When judicial decisions become ‘painkillers’

Ignoring Supreme Court recommendations in Mbabazi election petition exposes government’s cynical view of constitutionalism

Kampala, Uganda | RONALD MUSOKE | A public lecture on constitutionalism held in the main hall at Makerere University Kampala on Aug.24 turned into a scene of anger, frustration, and venting when one of the expected main speakers, the Attorney General of Uganda, William Byaruhanga, failed to show up.

Organised under the theme, “Implications and execution of the decision in Amama Mbabazi v.Yoweri Kaguta Museveni & Others (Presidential Petition No of 2016): Implementation of Electoral Reforms Proposed by the Supreme Court’, the public lecture was meant to take stock of how the government has responded to the recommendations the Supreme Court ordered for several government agencies, including the Office of the Attorney General.

The talk, organised by the Makerere University School of Law-based Network of Public Interest Lawyers and the Public Interest Law Clinic, came just two days to Aug.26 which marked two years since the Supreme Court issued 10 recommendations following the March 20, 2016 Amama Mbabazi presidential election petition ruling.

But instead of taking stock, many of the speakers revealed that they, in fact, never expected that the government would implement the Supreme Court Recommendations.

Dr. Christopher Mbazira, an Associate professor of law and Coordinator of the Public Interest Law Clinic at Makerere University School of Law, said judicial decisions in Uganda will only continue to play the role of “painkillers.”

“When one examines the architecture of the judiciary and the Supreme Court, you get to know that litigation can never deliver democracy in Uganda,” he told the audience of mainly law dons and university students that filled the large chamber.

He added: “To think that the current judiciary and Supreme Court can have these recommendations implemented is to think that Panadaol can cure malaria.”

He said, instead, the judiciary should play its catalysing role while “other processes outside the courts advocate for change.”

Mbazira said he is aware the Chief Justice has written to the Attorney General to update him on how far he has gone on the Supreme Court recommendations.

“So this was supposed to be a forum where the Attorney General accounts to us as citizens of this country,” he said, “But, probably his not coming here was strategic.

Nevertheless, we shall pursue the Attorney General’s Office to ensure that the recommendations are implemented.”

Dr. Busingye Kabumba who delivered the keynote address said it is not surprising that little has happened in the last two years and it points to what he referred to as the NRM government’s cynical view of constitutionalism.

“If ever there was any illusion around how we are governed, then the events of these last few weeks have torn away the last vestiges of those illusions,” he said.

He was referring to the recent fallout from the Arua Municipality by-elections of Aug.15 in which soldiers of President Yoweri Museveni’s Special Forces Command attacked civilians on the streets, hotels, and homes; beat up several, killed one and arrested and tortured several MPs. The events sparked international outrage and riots and protests across the country in which the security forces beat up more people, including journalists and killed at least five more people.

Tough contest

The 2016 Presidential and Parliamentary elections were one of the most contested general elections since Uganda returned to multi-party democracy in 2005.

On Feb.20, 2016, President Yoweri Museveni was declared winner with 60% of the vote, but his main challengers, FDC’s Dr. Kizza Besigye and Amama Mbabazi (Go Forward) rejected the results, alleging widespread rigging and intimidation of voters by the security forces.

The parliamentary elections were equally hot and were mainly marred by disputed intra-party primaries that saw many defeated and disgruntled candidates break party ranks and run as independents. In total, 118 petitions challenging results were filed in courts.

But it was Amama Mbabazi’s petition— the third against Musevenisince 1996— that put the nation on a knife’s edge. In an unprecedented move, a group of civil society organisations and a team of nine Makerere University law dons joined the petition as Amici Curiae, loosely interpreted as “friends of the court.”

In their application, the law lecturers argued that “they had something new to bring to the adjudication of the petition.”

They said their application was based on the fact that in 2006 and 2011, the Supreme Court while adjudicating presidential elections petitions made several recommendations for electoral law reform but on both occasions these were ignored by the government.

They argued that, this time, the implementation of the recommendations would improve the country’s electoral democracy and avoid some of the issues that emerged in the 2016 elections.

The dons urged court to endorse its recommendations and even issue a structural injunction to ensure that these were implemented.

“Court judgments that go unimplemented are considered a futile effort for both the parties and the court that adjudicated such a matter.”

The court agreed with the Amici on the novelty and relevance of their submissions.

