Prof. Kanyeihamba on mockery of law and justice in election petitions

In chapter 39 of his book titled `The Blessings and Joy of Being who you are” retired former Supreme Court Justice George K. Kanyeihamba writes about “the struggle to maintain the independence and impartiality of the judiciary in Uganda”. We reproduce excerpts of that chapter titled `Unacceptable acts and behaviour in the legal fraternity’.

Most people believe that judicial decisions are determined purely on the basis of law and justice. As an idealist and enthusiastic student, who was later to become professor, government minister, Member of Parliament, Presidential Advisor, writer and Judge, I believed and continue to believe in the same principles by which I have endeavoured to live and act.

Unfortunately however, I soon discovered that not every lawyer or judge believes, acts, or even pretends to behave in accordance with the same principles and beliefs. I encountered many head-ups committed by diverse persons in legal institutions and places of work. Since these are too numerous to narrate all in this story, I will highlight a few examples.

In several cases, I regrettably discovered that some judges can be greatly influenced by factors other than law and justice while considering and determining matters that seriously affect fair play and impartiality in adjudication. These are not always economic but plenty of them are political or sectarian. In training and learning about judicial ethics and integrity, decisions based on anything other than law and justice are not only discouraged but are unlawful.

In reality however, they occur from time to time. In the case of Attorney General versus General Tinyefuza, it increasingly became obvious that one or two colleagues on the panel that heard and decided the Petition were influenced largely by political and other sectarian arguments. The same external factors appear to have been present in some judgments drafted and delivered in such decisions as the Presidential election Petitions of 2001 and 2006. The greatest such bias was detected by most panel members in both cases being exhibited by the presiding judge.

In one instance that occurred in the latter Petition, a witness for the first respondent admitted that some of his supporters had indulged in election offences. Some journalists who were present during the hearing of the Petition published this evidence in the Press. Counsel for the first respondent vehemently criticised the journalists concerned and prayed that court bars them from attending further hearings of the Petition or punish them for contempt of court. Without consulting with the other members of the panel, the presiding Judge immediately summoned the alleged offenders and began to admonish them. Those of us who were on the panel desperately tried to stop him by whispering to him that he should not admonish the journalists because what they had published was an accurate record of the testimony given. The Chief Justice reluctantly abandoned his incorrect remarks but not before telling the innocent journalists that should they repeat “their mistake” he would hold them in contempt. This was obviously an attempt to intimidate the journalists not to publish anything derogatory against the first respondent any more. Fortunately, the other six members of the panel did not have or share the same strong bias exhibited by his Lordship, the presiding Justice.

Following the conclusion of the hearing of that same Petition, I was among the Justices who had had doubts about allowing the Petition. I immediately expressed the view that the lead counsel for the petitioner had presented the case very poorly and had not convinced me that a good case had been made out for his client to succeed. I therefore initially indicated that unless convinced otherwise by the evidence which we were to read thereafter, I was inclined to dismiss the Petition. After several days, as panelists, we discussed the case and our preliminary findings. I was still of the same view which was shared by two others with the other four indicating that they had not as yet made up their minds regarding the Petition.

Down the garden path

A week later, a panelist who is a close friend of mine from University days called me late in the night and pointed out that history would never forgive us if we did not allow the Petition and order the holding of another Presidential election. He proceeded to enumerate a number of affidavits of witnesses and legal and judicial decisions he urged that I should read before confirming my opinion on the matter. I was bothered by his revelations and became restless. I had brought home my copies of the proceedings, authorities cited by counsel and other documents including reports of impartial observers of the elections. Initially, I had browsed through them but not seriously studied them because of my bias against the poor performance of the lead counsel for the petitioner even though his junior had performed remarkably well and competently. I woke up in the night and read the materials my friend had identified for me. I did not complete reading them until around 3.30am. I was amazed by what I found. My colleague who made me aware of the importance of carefully perusing those documents and authorities was correct. History would not look at us kindly if we dismissed the Petition. I changed my mind. From that night until we delivered our findings, I firmly maintained the view that the Petition should succeed. When we next had a straw poll, the results showed that five of us would allow the Petition and two would dismiss it. We agreed to go back and study the materials again and return within a few days to reconsider our findings.

