The Observer | Amicus Curiae | ‘Why the hell are you befriending the court?’ By Prof. Joe Oloka-Onyango
In March, a group of law academics secured an amicus curiae (friends of court) status before the Supreme court rejected the petition in which Amama Mbabazi sought nullification of the President Museveni’s recent reelection. One of the amicus curiae, PROF JOE OLOKA-ONYANGO, now discusses their experience and the implication of court’s final decision.
On March 12, 2016, I joined eight other Makerere Law School dons in filing an amicus curiae (friend-of-the-court) application in the presidential election petition brought by John Patrick Amama Mbabazi (JPAM). Mbabazi was the third-place finisher in the poll, garnering 1.4 percent of the final tally after incumbent Yoweri Kaguta Museveni (60.6%) and runner-up Kizza Besigye (35.6%).
When the news of the amicus application was announced, I received a call from a long-time colleague and friend: “What the hell are you doing befriending the court: Don’t you have enough enemies already?,” she asked me.
My friend’s reaction may have been extreme, but it was by no means exceptional. When the Supreme court accepted our amicus application, the reaction of Ugandans from all walks of life ranged from hope, to confusion, to disdain, to delusion.
Among the many views proffered about our action were the following: + Now that we had become “friends of the court,” our views would favourably (and conclusively) determine the outcome of the petition (as in… we hope you are “friends of Amama”);
+ By filing the petition we had “legitimized” the 2016 sham election and provided a veneer of legal authority and expertise to a fundamentally flawed political process (as in… we were really “friends of M7”); + My Political Science colleagues cryptically reminded me: Politics always trumps Law!
Engaging with the Supreme court was thus a waste of time because the result was a foregone conclusion (which would make us “friends-of-nobody”).
Finally, some opined that even if the courts agreed with our submission, how would that affect the outcome of the main petition? In other words, we were diverting the court from the more fundamental and important issue at hand, which was: who really won the election?
Given how much interest and popular comment the application raised in the print, broadcast and social media—jua kali businesses and restaurants were renamed “Amicus”— I thought it was important to answer my friend’s question: why indeed did we go to court?
Secondly, what did the JPAM petition in general tell us about the state of governance in post-2016 Uganda? To answer these questions, this article is divided into three parts.
It begins with some very brief remarks about the state of judicial politics in Uganda. Secondly, it outlines what the Mbabazi election petition was all about and its significance for the law and for politics in NRM’s Uganda.
Finally, I address the reasons why we filed the amicus curiae application, highlighting its implications for the place of the Judiciary within the framework of the NRM scheme of governance as we head off towards 2021.
1. LAW, POLITICS AND THE JUDICIARY IN UGANDA
Courts in post-colonial Uganda have always provided an interesting and contentious framework within which political issues have been engaged, going back to the most famous 1966 case of ex parte Matovu which dealt with the “pigeon-hole” Constitution or the case of Uganda v. Rajat Neogy & Abu Mayanja (1968) which precipitated the banning of the magazine Transition.
During the Amin period, courts were dispensed with as possible terrain on which political action could be pursued, ultimately culminating in the murder of a Chief Justice. The Obote II era largely treated the judiciary as an inconvenience.
Under the NRM, and especially since 1995 courts of law have been extensively used as an arena for political battles, e.g. David Tinyefuza (on his right to resign from the UPDF), Paulo Ssemogerere (on the Referendum of 1999/2000) and most recently on whether the President had the power to re-appoint a Chief Justice (Benjamin Odoki) who was above the stipulated age of retirement (in the case of Gerald Karuhanga).
Although there have been several victories for democratic governance and enhanced constitutionalism via the judiciary, there have also been many setbacks where the courts have been reluctant (even hostile) to transformation, finding recourse in legal technicalities, unearthing obscure and outdated colonial-era laws or taking refuge in the infamous Political Question Doctrine (PQD) which basically states that certain matters are beyond the purview of judicial scrutiny.
In short, the context of judicial struggle in Uganda has been one where progress is very often circumscribed by reversal, lack of enforcement or sheer impunity. Needless to say, the judiciary remains an important arena within which to gain a more complete understanding of the nature of the NRM regime of governance.
2.CONTEXT OF MBABAZI PETITION AND OUR AMICUS CURIAE APPLICATION
As you may be aware, the courts in Uganda have twice before provided the arena for presidential election petitions, the first of which was in 2001 and the second following the 2006 election. Both petitions were brought by runner-up Kizza Besigye who scored 27.7 percent in the former, and 37.4 percent in the latter.
