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Constitutional court will later this year mark 22 years since its establishment to determine the
In this first of three-part series, SULAIMAN KAKAIRE examines whether more than two decades later the
court has lived up to this dream by highlighting how it had a fresh start and ended up in a backlog crisis.
The sun is almost setting down at one of the three-star hotels in town, where the legal team representing
embattled feminist activist, Dr Stella Nyanzi, is embroiled in a discussion of how they will have to deal with
the introduction of an application by the state seeking to examine the mental capacity of their client who
The application is brought under the Mental Treatment Act 1938 (MTA). To the reasoning of Nyanzis
defence team comprising of majorly human rights activist lawyers, it is quite surprising to them, if not
embarrassing, that the prosecution could introduce an application under the MTA.
They proposed several options, including criminal revision but they seemed to agree on taking the matter
to the Constitutional court to challenge the constitutionality of the application. However, therein lay serious
concern.
Outgoing deputy Chief Justice Steven Kavuma
Going to the Constitutional court is ideally the right thing because it settles this matter with a precedent
but when will that decision come? Perhaps after five years or more. We need to deal with this as an urgent
matter. Maybe, that option is thought of to strategically stifle the whole proceedings, one of the lawyers
opined.
This lawyers thoughts are reminiscent of the psyche of the users of the Constitutional court.
Peter Walubiri, a seasoned constitutional law litigator, observes that: I have litigated in that court since its
inception and I agree to the fact that the court has over time been made inefficient...what it is known for
now is to give postmortem orders. This is not normal...Ideally, a litigant goes to court to seek for
declarations that promote or protect their rights but when the court delays to adjudicate then, it perpetuates
injustice.
HISTORICAL CONTEXT
According to the report of the Constitutional Review Commission (CRC), which gathered the public
opinions as to what was to be included in the 1995 Constitution, there was consensus amongst the Uganda
In his book entitled The Search for National Consensus, former chief justice Benjamin Odoki, who also
chaired the CRC, writes that it was this general consensus that made them propose for the establishment
Indeed, the Constituent Assembly (CA) deemed it fit to establish the Court of Appeal as the Constitutional
court to determine any question as to the interpretation of the Constitution, but, in particular, to examine
whether an Act of Parliament or any other law is inconsistent with the Constitution.
Mindful of the importance of constitutional interpretation matters, the CA gave further clear directives that
during the pendency of a constitutional petition, The Court of Appeal shall proceed to hear and determine
the petition as soon as possible and may, for that purpose, suspend any other matter [be it a civil or
This provision is re-enacted under Constitutional court (Petitions and References) rules formulated by the
The rules committee went further to provide under Rule 10 that: The court shall sit from day-to-day and
may, for the purposes of hearing and determining the petition, sit during Saturdays, Sundays and on public
holidays where the court considers it necessary for ensuring compliance with Article 137 (7) of the
Constitution...
Walubiri, who is currently leading the legal team representing Nyanzi in the Constitutional court, told The
Observer that whereas the historical context shows that there was hope in the court to act as the custodian
of constitutionalism, it has instead become the greatest disappointment in the struggle for
constitutionalism.
The court does not handle matters with utmost urgency or expeditiously as provided by law and in the
According to the records, the first cases that were filed in the court while being headed by the then deputy
chief justice, Seith Manyindo, were determined within a year. For instance, the case of David Tinyefuza
vs Attorney General was filed in December 1996 and determined on April 25, 1997.
Other cases filed and determined during the same year include Serapio Rukundo vs Attorney General
[1997], Uganda Journalists Safety Committee and Others v Attorney General (Ruling), Charles Onyango
and Another v Attorney General, and James Rwanyarare and Another v Attorney General.
All these cases were filed and determined in 1997. Towards the end of 2000, this trend changed as cases
Indeed, the judiciary carried out the national court case census in order to determine the extent of case
backlog in the courts. As of January 2017, the findings indicate the Constitutional court has 359 pending
cases, out of which 213 cases were backlog representing 59 per cent. Meanwhile, constitutional
applications constituted 45 per cent of the case backlog in the same court.
According to the report, there are 117 constitutional petition cases considered to be backlog and 96
constitutional cases applications. Of these, nine petitions and three applications have been in the court for
Other factors are corruption, ineffective support supervision, lack of skills and lack of knowhow, leadership
vacuum for prolonged period, poor case management including lack of control of court processes and
CAUSE OF BACKLOG
Weighing in the possible causes of backlog at the Constitutional court, Patricia Mutesi, a senior principal
state attorney in the attorney generals chambers, told The Observer that backlog was inevitable because
as more people became aware of their rights, they flooded the court.
This increased the workload in the court and yet the number of justices in the court was not being
increased to match the rate of cases being filed in the court, she said.
Mutesi argues that although the court is empowered to enforce human rights, this is possible with a
qualifier: it can only do so upon determining a question that deserves constitutional interpretation.
of Ismail Serugo v Kampala City Council and Attorney General, where it expressed its reservations that it
is not a competent authority for enforcing human rights per se as most Ugandans had perceived it.
