This is a continuation of my series of articles on the performance of Uganda’s Judiciary in constitutional transformation. A fortnight ago, I illustrated the complete breakdown of the rule of law during the time of former president Idi Amin.
Today, I want to focus on the post-Amin period. I intend to answer the question: Did the post-Amin Judiciary (1979 – 1986) learn anything? However, before answering this question, I would like to appreciate Mr Rogers Magala for his article published in the Daily Monitor of November 17, ‘Prof Mbazira underestimates the Judiciary’s constraints in post-independence Uganda’.
Mr Magala paints a faultless Judiciary, on account of the colonial approach. In effect, Mr Magala says it was inevitable for the Judiciary to uphold an unconstitutional change of government. Space does not allow a detailed rejoinder. All I can say is that his argument does not explain the approach of the Judiciary in subsequent periods. In these series, I demonstrate that, since the 1966 Crisis, the Judiciary has only sparsely stood for constitutionalism and constitutional transformation. The ghost of Ex parte Matovu still rules the streets of courts and shows up whenever it deems it fit.
Back to the post-Amin era, the period after the overthrow of Amin is recorded as one of the most dramatic periods. Amin was overthrown by a consortium of exiles, under the Uganda National Liberation Front (UNLF), with the firepower of Tanzania. The battle started at the border area of Mutukula and ended with the Tanzanians taking over Kampala. Amin fled into exile, and the UNLF took over. However, the UNLF never immediately reverted to the pre-Amin 1967 constitutional legal order. Instead, Legal Notice No. 1 of 1979 was published on May 8, 1979.
It mirrored the Amin Legal Notice suspending the 1967 Constitution. The UNLF Constitution became the law in large measure. It should be acknowledged that this was for transition purposes. The Legal Notice suspended parts of the Constitution relating to Executive and Legislative power. The National Executive Committee (NEC) assumed Executive authority.
The National Consultative Council (NCC) took over the legislative role. Prof Yusuf Lule was installed chairperson of the UNLF and chair of the NEC and, therefore, president of the Republic. His presidency was outlived though; it lasted only 68 days, he was removed by the NCC on June 20, 1979. In Lule’s place, Godfrey Binaisa was installed.
The opportunity for the Judiciary to fix things came with the case of Andrew Lutakome Kayiira and Anor vs Rugumayo and Anor (Constitutional Case No. 1 of 1979). The petitioners contested the removal of Lule.
They asserted that the supreme law of Uganda remained the 1967 Constitution and not the UNLF Constitution or the minutes of the Moshi Unity Conference, where the UNLF made the resolutions being followed. They also argued that the procedure followed in removing the Lule as NEC chairperson, and thus as president, was unconstitutional. That NCC had no power to remove the president from his office.
The petitioners made the argument that when deciding upon matters of national interest, the NEC should have sat as the legislature and been governed by the 1967 Constitution. What is clear though is that, based on Ex parte Matovu, the petitioners never intended to question the legality of the government which replaced that of Lule. The court thus clarified: the ‘suit does not seek to declare illegal or to question the legitimacy of the government which came into being after the removal of Lule’.
The Chief Justice, Wako Wambuzi, clarified that their role was to determine the legality of the proclamation that contained Legal Notice No. 1 of 1979 suspending the Constitution. The decision of the court was laced with what appears to be deliberate avoidance, declining to directly answer the questions before it.
Ambiguous manner
Uncharacteristic of Chief Justice (CJ) Wambuzi, he proceeded in an even more ambiguous manner. Regarding the UNLF proclamation, the CJ held that although the proclamation was not law within the definition of the interpretation decree, it had been made as a pronouncement of the sovereign with the intention that it be obeyed and therefore assumed the force of a law.
In effect, something not intended to become law was certified as one. The CJ completely ran away from answering the question regarding the legality of the removal of Lule. While referring to the case of Ex parte Matovu, the Chief Justice stated as follows: ‘From my conclusion on this issue, I find it unnecessary to deal with arguments as to whether the removal of YK Lule as chairman of the National Executive Committee and President of Uganda was the result of a coup d’état or a successful revolution or due to State necessity. For the same reasons, I am unable to inquire into the procedure followed by a political body in a purely political matter. I think that is a matter for the politicians to decide.’
Once again, the ghost of Ex parte Matovu took the day. The court was not prepared to rule that a government in power had taken steps contrary to the Constitution. Parts of the Constitution dealing with the presidency were now certified by the court as ‘deadwood’, political rather than legal considerations took precedence. The political turmoil of 1979 was to be sorted through the 1980 multi-party elections. The elections were, however, marred by a number of irregularities. Some intending candidates were prevented from being nominated, with some being prevented from accessing nomination centres on time.
There were also many cases of ballot stuffing. Midway through the elections, the Military Commission, led by Paulo Muwanga, took over electoral processes, away from the Electoral Commission. Only the chairperson of the Commission would declare results and even validate the elections in any individual constituency. This was in effect a coup. Indeed, in spite of these irregularities, no one dared challenge these actions in court.
This could have been informed, among others, by the loss of confidence in the courts. Would-be litigants could have known that there was no way the courts would annul the elections. On its part, the short-lived Obote II government did not do much to reinvigorate judicial power. Following its controversial ascendency to power, the tenuous government had to keep the Judiciary in continuous check. In conclusion, looking at the UNLF fracas, the post-Amin judiciary forgot and learnt nothing.
OPPORTUNITY
The opportunity for the Judiciary to fix things came with the case of Andrew Lutakome Kayiira and Anor vs Rugumayo and Anor (Constitutional Case No. 1 of 1979). The petitioners contested the removal of president Yusuf Lule.