THE DOCTRINE OF RULE OF LAW AND THE INDEPENDENCE OF THE JUDICIARY IN UGANDA. A REVIEW OF COL. DR. KIIZA BESIGYE'S TRIALS

INYALIOTOM

LLB/38139/123/DU

SUPERVISOR

TABOSWASARAH

A RESEARCH DISSERTATION SUBMITED TO THE FACULTY OF LAW AS PARTIAL FULFILMENT OF THE REQUEIREMENT FOR THE A WARD OF THE

DEGREE OF BACHELOR OF LAW OF KAMPALA INTERNATIONAL UNIVERSIT

DECLARATION

I Inyalio Tom declare that this Report" The Doctrine of Rule of Law and the independence of the Judiciary in Uganda- A review of Co. Kiiza Besigye's Trials" is entirely my own effort and has never been submitted to any academic institution. I interviewed judicial officers and the local people.

Students Name: INY ALIO TOM

LLB/38139/123/DU

Signature ; .. ~ .................. .

Date . ~,~5 1'AD1t ' ..... ...... ........... .... .......... ... .. .

APPROVAL

This repot "The Doctrine of Rule of Law and the Independence ofthe Judiciary in Uganda, A review of Col. Dr. Kiiza Besigye's Trials" has been under my supervision.

Supervisor; Ms. Taboswa Sara

Signature; ..... . ........................ Date;1 ....

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DEDICATION

I dedicate this research work to my parents Ms. Nantongo Jane Semuddu and Mr Wabwrire Paul, my best friend Ayebare Ronah and and to my Supervisor Ms. Taboswa Sarah for the great contribution to my academic career.

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AKNOWLEDGEMENT Writing this research was a mixture of dedication, hard work and commitment. I would like to thank those who helped me make it a success. Above all I thank the Almighty God for seeing me through.

I would like to give my sincere thanks to my supervisor Ms. Taboswa Sarah.

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ABSTRACT

In summary this research is based on judicial system and governance in Uganda. The study mainly covers the doctrine of separation of powers as enshrined in the constitution of Uganda 1995. The body of the research mainly covers the powers vested in the Judiciary and whether there is any possibility of conflict between Judiciary and executive in the exercise of these powers. This research has taken a case study of UGANDA at Mengo Court and cases of (Rtd) Col. Dr. Kiiza Besigye. Katozi v. Kahizi (1907) IULR 22 among others.

The methods of this research employed include, interviewing judicial officers and the local people Internet newspapers text books, statutes, legal journals and websites containing legal literature

It's through these findings that I conclude that there is conflict between the Executive and Judiciary and Uganda can never achieve democracy if judiciary is not respected.

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List of Cases L Katozi V. Kahizi (1907) 1 ULR 22

2. Kuboha.V. Bertie Smith (1908) 1 ULR41

3. I Binigira 8. Oters. V. Uganda (1966) Crime case (14.C) Report. 306

4. Otai. V. Uganda Crime Appeal No. 163 of 1967 (Unreported)

5. Shah. V. Attorney General (1970) E.A 329

6. Bukenya. V. Attorney General (1972) E.A 329

7. Ssemogerere Luwum. V. Attorney General Const. App. No.3. Of 1999 (C.A)

8. Col. (Ttd) Dr. Kiiza Besigye V. Uganda H.C.C.S No. 149/2005

9. Rtd Col. Dr. KiizaBesigye V. Attorney General Misc. Cause No. 161 of2005

10. In Re Pollard (1868) 11 L.R 121

11. Garnett.V.Ferrand and Another: 28 May 1827- Swarb.co.uk

12. In Uganda Law Society V. The Attorney General Constitution Petition No. 1, 2006.

13. Uganda (DDP) Vs. Col (Rtd) Dr. Kiiza Besigye Const. Ref. No. 20 of2005.

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Table of Contents

Contents DECLARATION ........................................................................................................................................... i

APPROVAL .................................................................................................................................................. ii

DEDICATION ............................................................................................................................................. iii

AKNOWLEDGEMENT .............................................................................................................................. iv

ABSTRACT .................................................................................................................................................. v

List of Cases ................................................................................................................................................. vi

CHAPTER ONE ........................................................................................................................................... 1

INTRODUCTION ........................................................................................................................................ 1

1.0 INTRODUCTION ............................................................................................................................. 1

1.2 The Judiciary in the Post-Colonial administration .................................................................................. 4

1.3 Statement of the Probletn .................................................................................................................. 8

1.6 Objectives of Study ......................................................................................................................... 12

I. 7 Significance of Study ............................................................................................................................ 13

1.8 Scope of the Study .......................................................................................................................... 13

1.9 Hypothesis ....................................................................................................................................... 14

1.10 Methodology ................................................................................................................................... 14

2.0 LITERATURE REVIEW ...................................................................................................................... 15

2.1 SYNOPSIS ...................................................................................................................................... 18

CHAPTER TWO ........................................................................................................................................ 20

2.3 INTRODUCTION ................................................................................................................................. 20

2.4 THE RULE OF LAW IN THE PRE-COLONIAL PERIOD .......................................................... 21

2.5 THE RULE OF LAW DURING THE COLONIAL ADMINISTRATION ................................... 21

2.6 THE RULE OF LAW (FROM 1995 UP TO DATE) ..................................................................... 22

2HAPTER THREE ..................................................................................................................................... 26

fHE UGANDAN JUDICIARY .................................................................................................................. 26

3.0 INTRODUCTION ........................................................................................................................... 26

:HAPTER FOUR ....................................................................................................................................... 30

l\ CRITICAL ANALYSIS OF JUDICIARY AND EXPERIENCE OF COL. KIIZA BESIGYE'S TRIAL

.................................................................................................................................................................... 30

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4.1 FINDINGS ...................................................................................................................................... 30

4.3 THE PERIOD BETWEEN 2005-20017 ............................................................................................... 33

CHAPTER FIVE ......................................................................................................................................... 38

CONCLUSION AND RECOMMENDATIONS ........................................................................................ 38

5.1 RECOMMENDATIONS ................................................................................................................ 39

References ................................................................................................................................................... 43

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CHAPTER ONE

INTRODUCTION

1.0 INTRODUCTION

This chapter presents the background to the study, statement of problem, objective of the study

and significance ofthe study.

Without looking at the background of Independence of Judiciary in Europe, Africa and Uganda

will render my submission of little value. The past few decades have seen a general expansion of

the power of courts. Judges have begun to play an increasingly significant role in the policy

process of most democratic regimes. Even in Europe, where judges were once considered to be

politically passive, this development has emerged strongly supported by institutional reforms

introducing forms of Constitutional review and stronger guarantees of Judicial Independence.

However, the reforms implemented so far have not always met initial expectations. Debates

about the human rights situation in Africa are not concluded without the mention of the subject

Judicial Independence. This is so because reports about human rights abuses in most African

countries link these to an ineffective judiciary. Another case pertains to lawyers, the harassment

and assassination of lawyers equally puts the independence of the judiciary in jeopardy. The

doctrine of rule of law and independence of the judicially are closely related to separation of

powers. Separation of powers is simply where the three Government Organs are independent

without interference from any other organ. This was first manifested in 61h Parliament by Hon.

Onapito.

1.1 BACKGROUND FOR STUDY

Closely associated with the doctrine of separation of powers is the theory of the Rule of Law. It

is not a rule in the sense that it binds anyone but rather the three organs of government that are

independent. For example the Executive, Legislative and Judiciary arms as illustrated in chapters

~ix, seven and eight ofthe 1995 Constitution ofthe Republic ofUganda.

1

Rule of Law is merely a collection of ideas and principles propagated in the societies to guide

law makers, administrators, judges and law enforcement agencies like the police to act in

accordance with the law. There are different sources of Law. The Uganda Constitution being

the grand law of the land, customary laws, written laws among others.

The overriding consideration in the theory of Rule of Law is the idea that both the rulers and the

governed are equally subject to the same law of the land. Although the theory has gained

momentum in the last four centuries it was well known and practiced in ancient civilization.

According to Justice Prof. G.W Kanyeihamba (Constitutional Political History of Uganda page

301-302 "argued that both rulers and the governors are equally subject to the same law of the

land"

Thus Aristotle, the Greek scholar said, "The rule of law is preferable to that of any individual

writing" in the (13111 )Brocton for instance said, "The King himself ought not to be subject to man

but to God and the Law since the Law makes him King." However some scholars in

jurisprudence have urged that some rulers are above the law. Therefore let the King render to the

Law what the law has rendered to the King viz-dominion and power for there is no King without

the law.

The observance of the rule of law is supposed to result in justice and the latter was defined by the

Roman Emperor Justinian as: "The set and constant purpose which gives every man his due

rights. The law is the practical expression of justice for the precepts of law are those to live

honestly, to injure no one and give everyman his due (Justice Prof. Dr. William Kanyeihamba

Constitutional and Political History of Uganda page 305) right hence the principle of natural

justice.

The Rule of law therefore precludes arbitrary action on the part of those who run and control

government. This is especially the case with regard to the executive which carries out multi

various duties of state.

Jovernment which performs and acts contrary to the Constitution is violating the rule of law just

lS an individual or a group of them who take the law into their own hands. For example the

mlawful arrest of the opposition leaders.

2

Independence of the judiciary is generally a broad term based on the judicial powers enshrined in

most worldwide constitutions. In Uganda the notion got its roots in Article 128 (1) of the 1995

Constitution which stipulates that in the exercise of judicial powers the courts shall be

independent and shall not be subject to the control or direction of any person or authority.

According to B.J. Odoki Independence of Judiciary is an indispensable requisite of a fierce

society under the rule of law. Independence here implies freedom from interference by the

executive, legislative with exercise of the judicial functions.

"Independence does not mean that the judiciary is entitled to act in arbitrary manner. It's duty is

to interpret the law and the fundamental assumptions which underlie to the best of its abilities

and in accordance with the dictates of its conscience" B.J. Odoki safe guards the independence

of Judiciary.