However, it could only go into the arena of enforcing human rights upon interpretation of the Constitution.
But, even after the Serugo decision, the backlog continued to build up.
Mutesi argues that the subsequent backlog must be understood from the period when the Court of Appeal
ran short of coram, especially at a time when some justices retired from the court.
Between 2009 [and] 2011 there was a build-up of cases because the Court of Appeal had only four
justices yet listening to a constitutional petition required five; so, the backlog can also be attributed to this
There are litigants who started to abuse the court, especially those who were being investigated to face
criminal prosecutions. They would file a petition and, subsequent to it, apply to stay proceedings knowing
very well that the court will take long to listen to the petitions.
In the 1997 cases of John Arutu vs Attorney General and Charles Onyango and Another v Attorney
General, the Constitutional court held that where criminal proceedings are pending in another court in
respect to the same matter, then the petition, the Constitutional court petition, should be stayed pending
Whereas this had been intended to avoid abuse of the court most, especially where litigants could stifle
criminal proceedings with constitutional petitions, this position of the law was reversed in 2008 by the
Supreme court in the case of Charles Onyango Obbo vs Attorney General, wherein it was held that where
the constitutional validity of any law or action awaits determination by the Constitutional court, it is
important to expedite the determination in order to avoid applying a law or taking action whose validity is
questionable.
The Obbo decision opened floodgates yet again. Indeed, the committee that investigated backlog took
note of this by stating: There are lots of unnecessary references to the Constitutional court, possibly used
as a stalling device. As a result, the higher court then gets bogged down with these cases, and the lower
MANAGEMENT CRISIS
Isaac Ssemakadde, the chief executive officer of Legal Brains Trust, a civil society organisation that has
several public interest cases pending before the Constitutional court, observed that backlog must be
understood in the context of rule 20 of the Judicature (Court of Appeal) Rules that grants mandate to the
In my view, this should be the context under which we should understand the backlog. If the court was
okay during the times of justices Manyindo, [Leticia] Kikonyogo, [Mpagi] Bahigeine and [Constance]
Byamugisha, why is it that it has become less efficient during [Steven] Kavumas tenure? I think there is a
Ssemakadde argues that vacancies in the court have always been there but good managers knew how to
Manyindos court used to adopt judges from the High court. This is how justices [Fredrick] Egonda-Ntende
and [Patrick] Tabaro came to be identified with the jurisprudence of the court. If not, they became
instrumental in shaping it. We have judges at the High court who can manage this task. These people can
help in dealing with the backlog. That is how he could have dealt with the situation, Ssemakadde added.
Walubiri agrees with Ssemakadde and adds: The current managers have failed to regulate continuous
travels by the justices. Sometimes the case is fixed but of the five judges one is absent or two because
they have gone for medical treatment or attending a workshop. There are better days to attend workshops.
Why fix a case on a day when someone is due to travel out of the country?
Walubiri further argues that you can also make provision for summarised judgments and detailed
There are instances when [Seth] Manyindos court used to do this, he said.
Whereas Kavuma has been put on the spotlight by some activist lawyers, Walubiri says that he is not a
poor manager per se but his love for promotion diverted him.
Kavuma initially let the justices to do what they wanted but when he increasingly wanted to be Odokis
successor, he started acting in a very funny way. He could fix cases and select a panel based on the
political nature of the case. This was very bad on his part. But, well, the jury is out there, Walubiri said.
On his part, Justice Kenneth Kakuru, who formerly litigated in the court and is a justice in the court, told
I do not think that backlog could have been an issue if there was good management. For instance, we
have been here since 2013 but some of these cases are not fixed. Why? I think it is poor administration,
Kakuru said.
Justice Kakuru argues that if the panel of Seven Justices managed to dispose of many cases, how could
a panel of 14 fail?
From the 14, you can get five justices to sit as permanent members of the Constitutional court, three to
listen to appeals, three to listen to civil appeals and the other three can be for reserve. I personally do not
have too many matters pending before me yet the court has backlog. I cannot allocate these cases to
myself, he said.
But, Kakuru also adds that in addition to the poor administration, the court is poorly funded, something
going to constrain the national resource envelope. In their view, they thought that so long as you have the
High court and Supreme court, they would deal with matters.
As a compromise position, when the court of appeal was being established, it was resolved that it should
also act as the court of appeal. Ideally, this made economic sense, but practically it does not because the
constitutional court does not get enough resources. Its budget is for instance, less than that of a division
of the High court; the divisions are funded by donors. This court is not funded, Kakuru said.
On his part, Ladislaus Rwakafuuzi, a human rights lawyer and litigator in the court, told The Observer that
the sole cause of backlog and inefficiency of the court is the appointing authority.
The person who appoints the judges is responsible for creating this situation. He deliberately refused to
appoint justices until he landed on his trusted cadres. That is how we got these bad managers in the court.
I think that the previous people had some sense of justice which is not the case with the current people.
skakaire@observer.ug
This article is a product of The Watchdog and was produced with support from the African Centre for