By Oweyegha-Afunaduula
Justice is best assured when the Judiciary manifests as an independent arm of Government, free of the excesses of the Executive.
I remember when environmentalists took government to Court over military mining of limestone in Queen Elizabeth National Park That was 2007. The presiding Judge was Justice Kibuuka Musoke, a former Minister in the NRM Government. We though we would get justice for environment because the law was clear Up to now the Judge has not read his judgement.
I am not sure if mining of limestone is still going on in the back. Human activities are not allowed in National Parks by law. So if mining took place in Queen Elizabeth National Park, it was in defiance of the law. One wonders how many human activities have been allowed by our Judiciary by simply ignoring or neglecting cases that would strengthen the law.
Sometimes, of course, cases are dismissed on technical grounds without giving the aggrieved a chance to benefit from the law. Here under, I want to compare the Judiciaries of Kenya and Uganda under the reigns of President Arap Moi and President Tibuhaburwa Museveni respectively.
President Arap Moi’s reign did not deviate much from the debilitating experience Uganda is undergoing right now. He misused the judiciary to deny justice to the people, especially political opponents, exactly the way President Tibuhaburwa Museveni has succeeded in doing over the last 36 years.
Arap Moi preferred to use non-African judges as Chief Justice. Even when the judge was black, Arap Moi preferred the judge who was not born in Kenya. These Chief Justice office bearers were far easier to manipulate and (if need be) threaten.
Since the Constitution allowed the President to appoint and fire judges, justices and the Chief Justice, Moi literally owned the Judiciary. No election petition had a chance of success unless Moi decided so. That’s why changing the cry for a new constitution was a do or die affair in Kenya.
Indeed after Arap Moi’s disgraceful departure, the position of Chief Justice became competitive. You apply and you will be vetted by a panel. Live ON TV! Under that procedure the man who became Chief Justice was Dr Willy Mutunga, a man whom Arap Moi had harassed with numerous arrests and detention!
Back to Arap Moi’s time. He appointed a disgraced Judge to be Chairman of the Electoral Commission. His job as usual was to steal elections. There was outcry, and ultimately the man left the job. What just happened in Uganda is actually the normal order of business. However, in Kenya the aggrieved refuses a judge and the judge excuses himself from the adjudication of the case.
In Uganda, a Judge can refuse to excuse himself from a safe even if conflict of interest is provable. This business whereby a judge literally refuses to leave the case is as unusual in the practice of common law as it is stupid. No self-respecting judge will insist on hearing a case in such circumstances.. Even a self-respecting Executive will not normally require the judiciary to do this or that.
A friend of mine resident in Kenya, who is conversant with the law and public affairs in that country, and who has been following the workings of the Judiciary in Uganda’s public affair, and the discourse of law in our country, told me this when I sought his opinion, before penning this article as a follow up on another I wrote on the Judiciary of Uganda:
“Unless the Executive does not know what is meant by the separation of powers; and if that is the case, he has no business being at the helm of public affairs. One way or the other a return to CONSTITUTIONALISM is the only way out of this quagmire. People will have to die for that cause.
People died in Kenya as Arap Moi struggled to prevent the new constitution from coming about. Civil war might have to be fought before the people of Uganda wrestle their country back into their control”.
That was his view. Mine is this:
We have had many civil wars in Uganda because of failure of constitutionalism, civil war occurs when people have refused to use their brains and resorted to muscles, which is a primitive recourse. I believe there is nothing better than sitting at table and rethinking the Constitution to remove those articles that act as roadblocks to justice and to a free and effective Judiciary.
There can be no justice in any country if a Judiciary is under the yoke of the Executive. When the Judiciary of Kenya became free of the Executive, sanity in justice returned.
Justice must return in Uganda for us to be meaningfully independent. Otherwise, it would mean we have wasted 60 years of independence if we cannot expect any justice in our courts of Law because the Judiciary is encircled. Injustice can easily be cast as justice and justice can easily be cast as injustice.
The Judiciary must rethink itself and recover its independence. The Legislature needs to understand the quagmire the Judiciary is in and initiate necessary constitutional changes. Members of Parliament must forget their partisan interests and remember that together we sink and together we rise. If our Judiciary is in a quagmire we are all in a quagmire.
For God and My Country.
The Writer is a Ugandan Scientist And Environmentalist
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