The basic function of the judiciary is the impartial administration of disputes between the citizen

and citizen, and the citizen and state in accordance with the law. It is the judiciary which is the

custodian of the law and the Constitution. Article 126 (2) (a) provides that "the courts follow the

principles of natural justice and that justice shall not be delayed."

Some other writers outside the legal circles have tried to define the concept of independence of

the judiciary. Paul D Wiebe and Cole P Dodge asserted that the custodians of law and justice

reside in the Institution of the Judiciary. As an arm of state the judiciary is supposed to be

independent and unencumbered by the whims of policy makers and implementers.

Without the realization of the judicial independence, equality of all citizens before the law and

the mutual confidence which is begotten of the consciousness of that equality would be

impossible. This is recognized in every civilized country. Thus article 112 of the Soviet

Socialist Constitution reads that judges are independent and subject only to the law. Article 64

of the Constitution of Poland lays down in that "The judges are independent in the discharge of

their judicial duties and the sentences of the courts may not be charged or be kept expressed.

Judges must keep clear of political bias. Judges must be kept free to speaking boldly in their

judicial capacities and should be called upon to give decision only between legalities of flesh and

blood and not on hypothetical case put to them by executive or anyone else."

3

1.2 The Judiciary in the Post-Colonial administration

When Uganda attained her independence, most of the court system did not change much.

Only some few amendments occurred. Under Art1• 90(1) of the Constitution of Uganda-

1962 High Court for Uganda was established. This article explicitly stated that: "There shall

be a high court for Uganda, which shall have such jurisdiction throughout Uganda as may be

conferred on it by this Constitution or any other law".

Article 90(2) (supra) stated the composition of the High Court. This included the Chief

Justice and such number of other judges, not being less than six as may be prescribed by

Parliament.

As a policy of maintaining the status quo of Buganda' s judicial system, the same constitution

(1992) under article 94(1) put in place the High Court of Buganda which "shall have within

Buganda the same jurisdiction as the High Court of Uganda has within Buganda under this

Constitution or any other law. Odoki on this note observed that: "The High Court of

Buganda administered justice in the name of the perspective rulers of these Kingdoms or

territory"2( Odoki Op cit P276)

The post-colonial era saw some minor amendments to bring the courts in line with the

sovereign state of Uganda. But it was not until 1964 that substantial reform of the Uganda

Court system was introduced:- At the bottom of the courts system there were magistrates

courts under the magistrates courts Act 1964, as Amended in 1966, further amended by 1969

and consolidated in 1970. Above them, there was the High Court of Uganda as established

by the Constitution, and above the High Court there was the Court of Appeal of Uganda also

established by the Constitution.\Kanyeihamba op cit 276)

They contained provisions on the High Court of Uganda which established as a court of

judicature. 4Article 83(1) provides that there shall be a High Court for Uganda which shall

have unlimited jurisdiction of the Constitution and of any law enacted by Parliament. The

L Art. 90 (1) of the Constitution of Uganda 1962 t Odoki Op cit P276 1 Kanyeihamba Op cit 276

1 Art. 83 (1) of the Constitution of Uganda 1962

4

court consists of the Chief Justice and such number of piscine judges as may be preserved by

Parliament.

In 1970 the Magistrates Courts Act 1970 was assented to and commenced on 22nd January

1971 S.2 stipulated that there shall be established in such places in each magisterial area as

the minister may after consultation with the Chief Justice, by statutory instrument designate

magistrates courts to be known as the Magistrates courts for the area in respect of which it

has jurisdiction ( The Constitution of the Republic of Uganda 1967)

Under S.3 (17) of the Act a number of magistrates are appointed as in the opinion of the

minister, after consultation with the Chief Justice. And this is as follows:

(2) Magistrates shall be ofthe following grades

a) ChiefMagistrate

b) Magistrate Grade 1 and Magistrate Grade II

c) Magistrate Grade III

(3) The powers and jurisdiction of a magistrate shall be determined by the grade of his

appointment and the powers and jurisdiction conferred upon such grade by the provisions

of this Act and by any written law for the time being in force.

(4) The Act created a formal of appeal in both criminal and civil cases. For criminal appeals

S. 216 (1) states that subject other provisions of any other written law and save as

provided in this section, an appeal shall be:

a) to the High Court, by any person convicted on trial by a court presided over by a chief

magistrate of a magistrate Grade I

b) to a court presided over by the Chief Magistrate, by any person convicted on a trail by a

magistrate Grade II or Grade II.

(5) No appeal shall be allowed in case where a court presided over by a chief magistrate or a

magistrate Grade I has passed a sentence of imprisonment not exceeding one month only,

or a fine not exceeding one hundred shillings section 216 ( 4)

In the case of civil appeals S. 232 (1) stipulates that subject to the provisions of any written

law and save as provide in this section, an appeal shall be;

5

a) From the decrees or any part of decrees and from the orders of magistrate's court presided

over by a Chief Magistrate or a magistrate Grade 1 in the exercise of its original civil

jurisdiction, to the High court.

b) From the decisions, judgments and order section of a magistrate's court, whether

interlocutory or final presided over by a magistrate Grade II or Grade III, to a court

presided over by a Chief Magistrate.

c) From decrees and order passed or made in appeal by a chief magistrate or of the High

Court to the High Court.

( 6) An application for leave to appeal shall, in the first instance, be made to the Chief

Magistrate. Within the period of thirty days beginning with the date of the decision

sought to be appealed from and an application to the High court for such leave shall be

made within the period of fourteen days beginning with the date on which the application

is refused by the Chief Magistrate

Generally, the above arrangement is not new as such. This arrangement cropped up from the

pre-colonial judicial arrangement. In terms of jurisdiction S. 219 (Magistrates Courts Act,

1970) gives the monetary jurisdiction of magistrates. The Chief Magistrate has jurisdiction

where the value of the subject matter in dispute does not exceed Shs. 5,000,000=, Magistrate I

shall have jurisdiction where the value of the subject matter does not exceed shs. 2,000,000=

Magistrate II where the value of the subject matter does not exceed shs. 500,000= and

Magistrate Grade III not exceed two hundred and fifty thousand shillings.

Changes have come as per the amendments of5 S. 219 of the Magistrates Courts Act 1970. S

No. 219(2) notwithstanding the provision of Sub-section (I of this section, where the courses

or matter of a civil nature is governed only by civil customary law, the jurisdiction of a chief

magistrate and a magistrate Grade I and Grade II shall be limited.

With the new Constitution in place some amendments have been made within the Judiciary.

Article 129 puts in place the courts of Judicature. 6 Article 129 (i) Stipulates that, "The

judicial power of Uganda shall be exercised by courts of Judicature which shall consist of (a)

Supreme Court of Uganda, (b) the Court of Appeal of Uganda (c) the High Court of Uganda

; Section 219 of the magistrate courts Act 190 ; Article 129(i} of the Constitution of Uganda 1995

6

(d) such subordinate courts as Parliament may by law establish, including quadhis courts for

marriage, divorce, inheritance of properly and guardianship as may be prescribed by

Parliament (The Constitution ofUganda 1995)

Article 139 (i) 1995 Constitution) the High Court, shall, subject to the provisions of this

Constitution, have unlimited original jurisdiction in all matters and such appellate and other

jurisdiction as may be conferred on it by this Constitution or other law Article 13 7

"Any question as to interpretation of this Constitution shall be determined by the Court of

Appeal sitting as the Constitutional Court."

The Court of Uganda is something new which used not to exist. Before the new constitutional

order we had the Supreme Court and then the High Court. Its creation has mainly been due to

the lagging behind of cases in the High Court and also for purpose of Interpretation of

Constitutional matters as the court of first instance.

Generally, the Judiciary in the institutional context has never been independent. In most cases

there existed in-roads to the independence of the Judiciary save for a few cases as early as

1907. In the cases of 7Katozi.V.Kahizi (1907) and8 Kuboha v. Barities Smith (1908) ULR

(pg 41) the courts maintained that the agreements with the native kingdoms were binding in

the British government, thus holding against the British view that they were so binding.

In reality the Judiciary in both the pre-colonial and colonial sway had some sort of say. It was

not subject so much to scrutiny. This in other words, confirmed its degree of independence

where by the Executive or Legislature could not interfere with the performance of its judicial

roles.

7 Katozi v kahizi (1907)

8 Kuboha vs Barities Smith (1908) (pg 41)

7

1.3 Statement of the Problem

Despite the guarantee by the constitution for the independence of the Judiciary the Independence

has persistently been eroded. There has been increased intervention of the executive legislative

and manipulation by the reach of the system of the Judiciary.

The erosion of the Judiciary has been evidenced in a number of incidences for example in early

March 2017 when the King of Kasese was granted bail by the High Court the Police which is

under the executive arm of government was seen re-arresting the King thus not respecting and

violating court decisions.

Furthermore in February 2017 when the Chief Magistrate Court summoned the Inspector

General of Police General Kale Kayihura to appear in court, he disrespected and violated court

orders. The Inspector General of Police refused to appear in court but only organized law

breakers (Kifesi) who stormed the court premises and started destroying property. The erosion

of Judicial independence has great impact and these include loss of confidence by the general

public in the judiciary i.e. courts of law.

Failure to have justice administered by the courts because of intervention by arms of government

lead to decline in the democracy since the judiciary is one of the tools that promote democracy.

The erosion of the judicial independence in Uganda has many causes which include:

1. Intervention of the other arms of government especially the executive to save its political

interests for example in the case of Wesley Mumbere King of the Bakonjo who was

granted bail by the High Court and the police re-arrested him on his way back home.

This demonstrated a high disrespect and intervention of the Executive in Judicial

activities.

2. Corruption is another great case of the Judicial independence erosion for example when

the President is given powers to a point and dismiss judicial officers they will always be

intimidated because the powers are bestowed to the executive who has a discretion to

dismiss and appoint them hence making their hands tied thus creating a corrupt

atmosphere in the Judiciary.

8

3. Furthermore in many occasions courts have passed judgments in favor of the state which

has made the Judiciary to fail to deliver justice to the people. The Legislative has on

many occasions enacted laws intentionally to overlap judicial powers which has some

disastrous effects on both judiciary and public itself.

