The Role of the Ugandan Courts in the 2006 Elections:
The Significance of Local and International Support for Judicial Independence
By
Dean E. McHenry, Jr.
Claremont Graduate Unversity
A paper prepared for delivery at the Annual Meeting of the African Studies
Association, San Francisco, November 16-19, 2006
The Role of the Ugandan Courts in the 2006 Elections:
The Significance of Local and International Support for Judicial Independence
By
Dean E. McHenry, Jr.
Claremont Graduate Unversity
From thin air they came, bedecked chameleon in black camouflage.
Like a swarm of angry wasps, the praetorian guard descended on the holy ground
their ferocious fangs unfurled, their vicious sting darting-ready to strike.
Warlike, they came: wearing the bellicose face of terror, the malevolent mask of horror.
Wildlike, they charged: wielding awesome weapons of war:
AK-47s cocked, ready to discharge the crackling cartridge;
Uzi guns waving ominously in the air, ready to vomit their lethal venom.
With wrath and fury, they came: their hapless prey to snatch.
They laid siege to the fortress of justice.
Like warmongers, they darted here and they darted there:
their prey to seize and abduct.
They turned the Temple of serenity into a theatre of war.
They transformed the shrine of refuge, into a treacherous den of vipers!
The prisoner on trail, seeking justice from the Temple,
they sought to pick and to pluck
from the very arms of the goddess of the Temple.1
(The first two stanzas of a poem by Justice James Ogoola on
the invasion of the High Court by a government para-military
force on November 16, 2005)
Introduction
In this paper we seek to accomplish two tasks: (1) to describe the courts’ involvement in
the 2006 Uganda elections, and, (2), to account for the role they played. The election was
heralded as “transitional” because it marked, formally, a change from a one-party to a
multi-party system. Nevertheless, the incumbent government, controlled by the National
Resistance Movement (NRM), employed a variety of tactics that appear to have been
detrimental to a democratic transition. One of those tactics was to try to use the courts to
gain an electoral advantage. This effort was met by a judiciary that was concerned about
establishing the principle of judicial independence. Thus, the 2006 elections in Uganda
may be viewed as involving two intertwined struggles: One was the struggle over who
would control the government, while the other was the struggle over who would control
the judiciary.
The struggle over control of the judiciary pitted institutions of quite different strengths.
The NRM government was being challenged by a relatively small group of judges most
of whom seemed convinced that judicial independence should be established. The
explanation we seek is the answer to the question: “Why were the justices willing and
2
able to challenge the government at such an early stage in the democratization process?”
Our answer is two-fold: First, they received considerable support from local and
international non-governmental organizations and foreign governments. Second, the
courts’ defiance of the government in asserting judicial independence was sufficiently
constrained so that it did not seriously threaten the National Resistance MovementOrganization (NRM-O) or its government.
Although the courts’ actions during the 2006 elections may have contributed more to
fostering the principle of judicial independence than undermining it, the principle remains
contentious. One reason is that adjudication of disputes is not confined to those working
within the court system but extends to institutions that are a part of the executive and
legislative branches of government. In other words, the independence of adjudicating
bodies cannot be gauged simply by looking at the court’s behavior because the court does
not have a monopoly.
We will approach the study in five sections: The first will provide context, i.e., we will
describe briefly the organization of the judiciary, prior instances in which the courts had
challenged the government, and, the nature of the judiciary’s involvement in events
leading up to the election campaign; the second will provide a summary of the outcome
of the 2006 elections; the third will provide a description of the involvement of the courts
in the multi-party election for the President and Parliament held on February 23, 2006;
the fourth will provide an explanation for the role of the judiciary in the election; and, the
fifth will provide, in conclusion, an assessment of the impact of the court’s actions on the
establishment of judicial independence and democratization in Uganda.
Section I: The Context
The Courts
Although most court cases are handled by the Magistrates and Local Council Courts, the
major players in the struggle over judicial independence in Uganda and the focus of this
study are the Supreme Court, the Court of Appeal when it sits as the Constitutional Court,
and the High Court. The Supreme, Constitutional and High Court are formally
recognized as the highest courts in the 1995 Constitution.2
Judges on these courts are appointed by the President on the advice of the Judicial
Services Commission. To be appointed a Judge of the Supreme Court, 15 years of
judicial experience is required, while to be appointed a judge of the High Court, 10 years
is sufficient. The President’s cabinet has proposed that these be reduced to 10 and 7
years, respectively. The proposal has been justified on the grounds that it is needed in
order to increase the pool of potential judges who might be brought in to reduce the
backlog of cases, though one opponent has suggested its aim may be to bring in “a new
team of judges loyal to Museveni.3 The President, on the advice of the Judicial Services
Commission, has the power to remove judges, too. 4
3
Although there are other important adjudicating bodies, such the Inspector General of
Government (IGG), parliament’s Public Accounts Committee, and the General Court
Martial (GCM), the primary focus of this study is on the three higher courts formally
recognized in the Constitution. The other bodies are considered only when they affect
the role of the Supreme, Constitutional and High Court in the 2006 elections. The most
important example of the influence of the other adjudicating bodies in the elections was
the executive’s use of the GCM when it did not get what it wanted from the regular
courts in the weeks preceding the 2006 election.
The Independence of the Courts
The independence of these courts is guaranteed by Article 128 (1) of the 1995
Constitution.5 In the past, the courts have asserted that independence in three ways: By
ruling unconstitutional a variety of Acts or parts of Acts, by convicting political leaders
of crimes, and by their rulings on election petitions.
1. Rulings Acts unconstitutional
First, among the significant Acts ruled unconstitutional by the Constitutional Court are
the following:
•
The Referendum and Other Provisions Act, 1999 was declared unconstitutional
by the Constitutional Court on August 10, 2000. The Act had been passed on July
1, 1999 to permit a referendum on the type of political system that Uganda should
adopt. On July 23, 1999, the Constitutional Court rejected a challenge to the law,
but the Supreme Court overruled the rejection and sent the matter back to the
Constitutional Court for reconsideration. That reconsideration led to the Act
being declared unconstitutional.
•
Sections 18, 19 and 21 of the Political Parties and Organisations Act of 2002 were
ruled unconstitutional by the Constitutional Court on March 21, 2003.
•
The Constitutional (Amendment) Act of 2000 was deemed unconstitutional by the
Supreme Court on January 29, 2004, overruling the Constitutional Court’s prior
decision. This Act was passed on August 31, 2000 to legalize the referendum held
on June 29, 2000.
•
Section 50 of the Penal Act banning “false news” was ruled unconstitutional by
the Supreme Court on February 11, 2004 in another decision overruling the
Constitutional Court.
•
Some provisions of the Divorce Act were ruled unconstitutional by the
Constitutional Court on March 9, 2004.
•
Sections 19(1), 20(1) and 35(b) and (d) of the Leadership Code Act of 2002 were
ruled unconstitutional by the Constitutional Court on March 29, 2004.
4
•
The Referendum (Political Systems) Act of 2000 was ruled unconstitutional and
the referendum in valid by the Constitutional Court on June 25, 2004. On appeal,
the Supreme Court ruled the Act unconstitutional, too, but the referendum valid
on September 2, 2004.
Clearly, the courts were establishing their independence through most of these actions,
but time and again they made sure that the challenge would not change the status quo
significantly. For example, although the Constitutional Court ruled the Referendum and
Other Provisions Act, 1999 was unconstitutional, the referendum had taken place in
accord with other legislation so the decision was moot. And, although the Constitutional
Court ruled that the Referendum (Political Systems) Act of 2000 and the referendum held
under it were unconstitutional, the Supreme Court agreed with the former, but accepted
the referendum as valid. So, independence was being demonstrated, but the judiciary
appeared to be making sure the decisions did not significantly challenge those who held
political power.
2. Convicting political leaders of crimes
Second, the courts have convicted numerous parliamentary and party leaders for failing
to pay debts or dependent support, for having won election using illegal means, or for
having violated a variety of other laws.6 Numerous examples might be given, but a
couple of cases illustrate this point.
•
Grade One Magistrate Godfrey Kawesa convicted the State Minister for
Information and Communication Technology, Alintuma Nsambu, for issuing a
Shs. 1.6m check to Women Enterprise Association of Rakai (WEAR) that
bounced. He was sentenced to a one-year jail term or a fine of Shs. 3.2m.7 The
Minister responded by claiming that the magistrate asked for a bribe. An internal
investigation by the Chief Registrar Courts of Judicature, Mr. Lawrence Gidudu,
found the “unsubstantiated and baseless,,,,’”8 The Chief Registrar’s investigation
was prompted by an investigation initiated by Dr James Nsaba Buturo, the
Minister of Ethics and Integrity. The Principal Judge, Mr James Ogoola and the
President of the Uganda Law Society condemned the government probe, “calling
it ‘an interference by the executive in the work of the judiciary.’”9
•
The High Court ruled that Teddy Seezi Cheeye, the Director of Economic Affairs
and Monitoring at the Internal Security Organisation (ISO) had failed to pay
US$21,000 in back rent and provided the owner with a court order to evict him.
In January of 2006, the matter was reported to the Director of the ISO who said
the matter was a civil one so Mr. Cheeye should be dealt with directly. 10 In
February, when the police and court bailiffs came to evict him, he drew a pistol
and they “fled for dear life.” 11 He was reported to have said: “‘I am a
presidential appointee, it is only the President who can order me out….’” 12 In
March, the Commercial Court sent him to Luzira Prison until his debt and court
costs were paid on another matter. He had accumulated a debt of Shs. 14.9 m to
5
Darki Business Systems which had supplied him with computers, accessories and
maintenance.13
•
By early November of 2006, the High Court had overturned on petition the
election of six members of the NRM-O elected to parliament in the February 23,
2006 elections. These included the nullification of the election of the Minister of
Information and National Guidance and Third Deputy Prime Minister, Kirunda
Kivejinja.14
3. Cautioning politicians through election rulings
When Kizza Besigye petitioned to have the 2001 presidential election results overturned
by the Supreme Court, the court refused. But, two of the five votes favored overturning
the results and a majority of the judges agreed that there were significant irregularities in
the election.15 The clear message was that individual members of the court, and the court
itself on some issues, may act with a degree of independence of the executive and
legislative “branches” of government.
That independence was less evident in the actions of the court before and after the July
28, 2005 referendum—but, the circumstances made the court’s action of limited
significance in gauging judicial independence. The purpose of the referendum was to
allow citizens to approve or disprove the shift from a movement to a multi-party system.
Petitions were raised to prevent it from taking place and to invalidate it after it took place.
