“When Courts Do Politics” A Launch Of A Book By Prof. Oloka Onyango
Makerere University’s Professor OlokaOnyango has been described by the Chief Justice of Uganda Hon. Justice Bart Katureebe as ‘one of the leading Scholars and thinkers that Uganda has and that he should be listened to a little more’.
He made the statement while presiding over a book launch at the Pearl of Africa Hotel Thursday 11th of April 2018, where he was chief guest. He described the publication as an ‘insightful book that brings out things each professional, law student and academician ought to read and put into context’.
The book entitled ‘When Courts Do Politics’authored by Prof. Oloka Onyango from the School of Law Makerere University was unveiled at a ceremony that was also grace by The Principal Judge Dr. YorokamuBamwine and a number of Judges, The Ambassador of the United States of America to UgandaMs. Deborah Malac,the Academia, representative from the civil society, law students, and a number of dignified personalities in the profession.
The Chief Justice said despite his earlier commitments, he was determined to make it to the launch having read the book and found it very relevant to the trends in the judiciary. He commended Prof. Oloka Onyango for his objectivity in addressing the issues raised in the book.
The Chief Justice, while referring to the title of the book, ‘When Courts Do Politics” explained the meaning of the term politics by making reference to politicians who always promise the electorates to build hospitals and schools during campaigns. He said although in Uganda the same institutions were started by the religious institutions, the religious leaders who inevitably have a stake in the management and the welfare of the same institutions were asked not to talk about politics, which politics, he said, directly impacts those social services where they have a stake.
He explained that while handling political cases, the Judges were‘not supposed to be political but be judicious by applying the law to two opposing camps who have already labeled the judge andhe regretted to note that no one ever thinks about the judges as individuals.’He said he read the book by Professor Joe Oloka Onyango because of his concern about labeling of judges as “political” noting that contrary to his fears, hefound it very insightful and brought out the things that each judicial officer, lecturer and student had to read and put into context specifically pointing out public interest litigation.
The Chief Justice mentioned a number of challenges faced in access to Justice in the court citing the distance to the nearest police stations as an example, which he said has left many people at the mercy of their families who try to resolve conflicts with many ending up killing themselves. He said only five percent of Uganda’s population have access to formal justice system due to a number of challenges and that it was only recently that the Judiciary was able to get a small number of additional Judges despite the existing case backlog. ‘Our Country needs Justice, our people need justice, they have no access to it but somehow justice does not feature very highly in the national priorities’ he said.He said it was unfortunate that despite the efforts to fight for the improvements in the conditions of thejudiciary, there were individuals, even amongst the professionals, that were undermining the efforts of the well-intentioned persons.
Prof. Joe Oloka Onyango the author of the book while addressing the guests described the legal profession as quasi-scientific which he said brought up a number of principals that dictate the manner in which business was done. He cited the Rule of Law and Separation of powers as some of the foundations in the practice of Law. He said for instance that the Judges do not make laws but their role was to interpret the law.
He said in his book, Judges in East Africa when posed with the question as to whether they were involved in politics and that the response was a resounding no. Prof. Oloka quoted a statement by the deputy Chief Justice of Uganda AlphoseOwinyDollo at the opening of the Constitutional Court sitting in Mbale earlier in the week where he said ‘This case is not about politics, it’s about the law, please leave your politics outside the court room’, which according to him would be described as one of the most political cases since the 1995 Uganda Constitution came into force by constitutional historians.He said the case was a confirmation of politics in the public interest litigation despite the fact that the Judges did not want to talk about it.
Prof. Oloka Onyango said in his bookthe most critical question was not about whether Courts did Politics but rather what politics. He said politics begins right at the time of determining whether a matter was justiciable or not hence the principal of locus standi and the political question doctrine, which doctrines, he said, have been deployed by courts to undermine, divert and derail justice. He said the book examines judicial politics through examining three phenomenon namely the struggle of gender equality, recognition and enforcement of Social, Economic and Cultural rights and the presidential elections.
He posed a question as to whether courts should retreat from doing politics for fear of facing the executive whip. He said courts needed to recognize that they were standing between executive tyranny and constitutional sobriety. The temptation for those with power was to attempt by any means possible to expand, extend and dominate the political scene. He said his book proposes more power to the judiciary if that was the only way through which such creeping dictatorship could be stopped.
In remarks by the reviewers of the book Hon Justice Dr. Prof. Lillian TibatemwaEkirikubinza and with Dr. BusingyeKabumba, it was stated that the gist of the book was in the area of public interest litigation in Uganda and Kenya. The writer delved into the manner in which courts have dealt with rights issues within three critical areas namely Gender relations, Poverty or economic social and cultural rights as well as Presidential election petitions in Kenya and Uganda. It cited the doctrines, the independence of the judiciary, and the separation of powers, the colonial inheritance and the experience of independence that had political influence on the independence of the judiciary.
The book further urges that the judiciary has in turn significant influence on the political developments relating to the three areas in as far as rights are concerned. The judiciary was seen as a vigorous defender in some of the rights, while at times they have been a reluctant intervener and an outright none engaged in others.
The reviewers noted the focus on Public interest litigation citing the recent emergence of the trend in the jurisprudence of the region and because of the insight it has provided into the manner in which courts have evolved and play a prominent role in adjudicating matters previously clinics to the judiciary. It was indicated that it was probable that it was through public interest litigation that the courts were being seen to do politics.
The reviewers explained that the book deals with two dimensions of the way courts deal with gender namely the situation of women and the case of sexual minorities. The book argues that despite the significant strides in the protection of women, the courts have a long way to go in ensuring that matters of a personal nature such as succession, divorce and negative customary practices are given more equitable attention. The book delves into the manner in which the courts intervened in Presidential elections, which was described as contentious. The reviewers indicated that the Constitutions and other instruments in actual sense empowered the judicial officers to do politics although they must judiciously use their discretion in determining whether it was judicial restraint or activism that was called for in a particular manner.
Justice Stella Arach from the Supreme Court in her remarks on behalf of the organizers of the event commended the Ford Foundation for supporting the work and the cordial relations between the International governance Alliance (iGA) and the judiciary as evidenced from the continued support in as afar as continuing legal education is concern.