When we next met, one of our colleagues on the panel whom we respect asked us a number of questions. The first was that while he was still committed to allowing the Petition, could the court or anyone else guarantee that in a repeated election, no such malpractices and breaches of the law we had found in the election could not occur again or even increase in the election that would be held after publication of our findings and orders. He further wished to know whether it was not possible that the army which was then as now identified with and controlled by the first respondent might ignore our orders and instead stage a coup d’etat and militarily reinstate its Commander-in-Chief and suspend the Constitution. None of us could guarantee anything or give him assuring comfort. However, some of us pointed out that the spokespersons of the army had promised to honour the decision of the Court and the Electoral Commission had publicly declared that it was fully facilitated and ready to conduct a new election in the event of the Supreme Court order to nullify the previous one. Our colleague was not satisfied with these assurances. He therefore informed us there and then that he had changed his mind. He intimated that even though he was fully convinced that the Presidential election was flawed but for the sake of peace in the country, he would be dismissing the Petition. His decision left those of us who still wanted to allow the Petition with a majority as against those who had made up their minds to dismiss it. The presiding officer was asked to prepare the court’s collective decision that would show a split of 4 to 3 in favour of allowing the Petition, and we fixed the date and time of the delivery of our findings and orders.

We did not have another conference until the very day we were to reveal our decisions. Initially, the Chief Justice noted that as things stood at the time, we would be delivering a judgment in favour of the Petitioner by four to three Justices. The majority of the panelists decided that the court should not read its judgments in full but a brief statement summarising the Court’s findings would suffice. I indicated that on my part, I would read my judgment in full. I subsequently did. Just before we were about to rise and enter the courtroom where we were scheduled to publicly reveal our findings and orders, the Chief Justice, as if by prior arrangement, stopped us and announced that it was essential that even at this last minute of our deliberations about the Petition, he wanted to give everyone a last chance to reconsider their final position on the Petition. He intimated that he would once more ask each panelist how they intended to “vote” when we entered the courtroom for the pronouncement of our findings. He asked each of us to individually say “yes” or “no” to allowing or dismissing the Petition.

While six of us maintained our opinions we had expressed the previous week, my friend who had taken the trouble to previously warn me in the middle of the night that I should allow the Petition uttered the word that left most of us shocked and that word was “dismiss”. Some of us could not believe our ears. I looked at him but his eyes were looking down as if he were ashamed of what he had just said. I said nothing but after a few moments, he addressed me in the hearing of everyone in the room and said; “I am sorry George, my friend, 1 took you down the garden path and left you there.” I would recall those same words much later when he conspired with his friends in the Ministry of Foreign Affairs and others to have me removed from the African Court on Human and Peoples’ Rights so that he could replace me, which he succeeded in doing.

Be that as it may, until very recently, I did not understand or appreciate the reasons why my colleagues acted and reasoned the way they did in this particular Petition. The first issue on which I dissented from my colleagues is what we were supposed to have been doing in the first instance. The Uganda Constitution is clear on this matter. Article 104 which contains provisions of how to challenge and adjudicate on disputed Presidential Elections provides that any aggrieved candidate may petition the Supreme Court for an order that a candidate declared by the Electoral Commission elected President was not validly elected. The Petition is to be lodged in the Supreme Court registry within ten days after the declaration of the election results. Clause (3) of the same Article spells out clearly what the Supreme Court must do. It shall enquire into and determine the petition expeditiously and shall declare its findings not later than thirty days from the date the petition is filed. Clause (5) provides that after the inquiry, the Supreme Court may (a) dismiss the Petition, (b) declare which candidate was validly elected or (c) annul the election and, if an election is annulled, order a fresh election to be held within twenty days from the date of annulment. Clause (7) provides the final curtain on a disputed Presidential election. If after a second election, there is yet another Petition which succeeds, the Presidential election shall be postponed and following the expiry of the term of the incumbent President, the Speaker shall perform the functions of the office of the President until a new President is elected and assumes office.