Before it took place, in Constitutional Petition No. 4 of 2005, the petitioners contended
that only parliament could repeal the ban on multiple-political parties. On July 14th, the
Constitutional Court on a 3-2 vote ruled that since the 2000 referendum had endorsed the
Movement system, another referendum to change the system was valid.16
The following day the Deputy Chief Justice, Laetitia Mukasa Kikonyogo, wrote an
internal memorandum informing Justices Amos Twinomujuni and Mpagi Bhigeine who
were in the minority that they would not be allowed to write minority opinions.17 The
order caused some controversy. The petitioners asked Chief Justice Odoki to probe the
suppression of the minority opinions, but the Chief Registrar of the Courts, Lawrence
Gidudu, said the Deputy Chief Justice had the power to issue the order.18
When the case was appealed to the Supreme Court, the Court could not act on the matter
because the President had not appointed a replacement for Justice C.M. Kato, who had
retired more than two years previously. A ruling required that seven justices adjudicate
such an issue.19 Chief Justice Odoki said that “‘We cannot do justice through
unconstitutional means.’”20 The opposition claimed that Museveni deliberately avoided
making the appointment.21
After the referendum was held, additional petitions were filed to overturn it, but they
were all rejected. The petitions were peculiar in that those who filed them wanted a
multi-party system, the formal objective the referendum the petitions sought to block or
overturn.
6
The Use of the Courts by the Executive
Although the judiciary made efforts to make decisions independent of the wishes of the
executive, the executive still was able to use the judiciary for its own purposes. This
apparent contradiction was a recurrent phenomenon throughout the presidential and
parliamentary elections of 2006. No matter how independent the decision-making of the
justices, the courts could be used as tools of the executive. Illustrative of this fact was the
case of Ronald Reagan Okumu and Michael Nyeko Ocula. Okumu was the deputy
executive co-ordinator of FDC and both were MPs. They were arrested on April 20,
2005 and charged with the February 12, 2002 killing of Alfred Bongomin. Okumu
characterized their arrest and the charges against them “as political manoeuvre by the
Movement to intimidate the opposition.”22
The magistrate before whom they were taken said that he did not have jurisdiction in the
case, but sent them to Luzira prison until the next hearing on May 6th.23 Writing on
behalf of the Foundation for Human Rights Initiative (FHRI), Sophie Kyagulanyi, noted:
“‘We hope this is not an emerging practice to silence those in the opposition during this
crucial transition period.’”24 It was not until May 16, 2005 that the two MPs finally were
committed for trial by the magistrate “in the next convenient criminal session of the High
Court.” 25 An observer noted: “There are normally two criminal sessions a year and the
first one is ongoing, implying that the accused will be tried in the next one, close to the
end of the year.”26 Nevertheless, the next day Justice Edmund Sempa Lugayizi granted
them bail.27
The case was finally dismissed by Justice Katutsi on January 9, 2006. According to
Human Rights Watch,
…the High Court hearing the murder case against these elected officials, harshly
reprimanded the prosecution, holding, ‘The evidence tendered by the prosecution
shows clearly that it is a crude and amateur attempt at creative work.’ The
presiding judge called into question the credibility and motivation of the state in
bringing the case….28
Thus, when the campaign for the 2006 elections began in late 2005, the courts had a
record of independence from the executive, though that independence never seriously
threatened the power of those who controlled the executive. At the same time,
paradoxically, President Museveni found the courts might be used to achieve the
executive’s ends.
Section II: A Summary of the 2006 Elections
A brief summary of the events in the campaign preceding the elections is provided in
Table #1:
Table #1
7
Chronology of Key Events
Date
July 28, 2005
October 26, 2005
November 14, 2005
November 16, 2005
November 18, 2005
November 24, 2005
November 26, 2005
November 25, 2005
November 28, 2005
December 14, 2005
January 2, 2006
January 6, 2006
January 31, 2006
February 3, 2006
February 15, 2006
February 20, 2006
February 23, 2006
March 6, 2006
April 6, 2006
May 12, 2006
Event
Referendum on multi-party system and lifting of two-term limit
for President.
Col. Besigye returns to Uganda from South Africa
Col. Besigye arrested, charged with rape, and, along with 22
others treason. He was put in Luzira Prison
High Court granted bail to 14 of the co-accused facing treason
trial, but a siege by the so-called Black Mamba para-military unit
caused them to return to prison rather than be arrested by the unit.
Judge Lugayizi withdrew from the treason case in the High Court
“citing military interference.”29 The 14 appeared before the
General Court Martial (GCM) and were charged with treason.
Col. Besigye charged with terrorism and unlawful possession of
firearms in a GCM.
The High Court issues a “stay” in the GCM of Besigye.
Col. Besigye granted bail in High Court but returned to Luzira
prison under orders of the GCM.
Lawyers go on one-day strike protesting against the Black
Mamba siege of the High Court.
Besigye nominated by the FDC as its presidential candidate
Besigye released on interim bail; rape trial starts.
Treason trial starts in High Court.
Constitutional Court ruled on a petition filed by the Uganda Law
Society that the Army Court Marshal had no powers to try
Besigye in a treason trial. This has been appealed by the AG to
the Supreme Court.
Judge Katutsi stepped down from hearing the treason case in the
High Court for health reasons and Justice Vincent Kagaba
replaces him.
Treason and concealing treason case against Besigye and 22
others adjourned by the High Court until March 15, 2006.
Constitutional Court hearing the government’s appeal of the bail,
adjourned until March 21, 2006.
Election for Parliament and President held
Besigye aquitted of rape by High Court
Supreme Court by a 4 to 3 vote rejected Col. Besigye’s petition to
have Museveni’s election overturned.
Museveni sworn in as President
The result of the February 23rd elections was the overwhelming victory of the National
Resistance Movement (NRM). The results of the Presidential and Parliamentary
elections are given in Tables #2 and #3:
8
Table #2
Presidential Election Results
Presidential Candidate
Yoweri Museveni
(NRM-O)
Kizza Besigye
(FDC)
Ssebaana Kizito
(DP)
Abed Bwanika
(INDEPENDENT)
Miria Obote
(UPC)
Number of Votes
4,109,449
Percentage of Votes
59.26%
2,592,954
37.39%
109,583
1.58%
65,874
0.95%
57,071
0.82%
Source: African Elections Database, http://africanelections.tripod.com/ug.html Accessed
October 11, 2006.
Table #3
Parliamentary Election Results
Party
National Resistance Movement (NRM)
Forum for Democratic Change (FDC)
Uganda People’s Congress (UPC)
Democratic Party (DP)
Conservative Party (CP)
Justice Forum (JEEMA)
Independents
Vacant
Number of Seats
191
37
9
8
1
1
36
1
Source: African Elections Database, http://africanelections.tripod.com/ug.html Accessed
October 11, 2006.
The chronology of events and the election returns provide only a glimpse of the process
and result of that process. The role played by the courts in the process and the outcome
are addressed in Section III.
Section III: The Involvement of the Judiciary in the Election
Although the starting point of the election period may be assigned to the time of many
different events, the return from South Africa of Col. Kizza Besigye to Uganda is
frequently identified as the beginning of the campaign. Besigye had left Uganda on
August 17, 2001. He has summarized the reasons for his exile as follows:
9
My right to free movement had been blatantly violated; an unlawful round-theclock close surveillance was weaved around me; there was a broad daylight
attempted kidnap on me at Lukaya in Masaka District; there were numerous
statements by senior Government officials saying that I was involved in terrorist
and treasonable activities, etc. There was no doubt in my mind that my arrest and
detention or worse was eminent.30
On the eve of his return, President Museveni circulated a letter to his cabinet indicating
the likelihood that Besigye would be arrested should he come back.31 Besigye said that
ever since he declared that he would run against Museveni in 2000, it was clear to him
that Museveni’s intent was “to use or abuse the legal process for the purpose of
eliminating a legitimate political opponent.”32 Besigye was aware, too, that on the eve of
the return of former President Milton Obote earlier that year on May 27, 2005, Museveni
announced that Obote would be tried in court for the death of people in Luweero. Obote,
therefore, did not return as planned and died in Zambia on October 10, 2005. Besigye
said “when they said he is returning in a coffin, Museveni gave him a state funeral and
paid him respects! The only explanation for the change in position is that Obote in a
casket is no longer a threat.”33
So, why did Besigye return? He said that “the FDC believed his presence was necessary
for ‘the internal structuring of the party and in the national mobilization effort for
democratic change.’”34 In addition, his name was not on the new voters roll. A senior
official in the FDC thought his name “was deliberately deleted in order to deny him
participation in the presidential race.” 35 In order to be a presidential candidate, he had to
be a registered voter. And, voter registration was to close on October 28, 2005. He
arrived back on October 26, 2005, just two days before registration closed.
His return was the start not only of the formal campaign, but also of continuous efforts by
Museveni and the NRM-O to keep Kizza Besigye successfully competing in the 2006
elections. Regardless of efforts by the judiciary to maintain its independence of the
executive, the courts were used as a very important tool of the NRM-O to maintain its
control of the Presidency and to increase its control of Parliament in Uganda. As the
Ugandan journalist Timothy Kalyegira said “…the idea of the leading contender being
constantly paraded before the courts, both legal and public opinion, made the 2006
election unprecedented in Uganda.”36
The role of the courts may be described through the series of events during the campaign
in which it was involved. Three weeks after his return, Besigye was arrested.
Arrest of Besigye
On November 14, 2005, he was charged with treason, concealment of treason, and rape.
The treason accusation was based upon the accusation that he, along with 22 others, made
contacts with the Lord’s Resistance Army which had been fighting the regime in the
northern part of the country and helped recruit for something called the People’s
10
Redemption Army which was organized across the border in the Congo. The
concealment charge was that he did not report all this to the government. 37 The rape
charge was the claim that in October/November of 1997 he raped Joanita Kyakuwa.38 He
was sent to Luzira prison where the other 22 “suspects” were being held.
“Siege” of High Court by the “Black Mambas”
Two days later, on November 16th, 14 of the 22 charged with treason along with Besigye
were brought to the High Court and Justice Edmond Ssempa Lugayizi granted them bail.
He had just started considering Besigye’s bail application when the court was surrounded
by a government para-military group that came to be known as the Black Mambas. 39
Apparently, they were going to re-arrest those who received bail. Rather than risk arrest
by the military, those given bail simply returned to Luzira prison. 40
The High Court Judge James Ogoola, referred to the incident “as ‘a despicable act’ and a
‘rape of the judiciary.’”41 He has said of attacks on the judiciary,
The ugliest and most lethal of these attacks was the infamous ‘Siege of the High
Court’ by the Black Mambas brigade – a band of an elite detachment of military
men… armed with Uzi and AK 47/guns which they wielded with reckless
abandon on the Court’s premises during the hearing of a live case by a High Court
Judge….The siege constituted a very grave and heinous violation of the twin
principles of the Rule of Law and Judicial Independence. It sent a chilling feeling
down the spine of the Judiciary, and left the legal fraternity and the general public
agape with disbelief and wonderment.42
The action incensed not only the judiciary, but many others. To some, it brought back
memories of the September 1972 abduction of Chief Justice Ben Kiwanuka during the
rule of Idi Amin who was later killed.43 The Uganda journalist Timothy Kalyegira said
the invasion of the High Court was “symbolically starting a major war between the army
and judiciary over whose law and dictum takes precedence over the other. The legal
fraternity has had to come out indignant and angry to defend its turf while army leaders
have hit back.”44 As a consequence of the invasion, the presiding Justice, Edmond
Lugayizi withdrew from the case.