Therefore the study will be focused on the intervention of the Legislative and the Executive as

the case of the erosion of the independence of the judiciary. It will examine the gaps like use of

Police to intervene with the judicial orders. It will also focus on the appointments of the judicial

officers by the Executive and the use of Laws enacted by the Parliament to interfere with the

Judiciary.

In this climate it has created a corrupt atmosphere in the judiciary. In many occasions courts

have passed judgments in favor of the state which has led to failing of the judiciary to deliver

justice to the people. The Legislature has normally enacted and passed laws intentionally to

overlap judicial powers. For example the presidential term limit as debated and passed in the

Parliamentary Hansard of 2005. This has had some disastrous effects on both Judiciary and the

public itself.

Where Government has successfully persuaded the Parliament to enact the UPDF Act No. 7 of

2005 that has empowered and strengthened the General Court Martial to try any one including

civilians who may be suspected of committing terrorism and other related activities. For

example the Nakawa Constituency Member of Parliament Hon. Kabaziguruka who is a civilian

but is currently forced to have his case tried in the Court Martial9. "The Daily Monitor June gth

and 11th 2016"

(1) Such laws make judges' hands tied as a result of following them since they amount to

draconian law. With the above situation the judiciary has persistently experienced

interference syndrome.

The Daily Monitor June gth and 11th 2016

9

1.4 Definition of major concepts

The Doctrine of Rule of Law

Different authors have tended to define and explain the Doctrine of Rule of Law. In my opinion

rule of law is democracy. It is a system of governance where there are rights and the legislature

pass laws that do not contradict the principles of natural justice.

Bryan defined Rule of Law in the following ways

1. As substantive legal principle under the rule of law and where the superior or the

employer is answerable for all wrongs committed by an employee in the course of the

employment.

2. As where the supremacy of law regulates to arbitrary use of power and that citizens

must respect the rule of law also termed supremacy of law.

3. The doctrine as general constitutional principles as a result of judicial decisions

determining the rights of private individuals in the court. Under the Rule of law the

Supreme Court case laws makes up the bulk of what we call constitutional or Rule of

law

4. Loosely a legal ruling a ruling on point of law the ratio decided of a case is any rule of

law reached by the judge as necessary step in the decision. 10 (Black's Law Dictionary

Pg 1359)

According to Justice Kanyeihamba when quoting the definition of Rule of law by students in

Tudor and Stuart Politics and Government viewed it as; ''merely a collection of ideas and

principles propagated in the so called free societies to guide law makers, administrators, judges

and law enforcement agencies'. According to Justice Dr. Kanyeihamba Constitutional and

political History of Uganda Pg 301 to 302 squarely to mean that the basic function of the

doctrine Rule of law is to protect human rights 11• "Thus both the rulers and the governed are

10 Black's Law Dictionary pg 1359 11 Justice Pro Kanyeihamba constitutional and Political History of Uganda pg 301

10

equally subject to the same law of the land".(Constitutional and political History of Uganda Op

Cit Pg 302)

Some rulers outside the legal circles have tried to define the doctrine of the Rule of Law. The

roman Emperor asserted that Rule of law refers to: The set and constant purpose which gives to

every man his due rights. The law is the practical expressions of justice, for the precepts of law

are these: to live honestly, to injure none and to give every man his due.

Therefore according to Bryan; "the Rule of law refers to a substantive legal principle, the

supremacy of regular as opposed to arbitrary power, the doctrine that every person subject ofthe

Jrdinary law within the jurisdiction, the doctrine the general constitutional principles are the

result of judicial decisions determining the rights of private individuals in the courts and loosely,

1legal ruling on a point of law12 (Black's Law Dictionary pg 302)

1.5 Independence of the Judiciary

Even where different authors have tended to define and explain the concept of independence of

:he Judiciary, they have ended up importing the same notion.

~eckoning on Odoki, he quotes the definition of the Judiciary by the International Commission

)f Jurists at its meeting in New Delhi in 1959 in these declaratory terms: "An independent

udiciary is an indispensable requisite of a free society under the rule of law independence here

mplies to freedom from interference by the executive or legislative with exercise of the judicial

lmction. Independence does not mean that the judge is entitled to act in arbitrary manner; his

luty is to interpret the law and the fundamental assumptions which underlie it to the best of his

tbilities and in accordance with the dictates of his own conscience. (B.J Odoki Op cit pg 1)

l:'he basic function of the judiciary is the impartial administration of disputes between citizen and

:tate, in accordance with the law. It is the judiciary which is the custodian of law and the

:onstitution.( B.J Odoki Op cit pgl)

)ther writers outside the legal circles have tried to define the concept of the independence of the

udiciary. Paul Ld. Wiebe and P. Dodge asserted that: "The custodians of law and justice reside

n the institution of the Judiciary. As an arm of the state the judiciary is supposed to be

2 Black's Law Dictionary pg 302

11

independent and unencumbered by the whims of policy makers and implementers13. (Beyond

crisis Development issues in Uganda pg 17)

Therefore according to Mukubwa: "An independent judiciary to be a reality, the judiciary should

be free from any sort of pressure be it within the judiciary itself say from those in administrative

positions like the principal judge pressurizing magistrate or a judge on how to deliver judgment

in which he has interest14 (Okumu Wengi; Founding the constitution of Uganda; 1994 pg 199

Without the realization of the theory of judicial independence; equality of all citizens before the

law, and the mutual confidence which is begotten of the consciousness of that equality, would

render my submission of little value and probably incomplete. Therefore, judicial independence

and equality of all citizens is recognized in every civilized country.

1.5 Objectives of Study

There are some particular targets that we would look forward to achieve at the end of this case

Study. Some ofthese objectives are as follows:

1. To analyze the relationship between the legislature, executive and judiciary under the

NRM government viz with the trial of Rtd. Col Kiiza Besigye in the treason and rape

cases.

2. To examine how police has influenced the independence of judiciary in the current

regime. How the executive for instance appoints members of the bench and other judicial

officers.

3. To examine whether the appointment of judicial servant's security of tenure and their

removal affect the independence of courts in one way or another. Thus whether or not

the independence of the Judiciary is a myth than a reality in the Ugandan context.

4. Whether the appointment of judicial officers is of significance to this topic and how their

appointments have affected the independence of judiciary.

13 Beyond crisis Development Issues in Uganda pg 17 14 Okumu Wengi Founding the constitution of Uganda 1994 pg 199

12

5. Whether the powers of the executive and legislature can be the cause of the erosion of the

autonomy of justice.

6. To examine the applicability of the doctrine of rule of law in form of the three districts

concepts viz no man can be made to suffer in body lawfully except for a distinct breach

of law inter alia.

1. 7 Significance of Study

[n this paper it is rather imperative for us to scan the relevancy of the study and its worthiness.

Some of the importance is mentioned thereinafter.

1. The study assists us to identify ways of strengthening the judiciary's independence given

the political social and economic set up of Uganda.

2. By looking at the results of the study we shall assess how other factors like removal,

appointment, remunerations and corruption of judicial officers have tended to erode the

independence of the judiciary.

3. The study acts as our spring board to identify how the Executive, Legislative and

Judiciary can be reconciled in Uganda today.

L.8 Scope of the Study

fhe study covered the current judicial independence of Uganda because there has been and still a

srowing rift in the executive to interfere in the judiciary. As was seen in the trial and charge of

[reason and rape. This happened in a siege by armed personnel black mambas on the 1st of

\tfarch 2009 at the Chief Magistrate Court Mengo, where Col. Dr. Kiiza Besigye and other six

)ailed rebel suspects of the Peoples Redemption Army were re-arrest. And verily 2005-2006

md thereafter has precluded showing that the independence of the judiciary is just a myth

llthough it is dawn started with the 1962 - 1966 Kabaka crises.

13

1.9 Hypothesis

It isn't suggested anywhere in the paper that the doctrine of Rule of law is absolutely irrelevant

to our understanding of the concept of independence of the judiciary in Uganda but rather a

check and balance The interference in the autonomy of the judiciary in Uganda has been due to

the position which the executive holds. The executive wields the appointing powers.

1. It has powers to appoint judicial officers on the advice of the judicial service commission

although of recent their appointment in office in an approval of the Parliament. The

efficiency of the doctrine of Rule of law and respect of the judiciary is adhered to in

restraining both abusing these powers.

2. We however argue and it's hereby emphasized that civic involvement in the judicial

process is the most effective way of ensuring autonomy of the judiciary in Uganda.

Therefore to check on the abuses of the executive and legislative there is need for greater

enforcement of the doctrine of Rule of Law. This is to ensure that no man is punishable

for no breach of law every man is subject to the ordinary law of the realm and adhering to

the general principles of the Constitution. For instance the right of personal liberty or

public meetings.

3. The main question in this research paper therefore is whether the powers of the executive

and legislative can be erosion of the autonomy of the Judiciary and if so what is the

appropriate steps one can put in place to curtail it.

1.10 Methodology

The approach that will be used in doing research will involve interviews with Judicial Officials,

the Public, Legal articles, News Papers and seminar reports and lastly text books. The Judicial

officials include the Clerks, the Registrars of Courts, Magistrates and Judges as you will notice

in the interview findings.

14

2.0 LITERATURE REVIEW

In this submission without covering the gaps of the past authors will render this submission of

little value and probably incomplete. I therefore propose to review on the literature of Justice

Kanyeihamba on the point of Rule of law. He had this to say, with the experience in the

developing countries of which Uganda is one that reveals a number of challenges to the

realization of human rights and independence of the judiciary. One of these challenges relates to

the rule of law. The rule of law is not a rule in the sense that it binds anyone. It is merely a

collection of ideas and principles propagated in the so-called free societies to guide Law makers,

administrators, judges and law enforcement agencies. According to the commentaries of Law

Politicians, Administers and judges rule of law is the idea that both the rulers and the governed

are equally subject to the same law of the land. (Commentaries of law and Governance op. cit

14) Under the 1995 Constitution of the Republic of Uganda, Chapter 4 which establishes

Fundamental and other human rights and freedoms. It is also stated in Article 23 of the

Constitution that- No person shall be deprived of personal liberty except in any of the following

~ases-

(a) In execution of the sentence or order of a court, whether established for Uganda or

another country or of an international court or tribunal in respect of a criminal offence of

which that person has been convicted or an order of a court punishing the person for

contempt of courts.

