Justice and the power of mobs

Buying justice

Another reason is that the traditional court system is increasingly viewed as unfair. Today, the public believes that money can buy justice: directly by bribing judges, and indirectly by hiring better lawyers and forcing the other side to spend more money than they are able to. People believe that the courts treat the rich and the poor differently, that powerful corporations can get away with crimes individuals cannot, (Cairo Bank has still managed to stave off criminal sanctions in the Pension cases) and that the powerful can lobby to get the specific laws and regulations they want — irrespective of any notions of fairness.

Courts have attracted sometimes undue criticism and allegations of corruption and bias by their inconsistent decisions touching upon similar matters. Why would the same Court grant a suspect in an alleged Shs24 billion fraud case cash bail at Shs10 million and another suspect in a Shs15 billion fraud allegation, Shs50 million cash bail? Why would a judge dismiss as “abuse of Court process”, an application to stay a matter pending determination of an important constitutional question when there is a clear line of decisions in support of the temporary stay and when the same Court has granted similar prayers to other litigants?

These inconsistencies supposedly made in “public interest” make the Courts of law agents of “public interest”. The inconsistencies make people begin to believe they are being tried by something a little better than mob law even if it is before a Court of law. Those who can afford it, then mobilise all kinds of mobs – including mobs in high places – to accost the Courts and exert pressure. This too is another kind of sophisticated mob but working to achieve the same result the Makindye mob achieved.

Smart people now prepare for battles in the court of public opinion. They have recognised that while this court is very different from the traditional legal system, money and power does count and that there are ways to tip the outcomes in their favour because the Courts of law are guided in their decisions made by public opinion and not just facts and law: For example, fake grassroots movements (like crime preventers), mobs, “opinion leaders”, “elders”, tribal leaders etc. can be just as effective in the offline world as are the millennials online.

And so Your Lordship Justice Katureebe, there is a problem as you quite rightly stated and we need as a country to have a sober conversation about these happenings. We must start with the judiciary itself that have ceded their power to the “public”. Courts cannot see the truth when their minds are clouded by the prejudice of “public interest/opinion”.

Independence of the judiciary

Independence of the judiciary is not a concept relating just to absence of Executive interference but also to the pandering to “public opinion and interest”. Courts must take and make bold and consistent decisions grounded on the law and facts before the Court regardless of what the public may think. When Courts act that way they will attract the respect and independence they deserve and we will not see the kind of open challenge to their judicial authority like we did in Makindye.

Judges live in cloistered silos. They can only be really judged by their behavior in court. The decisions they make are in the public domain and subject to public scrutiny. Quite naturally, these decisions are evaluated and commented upon, and reproduced in law reports and the media. Criticisms or accolades are to be expected.

But the recipients of these criticisms – the judges – are handicapped. They are not expected to respond or engage in a public debate of their decisions. The only way they will answer their critics is to stay the course, be consistent, not pander to public opinion, interest, or pressure and be fair even to those they may think are guilty.

Independence of the judiciary is not a concept relating just to absence of Executive interference but also to the pandering to “public opinion and interest”

It’s time we recognise the court of public opinion for what it is — an alternative crowd-enabled system of justice. We need to start discussing its merits and flaws; we need to understand when it results in “justice”, and how it can be manipulated by the powerful. We also need to have a frank conversation about the failings of the traditional justice scheme, and why people are motivated to take their grievances to the public.

And this is a Court where some people are at an inherent disadvantage.

The irony is that the Court of public opinion was always a forum where the weak ran ahead of the powerful. But that has now changed due to the immense power wielded by those that run the Courts of public opinion – the mobs, the Twitterati, the Face bookers and the newspaper editors. Those in power always preferred to use the more traditional mechanisms of government: police, courts, and laws. Not anymore as we just witnessed in Makindye.

Some commentators have in the wake of Makindye, advised that “when faced with a legal problem, hire a lawyer not a mob”. That’s great and correct advice but not contextual and rather simplistic in its analysis of what happened at Makindye. It assumes the rise of the mob culture is a spontaneous happenstance.

In reality, over time, we have allowed mob culture to flourish. Mobilisation by mob culture achieves results when politicians hire crowds to rallies, musicians hire crowds to show popularity, dropped Cabinet ministers mobilise tribal village “elders” and “opinion leaders” to accost the President and demand answers to why their son/daughter was dropped, religious sects and tribal “gangs” send representatives to demand cabinet slots, a “special interest group” piles pressure on the Executive and Judiciary and a law is struck down as “unconstitutional”.

This mobilisation of mobs has had the cumulative result of empowering the “mob” beyond their dreams and they now are exercising the power conferred upon them by us as a society and so – yes Hon. Chief Justice- you are right; we need to have a discourse on these trends.

In a networked society, who among us gets to decide where the moral boundaries lie? This isn’t an easy question and it’s at the root of how we, as a society, conceptualise justice. It’s not an easy question, but it’s the key question.

The moral and ethical issues surrounding the court of public opinion are the real ones that our society will have to tackle.

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editor@independent.co.ug