IS "THE RULE OF LAW" AND "JUSTICE" RELATED, IF SO, HOW? A PERSPECTIVE OF UGANDA'S ADHERENCE TO IT.

Different referencing sources have defined the concept of “The Rule of Law”, and this article intends to get the various definitions accorded to the concept of Rule of Law, and whether the various definitions bare any semblance with "Justice".

Starting with the definition from the Black’s Law Online Dictionary[1],

Rule of Law is defined as,

“The predominance that is absolute of an ordinary law over every citizen regardless of that citizens power.”

Whereas the Oxford English Dictionary defines “The Rule of Law" as:

"The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes."

This implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges. In this sense, it stands in contrast to an autocracy, dictatorship, or oligarchy where the rulers are held above the law.

Even though, the Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called “monocracy” (A system of government by one person only.)[2]

Therefore the implication attained is that rule of law implores every citizen to be subjected to the law and observe it to the last letter. It stands in contrast to the idea that the ruler is above the law, for example by divine right.

Referring to The Secretary-General of the United Nations defines the rule of law as:

“A principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”.[3]

Relatedly, The Council of the International Bar Association[4] passed a resolution in 2009 giving a "thicker" definition of the rule of law:

“An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable.

The Rule of Law is the foundation of a civilized society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities”.

Concluding the definitions lastly with,

Justice Anthony M. Kennedy of the US Supreme Court who President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat February 18, 1988 and retired from the Supreme Court on July 31, 2018.[5]

Defined the Rule of Law to mean;

a) The Law is superior to the Government, and it binds the Government and all officials to its precepts.

b) The Law must respect and preserve the dignity, equality, and human rights of all persons. To these ends, the Law must establish and guard the constitutional structure necessary to build a free society in which all citizens have a meaningful voice in shaping and enacting the rules that govern them.

c) The Law must devise and maintain systems to advise all persons of their rights, and it must empower them to fulfill just expectations and to seek redress of grievances without fear of penalty or retaliation.

He thus concludes by stating that Society can only thrive when every individual is governed by the rule of law.

Whether the “Rule of law” and “Justice” are related.

Closely referring to Professor Don Wallace Jr. Chairman, International Law Institute in her article “When do citizens believe they have justice and the rule of law?”[6] states that,

“We lawyers and legal scholars often believe that there is no higher purpose than achieving the rule of law, and we believe that the justice which it enables to be the summum bonum. We accept unquestioningly the motto of my University that “law is the means, justice is the end.” Then what do we make of the fact that even lawyers are unclear what the true meaning of the rule of law is, and that many of us harbor doubts that true justice for all is attainable. And does the normal citizen know what these notions mean, do they want them, do they care?”

He further adds that,

“What in fact is it that most of us want in our lives? We want food, clothing and shelter, a better life for our children, meaningful work and the ability to serve others, good health, some rest and amusement, and yes security (law and order). We want to be free to worship our God, or not, and also to be left alone.”

He notes that,

“If you ask what a Just Society is, that would escape most of us, but we want to be treated justly, fairly or at least not unfairly. That was the biblical Job’s lament. Of course for many Justice has other meanings: we want others to get their just desserts. While economists and others may want a just distribution of goods, or at least opportunities, more nobly we might settle for the parable of the vineyard: if I get enough, I will not envy others who have more. Justinian gave us these precepts: to live honestly, to injure no one, and to give everyone his due.”

He goes head to quote from a talk he gave in honor of a retiring Chief Justice of Nigeria, which seems to fuse the two: that,

“Some have said of the “rule of law”, which phrase we cannot escape, and its constituent justice, that justice means fairness- possibly that is the case as between parties in a case or dispute, and maybe more generally. But I would submit that there is something more”

As our Common Law societies think back to Magna Carta, as Muslim societies think of the Quran and the sharia, as Civil Law countries think of the Roman codices, we think of civil societies and their governors, striving to limit power and its abuses, striving to enhance liberty and order, so that we can get on with our lives, making them productive for the greater good.”

