Sunday, September 2, 2012


SOURCE: THE EVOLVING ROLE OF THE COURTS IN THE POLITICAL TRANSITION PROCESS By Siri Gloppen, Emmanuel Kasimbazi and Alexander Kibandama January, 2006 PART 1: COURTS IN THE MIDST OF POLITICS – A JUDICIAL DRAMA IN THREE PARTS. The paper aims to show and analyse the role the courts play in Ugandan politics. We start by outlining the legal-political drama which started at Kampala High Court on November 16th 2005, described as “the most naked and grotesque violation of the twin doctrines of the rule of law and the independence of the judiciary”.1 The dynamics that unfolded in the following days and weeks show the pressures and limitations facing the Ugandan judiciary. They are also illustrative of the importance of the court as a political arena and the fragile institutionalization of judicial independence in the Ugandan courts and legal community. After presenting the battle in and over the courts in the first part of the paper, we ask: How did this come to happen? The second part of the paper sheds light on this by taking a broader perspective the development of the courts’ role in Uganda since independence and in particularly since the present constitution came into force in 1995. PROLOGUE: DR. BESIGYE’S RETURN AND ARREST. On 26th October 2005, Dr. Kizza Besigye, a retired Colonel and President Museveni’s main contestant in the 2001 elections, returns from his four years of exile in South Africa and is met with an enthusiasm that takes everyone by surprise. He wins the nomination as the presidential candidate for the Forum for Democratic Change (FDC) in the 2006 elections, there is a surge in the registration of voters, and reports of defections from the ruling National Resistance Movement (NRM). President Museveni cuts short his London visit and returns to Kampala.2 On Monday 14th November, with four weeks to go to the nomination of presidential candidates, Besigye, who again emerges as Museveni’s main contender, is arrested as he returns to Kampala from a campaign tour. This sparks two days of violent protests, brought down by the deployment of tanks and army personnel. Besigye is charged with treason, concealment of treason, and a rape that allegedly happened in 1997.3 The charges carry a death sentence, which means that bail is normally not granted until after six months (previously 360 days)4 – in this case after the elections. Accused with treason alongside him, are 22 others who allegedly belong to the People's Redemption Army (PRA), a shadowy rebel group said to be linked to the FDC. ACT I: INTIMIDATION – THE WEEK OF THE BLACK MAMBAS. WEDNESDAY NOVEMBER 16:The High Court hears the bail application of 14 of the alleged PRA rebels. As Justice Lugayizi declares to the open court that the Constitution entitles everyone to bail, and that the court’s discretion only regards the bail conditions, heavily armed commando soldiers stage a dramatic siege of the High Court premises.5 The hitherto unknown "Black Mambas Urban Hit Squad",6 clad in black T-shirts, is deployed ostensibly to re-arrest the accused if they are left out on bail. To avoid re-arrest by the military the suspects and their sureties refuse to sign the bail papers and are taken back to Luzira prison.7 The next day, all the 22 face charges of terrorism in the General Court Martial. In the following days and weeks the “siege” is widely condemned. Principal Judge, James Ogoola describes it as a “naked rape, defilement and desecration of our temple of justice …Not since the abduction of Chief Justice Ben Kiwanuka from the premises of Court during the diabolical days of Idi Amin has the High Court been subjected to such horrendous onslaught as witnessed last Wednesday".8 Chief Justice Benjamin Odoki, the Inspector General of Government, the Human Rights Commission and cross section of politicians also denounce the incident. Uganda Law Society comes out strongly against “the heinous and repugnant assault on the judiciary” and declares Besigye and his co-accused prisoners of conscience.9 The Uganda Judicial Officers Association follows suit.10 Members of Uganda Law Society, wearing their professional gowns, later stage a protest in front of the Kampala High Court protesting the deterioration of the rule of law and demanding the resignation of Attorney General (AG) Khiddu Makubuya. This is the clearest political stand ever taken by “the normally conservative and staid community of lawyers in the country”.11 The Law Society declares that they no longer recognize the AG, and when he calls them for a meeting they decline.12 They also challenge the constitutionality of the military’s actions in the Constitutional Court, as well as the constitutionality of the legislation enabling the General Court Martial.13 Civil society groups also come out in support of the judiciary, condemning the court invasion and criticizing the use of excessive force to break up peaceful demonstrations and threats against the press. Internationally, the East African Law Society condemns the incident and announces a probe,14 and the International Commission of Jurists expresses concern and decides to send a commissioner to observe the Besigye trial.15 Ugandans in Diaspora stage demonstrations in New York, Washington DC, Boston, Huston, Los Angeles, Minneapolis, London, Toronto and Johannesburg. Diplomatic representatives in Kampala - many of whom were in court, eye-witnessing the “black-shirts” and feeling their guns pointed at them - issue condemnations as does the wider international community. And over the following weeks several donor countries withdraw budgetary support for the government, citing disrespect for the rule of law. NOVEMBER 18: In what is seen as another blow to the independence of the Judiciary, Judge Lugayizi withdraws from the treason case.16 Reportedly expressing his wish to step down, he does not give reasons.17 The Principal Judge takes charge of the Besigye bail hearings himself. At this point, an important political case from the first part of the year re-enters the stage. The High Court announces that it is convening a special session starting Monday, 21 November, to try Reagan Okumu and Michael Nyeko Ocula, two Members of Parliament who like Besigye belongs to the FDC.18 They were arrested in Parliament on April 19 2005 and charged with murder. Like treason, murder carries a death sentence in Uganda, a year on mandatory remand would keep Okumu and Ocula in jail until after the 2006 elections.19 However, on May 17 the High Court – and also here the judge is Edmond Lugayizi – declares that it is within the jurisdiction of the court to grant bail, and released the two MPs.20 The timing of the trial to coincide with the Besigye cases and the electoral campaign means a further strain on the FDC’s capacity and legal resources.21 NOVEMBER 19: As the NRM National Delegates Conference returns President Museveni unopposed as their chairman and presidential candidate, Museveni sends another strong signal to the judiciary, announcing that he will not hesitate to fire judges who unjustly issue eviction orders.22 Although the Constitution does not give the President the power to fire judges, Prime Minister Apolo Nsibambi comes out in support of the President’s position when questioned over the statements in Parliament. What is the significant of these events from the perspective of the political role of the judiciary? Three aspects are noteworthy: First, and most obviously, there is the militant intimidation of the judiciary. Earlier rulings against the government have been met with harsh rhetoric from Museveni against the judiciary and individual judges. But, overt disrespect and intimidation on the scale witnessed above is new. Second, in the face of these threats against judicial independence, social and political support for the judiciary is vocal and broad, in particular is the reaction from the legal community stronger and more focused than what Uganda has seen before. Third, the government’s legal strategies seem to enter a new phase. The arrests of Besigye and his co-accused fall into a well known pattern of arresting political opponents on ‘un-bailable’ charges such as treason and terrorism where they can be kept in pre-trial remand for a prolonged period. In many cases suspects have never been prosecuted, just kept until the remand period is over - and where the case goes to prosecution, this tends to be a slow process with years of delays.23 In the Okumu and Okula case the court reinterprets the constitutional right to bail in capital cases, making these cases less dependable