There was a variety of explanations given for the action by this para-military group. One
was that they had a warrant from the General Court Martial (GCM) to keep them
imprisoned.45 Presidential legal aid, Fox Odoi, said of the “siege:” “‘It is not a matter
anybody should apologise for. There was a good cause and people who blame
government are sentimental.’ He added: ‘What if, for instance, a bomb is planted in a
church? Are you going to say that the church is preserved by God? You should give the
managers of the state the benefit of doubt.’”46 General David Tinyefuza, another
presidential aid, objected to Justice Ogoola’s characterization of the Black Mambas’
action as the rape and defilement of the temple of Justice. He said, “That is rubbish.
How can we rape and defile something that we brought back?….You mean our army has
raped that court by trying to arrest thugs who throw bombs?’”47 A group of journalists
11
said the army “has strenuously defended the siege of the high court, insisting that there
was an imminent terrorist attack.”48
A few days later, lawyers across the country went on a one day strike protesting the siege.
Dressed in their legal robes, they presented a petition to the Chief Justice, Benjamin
Odoki that was copied to President Yoweri Museveni and the Speaker of Parliament,
Edward Ssekandi. A report on the event said:
The lawyers demanded that the Executive unequivocally condemns the acts of
intimidation, threats and attacks and apologise to the Judiciary, the Bar and
citizens of Uganda….They also said the Government should appoint an
independent commission of inquiry of national and international jurists to
investigate the incidences, including assaults on the High Court premises that took
place on November 16….The lawyers also demanded that the Government makes
an unequivocal undertaking to implement the findings of the commission of
inquiry and to bring the perpetrators to justice….They further demanded that the
Executive takes immediate and deliberate actions to desist from further
interference with the functioning of the Judiciary and scrupulously discharge its
constitutional obligation to uphold the rule of law.49
The lawyers said that the assault “…constituted the most naked and grotesque violation
of the twin doctrines of the rule of law and independence of the judiciary.”50 The head of
the Uganda Law Society (ULS), Moses Adriko, said the organization “…had constituted
a Judiciary Rule of Law Watch Committee to monitor and document attacks or actions by
any institution of Government or individuals, which undermine or are likely to undermine
the independence and proper functioning of the Judiciary and advise Government on who
the perpetrators are.” 51 Adriko called, also, for the resignation of the Attorney General,
Dr. Khiddu Makubuya, because he had “…failed to ensure adherence by government to
various international covenants to which Uganda is a signatory.”52
General Court Martial (GCM) Charges
Two days after the “siege,” on November 18th, Besigye and 18 others were brought
before the military General Court Martial.53 On November 24th, the GCM levied charges
of terrorism and weapons possession against Besigye and others. Human Rights Watch
explained what was happening as follows:
When it appeared that Besigye and his twenty-two co-defendants in the treason
case might be released on bail by the civilian court, the UPDF prosecutor, in an
apparent attempt to prevent Besigye’s candidacy, brought terrorism charges
against him (and his twenty-two-co-defendants in the treason trial) on November
24 in the General Court Martial (GCM). These accusations appeared intended at
a minimum to keep Dr. Besigye confined for the duration of the campaign.54
Two of Besigye’s lawyers, Caleb Alaka and Erias Lukwago, appeared before the GCM in
his stead. When they raised objections to the procedures of the chairman, Gen. Elly
12
Tumwine, they were arrested for contempt of court, jailed and fined Shs. 1000. Gen.
Tumwine also threw out of the court the Danish Envoy, Mr Stig Berlying, even though he
had a letter of permission from the Minister of Internal Affairs. Tumwine said, “The
Minister of Internal Affairs is not the one in charge of this court martial.” 55
The conflict between Tumwine’s GCM and the civilian courts over jurisdiction in the
Besigye case persisted throughout the campaign.
Court Bail Hearing for Besigye
On the following day, November 25, 2005, Principal Judge James Ogoola granted
Besigye temporary bail on the rape and treason charges. But, he was not freed. The
army re-arrested him and sent him back to Luzira Prison. Its justification was that he was
being held because of the two charges brought by the GCM. 56
High Court Stay of GCM
The following day, on November 26, the High Court ordered a stay of proceedings in the
court martial pending the review of the court martial’s jurisdiction by the Constitutional
Court, where the Uganda Law Society had brought a public interest petition seeking to
strike down the jurisdiction of the court martial over civilians in terrorism cases.57
The head of the GCM, General Tumwine, remained verbally defiant. On January 17,
2006, he “…declared while chairing the GCM that not even the Chief Justice can make
directives to govern the army court.”58 On January 31, a couple of hours before the
Constitutional Court ruled on the jurisdiction of the GCM over the Besigye case, he said:
“‘The GCM is not subject to the jurisdiction of the High Court. I repeat, the GCM is not
subject to the jurisdiction of the High Court. Not even the chief justice can make
regulations to govern the GCM….’”59 Clearly, he wanted to proceed with the Besigye
trial.
Challenges to Besigye’s Nomination as FDC Presidential Candidate
On December 14, 2005, while Besigye remained imprisoned at Luzira, the Electoral
Commission (EC) allowed him to become the FDC presidential candidate. The EC’s
decision was challenged by Asol Kabagambe and Abdullah Faraj, both of whom claimed
to be teachers though Besigye’s lawyers contended “…were actually security operatives
attached to the State House and the Chieftaincy of Military Intelligence.”60 The Attorney
General (AG) filed a petition with the same objective. On February 14, 2006, the two
petitions were combined.61 Three days later, on February 17, 2006, the court, led by
Deputy Chief Justice Laetitia Mukasa Kikonyogo, ruled unanimously that the petition
had no merit. 62
One other petition was filed to block Besigye’s candidacy. It claimed he did not meet the
educational standard required of a candidate. Besigye had obtained a medical degree
from Uganda’s most prestigious institution of higher education, Makerere University. As
13
one journalist observed, “The point of these petitions and related manoeuvres is not so
much that the government expects to halt the Besigye candidature completely….Rather it
is to disorganize the man and slow him down as the campaigns wind down.”63
High Court’s Release of Besigye on Interim Bail January 2, 2006
On January 2, 2006 the High Court in Kampala ordered that Col. Dr. Kizza Besigye be
released from prison. Justice John Bosco Katusi ruled that the prison authorities had no
right to continue to hold him in Luzira Prison after the High Court granted him interim
bail.64
The state’s response was ambiguous: The Head of the government’s Media Centre,
Robert Kabushenga, said “that the release of Besigye by the court decision shows that
government respects the judiciary.” 65 At the same time, the government appealed the
decision to the Constitutional Court.66
High Court Ruling on Besigye Rape Charge
Basigye’s trial on the rape charge began on January 4, 2006 and was presided over by
Justice John Bosco Katutsi. In the course of the trial, it was revealed that the alleged
victim, Joanita Kyakuwa, had been “under State House Protection and comfort since
2001” and that one of the key witnesses, Aisha Nakiguli, “had been provided with a
house by the CID [Criminal Investigation Department] and had a business set up for her
by the director of the same department….”67 The assessors unanimously urged the judge
to acquit Basigye on February 1, 2006, but did not deliver his verdict until March 7,
2006.
In his verdict he dismissed the case, arguing that the prosecution has “’dismally failed’”
to prove its case.68 And, he said that “‘The best way to describe the way the
investigations were conducted and carried out is that it was ‘crude and amateurish’ and
betrays the intentions behind this case.’”69
The Case of Winnie Byanyima and Jack Sabiiti
Like the Okumu-Ocula case that began well before the start of the campaign, two other
leaders of FDC were taken to court by the Ugandan executive. On January 24, 2006 they
were charged with giving false information and criminal libel. Around December 24,
2005, Winnie Byanyima, Besigye’s wife, and Jack Sabiiti, the FDC treasurer, had written
to Chief Justice Benjamin Odoki asking for an investigation into the alleged bribery of
Justice Laetitia Mukasa-Kikonyongo and Justice Remmy Kasule by the government to
get them to deny bail to Besigye. The letter was leaked to the press and published on
December 31, 2005. 70
On January 14, 2006, Museveni called the Byanyima and Sabiiti allegations “…‘blatant
lies’ and ’concoctions’ directed against him. ‘Personally, I can never be involved in
bribing judges because it is not how I work….”71 The case was postponed several times.
14
On April 24, 2006, the two justices filed suits against them for libel and slander. The
cases are still pending.
The Hearing of the Treason Trial
On February 3, 2006, Principal Judge James Ogoola appointed High Court Justice
Vincent Kagaba to take over the treason trial from Justice John Bosco Katutsi. In
addition to “consuming” several judges, Justice Ogoola said ‘Besigye’s octopus case has
also kept four registrars of the High Court busy.’”72 Katutsi cited health reasons, the fact
that he had presided over other Besigye cases, such as the rape trial, and unreasonable
“allegations that he would favor Besigye since they come from the same area of
Uganda.”73 Besigye attributed it to intimidation and said “‘With this kind of environment
that is full of intimidation, it is very hard for an independent judge to work
effectively.’”74
More than a year after it began, the case continues to be heard without resolution.
Constitutional Court Ruling on GCM Jurisdiction
On January 31, 2006, the Constitutional Court ruled by a vote of 4-1 on six issues raised
in Constitutional Petition No. 18 of 2005: that the acts of the security personnel, i.e., the
Black Mambas, at the High Court on November 16, 2005 and during and after the bail
application by Besigye were illegal; that the concurrent proceedings in the High Court
and the GCM violated the Constitution; that the trial of civilians by the Uganda People’s
Defence Forces (UPDF) was unconstitutional; that the joint trial of civilians and military
personnel was unconstitutional; that the trial of the accused before the GCM on charges
of terrorism whose penalty on conviction is death is unconstitutional; and that it was
unconstitutional for the GCM to try persons for the offence of terrorism for that was
solely triable by the High Court.75 But, aspects of the decision did not satisfy either the
petitioner or the respondent, so the matter was appealed to the Supreme Court.
1. Responses of the respondent and the petitioner
First, the state appealed the decision because it wanted the GCM proceedings against
Besigye to continue.
Second, the Uganda Law Society appealed the decision because the Court did not support
the general superiority of the High Court over the GCM.76 Human Rights Watch
observed that
Justice Laetitia Mukasa Kikonyongo, chair of the Constitutional Court, said in her
ruling that the earlier Constitutional Court ruling, Joseph Tumushabe v Attormey
General [Constitutional Court Petition No. 6 of 2003], upholding the supremacy
of the High Court, ‘was wrongly decided…The General Court Martial is
equivalent to the High Court in parallel systems.’77
15
And, the Constitutional Court supported her view by a vote of 3 to 2.
2. Responses of other interested parties
The Court’s decision elicited significant criticism from the executive. President
Museveni said, “‘The ruling of the Constitutional Court that the army can’t try civilians
with guns is something we can’t agree with. This means the methods we have been using
in Karamoja to court martial warriors with guns should be stopped. I don’t agree. The
government has appealed to the Supreme Court but we shall also fight it politically,’ he
said.”78 Even before Besigye’s return, he had expressed his pride in, and the advantages
of, the use of a court martial for solving problems faced by “the people.”
