When Courts Do Politics : Public Interest Law and Litigation in East Africa [1 ed.] 9781443864091, 9781443891226

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When Courts Do Politics

The Cornell Institute for African Development/ Cambridge Scholars Publishing Editorial Board Muna Ndulo

Series Editor Professor of Law; Elizabeth and Arthur Reich Director, Leo and Arvilla Berger International Legal Studies Program; Director, Institute for African Development, Cornell University

Christopher Barrett

Stephen B. and Janice G. Ashley Professor of Applied Economics and Management, International Professor of Agriculture, Charles H. Dyson School of Applied Economics and Management, Cornell University

Sandra E. Greene

Professor of History, Cornell University

Margaret Grieco

Professor of Transport and Society, Napier University

David R. Lee

International Professor, Charles H. Dyson School of Applied Economics and Management, Cornell University

Alice Pell

Professor of Animal Science, Cornell University

Rebecca Stoltzfus

Professor of Nutritional Science, Cornell University

Erik Thorbecke

H.E. Babcock Professor of Economics and Food Economics, Emeritus; Graduate School Professor, Cornell University

Nicolas van de Walle

Maxwell M. Upson Professor of Government, Cornell University

When Courts Do Politics: Public Interest Law and Litigation in East Africa By

J. Oloka-Onyango

When Courts Do Politics: Public Interest Law and Litigation in East Africa Series: Cornell Institute for African Development Series By J. Oloka-Onyango This book first published 2017 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2017 by J. Oloka-Onyango Cover Image: Grafitti where old Rhodes House Memorial used to be, Cape Town. Licensed under Creative Commons. All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-9122-3 ISBN (13): 978-1-4438-9122-6

To those who led the struggle for Public Interest Law in East Africa: Abu Mayanja, Oki Ooko Ombaka, and Issa G. Shivji

TABLE OF CONTENTS

List of Tables .............................................................................................. ix Acronyms .................................................................................................... x Preface and Acknowledgements ............................................................... xiv Introduction ................................................................................................. 1 About Courts, Politics, and East Africa Chapter One ............................................................................................... 15 Do You Have Standing? Chapter Two .............................................................................................. 36 Locus Standi in Post-colonial East Africa Chapter Three ............................................................................................ 76 From Law in the Public Interest to “Transformative Constitutionalism” Chapter Four ............................................................................................ 112 Contesting the Gendered Agenda Chapter Five ............................................................................................ 159 Poverty and Resources: What Have Courts Got To Do With It? Chapter Six .............................................................................................. 216 At the Pinnacle of Politics: Deciding a Presidential Election Chapter Seven.......................................................................................... 259 Fostering Structural Transformation through Cause Lawyering

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Table of Contents

Interviews/Personal Communication ....................................................... 296 Table of Cases ......................................................................................... 298 Bibliography ............................................................................................ 310 Index ........................................................................................................ 351

LIST OF TABLES

Table 4.1. Pioneer Female Judges of East Africa .................................... 120 Table 5.1. Misconceptions about Customary Tenure (CT) in Uganda .... 206 Table 6.1. Election Results For Uganda’s 1962 Election ........................ 224 Table 6.2. Kenya’s 1997 Election............................................................ 230 Table 6.3. Uganda’s Supreme Court Decision in the 2006 Presidential Election Petition................................................................................. 243 Table 6.4. Summary of Verdict in the Kenya Presidential Election Petition, 2013 ..................................................................................... 251 Table 6.5. Qualitative versus Quantitative Definitions of the Word “Substantial” ..................................................................................... 253 Table 6.6. The Record on Twenty-first Century Presidential Election Petitions ............................................................................................. 256 Table 7.1. Attorneys General Of Kenya, Tanzania, and Uganda (1961–2015) ....................................................................................... 280

ACRONYMS

AB ACHPR ACtHPR ADR AE AG AHA AHB AIDs ANC ASP AU BAWATA BG CA CAR CCM CEDAW CEHURD CEMERIDE CHADEMA CIPEV CMI COIC CORD CP CPRs CRC CSCHRCL CT CUF DP DPP