as a means to keep political opponents off the streets. In response, the government seems to have developed a supplementary strategy of moving quickly to prosecution to tie up opposition parties and candidates in court during the election campaign. How will the judiciary respond to the challenges? Notwithstanding Justice Ogoola’s dramatic verbal commitment to judicial independence, the first reactions give few clues. Justice Lugayizi’s enigmatic withdrawal leaves unanswered questions, particularly, since the “siege” seems to be a direct response to the controversial change in bail jurisprudence that he has spearheaded, countering what has been criticized as an abuse of remand for political purposes. INTERMISSION: MEDIA GAG ORDERS Not only the courts, but also other arenas for contestation and criticism are under pressure in Uganda. For some time the government has sent warnings to the media, regarded as one of the most independent in Africa,24 and on the night of November 17, armed policemen and intelligence personnel raids the The Monitor demanding the source of posters calling for contributions to Dr Kizza Besigye's Human Rights Fund. Throughout the country, the Monitor’s distribution vans are stopped and searched.25 On NOVEMBER 23 the Minister of Internal Affairs announces a ban on demonstrations, rallies, processions and assemblies related to Bsigye’s treason trial, and on the following day, the government also bans talk shows and media debates on the case. When announcing the ban, Minister of State for Information, Dr Buturo is quoted as saying that the Broadcasting Council (BC) would cancel the licenses of any media house that does not heed the ban "That is something that I am very eager to do … Revocation of the license is something I am very eager to do."26 Hours after the ban is announced, Muwanba Kivumbi, an activist who had been invited to come to Radio Simba and talk about the case is arrested upon arrival.27 Noble Mayombo, Defence Permanent Secretary and former Chief of Military Intelligence, is offered the position of Board Chairman of the New Vision newspapers, which includes Uganda’s biggest-selling daily. He accepts the appointment, which is interpreted by observers as another attempt by the government to tighten control over its media as the election nears.28 By the use of financial means, the government also seems to have strengthened its hold over the sensationalist tabloid The Red Pepper.29 The courts are also used to combat critical voices in the media. Monitor Political Editor and KFM talk show host Andrew Mwenda, faces 13 charges of sedition and “promoting sectarianism”, a charge that could put him in jail for 5 years.30 And following the 13 December arrests of Weekly Observer editor James Tumusiime and reporter Semujju Ibrahim Nganda, the two face charges of inciting sectarianism, for which they also face up to five years in prison.31 The multi-pronged strategy to increase government control over the media is particularly alarming at a time when the country is entering an election campaign period, when unbiased press coverage is crucial to the democratic process. While the main national newspapers in Uganda continue to report on the Besigye case and related matters as before, including the government-owned The Vision, the pressure is reported to have a chilling effect on public and private radio-stations, some of whom no longer comment on the main political case in the country.32 If this becomes the trend it will be most detrimental to public debate, given the superior public reach of radio as compared to the print media. The government’s efforts to control the media add to the pressure on the judiciary. In a constitutional democracy, the courts’ role as guardian of the Constitution includes at its core the protection of the rights to expression and the preservation of political space. The question now is to what extent the Ugandan courts will give priority to the freedom of expression or become an instrument for government control. To shed light of this, we will later look at the jurisprudence of the Ugandan courts in previous cases involving the media. ACT II: SIDESTEPPING JUDICIAL AUTHORITY IN THE CONTEXT OF PRESIDENTIAL NOMINATIONS On November 18 Besigye’s co-accused are charged with terrorism before the General Court Martial (GCM).33 Terrorism charges fall under the authority of the High Court,34 but the Uganda Peoples’ Defence Force (UPDF) Act opens for court martial for any crime if the suspect is an ex-military or a civilian found to “aid and abate” in unlawful military operations, or to be in possession of arms, ammunition or equipment “ordinarily being the monopoly of the Defence forces”.35 Five of the accused petition the Constitutional Court, challenging the constitutionality of the provisions of the UPDF Act. They also challenge the parallel jurisdiction of the General Court Martial and the High Court which exposes them to double jeopardy and ask the court to declare whether the court martial is actually a duly constituted court.36 Similar petitions are lodged by Uganda Law Society and Besigye’s lawyers. On November 24, the day Besigye’s bail application is due to be heard by the High Court, he is committed to the GCM on charges of terrorism and illegal possession of firearms. During the session, Gen. Elly Tumwine, the GCM Chairman, orders the arrest of Besigye’s two lawyers, Erias Lukwago and Caleb Alaka, and charges them with contempt of court under Section 107 of the Penal Code. They are sentenced to a fine and imprisonment until the next session. The transcript of the proceedings is printed in the national newspapers.37 Gen. Tumwine’s reference to “sections of the common law” and apparent unfamiliarity with the law amuses the legal fraternity, but his disregard for the role of defence lawyers and basic rules of court procedure, serves as a chilling wake-up call, demonstrating the significance of being tried under a Court Martial rather than a formal court. The GCM sets the trial for December 19th, without a plea from the accused and despite a challenge to the authority of the Court Martial lodged by Besigye’s lawyers in the High Court. 38 The following day, Justice Ogoola grants Besigye what he terms “interim bail”. In doing so he acknowledges Justice Lugayizi‘s precedent, but also the pending interpretation of the Constitutional Court on the question of whether bail is a constitutional right.39 Despite the bail ruling, prison authorities refuse to release Besigye saying he is still on remand in respect of the Court Martial. Justice Ogoola draws criticism after he declares having shuttled between Luzira prison and State House to seek a political solution. While not unusual in civil matters, arbitration in unprecedented in criminal procedure and the Principal Judge is seen to run the government’s errand. This is fed by reports that Defence Minister Mbabazi and the Director of Public Prosecutions visited Judge Ogoola in his chambers.40 November 29: Besigye’s lawyers file a bail application at the High Court in respect of the GCM charges, arguing that since the High Court is superior to the army court, it has the power to release Besigye on bail. They also file a petition with the Constitutional Court challenging the jurisdiction of the Court Martial and holding that the offences Besigye faces there are founded on the same facts as those he is charged with in the High Court and thus constitute double jeopardy.41 On December 2, High Court Judge Kasule orders the Court Martial to stop hearing the case against Besigye. He also gives permission to challenge the fairness and authority of the Court Martial. He does not, however, order Besigye’s release. This, he says, he will look into after hearing the main application, where the court martial as well as Besigye's lawyers will be represented.42 With less to two weeks to go before the nomination of presidential candidates on December 14 and 15, Besigye's lawyers immediately file his main application, urging the judge to fix the hearing of the matter urgently, so that Besigye can take part physically in the nomination process. The government on its part, asks the High Court to stop hearing Besigye’s application until the Constitutional Court has decided the related petition challenging his double trial.43 Besigye’s lawyers see this as a ploy to delay the process and keep their client in detention to prevent his participation in the electoral process, and move to withdraw the Constitutional Court petition.44 However, the High Court, upon the government’s request, refers