Political Question Doctrine in Uganda An analysis of the technicalities on the realization of the freedoms of expression, association and Assembly in Uganda J. Oloka-Onyango MAKERERE UNIVERSITY Acknowledgment This paper was written for Chapter Four Uganda by J. Oloka-Onyango, a Professor of Law at Makerere University, School of Law. Research assistance was provided by Dorah Kankunda, Dan Bill Opio, and Joseph Byomuhangyi. Copyright © 2017 Chapter Four Uganda All rights reserved. Chapter Four Uganda is an independent not-for-profit organisation dedicated to the protection of civil liberties and promotion of human rights for all. We promote human dignity and advance rights through robust, strategic and non-discriminatory legal response. For more information, please visit: http://chapterfouruganda.com The Production of this paper was generously funded by the National Endowment for Democracy (NED). 01 05 Introduction Association and its 4 Protection and Violation 24 02 06 Technicalities and the The Question of Assembly PQD: The Good, the 30 Bad and the Ugly 6 Table of Contents 03 07 The Constitutional Conclusion Framework and the 34 Movement towards Inclusion 10 04 Freedom of Expression, Media Rights and Access to Information (A2I) 4.1 Expression and Media 15 Rights 4.2 Access to Information 19 01 Introduction 4 Political Question Doctrine in Uganda nsofar as a great deal of the Law is concerned with access to and the delivery of Justice, it is something of a surprise how much of the Law is in fact devoted to its subversion. Nowhere is the subversion of Justice more apparent than in the use of technicalities by lawyers in order to prevent a matter from being fully heard by the Icourts of law. The same is true with the Political Question Doctrine (PQD)—a device used by courts to avoid engagement with an issue that might lead to punitive action taken against them by the Executive or the Legislature. Paradoxically, as with the challenge to the Anti-homosexuality Act (AHA) in 2014,1 recourse to technicalities can provide an avenue for the speedy resolution of an issue in which there is an attempt to remove or suppress the expression of fundamental rights. Context, nuance and strategy become all-important in this regard. The main goal of this position paper is to make an assessment of the impact of technicalities and the PQD on a range of linked human rights—the freedoms of Expression, Association and Assembly. Enshrined in Article 29 of the 1995 Constitution but enjoying a long history as a central component of the international Human Rights regime, this category of rights lies at the core of the political and civic life of an individual and of society at large. If those rights are ignored, curtailed or simply suppressed it is clear that the political life of the society is affected for the worse. Unsurprisingly, technicalities and the PQD have a long history of being used to stifle these rights. While the struggle against technicalities and the PQD has been apace, every so often one sees their ugly heads emerge in a decision of a court which sets back the struggle for the realization of human rights by many years. Moreover, a spate of recent legislation, including the Public Order and Management Act (POMA), the Anti-Pornography Act (APA), the Anti-homosexuality Act (AHA), and proposed amendments to the law governing the operation of non-governmental organizations have sought to reinforce state control and restriction over the freedoms of expression, association and assembly.2 Ultimately, this works to the detriment of civil and political society. Against the above background, this think-piece offers some reflections of the impact of technicalities and the PQD on the realization and protection of this category of civil and political rights. It begins by reviewing the place of technicalities and the PQD in Ugandan jurisprudence in Part II, before turning to an examination of how the 1995 Constitution attempted to address the issue in Part III. In the sections which follow I specifically focus on how technicalities and the PQD have respectively impacted on the freedoms of Expression (including Media rights and Access to Information), Association and Assembly. 1 See Prof. J. Oloka-Onyango & 9 Others v. The Attorney General, Constitutional Petition No. of 2014 2 Amnesty International, Rule by Law: Discriminatory Legislation and Legitimized Abuses in Uganda, AFR 59/006/2014. Political Question Doctrine in Uganda 5 02 Technicalities and the PQD: The Good, the Bad and the Ugly 6 Political Question Doctrine in Uganda Technicalities fall within the broader framework of the procedures used by the courts of law during the process of delivering justice. In a nutshell, they are the procedural mechanisms by which the law is guided in order to arrive at justice. They form part of the procedures which bring order to the business of the courts and weed out matters that are frivolous or a waste of court time. In the words of Tanzanian Chief Justice Mohamed