Understanding separation of powers, independence of the Judiciary
<b>By Yoweri Museveni</b><br><br>Incidents at the High Court<br>I would like to make the following points based on my observations formed over the last 21 years as President of Uganda.<br>First, our Movement, the NRM, fought for and re-established the rule of law and the independence of the Judi
By Yoweri Museveni
Incidents at the High Court
I would like to make the following points based on my observations formed over the last 21 years as President of Uganda.
First, our Movement, the NRM, fought for and re-established the rule of law and the independence of the Judiciary as should have been the case. The 1995 Constitution enshrined this position in the Supreme law of the country.
I have read the article by Oloka-Onyango in The New Vision of 14th March 2007 titled: “President Museveni wrong on the Judiciary.†He claims that whereas it was correct for me to say that the independence of the Judiciary guaranteed by the Constitution is fully respected and strictly followed by the Executive, it was erroneous of me to add that similar respect must be accorded to the Executive in its exercise of its duties. What Mr. Onyango is propagating is the view that the Judiciary should not respect the Executive in the latter’s exercise of its constitutional executive functions and that in fact the Judiciary can “legally ‘interfere’ with the work of the Executiveâ€! I am not a lawyer but it is obvious to me that this view is the exact antithesis of the tenets of the rule of law, the doctrine of separation of powers and democratic governance. Be that as it may, the correct Constitutional position has long been settled by constitutional jurisprudence and democratic practice in the democracies of this world. I am advised by our lawyers that in Uganda, the relationship between the Executive and the Judiciary and indeed the Legislature has received the highest judicial consideration by the Supreme Court in the Gen. Tinyefuza case of 1997. With regard to the principle that the Judiciary/Courts must respect the Executive and should not interfere in the constitutional mandate of the Executive, the Supreme Court stated, (Kanyeihamba JSC):
“The rule appears to be that courts have no jurisdiction over matters which are within the constitutional and legal powers of the legislature or the Executive ... Each of them (the three arms of Government) has its own field of operation with different characteristics and exclusivity and meant by the Constitution to exercise its powers independently. The doctrine of separation of powers demands that the courts must refrain from entering arenas not assigned to them by either the Constitution or Laws of Uganda. It cannot be overemphasised that it is necessary in a democracy that Courts refrain from entering into areas of disputes best suited for resolution by other Government agencies.â€
I thought University professors too, especially law professors, were bound by judicial decisions!
Mr. Onyango also asserts that the Executive has no right to comment on the work of the Judiciary. Whereas it is true the Judiciary enjoys both institutional and individual independence, the judicial power it exercises, according to Article 126 of our Constitution, is derived from the people and shall be exercised in the name of the people and in conformity with the law and with the values, norms and aspirations of the people. In a constitutional democracy like ours, accountability should be prized because democracy is based on the consent of the governed. Without accountability there cannot be consent. A judge must, therefore, account for the errors and consequences of his or her decision.
How then does the judiciary account for its actions? It does so through Parliament which retains the overall oversight function of governance generally and the Executive which acts as an intermediary on behalf of the people using instruments like Commissions of Inquiry or Tribunals. It is the Executive that initiates legislation in the form of Bills to Parliament. These Bills which, when passed, become Acts of Parliament form the basis for judicial decisions.
Secondly, the NRM, the NRA then and now the UPDF show zero-tolerance to extra-judicial killings and impunity. That is why the NRA/UPDF, through the court Martial, has executed 22 soldiers, and condemned 23 others to death although the sentences are not yet carried out. Many of you who are old like me know that this was unprecedented before the time of the NRM. All those killings that took place during the time of the British, Obote I, Amin, Obote II, Lutwa, and others, committed by soldiers of the Government, had never been punished decisively. If my information is inaccurate, please, correct me with examples.
This is how we have stabilised Uganda except for the North-Central area where we were fighting the Sudan Government using proxies and Karamoja. The army has finally brought these areas also, under control.
NRM basic principles
The five things the National Resistance Movement cannot and has never tolerated; which are, in our languages, emiziro (taboos); are: Extra-judicial killings, rape, defilement, threat to private property, and threat to the principal of one person one vote (democracy).
These should be a minimum in our struggle for the rule of law and the maintenance of law and order. There are other important problems in society like corruption and others. However, these will be solved once we have dealt with these five.
