TALK BACK: with Sylvia Tamale

THERE WAS A VACUUM IN BABIHUGA CASE:

Any lawyer anywhere knows that the term “may” is discretionary and “shall” is mandatory
DIDAS Nkurunziza’s article : “Ignoring the Law is a Recipe for Legal Mayhem” (The New Vision December 05, 2002) in which he reviewed my analysis of the Babihuga case (Sunday Monitor November 17, 2002) had several misrepresentations and inaccuracies.
Yes, the constitution enjoins the judiciary to administer justice in conformity with the law (which I did highlight).
Article 2 provides that the constitution is the supreme law in Uganda and that if “any other law or any custom is inconsistent with any of the provisions of this constitution, the constitution shall prevail and that other law or custom shall, to the extent of the inconsistency, be void.”
Justice Kibuuka-Musoke found the Parliamentary Elections Act (2001) to be “seriously inadequate to operationalise the 1995 Constitution” in ensuring “free and fair elections” (Articles 1(4) & 61(1)). In other words, he found the Parliamentary Elections Act to be inconsistent with the constitution and to that extent, declared it to be void; he correctly applied the supreme law of the land.
In fact Article 137(5) of the constitution does not “jealously reserve” the power to interpret the constitution to the constitutional court as Nkurunziza would want us to believe. The Article provides: “Where any question as to the interpretation of this constitution arises in any proceedings in a court of law other than a Field Court Martial, the court may, if it is of the opinion that the question involves a substantial question of the law ; and shall, if any party to the proceedings request it to do so, refer the question to the Constitutional Court for decision.”
Any lawyer knows that the term “may” is discretionary and “shall” is mandatory. This means that constitutional interpretation is not a reserve of the constitutional court. Prof. George Kanyeihamba, the justice of the Supreme court of Uganda, articulated this point very clearly in his dissenting judgment in the case of Kyamanywa v. Uganda (2001).
Moreover, it is important for us to distinguish between interpretation and application of the constitution. When Justice Kibuuka-Musoke nullified the election for the Rukungiri district woman representative on grounds that it was not “free and fair” he was simply exercising his judicial duty of applying the constitution (the supreme law), which every judicial officer is duty-bound to do. I am sure that Nkurunziza has read Justice Egonda-Ntende’s very lucid and excellent argument on the same issue of applying the Constitution in the case of Osotraco Ltd. V. Attorney General (2002). Even Deputy Chief Justice Laeticia Kikonyogo in her judgment said: “The mere fact that the learned trial judge commented on the constitutionality of the law before him, does not justify the criticism that he assumed the role of the Constitutional Court.”
Nkurunziza asked for examples to illustrate how “judicial activism” contributed to the end of apartheid in both the US and South Africa. I am truly astounded that the learned counsel has never heard of landmark cases like Brown v. Board of Education (1954) which outlawed racial segregation in American public schools. In relation to the South African situation, I was referring to the post-apartheid judiciary and its efforts to dismantle the many legacies of apartheid with regard to the rights to education, shelter and health.
However, what is truly shocking is that Nkurunziza has no inkling that there are some social groups in Uganda that are “legally oppressed.” In spite of the 1995 constitution, the fact is that we still have numerous discriminatory laws in our statute books. For example, under the Penal Code, married women commit the offence of adultery each time they have sexual intercourse with any man other than their husband. However, a husband would only be guilty of criminal adultery if he had sex with another man’s wife! Another example can be found in our Divorce law which allows men to base their divorce petitions on the single ground of adultery but require women to have a minimum of two grounds.
The Succession law requires that where a court has to decide between a male and female legal heir (in cases of equality of kindred), “a male shall be preferred to a female!” Those are just a few examples of how women are legally oppressed.
A judge who is more conscious of his or her constitutional duty would declare that such laws do not conform to the application of the constitution.
If Nkurunziza were a judge (God forbid !) he would uphold such laws. This indicates that he obviously comes from the old school of lawyers. Despite being excellent lawyers, they are simply too legalistic and are yet to absorb the full implications of the 1995 constitution. This is why Nkurunziza goes on to misapply the words of his legalistic hero, Sir Thomas More (from Robert Bolt’s A Man for All Seasons). The words, which call for strict adherence to the law, were of no relevance here.
By nullifying the election which even the Court of Appeal agreed had been marred (and had described with terms such as “outrageous, “totally unacceptable” etc.), Justice Kibuuka was in fact not “cutting a great road through the law to get after the devil.” Rather, he was applying the law – the supreme law – in the name of the constitution. By calling for fresh elections he was giving “the devil benefit of the law.”
Nkurunziza agrees that the law abhors a vacuum and adds that judges are at liberty to fill such vacuum “only when there is no express law or rule applicable.”
Now, the Court of Appeal itself noted that no “yardstick” existed to “assess the magnitude” of irregularities. It remains a puzzle then why it did not go ahead to devise this yardstick to fill the obvious vacuum.

The writer is law lecturer at Makerere University