Both were lost, and after the 2006 failure, Besigye swore that he would never again seek recourse in the courts of law because they were in no position to deliver genuine justice. Indeed, in 2011, when he ran for the third time, Besigye refused to go to court, arguing that there was no way in which he could secure a fair result from the judiciary.
Instead, he resorted to the streets with the “walk-to-work” protests. In certain respects Besigye was right—both on the broader context in which the election was held, and more specifically with regard to the preconditions for a successful petition.
The broader conditions have been well laid out in numerous books and articles, but most importantly in the 2001 and 2006 decisions of the Supreme court when addressing the matter. These included:
A. Extensive bribery and the misuse of state resources and incumbency;
B. Serious interference by the security apparatus of the state, ranging from the police, to the armed forces to the intelligence services;
C. The partisan and partial (some would say near-criminal) incompetence on the part of the Electoral Commission, whether in terms of pre-election arrangements for the poll or in the delivery of the results;
D. Massive disenfranchisement of voters through the deletion of names from the voters register, and
E. A generic atmosphere of intimidation, manipulation and coercion (and one in which courts of law were extensively abused in order to subvert the
Besigye candidacy, e.g. through the trumped-up charges of rape and treason).
In other words, in the unanimous opinion of the Supreme court neither the 2001 nor the 2006 elections were “free and fair.”
Ironically, neither court overturned the election, with a 3-2 verdict in 20011 and a 4-32 ruling in 2006. The ostensible legal reasoning behind both decisions was rooted in two issues:
1. The question of whether the Supreme court should conduct an “inquiry” or a “hearing,” given that Article 104(3) requires the Supreme court to “inquire into” the grounds of the petition; and
2. The burden of proof, or the main test which is applied to the allegations being made in the petition, i.e. whether the alleged irregularities affected the results in a “substantial manner” (a.k.a. The Substantiality Test).
Both issues are also directly affected by the unreasonably-short periods applied in presidential election petitions. A petition must be filed within 10 days after the declaration of results and court must deliver its decision within 30 days of filing the petition.
When combined, these limitations place the party with fewer resources—usually the losing petitioner—at a disadvantage especially when up against an incumbent president. Secondly, it limits the amount of evidence which can be gathered in the form of affidavits.
Neither factor would be a problem if the courts were to adopt a more qualitative approach to the substantiality test and also if they were to conduct an inquiry and not a hearing. An inquiry, would allow the court to expand the horizons and the material on which it relied to make a finding.
Adopting a qualitative approach would mean moving away from a mathematical approach to the issue to an approach which assesses, in the words of Justice George Kanyeihamba, “… the extent to which, deliberately or otherwise, the Constitution and laws of Uganda were substantially violated.”
Because of those limitations, going in to the JPAM petition, it was quite obvious that the odds of success were about as good as those of the Leicester soccer club at the beginning of this year’s English Premier League.
Indeed, we can even debate the larger question of whether a court of law—anywhere in the world—would overturn an election, especially one in which the effect would be to remove a sitting president.
There was simply no way that the Supreme court would have nullified the election, because in many respects 2016 was similar to the previous two instances in which matters ended up in court. But 2016 had several important differences both pre-petition and in relation to bringing the petition itself which warranted some third-party intervention.
Regarding events that took place in the period before the 2016 election, the most important were the protracted efforts at reforming the electoral laws and the Electoral Commission. Those efforts were executed mainly through the campaign for free and fair elections spearheaded by a group of civil society organizations.
Although the campaign gained widespread support, it eventually failed because of government reluctance to make changes to the electoral playing field. Secondly, there was also the question of the composition of the Supreme court.
For the first time in the history of the Judiciary in Uganda, all members of the bench were appointees of the same president, with Chief Justice Bart Katureebe having been President Museveni’s attorney general from 1996 to 2001.
Five of the judges (Mwangusya, Nshimye, Opio Aweri, Mwondha and Ekirikubinza) had only five months earlier (September 2015) been moved up from the Court of Appeal. In sum, the context was ideal for testing the mettle of the new-look highest bench in the Judiciary. Regarding the immediate conditions preceding the petition, the following are important:
1. Even though Besigye had stated that he wouldn’t go to court, every effort was taken to stop him from doing so in the event he changed his mind.
Thus, not only was Besigye physically prevented from leaving home to file a petition but the authorities variously harassed, intimidated and even detained potential witnesses who would provide the evidentiary support to a petition. The culmination of this action was the invasion of FDC headquarters and the confiscation of all election-related material;
2. When the ball shifted to Mbabazi, likewise, the government engaged in a process of intimidation, coercion and even bribery of lawyers and witnesses.
