By Norbert Mao

Following the Kenyan decision overturning the results of a presidential election, the independence and fidelity of the courts and judges to the constitution has become the major topic of debate. Courts provide the arena for testing whether an election has been free or fair after all free and fair elections are the main vehicles for democratic change. They determine the constitutionality of electoral laws, ensure that electoral laws are applied, and when political rivalry boils over the courts become the safety valve that eases tensions.

The recent historic decision by the Kenya Supreme Court brought back memories of similar cases we have had in Uganda where courts had to determine questions with far reaching political impact. The first case of significance was the one filed by DP’s Paul Ssemogerere and five others to challenge the constitutionality of the Political Parties and Organizations Act (PPOA).

The law passed by parliament in June 2002 had provisions barring political parties from opening and operating branches below the national level. Parties were restricted to their headquarters! Parties were also barred from holding meetings other than delegates conferences, national executive committee meetings and national seminars. Grassroots mobilization was not allowed.

The court agreed with the petitioners that the movement system in the constitution was different from the Movement created under the Movement Act which was in reality a state party in disguise. The court thus struck down the provisions that restricted political party activities.

For the first time political parties were able to participate with greater freedom since 1986! This judgement enhanced public trust in the independence of courts especially among the political opposition.

Another case was about media freedom. Onyango Obbo and Andrew Mwenda were charged with publishing false news contrary to section 50 of the Penal Code. When they challenged the constitutionality of the law on grounds that it violated guarantees of freedom of speech, the Constitutional Court dismissed their petition on technicalities. They appealed to the Supreme Court which struck down section 50 as unconstitutional. The court thus decriminalized the publishing of false news and accordingly raised the bar for anyone trying to impose limits on press freedom.

The courts have however not been consistent in defending freedom or even the constitution. In the 2005 case filed by General Henry Tumukunde seeking to stop the army from electing his replacement in parliament after he was courtmartialed and removed from parliament.

A 3-2 majority dismissed the petition, Justice Stephen Kavuma wrote the majority opinion with DCJ Mukasa-Kikonyogo and Christine Kitumba concurring. The court interpreted its role restrictively and acted with unusual restraint in relation to checking abuse of power by the executive. It marked a turning point where the court basically adopted what Americans call “the political question doctrine” meaning even where it is in a position to give redress it will decide that the matter is too political for the court!

As if by coincidence that is also the time around which the President started saying he would fill the courts with his cadres who would not uphold individual rights in the face of executive power. The trend continues today.

In another case John Ligingstone Okello Okello and others challenged the constitutionality of holding a referendum on whether or not to restore multiparyism. Their main ground was that it is unconstitutional to subject a human right to a vote rendering it subject to the will of the majority. The court dismissed the case despite the unacceptability of voting on a human right.

It was another split decision 3-2. Mukasa-Kikonyogo, Kitumba and Kavuma was formdismissal while Mpagi-Bahigeine and Twinomujuni dissented. The parties appealed to the Supreme Court but the case never took off due to lack of coram following the retirement of Justice Cosmas Kato. Another judge could have been appointed quickly but the appointing authority dithered deliberately.

As the plot to remove the constitutional term limits loomed and an omnibus constitutional amendment bill was tabled, Miria Matembe, Ben Wacha and Abdu Katuntu petitioned the Constitutional Court challenging the constitutionality of the bill. Again there was a split decision 3-2 dismissing the the petition. Mukasa-Kikonyogo, Kitumba and Kavuma ruled against the petitioners while Mpagi Bahigeine and George Engwau dissented.

The majority chose to restrict the jurisdiction of the court while the dissenters declared that the courts would have reneged on its responsibility as a defender of the constitution unless it intervened to check injustice and abuse of executive power.