To my utter amazement, when it came to the adoption of these unambiguous and clear words of the Constitution, the majority of the panelists on the Petition including the Chief Justice changed the Term enquiry into trial and the term findings into judgment. Until very recently, I have always been baffled as to why violence was inflicted by my colleagues upon the English language.

Be that as it may, my colleagues with whom I inquired into the Petition did another strange thing. In their inexplicable opinions of regarding the Petition as a trial, they went to great lengths to review every piece of evidence whether in the numerous affidavits that were presented, some other evidence and hundreds of authorities, many of which I considered irrelevant or unnecessary for the court’s enquiry and findings. In the end, almost all of them came up with massive judgments, the shortest of which was over a hundred pages with the learned Chief Justice producing the longest that was written in over two hundred pages! It became obvious that there was no way the Supreme Court could have complied with the provisions of the Constitution. On the other hand and personally, I found that I had ample time to enquire into the Petition, consider and draft my findings well within the period allowed under the Constitution. My findings were contained in less than sixty pages and by the time the day on which we were to deliver our finding arrived, I was ready to pronounce myself publicly and in greater detail on the petition.

My opinion then as now is that in a situation of political tension in which a nation finds itself and is eagerly expecting a tribunal to deliver a verdict on a dispute that causes the tension, it is imperative that the tribunal completes its work expeditiously and renders its opinion and reasons therefrom quickly.

Inner soul of judges

While my colleagues were contented to have theirs shelved in the Supreme Court Registry for an indefinite period, they were not happy either that I should be allowed to read mine and have disclosed to the whole world why I differed from them. I nevertheless insisted, believing as I still do, that the concept and belief in justice emanates from the inner soul of individual judges rather than from an organised or ordered panel. If such collective and unanimous decision is to be reached, it should be by coincidence and persuasion rather than by a compulsive obligation. In any event, on the appointed day, we had all agreed that the Chief Justice would first deliver a summary of the findings or as some of my colleagues insisted on calling it, the judgment of each panelist and the court’s majority orders while I would personally read my own findings and reasons last. That is precisely what happened.

Until very recently, I did not understand the reasons which compelled some of the Justices who were part of the four who decided to dismiss the Petition. There were rumours at the time that one or two were privy to an alleged statement by the Military High Command of the ruling party that it would not accept any other verdict than dismissal of the Petition. It was also said that the Chief Justice had been summoned by the highest political authority, which controlled the then prevailing constitutional order of governance and told in no uncertain terms that the authority could not be trusted to contain possible actions by the Uganda People’s Defence Forces when rejecting any orders allowing the Petition. Several members of the Opposition groups readily accepted these rumours as true at the time. I do not recall any single Justice on the panel who contemplated any belief in those rumours and we Justices all denied that any of us had been approached by any government party or military representative with a view to influencing our minds on the Petition. A year or two following the publication of our findings and decision, the Chief Justice revealed, inadvertently in my opinion, that the chairperson of the ruling party had summoned him to a meeting and words about the pending verdict and its possible consequences had been exchanged between them. This Judicial slip of the tongue passed without audible comment from the Justices present. However, the pregnant silence that proceeded after it was such that I felt that every judge who heard it would be inwardly jolted and deeply troubled by it.

In June, 2011, I was not very surprised when its truthfulness emerged from several of the army officers who are an influential group both in the ruling party and the High Command of the Army. They revealed that in both 2001 and 2006, the High Command and the leadership of the National Resistance Movement Party had resolved on each occasion that they would not accept the decision of the Supreme Court if it allowed Dr. Kizza Besigye’s Petition declaring him a winner or defaulting the Presidential election and ordering their re-run. Apparently, elaborate plans were made to declare a transitional government headed either by the outgoing President or the Speaker of Parliament who would then be advised to invite the United Nations or the African Union to organise and supervise another Presidential election in the country on the basis that Ugandans themselves were incapable of conducting proper elections themselves.