several other issues in Besigye’s application for interpretation by the Constitutional Court and the proceedings in the case are stopped.45 Later, Constitutional petition number 16, by Besigye’s co-accused, is amended to include Besigye as the first petitioner. In the following days Besigye’s nomination efforts hit a snag as prison authorities reject his request to take photos for his nomination papers and confiscates his nomination papers. Doubts are raised as to whether a candidate can be nominated in absentia. But on December 6 Minister of Internal Affairs, Dr. Rugunda, says the Commissioner of Prisons has been advised to allow Besigye to take the required photos and sign the nomination forms. This is done after Deputy Attorney General Adolf Mwesige finds that there is no law barring Besigye from registering. At this point divisions become visible within the government on how the Besigye case is to be handled.46 Replying to a request on the procedure of nominating a presidential candidate, the AG Kiddu Makubuya goes against his deputy and advises the Electoral Commission to reject Besigye’s nomination. In his opinion, the jailed FDC leader lacks integrity and as his conduct is a subject of serious criminal proceedings, the nomination of Besigye would be tainted with irregularities. Again the situation is open. There is pressure on the FDC to abandon Besigye and front another candidate, although the government states that the Electoral Commission (EC) is independent in making its decision.47 On December 12, the opposition wins an important battle when the EC declares that Besigye is eligible for nomination and that he can be nominated in absentia.48 The same day, another battle is lost. Justice Kasule declines to order Besigye’s release ahead of his nomination. The ruling holds that the bail application, which also challenges Besigye’s trial in the military court, can not be heard until the Constitutional Court has pronounced itself on the issues referred to it, including those the government wanted clarified. But the December 2 order restraining the General Court Martial from continuing with Besigye’s trial is still in effect, and the ruling states that the GCM is a subordinate court to the High Court, unless the Constitutional Court rules otherwise. On December 14 Besigye is formally nominated as a presidential candidate.49 What are we to make of the court’s actions in the pre-nomination period? Faced with the government’s determination to keep Besigye behind bars to prevent his campaign and nomination as a presidential candidate, the judiciary’s response can be described as cautious. While clearly concerned with the challenges to their jurisdiction and authority from the Court Martial, the judges of the High Court, and specifically Justice Kasule who is in charge of the petition challenging the authority of the GCM, seem to take care not to be perceived as anti-government. Hard decisions are postponed or deferred to the Constitutional Court - and meanwhile Besigye and his co-accused remain in remand. ACT III: QUESTIONING JUDICIAL INTEGRITY AND POLITICIZATION OF COURTS. December 15: The Constitutional Court conducts a preliminary hearing on the petition by Besigye and five of his co-accused.50 The proceedings are chaired by Deputy Chief Justice Kikonyogo and the other Justices on the panel are Okello; Engwau, Byamugisha and Kavuma, who will hear all the related petitions on the constitutionality of the Court Martial proceedings. Besigye’s team announces that they will ask Justice Stephen Kavuma to excuse himself due to statements made in 1998 saying that Besigye should be tried by Court Martial, and due to his role, as Minister of Defence, in drafting the early legislation on the GCM. They are told to come back and give evidence on December 22.51 In the meantime, the panel starts hearing the petition from Uganda Law Society’s petition challenging the army actions against the High Court and the constitutionality of the Court Martial.52 December 19: The treason trial of Besigye and his co-accused commences in the High Court, but after complaints from the lawyers of poor access to the defendants, Judge Katutsi postpones the case to 6 January. In response to a new application from Besigye, challenging his detention, Judge Katutsi on December 22 orders the Commissioner General of Prisons to appear in the High Court to explain why Besigye continues to be in prison despite the bail granted him by Judge Ogoola and the stay of the proceedings in the Court Martial. On the same day the Constitutional Court hears arguments regarding Besigye’s application for Justice Kavuma to excuse himself, reserving the decision until further notice. December 23: The Government accuses judges of supporting Besigye. On the same day, the Chief Registrar of the High Court issues a public statement saying that acts of interference and intimidation of the judiciary by the executive have intensified since 2001 “not as an isolated incident but as a trend that threatens to whittle away judicial independence unless every effort is made to arrest the trend.” The statement is made on behalf of all the judges of the Supreme Court, the Court of Appeal and the High Court, who ask the public to vigilantly defend the independence of the judiciary and the rule of law in Uganda.54 December 30: The Monitor and The New Vision publish a letter to the Chief Justice alleging that two judges involved in the Besigye cases have been bribed. The two are Deputy Chief Justice Leaticia Mukasa Kikonyogo, who chairs the Constitutional Court panel hearing the petitions relating to the constitutionality of the Court Martial proceedings; and High Court Judge Remmy Kasule, who heard Besigye’s bail application in terms of the GCM. The letter, written by Besigye’s wife, Winnie Byanyima and FDC treasurer Jack Sabiti, holds that President Museveni’s office made payments through the chief of intelligence Col. Leopold Kyanda, in order “One, to deny Col Besigye his right to bail and the freedom to campaign for the presidency. Two, to affirm the jurisdiction of the General Court Martial over the charge of terrorism and over civilians, which is being challenged. Three, to therefore enable the General Court Martial, which operates under the command of the Commander in Chief, President Museveni, to convict Col. Besigye before the election date, in order to knock him out of the political race using the courts.”55 Attorney General and Justice Minister Makubuya says the claims must be investigated, but questions the timing and circumstances of the allegations, indicating that they may be “a deliberately calculated political move to intimidate the judiciary”, to gain political sympathy for Besigye, disable judges from handling cases to which he is a party and condition the courts to decide in his favour. Chief Justice Odoki says he is investigating the claims, but warns that the burden of proof is on the accusers and unless the claims are substantiated he will have to close the case. 56 Both of the named judges deny the bribe allegations and the Deputy Chief Justice insists that she will preside over Besigye’s petition to the Constitutional Court.57 January 2: The rape case against Besigye starts in the High Court. After the opening session, Justice Katutsi pauses to read out the ruling regarding Besigye’s continued detention. Finding invalid the Court Martial’s extension of the remand warrant in terms of which Besigye was held, he orders his release. Besigye is freed and greeted by massive crowds. However, the government appeals the decision, disputing the Judge’s findings and the powers of the High Court to “question or acquire into the legality of the proceedings before the General Court Martial”. Following his release, Besigye indicates that he will ask the court to postpone his cases until after the election to allow him time to campaign, holding that the charges can be dealt with after the elections and prior to the swearing in of the new president. However, Judge Katutsi, who handles both the rape case and the treason case indicates that the presidential campaign is not his concern, and advices Besigye’s lawyers against applying for a delay. 