Our leaders must be suffused with this spirit, and seized of the limits of their legitimate powers. And it is the solemn task and duty of our profession- lawyers and advocates, contract drafters and negotiators, law makers and regulators, magistrates and judges, to create a legal system, a justice system accessible to all, to permit such lives to be led and to permit such a society”.

THE STATE OF RULE OF LAW IN UGANDA AND THE DIMINISHING OF JUSTICE

Deriving from Mahatma Ghandi's Perspective, who was actually an Indian lawyer, politician, social activist, and writer who became the leader of the nationalist movement is famously quoted for having said that, “A nation’s greatness is measured by how it treats its weakest members.”

Therefore, I aver that for us to celebrate the observance of the rule of law as a nation, we should also closely examine how many human rights perpetrators we have been able to bring to Justice. Because a nation's' success in the observance of the rule of Law is entirely based on its high regard for Justice and its quick access to those who need it and can't afford it.

Sadly, Uganda has not fully observed the 2 aspects (The Rule of Law which has led to the diminishing prevalence of Justice)

If I am to closely refer to the Uganda Law Society Quarterly Rule of Law Report of 2017[7] the report highlights the various aspects, in which the rule of Law in Uganda has been grossly undermined, and I will state some in their chronological order,

A. Checks and balances

This is a system of control exercised jointly by the three arms of Government (Executive, legislature, and judiciary) while they try to curb excessive and arbitrary use of power by each other.

An incidence that affected the principle of Checks and balances was the UGX 6 billion bonus payments to 42 Uganda Revenue Authority officials by directive of the President of Uganda, for their role played in two tax disputes against Heritage oil and Gas Ltd and Tallow Oil Uganda.

Issues that arose:

· Article 98 and 99 of the Constitution cannot give the president blanket powers to order the issuance of bonus payments to the officials.

· All drawings from the consolidated fund must be appropriated through the Appropriation Act; there must be sanction of the Auditor General, and a warrant of expenditure from the Minister of finance to the Accountant General. (Section 35 (1) and 58 of the Public Finance Act no. 3 of 2013.

Recommendations:

· There must be established clear guidelines for payment of awards/ rewards of public officials from the consolidated fund to award exceptional performance.

· All payments from the consolidated fund must be executed in accordance with the law.

On the 9th January 2017, DCJ SBK Kavuma, sitting as a single Justice issued an interim injunction in a Constitutional matter restraining Parliament, any person, or authority from investigating, questioning or inquiring into the impugned UGX 6 billion award.

Issues raised

· Parliament has powers to legislate and deliberate matters of public interest while the judiciary is empowered to test the legality of legislation made by Parliament.

· The judiciary has no powers to bar deliberations of Parliament; this was an infringement of the principle of separation of powers.

Recommendation

· Arms of Government should maintain respect for one another.

· Uganda should implement the Commonwealth (Latimer House) Principles on the three branches of Government.

B. Due process and the climate of legality

This is where every citizen is entitled to fair treatment in the justice system and that all his rights that attach must be respected.

Constitutional Court decision on interim orders: (Murisho & 5 Ors V AG & IGG)

This decision rendered all decisions by a single Justice or a panel of three Justices of the Constitutional Court unlawful because such setups never satisfied the quorum of five Justices provided for under Article 137 (2) of the Constitution.

Issues raised

· Constitutional Court is constituted by a number of five Justices.

· Constitutional Court is separate from the Court of Appeal.

Recommendation

· Total separation of the Constitutional Court from the Court of Appeal.

· Revision of rules of Both Courts by the rules committee and the Chief Justice.

On the 20th February 2017, Jinja Chief Magistrate H/W Simon Kaggwa ordered the Prime Minister of Rwenzururu Kingdom, Mr Johnson Thembo & Ors who were arrested following the Kasese incident be transferred from kirinya Government Prison in Jinja to Luzira prison where they could be medically attended to. It didn’t happen.

