Explaining Improbable Cases of Judicial Independence: The Example of Uganda

–Johanna Kalb, Loyola University, New Orleans

In a recent editorial in the Daily Monitor, law professor Busingye Kabumba of Makerere University in Kampala describes the country’s 1995 Constitution as “essentially an illusion.”[1]   While the first article of the Ugandan Constitution gives “[a]ll power to the people,” Professor Kabumba suggests that the shared perception among Ugandans is that “all power belongs to the President, who exercises his sovereignty through the army.”   He then catalogs various attacks and insults that demonstrate the disdain with which President Yoweri Museveni treats the other branches of the Ugandan government.  Professor Kabumba is likely correct in his assessment of Museveni’s constitutional fidelity, but the Ugandan judiciary doesn’t seem to have gotten the message that the Constitution is a sham.  In recent years, Ugandan courts have issued a number of significant rulings enforcing constitutional limitations on executive authority. Given the political climate that Kabumba describes, the independence of the Ugandan judiciary (which the World Economic Forum ranks in the top half of countries worldwide) is somewhat of a pleasant surprise.

With democracy promotion efforts increasingly focused on building the rule of law, the question of how independent courts emerge and survive in transitional regimes has become significant.  Early work in this area tended to emphasize societal factors external to the judiciary, but a growing literature has focused on what judges themselves can do to establish their own independence, even in the face of threats by other political actors.  My forthcoming article in the Yale Journal of International Law looks at this problem in the context of the debate over the judicial practice of foreign and international law citation.  I argue that in countries in transition, comparative citation is a tool that courts can use to build their own autonomy and legitimacy, as well as that of the nation’s new political institutions.

After a country has its first set of elections, it can either move forward toward solidifying the new democracy or it can start to regress.   In theory, strong courts can help keep the country on track.  They can create and preserve horizontal accountability by enforcing the separation of powers between the newly divided branches of government.  And they can promote vertical accountability between the citizenry and the government by developing and protecting core individual rights.   These are difficult tasks for courts lacking in institutional protections and facing tremendous pressure from the other branches to get in line.  But transitional courts face an additional challenge – they’re trying to do all this under the watchful and sometimes critical eye of the international community – including donors, international institutions, multi-national corporations, and international NGOs.  So a “well-intentioned” court, trying to build and preserve these lines of democratic accountability, must consider the response of not only domestic, but also international audiences who are sometimes in agreement, but sometimes not.

This is an additional challenge, but it also represents a new opportunity.  It gives the court the chance to engage in building the channels not just of horizontal and vertical, but also what I’m calling “diagonal accountability.”  Diagonal accountability describes the alternative and informal channels of communication and leverage between domestic and international audiences that courts may use to build and reinforce accountability when traditional, formal pathways are weak.  For example, courts may draw on international support vertically to protect against encroachment on their authority from the other branches horizontally –by reaching out to influential international institutions to put pressure on the president to comply with a judicial order limiting his authority.  Alternatively, courts may be well-positioned to safeguard the authority of other domestic institutions along the horizontal axis, by acting as a site of resistance against coercive vertical pressures from the international community – for example, by striking down as unconstitutional domestically unpopular legislation forced on the elected branches by international actors.

 

To draw on these paths of diagonal accountability, the judiciary must be able to mobilize different audiences to back its judgments, which only happens if courts are perceived internally and externally as independent and legitimate. This is where comparative citation comes in as a tool of diagonal accountability.  Tom Ginsburg has demonstrated that new constitutions adopt international law norms in order to signal that the new government should be taken seriously both by the international community and by important domestic interest groups.[2]  Comparative citation can work the same way.  It allows courts to demonstrate to both domestic and international observers that they are serious about the rule of law by adopting widely shared best practices.  Moreover, courts can use comparative citation as a public relations tool for the court and the legal regime.  By situating their substantive decisions on domestic issues within the international context, courts can draw attention to domestic developments from scholars, foreign governments, other courts, and NGOs.  Because of its signaling value, comparative citation can be an important tool of diagonal accountability.  Regular and strategic reliance on international and foreign law can build the stature of new courts such that they can draw “diagonally” on sources of legitimacy and authority that extend beyond national borders – and call attention to their attempts to constrain the overreaching of the political branches.