All this went on with Besigye under house-rest from the day the presidential election results were announced.

Mbabazi argued that during the presidential election, several offences and illegal practices were committed contrary to the Presidential Elections Act and the constitution.

Mbabazi accused Museveni of voter bribery, intimidation, making derogatory statements against opponents, using of state resources without proper authorisation, meting out violence on supporters of his opponents and war mongering.

He also accused the EC of failing to properly compile a national voters’ register, retiring the previous register illegally, illegally nominating Museveni, giving preferential treatment to Museveni, delayed delivery of polling materials, chasing away of other candidates’ polling assistants, allowing people to vote before and after the polling time and allowing the commencement of the polls with pre-ticked ballot papers.

Mbabazi accused the EC of using the biometric machine which was slow and unreliable, failure to control the distribution and use of ballot boxes and papers, allowing voters without valid cards to vote, allowing crime preventers at polling posts and tallying votes in the absence of his agents.

In a judgment by nine justices, the Chief Justice, Bart Katureebe, said although they had found evidence of several malpractices; including security interference with Mbabazi’s campaigns and late delivery of polling materials, the evidence was not good enough to affect the final result in a substantial manner.

The Supreme Court dismissed the petition but also made several recommendations while delivering their final judgment. The justices said the time for filing and hearing presidential election petitions from 10 and 30 days respectively needed to be reviewed and increased.

They also recommended that in addition to affidavit evidence, oral evidence should be allowed while the enactment of electoral laws should be made in a timely manner.

The Supreme Court recommended that the giving of donations during campaigns by all candidates, including the incumbent president should be prohibited and that the law should be made explicit to ensure that public servants are prohibited from involvement in political campaigns.

The justices further recommended that the law should be amended to make it permissible for the Attorney General to be made respondent to a presidential petition because it is the office that is the principal legal advisor to the government.

Other recommendations included; the increase of time from 20 days within which to hold a re-election in case of an annulment and that the law should regulate the use of technology in elections while the unequal use of the state media should also be addressed.

“The Attorney General must follow up the recommendations made by this Court with the other organs of state such as Parliament and the Executive.”

“The Attorney General shall report to the court within two years from the date of this judgment, the measures that have been taken to implement these recommendations and that the court may thereafter make further orders and recommendations as it sees fit.”

Going after the Attorney General

Two years on, it was clear the government has no intention of acting on the Supreme Court recommendations. This was cemented by the Attorney General’s skipping the Makerere University function. He is unlikely to report any progress to the Supreme Court in spite of the two year deadline elapsing.

It also emerged that only two recommendations have so far been fulfilled, according to Anne Mirembe, a lead consultant for a research project which recently made an inquiry into the implications of the petition.

Mirembe told the gathering that the recommendations that have so far been implemented include; the extension of the time for filing the determination of a petition from 10 days and 30 days respectively to 60 days (15 days for filing and 45 days for determination of the petition); and the extension for the time for a re-run from 20 days to 60 days to enable the Electoral Commission re-organise to carry out a credible election. These are both embedded in the Constitutional Amendment Act, 2017, which law is under appeal before the Supreme Court.

For Sabiiti Makara, a professor of political science from Makerere University’s College of Humanities and Social Sciences, there is nothing surprising about the military coming out aggressively in recent months to rein-in protesters because all across the continent, governments like the NRM which gained power via unconstitutional means do not believe in constitutionalism.

Lydia Namayengo, the manager of the Voice Project at the Citizens Coalition for Electoral Democracy in Uganda (CCEDU) said the government has no political will to implement electoral reforms.

“Constitutional reforms will only happen if Ugandans decide to stop keeping quiet amidst violations of their rights and freedoms,” she said, “The citizens must demand for the implementation for the reforms as spelt out in the Supreme Court recommendations.”

Mirembe said, considering that the Supreme Court was making such recommendations for the first time, the court should have borrowed from jurisdictions like South Africa where interim orders are also issued when such recommendations are made.

“They would have tasked the different agencies to report to the Supreme Court, say every six months,” she said.

Although he skipped the Makerere event, the Attorney General and the government are not completely off the hook. Dr. Mbazira said they will soon go after them again – in the Supreme Court- with a petition showing that the government is not acting on the recommendations.

“We shall continue to push the boundaries of judicial power if we want to promote rule of law in Uganda,” he said,“We shall push the Court to pronounce itself on whether there are grounds for contempt of court charges.”