Radical New Bar (RNB), ‘decolonisation’. To what extent has our legal system been decolonised? In this short piece, I endeavour to answer the question.
The colonial system never intended to promote access to justice. In its architecture, the system was intended as a tool of dominance, to be used to support the colonial enterprise of subjugation. Although disguised as necessary to maintain law and order, the legal system, and especially in the area of criminal justice, was intended to be a tool to stamp the authority of the colonial master.
In the case of Uganda, concrete judicial power was introduced in 1902 through the Order in Council (OiC) of that year. Under Article 15 of the OiC, His Majesty’s High Court of Uganda was established, with ‘full civil and criminal jurisdiction in all cases and over all persons in Uganda’. Judges of the High Court would be appointed by His Majesty the King, who could also dismiss them at any time. The Commissioner, by the OiC empowered to adopt ordinances establishing Subordinate Courts. In addition, all laws in force in England would be applicable.
However, what stood out most was the use of the courts to stifle political dissent and struggles for political independence. A barrage of offences, properly calibrated for this purpose, were used; these, in the context of Uganda, included the following: Treason, promoting war on chiefs, publication of information prejudicial to security, inducing a boycott, inciting violence, unlawful society, and defamation of foreign princes, among others.
In addition to the law, the colonial administration imposed a foreign system of adjudication of disputes, laced with British traditions, dress codes and language. The common law, precedent and adversarial approaches became entrenched. The legal profession and legal education were also based on the traditions of the colonial state.
As we celebrate 63 years of Independence, it is clear that we have failed to decolonise our legal system. During the drafting of the 1995 Constitution, the Odoki Commission took note of the negative impact of having a foreign system of law on Page 442 of its report:
‘17.25. Most of Uganda’s laws derive from English law, and in the past were used by the colonial masters to rule Uganda. Following independence, the whole legal system should have been transformed to suit our own culture, norms and customs. The opportunity was never taken and so much of our law has remained foreign to most of the people of Uganda both educated and uneducated, with the exception of the members of the legal profession.’
The Commission then enumerated three aspects of concern arising out of the above: Alien orientation of the criminal justice system; failure of the statutory law to take into account local cultural norms; and language, dress code and procedures of courts.
Unfortunately, in spite of the acknowledgement above, the recommendations of the Commission largely maintained the foreign system. Judicial officers still rob in the same way as English judges, sometimes with pompous wigs which do not serve any purpose. Also, except for wigs, lawyers appearing before courts don the black gown, English dinner shirts/blouses and flaps. English remains the language of the court, even when all actors would comfortably proceed in a local language, which could be translated later if necessary.
From the point of view of jurisprudence, we still largely train lawyers to draw guidance from English precedents. Efforts to publicise local judicial decisions by the ULII and increase reliance on these should be acknowledged. However, the lack of consistency on the part of judicial officers, sometimes overlooking their own previous decisions, is undermining these efforts.
Also, the process to adopt use of the alternative justice systems is acknowledged. This, though, is still peripheral. From the governance point of view, the legal system has been used as a tool of control. The promulgation of laws which criminalise otherwise legitimate political conduct is an issue. Some judicial officers are demonstrating a willingness to use the courts in the same way their colonial counterparts did. This needs to be addressed. As we celebrate independence and the 1995 Constitution, the time is now to decolonise our legal system. Ensure transparency in the role of judicial officers, remove obnoxious offences and Africanise judicial procedures.