 

While the complexities of the interactions involved make proving this theory empirically a challenge, the Ugandan judiciary seems to offer an example of how courts can draw upon mechanisms of diagonal accountability to protect their autonomy in the face of internal challenges to their independence.  By presenting themselves as committed to the rule of law, evidenced in part through the regular citation of international and comparative law in their decision-making, the Ugandan courts have effectively mobilized domestic, regional, and international actors on their own behalf.

 

The most significant, recent threat to the independence of Uganda’s judiciary came in the government’s response to a series of judicial decisions rebuffing politically motivated attempts to prosecute a key opposition leader, Kizza Besigye, and his supporters for treason.[3]  The Attorney General and the military attempted to remove the defendants from the jurisdiction of the civilian courts by drawing on a newly-passed Antiterrorism Act for the authority to try them in a military court martial.  The case brought the executive branch and the judiciary into direct conflict.  The defendants’ first bail hearing was interrupted by the arrival of thirty armed commandos who tried to force their way into the holding cells, resulting in an evacuation of the judges by court security.  When reports of the behavior of the “Black Mambas” reached the press, the government banned media discussion of the case.  President Yoweri Museveni publicly criticized the courts, accusing them of playing partisan politics by supporting Besigye.

 

Despite these attacks, the Ugandan courts continued to defend their independence with the support of both domestic and international constituencies.  Some of the judges and justices spoke out publicly against the attacks on the judiciary.  The bar association and the national human rights commission publically criticized the government’s actions and mobilized street protests.  Despite governmental bans, several newspapers continued to write critical editorials.  A number of foreign leaders condemned the attack of the judiciary and several foreign governments even cut bilateral aid programs in protest.

 

These efforts were somewhat effective.  Besigye was allowed to stand for the election and lost, although by a smaller margin than in 2001.  Following the election, the government announced that it would comply with the Constitutional Court’s ruling that only the civilian courts could hear the case against Besigye.  The treason charges continued in civilian court before a new judge, who stayed the trial to permit the defense to challenge the constitutionality of the prosecution.  In October 2010, the Constitutional Court unanimously dismissed the treason cases against Besigye and his supporters, holding that in light of the governmental attacks on the petitioners’ human rights, no subsequent prosecution could meet the constitutional standard for a fair trial.  In enjoining the continued prosecution to preserve “the Rule of Law in Uganda,” the Court relied on language from the courts of Kenya and the United Kingdom to bolster its authority.[4]

 

Besigye has since been rearrested (repeatedly) on other charges and as Professor Kabumba’s article suggests, the struggles for accountability in Uganda continue.  Nonetheless, the judiciary in the Uganda maintains its position as a reasonably neutral arbiter of constitutional conflicts.  The Court’s regular reliance on international and foreign law is one tool that it employs to draw “diagonally” on sources of legitimacy and authority that extend beyond national borders and call attention to its attempts to constrain the overreaching acts of the executive, even in the face of threats to the judges’ own personal and institutional security.  Moreover, the perceived independence of the judiciary and the political support it enjoys domestically and internationally likely help to explain why Besigye continues to challenge Museveni through the political process, rather than by the forceful means that have characterized Uganda’s previous political transitions.

 

To be clear, I’m not arguing that comparative citation is legitimate and legitimating under all circumstances.  Nor am I suggesting that it is some kind of magic bullet for judicial independence. Rather, I offer comparative citation as an example of a tool that the judges in places like Uganda may use to build their own institutional authority and autonomy even in a hostile political environment.  And, I offer it more broadly as evidence that democracy advocates, both on the inside and the outside of transitional regimes, should think creatively and expansively about the ways that judges can contribute to the nation-building project, as well as about the tools that they have at their disposal.