Law don propose court empowerment law

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A law don from Makerere University School of Law has suggested that Parliament enacts a law enabling the Judiciary to enforce its decision to ensure compliance.

Dr Sylvie Namwase, a lecturer at Makerere University School of Law, argues that structural interdicts will enable the Judiciary to enforce its orders without interfering with the separation of powers.

“We cannot bury our heads in the sand when some of the court orders are being violated. Claims of separation of power will always be there, but what we need is respect for court orders, and to me, this requires a law on structural interdicts,” Namwase said.

Underscoring the importance of the law on structural interdicts, Namwase said it will safeguard the doctrine of separation of powers, which she argued acts as a bottleneck in the implementation of some of the court's orders.

“We need legislation on structural interdicts to ensure compliance with court orders,” Namwase said.

Structural interdict refers to a court order that compels someone to do something, and it acts as an exception to the doctrine of functus officio, which renders judges powerless in case after delivering their rulings.

Namwase shared the opinion during a breakfast meeting organised by the Network for Public Interest Lawyers (NETPIL) of Makerere University to unveil the study findings on the courts’ use of structural interdicts at Hotel Africana on Friday.

Namwase argued that some judicial officers are reluctant to pass rulings against the government because they are not sure whether they will be implemented, hence impacting the quality of decisions rendered.

“This is why I am saying that we need a proper legal anchoring on the separation of power or legal guidelines,” Namwase argued.

She said the law will enable the judiciary to apply structural interdicts in case the executive fails to implement the court decisions. 

Prima Kwagala, the executive director, Women’s Probono Initiative, moderated the thrilling panel discussion on the matter.

Citing the Michael Kabaziguruka case on the trial of civilians in the army court, Prof. Christopher Mbazira, a founding member of NETPIL, said lawyers should hold the courts by the hand to help them cross the road in the absence of the zebra-crossing.

“I think in the Kabaziguruka case; the court should have issued a structural interdict. As lawyers, we should hold the courts by the hand to help them cross the road in the absence of the zebra-crossing. Therefore, we need to allocate enough time on the subject of remedies from the stage of drafting the pleadings,” Mbazira argued.

While some people have filed for contempt of court to ensure compliance with the court orders, Mbazira said it has not been effective in some cases.

“I believe it is high time for the courts to oversee the implementation of their orders,” Mbazira argued.

Mbazira, however, warned against the pitfalls of judicialising society saying it may cause more harm than good.

“We need the judiciary, but let’s avoid judicialising society because sometimes we may end up frustrated,” Mbazira said.

Dr David Kabanda from the Centre for Food and Adequate Living Rights (CEFRONT), drawing from the Perez Mwase case, who was a victim of autism, a developmental disability caused by differences in the brain, said ensuring compliance with court orders requires the passion of the civil society to keep pushing.

“When we secured the ruling in our favour in this case, I can see there is a shift in Uganda, but I feel like it is civil society doing it,” Kabanda said.

Kabanda, however, said Uganda’s legal system is suffering from a foundational problem because the legal system is an alien to many.

“With all due respect, some of our judges find it difficult to do what they ought to do,” Kabanda said. 

City lawyer Michael Aboneka, citing the decision in the case of the Editors Guild against Uganda Communications Commission (UCC), underscored the need for Parliament to ensure that laws specify when action should be made.

“We sued UCC, and one of the biggest points is that there is no UCC tribunal. The defence by the government was that the law did not specify when the minister should appoint the tribunal.

Unfortunately, the court agreed with the government, and this makes enforcement very difficult,” Aboneka said.

Aboneka equally agreed with Namwase on the need to enact a law on structural interdicts.

Sarah Kasande, the head of Office of the International Centre for Transitional Justice (ICTJ) in Uganda, said while she agrees with the idea of a legislation on structural interdicts remarked that ensuring compliance with the court orders requires a collaborative approach.

NETPIL executive director, Dr James Nkuubi, said they intend to have an engagement with the research department of the Judiciary to see how the findings can be implemented.

Using both critical legal analysis, structural interviews and case studies, the study recommends that courts depart from the usual mechanism and become monitors of their own decisions as done in several other jurisdictions.