59 January 6. The credibility of the alleged rape victim suffers damage when it emerges that she has lived at State House in Entebbe since 2001, with all expenses covered for herself and her child. Also the first witness admits receiving material benefits from the government. On 9 January, Justice Katutsi hands down his decision in the murder case against Ocula and Okumu, acquitting the two FDC MPs of the charges. In a strongly worded judgment he castigates the evidence tendered by the prosecution, saying it “shows clearly that it is a crude and amateur attempt at creative work.”60 In the post-nomination phase the gloves come off, with allegations of judges’ political bias voiced both from the opposition and the government side. The judiciary on its part, is vocal in it criticism of attempts to undermine judicial independence and authority, and Justice Katutsi’s rulings contain candid criticism of unfounded prosecution by the State (Ocula and Okumu case), as well as Besigye’s continued detention. The acquittal of Ocula and Okumu and the release of Besigye represents serious set backs for the government. Nevertheless, and despite the palpable resistance by the courts against being used politically, the government continues to succeed in tying up the opposition, and Besigye specifically, in court battles, thus hampering his campaign efforts. The cases also cast shadows on Besigye’s political future, affecting opposition efforts to unite behind a common presidential candidate.61 As witnessed by the judicial drama currently witnessed in Uganda, at this point in the political transition process, the courts are the epicentre of politics in Uganda. Yet, the courts’ ability to live up to the constitutional expectations as citadels of justice is both contested and challenged. What explains the current position of the Ugandan courts? To understand the forces driving the current judicialisation of politics in Uganda it is useful to look beyond the events of the past months to the historical role the judiciary has played since independence. PART 2: EXPLAINING THE JUDICIAL DRAMA: UGANDA’S HISTORY OF JUDICIAL POLITICS. Uganda became a British protectorate in 1894 and gained independence in 1962. The Independence Constitution was overthrown through violence in 1966 and the 1967 Constitution put in its place contained a comprehensive bill of rights. In January 1971, the Uganda Army led by Idi Amin Dada violently overthrew the government of A.M. Obote and for eight years, 1971 to 1979, Amin presided over one the most dictatorial regimes in post-independence Africa, under which there was no rule of law by the ordinary courts of the land. In 1972, the chief justice was taken from the High Court and killed, alleged political opponents were summarily executed, and while the elections of 1980 were widely disputed, the courts played a muted role.62 After the National Resistance Movement (NRMA/NRA) came to power in 1986, it initiated a widely consultative constitution-making process. The resulting Constitution of 1995 endeavoured to redress past mistakes and shortcomings both with regard to its formation and in its substantive provisions.63 The 1995 Constitution ushers in a new era by explicitly establishing the judiciary as an independent organ of government and defining a role for the courts as guardians of citizens’ rights and the political process: The Judiciary is restructured and established as an independent organ of government, entrusted with adjudicating civil and criminal cases, interpreting the Constitution and the laws and promoting human rights, social justice and morality.64 And a clear-cut procedure is provided for filing and determining election and constitutional petitions.65 Under the old Constitutional Order the courts were reluctant to entertain disputes of a political nature.66 The 1995 Constitution opens for a more active political role by: vesting powers of judicial review in the courts and creating a Constitutional Court charged with the interpretation of the Constitution; by giving prominence to the protection and enforcement of fundamental rights and freedoms; and by giving any person the right to apply to court for redress when such a right or freedom has been infringed or threatened.67 Still, for quite some time the role of the courts in the political processes in Uganda continued to be one of judicial restraint. The Constitutional Court and the judiciary generally seemed to lack the judicial preparedness for an active role in constitutional development and did not embrace the interpretative role of the court in a manner that would enhance individual rights. Over time more assertive interpretations of the liberal rights in the constitution have been forthcoming. This has in turn given the political opposition more hope and faith in the judiciary as an arena for contesting the government, and with a growing number of cases, this has thrown the courts into the thick of political struggles. To show how the role of the courts has evolved, we will outline the most salient political cases the courts have handled. THE PRE AND IMMEDIATE POST 1995 PERIOD. Before the 1995 Constitution, questions relating to the interpretation of constitutional provisions were determined by the High Court.68 A case that shows the court’s reluctance to go against the government, but still indicates a possible future shift, is Rwanyarare & others .v. Attorney General of Uganda.69 This constitutional petition was brought before the High Court in 1993, by the Uganda Peoples Congress (UPC) members who argued that the Constitutional Assembly regulations adversely affected the right to free expression because campaigns on the basis of political parties or other “sectarian” grounds were outlawed. And the public would be denied the opportunity to hear views except those considered right by government. The Court addressed the case on procedural rather than material grounds, holding that the provisions were validly made.70 Furthermore, since the rules were temporary and part of an unusual and peculiar political process ending with the promulgation of the new Constitution, the judge expressed hope that at the end of the period, fresh considerations would arise during the debate of the draft Constitution to resolve these issues. The immediate post 1995 period demonstrated a conscious effort by the courts not to conflict with the Executive on constitutional matters and the Constitutional Court declined to hear some petitions. For example in Shiekh Abdul Karim Sentamu71 the court stated that a person who wants to enforce their rights need not go to the Constitutional Court because enforcement of rights does not involve interpretation of the constitution. Prior to 1999, many of the challenges to the constitutionality of legislative or executive actions were cautiously disposed of on technical grounds. In Charles Onyango Obbo & Andrew Mujuni Mwenda Vs Attorney General (The Gold Case),72 the court dismissed the petition as premature and refrained from entertaining the claim that a provision of the Penal Code Act under which they were charged for publication of false news, was unconstitutional.73 In Uganda Journalists Safety Committee and Two Others V Attorney General,74 the court refrained from granting the relief sought on the ground that the claimants had lodged their claim under two possible procedures, only one of which was deemed proper by the court. Also in Jim Muhwezi & Another V. Attorney General75 and Paul K Ssemogerere and Another v. Attorney General76 the Constitutional Court refused to go into the merits of the claims on the ground that the Court should refrain from inquiring into the internal procedures of Parliament. A particular approach to balancing judicial autonomy with self restraint, and avoid crossing the boundaries of policy and politics, emerged in the Constitutional Court during this period. Whenever possible the court cautiously avoided a conflict with either the executive or the legislature, and for years, technicalities and controversies rather than meritorious issues marked its judgments. This is particularly noteworthy in light of the emphasis in the 1995 Constitution on the administration of substantive justice without undue regard to technicalities.77 THE JURISPUDENCE OF THE 2000 REFERENDUM The 1995 Constitution left some fundamental questions to be decided by the electorate at a later stage, most importantly, with regard to the type of government the country was to have, declaring that “during the last month of the fourth year of the term of Parliament’ elected in 1996, [that is to say in July 2000], ‘a referendum be held to determine the political system the people of Uganda wish to adopt.”78 Opposition groups expected that, in accordance with the constitution, restrictions imposed on their operation and activities would be lifted to enable an effective referendum campaign. When this failed to happen, they sought to block the passage of