By Bob Kasango
Deployment of security forces at Mengo court contributed to the disregard of the High Court order and assaulted independence of our judiciary.
The saga involving the vote recount in Rubaga Division in Kampala is bringing to the fore again the clash between the judiciary and the executive. At the centre of the mess is the Chief Magistrate in the Court of Mengo, His Worship Phillip Odoki.
He ordered the vote recount within his judicial authority but has been faulted for refusing or failing to obey the orders of the High Court stopping the recount. One newspaper quoted Odoki as having told lawyers of Moses Kasibante (the petitioner) to “serve the order upon the people recounting the votes.” If that is true, Odoki fell short in his duties as a judicial officer to respect orders of superior courts. I sympathise with him because I imagine the situation in which he was operating at the time.
The entire court premises were cordoned off by the police and other security personnel. It is reported that Grace Turyagumanawe, a very senior police officer, commanded the operation. He was only two days in office after his predecessor Sorowen was relieved of his duties, widely believed to be because he was not “tough” enough. Friedrich Hegel coined the famous phrase, “we learn from history that we never learn anything from history. …. that is the greatest lesson of the past and the highest theme of history. …. The history of man’s ideas is nothing more than the chronicle of human error.” How true!
Five years on, and still we have not learnt from the lessons of the infamous “Black Mamba” siege of the High Court in Kampala. All the arguments advanced for having heavily deployed at the High Court in 2006 are the same ones being advanced for the heavy presence of security at Mengo court and the cordoning off of the court premises.
Why did Chief Magistrate Odoki refuse or fail to implement the directive of the High Court? It is easy to see why. The recount had been ordered by him but the process was hijacked by the police and the applicant Singh Kantongole who is said to have become almost hysterical when mention was made of a stop of the recount. He is accused of having become violent. Singh is a senior member in the ruling NRM party’s hierarchy and his courage to bulldoze people at the recount is borne of these factors, plus the force of arms he had in protection. No doubt the heavy presence of armed personnel at the court premise contributed greatly to the disregard of the High Court order.
The independence of our judiciary is at stake and fast eroding. In the days after the infamous Black Mamba siege of the High Court, Justice Lugaziyi granted bail to some individuals accused of treason and other related offences. He bore the brunt of President Museveni’s wrath and was publicly criticised for exercising his judicial function but more important, respecting the constitutional rights of the applicants before him. Consequently, the judge declined to handle any bail applications and there was a domino effect. It was very hard to find a judge in the High Court who was willing to hear bail applications especially if the offences were political.
Judges and courts should be protected from political influence and special-interest groups so they can be neutral and fair. Because sometimes judges have yielded to pressure, there are a great many people in the Uganda today who think that judges are just politicians in robes. Ugandans are fast losing faith in the judicial system, not because it is incompetent but because they view it as compromised and increasingly under threat.
I don’t know what the court will do about the Mengo saga, but it strikes me as a sad state of affairs when a case like this becomes a question of constitutionality when it’s clearly bad policy for the state to allow that environment to exist. The judicial system needs judges with the courage to decide against the majority or the state and its powerful politicians without fear or favour. That’s what His Worship Odoki should have done.
Without an independent judiciary to protect individual rights from the other branches of government, those rights and privileges would amount to nothing. We have an obligation to speak up. Statutes and constitutions do not protect judicial independence – people do.
There have been a lot of suggestions lately for so-called judicial reforms, recommendations for a body to review court judgments ( as if we do not have an appeal system!), stripping the courts of jurisdiction and cutting judicial budgets, appointing “cadre judges” etc. I am against judicial reforms driven by nakedly partisan reasoning.
Judicial independence doesn’t happen by itself. I am disappointed at the Uganda Law Society for their silence. Judges can’t speak for themselves. So the Law Society should speak out on these issues. Lucien Tibaruha was removed from office as Solicitor General. The High Court stayed his removal but the Inspector General of Police threw him out. The Solicitor General is the Number Two at the Bar, but the Bar was silent. The court acted in vain. In the case of Judge Lugayizi above, the Law Society was silent. The Law Society is aware that court warrants these days must first be okayed by the police legal department before execution. In other words, the police legal department supervises the courts. It’s not just irregular but unconstitutional. The Law Society is also silent on that.
To the Law Society, I would quote the words of Martin Niemöller a German pastor and theologian. Niemöller was an anti-Communist and supported Hitler’s rise to power at first. But when Hitler insisted on the supremacy of the state over religion, Niemöller became disillusioned. He became the leader of a group of German clergymen opposed to Hitler. Unlike Niemöller, they gave in to the Nazis’ threats. In 1937 he was arrested and eventually confined in the Sachsenhausen and Dachau concentration camps until he was released in 1945 by the Allies. His statement, sometimes presented as a poem, is a popular model for describing the dangers of political apathy: He said, “When Hitler attacked the Jews
I was not a Jew, therefore I was not concerned. And when Hitler attacked the Catholics, I was not a Catholic, and therefore, I was not concerned. And when Hitler attacked the unions and the industrialists, I was not a member of the unions and I was not concerned. Then Hitler attacked me and the Protestant church — and there was nobody left to be concerned.