THE OBSERVER

Delayed Justice, Part I: How case backlog came to

dog Constitutional court
September 15, 2017

Written by Sulaiman Kakaire

Constitutional court will later this year mark 22 years since its establishment to determine the

constitutionality of laws and particular acts or omissions by any person.

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

is subject to criminal proceedings.

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

population on the need for a permanent institution to safeguard human rights.

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

of the Human Rights Court/Commission, Constitutional court, etc).

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

criminal appeal] pending before it.

This provision is re-enacted under Constitutional court (Petitions and References) rules formulated by the

Rules committee then chaired by Justice Odoki.

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

long run, it has become inefficient in its cardinal role, he said.

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

started to last for more than a year.

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

more than 10 years.

Generally, the report indicates that poor work attitude and poor performance by some judicial and non-

judicial officers in the judiciary are the causes of backlog.

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

management of requests for adjournment.

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.

Justice Kenneth Kakuru (L) and Justice Remmy Kasule

Towards the close of 1990s, the court became aware of this perception and it had to clarify it in the case

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

period, she said.

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

the determination of the criminal matter.

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

court has to wait for a decision before it can continue.

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

deputy chief justice to manage cases in the court.

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

management gridlock during his tenure, he said.

Ssemakadde argues that vacancies in the court have always been there but good managers knew how to

deal with it.

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

reasoning can come later.

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

The Observer he cannot agree more on poor management of the court.

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

that can be traced from the time of its formation.

When there were proposals to establish this court, the donors were opposed to it on grounds that it is

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.

Maybe if the new DCJ changes things, Rwakafuuzi said.

skakaire@observer.ug

This article is a product of The Watchdog and was produced with support from the African Centre for

Media Excellence (ACME).