Chande Othman, “Without procedures, chaos would reign and litigation would be endless.”3 At the same time, the learned judge condemned the “tyranny of technicalities,” or procedures that are “… cumbersome, excessive, onerous, obstructive and unnecessary.”4 He makes a passionate call for “substantive justice” to reign over “mechanical justice” such that the technical application of the rules of procedure does not eliminate the quest to do what is the correct thing for the parties to the suit. With respect to human rights matters, the PQD could be described as the “mother” of all technicalities not simply because of the way in which it evades justice, but also through the chilling effect that its application has on the belief that courts of law should be the fountains of justice. The PQD has its roots in the 1803 US Supreme Court decision of Marbury v. Madison,5 but has had a profound effect on Ugandan jurisprudence since soon after independence. The relevant decision in this regard is the case of Uganda v. The Commissioner of Prisons, ex parte Matovu.6 Taken together, the PQD prevents a court of law from determining issues which are regarded to be essentially “political” and thus within the exclusive purview of the executive branch of government and not susceptible to judicial inquiry and review. In the words of Chief Justice John Marshall in Marbury, “… the province of court is, solely, to decide on the rights of individuals not to inquire how the executive or the executive officers perform duties in which they have discretion. Questions, in their nature political or which are by the constitution and laws, submitted to the executive, can never be made in this court.” In Ex parte Matovu, Chief Justice Udo Udoma reverted to the same principle in the following words: … any decision by the judiciary as to the legality of the government would be far reaching, disastrous and wrong because the question was a political one to be resolved by the executive and the legislature which were accountable to the constitution, but a decision on the validity of the constitution was distinguishable and with the court`s competence. 3 Mohamed Chande Othman, “Access to Justice and Justice Delivery in Tanzania: Unblocking the Barriers,” Zanzibar Yearbook of Law, Vol.1 (2013): 3-15, at 12. 4 Id. 5 5 U.S 137 (1803). 6 (1966) EA. 514. Political Question Doctrine in Uganda 7 The precedent set by ex parte Matovu was to continue to influence cases of a political nature in Uganda for a long time, with an obviously profound impact on human rights. As I have said elsewhere “… the Udoma panel in Matovu’s case effectively provided legal cover for what was plainly a coup d’état. What followed was the emasculation of judicial power especially when confronted by executive excess.”7 Matovu’s case nevertheless represented the most explicit enunciation of the doctrine. More subtle manifestations of the PQD were present both before and after the decision and in many instances the PQD combined with the instrument of technicalities to displace or deny the protection of fundamental human rights. Thus in the case of Grace Stuart Ibingira & Others v. Uganda8 which concerned the detention of several former Cabinet ministers in the Obote-1 government, the court ignored the many defects in a detention order and in the emergency regulations subsequently passed to validate it because of the fear of the repercussions from the Executive. In Odongkara & Others v. Kamanda & Another,9 the court dismissed the application with costs simply because the notice of motion by which the action was brought did not sufficiently set out the grounds on which it was made. In the 1969 case ofOpoloto v. Attorney General, the Court upheld the summary dismissal of the applicant as Commander of the Uganda Army on the grounds that the President enjoyed prerogative powers of the dismissal of civil servants and service officers without cause. In post-Amin Uganda, the PQD was once again tested in the case of Andrew Lutakoome Kayira & Paulo Ssemogerere v. Edward Rugumayo & Others,10 concerning the legality of the removal of Prof. Yusuf K. Lule from the presidency. There, the court upheld the supremacy of the 1967 Constitution and declared that the power to make ministerial appointments vested solely in the President. Consequently, the National Consultative Council had no valid powers to ratify and approve such appointments. Furthermore, the National Consultative Council (NCC) acting in its capacity as the legislature had no powers to remove the President from office. Despite making this bold pronouncement, the court held that even though there were irregularities in the manner in which the removal of Lule was effected, to make a judicial pronouncement to such an effect would have “dire consequences,” coupled with the fact that the change in government had been “overtaken by events.” It should not be forgotten that Matovu’s case also had a progressive element insofar as the issue of technicalities was concerned.