the Referendum and other Provisions (Referendum) Act 1999, and its parliamentary approval was shrouded in chaos and controversy. Many Parliamentarians had signed the Attendance Register, but were not physically present in the Chamber at the final stages of passing the Bill. To avoid a constitutional crisis the House had to pass the Bill into law before rising, and when a multi-partyist MP raised the issue of the quorum, the Speaker decided that instead of the customary head count of MPs present in the Chamber, quorum would be ascertained by referring to the Attendance Register. Having consulted the Register, the Speaker ruled that there was a quorum and the Bill was passed. However, the Bill did not receive the Presidential Assent in time and came into effect one day too late. These irregularities led the political opposition to challenge the Referendum Act, in Paul Kawanga Ssemogerere & Another v Attorney General.79 The Attorney General raised a number of preliminary objections to its hearing on the merits which Constitutional Court upheld, dismissing the Petition. The Petitioners appealed and the Supreme Court reversed the ruling and ordered that the Petitioners be heard on the merits.80 The petition was eventually heard by the Constitutional Court. In a unanimous judgment, it was declared that the Referendum and Other Provisions Act, 1999 was passed in a manner inconsistent with articles 88 and 89 of the Constitution, regulating quorum and voting, and was therefore null and void. The Court went beyond the issues originally framed and held that the voice voting method applied in Parliament also contravened the provisions of the Constitution. The case indicated that the Constitutional Court was becoming more assertive in the face of state actors failing to comply with the set norms and standards as reflected in the Constitution. Amidst the hearing of the above mentioned case, the parliament pre-emptively enacted another referendum law. The New Referendum (Political Systems) Act (9 of 2000), was presented to Parliament on June 7, 2000, and within two hours debated, read three times and passed into law. Under S. 29 of the Act, the law was made retrospective in the sense that it covered all actions taken or purported to be taken in good faith for purposes of the referendum, before the publication of the Act in the Gazette. The new law was, in substance and form, a replica of the old. It was swiftly challenged by two petitions on ground of the retrospective character and the non observance of the procedures. Additionally, the petition by James Rwanyarare and Badru Wegulo,81 sought an interim order to prohibit the holding of the referendum until the final disposal of the case. However, the petition was not heard until the referendum was completed and was eventually dismissed in November, 2000. In the judgment the Constitutional Court held inter alia that the enactment of Act 9 of 2000 did not contravene article 79(1) and (3) of the Constitution. Good governance required that since the legislation originally passed to cover the referendum was being challenged in Court, a specific Act had to be enacted for the holding of a referendum on political systems within the time limits set by the Constitution. Another important referendum related case is Ssemwogerere and Zachary Olum Vs Attorney General.82 The Petitioners sought a number of declarations and orders with respect to the constitutionality of the referendum and the Referendum Act (No. 2 of 1999), holding that the choice of a political system through a referendum under article 69 of the Constitution is inconsistent with and contravenes articles 20, 21, 29 (1) (a) (b) (d) (e); 38 (2), 70(1) (d), 71(f); 72(1) and 75 of the Constitution. The Attorney General raised several objections, amongst which was that the Constitutional Court had no jurisdiction to interpret conflicting provisions in the Constitution against each other and reconcile them. The majority of the Court agreed with the objection, but two judges dissented. Justices Twinomujuni and Okello argued that the Constitutional Court has powers and responsibilities to interpret and harmonize the Constitution, which could not be abdicated in the vain hope that other authorities will amend the Constitution or harmonize it. The petition was dismissed by a majority of three to two. The majority held that the referendum provided for a free and fair contest that enabled both the multiparty and movement system advocates to organize for the purposes of canvassing for the referendum. The dissenting judgment argued that the critical point was whether the law provided both sides equal opportunity to constitute their campaign machinery and the national referendum committee. In their considered opinion, “Political parties are legally incapable of participating in any exercise to form the referendum committees and will remain so for as long as article 269 remains an interim provision of our bondage. The framers of our constitution could not have intended such a monstrous result”. On August 31, 2000, following the June 29, 2000 referendum, the Constitutional (Amendment) Act of 2000 was passed to make legal the legislation under which the referendum was held (The Referendum (Political Systems) Act of 2000). The Democratic Party petitioned the Constitutional Court against the Constitutional (Amendment) Act, but lost on a 3 to 2 vote. The Court ruled only on the procedural issues, declaring that it did not have jurisdiction to interpret one provision of the Constitution against another. The DP, then, appealed to the Supreme Court.83 On January 29, 2004, the Supreme Court ruled that the Constitutional (Amendment) Act was unconstitutional because of the procedures followed when it was enacted.84 The State House claimed the decision was based on false information and the court should review it. It claimed that the bill was not passed and assented to the same day, the certificate of the bill did exist, and the number of votes was physically counted rather than relying on a voice vote. On August 3, 2004, the government applied to the Supreme Court to submit additional evidence relevant to the January 29th decision, but the Supreme Court unanimously dismissed the application. This in turn laid the grounds for the greatest court challenge to the government of President Museveni, the June 2004 ruling by the Constitutional Court on the constitutionality of the Referendum (Political Systems) Act of 2000. On June 22 2002, two weeks after the Act authorizing the June 29 referendum was passed by Parliament, DP leaders petitioned the Constitutional Court arguing that the Act violated the Constitution. When the petition came up for a hearing on October 17, 2000, months after the referendum was held, all parties agreed not to proceed until a decision was reached on constitutionality of the Constitutional (Amendment) Act of 2000. As we have seen, this decision was only handed down by the Supreme Court on January 29, 2004. Finally, on June 25, 2004 the Constitutional Court ruled unanimously that the Referendum Act of 2000 violated several provisions of the Constitution. The implications were far reaching, in the words of Justice Amos Twinomujuni: Anything which was done under the Authority of that Act was invalid. To rule otherwise would be tantamount to authorizing the stampeding of Parliament (as was the case here) to pass kangaroo style legislation oblivious of the Constitution; perform unconstitutional acts allegedly under the authority of such legislation, all with impunity. That would be licencing anarchy. In other words, because the Act was invalid, referendum was invalid. No political system was put into place by the referendum, so the current government was illegal. A constitutional row erupted following the ruling. A furious President Museveni publicly slammed the ruling. In a television broadcast he vowed to disregard the "unacceptable" verdict, and accused the courts of trying to "usurp the people's power". Museveni’s supporters protested in the capital, while the legal fraternity called on the government to respect the rule of law and stop interfering with the judiciary. Chief Justice, Benjamin Odoki asked the government and Ugandans to leave the courts to function without intimidation, assuring that the judgment of the Constitutional Court had not caused any constitutional, political or judicial crisis. The government appealed the decision to the Supreme Court. Of particular concern was the doctrine of “prospective overruling,” i.e., the argument that anything done by the