(b) In execution of the order of a court made to secure the fulfillment of any obligation

imposed on that person by law.

(c) For purposes of bring that person before a court in execution of court or upon a reason

suspicion that that person has committed or is about to commit a criminal offence under

the laws of Uganda. Article 28 is to the effect that in determination of civil rights and

obligations or any other criminal charge, a person shall be entitled to a fair, speedy and

public hearing before an independent and impartial court or tribunal established by law.

However we have seen incidences where suspects are not given an opportunity to defend

themselves or to be provided with a lawyer to defend them. More so even those that have

15

been court bail have been re-arrested. For example the black mambas that re-arrested the

PRA suspects.

More so in the case of15 Madzimbobuto v Lardner Burke ( 1969 AC age) Lord Reid pointed out

that there are situations where the law must take into account the fact that there are now regimes

which are universally recognized as lawful but which derive their origins from revolutions or

coup d'etats. Pg645. Therefore this theory rather literature should be debatable since the

promulgation of the 1995 Constitution. Article 3 thereof attempts to outlaw this theory though

practically the Kelethon doctrine of revolution in law has been witnessed since 1986.

This is understandable if looked at in light of Uganda's past history of coups and abrogation of

Constitutions followed by validation laws. E.g. the Busoga validation Act, Legal Notices of

Amin and Museveni eras which were the background that the 1995 Constitution was made. The

practicality of Article 3 is put in doubt if trends of courts in Uganda are to be analyzed. In

previous cases, courts have been reluctant to declare that sitting government is illegal as was

seen in the case of16 Besigye/Museveni Election Petition case of2001 and 2006.

Therefore experience of the law teaches us that in criminal justice and administration, one has to

be too careful. Presumptions of innocence and the necessity to prove criminal charges beyond

reasonable doubt can only be for the general good of society. Mistaken identities of suspects,

malicious entrapment by investing agencies, false confessions and errors in presenting and

assessing evidence are occurrences that lead to some innocent persons to pay heavily for the

crimes they may not have committed or participated in.

Like what occurred to Col. Kiiza Besigye who was charged and tried of rape, then with treason

case and the other 22 suspects of Peoples' Redemption Army (PRA).

However Justice Kanyeihamba proceeds by suggesting that a balance must be struck between the

two sides in which the protection of individual liberty and prosecution of crime operate (pg 15)

i\rticle 28 of the 1995 Constitution provides for a right to a fair hearing in the determination of

15 Madzimbobotu v Iardner Burke 1969 AC pg 645 .s Besigye vs Museveni Election Petition case of 2001 and 2006

16

civil rights and obligation or any crime charge, a person shall be entitled to a fair speedy and

public hearing before an independent and impartial court.

That view is often hailed in the nations of the Western civilization. The exercise of Government

powers may be legitimate and constitutional but the manner of it and its consequences may have

to be buttressed by the rule of law and constitutionalism.

There are some authors like Hans Kelsen who upheld on constitutional regime. Changes/new

legal orders "thus the doctrine of revolution in law". This doctrine has been used to legitimize

violent and unconstitutional regime changes in a number of countries. It was first applied in the

state vs Dosso and another17.(1966 EA) to legitimize a change of government in Pakistan. Court

observed as follows; that the laws made/legal order under a Constitution continues as valid until

it is replaced, altered or amended in accordance with the Constitution.(pg 514)

The effect of such change is not only the destruction of the existing constitution but also the

validity of the legal order under it. Such change is called a revolution in law.

The method which the revolution brought about is wholly immaterial. It may be violent or

peaceful. Equally immaterial is the motive of the revolution in law.

The doctrine was also applied in the Ugandan case of Uganda v commissioners of prisons

Exparte Matovu ( 1966 EA )18

More so Odoki on the independence of judiciary observed that; "the independence of the

judiciary is not only threatened by political interference, by finance, anxiety of judges"( F.E

Juuko, Separation A Realty Or A myth). He goes further by suggesting that the general principle,

judges should be entitled to salaries al allowances and other fringe benefits, commensurate with

their status and the judicial functions they perform. (pg 8) But unless the principal is adhered to,

it may be intricate for a judge to maintain the impartiality and dignified image that is essential to

preserve public confidence in the same way of justice. To me; however much the judges: all

magistrates salaries are increased without according to judiciary's due respect in terms of

autonomy, its powers will continue crumbling.

17 State vs Dosso and anther 1996

18 Exparte Matovu 1966 EA

17

2.1 SYNOPSIS

This work is organized into six chapters:

Chapter one, looks at the introduction pertaining to role of the executive and legislature in

relations to the independence of judiciary in Uganda. Note will be taken on the statement ofthe

problem; facing the judiciary and this has been mainly caused by the executive arm of

government which has led to the withering away of the independence of courts.

Definition of each concept is to be tackled and this includes mle of law as a doctrine and the

concept of the independence of the Judiciary. We shall also be analyzing the objectives of the

paper that we look forward to achieve at the end of the study or with the course of the study.

The relevance of the paper is noted and in this case we identify ways of strengthening the

judiciary in terms of appointments, removal of inefficient judicial officers and how the three

organs of state can be reconciled.

The scope of our study covers the post-independence of Uganda which saw a recent rift between

the executive and judiciary in the trials and tribulation of Rtd Col. Kiiza Besigye and 22 others.

In the Hypothesis of the study emphasis is put on the fact that erosion of independence of the

judiciary in Uganda is due to the position which the executive holds.

Thus appointing powers, civil involvement in the judicial process is the most effective way of

ensuring autonomy of courts. In order to minimize the erosion of the independence of judiciary,

steps should be taken to curtail it.

Methodology is viz. Library research, Legal research ranging from News Papers from 2003 to

2005 and thereafter, and parliamentary debates viz-a-vis Independence of judiciary in Uganda.

The Literature Review looks at gaps different authors failed to address under rule of law and

independence of Judiciary.

18

Chapter two embarks on the historical background of the rule of law in Uganda which will

include the Pre-Colonial period and show whether the Judiciary in that period was post

independent or not. Then the judiciary in the colonial administration will be handled. Thereafter

we shall conclude the chapter.

Chapter three embarks on the historical background of the Judiciary in Uganda which will

include the pre-colonial period and show whether the Judiciary in that period was independent or

not. Then the Judiciary in the colonial and Post-Colonial sway will be handled. Thereafter we

shall conclude the Chapter.

Chapter four shows how the judiciary has been interfered with by the Executive, Legislature and

the Army which is still an extension of the Executive. This will be squarely limited to Col.

KIIZA BESIGYE'S cases of treason and rape. (2003-2006). Hence concluding the Chapter.

Chapter five, focus on the political method of appointment, security of tenure of official and

salary, security from a tributary, discipline and freedom from administrative intrusion into the

judicial function. Then conclude the chapter.

And Chapter six covers conclusions and recommendations and the research topic which is the

doctrine of the rule of law and independence of Judiciary.

19

CHAPTER TWO

2.3 INTRODUCTION

This chapter presents the brief introduction on the historical back ground of the judiciary in Uganda

Before looking into the historical background of the rule of law in Uganda, it is rather imperative

to know the working definition of the term of rule of law. According to Justice Kanyeihamba,

"it's merely a collection of ideas and principals promulgated in the so called free societies to

guide law makers, administrators, judges and law enforcement agencies. The overriding

consideration in the theory of the rule of law is the idea that both the rulers and those governed

are equally subjected to the same law of the land" 19 (commentaries on law, politics and

Governance Op cit, pg 14)

According to Aristotle, The Greek scholar, Constitutional and political History of Uganda

(1894).20 "The rule of law is preferable to that of any individual,(pg 302) writing in the 13th

century, Bracton, said, "The king himself ought not to be subject to man but to God and the law

since the law makes him king. Therefore let the king render to the law what the law has rendered

to the king viz dominion and power, for there is no king where will rules and not the Law

The Roman Emperor Justinian defines Rule of law as "The set and constant purpose which gives

everyman his due rights. The law is the practical expression of justice, for the precepts of law

are these: to live honestly, to injure non-one and to give everyman his due.

The whole idea is that the role of the Rule of law is to ensure that no man is punishable for

distinct breach of law established in the ordinary legal manner before the ordinary courts of the

land, that everyman is subject to the ordinary law of the realm and that the right of personal

liberty or public meetings, are the result of judicial decisions determining the rights of private

personal in particular cases brought before the ordinary courts of the land.

·9 Commentaries on law, politics and governance op cit pg (14) 0 The Constitution and political history of Uganda (1894) pg (302)

20

Historically prior to the colonizing of Uganda; enforceability of African laws and customs

depended on two major operational premises, namely, reliance upon the parties in dispute to

accept, without further argument, the final judgment of the people and the fear of upsetting the

balance of natural principle or of the community, which is the vital for The disregard of either

principle was believed to lead to the punishment and destruction, of the community as whole.

2.4 THE RULE OF LAW IN THE PRE-COLONIAL PERIOD

According to Justice Kanyeihamba, there were areas in which the African traditional laws can be

said to have been better than those found in other legal systems. It's emphasis on compensation

and reconciliation and in emphasizing settlements of disputes amongst the immediate parties and

their families, encouraged, unity and cohesion of community. Its preference for compromise,

arbitration and compensation as opposed to punishment and deprivation of property in the

impersonal state, which are the characteristics of the modern regime of criminal sway, enhanced

people's belief in and respect for the law. Thus, in the centralized kingdoms of Buganda,

Bunyoro and Toro inter alia.

One of the major criticisms some foreign writers had against African customary law is that it

lacked administrative infrastructure, institutions and machinery for adjudication and enforcement

of its rules. It is said that there were customary court buildings, armed police or publicity

appointed executioners. Consequently, the conclusion is reached that African law is not proper

law and at worst, it does not exist beyond habits and conventions. Thus, Evans Pritchard, writing

about the customary law of the Nuer of the Sudan said, "In a strict sense no one is above the

law. There are conventional compensations for damage, adultery, loss of limb, and so forth, but

there is no authority with power to adjudicate on such matters or enforce a verdict. In that

regard, that didn't apply to Sudan, a lone but, also applied to the centralized and decentralize

societies. For instance Busoga; Buganda; Teso; Ankole inter alia thus before Uganda's creation.