We resolved this in the bush and that is how the Movement became bonded with the people. It was 1983; we were in the bush, at a place called Semuto. Two of our soldiers killed two wanainchi because the soldiers were used to killing — that was the way in Uganda. Although we had told them and it was in our code, these fellows shot two wanainchi! In the bush, I was the ‘Chief Justice’ — sorry to admit my usurpation, but this is the job I was doing. We had our structure: there was the Disciplinary Committee at the Battalion level and then we had the High Command of which I was Chairman; and because of that I was the Chief Officer there. The two soldiers were tried for killing the other people first of all by the Unit Disciplinary Committee, who passed a death sentence on them because that is what our code says — you kill a person, you are dead yourself. Then it came to us, our High Command, where we had one young lawyer, Jim Muhwezi, who had studied law in your institutions here. In our meeting, he argued that this boy, the principal killer, known as Zabuloni, was not the one who killed; it was the alcohol in Zabuloni which killed the people. According to what Jim Muhwezi read in the school, this was diminished responsibility. So we asked him:
“Now, where do we find the alcohol? The alcohol is the one which you say killed these people, it was not Zabuloni; but Zabuloni had allowed himself to be a carrier of the alcohol. What do we do now?â€
This was very dangerous because much of this NRA initially were soldiers from the Western Region. These civilians who had died were Baganda; so the wanainchi were waiting for our decision. It is important to note that for the wanainchi, it is the law of Moses: “an eye for an eye, a tooth for a toothâ€. This idea that alcohol is within somebody and it is the one which has killed ... you are going to cause chaos. In our bush wisdom we rejected the theory of the alcohol; of course it was the truth that they were drunk, but then how do you balance the books? Two wanainchi have died; how do you avenge for somebody (okuhoora) on the one hand; but on the other hand also how do you deter others from behaving the same way? We, therefore, executed these two soldiers in public, at a place called Murule; and that is what really caused a bond between the National Resistance Army and the people. The Baganda people said:
“Bano balina amazima! These ones have justice; they are not like these other ones whom we have been seeing.â€
From then on, the people were saying: “Abaana baffe — our childrenâ€; not “these soldiersâ€.
Army code of conduct
Where we have the authority, it is zero-tolerance for the five areas mentioned above; which are, in the UPDF, no-go areas. This is the institutional view of the UPDF, not just my view; it is the view of the National Resistance Movement, of the population with whom we have been working.
Thirdly, the civilian courts have also done their part in dispensing justice to the killers and other wrong-doers. I know this because, as President, I normally get appeals for the prerogative of mercy for criminals that would have been condemned to death by all the tiers of our court system. I remember Rwakasisi, Kassim Obura, Nassur Abdalla and, recently, a woman called Mureeba, whom all court levels have condemned to death for killing her co-wife. I, therefore, salute you for that contribution to the fight against killers and wrong-doers.
Fourthly, however, as you know, there have been criticisms of the courts, as there has been for the Executive, by the service consumers, the public. In the integrity surveys carried out by the office of the Inspectorate of Government, the Judiciary was singled out as one of the most corrupt institutions in the country. In the report of 1998, the Judiciary was named as the second most corrupt state institution. In the 2003 Integrity Surveys, the Judiciary was ranked number nine in the whole nation. As Head of State, I follow procedure very closely. In spite of these negative integrity surveys, I have never rushed to cause changes in the Judiciary.
In fact, until recently, I had never altered or added to the recommendations of the Judicial Service Commission. I automatically appointed, without alteration, the nominees of the Judicial Service Commission irrespective of the whispers I would be getting that one is UPC, that is this or that. Somehow I had a naive belief that given what Ugandans went through, nobody would want to misuse this new chance. I hope I was not wrong.
Fifthly, the recent tension came from five factors: the erroneous ruling by Justice Edmond Sempa Lugayizi saying that bail was an automatic constitutional right for even people accused of very serious crimes; the fear by the State lawyers and security agencies that these suspects would use that bail to escape to Congo and be out of reach by the law as Kony has done; the turbulent history of the country bringing into Court systems that would not have ordinarily come to Court, for example, security agencies; possible over- reactions by government lawyers and security agencies; and suspicion of partisan tendencies by some of the Judicial officers.
I have analysed all these with the senior management. What happened at the High Court on the 1st of March 2007 should not have happened. We should work out mechanisms and procedures to ensure that the concerns of the stakeholders are addressed to ensure no impunity and no scuffles at court premises again.