illegal government was illegal. The Constitutional Court contended that prohibition against such reasoning was applicable in criminal but not civil cases like this.85 The Supreme Court overturned the Constitutional Court ruling. While agreeing that the Act which set up the vote had been unconstitutional, it but nevertheless ruled that the results of the 2000 referendum were valid.86 The 2000 referendum established the courts as an important arena for determining the political destiny of Uganda. Despite the final judgment by the Supreme Court, opposition politicians won important legal battles against the government over the legality of the law governing the 2000 referendum. During 2004 the courts appeared to move towards a new resolute, the age of technicalities seemed to be giving way to substantive justice, the question of constitutionality of laws passed under the 1995 constitution took centre stage as opposition politicians acted on a renewed faith in the judiciary. JUDGING ELECTIONS The presidential elections of 2001 was another event that defined the extent and inherent limitations of the courts in controlling that political processes conform to the legal norms and hold political personnel accountable. In the elections, Museveni was declared the winner with a comfortable margin.87 However, the NGO Election Monitoring Group-Uganda, reported violence that occurred during the presidential campaigns.88 There were also allegations of widespread electoral malpractice. The main contender, Dr Besigye challenged both President Museveni and the Electoral Commission over alleged irregularities and rigging of the final results. The hearing in the Supreme Court opened on 5 April 2001. Two weeks later the court’s dismissed the petition by a majority of three to two.89 The majority judgment held that although there had been irregularities in the poll, these had not substantially affected its outcome. The quantitative test that the court used in the presidential petition seems to have been regularized in election petitions decided by courts of law at various levels, thus increasing the burden of litigants. This test has limited the courts in exercising their accountability function, ensuring compliance with electoral laws and regulations. Article 104 of the Constitution which regulates challenges to the results of a presidential election has proved unworkable. The time frames set for filing a challenge to the elections, disposal of the petition by court and holding of another election, are too short. The article requires the petition to be lodged in the court registry within 10 days of the declaration of the election result. The experience from the 2001 Besigye petition shows that it was an almost impossible task to gather all the evidence nationwide in 9 days and file the petition. The Supreme Court is given 30 days from the date of filing to dispose of the petition, which, given the gravity of the matter, is very short. However, experience from other countries in the region shows that without a time limit, presidential election petitions tend to drag on for years, rendering them virtually ineffective.90 JUDGING THE RULES OF THE GAME One of the requirements of the 1995 Constitution was the enactment by Parliament of an enabling legislation to regulate activities of the political parties in Uganda.91 The first attempt at enacting such law came with the tabling of the Political Organizations Bill in 1998. The Bill was referred to the Legal and Parliamentary Affairs Committee, for consideration, but after the publication of the Committee’s Report, the Bill was mysteriously withheld. Some time later the responsible minister told Parliament that the Bill was to be shelved sine die.92 In June 2002, a new Political Parties Organization Act (PPOA) was passed. The Act provided inter alia that no party or organization could open branches below national level and that no parties and political organizations could also hold "more than one national conference in a year." The parties were also prohibited from holding public meetings except for the national conference, executive committee, seminars and conferences at the national level. This attracted the Paul Kawanga Ssemogerere & 5 others .v. Attorney General of Uganda petition,93 in which among other issues, the petitioners asked the court to determine “whether or not sections 18 and 19 of the Act established a one party state, the party being the movement contrary to Article 75 of the constitution.” The petitioners sought to distinguish between the Movement referred to and provided for in Article 70 of the constitution and the Movement provided for in the Movement Act. They contended that the former is a political system while the later is a political organization. The Constitutional Court accepted these arguments and found sections 18 and 19 of PPOA to be unconstitutional. This judgment indicated that the court was ready to strike out oppressive and discriminative laws from statute books to create a level political playing field, thus encouraging the political opposition. The government appealed to the Supreme Court, but on June 21, 2004 withdrew the appeal. This allowed political organizations to participate more freely in public life, although the requirement remained for political parties to register with the Registrar General. The Political Parties and Organizations’ Act was rendered nugatory and in need of extensive review by Parliament. The revised version of the Act was only enacted on the 21st of November, 2005. PROTECTING POLITICAL SPACE Throughout Ugandan history the government has sought to use courts to contain the voicing of political opposition. In 1991 Prof. Ojok was convicted of treason and sentenced to death (Professor Isaac Newton Ojok V Uganda).94 As an opinion leader in the Holy Spirit movement he took part in a rebellion against the government. When his case came for trial, he claimed that the judge would be biased since she was a sister of the Political Commissar and leader of the Movement. The judge refused to properly record the objections and went on to sentence the accused to death. However, when the case went on appeal, a retrial was ordered. The media constitute an important political space, and in Uganda there have been several cases against journalists. In the earlier mentioned case of Charles Onyango Obbo & Andrew Mwenda V Attorney General,95 two of Uganda’s leading journalists, who were prosecuted for publication of false news, challenged the constitutionality of section 50 of the Penal Code, which makes publication of false news a criminal offence. The Constitutional Court, as we saw, dismissed the petition for technical reasons. The case went on appeal to the Supreme Court and on 11 February 2004, the judgment, delivered by Justice Mulenga overturned the Constitutional Courts’ decision and struck down section 50 of the Penal Code as inconsistent with Article 29 of the Constitution. The judgment emphasized the importance of freedom of speech to the democratic process, and established a high threshold for limiting the freedom of the press. The foundation laid by the Supreme Court in this case is highly relevant to the charges currently faced by journalists. With regard to the formal political opposition, Dr Besigye was summoned to CID police headquarters after 2001 elections to explain alleged comments made with “seditious intent,” during his presidential campaign. The then Head of Military Intelligence, Lieutenant Colonel Mayombo (now the chairman of the New Vision) , imposed a travel ban on Besigye, stating that the move was necessary following bomb blasts that could be linked to politicians who were unhappy with the election results. It was later alleged that Besigye had committed treasonable acts by linking with ADF and supplying 200 guns. He denied the allegations, the prosecution of which could result in the death sentence, and fled the country beating a 24-hour surveillance by military intelligence personnel.96 Officials of Reform Agenda, the political group then sponsoring Besigye, reported that about 50 of their activists had been arrested by security operatives.97 Security organizations accused all the arrested of being involved in armed rebellion,98 and continued to allege that Besigye and the Reform Agenda has links with the Lords Resistance Army (LRA). When the Reform Agenda metamorphosed into FDC, the FDC activists continued to hold that claims of LRA and PRA links were aimed at intimidating them into submission, label them as a rebel group and consequently outlaw them. The