Constitutionally Speaking…Letter to a young judicial officer 

I dedicate today’s column to all young persons who currently serve as judicial officers.

I leave the precise definition of ‘young’ in this case to each individual, so that it perhaps applies to all persons who might self-identify as such.

Nonetheless, I broadly have in mind persons who have come of age in Museveni’s Uganda – who cannot quite remember ‘the days of Idi Amin’ but are also old enough to remember, even if vaguely, the Kabaka riots of 2009. In the first place, congratulations. As you are no doubt painfully aware, it is extremely difficult to find a job in this Uganda of ours.

You are among the very lucky ones. You went to primary and secondary school, law school (either directly or after pursuing a Diploma in Law or a university degree in another discipline) and did the Post Graduate Diploma in Legal Practice at the Law Development Centre (LDC).

You might have then worked for a time in one of the law firms in Uganda, or a Non-Governmental Organization, or tried your hand at business. Or perhaps, like many other young Ugandans, you experienced a period of prolonged unemployment – living at home with your parents or guardians, and staying away your classmates and friends to avoid having to answer difficult questions.

Either way, at some point, you decided to apply to become a judicial officer. You must have had good reasons to do so. Aside from the desire to do serve the public, I suspect you desired a change in your material conditions. You were tired of the bad life – of the small (or non-existent) salary a young lawyer usually endures, the dangerous boda boda rides (exposed to all the weather elements of strong sunshine, rain and thunderstorms), the missed meals and all the other indignities of post-LDC poverty.

Luckily for you, you were shortlisted, made it through the interviews and eventually received that letter from the Judicial Service Commission with the phrases ‘I am pleased to inform you…’ and ‘You have been appointed …’.

From that moment, your life was suddenly transformed. From the relative obscurity and tenuous existence, you were elevated to the status of ‘Your Worship’. I am sure it felt strange at first, but you soon came to embrace it – and the power that comes with it. By a stroke of your pen, you can determine the fate of hundreds, even thousands, of Ugandans.

You decide who gets the kibanja; who is entitled to monetary compensation; who obtains the divorce (and, where applicable, custody of the children); who gets the injunction; who is guilty or innocent of crime; who is remanded; who is set free. Your decisions can, and often do, change the lives of human beings and those who love them or depend on them.

In many ways, your title – ‘Your Worship’ is itself a combination of prayer and supplication, on the one hand, and perhaps even a little deification and idolatry on the other. Perhaps, no citizen should be required to refer to another as ‘Your Worship’ – particularly when that citizen’s taxes pay the salary of the person so addressed.

Constitutionally speaking, perhaps, this title (and others such as ‘Your Lordship’) are not in keeping with the new compact between citizens and judicial officers. As you are no doubt aware, under Article 126 (1) of the 1995 Constitution, we are reminded that judicial power is derived from the people and that it must be exercised in their name and in conformity not just with the law but also their values, norms and aspirations.

But, I digress. With the power of your new position – came relative material comfort. You have an extremely generous (and tax exempt) salary; access to a vehicle supplied and fueled by the State as well as many other perks designed to insulate you from the danger of being compromised by litigants and other persons. Nonetheless, Your Worship, please remember that while you might personally be temporarily insulated from the vagaries of Uganda by virtue of your office and the material and other comforts it comes with, you ultimately remain very much a part of the ecosystem of suffering that is life in Uganda.

And it is precisely these challenges which the current ‘Gen Z’ protests in Uganda are aimed at confronting and dismantling – the corruption which lowers the quality of all aspects of life in this country. The protests against corruption are aimed at creating a Uganda in which all can prosper – in which all have a chance at the good life.

Critically, they are protests by persons like you. Young Ugandans, with whom you will interact for a very long time. They are your doctors, lawyers, entertainers, journalists, mechanics, chefs, tradespersons, tailors and others. They also include many unemployed young persons.

They are, essentially, you (or the ‘you’ before you became ‘Your Worship’). They are your friends, classmates, brothers, sisters, cousins, nephews, nieces – and critically, your fellow citizens. Unfortunately, whenever they have attempted to peacefully exercise their constitutional and democratic right to assemble and protest the pitiful state of Uganda, they have been met with the strong arm of the State.

They have been unreasonably arrested, and charged with all manner of silly and patently unconstitutional (and colonial) offences such as being ‘idle and disorderly’, ‘common nuisance’ and, in one case even ‘attempted hate speech’. These would be laughable if the stakes were not so critical.