The writer is the President of the Republic of Uganda
He presented the statement at the meeting with members of the Uganda Law Society last Friday
CLICK HERE to read The lawyers’ statement
Incidents at the High Court
I would like to make the following points based on my observations formed over the last 21 years as President of Uganda.
First, our Movement, the NRM, fought for and re-established the rule of law and the independence of the Judiciary as should have been the case. The 1995 Constitution enshrined this position in the Supreme law of the country.
I have read the article by Oloka-Onyango in The New Vision of 14th March 2007 titled: “President Museveni wrong on the Judiciary.†He claims that whereas it was correct for me to say that the independence of the Judiciary guaranteed by the Constitution is fully respected and strictly followed by the Executive, it was erroneous of me to add that similar respect must be accorded to the Executive in its exercise of its duties. What Mr. Onyango is propagating is the view that the Judiciary should not respect the Executive in the latter’s exercise of its constitutional executive functions and that in fact the Judiciary can “legally ‘interfere’ with the work of the Executiveâ€! I am not a lawyer but it is obvious to me that this view is the exact antithesis of the tenets of the rule of law, the doctrine of separation of powers and democratic governance. Be that as it may, the correct Constitutional position has long been settled by constitutional jurisprudence and democratic practice in the democracies of this world. I am advised by our lawyers that in Uganda, the relationship between the Executive and the Judiciary and indeed the Legislature has received the highest judicial consideration by the Supreme Court in the Gen. Tinyefuza case of 1997. With regard to the principle that the Judiciary/Courts must respect the Executive and should not interfere in the constitutional mandate of the Executive, the Supreme Court stated, (Kanyeihamba JSC):
“The rule appears to be that courts have no jurisdiction over matters which are within the constitutional and legal powers of the legislature or the Executive ... Each of them (the three arms of Government) has its own field of operation with different characteristics and exclusivity and meant by the Constitution to exercise its powers independently. The doctrine of separation of powers demands that the courts must refrain from entering arenas not assigned to them by either the Constitution or Laws of Uganda. It cannot be overemphasised that it is necessary in a democracy that Courts refrain from entering into areas of disputes best suited for resolution by other Government agencies.â€
I thought University professors too, especially law professors, were bound by judicial decisions!
Mr. Onyango also asserts that the Executive has no right to comment on the work of the Judiciary. Whereas it is true the Judiciary enjoys both institutional and individual independence, the judicial power it exercises, according to Article 126 of our Constitution, is derived from the people and shall be exercised in the name of the people and in conformity with the law and with the values, norms and aspirations of the people. In a constitutional democracy like ours, accountability should be prized because democracy is based on the consent of the governed. Without accountability there cannot be consent. A judge must, therefore, account for the errors and consequences of his or her decision.
How then does the judiciary account for its actions? It does so through Parliament which retains the overall oversight function of governance generally and the Executive which acts as an intermediary on behalf of the people using instruments like Commissions of Inquiry or Tribunals. It is the Executive that initiates legislation in the form of Bills to Parliament. These Bills which, when passed, become Acts of Parliament form the basis for judicial decisions.
Secondly, the NRM, the NRA then and now the UPDF show zero-tolerance to extra-judicial killings and impunity. That is why the NRA/UPDF, through the court Martial, has executed 22 soldiers, and condemned 23 others to death although the sentences are not yet carried out. Many of you who are old like me know that this was unprecedented before the time of the NRM. All those killings that took place during the time of the British, Obote I, Amin, Obote II, Lutwa, and others, committed by soldiers of the Government, had never been punished decisively. If my information is inaccurate, please, correct me with examples.
This is how we have stabilised Uganda except for the North-Central area where we were fighting the Sudan Government using proxies and Karamoja. The army has finally brought these areas also, under control.
NRM basic principles
The five things the National Resistance Movement cannot and has never tolerated; which are, in our languages, emiziro (taboos); are: Extra-judicial killings, rape, defilement, threat to private property, and threat to the principal of one person one vote (democracy).
These should be a minimum in our struggle for the rule of law and the maintenance of law and order. There are other important problems in society like corruption and others. However, these will be solved once we have dealt with these five.