You all remember when people were being murdered in Kampala with impunity
by criminals. Most of the killers were criminals who had been released from jails
by the Courts! Using my authority as Commander-in-Chief of UPDF, I used a
section of the Armed Forces Law (NRA Statute of 1998, UPDF Act Chapter 305)
to defend the people. PAR This law says that even if somebody is a civilian but is
found with a piece of equipment ordinarily reserved for the army, he will be
treated as if he was a soldier and could, therefore, be tried by Court Martial. That
is how the people of Kampala were saved from criminal terrorism. I actually
“sidelined” part of the civilian Court system in order to save the people. The
purpose is to serve the people not to serve the Courts, the President or
Parliament.”79
The Coordinator of Security Services, General David Tinyefuza “has accused Ugandan
judges of siding with wrongdoers instead of helping the State get rid of terrorism.”80 He
justified the siege of the court on the grounds that “the government was also ‘on trial’
since public opinion was that Besigye was arrested on trumped up charges. He said there
was a plan for terrorists to disappear with his co-accused so that the case would simply
collapse.”81 He went on to say that “…there was a conspiracy to undermine the army
court and the whole institution of the army….the army would not accept that.”82 And, he
referred to the “neo-colonial” nature of the judicial system.83
Indeed, General Tumwine was even more defiant. On February 15, 2006, the armed
forces re-arrested 14 of the 22 alleged PRA suspects who had been granted bail as they
had on done the previous November.84 He claimed that “‘Our duty is to try suspects
brought forward by the state.’” He issued a summons to Begigye on March 1, “following
to the reinstatement of Besigye’s name on the charge sheet.” 85 The State Prosecutor,
Major Richard Asingura asked the GCM to put off the trial until the Supreme Court heard
the state’s appeal of the Constitutional Court’s decision. March 15, 2006 was set as the
start of the trial.86
The intransigence of General Tumwine led the Uganda Law Society President, Moses
Adriko, to say that his actions were “‘in contempt of the Constitutional Court.’” 87
Adriko said the Uganda Law Society had not filed such a charge because “‘who will
16
execute the order? Can our Uganda Police go and arrest Gen. Tumwine?’”88 Besigye’s
response was to say “‘It’s a very, very fundamental breach of the rule of law that an
institution of government, especially a military one, should so contemptuously refuse the
ruling of an honourable court.’”89 One of the two Besigye lawyers jailed for several
hours and convicted of contempt of court when he did not agree with Tumwine, Caleb
Alaka said “‘The GCM chairman is not above the law and he should be aware that he is
working under the 1995 Constitution. Article 1 and 2 provide that the Constitution is the
supreme law and that whoever abrogates it commits an offence of treason. So, what the
chairman is doing is overthrowing the Constitution, an act of high treason….’”90
The Ballot Box Charge against Besigye
On the day of the elction, Besigye was photographed with an open ballot box in his
hands. Besigye was charged with opening an unsealed ballot box. On March 21 he
recorded a statement at the Criminal Investigations Department. He told reporters: “‘I
came to the polling station to vote and then realized that the ballot box was in fact not
sealed….The lifting off of the lid was a demonstration to the electoral officials present
that the box was in fact not sealed….’ He said on realizing the anomaly, the electoral
officials apologized, found seals and placed them on the box.”91
Supreme Court Ruling on Besigye’s petition to have Museveni’s election
overturned, April 6, 2006
Besigye’s initial reactions to losing the elections appeared philosophical. In his first
press conference after the EC declared Museveni the winner, Besigye said that “‘We
expected it to happen. We expected, however, that our engagement would move the
process of democratization forward.’”92 Nevertheless, he appealed the results.
His petition and the outcome of his petition in 2006 was much like that in 2001. In 2001,
Besigye asked the Supreme Court on March 23, 2001 to rule that the results were invalid;
the court dismissed the petition on April 21, 2001. All the judges agreed that there were
many illegalities; two of the five conclude that they were of such a magnitude that the
results should be thrown out. Specifically, it ruled that: (1) the Election Commission did
not comply with provisions of the Presidential Elections Act; (2) the election was
conducted only partly in accord with the principles laid down in the Act; (3) “By a
majority of three to two, that it was not proved to the satisfaction of the Court that the
failure to comply with the provisions of, and principles laid down in, the said Act, as
found in the first and second issues, affected the result of the election in a substantial
manner;” and, (4) “By a majority of three to two, that no illegal practice, or other offence
under the said Act, was proved to the satisfaction of the Court, to have been committed in
connection with the said election, by the 1st Respondent [President Museveni]
personally, or with his knowledge and consent or approval.”93
In 2006, the Monitor summarized the decisions on the five issues raised in the petition
and the votes of the judges as follows:
17
Did the EC comply with the law?
Was the election Free and Fair?
Did malpractices affect results?
Is candidate Museveni innocent?
Should the elections be annulled?
No (7:0)
No (7:0)
Yes (4:3)
Yes (5:2)
No (4:3)94
Reactions to the verdicts were variable. The Deputy Attorney General, Adolf Mwesige
said the political implication of the judgment is: “’Democracy and the rule of law have
triumphed. Democracy and the rule of law are twins and they go together. The political
implications are that the courts have confirmed the will of the people.”95 An opposition
MP said “…he believes the judges made that ruling under fear of persecution from the
state. ‘The writing is clear on the wall. The judges insinuated that Besigye won but
feared the repercussions….’”96
Besigye rejected the Court’s decisions, much as the Ugandan government had rejected
many of the court decisions during the campaign. Yet, this time the tables were turned as
the government attacked Besigye for damaging an institution important to
democratization. An editorial in the state owned newspaper, the New Vision, said
“Besigye’s reaction to the verdict is unhealthy for both the FDC and Uganda. Rightly or
wrongly, the Supreme Court has made its decision. If Besigye rejects the authority of the
Supreme Court, he is in effect rejecting constitutionalism in Uganda.”97 A similar
criticism was expressed by a commentator who said “…FDC cannot cherry-pick the
court’s decision by deciding that the half that found significant infractions of the electoral
laws was right but the other half was so abominable that it has to be so vehemently
spurned.”98
The same commentator argued that “the court barked a little but nevertheless lets
sleeping dogs lie in terms of the big decision…annulment…. While this might be
controversial to some, I believe it is the mark of a legally wise court that understands the
importance, extent and fragility of its institutional role.”99 In other words, too much
independence of the judiciary from the executive at this time may be destructive of the
long term project of judicial independence.
Adjudication of Election Petitions for Other Offices
Although much less significant than Besigye’s appeal of the presidential election, the
courts were involved in adjudicating numerous election petitions submitted by candidates
in parliamentary and local council contests. According to one estimate, there were 68
such petitions about 75% of which had been dealt with by mid-October, 2006. 100
Eighteen judges were reported to have been involved in the adjudication. 101
The grounds for the petitions were many, including numerous violations of the standards
of free and fair elections by the Electoral Commission. One MP, Theodoro Sekikubo,
came to the hearing of the election petition of another candidate. He claimed that his
own election was illegitimate because of the failure of the Election Commission.
Nevertheless, he claimed that he was “…validly declared winner because no one
18
challenged the results of his election.” His presence at the court hearing was “…to show
the shortcomings in the entire exercise conducted by the Electoral Commission (EC).”102
Some petitions succeeded when it was found that the academic qualifications were not
met. 103 In one case, the High Court judge ruled that a candidate with a degree in Public
Administration did not meet the educational standards because it had been obtained from
an on-line university in the U.S., Rochville University, in only five days based on “life
experiences.” 104 Some petitions were thrown out on technicalities. Jude Mbabaali’s
petition against the Speaker of the National Assembly, Mr. Edward Sekandi, was denied
because the election petition papers were served on Sekandi’s secretary rather than
Sekandi himself. 105 Other petitions claimed that those elected had not resigned their
public positions 90 days before the elections as required by law. 106
There seems to be no clear trend indicating favor to the NRM or FDC in deciding
whether the petition would be granted or denied. What is most important is the
willingness of so many candidates to approach the courts for redress of their grievances.
And, several candidates unhappy with a High Court’s ruling vowed to appeal to the
Supreme Court.
Section IV: Accounting for the Role of the Courts in the Election
It is clear that the court was a central “player” in the 2006 Uganda elections. That is, it
was involved in determining who could run for office, how the campaign was to be
conducted, who won, and how fair the elections were. Many of the court’s decisions
were contrary to the wishes of President Museveni and his supporters—and, they are the
key decision-makers for the state. The question to which we now turn is: “What made it
possible for the courts to act contrary to the wishes of the executive?”
Of course, the courts did not always make decisions which contradicted the wishes of
President Museveni and others in the executive, but they did act independently on several
important issues. Besigye was allowed to run for President; he was given bail and
released from prison; he was acquitted of the rape charge; his trial by the General Court
Martial was fought by the courts; the courts ruled that the election was not free and fair;
the FDC leaders Okumu and Ocula were acquitted of murder are examples of court
actions which ran counter to the wishes of the executive.
A variety of explanations may be posited to account for this independence. A parliament
may provide protection for the independence of a judiciary from executive power. Yet,
the National Assembly in Uganda has been dominated by supporters of the President.
Judges may have personal characteristics that allow them to act independently. Yet, in
most countries, those personal characteristics require some other support to allow them to
be determinative in decision-making.
The most support for the independence of the judiciary from the executive in Uganda
appears to come from external sources either directly, through foreign government or
international NGO pressure, or indirectly, through local NGOs and other organizations.
The evidence for this conclusion is extensive.
19
Pressures from Outside Uganda
President Museveni is widely recognized for his success in managing his relations with
outside governments and international agencies. Yet, the Ugandan government is
dependent upon these governments and agencies for its maintenance and several of the
projects funded from the outside are directed at strengthening the independence of the
judiciary.
Much of the financial assistance received from abroad goes to supporting Uganda’s
budget. According to the World Bank, foreign financing accounted for 57% of the
1994/95 budget, 47% of the 1995/96 budget, 45% of the 1996/97 budget, and an
estimated 46% of the 1997/98 budget.107 Florence Kuteesa, former Director of the
Budget, Government of Uganda, observed in 2005 that external support for the budget
averaged about 40% since 1998.108 Andrew Mwenda, a critic of the Museveni
government, has used a similar figure, contending that 40% of the budget projected for
2005/2006 is to come from aid.109 He has observed that “Parliament is so foreign aiddependent that even the chairs and desks are funded by Denmark.” And, he notes, “he
who pays the piper calls the tune.” 110
And, in addition to the general budgetary support, the international community has
supported specific projects aimed at the strengthening of the judiciary. These have
ranged from support for Ugandan NGOs concerned with the judiciary, fostering
international involvement of judges, holding judicial conferences and a myriad of other
kinds of activity.
The voice given to the donor community by its financial contributions to Uganda was
used extensively to support judicial independence in the period leading up to the 2006
elections.