Certainly, the Constitutional Court in Francis Tumwesige Ateenyi v Attorney General has already guided about the spurious nature of such offences (dealing with the offence of being a ‘rogue and a vagabond’ in that particular instance).

Your Worship, how can you feel comfortable, faced with such clear instances of abuse of police powers and prosecutorial discretion, feel comfortable in remanding such young people for even a single day, let alone a week or even longer? Is that not one instance where those infamous ‘phone calls’ should be ignored.

Of course, you have the independence which comes with judicial office, as guaranteed under Article 128 of the Constitution. This was a point stressed in the Press Release issued by the Judiciary of Uganda this Saturday, 27th July 2024. Nonetheless, it is also true – and this was a point neither addressed nor acknowledged in that Press Release – that judicial immunity and judicial discretion do not mean or include judicial impunity.

As Justice Prof Lillian Tibatemwa- Ekirikubinza observed in the case of Attorney General v Gladys Nakibuule Kisekka (Constitutional Appeal No.2 of 2016): ‘Judicial officers cannot oppose calls for accountability on the ground that it will impinge upon their independence. Independence and accountability must be sufficiently balanced so as to strengthen judicial integrity.

Whereas independence bolsters judicial courage, accountability bolsters the integrity a judge demonstrates in the exercise of judicial discretion.’ Ultimately, Your Worship, you are accountable to, and subject to the constant scrutiny, of Ugandans – including that of the many young people who will remain your fellow citizens long after the ‘1986 generation’ has left this world.

Yes, the current protests are a generational moment – with generational momentum. While your fellow young Ugandans may look away, momentarily, when you accept ‘appreciation’ with respect to the exercise of your judicial discretion, it is an entirely different matter when what is at stake are such core and critical values such as the freedoms of assembly and speech and to participate in civic affairs.

If they are unjustly arrested and subjected to trumped up charges by the Uganda police and the Office of the Director of Public Prosecutions (ODPP), they look to and trust you to at the very least ensure that they are granted bail by default – on their own recognizance. Certainly, they should not be remanded for days, and when eventually produced be required to establish all manner of requirements: excessive cash bail, ‘substantial’ sureties (whatever ‘substantiality’ means!) and other manifestly strange requirements.

These can only have a chilling effect on their natural and constitutional right to peacefully protest against the conduct of public affairs. Your Worship, you are duty bound, when confronted with these cases, to jealously guard the value of liberty, over the casual and flippant route of unjustified remand as you ‘study the file’.

Liberty is not a light thing, and its deprivation – even for a single hour or day – is not something to be trifled with. It is not something to defer because: ‘it is now 5pm’ (incidentally, the Judiciary appears to be able to issue Press Releases on Saturday!) or because ‘the State Attorney is not here’.

In this respect, I humbly commend to you the immortal words of the then Principal Judge, Justice James Ogoola in the case of Col (Rtd) Dr Kiiza Besigye v Uganda (Criminal Application No.228 of 2005, arising from Buganda Road Criminal Cases Nos 794 of 2005 and 955 of 2004).

In granting the accused person (charged with the obviously political but no doubt quite serious offences of treason and rape) interim bail, Justice Ogoola observed: ‘…I have taken into consideration the fundamental importance of bail as the judicial instrument for ensuring the liberty of the individual. In this regard the quest for bail is a quest for liberty.

The right to the liberty of the individual is next only to the individual’s right to life itself. Liberty is as crucial in a free and democratic society as breath is to life … In our constitutional matrix here in Uganda, liberty looms large. The liberty of one, is the liberty of all. The liberty of one must never be curtailed lightly, wantonly or, even worse, arbitrarily.

Article 23, Clause (6) of the Constitution grants a person who is deprived of his or her liberty the right to apply to a competent court of law for the grant of bail. The courts from which such a person seeks refuge and solace should be extremely wary of sending such a person away empty handed – except of course for good cause.

Ours are courts of justice. Ours is the duty and privilege to jealously guard and defend the rights of all, in spite of all.’ Your Worship, be careful to be on the right side of history – rather than be caught in the cobwebs of the fast-diminishing ‘class of 1986’.

Long after they are gone, you might have to contend with your fellow young Ugandans who have been introduced to the stench of prison merely for peacefully exercising their constitutional rights.

The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.