Dismissing public interest action is a scandal of epic proportions 

Steven Kalali is an unsung hero of the public interest litigation scene.

On June 17, 2020, in a public interest action brought by the young lawyer and two former prisoners, High court judge Lydia Mugambe held that prisoners and Ugandans in the diaspora have a right to vote and ordered the Electoral Commission to put in place arrangements for them to vote.

Subsequently, the Election Commission negotiated an extension of time to comply with the watershed judgment after the 2021 general elections which were then only six months away.

On June 23, 2022, in what could arguably be the high-water mark of Steven Kalali’s budding career, the Arusha-based East African Court of Justice agreed with his March 2019 case brought against the belligerent Rwandan government, on behalf of ‘Rwandan citizens and Ugandan traders’ who were stranded for three years at the barricaded Rwanda-Uganda border.

Four days later, the restless 32-year-old law graduate of Uganda Christian University returned to the High Court of Uganda, for a second mega-showdown with government over the ‘poor, dilapidated, inhumane and degrading structures’ that it has perennially provided as housing for police officers.

The case is something of a hot potato. Three weeks ago, Kalali lamented to the press that the judges do not seem to want to hear it at the moment, despite the rule that such cases must be resolved expeditiously to ensure effective protection of constitutional rights and freedoms. However, our research shows that getting a hearing date could be the least of Kalali’s worries.

A hostile approach

The major obstacle is, quite simply, Judge Musa Ssekaana and his lordship’s approach to fundamental rights adjudication in present-day Uganda. Our review of his lordship’s judgments and rulings (which can be accessed on www.ssekaana.com) shows a regression in his understanding of the jurisdiction of the court which he currently leads.

In a recent ruling, the judge claimed that a 2019 rule passed by the Rules Committee removed from the High court jurisdiction for ‘the enforcement of human rights through public interest actions on behalf of the people of Uganda’ and vested it in the Constitutional court.

With respect, the approach exhibited by Judge Ssekaana on December 14, 2022 in Legal Brains Trust v Attorney General, Miscellaneous Cause No 314 of 2021, not only shut the door to cases like Kalali’s but also overturned many of the judiciary’s cherished precedents that once set the tone for Uganda’s transformative justice agenda.

Game-changer

On November 15, 2019, government gazetted the long-awaited Human Rights (Enforcement) Act. In the first five sections, the Act clarifies that both the High court and a Magistrate’s court shall, according to a prescribed formula for division of labour, have jurisdiction in human rights cases, including those filed by ‘a person acting in public interest.’

Section 18 authorises the Rules Committee to make rules of procedure that are ‘subject to the provisions of this Act.’ The Rules Committee consists of the Chief Justice as chairman, Attorney General, Deputy Chief Justice, Principal Judge, two representatives of the Uganda Law Society, and the director of the Law Development Centre.

However, in the past 39 months since the coming into force of the Human Rights (Enforcement) Act, the Rules Committee has been idle. It has not met even once to consider facilitating the implementation of this game-changing law.

Due to this omission, courts and practitioners have had to resort to the Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules, 2019.

Indeed, reference was predominantly made to those rules in the title of Miscellaneous Cause No 88 of 2022, the official court name of Kalali’s fresh battle for decent housing on behalf of the oppressed minions at Uganda Police.

OBNOXIOUS PROVISIONS

Gazetted by the Rules Committee on May 31, 2019, these rules are, to put it mildly, embarrassing. They contain obnoxious provisions that were passed six months before the coming into force of the Human Rights (Enforcement) Act with the object of controlling ‘public interest litigation’ like Kalali’s.

The most repugnant clause is perhaps rule 7(2), which when read together with rules 2, 5(1)(d) and 5(2), provides that ‘A public interest action [alleging the violation of human rights, in a matter of public importance] shall be filed in the Constitutional court under Article 137 of the Constitution.’

There are many problems with this rule. First of all, it is plainly inconsistent with the Human Rights (Enforcement) Act which expressly confers jurisdiction for the enforcement of human rights through a public interest action on both the High court and a Magistrate’s court.

Secondly, this obnoxious rule blatantly alters numerous binding decisions of the Supreme court interpreting the jurisdiction of the Constitutional court. In Ismail Serugo v Kampala City Council and the Attorney General, Constitutional Appeal No 2 of 1998, the Supreme court settled this matter as follows (per Justice Kanyeihamba): ‘To be clothed with jurisdiction at all, the Constitutional court must be petitioned to determine the meaning of any part of the Constitution in addition to whatever remedies are sought from it in the same petition.’

Therefore, the Constitutional court does not have jurisdiction merely because an action has been brought ‘in public interest’ as this rule, and the pronouncements of Judge Ssekaana, absurdly imply.

Thirdly, the rule is an unacceptable clawback on the generous legal standing given by Article 50(2) of the Constitution to ‘any person or organisation’ who alleges an actual or apprehended violation of another person’s or group’s human rights.

By purporting to impose on court users the extra burden of demonstrating ‘public importance’, the rule threatens to turn the shield of Article 50 into a sword and, is therefore, unconstitutional.

Lastly, the rule points a foul-smelling finger at its author: The Rules Committee chaired by former Chief Justice Bart Katureebe. How did such glaring defects escape scrutiny by the Rules Committee, or the numerous stakeholders, if at all there was an adequate process of consultation?

The correct approach

It is an elementary principle that any rule which conflicts with an Act of Parliament will be considered as ultra vires, void and of no legal effect.

Thus, in Pte Muhumuza Zepha v Uganda, Criminal Appeal No 31 of 2016, the Court of Appeal found that the Minister had no powers under the UPDF Act to confer on it the jurisdiction to hear appeals from decisions of the court martial appeal court.

The offending rule in the UPDF regulations was declared a nullity in law. It is truly a scandal of monumental proportions that the judiciary’s head of the civil division can use an ultra vires and illegal rule to dismiss a public interest action on the blatantly improper ground that it should have been filed in the Constitutional court, and face no consequences whatsoever.

Mr Kalali and others who wish to protect the masses, in the great tradition of ‘my brother’s keeper’ started by legends like Phillip Karugaba, need to know that the door has been shut by Judge Musa Ssekaana’s tyrannical approach.

The author is the CEO, Legal Brains Trust, a Kampala-based democracy and human rights watchdog