2.5 THE RULE OF LAW DURING THE COLONIAL ADMINISTRATION The importation of foreign law in Uganda was of necessity accompanied by foreign political rule

which established the Bill of rights.

21

The establishment of British protection over Uganda is formation, paved the way for the far

reaching milestone in the legal history of Uganda and particularly Buganda. This was the

Uganda Agreement of 1900?1 (Pro Joseph M.N Kakooza, Ugandans Legal History in a nut shell

pg4)

As we have seen above, the declaration of British protection over Uganda accompanied by the

establishment of the consul's court (later commissioner's) laid the foundation for British rule and

administration of justice in and through different machinery. A careful study of the 1900 and

Agreement reveals elements of a document of a character of a constitution of a country with

internal self-government. Indeed, over the years, the Agreement has been accepted as the first

constitution of Buganda. The salient features, it is said, were discussed in detail between

Johnston and the chiefs with the assistance of Archdeacon Wilier whom we shall meet later.

When, finally, the Agreement was drawn out, the key provisions were as follows inter alia:

a) The Uganda protectorate was to move towards self-sufficiency in meeting her local needs

without falling upon the United Kingdom Government. System of taxation for the

necessary revenue was therefore designed.

b) The Kabaka and his chiefs were to share with the commissioner the burdens of governing

the country and they would be paid for these services.

Be that as it may, the Agreement created one of the major legal differences between Buganda in

particular and the rest of Uganda viz. the East and North where there is no individual land title at

all corresponding to the Mailo Land although verily the 1900 Buganda Agreement was the first

source of Rule of law since it was adopted and received in form of a Constitution.

2.6 THE RULE OF LAW (FROM 1995 UP TO DATE)

Experience in the developing counties of which Uganda is one reveals a number of challenges to

the realization of human rights. One of these challenges relate to the rule of law. The rule of law

is not a rule in sense that its binds everyone. It is merely a collection of ideas and principles

21 Prof. Joseph M N Kakooza Uganda's legal history in a nutshell pg (46)

22

propagated in the so called free societies to guide lawmakers, administrators, judges and law

enforcement agencies.

Basically the Rule of law as a challenge to realization of human rights will be focused on viz-a­

viz to Col. KIIZA BESIGYE'S trail of treason and murder to a large extent. Since his trails

cases are my area of study.

Therefore in the first case of Ibingira & others V. Uganda (Crime case 14 c) , which resulted

to the arrest of the applicants and several Ministers in the first Obote Government on gun point

with no charges against them, marked the demise of the rule of law (pg 306) Because when the

detainees applied successfully for the writ of Habeas corpus and released, they were again re­

arrested and taken to Northern part of Uganda where emergency regulations were in force

thereby taking their case out of the ordinary jurisdiction of the courts.22

In several other cases that followed, the courts themselves resorted to extra-ordinary measures to

administer what they perceived to be justice?3 In the case of Otai,v. Uganda (crime Appeal No'

163 of 1970 ) unreported, the court of Appeal assumed jurisdiction in order to render justice even

though the law applicable appeared to be deny its jurisdiction while, in the case of

Shah.V.Attorney General (1970 ) E.A pg 329 the same court refused to entertain an Appeal

brought by the government, reasoning that it had no jurisdiction to do so even though the law

applicable appeared to give it that jurisdiction.

Again, the court was happy, with what the High Court had decided and did not wish to interfere

with what it saw as good and just decision. Hence showing that in the developing of legal

systems including that of Uganda, the organs of Government, viz. the Judiciary Parliament must

stand up, uphold and protect the liberties of the people.

Coming to the case of Bukenya V. Attorney General ( 1972) E.A pg 329 where the plaintiff

claimed general damages from the defendant for injuries he sustained as a result of being shot at

by a member of the armed forces who pleaded that the shooting was in self-defense, Justice

Russell vehemently commented on the effects of the Military Police (powers of Arrest) Decree,

that "There appears to be a wide spread but mistaken belief not only among the general public

22 Gace lbingira and another vs Uganda crime case 14 23 Otai vs Uganda( crime appeal no 163 of 1970

23

and apparently even in legal circles that the police, solders, and private persons awfully entitled

to arrest without warrant, persons whom, they reasonably suspect of having committed or about

to commit designated offences, may shoot when in cold blood should they fail to acquiesce in

arrest. 24

The afore said judicial pronouncements on the other hand illustrated the extent to which the rule

of law was uphold by the Judiciary despite the brutal characteristics of the regime that in the

long-run trashed the supremacy ofthe law.

In another gruesome incident that occurred in Ssemwogerere and Olum. V. Attorney General

( const. Appeal No' 3 1999) where the petitioners challenged the unconstitutional act of passing

the Bill without quorum, the Constitutional Court upheld the objections and dismissed the

petition. On appeal the Supreme Court directed that the Appeal Court sitting as a Constitutional

Court hears the case. Only to be followed by a barrage of criticism from the government and its

supporters that judges have interfered with the sovereignty of Parliament and taking away its

privileges and immunities. The case was ruled in favor of the Executive by the Supreme Court.

Hence showing another scenario where the executive has proceeded to trash the rule of law by

always ensuring that it's will is obeyed in all circumstances whether it is in breach of the law.25

In the trial of Dr. Kiiza Besigye and other 22 ( High Court criminal session No' 14) peoples

Redemption Army suspects, on charges of rape and treason, the armed security personnel

dressed in black raided the court premises, and surrounded the holding cells in which the

successful bail applicants were waiting to be realized. As a result of this action, the bail papers

could not be processed. The armed personnel (Who subsequently came to be dubbed Black

Mambas' by the media) entered into some of the offices and interrupted the court's normal duty

of processing bail. The accused were thus returned to the prison (2005), hence constituting a

grave and heinous violation of the twin principles of rule of law and Judicial independence. The

act sent a chilling feeling down the spine of the Judiciary and left the legal fraternity and the

general public agape with disbelief and wonderment.

24 Bukenya vs Attorney General1972 . E.A page 329 25 Ssemwogerere and Olum vs Attorney General, Constitutional appeal No 3, 1999

24

In Col (Rtd Dr. Kiiza Besigye V. Uganda (High court criminal session No' 149 2005) the first

accused (Rtd. Col. Dr. Kiiza Besigye) was separately charged with the offence of rape allegedly

committed in 1997 and acquitted of the charge by Justice Bosco Katutsi when he proved

innocent as there was no evidence laid against him. But later the military court martial refused to

release him. Hence showing that the army is an extension of the Executive was ready to work

according to the expectations of the executive rather than the law.26

When it was widely reported in Ugandan local newspapers that the Judicial service Commission

had expressed grave concern that anyone who was contemplating setting up court martial

tribunals which did not comply with the constitution and laws of Uganda and which were

intended to by-pass the ordinary courts of the land, the legislature did nothing to stop such an

awful act a part from the government persuading it to enact a law that empowered and

strengthened the General Courts Martial when trying civilian suspects of terrorism and other

related activities.

This was another eye-opener of trashing the supremacy of the law as the newly enacted law

(UPDF Act, Act Bo 7, 2005) gave the powers to the military court of trying civilians who were

supposed to be tried by civilian court. The very reasons that Rtd. Col. Kiiza Besigye and 22 other

suspects found themselves in the general court martial.

In conclusion therefore the rule of law in Uganda does not exist and if it exists it's on a small

scale. This is manifested by the cases decided from 1960's up to date. Especially with Rtd Col.

Kiiza Besigye's trial and the recent concluded treason and rape cases where the black mamba

raped courts the Chief Magistrate Court of Mengo and re-arrested him. However more of Rtd.

Col. Kiiza Besigye's cases will be focused on in the chapter that will follow thereafter.

26 Rtd Col. Dr Kiiza Besigye vs Uganda, High Court Criminal Session No. 49, 2005

25

CHAPTER THREE

THE UGANDAN JUDICIARY

3.0 INTRODUCTION

This chapter presents the Uganda's human rights commission the Inspectorate of Government,

the Court system, the Human Rights Commission investigates allegation on human rights

violation and the Inspectorate of Government promotes the strict adherence to the rule of law and

principles of natural justice. The court system shows the highest court in Uganda and their

subordinate courts.

3.1 THE UGANDA HUMAN RIGHTS COMMISSION

The Uganda Human Rights Commission (UHRC) is an independent Constitution body established by Article 51 of the Constitution. The commission mandate encompasses arrange of activities including the investigation of alleged human rights violation, visiting places of detention raising awareness of the constitution and monitoring the governments compliance with international human rights.

3.2 THE INSPECTOROTE OF GOVERNMENT

The Inspectorate of Government is an independent body created under Article 223 of Constitution of the Republic of Uganda. It's mandate encompasses inter alia the promotion of strict adherence to the Rule of Law and principles of natural justice in administration and stimulation of public awareness about the values of Constitutionalism in general and the activities of its office in pruiicular through ru1y media and any other means it considers appropriate27

3.3 THE COURT SYSTEM

The highest court in Uganda is the Supreme Court followed by the Court of Appeal which also

functions as the Constitutional Court for cases of first instance involving constitutional issues.

27 Ibid Art. 225 (1) (a) and (f)

26

The other courts are; The Local Council Courts; Specialist Tribunal and also in addition the

Military Court System.

The Supreme Court is Uganda's court of appeal and hears appeals from Court of Appeal both in

its ordinary capacity and when sitting as Constitutional Court. The Court of Appeal has appellant

jurisdiction over the High Court and also hears constitutional cases at the first instance?8 The

High Court is divided into the Civil, Criminal, Commercial, Family and Circuit Division.