The culmination of these actions was a raid on the offices of Mbabazi’s lawyers;
Why then did we file the amicus application? First of all, we believed that this was an opportunity—even if the petition failed—for us to draw attention to the structural problems affecting the election, underscoring the point that an election is a process, not an event.
Secondly, we viewed the petition as the opportunity for the court to reassert its authority in a context dogged by institutional collapse and growing Executive impunity. Thirdly, it was to test the judicial waters for future governance struggles which will invariably end up in the Supreme court in what is a fairly new bench.
And finally, it was an opportunity to entrench the mechanism of amicus curiae which was standing on shaky jurisprudential ground in Uganda. Given that under the law an amicus is confined to making only submissions which the parties to the petition have not made, we decided to focus on the structural conditions in which the petition was being heard.
What were those conditions? (1) That in both previous Supreme court petitions, observations were made about the context in which the election was held, i.e. the proverbial “playing field”;
(2) In both previous petitions, the Supreme court had pointed out that conditions in the playing field had in effect rendered the election unfree and unfair;
(3) The main culprits responsible for such conditions were: (a) the law; and (b) the institutions, especially the Electoral Commission, the police and the army; and (4) The government had persistently failed to take appropriate action on all the above, and especially with respect to the process of electoral reform. The amicus brief we filed, therefore, basically made three points:
1. That the conditions observed by the Supreme court in 2001 and 2006 still persisted and had affected the 2016 election in the same way, rendering it unfree and unfair;
2. That the failure on the part of those responsible (especially the Attorney General) to take the necessary measures amounted to contempt of court at best, or blatant impunity at worst; and
3. That the Supreme court should adopt a new method of enforcement of its broader observations about the conduct of the election forcing the government to take supervised measures that would ultimately result in electoral reform.
In other words, we argued that the Supreme court should use the mechanism of the STRUCTURAL INTERDICT which is an order to a government body—in this case the Attorney General—to take certain steps within a specified period of time and to report back to the court, failing which would amount to contempt of court, with attendant sanctions, including the detention of the offending state officials.
In sum, our argument was that the two earlier judgments of the Supreme court had, in their obiter dictum commentaries, simply condemned the operations of the EC and other state actors but failed to make the logical connection to the nature of the election that resulted from its incompetence and partiality.
The net effect of the two decisions was to give legal sanction to executive impunity and to bring us exactly back to yet another election petition. Given developments since the decision of the court, the judgment still did not provide the necessary closure to the issue.
In other words, it is the structural questions affecting the election and which have dogged the electoral landscape in Uganda since the reintroduction of multi-party politics which are the problem.
In the absence of reform in this area, the country can forget ever having a free and fair election. The Supreme court was thus being implored to take a bold step in transforming Uganda’s political landscape.
3.IMPLICATIONS OF MBABAZI DECISION
Ultimately, the amicus petition was only partially successful; over the objections of all three respondents, the court allowed us to file a comprehensive brief which reiterated our view that there was a need for a more structured approach to the issue of electoral reform in Uganda.
Moreover, the court’s judgment accepting our application for the status of amicus curiae consolidated the mechanism as a well-established and uncontested element in the jurisprudence of Uganda.
In delivering its interim ruling on March 31, the court took note of our suggestions and alluded to making a more comprehensive response to the issues we raised in the final judgment of the court expected to be delivered two months later. Of course there is still the larger question of the place of the judiciary within the governance struggle in Uganda as we move on from 2016.
Ugandans do not place a great deal of confidence in the courts of law and the Amama petition in certain respects dealt the judiciary an even more significant blow to its standing in the eyes of most citizens.
However, both a review of the jurisprudence over the last 20 years (since the enactment of the 1995 Constitution) as well as consideration of some of the major governance issues which are certain to arise as we head on to 2021 suggest that the Judiciary is going to be an extremely important arena in which many of the future governance battles are going to be played out.
Aside from the question of rights and freedoms, the nature and extent of presidential power is certain to be an area of increased focus, including the question of term and age limits.
Even if this particular battle was lost, the petition brought significant attention to bear on what is actually going to be a long drawn-out war—legal and otherwise in the run-up to 2021.
In other words, ignoring the courts in Uganda is obviously a serious folly. One would do well to recall that old African proverb: he or she who believes that small things cannot cause significant change or damage has never spent a night with a mosquito.
Source — The Weekly Observer