By John Howse
The Constitutional Court is under pressure. The Independent has found that currently 123 petitions stand unresolved before the court with only 41% of cases being resolved since the court’s inception in 1996. This year, an unprecedented 40 petitions have been filed in the court. The last highest petitions were filed in 2006, similarly during the election period then. With already perceived injustices over elections coming up in 2011, the court faces further challenges. What does this mean for constitutionalism and democracy in Uganda?
The Constitutional Court is the court of first instance for all matters concerning interpretations of the constitution. It effectively acts as Uganda’s second most important court after the Supreme Court. However, it also sits as the Court of Appeal. But unfortunately, whereas the number of judges required for Court of Appeal sittings is three, the Constitutional Court requires five. Despite having seven judges in the court, the continual failure by judges to sit for lack of the required number (quorum) has significantly compromised the Constitutional Court’s function despite a constitutional prerogative for the court to accord all cases of a constitutional matter first priority.
Recently Adrian Jjuuko, a young and aspiring human rights lawyer, was set to have his petition heard in court, one and a half years after it was filed. That waiting time, he indicates, is relatively short. Journalist Andrew Mwenda’s petition challenging the now abolished sedition law was filed five years ago. Jjuuko’s petition is just one of many petitions filed in the court to challenge the integrity of judicial decisions and legislation which contradict Uganda’s Constitution. The hearing of Jjuuko’s case was subsequently delayed due to the failure by the judges to sit. The significance, Jjukko says, is that without the resolution of such cases, â€œUganda can never experience and express fundamental human rights and freedoms as provided by our constitution. Jjuuko is not only fighting for Ugandans’ constitutional rights, but also the practicality of Uganda’s legislative and, by default, democratic process. Similarly, Peter Magelah of Human Rights Network Uganda says their organisation has filed two petitions against legislation that impedes human rights which have stood unresolved for the last one and a half years. “A verdict,” he says, “is required because this legislation affects so many people.” He notes that in one instance an electoral petition from 2006 has only just being resolved. The entire legitimacy of the court is at stake.
Like other organs of government, the judiciary suffers from serious administrative and budgetary constraints. According to the latest Justice, Law and Order Sector Annual Performance Report, the judiciary is affected by a staggering 128,000 unresolved cases across the board.
The report also shows that despite an increase in the number of cases disposed of, the backlog of cases extending beyond three years without resolution is estimated at 40,000. The growth rate of backlog has increased in the last year to 8.5% despite a marked reduction since 2007 which saw the backlog growth rate at just over 17%.
A “Case Backlog Reduction Quick Win Programme” initiated in the last 6 months has in words attempted to remedy this problem. Just under Shs6 billion has been earmarked for the programme which includes the reduction of civil cases in Kampala. Earlier this year, the government suggested it would also increase the number of judges. Thus, this past financial year three judges have been appointed to the Court of Appeal to make a total of seven judges, a number the government hopes to increase to 11. Whether these actions will address the backlog issue is yet to be seen.
The Judiciary Spokesman Elias Kisawuzi admits there are “gaps in the system” which require attention. Kisawuzi says people need to appreciate that the judiciary is over-stretched and requires a lot of human effort. It is a well known phenomenon that judiciaries the world over suffer from delays in servicing justice due to the long and drawn out processes of litigation. However, commentators from Uganda’s political opposition and legal fraternity say the courts also serve a political function for the government.
When the Independent asked FDC if they would resort to the courts to deal with likely grievances against the upcoming elections, FDC spokesman Wafula Oguttu said they would not. “If the elections are rigged, we will not,” he said. “The court deliberately delays; it is influenced by politics and especially by the president.”
He notes the FDC has tried many times to use the Constitutional Court to hear grievances over the outcomes and handling of elections but to no avail. “When there are no alternatives, when all else has failed, we want the world and Uganda to know that we have tried and the courts are a last resort,” Oguttu said.
He referred to the petition FDC filed in the Supreme Court disputing the results of the 2006 election. Infamously, the Supreme Court ruled that there was a lot of rigging but it was not “enough” to affect the outcome of the election substantially. The court recognised that “the principle of free and fair elections was compromised by bribery and intimidation or violence in some areas of the country.” Despite all these observations, FDCâ€™s demands were subsequently quashed.
Currently, the FDC continues to fight in the Constitutional Court to have the â€˜substantialâ€™ clause removed out of the Presidential Elections Act to prevent similar situations of 2006. The petition was filed three years ago.
Director of the Human Rights and Peace Centre at Makerere University’s Faculty of Law, Professor Joe Oloka Onyango says that “constitutional adjudication is not a priority for the government. It is a highly politicised process.” He points out that the appointment of judges by the president is not transparent and leads to the ”stacking’ of judges politically aligned to the government. “The appointment process is done in private so the public doesn’t have a say in who is appointed into these important positions,” he adds. According to him, the judiciary’s stalwart claim to independence is seriously compromised.
Given the delays in court proceedings, and the fact the courts are ‘stacked’ with pro-establishment judges, it is unlikely cases about constitutional issues will realistically be heard before the elections. For opposition, this means resorting to alternative political strategies in contesting the government’s power; strategies which may not be pleasant during and after the elections.
Prof. Onyango says solutions should include generating more autonomy between the financial and administrative elements of the judiciary, less interference from the government, and appointing new judges, especially he says, the doubling of judges who sit in the Constitutional Court to 14.
With elections looming and petitions coming thick and fast, there may be need for the judiciary to operate special sessions tasked solely with resolving election petitions. “Special sessions designed to fast-track election petitions made up with temporary judges can dispose of cases faster,” Prof. Onyango suggests. When asked about the possibility of having electoral petitions prioritised, the judiciary spokesman Kisawuzi reiterated the constitutional prerogative to have them disposed of expeditiously but said no such plans had yet been devised.
The question begs to be asked. With all these issues, is the judiciary delivering justice? Onyango notes: “The increase in the number of petitions filed proves that there is a growing confidence in the court. There are peaks and dips since its inception in 1996 with some strong judgements favouring certain sectors of society. It has preformed as a check and is a beacon for the public.”
Pressure on the courts to deliver independent interpretations of the law is slowly beginning to infiltrate the power in the executive. The question is whether these interpretations, accompanied with a greater judicial independence and speedy adjudication process, will reduce the power and influence the government currently has over the courts and whether this will affect the adjudication of the presidential election petitions next year.