We resolved this in the bush and that is how the Movement became bonded with the people. It was 1983; we were in the bush, at a place called Semuto. Two of our soldiers killed two wanainchi because the soldiers were used to killing — that was the way in Uganda. Although we had told them and it was in our code, these fellows shot two wanainchi! In the bush, I was the ‘Chief Justice’ — sorry to admit my usurpation, but this is the job I was doing. We had our structure: there was the Disciplinary Committee at the Battalion level and then we had the High Command of which I was Chairman; and because of that I was the Chief Officer there. The two soldiers were tried for killing the other people first of all by the Unit Disciplinary Committee, who passed a death sentence on them because that is what our code says — you kill a person, you are dead yourself. Then it came to us, our High Command, where we had one young lawyer, Jim Muhwezi, who had studied law in your institutions here. In our meeting, he argued that this boy, the principal killer, known as Zabuloni, was not the one who killed; it was the alcohol in Zabuloni which killed the people. According to what Jim Muhwezi read in the school, this was diminished responsibility. So we asked him:
“Now, where do we find the alcohol? The alcohol is the one which you say killed these people, it was not Zabuloni; but Zabuloni had allowed himself to be a carrier of the alcohol. What do we do now?â€
This was very dangerous because much of this NRA initially were soldiers from the Western Region. These civilians who had died were Baganda; so the wanainchi were waiting for our decision. It is important to note that for the wanainchi, it is the law of Moses: “an eye for an eye, a tooth for a toothâ€. This idea that alcohol is within somebody and it is the one which has killed ... you are going to cause chaos. In our bush wisdom we rejected the theory of the alcohol; of course it was the truth that they were drunk, but then how do you balance the books? Two wanainchi have died; how do you avenge for somebody (okuhoora) on the one hand; but on the other hand also how do you deter others from behaving the same way? We, therefore, executed these two soldiers in public, at a place called Murule; and that is what really caused a bond between the National Resistance Army and the people. The Baganda people said:
“Bano balina amazima! These ones have justice; they are not like these other ones whom we have been seeing.â€
From then on, the people were saying: “Abaana baffe — our childrenâ€; not “these soldiersâ€.
Army code of conduct
Where we have the authority, it is zero-tolerance for the five areas mentioned above; which are, in the UPDF, no-go areas. This is the institutional view of the UPDF, not just my view; it is the view of the National Resistance Movement, of the population with whom we have been working.
Thirdly, the civilian courts have also done their part in dispensing justice to the killers and other wrong-doers. I know this because, as President, I normally get appeals for the prerogative of mercy for criminals that would have been condemned to death by all the tiers of our court system. I remember Rwakasisi, Kassim Obura, Nassur Abdalla and, recently, a woman called Mureeba, whom all court levels have condemned to death for killing her co-wife. I, therefore, salute you for that contribution to the fight against killers and wrong-doers.
Fourthly, however, as you know, there have been criticisms of the courts, as there has been for the Executive, by the service consumers, the public. In the integrity surveys carried out by the office of the Inspectorate of Government, the Judiciary was singled out as one of the most corrupt institutions in the country. In the report of 1998, the Judiciary was named as the second most corrupt state institution. In the 2003 Integrity Surveys, the Judiciary was ranked number nine in the whole nation. As Head of State, I follow procedure very closely. In spite of these negative integrity surveys, I have never rushed to cause changes in the Judiciary.
In fact, until recently, I had never altered or added to the recommendations of the Judicial Service Commission. I automatically appointed, without alteration, the nominees of the Judicial Service Commission irrespective of the whispers I would be getting that one is UPC, that is this or that. Somehow I had a naive belief that given what Ugandans went through, nobody would want to misuse this new chance. I hope I was not wrong.
Fifthly, the recent tension came from five factors: the erroneous ruling by Justice Edmond Sempa Lugayizi saying that bail was an automatic constitutional right for even people accused of very serious crimes; the fear by the State lawyers and security agencies that these suspects would use that bail to escape to Congo and be out of reach by the law as Kony has done; the turbulent history of the country bringing into Court systems that would not have ordinarily come to Court, for example, security agencies; possible over- reactions by government lawyers and security agencies; and suspicion of partisan tendencies by some of the Judicial officers.
I have analysed all these with the senior management. What happened at the High Court on the 1st of March 2007 should not have happened. We should work out mechanisms and procedures to ensure that the concerns of the stakeholders are addressed to ensure no impunity and no scuffles at court premises again.
The writer is the President of the Republic of Uganda
He presented the statement at the meeting with members of the Uganda Law Society last Friday
CLICK HERE to read The lawyers’ statement