Dark days for public interest litigation

By Dickens Kamugisha

Common woman is greatest loser in judicial-political battle in Uganda

The  High Court ruling in September that faulted the Africa Institute for Energy Governance (AFIEGO) for bringing an application on behalf of those displaced by the government oil refinery in Hoima casts a dark shadow on the otherwise promising arena of public interest litigation in Uganda. The ruling raised questions on locus standi (ones right to bring a case before court) that many thought had been settled.  It also placed in balance the future of the estimated 38% of Ugandans (according to 2013 UNICEF figures) living below the poverty line who cannot afford to go to court to defend their rights.

The Constitution of Uganda 1995, containing a bill of rights acclaimed as one of the best in the world, provides that anyone can go to court in case a right is violated- whether or not that person was directly affected. This is found under Article 50 which effectively gives every Ugandan the right to defend the rights of others.  Public interest litigation has been particularly important in the realm of environmental rights, women’s rights and land rights. Still, the government has always spiritually invoked technicality and procedure to defeat these cases.

In a 2001 case brought by The Environmental Action Network (TEAN), government sought to argue that TEAN, an NGO, could not bring an action on behalf of non-smokers in Uganda; as these non-smokers were unascertainable. The Constitutional Court rejected this argument, pointing out that public rights and freedoms transcended technicalities. In a 2003 case brought by British American Tobacco (BATU) against TEAN, court stated that to require locus standi in regard to public interest litigation is to say that the constitution does not recognise the existence of needy and oppressed people. The judge stated that it is, in essence, to demean the constitution.

The refinery affected people’s case

Demean the Constitution is what the High Court did when, in September, it dismissed the refinery affected people’s application for an interim injunction. AFIEGO, together with ten other community members, brought the application (under Article 50) to stop government from evicting those displaced by the refinery without compensation. The application followed a main suit that they filed, challenging government’s violation of their property rights.

Paradoxically, the registrar, in his ruling, recognised Article 50 and its role in protecting the rights of the public; but still went ahead to say that the Civil Procedure Act and rules should have been followed. The registrar, in essence, used the Civil Procedure Act and Rules to defeat the supreme law of the country- the constitution.

While the decided cases and the constitution are clear on the issue of locus standi when it comes to public interest litigation, it remains easy for individual judges to take advantage of the fact that there are no written rules of procedure for enforcement of Article 50. They can easily weigh the situation and political climate and interpret the laws to defeat the purpose of the constitution and public interest litigation.

Refinery affected communities continue to live in poverty and under threat of a government that has done everything to weaken them and acquire their land on terms that they do not agree with. The government violated the rights of the people right from the beginning when it set a cut-off date, June 2, 2012, after which it forbade people from using their land whether or not they had been compensated.

Women are disproportionately affected because, even with the poverty and the limitations government has placed on property, they are still expected to feed their families. The frustration brought about by the unjust and ambiguous resettlement process has driven the men into drinking and gambling and exacerbated problems like domestic violence. The Assistant registrar,  in spite of evidence of the continued human rights violations, the degeneration of the refinery affected people’s property and the eviction notices hanging on their necks, stated that: “I see no urgency here…  Even though the property is taken; they (refinery affected people) will eventually be compensated.” The registrar basically reinstated S.7 of the Land Acquisition Act which the Constitutional court already declared unconstitutional for seeking to take land before compensation.

Gender and public interest litigation

Important to note is that government has in the past stood in the way of public interest laws like the Marriage and Divorce Bill and the Public Finance Bill. Meanwhile, it has passed those repressive of human rights, like the (repealed) Anti Homosexuality Act and the Anti-Pornography Act.

The government cannot, therefore, simply be entrusted to have a “good heart” and act pro-people. There needs to be a strict mechanism to ensure that it complies with the laws and respects human rights. A key mechanism is public interest litigation. Without public interest litigation, poor and unable litigants, most of whom are women, would never have the chance to have their issues heard in court.

Unfortunately, the courts are still mostly used by men, and public interest litigation is no exception. While the woman is the biggest loser in this worrying trend of public interest litigation in Uganda, she stands to be the biggest winner if the judges sober up and take Article 50 of the Constitution seriously. The beauty is that public interest litigation decisions are far reaching and are meant to change the lives of the infinite public for the better.

Wading the political waters

Human rights and public interest litigation is a relatively new field of jurisprudence. This is especially true when dealing with economic-social rights like the right to clean and accessible energy, the right to health, the right to environment, as well as culturally contentious rights like women and sexual minority rights.

Civil society should embark on a massive campaign to educate judges and lawyers handling these matters. They should be educated not just about the laws but also the political pressure that comes with handling such potentially epic cases. Uganda,  with a president who has been in power for twenty eight years and has shown no sign of retiring, faces real challenges to governance and human rights as the ruling party entrenches itself at all costs. The situation will only get more challenging in the run up to the 2016 elections. The education must thus not only target legal professionals but also the public, so they are empowered to champion the demand that their rights, as guaranteed under the Constitution, be respected. It is only through an informed populace and proactive judiciary that human rights and public interest litigation can survive the rough political waters.

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Dickens Kamugisha is the Executive Director of Africa Institute for Energy Governance