3.4 UGANDA'S INTERNATIONAL AND REGIONAL HUMAN RIGHTS

OBLIGATION

Uganda has ratified all the maJor International Human Rights Treaties currently in force

including the International Covenant on Civil and Political Rights (ICCPR) and its first optional

protocol, the International Covenant on Economic Social and Cultural Rights. The Convention

of elimination of all forms of discrimination against women, the International Convention on

elimination of all forms of racial discrimination, the convention against torture, cruel inhuman

and degradedly treatment and punishment, the convention on the protection of children and

protection of the rights of all migrant work.

3.5 THE TRIAL OF OPPOSITION LEADER DR. BESIGYE

A second relevant political development involved Dr. Kiiza Besigye a presidential candidate.

Dr. Besigye played a role in NRA's Guerilla war where he acted as Yoweli Museveni's personal

physician. After the latter became President in 1986. Dr. Besigye was appointed to several

Ministerial offices. In 2001 Dr. Besigye run for Presidency losing to President Museveni. In a

petition to the Supreme Court, Dr. Besigye unsuccessfully contested the results. Following the

elections Dr Besigye was reportedly under surveillance by the Military and Intelligence

services.29 He went into exile in South Africa until 2005. When Besigye returned from exile he

was nominated as a Presidential candidate for the Forum for Democratic Change (FDC) in the

fort coming 2006 elections?0 On 14th November 2005 Dr. Besigye was arrested together with 22

alleged PRA and later charged with treason and rape which was alleged to have been committed

28 The Constitution of Uganda Art. 134 and 137 29 R. Naluwairo. The Trials and Tribulation of Rt. Col. Dr. Kiiza Besigye and 22 others 3° F. Osiike/ Awasike: Besigye returns. New Vision (27 October 2005)

27

in 199731 All the accused were committed to the High Court for triat32 On 3rd February 2006,

Judge Bosco Katutsi withdrew from hearing the treason case citing pressure and allegation being

put about that he was politically biased.

After the elections in defiance of the Constitutional Court ruling, the Court Martial ordered Dr.

Besigye to reappear before it. 33

On 25th January 2007, Solicitor General Lucien Tibaruha filed an application with the Deputy

Registrar of the High Court seeking to counsel the bail granted to the PRA accused in November

2005. On the 1st March 2007 the PRA accused were granted bail but the High Court was evaded

a large contingent of uniformed armed men.

3.6 CRITICISM AND DIFIANCE OF JUDICIAL DECISIONS

When the Constitutional Court on June 2004 handed down a judgment ruling that Referendum

(Political System) Act 2000 was un constitutional.34 This provoked harsh criticism from

President directed specifically to the Court and Judiciary. Few days later President Museveni

was reported saying "the major work of judges is to settle chicken and goat theft cases but not

determining the country's destiny".35 Many sectors of society are believed to have interpreted

this statement as a threat to the independence of the Judiciary in contravention of Uganda's

Constitution.

The Uganda Law Society (ULS) declared that it was gravely concerned about the unwarranted

attack by the Executive on the Judiciary in the performance of their constitutional duties. The

Society stated that:

i) It is a duty of all governmental and other institutions to respect and observe the

independence ofthe Judiciary.

The President Statement also drew criticism from sectors of the International Community.

The Secretary General of the East African Community Major Nuwe-Amanya Mushega

31 The charge sheet have been reprinted in the New Vision : Besigye Charge Sheet {17 November 2005) 32 High Court Criminal case No. 955 of 2005 33 The judgement is available at www.judicature.go.up.uploaded file No. 1142236737: 34 See Supra noe 28 and the accompanying text. 35 I Ssuuna, Judges favour Ssemo says Museven The monitor 30 June 2004

28

criticized the government for undermining the independent of one another if democracy and

development are to be realized.36

3. 7 THE PRESIDENT THREATENS TO SUSPEND JUDGES

At the beginning of October 2005 President Museveni in a move to counter the widespread

eviction of customary inhabitants of land parcels directed an immediate end to all evictions

of lawful and bona fide tenants across the country. In June 2005 President Museveni had

already warned land owners not to exploit the tenants' ignorance of land low37 He also

directed warnings at Judicial officers who issued what he called bogus eviction warrants. A

state House Statement quoted the President as saying that he "will suspend a judge who

colludes in illegal evictions and institute an inquiry".

The statement was criticized by the Uganda Law Society on the basis that under the

Constitution the President had no power to take disciplinary action against Judges; rather this

power lay within the domain on the Judicial Service Commission in a statement the Uganda

Judicial Officers Association (UJOA) complained of continued threats against judges which

they said undermined the principles of independence of the Judiciary as enshrined in the

Constitution.

3.8 THE DEPLOMENT OF POLICE AT THE HIGH COURT MARCH 2007

As briefly referred to above, on 1 March 2007 a hearing was scheduled to discuss the

governn1ent appeal against the decision to grant bail to the PRA accused. The hearing which

was presided over Justice Eldad Mwangusya was adjourned and accused to the Registrar's

office in order to sign their bail papers, six of them were able to sign all bail papers three of

them failed because their sureties were absent.

During the standoff, Deputy Chief Justice Leticia Kikonyogo addressed a press conference in

which the condemned the heavy police presence on the premises of the High Court.

36 R. Kanyeihamba, Government wrong on judges. The Monitor 6 July 2004 37

J Namutebi: Museven warns Land Lords: New Vision 11 June 2005

29

CHAPTER FOUR

A CRITICAL ANALYSIS OF JUDICIARY AND EXPERIENCE OF COL. KIIZA BESIGYE'S TRIAL

4.0 INTRODUCTION

This chapter presents findings of the interviews with the Judicial Official and Members of

Parliament on the state of judicial independence.

4.1 FINDINGS

According to an interview with Justice Madrama, a Justice at Commercial Court and with great knowledge about judicial independence stated that much as the judiciary has on several occasions tried to be independent from other arms of government but in some cases its hands are tied in circumstances for example in situations where there is an invasion of the army and police in the temple of Justice, all courts proceedings cease to proceed because much as one is a judicial officer, the issue of life is very important and treasured by everyone.

He further stated that the state should distance itself from such acts that raise a miscarriage of justice. For example the issue of Black Mambas in Dr. Kiiza Besigye's case in 2005 which was a night mare to the Judiciary.

In the interview with Clerk Florence of the High Comi at Twid Tower, she had to quote Justice

Kanyeihamba who said "For there to be rule of law, there must be three arms of government

which are independent, much as there are checks and balances, the independence of each

arm of government must be in the driving sit." She further stated that independence of

judiciary in Uganda has on several cases been abused and its experiencing a high level of

impunity.

In an interview with Allan Sewanyana a Member of Parliament for Makindye had this to say.

"The problem in Uganda is that some people think they are above the law and cannot be tried by

courts therefore they do not respect court orders. He gave a recent example of the Inspector

General of Police who refused to appear in the Chief Magistrates court after being summoned by

the magistrate but only to see a mob at the court. Mumbere the King of Bukonjo was also re­

arrested after being granted bail.

30

He further said that as long as this dictatorial government is still in existence, independence of

judiciary when it comes to politics will be a night mare.

Mr. Isaac A. Kambona a student of Law at Makerere University Kampala in an interview said

that as long as impunity and disrespect of the judiciary by the Executive is still in existence, the

independent of the judiciary and the rule of law in Uganda are on a time bomb. He continued to

say that all arms of government should be independent and only if there is to be interference, it

must be lawful, reasonable and not disrespectful.

The events in question relate to the trial of the opposition leader Dr. Kiiza Besigye who stood as

a candidate in the Presidential elections of 2001 and 2006. On 14 November 2005 Dr. Besigye

together with 22 suspected rebels with whom he was reportedly liked was arrested and held on

remand. He was charged with treason and rape. On 16 November 2005 when Judge Edmond

Ssempa Lugayizi granted boil, the courts premises were surrounded by armed memb~rs of the

Joint. Anti-Terrorist Team (JATT) also known as the Black Mamba Urban Hit Squad. The

JATT tried to re-arrest the suspects on ground of new charges before the General Court Martial.

A few after the incident Judge Lugayizi withdrew the case citing interference by the military.

Dr Besigye and his co-accused were charged with terrorist offences before the Court Martial

despite parallel proceedings still taking place before the High Court. When Dr. Besigye was

granted bail by the High Court later in November 2005, the prison authorities refused to release

him whilst the court martial proceedings continued. In proceedings before Uganda's

Constitutional Comi in January 2006 it was ruled that the trial of Dr. Besigye and his co-accused

before the Court Martial was illegal. President Museven was publicly critical of the decision.

The following month a second judge involved in the High Court proceedings resigned citing

pressure and allegation being put about that he was politically biased. They made Museveni win

he elections by 59%.

There followed a confrontation between the High Court and the Military Court as to who was

trying Dr. Besigye and his co-accused. On 5th January 207 proceedings resumed at Curt Martial

but with Dr. Besigye's name struck off. The Constitutional Court repeated its court ruling on the

illegality of the court martial proceeding and ordered the release of the suspects. The authorities

refused and the government appealed the decision. On 1st March 207 the accused were granted

31

bail, but in a move reminiscent of the deployment of the JATT at the High Court on 16

November 2005. The High Court was invaded by a large contingent of uniformed armed men.

These forces stormed into the court chambers itself and there after tried to force their way into

the registrars' office. The PRA accused were taken captive and later re-arrested on fresh

charges.

The extent to which Judiciary was interfered with in relation to violation of the sanctity of the

court premises, disobedience of comi orders with impunity, constant threats and attacks on the

safety and independence of the Judiciary and judicial officers, the savage violence exhibited by

security personnel within the court premises failure by State organs and agencies to accord to the

courts assistance as per Art. 28 of the 1995 Constitution, and failure to recognize the judicial

power is derived from the people, between 2005 and 2006 up to date, has drastically been an act

that has denied Judiciary a chance of performing its adjudicative functions effectively and

efficiently.

