By
Abbey Kibirige Semuwemba
I have been following the recent Uganda Supreme Court(SC) ruling in the case of Hon. Michael Kabaziguruka versus the state, and part of me is somehow surprised by Museveni’s reaction and response. The SC recently ruled that trying civilians in military courts is unconstitutional.
The SC rulings override anything in the military courts if the military law is clearly in contravention of the constitution. Once the law has been ruled invalid, it simply has no effect even if it remains on the books.
If it is attempted to be enforced, the defendant will have the judge dismiss the case or face being disbarred if he ignores the defence’s obvious path of moving for dismissal due to the law being already declared unconstitutional.
The US, which is considered the mother of democracy, does this often. Their Supreme Court has overturned a lot of state laws because they conflict with the US Constitution. States had laws that segregated white and black people that were struck down.
Truthfully, the system of checks and balances is on full display right now in Uganda, and I expected President Museveni and Gen. Muhoozi Kainerugaba to feel proud of this, but they are instead disobeying the law. Muhoozi has sworn that Kiiza Besigye will either leave in a coffin or after an apology to his father. I can’t see Besigye personally apologising for anything unless somebody does it on his behalf.
However, here’s the real secret about our government: it only works so long as enough people play along. Everything you may have learned in school about checks and balances is technically true and yes, those checks and balances are important, but at the end of the day, they only work because enough people choose to play along.
We have laws intended to keep the military under civilian control and limit its involvement in political affairs, but they have continuously been ignored by the executive. Also, if the entire military were to decide to launch a coup, there’s not much other institutions would be able to do to stop them from seizing the State House, putting a bullet in the President’s brain, doing the same to parliament and judiciary, and then declaring themselves in charge. Of course, that too would only be effective if enough of the state/local governments and the civilian populace played along since the military is far too small to maintain a physical presence across Uganda to force compliance.
ENFORCEMENT
The Supreme Court does not have direct power to enforce its rulings or punish the president or military for noncompliance. The SC can only get involved if the law is brought back before them. They have no legal enforcement arm.
The power to get civilians out of the military courts, ultimately, hinges on the respect the military courts have for due process of law under our Constitution. Ultimately, the effectiveness of the Supreme Court’s authority depends on the willingness of other branches of government and state officials to uphold the rule of law.
When the SC rules that a state law is unconstitutional, the expectation is that the state will comply with the ruling. However, if a state chooses to ignore this ruling, there are several avenues through which compliance can be encouraged:
For example, parliament can pass legislation to enforce the Supreme Court’s ruling, or the Public Pressure could also work though, in this case, it has been diverted by opposition politicians only interested in elections. Otherwise, noncompliance can lead to public outcry, political consequences, and pressure from constituents, which can motivate state officials to comply.
Judicial Enforcement could also help – The little enforcement comes in in the form of things like injunctions and court orders.
COMPARISON
This is a fascinating topic for comparative law because different countries have wildly different mechanisms for constitutional review.
For example, in China most constitutional review happens before a law is passed. There is an office in the national legislature that will look at draft laws and if there is anything unconstitutional it is quietly changed before it is approved. Also, constitutional review is considered a legislative process rather than judicial. It is also often informal and non-adversarial. The Chinese way is to get it right first and then implement it.
Under the current state of affairs, the US state courts will follow SC rulings most of the time. Courts have followed the rulings in principle since Marbury. When they fail to do so, appellate courts at both the state and federal level set aside and often remand any decisions which are fatally flawed to the trial court for correction. That is what happened in the 2nd ruling by The Supreme Court in Bush v. Gore. The Florida Supreme Court ignored that instruction by The Supremes, resulting in the third ruling which settled the matter.
Once the US Supreme Court ruled definitively in Bush v. Gore (even though it was a 5–4 vote) to overrule the Florida Supreme Court, that put an end to the matter. One can in part thank Al Gore himself for that – he made an address to the nation saying that although he personally disagreed with the controversial 5–4 decision, when the Supreme Court decided to rule on the issue, he had to (reluctantly) accept it.
I understand Al Gore did that because if everyone decides to disregard the constitution and the power of the Court to interpret it, then at some point there’s going to be no alternative left but civil war. Gore understood that.
UGANDA
In Uganda’s case, Museveni is arguably now the law in Uganda. Besigye and Obed Lutale will probably remain in prison for as long as he wants unless the donors push him to the walls.
The Chief of Defense forces and the president want the law amended such that military courts can continue to try civilians. This is something Ugandans should take seriously as it’s already happening in certain countries. A simple example: In both Belgium and Norway, you can be prosecuted before a military tribunal for breaking civilian law on civilian soil.
Secondly, military law can be applied If a nation declares “martial law’’. Some argue that martial law has been declared at times during United States history, most famously during the Civil War after Congress and President Lincoln suspended habeas corpus, a legal procedure used to challenge detention. However, the Supreme Court rejected an argument that martial law was in place during the Civil War.
The point here is that anytime key people or just enough people stop playing by the rules, the entire structure breaks down. The SC largely relies on the executive branch and the lower courts to enforce its rulings.