After-the-bush African Commission on Human and People’s Rights African Court on Human and People’s Rights Alternative Dispute Resolution Amka Empowerment Attorney General Anti-Homosexuality Act Anti-Homosexuality Bill Acquired immune-deficiency Syndrome African National Congress Afro-Shirazi Party African Union Baraza la Wanawake Tanzania Blue Girls Constituent Assembly Central African Republic Chama cha Mapinduzi Convention on the Elimination of all forms of Discrimination against Women Centre for Health Human Rights & Development Centre for Minority Rights Development Chama Cha Demokrasia na Maendeleo Commission of Inquiry on Post-Election Violence Chieftaincy of Military Intelligence Committee on Implementation of the Constitution Coalition for Reforms and Democracy Conservative Party Civil and Political Rights Constitutional Review Commission Civil Society Coalition on Human Rights and Constitutional Law Customary Tenure Civic United Front Democratic Party Director of Public Prosecutions

When Courts Do Politics

DRC EAC EACA EACJ EALA EC ECK ECOWAS EDR EMB EMCA EOC ESCRs EU EVM FDC FGM GALCK GCM GDP GNU HIV HRAPF ICC ICCPR ICESCR ICISS ICJ ICTR ICTY IDS IEBC ILO IMF IREC ISER KADU KANU KHRC

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Democratic Republic of Congo East African Community East African Court of Appeal East African Court of Justice East African Legislative Assembly Electoral Commission Electoral Commission of Kenya Economic Community of West African States Election Dispute Resolution Election Management Board Environmental Management and Coordination Act Equal Opportunities Commission Economic, Social and Cultural Rights European Union Electronic voting machine Forum for Democratic Change Female genital mutilation Gay and Lesbian Coalition of Kenya General Court Martial Gross Domestic Product Government of National Unity Human immune virus Human Rights Awareness and Promotion Forum International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Commission on Intervention and State Sovereignty International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Institute of Development Studies Independent Electoral and Boundaries Commission International Labour Organization International Monetary Fund Independent Review Commission Initiative for Social and Economic Rights Kenya African Democratic Union Kenya African National Union Kenya Human Rights Commission

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KIPE KPA KPU KY LC LDU LEAT LGBT LGBTI LGBTIQ LHRC LL.B LMA LRA MP NAACP NAFCO NAPE NARC NATO NCA NEMA NGO NRA NRC NRM OC OAG OAU ODM PET PIL PLI PNU PQD PRA PSAs QC R2P SADC SID

Acronyms

Kisumu Initiative for Positive Empowerment Kenya Ports Authority Kenya People’s Union Kabaka Yekka Local Council Local Defence Unit Lawyer’s Environmental Action Trust Lesbian, gay, bisexual and transgender Lesbian, Gay, Bisexual, Transgender and Intersex Lesbian, gay, bisexual, transgender, intersex, and questioning Legal and Human Rights Centre Bachelor of Laws Law of Marriage Act Lord’s Resistance Army Member of Parliament National Association for the Advancement of Colored People National Agricultural and Food Corporation National Association of Professional Environmentalists National Rainbow Coalition North Atlantic Treaty Organization Ngororgoro Conservation Area National Environment Management Authority Non-governmental organization National Resistance Army National Resistance Council National Resistance Movement Officer-in-Charge Office of the Attorney General Organization of African Unity Orange Democratic Movement Post-election ‘trauma’ Public interest litigation Public Law Institute Party of National Union Political Question Doctrine Peoples Resistance Army Production sharing agreements Queens Counsel Responsibility to Protect Southern African Development Community Society for International Development

When Courts Do Politics

SMUG SSRN SVS TANU TARAFO TAZARA TEA TEAN TK TLS TPDF TRC UCC UDHR UK ULS UN UNLF UNSC UPC UPDF UPE

Sexual Minorities—Uganda Social Science Research Network Saviour-victim-Savages Tanganyika African National Union Tanzania Rainbow Forum Tanzania Zambia Railway Authority Transgender Education and Advocacy The Environmental Action Network Traditional Knowledge Tanganyika Law Society Tanzanian People’s Defence Forces Truth and Reconciliation Commission Uganda Constitutional Commission Universal Declaration of Human Rights United Kingdom Uganda Law Society United Nations Uganda National Liberation Front United Nations Security Council Uganda People’s Congress Uganda Peoples Defence Forces Universal Primary Education

