Two years before the presidential and parliamentary elections, there is increasing concern over whether the judiciary is capable of ruling against the government, should allegations of wrongdoing in the presidential election arise again.
The judiciary has demonstrated some independence in recent years, especially in the settling of parliamentary election disputes. Yet when it comes to the weightier matter of a presidential election, if it came to the crunch, many believe the judiciary would crumble under pressure.
In the last two election petitions '" 2001 and 2006 '" besides the mathematical wrangling that meant judges had to figure out to what extent the malpractice affected the result, they faced the grave possibility of overturning the re-election of incumbent President Yoweri Museveni.
The problem, many commentators say, lies in the way judges are chosen. The president appoints judges in the Supreme Court, the Court of Appeal and the High Court on the advice of the Judicial Service Commission, and parliament approves his choices.
Article 128 (1) of the Ugandan constitution states that 'œin the exercise of judicial power, the courts shall be independent and shall not be subject to control or direction of any person or authority.' But many Ugandans are sceptical that the executive will be able to restrain itself from interfering in the judicial process when the stakes are high.
Stressing the importance of independent judges, especially on the Supreme Court, one lawyer told The Independent, 'œIf a client comes to me saying they lost an election and need legal representation, the first thing I do is look at the bench,' he said. 'œI would then advise my client if this bench is capable of delivering justice or not.'
Another lawyer, Caleb Alaka, said: 'œMany judges don't have the nerve. They say there were electoral malpractices, and then stop at that.'
Some even suggest that the judiciary has shared its judgments with the executive before major rulings '" but the recently retired Supreme Court judge Justice Joseph Mulenga told The Independent that these allegations were baseless.
Be that as it may, the Ugandans are watching the Supreme Court bench closely as the 2011 elections approach, especially with the gaps that are yet to be filled. Of the seven positions on the bench, four are either vacant or soon will be. Since the death of Justice Arthur Oder in June 2006, the Coram of seven judges needed to handle constitutional appeals has not yet been met. Justice Joseph Mulenga left the bench a few weeks ago. And Justices George Kanyeihamba and John Tsekooko are to retire before the next election, At the recent annual judges' conference, the judges proposed that the Supreme Court Coram be increased from seven to 11 judges, but it is not clear whether this will take place before 2011.
One reason for concern is that Kanyeihamba and Tsekooko, as well as the late Justice Oder, have in past presidential election judgments ruled against President Museveni. Will their replacements prove as independent-minded?
Wandera Ogalo, a constitutional lawyer, told The Independent that the retirement of the three judges leaves a huge vacuum.'œTheir judgments have been very independent,' he said. 'œThe appointment of their replacements will be very critical for independence of the judiciary.'
In October 2006, the Uganda Judicial Officers Association (UJOA), an association of all judicial officers in the country, claimed that about 98 percent of judges' appointments in Uganda since 1997 could be described as political. It added that the judges' political affiliations meant that 'œthe public could sometimes predict the judgment of each judge on a panel before the actual ruling was made.'
The Independent asked a number of senior Ugandan lawyers to suggest names from the judiciary and academia they think would be suitable replacements on the Supreme Court bench. Here are some of the names that emerged.
Justice John Bosco Katutsi
High Court judge in the criminal division at Kampala High Court.
Katutsi earned the admiration of many when he presided over the rape case brought against opposition leader Dr. Kiiza Besigye. In March 2006, he acquitted Besigye of the charges, memorably ruling that 'œthe evidence before this court is 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; monstrous if to ruin the honour of a man who offered himself as a candidate for the highest office of this country'.
In his ruling, Katutsi also put the police in the spotlight, saying their investigations had been conducted in a 'œcrude and amateurish' way, revealing 'œthe intentions behind this case.' He later withdrew from handling Besigye's treason trial, expressing his concern that he would become labelled an expert on 'œBesigyeism.'
Justice Constance Byamugisha
Currently at the Court of Appeal. She was one of the first judges to be appointed to the Commercial Court after its formation in 1997.
Many say that Justice Byamugisha's judgments remain free of political bias despite the fact that she is a sister to the First Deputy Prime Minister Eriya Kategaya, a childhood friend and confidant of President Museveni. Her major cases include a January 2006 Constitutional Court ruling which declared that the trial of suspected People's Redemption Army (PRA) rebels in the military court (Court Martial) was illegal. She was part of the Bench when the same court annulled the 2000 referendum that had approved the Movement system to continue for another five years in force, a ruling that the government later successfully challenged in the Supreme Court.
Justice Egonda Ntende
Former head of the Commercial Court, currently serving as a High Court judge.