political detainees include members of the Islamic Tabliq group, some of whom were released and then rearrested. Fifteen Tabliq Muslims were acquitted of treason by the High Court on 12 July 2002.99 These instances indicate that courts may be used to contain and control political opponents, at least for an intermediate period, but that the judges will judge the cases on merit once they come up for trial. A recent case in point is that of Brigadier Henry Tumukunde V A G & The Electoral Commission.100 It is a petition filed by Brigadier Henry Tumukunde, an army Member of Parliament who was directed by the president to resign his parliamentary seat for expressing himself on political matters that were adverse to the position of government. He was arrested and charged in the military court martial for insubordination and brought the case while incarcerated. In his petition, he asks the court to restrain the Electoral Commission from taking any further steps towards conducting elections for the army representative in his place. The petition was dismissed on a 3 to 2 majority and the judgment illustrates important developments in the Constitutional Court’s approach to delimiting the powers of the executive. Justice Steven Kavuma, writing the majority judgment (with Deputy Chief Justice Mukasa Kikonyogo and Justice Kitumba concurring), used “the political question doctrine” to limit the role of the courts in the political processes, ruling that the constitutional court does not have the mandate to question the actions of the president who is the commander in chief. 101 The Court’s reluctance to uphold individual rights in the face of political power is discernible in the following statement; The rights and freedoms provided under articles 20, 21 and 29 of the Constitution must be enjoyed within the confines of the law. Those rights are apparently not absolute. They are important but not derogable freedoms under article 44 of the Constitution. Clearly, the petitioner knew that participating in radio talk shows and making statements to outsiders without permission from the relevant authority was an offence under the UPDF Act, military standing orders, army code of conduct and other military law enacted in accordance with the Constitution to operationalise it. The petitioner should, therefore, not have chosen those methods he used to defend the Constitution and fulfill his obligations as a member of Parliament. This is a worrying development. Indeed in her dissenting opinion, Justice Mpangi Bahigeine (with Justice Twinomujuni concurring) stated that the oath of parliament imposed on the petitioner a wider mandate than his limited interest group did, to legislate for the entire country and defend the Constitution in every conceivable way, not to defend it in part in respect of his constituency alone. Thus the restrictions/limitations would not be assailable when applied to a non-Parliamentarian officer or soldier. However, once an army representative, who is so vulnerable, is allowed to subscribe to the oath of Member of Parliament, he/she is put in a situation where he or she is faced with two masters to serve, the army code of conduct or the oath of Member of Parliament. Who is the supreme master? The oath of Member of Parliament. Consequently, to press charges against him is in conflict with and violate articles 20, 21 and 29 of the Constitution. The oath to uphold the Constitution has an overriding effect over any thing else. However, the voice of Justice Bagheine is consistently becoming a minority in a court that seems to be making a full circle to the times when it was fearful of descending into the arena of the political reforms. JUDGING THE CONSTITUTIONAL REVISIONS In February 2001 the Government of Uganda set up a Constitutional Review Commission (CRC). After the Commission submitted its reports they were extensively discussed by all stakeholders. The government issued a White Paper based on the report which was debated by Parliament’s Legal and Parliamentary Affairs Committee. On 15thFebruary 2005, the Attorney General/Minister of Justice and Constitutional Affairs tabled an “Omnibus” constitutional amendment bill before Parliament, the object of which was to amend a wide range of constitutional provisions in one go.102 While the Bill was still before the Legal and Parliamentary Affairs Committee of Parliament for consideration, a petition emerged challenging the constitutionality of the so called Omnibus Bill.103 (Miria Matembe, Ben Wacha & Hon. Abdu Katuntu v A.G.)104 At the time of the hearing of this petition, the Committee had not yet submitted its report on the Bill and the Attorney General contended that it was premature. The majority of the judges on the Constitutional Court accepted this, and held that before a bill is enacted into law and becomes an Act of Parliament, it is premature to resort to court to challenge its constitutionality.105 The court also stressed that the importance of the principle of separation of powers, holding that the Constitution does not require the court to supervise the functioning of the legislature in every aspect and at all the stages of its work. Care must be taken to ensure that the principle of separation of powers is duly observed by the three arms of government to avoid unnecessary erosion of each other’s constitutional functions and undue hampering of otherwise good and balanced governance. The function of the court is not to interfere in the operations of the executive and the legislature but to ensure that they comply with their mandate.106 Justice Bahigeine in her dissenting judgment agrees that the Constitution accords Parliament great weight when dealing with legislative procedure. However, in a Constitutional state, the courts are the bulwark of constitutionalism and have to remain vigilant about the legislative procedure in the House, since there is no other available tribunal to determine whether the legislature has complied with the constitutional provisions. In her judgment, the judiciary would be failing its mandate if it closed its eyes to any infraction on the ground that it is too early in the process, to interfere.107 As it were, this petition was dismissed on a three-two majority,108 an emerging trend in the Constitutional Court since the appointment of new judges. President Museveni has publicly stated his intention to appoint party cadres to the bench and this is widely understood to have been the case in some recent appointments.109 THE JURISPRUDENCE OF 2005 REFERENDUM A new and more mixed trend of jurisprudence emerged in 2005, and again many of the cases evolve around the issue of a referendum on the political system. The Ugandan government confirmed in late June 2004 that it would relax restrictions on political party activity and hold a referendum to decide whether the country should return to multiparty politics. The referendum took place on 28 July 2005, after a protracted and fiercely contested process. The basic laws governing the referendum were the Constitution of the Republic of Uganda, The Referendum and Other Provisions Act (Referendum Act) 2005, The Electoral Commission Act 1997 as amended and The Parliamentary Elections Act 2001. The Constitution in Article 74 (1) provides for the holding of a referendum if requested by a resolution of more than half the members of Parliament. On May 3rd 2005, Parliament passed a resolution directing the Electoral Commission to organize a referendum to enable Ugandans to decide if they wanted to retain or change the movement system.110 On May 5th 2005; the EC received the resolution and began making preparations. At this stage an interesting case came up claiming that to hold the referendum would be unconstitutional since it proposed a change from a non existent system. In Okello Okello John Livingstone & 6 Others V Attorney General & Electoral Commission,111 the petitioners based their claim on the decision of the Constitutional Court in Paul Kawanga Ssemwogerere and Five others Vs Attorney General,112 in which the court declared the Movement and its organs a Political Party. The petitioners argued that since the no-party Movement system is a “legal fiction”, and does not really exist as such, there is no basis for the referendum. They claimed that Article 69 (1), (2), (a) of the Constitution, which provides for the holding of a referendum to choose and adopt the Movement Political system, offends the Constitution. Article 73 (1) of the Constitution unjustifiably curtails the fundamental rights and freedoms of Ugandans under Article 29 (1) (e), when the so-called Movement Political system is adopted, and is thus unconstitutional, while Article 74 (1) offends the Constitution in purporting to subject inherent fundamental rights and freedoms to a vote. They therefore wanted the court to stop the Attorney General and the Electoral Commission from further organizing the referendum. The Constitutional Court dismissed the application – again with a three to two majority – holding that the referendum was a constitutional means enabling Ugandans to determine their political destiny.113 The court found that despite the repugnancy of holding a referendum on human rights and freedoms, the one party system is so entrenched that it must be changed through a referendum. While there are cheaper methods of changing the prevailing political system, that decision falls within the discretion conferred on Parliament by the Constitution. It is not for the court to tell Parliament how to exercise its discretion in the matter. The Electoral Commission is only implementing a constitutional requirement and the impugned sections of the Referendum and other Provisions Act, 2005 do not in any way infringe any provision of the Constitution. The court also warned the petitioner on using offensive language, saying that there was no need to describe the Movement system as “a legal fiction” or “a legal fraud”, language that revealed political undertones. However, the court also warned on the general nature of the provisions that entrenched the political system in the Constitution and expressed hope that through the Constitutional review process, this issue would be resolved once and for all. This is expressed most clearly in Twinomujuni's dissenting judgement: In my view, the Constitution should be interpreted in such a way that the human rights articles prevail over the political systems articles. However, since the process of amending the Constitution is on-going in Parliament, this matter should be attended to otherwise it could be a time bomb waiting to explode, our Constitution with it.114 The petitioners appealed to the Supreme Court but the appeal could not be heard due to lack of quorum following the retirement of Justice C.M. Kato.115 This may be interpreted as a denial of justice. According to the Judicial Service Commission, their list of nominees to fill the vacancy had been submitted to the Ministry of Justice in May, but no appointment had been made.116 A new judge was appointed after the referendum, but by that time the appeal was moot. In the aftermath of Constitutional Petition No.4 of 2005, lawyers representing the opposition sent a petition to the Chief Justice to investigate the conduct of the case. The Lawyers accused the Deputy Chief Justice Laetitia Mukasa Kikonyogo of issuing an “unconstitutional directive”, illegally stopping Justices Amos Twinomujuni and Mpagi Bahigeine from writing their dissenting ruling.117 They referred to an internal memo of July 15 2005 in which she wrote “the purpose of this memo is to inform you that there will be only one ruling in the above mentioned petition. Any Justice who has a contrary view, as the usual practice in our courts, may refrain from signing.” Furthermore, that Mr. Joseph Murangira, the court of appeal registrar, who read out the ruling on the judges’ behalf, announced that dissenting rulings are not supposed to be written. The lawyers held that the Deputy Chief Justice’s directive amounted to unconstitutional control and effectively denied the two justices their constitutional right to dispense justice, contravening article 128(1) of the Constitution, which provides for the independence of the judiciary. The case confirms the recent trend in the Constitutional Court, with a split court deciding politically important cases in favour of the government with a majority of 3/2. Dissenting rulings are important sources of legal argument and to restrict the judges as is done in this case signals a tightening of the internal control within the judiciary over individual judges. Combined with increasing executive influence over appointments, this has a serious adverse effect on judicial independence. 3. CONCLUSION The paper shows that in the current political landscape of Uganda, the courts have become an important political arena at which a number of forces are at play, fighting though the courts, but also fighting over the soul of the judiciary. We argue that to understand why the courts have become so central to Ugandan politics it is important to consider the history of judicial politics in the country in the last decade. The opposition has increasingly used the law and the courts to fight the government over political space. The paper has shown how, after the 2001 elections, the courts became more willing to ensure compliance with the norms and standards regulating the political arena and took some bold decisions against government. The growth – albeit uneven – of independence and assertiveness in parts of the judiciary, has encouraged the opposition to use the legal arena.118 But the resort to legal strategies should also be seen against the restricted space for opposition in other arenas, most notably in parliamentary politics. Thus, even when court cases were not eventually won they provided a public arena for the opposition to present arguments and mobilise support. The government has fought cases in court, but also sought to influence and limit the judiciary in various ways: through various forms of pressure; by influencing the composition of the courts, by leaving vacancies open, and through taking cases concerning civilians into the military courts. The government has also been using the courts to immobilize the political opposition; filing charges against critical voices in the media, and arresting opposition politicians on murder and terrorism charges where bail is normally not given. Within the judiciary, this seems to reinforce internal tension and ambivalences. Parts of the judiciary has resisted the strategic use of the courts by the government and has asserted its independence, among other ways by developing the jurisprudence on the granting of bail; fighting the limitations on the courts discretion to grant bail and finding that bail is a constitutional right. Cases brought by the opposition have provided opportunities for judges to assert themselves and develop professional norms of independence, challenging the conservative and cautious legal culture. Others judges remain inclined to defer to the executive. Appointment of new judges has also tilted the balance in favour of the government. Recently the Constitutional Court has delivered several split decisions in politically significant cases, with the majority tilting towards the government position. This has led to criticism and doubts about the Court’s independence. So has what seems to be an internal disciplining of the judiciary, notable in the restriction on dissenting judgment. Recent events, with allegations of corruption and demands for judges to excuse themselves, should be seen in this context of an increasing politicization of the judiciary. When the state responded to displays of judicial independence by more overt pressure – deploying commando soldiers in the High Court and directly challenges the courts jurisdiction through the parallel use of the Court Martial – this caused a strong show of resistance from the legal community as well as from within the judiciary, stronger and more consistent than before. This may in part be a political reaction, reflecting the political significance of the legal arena on the current political scene. It may, however, also indicate an institutionalization judicial independence and constitutionalist norms. We may conclude that the role of the courts in Uganda’s transition dynamics has been – and is – profound, but inconsistent. The judiciary has been used by the political opposition, sometimes with success, and the courts have become central arena for contestation in the transition process. The government displays ambivalence towards the courts and the law. They make efforts to play by the rules and make use of the courts, but the recent weeks have demonstrated clearly that when the political costs of doing so exceed the costs of breeching the rules, they are willing to do so. This has met with strong resistance from the legal community and also from within the judiciary. This is a crucial time for the Ugandan judiciary, and as of now, the jury is still out on what their future role will be.

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