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PREFACE AND ACKNOWLEDGEMENTS

On October 14, 2013, I met Dr. John Ruhangisa, at the time Registrar of the East African Court of Justice (EACJ) in Arusha, Tanzania. It was a cool, bright-skied morning, and we discussed all manner of issues relating to the public interest litigation that had become a prominent feature of his court—and a central part of the research for this book. Following the interview, we walked out together into the dazzling sunshine and I turned on my phone. The time was eleven o’clock. I found several missed calls from my brother, Simon, and knew they could mean only one thing; my ailing father, Bernard Onyango had died. This book is primarily dedicated to his memory and to my mother, Lucy Kahambo Onyango, for without them there would literally not be a “me.” And I don’t mean that in the obvious way of conception, but as an indication of how much they influenced what I have become and of the positive values they sought to instill, albeit not always successfully. The journey towards completion of this book has been a protracted one. It was conceived as part of a much more narrow and modest objective, namely, to bring the experience and lessons of public interest litigation (PIL) in East Africa to a wider audience. Two years earlier I had co-founded the Public Interest Law Clinic (PILAC) at the School of Law, Makerere University. It was one of my last administrative functions as Director of the Human Rights & Peace Centre (HURIPEC). Before that I had been directly and indirectly involved in numerous cases of a public interest nature over the years and was struck by the way this area of litigation was developing without much theoretical conceptualization of either PIL’s meaning or its impact on the development of jurisprudence in wider East African society. All over the region, new frontiers in the implementation of Human Rights and Constitutional Law were being scaled, albeit with scant analysis or documentation. I felt that it was a story that needed to be explored, amplified, and recorded for posterity. Freed from the administrative chores that had been the bane of my life for the last decade, I approached the Ford Foundation for a grant in order to “stimulate some interest and debate around the subject of PIL in East Africa.” The Foundation Representative in Nairobi, Maurice Makoloo, enthusiastically embraced the idea, and together with Program Officer Monica Aleman-Cunningham pushed to have the project supported. As an

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institutional “home” for my musings I turned to the International Governance Alliance (iGA), headed by the indefatigable Maria Nassali, who provided logistical support for the research tours I undertook, both in the East African region and to South Africa. Maria also provided the administrative back-up that a pan-regional research undertaking of this kind invariably requires. But more importantly, iGA pushed for a twofold reconceptualization of the project from its primary academic focus to embrace a more hands-on activist anchoring. Thus, we arranged for several country convenings at which the findings of the research were disseminated to a wide audience of judges, activists, scholars, PIL-clients, litigators, and the broader civil society. The result was an iGA Working Paper entitled Human Rights and Public Interest Litigation in East Africa: A Bird’s Eye View. I am grateful for all the commentary I received and especially that which came from the members of the Judiciary—including Chief Justices Willy Mutunga of Kenya, Mohamed Chande Othman of Tanzania, and Ag. Chief Justice Steven Kavuma of Uganda, and the three iGA Board members, led by Chris Maina Peter, Solomy Balungi Bbossa, and Frederick W. Jjuuko. I thank Kenneth Kakuru for his fascinating anecdotal history of how public interest litigation came to Uganda—although his claim that the phenomenon was born because somebody dared to smoke a cigar outside the Principal Judge’s chamber should be taken with a pinch of salt! Martin Nsibirwa and Frans Viljoen of the Centre for Human Rights at the University of Pretoria were exceptionally helpful in connecting me to the public interest law fraternity in South Africa. Patricia KameriMbote—Dean of Law at the University of Nairobi—not only linked me up to two fabulous research assistants, she also plied me with a wide range of critical materials on the situation in Kenya. The project might have ended with the iGA working paper, but in the middle of my sabbatical I won a Fulbright fellowship which took me to the George Washington University (GWU) School of Law in the U.S. My hosts in Washington DC—Susan Karamanian, Ralph Steinhardt, and Silena Davis—provided a most conducive atmosphere in which I could work and interact with all manner of individuals—students, staff, and visitors. While there, I discovered there was a great deal of interest in the recently-decided case in which I had led nine petitioners to successfully challenge the Anti-homosexuality Act (AHA). As a result, what was supposed to be reclusive and solitary in-stack research between GWU and the Library of Congress turned into a series of public lectures, in-class presentations, brown-bag luncheons, and other exchanges around the