I was absolutely astounded. My memory ran back to the days when these Presidential elections were held and the finding of the Supreme Court declared in both 2001 and 2006. The acrobatics, twists and turns of the manner in which we were jumping from one side to the other in our endeavours to reach an acceptable consensus in the petitions came to mind. It had been disclosed in 2001, that the findings of the panel in 2001 of which I was not a member were more damning than what we discovered in 2006, in regard to electoral offences, illegalities, intimidation and vote stuffing. Nevertheless, even then, the court’s decision of the 2001 panel was split, three or two in favour of dismissal and the same sudden changes of minds by panelists are said to have been noticed during their deliberations until moments before the public revelations of their findings in open court. I recalled the statement of the learned Chief Justice and the remarks of the colleague who seemed to know and cast doubt on the army’s willingness to accept the Court’s decision. I recalled that one or two of the panelists had close relatives and intimate friends in the High Command of the Army. I wondered whether they had been tipped that allowing Dr. Kiiza Besigye’s petition was a dangerous political prospect and could plunge the country into chaos.

It slowly dawned on me as it does now, that the road to genuine democracy, the rule of law and constitutionalism remains a long one, bumpy and unpredictable. I was also sure of the reasons why some of my colleagues and I may not have been approached to be persuaded and intimidated. Knowing them as I did, we would have been eliminated physically first before any of us would be persuaded to abandon our Judicial Oath or the defence of the Constitution and the rights and freedoms of the people of Uganda. I have no doubt whatsoever that those of us who inquired into these Presidential Petitions and expressed views that were detestable to the ruling oligarchy would still do so to-day even under the threats of imprisonment or death.

The Chief Justice’s summary of the Supreme Court’s collective and individual opinions on the 2006 Presidential Petition which he read in open court was drafted in the following words:

“It has been agreed that I indicate how each member of the court decided on each issue framed. The first issue was whether there was non-compliance with the provisions of the Constitution, Presidential Elections Act and the Electoral Commission Act. By unanimous decision, the court answered the issue in the affirmative. The second issue was whether the said election was not conducted in accordance with principles laid down in the Constitution, Presidential Elections Act and the Electoral Commission Act. By unanimous decision, the court answered the issue in the affirmative. The third issue was whether if either issues 1 and 2 or both are answered in the affirmative, such non- compliance with the said laws and principles affected the results of the election in a substantial manner. By a majority decision of four to three, the issue was answered in the negative. The Hon. Chief Justice, Hon. Justice Mulenga, Hon. Justice Karokora and Hon. Justice Katureebe, answered the issue in the negative. The late Justice Oder, Hon. Justice Tsekooko and Hon. Justice Kanyeihamba answered the issue in the affirmative.”

When in an interview which was edited and published by the `Observer’ I repeated accurately what the learned Lord Chief Justice read in an open court, I was criticised by some ruling party activists as having attacked the Judiciary and betrayed its secrets. It sometimes appears that many Ugandans have not only short memories but choose to wear blinkers when it comes to their welfare and governance and the truth of what occurs. There can be no shadow of doubt that what I said in that interview was an accurate statement that the learned Chief Justice had read in open court and which was widely publicised in the Media. On the same day of 31st January 2007, when the learned Chief Justice summarised the court’s so-called judgment, I chose to read my own findings and reasons. I began my findings on the Petition with a reminder that the overriding constitutional dogma in Uganda is that the rule of law, constitutionalism and the Constitution of Uganda are the Alpha and Omega of everything that is orderly, legitimate, legal and decent. Anything else that pretends to be higher in Uganda must be shot down at once by the Supreme Court using the most powerful legal missiles at its disposal. The Constitution of Uganda is a binding contract between the people of Uganda and their successive governments. It was made by the people after some six years of protracted negotiations throughout the country under the auspices of the Constitutional Commission and Constituent Assembly. The Supreme Court is the last sanctuary for all the people in Uganda who are challenging any violations of the Constitution or breach of any law. The Petition had to be considered and resolved with the people’s Constitution guiding the court.