The Executive, Parliament and the Judiciary are the three arms of the state which must, as

provided for in the Constitution, have a harmonious relationship if they are to promote good

governance. For our purposes the critical elements of good governance include the rule of law,

transparency, promotion of accountability, open contestation, human rights and justices the detail

of which are, once again set in the Constitution

To that end, the Constitution also makes provision for the division of labor between the three

organs of the state as follows: The Executive over which the powers of the President presides,

initiates and implements the policy of the government, it has the powers of the Sword. Indeed,

under Art 99, Executive power is vested in the President, and by article 98 of the Constitution, he

is also the Commander in chief of the UGANDA PEOPLE'S DEFENSE FORCES (UPDF),

Head of State, head of Government and the Fountain of Honor under Art. 124(2) of the

Constitution, the President may declare a state of war without the approval of Parliament but

shall seek their approval immediately after the declaration and in any case not later than seventy­

two hours after the declaration. The Executive lays before Parliament estimates of revenues and

expenditures of government for a financial year for approval

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Under Article 79(1) and 90(1), Parliament has authority to make laws on any matter for the

peace, order, development and good governance of Uganda; oversees the performance of the

Executive; approves important appointments of the Presidents, approves government borrowing;

and can impeach the President and censure his or her ministers for abuse of office and on other

grounds. Parliament also approves the budget. The Judiciary has the power of adjudication,

constitutional interpretation, statutory interpretation and judicial administration

Of all the three organs of government, it is the Judiciary which has witnessed the greatest

interference from the remaining two organs that is the Executive and Legislature. This is where

the Executive has to fulfill its desire and ensure that its interests in the judiciary are upheld. In

order to achieve the aforesaid target the Executive in the name of the President played a leading

role in the erosion of the independence of the Judiciary.

4.2 THE PERIOD BETWEEN 2005-20017

Under this period the judiciary in Uganda faced the worst relationship with the Executive. The

Executive in the first place was highly militarized and so were the judicial powers and the

notion of constitutionalism. Especially when Rtd. Col. Kiiza Besigye and the 22 others were

tried by the General Court Martial and also when the same Army (an extension of Executive)

was used to storm the temple of justice.

The notion of rule of law must concern itself not only with the exercise of governmental power,

but detrimental interference in the operation of those institutions.

Shortly after Besigye's return, he was arrested and jointly charged with 22 others with treason

and misprision of treason under the Penal Code Act.. The indictment was read to them at

Buganda Road Chief Magistrates Court. The first accused (Rtd. Col. Dr. Besigye) was

separately charged with the offence of rape allegedly committed in 1997 in the High Court

where Justice Bosco Katutsi held that the evidence before court was inadequate even to prove a

debt; impotent to deprive of a civil right; ridiculous for convicting of the pettiest offence,

scandalous if brought forward to support a charge of any grave character, and monstrous to ruin

the honor of a man who offered himself as a candidate for the highest office of this country.

Therefore imputing that the State machinery (or Executive) was punishing Col. Kiiza Besigye

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unlawfully making him to suffer in body for no distinct breach of the law established in the

ordinary legal manner before the ordinary courts of the land. A scenario of breach of the rule of

law.

On November 16th 2005, when the accused were taken to the High Court for a bail application

before Justice Lugayizi, fourteen of the accused were granted bail. As the hearing was

proceeding on, armed security personnel dressed in black raided the court premises, and

surrounded the holding cells in which the successful bail applicants were waiting to be released.

Eventually interrupting the court's normal duty of processing bail as the "Black Mambas'

entered into some offices This was reported in the Daily Monitor Thursday November 17TH

2005 where Justice Ogola said: "The siege constituted a very grave and heinous violation of the

twin principles of the rule of law and Judiciary, and left the legal fraternity and the general

public agape with disbelief and wonderment.

The following day on November 1 i\ 2005, all the accused persons including Besigye were

taken to Makindye and jointly charged in the General Court Martial (GCM) with the possession

ofunlawful fire arms and terrorism which is created under the Anti-Terrorism Act, 2002 despite

the fact that the same act stipulates that such offence is only tried by the High Court under

section 6. On the same issue Justice G.M Okello said inter alia that the decision made by GCM

in that regard was null and void because it was an incompetent court violating the accused's

right to a fair hearing as protected by Article 28(1) and hearing as protected by Article 28 (1)

and entrenched by Article 44 © of the Constitution. (Ronald Naluwairo, The Trails and

Tribulations of Rtd. Col KIIZA BESIGYE and 22 others Huripec working papers no 1 October

2006 pg 23)

The trial of Besigye and 22 others before the General Court Martial (GCM) was therefore in

contravention of the right to a fair hearing and contrary to the rule of law and the Constitution of

the Republic of Uganda.

In Miscellaneous Criminal Applications Nos. 228 and 229 of 2005, Besigye applied for, and

was granted bail by the High Court. However, on the basis of a warrant of commitment on

remained issued by the General Court Martial (GMC) he was not released. Reported in the

Daily Monitor of Saturday November 261h 2006 This was another way of undermining the rule

34

of law and independence of the judiciary by the State not allowing Besigye to come out of the

jailed Thus that is why the State first charged him before the General Court Martial before his

bail application hearing in the High Court.

In the subsequent application for a writ of habeas corpus filed by Besigye, Justice John Bosco

Katutsi ruled that the continued detention of Besigye on a purported warrant of commitment

from the General Court Martial was illegal unlawful and in contempt of the High Court order to

release the applicant on bail.(Rt Col Dr. Kiiza Besigye vs Attorney General Miscellaneous

cause No' 161 of 2005) In defiance of the High Court order, General Tum wine continued the

trial of the accused. Even when the constitutional Comi subsequently pronounced itself on the

matter declaring that the military court did not have the jurisdiction to try the accused, he did

not take heed, but insisted on proceeding with the trial up to its conclusion.

With this regard, the Executive's resort to a fiction to achieve its detention of Rtd Col Kiiza

Besigye and the 22 others amounted to abuse of the rule of law, the same way it occurred in

Ibingira and others v. Uganda. Where several applicants successfully applied for the writ of

Habeas Corpus and were re-arrested, taken to another part of Uganda where emergency

regulations were in force thereby taking their case out of the ordinary jurisdiction of the courts.

In the court martial proceedings that were going on when trying Rtd. Col. Kiiza Besigye,

General Elly Tumwine who was chairing the court martial at the time decided to throw them to

defense lawyers in the Military detention. He disagreed with them on points of procedure to be

taken when trying their client, by accusing them of contempt of court that they were obstructing

the proceedings reported in the Daily Monitor of November Friday 2005 pg 1. In my view the

detention of Besigye' s attorneys, Caleb Alaka and Erias Lukwago amounted to the abuse of the

principles of rule of law and independence of the judiciary because no person is supposed to be

punished for contempt of comi in a criminal offence. And if is to be punished, then a specific

offence charged against him must be distinctly stated, which the court martial failed to do. This

was the same argument in the Privy Councils case ofRepolard (2)

General Tumwine also ignored defense by the advocates of Rtd. Col. Dr Kiiza Besigye that

they enjoy judicial immunity. He later sentenced them to two weeks imprisonment or a fine of

Shs. 2,000,000 which they paid and regained their freedom. Verily in my view when it comes

35

to the courts and the law, the detention of Besigye's advocates and fining them was a clear

violation of the twin principles of the rule of law and independence of judiciary where by the

Executive interfered in the judicial procedure of the Court Martial and remained a binding

comer-stone of the institutional arrangement of the government.

In the early common law Garnett. V. Ferrand declares that judicial officers are immune to suit

for anything said or done by them in the exercise of a jurisdiction belonging to them.

In another development before the charging and detaining of Besigye's advocates, the General

Court Martial (GCM) also went on to adjourn Kiiza Besigye's case after carrying out the

investigations which amounted to a violation of the rule of law. In the first place it was illegal

to adjourn the court martial in the absence of some of the defense clients on grounds that the

accused were to appear again in the High Court on the very day. And secondly, because Kasule

A.G.J. made an order staying the proceeds in the General Court Martial which remains good

law because it is subordinate to the High Court, not until its decision is reversed by a superior

court or repealed by the Parliament according to the authority of Joseph Tumushabe.v.

Attorney General Constitutional petition No. 6 of 2004.reported in the new Vision January

Tuesday 2006 pg 7.

Therefore whether or not the court martial adjourned Kiiza Besigye's case, it acted contrary to

the rule of law by going against the orders of the High Court since it was a subordinate court not

in position to preside over that case.

In another defiance of comi orders, the Government on April 2006 hired private prosecutors

from Kampala Associated Advocates at Shs. 2.5 billion teamed up with the Deputy Director of

Public Prosecution (DPP) Mr. Simon Byabakama Mugenyi, to prosecute Besigye in the treason

case. Reported in Sunday Monitor of March 4111 2007 pg 2 This alone amounted to the break­

down of the rule of law because even where the government was not constitutionally allowed to

bribe private lawyers purposely to prosecute Besigye according to the High Court Orders, it did

so. Hence only losing the case on lack of evidence of treason and causing judge's strike.

In another relationship between the Judiciary and Executive, Justice Lugayizi declined to hear

Besigye's bail application over threats from the military and the principal judge, James Ogola,

took over the matter and granted him interim bail. But again the military arrested him

36

immediately, citing orders of the General Court Martial, and took him back to Luzira.

Therefore in my view, the military threats to Justice Lugayizi and the defiance of bail order

issued to Besigye by the Justice James Ogola all amounted to the breakdown of the rule of law

because the collection of ideas and principles propagated in the free Uganda to guide law­

makers, administrators, judges and law-enforcement agencies was utterly abused by the

Executive.

President Museveni himself said that Col. Kiiza Besigye and the 22 others in his own judgment

are criminals and he would keep them in prison until they ask for amnesty, regardless of what

due process of the law may say. This was another echo of the regime of not respecting or

following established law in the country because according to the Uganda Amnesty

Commission and the law governing it, those who get amnesty are people who have committed

grievous crimes like treason and murder. This did apply to Kiiza Besigye and the 22 other

suspects because they were ilmocent of crimes alleged against them.

To me this was again a scenario amounting to a crisis of break-down of rule of law especially

where the Fountain of Honor (President) determines the fate of the accused before the custodian

ofthe law.