When donors speak, what they say is heard as advice about what a recipient must do to
continue to receive the financial support they are receiving. There is an implicit threat in
what they say. Much of what they said preceding, and during, the 2006 election was not
directly about judicial independence, but it provided encouragement for the judiciary to
be independent.
Thus, an Early Day Motion, signed by 32 British MPs stated
That this House...calls on the Government to redouble its bilateral and multilateral
efforts with its EU partners to encourage the Ugandan authorities to co-operate
with the opposition, to fund them, to create a level playing field, including the
appointment of an independent Electoral Commission, and to allow the early and
safe return from exile of Dr Besigye and other opposition leaders if the 2006
presidential and parliamentary elections are to be free and fair.111
20
It implicitly supported action by the courts that would achieve this end even in the face of
executive opposition.
Similarly, when Besigye was arrested on November 14, 2005, the U.S. responded with a
statement which was placed on the U.S. State Department’s website under the caption
“Uganda Opposition Leader’s Arrest Brings U.S. Condemnation.” The statement was
“We urge the Ugandan government to examine the basis for the charges against Dr.
Besigye and his co-defendants carefully and to honor Uganda’s commitments under the
International Covenant for Civil and Political Rights.”112 That provided the judiciary
some “room” for acting independently on the matter.
The U.S. concerns were expressed in other ways. A case in point is its USAID report,
“Democracy and Governance Assessment: Republic of Uganda, 2005.”
Higher courts, particularly the Constitutional and Supreme Courts, remain the
islands of professionalism and integrity in the judiciary, but they have come
under attack from Museveni through his relentless attempts to undermine
confidence in the actors and processes. He has painted a picture of rampant
corruption in the judiciary and charged the legal process with being slow,
expensive and inaccessible. In addition, on some occasions, Museveni has
criticized principles of law that provide for due process protection as remnants
of Uganda’s colonial past. As both the Supreme and Constitutional Courts have
handed judgments that have embarrassed the government in the unfolding
political transition, Museveni has heightened the attacks on the judiciary.113
It continued,
Museveni’s battles with the judiciary stems largely from his bid to tame the
judiciary and undercut certain constitutional provisions that check the excesses
of the executive.114
The message is clear: The U.S. supports the efforts of the judiciary to become
independent and opposes the harmful efforts of Museveni to undermine that
independence.
The Human Rights Watch researcher Jemera Rone, speaking of the events at the end of
November, 2005, said “‘The government has arrested the main presidential opponent,
used commandos to intimidate the judiciary and banned all public protests, radio
discussions and even posters on the subject.”115 She called on the U.S. government to
“…cut all relations with the Ugandan police, military and security personnel who
participated in the outrageous assault on the court….’” 116 And, she declared that the
“‘Intimidation of judges and defendants cannot be tolerated.”117 By so doing, she
conveyed a message to the Ugandan judiciary that the international community was
watching and an independent judiciary had support.
21
And, organizations such as the International Commission of Jurists (ICJ) quickly issued
press releases to support judicial independence. On December 13, 2005, it said:
The ICJ is deeply concerned about recent interferences by the executive and
security forces in the administration of justice and the attempt to try civilians
before the military General Court Martial….The trial of civilians before military
courts is a breach of the right under international law to a fair and public trial
before an independent and impartial tribunal....The prohibition on trial of civilians
by military courts is clearly reflected in the jurisprudence of universal and
regional human rights bodies, including the African Commission on Human and
Peoples’ Rights. It is also enshrined in the Principles and guidelines on the rights
to a fair trial and legal assistance in Africa adopted by the African Commission
in 2003, which states that military courts should not have jurisdiction over
civilians in any circumstances.118
On February 2, 2006, the ICJ welcomed the Constitutional Court’s decision to call on the
Court Martial to dismiss the charges against Besigye. But, it “expressed its
disappointment that the Court did not prohibit in all circumstances the trial of civilians
before military tribunals.”119 Later that month, it expressed its “deep concern” over the
trial of civilians before the military General Court Martial, noting that the “‘continuation
of this trial in clear defiance of a judgment of the Constitutional Court is the latest in a
series of attacks on the rule of law in Uganda’….”120 Again, international support is
being provided for the efforts by the judiciary to remain independent.
The warnings about the actions of the Ugandan government were followed by actions to
amplify the international community’s call to President Museveni to “back off.” On
December 20, 2005, following the arrest of Besigye, the “siege” of the High Court, and
the General Court Martial charges, the U.K. shifted about $26 million from budget
support to U.N. humanitarian activities in northern Uganda and Sweden, Norway,
Ireland, and the Netherlands followed suit. 121 The indirect message to the judiciary was
that of support for its independence.
The US Assistant Secretary of State, Bureau of African Affairs, Jendayi Frazer, said in
early February, 2006, that “the democratic credentials of the Ugandan government are on
a ‘backward trend’.” 122 She mentioned the third term issue, the arrest of Besigye and the
absence of free competition. And, she said that the fact that Museveni went back on his
pledge not to run for a third term “…was the major reason why Uganda was dropped
from the Millennium Challenge Account (MCC) beneficiary list….”123 Again, a message
was conveyed to the judiciary that its independence of the executive was supported by the
international community.
A commentator and FDC official, Anne Mugisha, perceptively summarized the
relationship between the donors and Museveni:
Museveni put up a brave fight after throwing KB [Kizza Besigye] in jail but the
diplomatic pressure and especially the deep cuts in aid quickly brought him back
22
to his senses. It is almost like a game of chess that Museveni plays with the
Donors. Neither party makes a move without knowing how the other will react.
Donors know that Museveni will throw a tantrum whenever they cut aid but they
also know that he will quickly settle down because his ever-growing patronage
network has to be serviced with dollars and cents…. In order for Museveni to
enjoy uninterrupted funding he has to abide by certain minimum standards that
require him to carry out certain cosmetic activities, which give his administration
a veneer of legitimacy.124
One of those activities is to allow the judiciary a degree of independence.
Pressures from Within Uganda
A variety of human rights organizations have sought to foster an independent judiciary to
facilitate the achievement of their goals. Often, these local organizations receive support
from abroad.
As we have seen, the Uganda Law Society (ULS), representing Uganda lawyers and
judges, has been very active in pressing for an independent judiciary. A reporter
interviewed several members during the one-day strike on November 28, 2005 organized
to protest the “Black Mamba” invasion of the court. He asked why they were there. The
idea of the need for an independent judiciary underlay most of their responses:
Sophie Kyagulanyi, “We are challenging the presence of military men in the High
Court. The strike is in support of the independence of the Judiciary. I am also
showing solidarity with other colleagues.
Gloria Basaza Ochieng, “We are here to stand as one block for the principles and
independence of the Judiciary. We are sending out a signal that soldiers have no
part in the administration of justice. Ours is a noble profession.”
Erias Lukwago, “We are actually mourning. As the Principle Judge said, the
Temple of Justice was raped. In African culture, once a person is raped, we try to
cleanse the abominable act. We are also protesting an act committed by these
soldiers, which amounted to a coup against the Constitution. It was an act of
treason committed by government functionaries.
Prof. Fredrick Ssempebwa, “Lawyers are today showing solidarity with the
Judiciary. They detest what happened in the High Court on November 16.
Indignity was visited on the Court premises. The act was intended to intimidate
the Judiciary from carrying out its work.”125
The President of ULS during this period, Moses Adriko, noted the international
partnerships they had in promoting constitutionalism. 126 Throughout the election period,
the ULS clearly conveyed its support for an independent judiciary to the justices.
23
Many others civil society organizations such as the Foundation for Human Rights
Initiative and the Human Rights Network (Uganda) (HURINEST (U)) were engaged in
issues fostering judicial independence. In cooperation with international sponsors,
conferences and symposia were held promoting an independent judiciary. 127 Judicial
officers have received sponsorship, usually with the help of international organizations or
donor countries, to travel to other countries to view how those systems operate—
including the pursuit of judicial independence. And, sometimes through civil society
organizations, judges have become engaged in regional and international courts and
judicial organizations.
The domestic and international support given to the judiciary served as an important
counterweight to the efforts of the executive to prevent the growth of judicial
independence in the election period.
Conclusion
The courts were an important tool used by President Museveni and his colleagues in the
NRM-O to defeat Kizza Besigye and the FDC in the 2006 elections, the first multi-party
elections since 1980. As we have seen, Besigye was arrested within three weeks of his
return to Uganda; two days later when bail was a possibility, a government military group
invaded the court to block it; then the military General Court Martial charged Besigye
with essentially the same crime and claimed jurisdiction; imprisoned on the date he had
to register as a candidate, the Electoral Commission allowed him to do so but the result
was challenged by the Attorney General, among others; Besigye was tried and acquitted
on the rape charges; the Constitutional Court ruled that the GCM did not have jurisdiction
over Besigye’s treason trial, but the head of the GCM would not accept the jurisdiction of
Constitutional Court; Besigye’s appeal of the election results was turned down, though
the judges concluded unanimously that the election was not carried out in accord with the
rules. Although, the courts acted at times independent of the executive branch, the
executive branch was able to use the courts to keep Besigye imprisoned or in court for
much of the campaign. That is why many observers have said that the 2006 elections in
Uganda were not played on a level field. Yet, there is another side to the role of the
courts in the 2006 elections: At the same time as Museveni and the NRM-O were using
the courts to their advantage, the courts challenged the efforts to make them comply with
the wishes of the executive.
We asked the question: “Why were the justices willing and able to challenge the
government at such an early stage in the democratization process?” And, we have
argued, and presented support for, a two-fold explanation: First, there was substantial
external governmental and non-governmental support and internal non-governmental
support for judicial independence. Second, the decisions made by the judiciary—even
those that challenged President Museveni and the NRM-O—were not serious challenges.
The election results were left standing, Museveni was found not to have been involved in
the poorly conducted elections, Besigye continues today to be tried for treason; his wife
remains on trial for defamation; the NRM-O has an overwhelming number of seats in the
National Assembly.
24
There is another question implied by the thrust of this study which is of considerable
importance: “How has the role of the courts in the 2006 Ugandan elections affected the
process of democratization?”
The answer is determined in part by the role expected of the judiciary in a democracy.
That role involves a contradiction. On the one hand, it is charged with requiring
adherence to a constitutional agreement, while on the other hand it is supposed to foster
the achievement of popular aspirations. Tom Ginsburg has written of this dual task as
“countermajoritarian,” i.e., of being “…able to protect the substantive values of
democracy from procedurally legitimate elected bodies.”128
In the case of Uganda, President Museveni opposes this “countermajoritarian” role of the
courts, i.e., the notion that the courts needed to protect democracy from its own excesses.
To him, the courts should act to further the popular will. He has argued that “When a
constitutional or legal arrangement pays more attention to philosophically irrational
procedures rather than the basic genuine aspirations of the people, it loses legitimacy in
the eyes of the people and then it is ignored.” 129 His disagreement with the judiciary is
over the issue of the primacy of “the people” vs. the primacy of “the constitution.” To
him, the former should trump the latter. In his view, the problem Uganda faces is less
with the constitution than those charged with interpreting it. He has said: “If there were
no cloudy spectacles worn by those who interpret the present constitution in a manner
designed to dilute or eliminate the people’s authority, even this constitution would be
adequate.”130 He foresees a crisis developing “between the people and those foreignminded courts….”131 Thus, he appears to feel that the courts should not be independent
of “the people.”