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Preface and Acknowledgements

issue. The outcome of these interactions is an article in the George Washington International Law Review. I am also grateful to Lambda-Law, the International Human Rights Law Society (HRLS), and Jane Schaffner, as well as Stella Mukasa and the group at the International Centre for Research on Women (ICRW) for their useful commentary. During the World Bank’s Law, Justice, and Development (LJD) week, I was asked to present a paper on Law and Poverty—which provided the framework for chapter 5 of this book. I also met with the Bank’s Gay and Lesbian Association (GLOBE), where discussions were both vigourous and illuminating; my thanks goes to Nightingale Rukuba-Ngaiza and Nick Menzies, who facilitated this meeting. Penny Andrews and Stephen Ellmann made it possible for me to attend the conference on Twenty Years of South African Constitutionalism in New York, which greatly helped with the comparative dimensions of the work. The last chapters of the book were put together in the tranquil vineyards of the Stellenbosch Institute for Advanced Studies (STIAS) in South Africa, where Hendrik Geyer and the community of fellows in residence provided a most stimulating, convivial and engaging opportunity for deeper reflection. Lastly—and by no stretch of the imagination, least— I’m supremely grateful to the Institute for African Development (IAD) at Cornell University, headed by Director Muna Ndulo who, upon hearing my initial ideas, enthusiastically agreed to publish the book. Evangeline Ray, Managing Editor at IAD, was a thorough, gracious, and patient editor of the manuscript and a superb liaison with Cambridge Scholars Publishing. Other intellectuals, activists, students, and friends—too numerous to list here— have provided either direct commentary or inspirational support for this book. Research assistance was provided by Smith Otieno, Francis Kariuki, Thuto Hlalele, Harold Sungusia, Rosemary Karoro, and Brian Kibirango. The community of public interest lawyers, activists, litigants, and supporters who were variously interviewed for and quoted in this study are also thanked for their indulgence and assistance. As has always been the case, this book would not have been possible without the constant intellectual, moral and spiritual support of my better half and main partnerin-crime Sylvia Tamale and her two deputies, Kwame Sobukwe Ayepa and Samora Okech Sanga. —J. Oloka-Onyango June 2015

INTRODUCTION ABOUT COURTS, POLITICS, AND EAST AFRICA

Will he? Won’t he? Will he? Won’t he? Oh My God; he just did! And so ended two months of high tension and intense speculation over whether Ugandan President Yoweri Kaguta Museveni would sign the Antihomosexuality Bill (AHB) passed by Parliament in a hurried preChristmas session on December 20, 2013. Few recent stories out of Uganda have captured more attention—domestically or on the international scene—than the publicity surrounding what was dubbed the “Kill-theGays” Bill in reference to the proposed law’s prescription of the death penalty for certain homosexual offences. Among other things, the contest over the proposed law represented a dramatic transfer to Ugandan soil of the “culture wars” hitherto fought in far-off countries (Hunter 1992). Under Ugandan law, President Museveni could have done one of three things in relation to the bill: he could have sent it back to the Speaker of the House, pointing out issues that he felt needed to be revisited; or he could have let the deadline for signature lapse, permitting the bill to become law without presidential assent, signifying his moral or political objection to the law but recognizing Parliament as the ultimate authority on the matter. The third option was to sign the bill, which he eventually did. Why he chose to sign it (and the dramatic fashion in which he did so) is a story for another day, but the entry into force of the law meant that there were few options left: the Act could be allowed to remain on the statute books and be implemented with all its draconian implications for the rights of sexual minorities in particular and for the Ugandan public in general; or the law could be challenged in court. We did so. From its shiny blue aluminium-tiled exterior, Twed Towers in Kampala looks nothing like a typical court of law. But on the fourth floor of the building, the Ugandan Court of Appeal sits in majestic supervision over petitions brought by all and sundry seeking an interpretation of the Constitution. On a muggy, late July morning, I joined a phalanx of copetitioners, black-robed lawyers, enthusiastic supporters, and equally vehement opponents to have the wig-covered court listen to our challenge to