Issue

· Disobeying Court orders is an offense punishable under Section 117 of the Penal Code.

Recommendations

· Institute measures and mechanism to deter the recurrence of similar acts.

Other incidences included; the crisis at Uganda National Chambers of Commerce where the institution collapsed due to excessive Government interference. The release on bail or for other reason of suspects and their immediate re arrest detention by police, for instance the Charles Mumbere and Dan Oola Odiya. Recommendations where that Court processes must be fastened and ability guidelines be streamlined.

C. Human Rights

These are entitlements that are fundamental and central to rule of law. They are inherent to us human beings such as, the right to life and property.

Highest numbers of registered complaints pertain to arbitrary arrests of suspects conducted by plain clothed officials without proper identification or warrants. They get tortured beaten and get denied contact with relatives and a lawyer.

Recommendations

· Capacity building of police to ensure efficient performance of their mandate

· Sufficient resources should be allocated to the police to facilitate complain investigation.

· On 2nd February 2017 the parliamentary Local Government Public Accounts Committee had generated a report following six month investigation into allegations of rampant corruption in 116 districts. One of the recommendations was that to disband the Chief Administrative Officers Association because it was contrary to section 5 of the Uganda Public Service standing orders.

This decision violated the Constitutional right of the members of the association to associate.

· The committee should come up with guidelines for the operation of associations by public officers.

On 22nd February 2017, Erias Lukwago, Moses Kasibante, Mubarak Muyagwa and Allan Sewanyana were arrested at Nakivubo Park Yard Market where they had gone to address protesting vendors against an order for Government to evict them from the market. This arrest was against the right of assembly guaranteed under the Constitution.

· The Public Order Management Act (POMA) should be adjusted to bring it into consonance with the Constitution.

· The police should not use excessive force in dispersing peaceful gatherings.

· Government should come up with guidelines for interpreting the POMA. Other incidences included; the right to life concerning all the people 150 in number killed in the Kasese palace raid, where it was recommended that a truth and reconciliation committee be established to investigate the Kasese killings, on 14th March 2017 Foundations for Human rights Initiative launched a report highlighting challenges with observance of the 48 hours maximum detention period before being arraigned before a judge. The recommendation is to increase funding and capacity to the criminal justice system.

How then has Uganda progressed with the observance of the Rule of Law Uganda and Justice across the Globe?

According to The report titled "The World Justice Project Rule of Law Index 2020[8]" Uganda was ranked as the worst country in the East African region in terms of not adhering to justice and rule of law,

Globally ranking number 117 out of 128 countries.

The report goes ahead to show that Uganda had dropped in the observance of justice and rule of law by two positions from the previous ranking.

By far, the global ranking of course makes Uganda the worst performing country in the East African region.

In the region, Rwanda is the best in adherence to rule of law though globally, it is ranked at number 37, followed by Tanzania at 93 and Kenya at 102.

The annual report that was released in Washington paints a picture of the rule of law in 128 countries across the globe by providing scores and rankings based on eight factors.

The factors include constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.

The facts above are not any different from the 2021 Uganda Law Society (ULS) report titled The State of The Rule of Law in Uganda Second Quarterly Report[9]

The report indicated that,

“The period under review, has witnessed cases of abuse and killing of women under unclear circumstances. Article 33 (1) and 3 of the Constitution, states that women shall be accorded full and equal dignity of the person with men and that the State shall protect women and their rights, taking into account their unique status and natural maternal functions in society,”

Under the alleged rights violations against women, the Law Society points out the recent Nakulabye homicide in which, a one Musasizi Musa, alias Uncle,23, is being accused of killing four women and a toddler.

The Government has also for a long time failed to regulate the prices levied by health facilities for the services rendered on COVID-19 patients. During this second wave, Uganda Law Society has noted exorbitant prices charged by health facilities to treat patients in intensive care units.