Legal experts say Justice Ntende brought tremendous transformation to the Commercial Court. But the judge has also made an impact in cases with political implications. He is well known for his ruling in the case of Gen. David Tinyefuza vs. Attorney General in 1996. Justice Ntende sat on the ad hoc Constitutional Court that heard Tinyefuza's successful challenge against government efforts to block his resignation from the army.
Justice Amos Twinomujuni
He is currently a judge at the Constitutional Court.
Twinomujuni was part of the Constitutional Court ruling in 2004 that declared the Referendum (Political Systems) Act 2000 unconstitutional on the basis that parliament had violated procedure in the course of enacting the law. He said, 'œAnything which was done under the authority of that Act was invalid. To rule otherwise would be tantamount to authorising the stampeding of parliament (as was the case here) to pass kangaroo-style legislation oblivious of the constitution.' The ruling was later overturned by the Supreme Court.
Twinomujuni was also part of the 2006 ruling that court martial trials against supposed PRA members were illegal. More recently, he ruled that the execution of two UPDF soldiers who killed an Italian priest in 2002 was unconstitutional because they had been denied a right to appeal.
Justice James Ogoola
Principal judge of the High Court.
Highly regarded for his integrity, courage and eloquence, one lawyer described Ogoola as 'œhaving the nerve to come out whenever judicial independence is under attack.'
In 2005, he composed a poem, 'œThe Rape of the Temple of Justice,' after the government deployed the notorious Black Mamba anti-terrorism operatives at the High Court to re-arrest PRA suspects freed on bail. He described the act as 'œthe most naked and grotesque violation of the twin doctrines of the rule of law and the independence of the judiciary.'
Many experts say it is unlikely Justice Ogoola would take up the task if it were offered to him, although he is a good candidate.
Justice Augustus Kania
Former High Court judge in Mbale.
Kania handled the recent Jim Muhwezi and Mike Mukula case, in which the plaintiffs contested the refusal of the Buganda Road Court magistrate to refer their case to the Constitutional Court for interpretation. The two, together with presidential assistant Alice Kaboyo and former junior health minister Alex Kamugisha, had challenged the IGG's mandate to investigate and prosecute them for theft, embezzlement and other offences relating to the Global Alliance Vaccine for Immunisation (Gavi) Fund. Justice Kania ruled that the matter be referred to the Constitutional Court.
Justice Kibuka Musoke
Serving as a High Court judge.
Known for his firmness and courage, Justice Musoke adjudicated on one of the hottest parliamentary election petitions in 2001 '" Winnie Byanyima vs Ngoma Ngime over the Mbarara municipality seat. At the height of the trial, President Museveni's legal adviser Fox Odoi called the principal judge, Justice Herbert Ntabgoba, and asked him to remove Justice Musoke from the case '" but the judge stayed in place. In the end, Musoke ruled against Ngime, upholding Byanyima's election by a razor-thin 178 votes.
Some of the lawyers The Independent spoke to suggested that the supreme court would benefit from an injection of academic legal expertise. Two names emerged.
Prof. Fredrick Jjuuko
Head of the department of law and jurisprudence at Makerere and editor of the East African Journal of Peace and Human Rights.
Prof. Jjuuko started lecturing at Makerere University's law faculty in 1976, and was dean of law from 1988 to 1994. He has been instrumental in the reform of legal education in Uganda. His areas of teaching and research include human rights, the law of tort, public interest matters, constitutional law, commercial law, jurisprudence and media law.
Dr Joe Oloka-Onyango
Director of the Human Rights and Peace Centre at Makerere University.
Dr Oloka-Onyango has taught in Makerere University's faculty of law for over a decade. He has written on a wide range of issues, including electoral reform. He has also been a visiting professor at Harvard Law School, as well as the Universities of Minnesota and Florida. Oloka-Onyango is a member of the UN sub-commission on the prevention of discrimination and protection of minorities.
Yet even if the new appointments to the Supreme Court are models of judicial independence, a bigger question remains: if the court were to annul an election irregularly won by President Museveni, would the state accept the judgment? There are ample reasons for scepticism, based on past acts of defiance by the state. On November 16 2005, the High Court granted bail to accused PRA rebels - who were then dramatically rearrested by the Black Mambas. The court was similarly disregarded on December 2 2005, when it ordered a cessation of court martial hearings against the PRA accused. Again, in January 2006 the Constitutional Court declared illegal a parallel trial of Besigye and suspected PRA rebels. That ruling too was overlooked.
If the government is determined to interfere with the judicial process, the Supreme Court can have all the independence in the world on its benches ' and it won't make any difference.