The decisions by the Supreme Court of Uganda in the electoral petition by Amama Mbabazi against Yoweri Museveni and others, has opened a new door to a proactive role of the judiciary in building democracy in Uganda.
The main part of the petition was decided in favour of Yoweri Museveni and the Electoral Commission and others.
However, the justices agreed to a request by a group of eight lawyers from Makerere University acting as friends of court, to pronounce themselves on some fundamental and persistent complaints which they argued had never been addressed following two previous petitions i.e 2006 and 2011.
In a break with tradition where courts merely stopped at interpreting laws, in March 2016, the Supreme Court the justices, went a step further and issued 10 recommendations or directives aimed at facilitating electoral reform generally and in presidential elections.
These recommendations revolved around the time of filing and determination of the presidential elections petitions, evidence used in such petitions, the use of technology in elections, unequal use of state-owned media during the electoral process in favour of the incumbent, donations, involvement of public officers such as the police and the army, in campaigns.
More fundamentally however, because the same court had issued orders that were not implemented, the Supreme Court issued specific orders directed at a specific government institution for accountability. These were:
The Attorney General had to follow up the recommendations made by the court with the other organs of state i.e Parliament and the executive;
The attorney general had to report to the court within two years from the date of the judgement with measures that the government would have taken to implement the recommendations.
The two years that court had given the Attorney General passed without any single step being taken by the government to implement the recommendations of the justices.
This forced two eminent law professors from Makerere University Professors Fredrick Juuko and Fredrick Ssempebwa to file an application before the Supreme Court in March 2019 in which they asked court to hold the Attorney General in contempt of court.
The case was heard in April and June and the Supreme Court delivered it’s judgement bon June 25, 2020.
Speaking to journalists recently, Prof. Ssempebwa argued that although the court did not find the Attorney General in contempt or defiant, it issued new critical orders that were transform the electoral democracy terrain in this country.
The first was that the Attorney General would give priority to the implementation of all Court’s recommendations outlined in the Amama Mbabazi petition.
Secondly, it ruled that the proposed legislation aimed at operationalizing the Court’s 2016 of tabling the necessary electoral reforms in time.
The Supreme Court also ruled that the proposed legislation aimed at operationalizing Court’s 2016 recommendations on electoral reforms be laid before parliament in one month from the date of the ruling.
The Attorney General was ordered to report to the supreme court in three months from the date of the ruling.
The court also ruled that the attorney general would have to file a final report on progress of the proposed legislation within six months from the date of the ruling.
Dr. Benson Tusasirwe, who along with Dr. Robert Kirunda, represented their senior colleagues in the second petition told The Sunrise that although the government had dragged its feet in implementing the 2016 supreme Court recommendations, there is now a sense that the government takes the court seriously.
This is shown by the fact the attorney general himself and the government’s top legal team was present when we were making our submissions.
Tusasirwe also noted that the government went ahead to table bills on electoral reforms as directed by court.
Following the Court directive, government tabled before parliament six bills that touch on elections and subsequently passed them in just one month.
Although the law dons doubt the significance of the electoral reforms or even the spirit of the same, they nonetheless praised the court for proactive stance in supervising the implementation of its decisions.
“It’s important to appreciate the new ground this new decision broke, said Dr. Tusasirwe.
“The idea that when a court makes a decision in a matter and then follows it up and continues to supervise it’s implementation is quite novel in this country. It has only been seen in countries like South Africa.”
“If decisions are made in which the public has an interest, it cannot be business as usual.
It will be more interesting in the social economic aspects because court will go to the ground to ensure that it’s recommendations are implemented.
This way, the court will get a human face.
In another illustration of the growing importance of the watchdog role of court over the executive, last year the constitutional court made similar fundamental decisions in the Constitutional Petition No. 16 of 2011 by the Centre for Health Human Rights and Development (CEHURD) and 3 others vs Attorney General.
The petition sought court to decide that the government’s failure to provide basic facilities in its own health centres, which had caused the death of two women one in Mityana and another in Arua, was a violation of their maternal health and a violation of their constitutional right to health.
In a landmark ruling, court decided in favour of the applicants.
It also went ahead to make time-specific-decisions that the government has to implement.
These among others include that the government has a constitutional obligation to uphold the rights of women and protect their reproductive health and should in the next financial year prioritize and provide sufficient funds in the national budget for maternal care.
Court also directed the government of Uganda through the Minister of Health to ensure that all the staff that provide maternal health in Uganda are fully trained and that all health centres are fully equipped with basic maternal facilities in the next two financial years ending in 2022.
The constitutional court further demanded that the Minister of Health submits a report in the two years after the ruling detailing progress of implementation of court directives.
Noor Nakibuuka Musisi, the programs Director at CEHURD argues that the decision by court to quash government claim of lack of resources to meet basic services of people, will no longer be entertained especially in matters that touch on protection of basic human rights.
Although some lawyers and indeed other Political players remain skeptical about the implementation of these aggressively proactive steps by Ugandan courts, they express hope that the two cases will embolden people to continue to force the hand of court to perform its obligation as a protector and custodian of human rights.
And as counsel Tusasirwe points out:
“This means that it is never about the law alone. You can have a constitution and not have constitutionalism. This is what should worry us more,” said Tusasirwe.