Briefly, the Executive was so influential in the running of the Judiciary thus during the trial of

Col. Kiiza Besigye and 22other PRA suspects. But not ruling it out that even after Besigye's

trial, the Executive influences the courts of law especially when court orders are defied by the

military, judges are threatened; lawyers are beaten up by security people among others.

All the already mentioned illegal acts of the Executive in pursuing a narrow positivist

interpretation of constitutionalism have resulted into erosion of the rule of law and judicial

independence as we shall see in the next chapter that follows.

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CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

This chapter presents a conclusion and gives recommendations of the study.

5.0 CONCLUSION

In conclusion therefore the Chief Justice, Benjamin Odoki decried the interference by the

Executive arm of government on the independence of the judiciary, noting that the intrusion has

been pronounced in the state's refusal to obey and enforce decisions of courts of law the

Judiciary is not free and it's a myth of judicial independence?8 In recent editorial in the Daily

Monitor, law Professor Busingye Kabumba of Makerere University in Kampala describes the

country's 1995 Constitution as "essentially an illusion"39 While the first article of the Ugandan

Constitution gives "power to the people" Professor Kabumba suggests that the shared perception

among Ugandans is that "all power belongs to the president who exercises his sovereignty

through the army". It would be na'ive to suggest that independence of the Uganda judiciary is

perfect although Article 128 of the 1995 Constitution stipulates that "In the exercise of judicial

power, the courts shall be independent and shall not be subject to the control or direction of any

person or authority.

This is a climate of utopia that does not subsist anywhere in the developing world. But we can at

least say that the degree of independence enjoyed by the Uganda judiciary is commendable

although it may vary from case to case and also at times from a given political climate.

In cases with political attributes, the Judiciary has vamoosed to surrender its inherent powers

enshrined in the 1995 Constitution. This has been discerned in Rtd Col Dr. Kiiza Besigye v.

Museveni Y oweri Kaguta and the Electoral Commission Supreme court presidential Election

Petition No' 1 of2001 where Besigye contested the results in Uganda's Supreme Court and lost

38 Chief Justice Benjamine Odoki: Daily Monitor Sunday 11 September 2011

39 Busingye Kabumba, The 1995 Constitution is nothing but an illusory law, Daily Monitor (23 September, 2012, 12.00 a.m)

38

the suit on the grounds that the origin and other election malpractices did not substantially affect

results, and also in the last concluded Besigye cases of rape and treason. (The rule of law

appeared to have protected the independence of the Judiciary at the foreign pressure on the

regime to free Besigye and others. It is on rare occasions that the Executive interferes in

ordinary cases (with no political attributes).

We should also note that the independence of the Judiciary has been secured in the Constitution

by guaranteeing the judicial officer's security of tenure, remuneration and other measures. An

independent Judicial Service Commission appointed was created by the Constitution. Its

function include advising the President in the exercise of the President's power to appoint the

Chief Justice, the Deputy Chief Justice, the Principal Judge, Justice of the Supreme Court, a

Justice of the Court of Appeal and Judge of the High Comi and the office of the Registrar in

order to achieve rule of law, there should be a collection of ideas and principles propagated in the

free Uganda to guide law-makers, administrators, judges and law-enforcement agencies.

However much as the 1995 Constitution is vivid on the independence of the judiciary, the

practice of fulfilling the constitutional desires on the independence of the judiciary has been

somewhat a hoax.

It is thus vivid that under our 1995 Constitution there is no complete rule of law. Even where

such rule of law existed it would have its limitations in respect of principles guiding law-maker,

administrators inter alia. Nevertheless the doctrine of rule of law amongst the various branches

of government is necessary although it may not be a sufficient condition for a democratic system

of government and for the achievement of social justice.

5.1 RECOMMENDATIONS

1. I urge the government of Uganda to abide by judicial decisions this is a fundamental to

the maintenance of the rule of law. Any disagreement over court decisions should be

settled within the channels provided for by law.

2. I recommend in the strongest terms that the executive and government desist from direct

interference with decisions of the court especially in such circumstance where their

actions were designed to intimidate and frighten those present.

39

3. The government is urged to investigate the circumstances surrounding the deployment of

forces to the High Court as a matter of urgency and publish its findings.

4. The government must ensure that the judiciary has sufficient monetary and human

resources to enable it to function without the risk of having its independence curtailed

and which will allow it to clear the back log of cases which has serious human rights

implication.

5. To maintain the practical applicability of the twin principles of rule of law and

independence of the judiciary in Uganda, the following should be done.

6. In the first place, no man should be punished or lawfully made to suffer in the body or in

the goods except for a distinct breach of the law established in the ordinary legal manner

before the ordinary courts of the land. Thus the breach of Article 28(1) viz. of fair

hearing in the 1995 Constitution should be avoided to avoid future incidents of similar

nature as Besigye's trial of rape and treason charges.

7. Every Ugandan of whatever rank or condition should realize that is subject to the

ordinary law of the realm and that, it amenable to the jurisdiction of the ordinary courts.

Therefore incidents of the President saying that ordinary courts should charge and

sentence Col. Besigye of treason even when he was innocent should not arise again.

8. Then disobeying of orders from the judicature courts by subordinate ones (GCM) should

be stopped.

9. The judicial organ (Judiciary) should always adhere to the general principles of the 1995

Constitution by enforcing the rights and freedoms of the ordinary people through the

courts as per Article 50(1) especially. Because the rights of personal liberty or public

meetings are the result of judicial decisions determining the rights of private persons in

particular cases brought before the ordinary courts of the land.

10. In maintaining judicial independence, judges must be kept clear of political bias as per

Article 128 (1) of the 1995 Constitution. This applies both to the civilian courts and

General Court Martial (GCM). For example, the continued detention of Rtd. Col. Dr.

Kiiza Besigye on a purpmied warrant of commitment from the GCM even when his

application for a writ of habeas corpus had succeeded before Justice Jon Bosco Katutsi

was unlawful and an act of bias.

40

11. A judge must be kept free from political pressure as another way of preserving the

independence of the judiciary as per Article 128 (1) and (2) of the 1995 Constitution.

That is to say, the beginning, continuance, and end of the judge's judicial life must be so

shaped that he is able to regard with indifference like the smiles and the frowns. For

instance, Justice Katutsi's repmied in The Sunday Monitor of March 4th 2007 pg 2

withdraw from the hearing of Besigye's treason case while citing pressure from certain

section of the society and that he was becoming an 'expert in Besigyeism, was contrary to

Article 128(1) and (2) of the 1995 Constitution. This should be baned in future.

12. To attain judicial independence in Uganda, judges must be free to speak boldly in their

judicial capacity. So a judge should enjoy absolute privilege of picking and choosing all

his utterance on the bench without the utterance of the executive of legislature. For

example, General David Tinyefuza's attack on the judges and the backing he got from

Dr. Nsaba Butuuro, the then Minister of State for Information, when the Constitutional

Court declared that the Court Martial did not have the jurisdiction to try Rtd. Col. Dr.

Besigye should not occur in future as a recommendation.

13. The judges should also be called upon to give the decisions only between litigants of

flesh and blood, and not on hypothetical cases which can easily defeat the applicability of

the theory of judicial independence as per Article 128 of the 1995 Constitution. For

instance the fabrication of the hypothetical rape and treason cases against Rtd. Col. Dr.

Kiiza Besigye was against judicial independence and should be guarded against in future.

14. The GCM's criminal jurisdiction should be limited to only servicing military officers and

for only matters involving military offences. The High Court in its original jurisdiction is

the most competent court to try civilians accused of committing military offences and

military officers accused of committing civilian offences. The General Courts Martials

criminal jurisdiction should therefore be limited to service offences committed by

military personnel, and the definition of a service offence under S.2 of the UPDF Act

should therefore be revisited in the above respect.

15. The General Court Martial should explicitly be made subordinate to the High Court. This

means that Appeals from the General Court Martial would go to the High Court and then

on wards to other superior appellate courts of record. This anangement will bring the

General Courts Mmiial into line with the constitutional frame work for the exercise of

41

judicial power and the administration of justice in Uganda. It will also remove the

unnecessary competition and tensions between the two courts as witnessed in the trial of

Rtd. Col. Dr. Besigye and the 22 suspects.

16. The procedure for the identification of candidates for Judicial office should be conducted

in a transparent manner from the outset to completion. The criteria for potential

candidates should be transparent and in line with the UN Basic principles on the

independence ofthe Judiciary.

17. The government must immediately ensure the closure of any remaining safe houses

where such detention centers exist the government is urged to mount an independent

investigation to determine the persons responsible and bring them to justice.

18. It is my considered opinion that members of the General Court Martial should be

appointed by an independent body outside the military establishment (preferably the

Judicial Service Commission) but on recommendation of the High Command since the

appointment of all members of the court and the prosecutor are by the High Command

chaired by the President of the Republic of Uganda who is also the Commander in Chief

ofthe UPDF which contravenes and undermines the independence and impartiality ofthe

military court.

19. And lastly, the Chairperson of the General Courts Martial (GCM) should be a person

qualified to be appointed as Grade I Magistrate. Thus, he or she should have at least a

bachelor's degree in law and a post graduate diploma in legal practice. The other

members of court should have legal training or the background of at least the equivalent

of an ordinary diploma in law. This would enhance the court's capacity to handle

complex legal issues such as burden and standard of proof, and the proper interpretation

and application of other rules of evidence and procedure. It will also help build public

confidence in the military court.

42

References

1. A.N. Allot: Judicial and Legal System in Africa, London

2. B.Y. Odoki: The Report of Uganda Constitutional Commission Analysis and

Recommendation UPPC, Entebbe 1993

3. Dr. George W. Kanyeihamba: Kanyeihamba's Commentaries on Law Politics and

Governance 2000 Gearge W. Kanyeihamba O.H. Uganda Services Book 1

4. Justice Prof. Dr. G. W. Kanyeihamba: Constitutional and Political History of Uganda

from 1894 to the present

5. Kivutha Kibwana: Constitutionalism in Africa Progress, Challenges and Prospects in

1999.

6. Paul D. Wiebe & Col P Dodge: beyond Crisis Development issues in Uganda. Multi­

Business Press Kansas 1987

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