Courts always do politics. But the courts in East Africa do a different kind of politics. This is at the heart of Makerere University law don, Joe Oloka-Onyango’s latest book.
Prof John Griffith, who is quoted in the book, suggests it would be naïve to expect courts to be neutral because according to him, neither impartiality
nor independence necessarily means neutrality. He adds that judges are part of the machinery of authority of the state and as such cannot avoid making political decisions.
But Oloka-Onyango is cognisant of this fact and says in the book’s introduction that the question he would dwell more on is what kind of politicking the courts do, because whether or not they do politics is no longer in question.
Few understand the intersection of politics and the law in this part of the world than Oloka-Onyango.
A leading scholar of constitutional law, Oloka-Onyango has previously authored several works on these subjects. The latest is Controlling Consent, a book about the Ugandan 2016 elections that he co-edited.
And his 2015 inaugural lecture, Ghosts and the Law, focused on the controversial Political Question Doctrine (PQD) or the idea that an issue is so politically charged that courts would rather not touch it.
Oloka-Onyango discusses the doctrine further and says it has riddled post-Independence East African courts, especially in Public Interest Litigation (PIL) cases.
The don has also been personally involved in these cases. In 2016, he led other law dons as amicus curiae, friends of the court, in the presidential election petition, in which Amama Mbabazi challenged the victory of President Yoweri Museveni.
The law professor was also the lead petitioner in the Anti-Homosexuality Act petition with which he begins the narration in the book. While the doctrine of locus standi — a doctrine about the interest or connection of the litigant in an issue to merit a court’s attention — that the book discusses in its first and second chapters was cured by the 1995 Constitution and the 2010 Constitution in Uganda and Kenya respectively, the book demonstrates how PQD has remained an impediment to public interest litigation in East Africa.
The doctrine first found its way into the Ugandan courts system in the 1966 case of Re: Ex parte Matovu but the book demonstrates its resurgence with the latest victims being the petitioners in CEHURD v AG and IPPR v AG both in which the courts said the issues in contention were a preserve of the Executive.
Notwithstanding these barriers, the book in its third chapter demonstrates how PIL has developed in East Africa and “evolved into a new form of transformative constitutionalism”.
This is attributed to the formulation of constitutional instruments in Uganda and Kenya through articles 50, 126 and 137 of the Uganda Constitution and articles 22, 23 and 258 of the Kenya Constitution.
The book, for instance, reveals that more than 3,000 PIL cases have been filed since the promulgation of the Uganda Constitution in 1995 yet fewer than five were decided between Independence in 1962 and 1986 when the NRM came to power.
Even in Tanzania where the efforts to have an inclusive constitution are still underway, the book notes that the courts and judges are already advancing PIL.
Perhaps the politics practiced by courts would not be fully appreciated without an assessment of the most political cases, which are the Presidential election petitions.
Chapter Six is dedicated to the most contentious subject that the courts have been tasked to resolve: Presidential election petitions, noting that these “bring out the picture of the political context in which the courts operate.”
While courts initially did not have to deal with adjudicating on presidential elections, the author says the 2000 George Bush-Al Gore petition in the US prised open the proverbial can of worms.
He explores presidential elections in Kenya and Uganda in detail and their outcomes. Readers will find that the author ably discusses the issues that the judiciary is grappling with in great detail and gives them deep historical and comparative analysis. Also, the book might resurrect the debate about constitutional reforms and issues like the appointment of judges, especially Justices of the Supreme and Constitutional Courts, which might be influential in ridding courts of politics.
The book also explores the significance of public interest litigation and might contribute to its growth and development as an important mechanism for pursuing social justice and constitutionalism. Although the East African region now comprises of six states, the book discusses only three.
The author, however, explains that the omission of the historically Francophone Rwanda and Burundi was informed by their different socio-legal and political heritage, while South Sudan’s experience of political independence is too short to offer meaningful comparative conclusions.