The notion of an “independent judiciary,” according to Peter Russell, has two aspects.
One is external autonomy from other individuals and institutions; the other is internal
autonomy from influences within the judiciary.132 Our concern is primarily the former—
independence from individuals and institutions. This usually means the executive or the
legislature, but may include “the people” or even external powers. As noted above,
Museveni seems to be arguing against that sort of independence by saying that judicial
action should be dependent upon what “the people” want. When he, or others like
General Tumwine, refers to the judiciary’s view of independence as “neo-colonial,” they
seem to be rejecting the view of judicial independence broadly accepted internationally,
i.e., that decisions should be made primarily on the basis of the constitution, and,
associated international agreements, rather than the wishes of groups within, or outside, a
society. As long there is disagreement over the meaning of judicial independence,
conflict is likely to remain.
Since there is a widespread belief that judicial independence, defined in terms of
autonomy from other individuals and institutions, is a requisite of democracy, the view of
President Museveni on the issue appears to be an obstacle to democratization. But, this is
not true necessarily—it depends upon how one defines democracy. In Museveni’s view,
the courts would contribute to democratization if they decided cases more in accord with
25
the popular will—something they are being pushed away from doing by international
conceptions of judicial independence.
Partly because Russell seems to have a different view of democracy, he sees their
independence of all groups contributing to democratization. He suggests that as they
“become more activist and autonomous in their decision making,” “they attract much
more political attention and criticism.” This means that “the judiciary becomes more
directly connected to a democratic society’s politics.”133 Although such involvement
may contribute to democratization, it does not necessarily do so. The case of the 2006
elections in Uganda clearly indicates deep involvement of the judiciary in politics. Yet,
its contribution was ambiguous. On the one hand that involvement had an antidemocratic aspect to it—it kept Besigye from fully and freely participating in the
election. On the other hand, without the judiciary he may not have been able to
participate at all. Nevertheless, that the judiciary has played such a central role as the
system has been opened to multi-party competition suggests it is seen by Ugandans as a
significant institution in democratization. The degree of its contribution to
democratization seems to depend upon how democracy is conceived.
To avoid the myriad of problems associated with the concept of democracy, perhaps, it
would be more useful to focus on courts as actors engaged in struggles seeking to
enhance their power, rather than as possible agents of democratization. Ginsburg has
written,
Constitutional courts play games of power in legal arenas. Courts are empowered
by constitutional designers and given tools to protect the constitutional bargain.
But the subsequent choices courts make as they play their games can supplement
or deplete their arsenals. Courts can challenge others or can seek powerful allies.
They can cautiously accumulate policy gains in an incremental fashion or boldly
battle for large pieces of territory. They can choose their battles carefully,
limiting conflicts to those they can win and thus making future threats credible; or
they can blunder badly and provoke crippling counterattacks.134
At a minimum, the decisions made by the courts in the 2006 elections helped give
Ugandan’s a wider range of choices for political offices and kept those institutions from
being destroyed in the process.
26
ENDNOTES
1
Justice James Ogoola, “The Rape of the Temple,” New Vision, October 6, 2006.
http://www.newvision.co.ug/PA/8/13/525279 Accessed October 16, 2006. A portion of this was published
in Daily Monitor, October 10, 2006. http://www.monitor.co.ug/inspol/inspol10119.php
2
The leadership of the three courts of record are the Chief Justice who is head of the Judiciary; the Deputy
Chief Justice who is the head of the Court of Appeal; and, the Principal Judge who is the head of the High
Court. See Republic of Uganda, Courts of Judicature, “Judicial Officers,”
http://www.judicature.go.ug/judicial.php. Accessed October 20, 2006.
3
Anne Mugisha, “Museveni’s Machinations,” Journal of Democracy, Vol. 15, No. 2 (April 2004), p. 141.
4
Solomon Muyita, “TZ Judge to Hear Wengi Probe,” Monitor Online, September 7, 2006.
http://www.monitor.co.ug/news/news09076.php Accessed September 6, 2006. On August 24, 2006, the
President removed High Court Judge Richard Oscar Okumu Wengi. The Judicial Services Commission
had recommended that the President set up a tribunal to look into charges of judicial misconduct against
him. Ibid.
5
The Chief Justice at this time, Benjamin J. Odoki, has written that there were additional safeguards to
judicial independence including “…security of tenure, the fixing of salaries by Parliament, the charging of
judiciary expenses on the Consolidated Fund, providing for judicial immunity, and financial autonomy. In
order to secure financial autonomy, the Judiciary was made a self-accounting institution with its budget
being submitted to Parliament through the President without amendment but with comments of the
Executive. Parliament approves the budget subject to the dictates of the resources available.” See
Benjamin J. Odoki, The Search for a National Consensus, The Making of the 1995 Uganda Constitution
(Kampala: Fountain Publishers, 2005), p. 324.
6
Dean E. McHenry, Jr., “The Courts and Poliltical Transition in Uganda: What Empowers the Courts to
Challenge the Government?” a paper presented at the Annual Meeting of the African Studies Association,
New Orleans, November 12, 2004, p. 11.
7
Solomon Muyita, “Judge Pins Convicted Nsambu on Bribery Claim,” Daily Monitor, October 6, 2006.
http://www.monitor.co.ug/news/news10071.php Accessed October 6, 2002.
8
Solomon Muyita, “Judge Pins Convicted Nsambu on Bribery Claim,” Daily Monitor, October 6, 2006.
http://www.monitor.co.ug/news/news10071.php Accessed October 6, 2002.
9
Solomon Muyita, “Judge Pins Convicted Nsambu on Bribery Claim,” Daily Monitor, October 6, 2006.
http://www.monitor.co.ug/news/news10071.php Accessed October 6, 2002.
10
Fortunate Ahimbisibwe, “Court Bailiffs Storm Cheeye’s Home,” New Vision, February 15, 2006.
http://www.newvision.co.ug/D/8/13/482044 Accessed February 15, 2006.
11
Simon Kasyate, “Cheeye Fights Court Bailiffs,” Monitor On line,” February 15, 2006.
http://www.monitor.co.ug/news/news021516.php. Accessed February 14, 2006.
12
Simon Kasyate, “Cheeye Fights Court Bailiffs,” Monitor On line,” February 15, 2006.
http://www.monitor.co.ug/news/news021516.php. Accessed February 14, 2006.
13
Herbert Ssempogo, “Teddy Cheeye Sent to Luzira Prison,” New Vision, March 4, 2006.
http://newvision.co.ug/D/8/12/485350 Accessed March 3, 2006.
14
“Kivejinja Loss Hurts the NRM,” Sunday Vision, November 4, 2006.
http://allafrica.com/uganda/bydate/?n=15 Accessed November 10, 2006.
27
15
Sunday Monitor Team, “Besigye Rejects Election Results,” Monitor Online, February 26, 2006.
http://www.monitor.co.ug/sunday/news/news02263.php Accessed February 25, 2006.
16
Human Rights Watch, “In Hope and Fear: Uganda’s Presidential and Parliamentary Polls,” (New York:
Human Rights Watch, February 2006), pp. 6-7.
17
Solomon Muyita and Elias Biryabarema, “Kikonyogo Attacked Over Referendum Case,” Daily Monitor,
July 20, 2005, p. 3.
18
Solomon Muyita, “Judiciary Defends Kikonyogo,” Daily Monitor, July 29, 2005, p. 6.
19
Uganda Governance Monitoring Programme (UGMP), Major Flaws in the Transition Process Cast
Doubts Over Possibilities of Consolidating Democracy in Uganda, A Civil Society Assessment of
Democracy and Good Governance Trends in Uganda in 2005 (Kampala: UGMP, 2005), p. 17.
20
Solomon Muyita, “Opposition Fails to Block Referendum,” Daily Monitor, July 28, 2005.
21
Solomon Muyita, “Opposition Fails to Block Referendum,” Daily Monitor, July 28, 2005.
22
Steven Candia and Henry Mukasa, “MPs Arrested Over Murder,” New Vision, April 21, 2005.
http://www.newvision.co.ug/D/8/12/430331 Accessed April 20, 2005.
23
Lominda Afedraru, Lydia Mukisa and Siraj Lubwama, “MPs Returned to Luzira,” Monitor Online,
April23, 2005. http://www.monitor.co.ug/news/news04232.php Accessed April 22, 2005.
24
Sophie Kyagulanyi, “Okumu, Ocula Arrests Will Spread Fear,” a letter to the editor for the Foundation
for Human Rights Initiative, The East African, May 2, 2005.
http://www.nationmedia.com/eastafrican/current/Opinion/letters
25
Hilary Kiirya, “Okumu Committed to High Court,” New Vision, May 17, 2005.
http://www.newvision.co.ug/D/8/13/435007 Accessed May 16, 2005.
26
Hilary Kiirya, “Okumu Committed to High Court,” New Vision, May 17, 2005.
http://www.newvision.co.ug/D/8/13/435007 Accessed May 16, 2005.
27
Hillary Kiirya, “Okumu, Ocula Out on Bail,” New Vision, May 18, 2005.
http://www.newvision.co.ug/D/8/12/435165 Accessed May 18, 2005.
28
Human Rights Watch, “In Hope and Fear: Uganda’s Presidential and Parliamentary Polls,” (New York:
Human Rights Watch, February 2006), p. 13.
29
European Union, Election Observation Mission, “Uganda, Presidential and Parliamentary Elections, 23
February 2006, p. 13.
30
Kizza Besigye, “Press Statement,” October 26, 2005, published in Monitor Online, October 26, 2005.
http://www.monitor.co.ug/news/presst.php Accessed October 26, 2005.
31
That the impetus for the October 19, 2005 letter and threat was President Museveni seemed to be the
conclusion of reporters for The Monitor. They wrote that a few days before the letter was sent “the
Director of Public Prosecutions, Mr Richard Butera, said that he was not aware of any file containing
criminal charges against Besigye. For his part, Internal Affairs Minister Ruhankana Rugunda said: ‘I am
not aware of any plans to arrest him. Kizza Besigye is a Ugandan who should not live in exile.’ The Army
Spokesman, Lt. Col. Shaban Bantariza, told 93.3 KFM in the week that he had no case against Besigye
28
‘unless he chooses to go via the PRA camps in Congo on his way home.’” Sunday Monitor Team,
“Besigye Faces Arrest – Museveni,” Monitor Online, October 23, 2005.
http://www.monitor.co.ug/sunday/news/news10232.php Accessed October 23, 2005.
32
Kizza Besigye, “Press Statement,” October 26, 2005, published in Monitor Online, October 26, 2005.
http://www.monitor.co.ug/news/presst.php Accessed October 26, 2005.
33
“Besigye Faces Arrest – Museveni,” Monitor Online, October 23, 2005.
http://www.monitor.co.ug/sunday/news/news10232.php Accessed October 23, 2005.