Later in my reasons, I said;-

“In my opinion, having answered in the affirmative both the first and second issues framed by the court, it became imperative for me to answer issue No. 3 in the affirmative also. To decide otherwise, would, in my opinion, manifestly conflict with the unanimous findings of the Court on issues No.1 and 2. Once a court finds that the Constitution, the supreme law of the land and other country’s laws have been flouted, that court must do its bounden duty and grant the remedy sought. In my view therefore, I could not see any rational or defensive alternative to answering issue No. 3 other than in the affirmative. I am fortified in my resolve by a decision of the Supreme Court of South Africa in the case of Speaker of the National Assembly v De Luke, which emphatically declared, that the Constitution is the ultimate source of all lawful authority in the country. No Parliament however bona fide or eminent its membership, no President, however formidable be his reputation or scholarship and no official, however efficient or well meaning, can make any law or perform any act which is not sanctioned by the Constitution. Any citizen affected by any decree, order or action of any official or body, which is not properly authorised by the Constitution is entitled to the protection of the law.”

Many self-acclaimed patriots abhor the truth about the manner and style in which Uganda has been governed since independence. They loathe and attack every true patriot who longs for good governance of the country. Any exposure of unconstitutional acts, illegalities and malpractices in governance and elections are ignored or condoned amid jubilations of electoral victories effected by bribery, intimidation, fear and rigging. Their kind never stops to think that one day and rather sooner than they imagine, this country may be governed differently and possibly by different people, in which event they and those they praise and follow blindly now will be judged directly by Ugandans who may have not shared their follies and misdeeds in governance.

Numbskulls do not give credit where it is due. They criticise logic, rationality and truth because these qualities stand in their way of being recognised and rewarded as blind fanatical followers or being replaced by more worthy citizens. For instance, the same kind of people will ignore the positive comments we made in 2006 and dwell on everything else that will parade them to be perceived as loyal and devotees of the establishment. In my findings and reasons, I exonerated the first respondent, Yoweri Kaguta Museveni as not having personally committed any criminal acts in the elections. I also found that the petitioner had not convinced me that he or anyone else had legitimately and constitutionally won the 2006 Presidential election. I also condemned the petitioner’s agents who committed electoral offences and his lead Counsel who suggested that a petitioner cannot be blamed for committing electoral offences because he or she is the challenger who lost.

However, in order to condemn me wholesale, some of my armchair critics continue to shout falsely that the Justices who held that the elections were flawed and ought to be repeated were motivated by the desire to see opposition candidates win. To warn a friend who is going to a wedding that his shirt buttons are undone and should be done up before proceeding to the function is not to stop that friend from going to the wedding altogether. It is an attempt to ensure that the guest arrives at the wedding in a smart and decent manner. For judges to advise that elections should be in conformity with the provisions of the Constitution and laws of the country in order to constitutionalise, legitimise and popularise a duly elected President is a matter to be applauded, not condemned.

The Supreme Court found that in the Presidential Election Petition of 2006:

There was non-compliance with the Constitution and election laws.

The principles of free and fair elections were compromised by bribery, intimidation and violence. The principles of equal suffrage, transparency and secrecy were infringed by multiple voting, vote stuffing and incorrect methods of ascertaining the results.

Are Courts supposed to congratulate those who were responsible for these acts of electoral malpractice to enable some candidates of their choice to gain votes unfairly while those Ugandans who fought the same malpractices in 1981 and at other times, having been provoked to the extent of going to war, welcome and swallow those same malpractices now? They were there in the struggle. They participated in the liberation war, in the evolution of the present constitutional order and the good governance Ugandans have or ought to lave enjoyed for years. Where were these come-lately critics? History will judge us all.

Parliamentary and local government elections fare worse in Uganda for lack of effective and transparent methods of conduct and supervision. On the other hand, Judges have shown much more inclination to scrutinise and make sound judgments on petitions brought before them. Uganda Law reports both published and unpublished are littered with numerous cases of successes and failures of Petitions that indicate the courage and professionalism of the learned judges. Sadly, subsequent bye-elections where culprits in elections are permitted to participate again and often win using more or less the same illegal methods undermine the work of the Judiciary and are a mockery of Uganda Laws and Justice.

By Independent Reporter