When the Gavel Falls Silent: How the Ugandan Judiciary Silence on Attorney General v Kabaziguruka Reflects a Betrayal of the Social Contract and the Rule of Law

The Ugandan Judiciary is currently facing immense criticism for its deafening silence in the ongoing controversy surrounding the trial of civilians in the General Court Martial, particularly the Supreme Court's delay to determine the application of appeal in Attorney General v Kabaziguruka (Constitutional Application 5 of 2021) [2021] UGSC 3.

Background of the Case

This case revolves around an interim order suspending the implementation of a Constitutional Court decision of Hon. Michael Kabaziguruka Versus Attorney General Constitutional Petition No. 45 Of 2016 https://www.lawpointuganda.com/post/case-brief-of-hon-michael-kabaziguruka-versus-attorney-general-constitutional-petition-no-45-of-2 that barred the General Court Martial from prosecuting civilians. A panel of five Justices, led by Chief Justice Alfonse Owiny-Dollo, issued a temporary order that was supposed to run until July 29, 2021. This was to allow the Justices to study the government’s appeal and make an appropriate decision.

The Attorney General’s memorandum of appeal criticized the Constitutional Court for deciding that the Army Court is neither impartial nor independent enough to try even military personnel for non-service offenses. Despite this, the Supreme Court has yet to render its decision. The Constitutional Mandate of the Judiciary. The Judiciary, as the third arm of government, is constitutionally mandated to act as a check on the legislature and the executive. However, instead of fulfilling this role as dictated by the principle of separation of powers, the Judiciary has abetted the erosion of the rule of law and discarded the social contract theory it holds with the citizens of Uganda.

Quoting the recent Uganda Law Society's State of the Rule of Law: Second Quarterly Report (April - June 2024) (p. 32)https://uls.or.ug/wp-content/uploads/2024/07/Uganda-Law-Society-Second-Quarter-Rule-of-Law-Report-2024.pdf:

“The functions of government are best performed in a climate of closer consultation and cooperation between the organs of government. In the words of former Uganda Chief Justice Benjamin Odoki, it may be said that the doctrine of checks and balances requires that although the roles and responsibilities of the main organs of the state are far different, they are so closely connected that none of them can work properly on its own; they are like three cooking stones under a pot. Each of the organs has distinct roles and purposes, but the prime idea behind checks and balances is the prevention of a monopoly of power. Nowadays, the doctrine has come to be accepted and seen as a means of fostering democracy, justice, and liberty in the land.”

The above highlights that the Judiciary’s deliberate and convenient refusal to determine the appeal in Attorney General v Kabaziguruka undermines the essential social contract between the citizens and the state, and abrogates the principle of separation of powers. The Ugandan Judiciary 's silence in response to this case is both alarming and unjustifiable. The Social Contract Theory Is A Framework for Justice

The social contract theory, nearly as old as philosophy itself, posits that individuals’ moral and political obligations are dependent on a contract or agreement among them to form the society in which they live.https://iep.utm.edu/soc-cont/#SH2a

French philosopher Jean-Jacques Rousseau, a proponent of the normative social contract, once asked: How can we live together without succumbing to the force and coercion of others? Rousseau argued that individuals could do so by submitting their particular wills to the collective or general will, created through agreement with other free and equal persons. Like Hobbes and Locke before him, Rousseau believed that all individuals are by nature equals, and therefore no one has a natural right to govern others. The only justified authority is that generated through agreements or covenants.

Rousseau's foundational idea aligns with Uganda's constitutional framework. Under Article 1 of the 1995 Constitution:

All power belongs to the people, who shall exercise their sovereignty in accordance with the Constitution.
All authority in the state emanates from the people of Uganda, who shall be governed through their will and consent.
All power and authority of government and its organs derive from the Constitution, which, in turn, derives its authority from the people who consent to be governed in accordance with this Constitution.

Similarly, Article 126(1) & (2) provides:

“Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms, and aspirations of the people.”

This implies that justice must be accessible, impartial, and timely. However, by systematically delaying or refusing to address cases of significant constitutional importance, the Judiciary betrays this social pact.

Background of the Case

The Judiciary’s Deafening Silence

A pressing question remains: Why has the Judiciary chosen to remain silent on a matter of such importance? The lack of a prompt and decisive response raises serious concerns about the Judiciary's ability to check governmental powers effectively.

For example, in previous cases like Michael Kabaziguruka v Attorney General (Constitutional Petition No. 45 of 2016), a strong judicial response established crucial precedent for protecting citizens' rights from being tried in the General Court Martial. The current silence threatens to undo this progress, potentially repeating history with dire consequences.

Implications of Silence

The social contract establishes mutual obligations between the government and its citizens, focusing on rights and freedoms guaranteed by the Constitution. When the Judiciary fails to act, it not only jeopardizes this foundational principle but also fosters a culture of impunity among state actors.

The Judiciary's continued silence on Attorney General v Kabaziguruka undermines citizens’ faith in its independence and effectiveness. This silence reflects a breach of its constitutional mandate and a betrayal of the trust Ugandans have placed in this crucial institution.

Conclusion

The Ugandan Judiciary must rise to the occasion and fulfill its constitutional duty to uphold the rule of law and protect the social contract. Its silence on critical cases like Attorney General v Kabaziguruka risks dismantling the very foundations of democracy and justice in Uganda. Without decisive action, the dominoes of impunity will continue to fall, and the Judiciary will be remembered as the force that gave them the first push

Our Judiciary must remember that public perception plays a crucial role in the overall trust in Uganda's legal system. The Judiciary's silence regarding the Kabaziguruka case is likely to further erode public confidence, as citizens may feel the courts are unable or unwilling to protect their rights. This perception can breed skepticism.

When courts are seen as indifferent to essential constitutional issues, the implications are far-reaching. Citizens may seek alternative means of redress, which could lead to increased civil unrest. For instance, after the 2011 elections, Uganda witnessed a noticeable rise in protests and demands for accountability, signaling how disillusionment with the legal system can manifest.

By Waboga David The rule of law is the backbone of any democratic society. When it is compromised, the entire structure begins to wobble. Without adherence to legal principles, governance devolves into a game of cat and mouse, where might makes right, and the end justifies the means.