2

Introduction

the Anti-homosexuality Act (AHA).1 As a response to one of the most controversial laws to have been passed in Uganda’s recent legislative history, the hearing brought together a wide cross-section of contemporary Ugandan society drawn from all sides of the social and political spectrum. Priests and pastors prayed in loud and condemnatory rhythm: “May the blood of Jesus Christ prevent you from winning this case.” Pious followers joined along in silent prayer to the Almighty: “Aay-men!” Journalists from all over the world ringed the small chamber with massive booms, microphones, and cameras jostling for space with anxious students and all manner of curious onlookers eager to hear the sharp ring of history. Politicians—ruling party, independent, and opposition—waited with bated breath to learn whether by passing the law Parliament had done “the right thing.” While this book is certainly about the dynamics and implications of challenging a law through court action, it is about much more. For most people, there is a belief that judges are insulated from the wave and waft of that “dirty game” called politics. According to this view, courts and politics—like oil and water—do not mix. Courts are institutions in which justice is supposedly produced in accordance with transparent legal rules and norms (the “Rule of Law”) that apply at all times, in all places, and equally to all people—hence the notion that justice is “blind” (Miller 2009, 2). Such a statement is obviously ambiguous. Justice is meant to be blind not simply to material influence, but also to the pressure of politics. Unlike politics, justice is not about who gets what, when, where, and why. That is also why such a premium is placed on the doctrine of the independence of the Judiciary. But as the scene I described above illustrates, in cases of public interest litigation politics is never far away from the judges’ chambers. Consequently, it is not only the parties immediately concerned with the petition who watch keenly for the gains and losses that may result from a court ruling. Such matters will invariably become the concern of the broader public. Because the issues in public interest litigation have typically been the subject of intense social, cultural, or political contestation in other arenas before they reached court, it is simply unrealistic to expect them to have been shorn of these dynamics once they arrive at the Bench. In his classic text on judicial politics, The Politics of the Judiciary, Professor John Griffith states,

1

See Prof. J. Oloka-Onyango & 9 Others v. Attorney General, Constitutional Petition No. 8 of 2014.

About Courts, Politics, and East Africa

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neither impartiality nor independence necessarily involves neutrality. Judges are part of the machinery of authority within the State and as such cannot avoid the making of political decisions. What is important is to know the bases on which these decisions are made (Griffith 1991, 272).

The Marxist-Leninist proposition underlines the point that the law is part of the superstructure and is generated by the economic base on which it is constructed. Seen from this perspective, law is a tool that is designed mainly to protect the interests of dominant socioeconomic groups and hence cannot avoid the broad brush of politics. Thus, even an issue that may appear apolitical on its face can raise dust on account of its challenge to the dominance of a particular section of society or to sensitivities lurking below the surface. Legal realists—drawing in part on the Marxian tradition—will also say that what the courts decide is dictated by the political, social, and moral predilections of individual judges. Judges are, according to the theory of attitudinalism, simply politicians sitting behind a Bench (Dorf 2006). Attacking this theory as too simplistic, proponents of the New Institutionalism theory assert that institutional context and factors are far more important than the politics of individual judges (Suchman and Edelman 1996). A quick survey around the world demonstrates a wide range of ways in which courts relate to and are affected by politics. First, there is the mode of selection of judges. At the furthest extreme are those few countries that employ the mechanism of an election. Some of them—most prominently Japan, Switzerland, and several states in the U.S.—even conduct partisan balloting where the political party of the judge-candidate is made very clear to all and sundry. Most countries have not followed this model, perhaps in fear of what this may say about the price or prejudice of “elected” justice. The majority prefer a more staid or temperate method befitting the sobriety expected to come with occupancy of a chair where impartiality is the chief currency in circulation. But such “staid” methods have the tendency to reproduce privilege and status, and to preserve the status quo as opposed to transforming an institution that should be a broad reflection of society. Thus, English courts—even in the wake of reforms that have witnessed a reduction in the influence of the Law “Lords”—are still very much dominated by white, male members of the largely conservative upper-middle and upper classes, mostly excluding those who “deviate from conventional legal and judicial norms” (Epp 1998, 127). Today, even the most stoic defenders of an impartial Judiciary would hesitate to claim that courts have nothing to do with politics. If that were indeed the case, then the selection of individuals to occupy the higher judicial Benches would be as inconsequential a matter as which barber cuts,