34
Frank Nyakairu, Alex Atuhaire and Simon Kasyate, “Dr Besigye is Back,” Monitor Online,
http://www.monitor.co.ug/news/newsspecial.php Accessed October 26, 2005.
35
Asuman Bisiika, “Besigye Wins Petition…Just Another Hurdle,” Monitor Online, February 19, 2006.
http://www.monitor.co.ug/sunday/news/rev02192.php Accessed February 18, 2006.
36
Timothy Kalyegira, “Besigye vs Museveni-Part II,” Daily Monitor, February 21, 2006.
http://www.monitor.co.ug/inspol/inspol02225.php Accessed February 21, 2006.
37
William Eagle interviewing Barbaraa Among, “Ugandan Opposition Leader Charged with Two Counts
of Treason,” VOA News, November 15, 2005. http://www.voanews.com/english/archive/2005-11/2005-1115-voa58.cfm?CFID=28747509&CFTOKEN=93080283 Accessed October 19, 2006.
38
Hillary Kiirya and Anne Mugisa, “Col Besigye Case Opens,” New Vision, November 16, 2005.
http://www.newvision.co.ug/D/8/12/466145 Accessed October 19, 2006.
39
Solomon Muyita, Siraje K. Lubwama, Hussein Bogere, Lydia Mukisa and Lominda Afedraru, “Besigye
Judge Quits,” Monitor Online, February 3, 2006. http://www.monitor.co.ug/news/news02041.php.
Accessed February 3, 2006.
40
Solomon Muyita, Siraje K. Lubwama, Hussein Bogere, Lydia Mukisa and Lominda Afedraru, “Besigye
Judge Quits,” Monitor Online, February 3, 2006. http://www.monitor.co.ug/news/news02041.php.
Accessed February 3, 2006.
41
Human Rights Watch, “In Hope and Fear: Uganda’s Presidential and Parliamentary Polls,” (New York:
Human Rights Watch, February 2006), p. 10.
42
Justice James Ogoola, “The Current State of Affairs in the High Court and the Role of Division Heads
and Registrars,” a paper presented at the Judges’ Conference, Sheraton Hotel, Kampala, February 6, 2006,
pp. 14-15.
43
Peter Mulira Mayanja, “The Besigye Case Puts Justice Itself on Trial!” New Vision, December 6, 2005.
http://www.newvision.co.ug/D/8/20/469605 Accessed February 25, 2006.
44
Timothy Kalyegira, “Test of Democracy in Uganda,” Monitor Online, February 22, 2006.
http://www.monitor.co.ug/inspol/inspol02223.php Accessed February 25, 2006
45
“Who is in Charge Here?” Monitor Online, February 17, 2006.
http://www.monitor.co.ug/oped/oped02172.php Accessed February 17, 2006.
46
Emma Mutaizibwa, “11 Years Later: What is Left of the 1995 Constitution?” Daily Monitor, October
10, 2006. http://www.monitor.co.ug/inspol/inspol10114.php Accessed October 10, 2006.
47
Solomon Muyita and Peter Nyanzi, “Besigye Ruling Angers Tinyefuza,” Monitor Online, February 3,
2006. http://www.monitor.co.ug/news/news02031 Accessed February 2, 2006.
29
48
Solomon Muyita, Siraje K. Lubwama, Hussein Bogere, Lydia Mukisa and Lominda Afedraru, “Besigye
Judge Quits,” Monitor Online, February 3, 2006. http://www.monitor.co.ug/news/news02041.php.
Accessed February 3, 2006.
49
Hillary Kiirya and Hillary Nsambu, “Lawyers Strike Over Military,” New Vision, November 29, 2005.
http://www.newvision.co.ug/D/8/12/468479 Accessed February 25, 2006.
50
Hillary Kiirya and Hillary Nsambu, “Lawyers Strike Over Military,” New Vision, November 29, 2005.
http://www.newvision.co.ug/D/8/12/468479 Accessed February 25, 2006.
51
Hillary Kiirya and Hillary Nsambu, “Lawyers Strike Over Military,” New Vision, November 29, 2005.
http://www.newvision.co.ug/D/8/12/468479 Accessed February 25, 2006.
52
Hillary Kiirya and Hillary Nsambu, “Lawyers Strike Over Military,” New Vision, November 29, 2005.
http://www.newvision.co.ug/D/8/12/468479 Accessed February 25, 2006.
53
David Shucosky, “Uganda Rebels Appear in Military Court; US Urges fair Trial,” Jurist (University of
Pittsburgh School of Law), November 18, 2005. http://jurist.law.pitt.edu/paperchase/2005/11/ugandanrebels-appear-in-military.php Accessed October 20, 2006.
54
Human Rights Watch, “In Hope and Fear: Uganda’s Presidential and Parliamentary Polls,” (New York:
Human Rights Watch, February 2006), p. 10.
55
Solomon Muyita and Siraje K. Lubwama, “Tumwine: The Judge, Painter, Artist and Singer Retires from
Court Martial,” Daily Monitor, October 3, 2006. http://www.monitor.co.ug/inspol/inspol10049.php
Accessed October 3, 2006.
56
Solomon Muyita and Peter Nyanzi, “Besigye Ruling Angers Tinyefuza,” Monitor Online, February 3,
2006. http://www.monitor.co.ug/news/news02031 Accessed February 2, 2006.
57
Human Rights Watch, “In Hope and Fear: Uganda’s Presidential and Parliamentary Polls,” (New York:
Human Rights Watch, February 2006), p. 10.
58
Lomindda Afedraru and Lydia Mukisa, “ULS Condemns Attack on Judges,” Monitor Online, February
11, 2006. http://www.monitor.co.ug/news/news021110.php Accessed February 10, 2006.
59
Siraje K. Lubwama and Ephriam Kasozi, “Defiant Tumwine Conducts Illegal Trial,” Monitor Online,
February 15, 2006. http://www.monitor.co.ug/news/news02152.php Accessed February 14, 2006.
60
Solomon Muyita and Lominda Afedraru, “EC Defends Besigye,” Monitor Online, February 15, 2006.
http://www.monitor.co.ug/news/news02151.php Accessed February 14, 2006.
61
Solomon Muyita and Lominda Afedraru, “Govt Joins Petition Against Dr Besigye,” Monitor Online,
February14, 2005. http://www.monitor.co.ug/news/news02141.php Accessed February 13, 2006.
62
“Wasting the Judiciary’s Time!” Monitor Online, February 19, 2006.
http://www.monitor.co.ug/sunday/oped/oped02191.php Accessed February 18, 2006.
63
Asuman Bisiika, “Besigye Wins Petition…Just Another Hurdle,” Monitor Online, February 19, 2006.
http://www.monitor.co.ug/sunday/news/rev02192.php Accessed February 18, 2006.
64
Gideon Munaabi, “Uganda Elections 2006-High Court Releases Besigye from Luzira: What does this
mean for FDC and Uganda?” Ugpulse.com. http://www.ugpulse.com/articles/daily/homepage.asp?ID=253
Accessed October 14, 2006.
30
65
Gideon Munaabi, “Uganda Elections 2006-High Court Releases Besigye from Luzira: What does this
mean for FDC and Uganda?” Ugpulse.com, January 2, 2006. (Ultimate Media).
http://www.ugpulse.com/articles/daily/homepage.asp?ID=253 Accessed October 14, 2006.
66
Uganda Governance Monitoring Programme (UGMP), Major Flaws in the Transition Process Cast
Doubts Over Possibilities of Consolidating Democracy in Uganda, A Civil Society Assessment of
Democracy and Good Governance Trends in Uganda in 2005 (Kampala: UGMP, 2005), p. 18.
67
Solomon Muyita and Rodney Muhumuza, “Date for Besigye Rape Verdict Set,” Monitor Online,
February 19, 2006. http://www.monitor.co.ug/sunday/news/news02192.php Accessed February 18, 2006.
68
Solomon Muyita, Hussein Bogere and Siraje K. Lubwama, “Besigye Acquitted,” Monitor Online, March
8, 2006. http://www.monitor.co.ur/news/news03081.php Accessed March 7, 2006.
69
Solomon Muyita, Hussein Bogere and Siraje K. Lubwama, “Besigye Acquitted,” Monitor Online, March
8, 2006. http://www.monitor.co.ur/news/news03081.php Accessed March 7, 2006.
70
Human Rights Watch, “In Hope and Fear: Uganda’s Presidential and Parliamentary Polls,” (New York:
Human Rights Watch, February 2006), p. 13.
71
Zurah Nakabugo and Lydia Mukisa, “Winnie, Sabiiti Charged,” Monitor Online.
72
Solomon Muyita, “Judges Up in Arms,” Monitor Online, February 7, 2006.
http://www.monitor.co.ug/news/news02071.php Accessed February 7, 2006.
73
James M. Yoch, Jr., “Judge Resigns from Treason Trial of Uganda Opposition Leader,” Jurist
(University of Pittsburgh, School of Law), February 3, 2006.
http://jurist.law.pitt.edu/paperchase/2006_02_03_indexarch.php#113899266857553613
74
Anne Mugisa, Hillary Kiirya and Milton Olupot, “Katutsi Quits Besigye Case,” New Vision, February 4,
2006. http://www.newvision.co.ug/D/8/12/479946 Accessed February 3, 2006.
75
Republic of Uganda, Constitutional Court of Uganda, “Judgment of Constitutional Petition No. 18 of
2005, Uganda Law Society vs. Attorney General.”
76
Cathy Majtenyi, “Uganda Lawyers Group, Governmesnt, Challenge Treason Trial Ruling,” VOA News,
February 1, 2006. http://www.voanews.com/english/2006-02-01-voa52.cfm Accessed September 4, 2006.
77
Human Rights Watch, “In Hope and Fear: Uganda’s Presidential and Parliamentary Polls,” (New York:
Human Rights Watch, February 2006), pp. 11-12.
78
Henry Mukasa, “Museveni Raps Ruling on Court Martial,” New Vision, February 7, 2006.
http://www.newvision.co.ug/D/8/12/480501 Accessed February 6, 2006.
79
President Yoweri Museveni, “Judges Mismanaged their Role,” Monitor Online, June 29, 2005.
http://www.monitor.co.ug/specialincludes/ugprsd/museveni/mus060719b.php Accessed September 9,
2005.
80
Solomon Muyita and Peter Nyanzi, “Besigye Ruling Angers Tinyefuza,” Monitor Online, February 3,
2006. http://www.monitor.co.ug/news/news02031 Accessed February 2, 2006.
81
Solomon Muyita and Peter Nyanzi, “Besigye Ruling Angers Tinyefuza,” Monitor Online, February 3,
2006. http://www.monitor.co.ug/news/news02031 Accessed February 2, 2006.
31
82
Solomon Muyita and Peter Nyanzi, “Besigye Ruling Angers Tinyefuza,” Monitor Online, February 3,
2006. http://www.monitor.co.ug/news/news02031 Accessed February 2, 2006.