This compelled a concerned citizen and organization to petition to court in the case of Mulumba Moses and Center for Health Human Rights and Development Vs Attorney General, The Medical and Dental Practitioners Council, & Hon. Dr Jane Ruth Aceng Ocero, Miscellaneous cause No. 198 of 2021; and on a positive side, the court responded by issuing a judgment in favor of the Petitioner ordering the Respondents to make regulations on fees chargeable by hospitals managing and treating COVID-19 patients.

What is the Way Forward?

The fact that Justice might turn out to be fictitious due to the rigorous legal processes involved in one’s access to Justice, there is need for reforms in the law and justice sector to make the whole concept of the rule of law feasible and attainable.

According to the American International Society of International Law, they observe that,

“the rule of Law in the fragile and transitional arena involves efforts to break with former regimes, reconcile and redress the legacies of war crimes and other atrocities while forging a justice system and legal order that advances internationally recognized human rights norms, restoring public confidence, and strengthens the fiber of civic society.”[10]

They note that,

“Rule of Law encompasses institutional development and capacity building in justice, police and corrections, court administration and management, resolution of property rights issues and justice system reform”[11]

Conclusively

Referring to the view of Professor Don Wallace Jr stated earlier on in his article

When do citizens believe they have justice and the rule of law?[12] He observes that,

“In truth the citizen may not know much about the superstructure, the working of government and the authorities, or the legal basis and limits of their authority. Even litigious Americans who want their rights vindicated by law, may not think much about what is right. Probably we do not reflect on the difficulties to gain access to law, a subject of my Nigeria talk. Those engaged in commerce and others will want their contracts enforced, their property respected. Those with little want government to treat them fairly, to admit a sick child to a hospital; enrolment in a school, to go to court, and the economic and other conditions which enable them to live their lives unhindered and their children to do better.”

He opines that,

The attainment of real justice, is where everyone always believes they are not being treated unfairly? Justice for all, whatever their religion or ethnicity, whether rich or poor, not “just us”. Utopia? I believe not. To be sure to have Justice, and to believe we have it, is not easy.

First of all, we must all strive to live by Justinian’s precepts: to live honestly, to injure no one, and to give everyone her or his due.

Therefore in my view, if Uganda can embrace the aspect of transitional justice that fosters the localization of Justice and it's quick administration to any person affected by an Injustice in the community, Empowering Local Council Courts to effectively address all concerns that suffocate the adherence of the laws that are in place (land grabbing and Injustices suffered by both Men and Women)

Lastly fully empowering the normative judicial processes which are clearly stated in the Constitution and Protecting its the independence of all organs of Government, This will surely ensure the strict adherence to the rule of Law in Uganda which will certainly bring forth Justice since the 2 concepts are inseparable.

By Waboga David.

(The Writer is a Student of Law at U.C.U)

References. [1] Featuring Black's Law Dictionary Free Online Legal Dictionary 2nd Ed. [2] https://www.lexico.com/definition/monocracy [3] https://www.un.org/ruleoflaw/what-is-the-rule-of-law-archived/ [4] https://en.wikipedia.org/wiki/International_Bar_Association [5] https://www.supremecourt.gov/about/biographies.aspx [6] https://ili-sace.org/conferences-events/scholarly-articles/when-do-citizens-believe-they-have-justice-and-the-rule-of-law-professor-don-wallace-jr/ [7] https://www.docdroid.net/jqB18WO/uls-rule-of-law-quarterly-report-march-2017-pdf [8] https://worldjusticeproject.org/rule-of-law-index/country/Uganda [9] http://uls.or.ug/sites/default/files/2021-07/1626343000876_Rule%20of%20Law%20Q2%20%2C%202021.pdf [10] https://www.asil.org/community/transitional-justice-and-rule-law [11] ibid [12] Supra 3