83
Solomon Muyita and Peter Nyanzi, “Besigye Ruling Angers Tinyefuza,” Monitor Online, February 3,
2006. http://www.monitor.co.ug/news/news02031 Accessed February 2, 2006. It is interesting to note
that General Tinyefuza had been a roommate of Besigye at Makerere University, that Besigye had been the
“best man” at his wedding, and that Besigye had operated on him in the bush when he was wounded.
84
“Who is in Charge Here?” Monitor Online, February 17, 2006.
http://www.monitor.co.ug/oped/oped02172.php Accessed February 17, 2006.
85
Maurice Okore, “’I am Not Prosecuting Besigye,’” New Vision, March 7, 2006.
http://www.newvision.co.ug/D/8/13/485768 Accessed March 6, 2006.
86
Maurice Okore, “Besigye Back in Army Court,” New Vision, March 2, 2006.
http://www.newvision.co.ug/D/8/12/484859 Accessed March 1, 2006.
87
Solomon Muyita and Hussein Bogere, “Besigye Defies Army Court,” Monitor Online, March 7, 2006.
http://www.monitor.co.ug/news/news03071.php Accessed March 6, 2006.
88
Solomon Muyita and Hussein Bogere, “Besigye Defies Army Court,” Monitor Online, March 7, 2006.
http://www.monitor.co.ug/news/news03071.php Accessed March 6, 2006.
89
Solomon Muyita and Hussein Bogere, “Besigye Defies Army Court,” Monitor Online, March 7, 2006.
http://www.monitor.co.ug/news/news03071.php Accessed March 6, 2006.
90
Siraje K. Lubwama and Ephriam Kasozi, “Defiant Tumwine Conducts Illegal Trial,” Monitor Online,
February 15, 2006. http://www.monitor.co.ug/news/news02152.php Accessed February 14, 2006.
91
Lominda Afedraru and Simon Kasyate, “Govt Appeals Rape Verdict,” Monitor Online, March 22, 2006.
http://www.monitor.co.ug/news/news03222.php Accessed March 22, 2006.
92
P.M? Wesige, “Election 2006: Besigye’s Court Battle is Not in Vain,” Monitor Online, March 3, 2006.
http://www.monitor.co.ug/oped/oped03032.php Accessed March 3, 2006.
93
Dr. Kizza Besigye vs. Yoweri Museveni and Electoral Commission, Petition No.1 of 2001, Supreme
Court of Uganda, April 21, 2001 published in the Daily Monitor, December 16, 2005.
http://www.monitor.co.ug/specialincludes/flw/flw12161.php Accessed October 31, 2006.
94
Solomon Muyita, Emmanuel Mulondo, Hussein Bogere, Siraje K. Lubwama and Lydia Mukisa,
“Besigye Rejects Verdict,” Monitor Online, March 7, 2006.
http://www.monitor.co.ug/news/news04071.php Accessed March 6, 2006.
95
Emma Mutaizibwa, “Political Implication of Supreme Court Ruling,” Monitor Online, April12, 2006.
http://www.monitor.co.ug/inspol/inspol04121.php Accessed April 11, 2006.
96
Emma Mutaizibwa, “Political Implication of Supreme Court Ruling,” Monitor Online, April12, 2006.
http://www.monitor.co.ug/inspol/inspol04121.php Accessed April 11, 2006.
97
“Compete in Parliament,” an editorial, New Vision, April 8, 2006.
http://www.newvision.co.ug/D/8/14/491936 Accessed April 8, 2006.
98
Arthur George Kamya, “Supreme Court Generally Got it Right on Election Petition,” Monitor Online,
April 13, 2006. http://www.monitor.co.ug/oped/oped04133.php Accessed April 12, 2006.
32
99
Arthur George Kamya, “Supreme Court Generally Got it Right on Election Petition,” Monitor Online,
April 13, 2006. http://www.monitor.co.ug/oped/oped04133.php Accessed April 12, 2006.
100
Solomon Muyita, “Election Petitions: A Major Challenge to the Judiciary,” Daily Monitor, October 18,
2006. http://www.monitor.co.ug/inspol/inspol10184.php Accessed October 17, 2006.
101
Solomon Muyita, “Election Petitions: A Major Challenge to the Judiciary,” Daily Monitor, October 18,
2006. http://www.monitor.co.ug/inspol/inspol10184.php Accessed October 17, 2006.
102
Hillary Nsambu, “Sekikubo Not Validly Elected,” New Vision, October 3, 2006.
http://www.newvision.co.ug/D/8/13/524730 Accessed October 3, 2006.
103
Michael J. Ssali, “Kalunga East MP Loses Seat,” Daily Monitor, September 24, 2006.
104
Edward Anyoli, “Nadduli Wins Poll Petition,” New Vision, October 22, 2006.
http://www.newvision.co.ug/D/8/13/528010 Accessed October 22, 2006.
105
Dismus Buregyeya, “Ssekandi Wins Polls Petition,” New Vision 16 August, 2006.
http://www.newvision.co.ug/D/8/13/515533. Accessed August 17, 2006.
106
Lomindda Afedraru, “Lawyers Meet Over Petition Against MPs,” Monitor Online, May 19, 2006.
http://www.monitor.co.ug/news/news051910.php Accessed May 19, 2006.
107
The World Bank, “Uganda’s External Financing Requirements, 1997/98-1999/00,” prepared for the
Consultative Group Meeting of November 1997 (October 1997).
http://wwwwds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2000/02/23/000178830_9811170355378/Render
ed/INDEX/multi_page.txt
108
Florence N. Kuteesa, “Aid Effectiveness and Good Governance: The Case of Uganda,” a paper
presented at a Research Meeting convened by Global Economic Governance Programme at the IDRC,
Ottawa, March 9, 2005, p. 2.
109
Andrew Mwenda, “Between Donors and Government, Foreign Aid is Lost Along the Way,” Daily
Monitor, October 12, 2006. http://www.monitor.co.ug/specialincludes/economy/debttrap/debt07191.php
Accessed October 12, 2006
110
“Africans on Africa: Debt,” BBC News, July 7, 2005.
http://news.bbc.co.uk/1/hi/world/africa/4657139.stm Accessed October 12, 2006.
111
Mike Hancock, “Uganda’s Transition to Political Pluralism,” Early Day Motion (EDM 88),
Parliamentary Information Management Service, May 17, 2005.
http://edmi.parliament.uk/EDMi/EDMDetails.aspx?EDMID=28276%09%09%09%09%09%09%09
Accessed October 16, 2006.
112
U.S. Department of State, “Statement by Adam Ereli, Deputy Spokesman,” November 17, 2005.
http://usinfo.state.gov/xarchives/display.html?p=washfileenglish&y=2005&m=November&x=20051117183222ssille0.4761621&t=livefeeds/wf-latest.html
Accessed October 21, 2006.
113
United States Agency for International Development, Democracy and Governance Assessment:
Republic of Uganda, 2005 (Berlington, VT: ARD, Inc., November 1, 2005), pp. 38-39.
114
United States Agency for International Development, Democracy and Governance Assessment:
Republic of Uganda, 2005 (Berlington, VT: ARD, Inc., November 1, 2005), p. 39.
33
115
Human Rights Watch, “Uganda: Political Repression Accelerates,” November 23, 2005.
http://hrw.org/english/docs/2005/11/24/uganda12089_txt.htm Accessed October 20, 2006.
116
Human Rights Watch, “Uganda: Political Repression Accelerates,” November 23, 2005.
http://hrw.org/english/docs/2005/11/24/uganda12089_txt.htm Accessed October 20, 2006.
117
Human Rights Watch, “Uganda: Political Repression Accelerates,” November 23, 2005.
http://hrw.org/english/docs/2005/11/24/uganda12089_txt.htm Accessed October 20, 2006.
118
International Commission of Jurists, “Uganda: ICJ Alarmed by Assault on Civilian Judiciary, ICJ to
Send Trial Observer,” Press Release, December 13, 2005.
119
International Commission of Jurists, “Uganda: Court Martial Must End Trial of Besigye and CoAccused,” Press Release, February 2, 2006.
120
International Commission of Jurists, “Uganda-General Court Martial Must Respect Ruling by
Constitutional Court,” Press Release, February 20, 2006.
121
Human Rights Watch, “In Hope and Fear: Uganda’s Presidential and Parliamentary Polls,” (New York:
Human Rights Watch, February 2006), p. 10.
122
Tabu Butagira and Agness Nandutu, “Uganda’s Democracy Declining, Says US,” Monitor Online,
February 3, 2006. http://www.monitor.co.ug/news/news020310.php Accessed February 2, 2006.
123
Tabu Butagira and Agness Nandutu, “Uganda’s Democracy Declining, Says US,” Monitor Online,
February 3, 2006. http://www.monitor.co.ug/news/news020310.php Accessed February 2, 2006.
124
Anne Mugisha, “Will Museveni Modesty Make Him Appear Before Court?” Monitor Online, March 27,
2006. http://www.monitor.co.ug/archives/2006/mar/oped/0327/oped03273.php Accessed March 26,
2006.
125
Charles Ariko, “Lawyers Protest,” New Vision, November 29, 2005.
http://www.newvision.co.ug/D/8/13/468403 Accessed February 25, 2006.
126
Jude Etyang, “Law Society Gets New President,” New Vision, May 1, 2006.
http://www.newvision.coug/D/8/13/496312 Accessed May 2, 2006.
127
Jude Etyang, “Don’t Politicise Land – Judges,” New Vision, February 11, 2006.
http://www.newvision.co.ug/D/8/13/481308 Accessed February 10, 2006; Solomon Muyita, “U.S. Envoy
Castigates High Corruption Level in Uganda,” Monitor, August 9, 2006 reported on all Africa.com.
http://allafrica.com/stories/printable/2006608090185.html Accessed September 4, 2006.
128
Tom Ginsburg, Judicial Review in New Democracies, Constitutional Courts in Asian Cases
(Cambridge: Cambridge University Press, 2003), p. 2.
129
President Yoweri Museveni, “Judges Mismanaged their Role,” Monitor Online, June 29, 2005.
http://www.monitor.co.ug/specialincludes/ugprsd/museveni/mus060719b.php Accessed September 9,
2005.
130
President Yoweri Museveni, “Judges Mismanaged their Role,” Monitor Online, June 29, 2005.
http://www.monitor.co.ug/specialincludes/ugprsd/museveni/mus060719b.php Accessed September 9,
2005.
34
131
President Yoweri Museveni, “Judges Mismanaged their Role,” Monitor Online, June 29, 2005.
http://www.monitor.co.ug/specialincludes/ugprsd/museveni/mus060719b.php Accessed September 9,
2005.
132
Peter H. Russell and David M. O’Brien, eds., Judicial Independence in the Age of Democracy, Critical
Perspectives from Around the World (Charlottesville: University Press of Virginia, 2001), p. 11.
133
Peter H. Russell and David M. O’Brien, eds., Judicial Independence in the Age of Democracy, Critical
Perspectives from Around the World (Charlottesville: University Press of Virginia, 2001), p. 301.
134
Tom Ginsburg, Judicial Review in New Democracies, Constitutional Courts in Asian Cases
(Cambridge: Cambridge University Press, 2003), p. 247.
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