4

Introduction

braids, or perms the president’s hair. These matters are important precisely because they are intrinsically political. In other words, we need to accept what Alexander Bickel has called the “shock of recognition”—to realize that the process of judging is both incompatible with and yet inextricably involved in politics (Bickel 1965, 133). The question to ask is not whether courts are engaged in politics, but rather what kind of politics courts are engaged in.

What Kind of Politics? Nonetheless, answering the question—what kind of politics is at play in the courts?—is by no means straight-forward (Ngugi 2007, 3–4). It depends first upon how the word “politics” is defined, as the word “political” has myriad meanings (Tamanaha 2012). In the United States—partly on account of the very public nature of the hearings for new Supreme Court Justices and the care that presidents of both parties take in selecting their nominees—the partisan hues of the process are evident right from the beginning (Greenburg 2008). Given the profusion of highly charged social and political issues—such as abortion, affirmative action, capital punishment, religion, and sexual orientation—that invariably find their way into the judicial system, the court has evolved to become a particularly sensitive focal point for political battles that have been fought and lost elsewhere. Even in England, which makes a grand show of the political insulation of its Judiciary, it is quite clear that the process of judicial selection is deeply embedded within the “waft and wave” of political machinery (Griffith 1997, 20–22). Thus, it is a shock and yet no real surprise that the first woman appointed to the English Supreme Court assumed office only in 2013. This in a Judiciary that has been in existence for over a thousand years! With the exception of the appointment of Chief Justice Willy Mutunga in Kenya, the nomination and appointment process of judges in East African countries is generally much less public and hence less obviously political. However, the inordinate delay in appointing a new Chief Justice in Uganda—resulting in a court challenge to the president’s attempt to reappoint the incumbent2—illustrated that irrespective of the mode of selection, political issues will always be present in such a process. The mechanics of appointment and vetting of judges is only one part of the picture. Central to an examination of the place of politics in relation to 2

See Gerald Karuhanga v. Attorney General, Constitutional Petition No.0039 of 2013.

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the operation of the Judiciary is the manner in which the organs of government relate to one another. Classical Separation of Powers theory holds not only that there are only three arms of government—the Executive, the Legislature, and the Judiciary—but also that the divisions between the three are sealed and impermeable. Under this functional and formalistic theory of the doctrine, the Executive branch is concerned only with the design of policy and implementation of legislation. Laws are generated by the Legislature. The Judiciary simply interprets the law. Judges, according to this formulation, definitely do not make law, and by similar token should steer clear of making comments on, let alone deciding issues to do with politics. Judges should just “judge.” Obviously such a prescription is no longer tenable for two reasons. First, for post-colonial countries such as those in East Africa, there is the colonial legacy in which the Judiciary evolved as an integral part of and remained very closely related to the Executive. Part of the independence struggle has been by courts—pushed in no small measure by civil society—to gain distance from this legacy. Secondly, the operations of modern government have moved very far away from the classic and formulaic separation-of-powers articulation. The separation of governmental power that operates today is a far cry from that which was articulated by Montesquieu—a formulation that could be said to belong to the realm of mythology. It is not as rigid as it was initially designed to be, and each branch of government makes “political” choices and decisions. Bylaws and public regulations are made every day by Cabinet ministers and other public servants; committees of Parliament are conferred with judicial-like powers and perform quasi-judicial tasks; and for their part, courts carry out several administrative functions. By declaring a law invalid, a court is invariably “making” new law, regardless of how strenuously the learned judges avoid saying so (Gomez 1993, 93). At a minimum the law is being “adjusted” from what it was before. Despite the disavowals of the court, such “adjustment” may sometimes have radical implications for the social or political order (Baxi 1980). Justice Bhagwati of the Indian Supreme Court was more honest than most on the Bench when he stated, “every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political.”3 And where does the classical formulation of Separation of Powers place constitutionally-created bodies such as the Human Rights Commissions, independent prosecutor agencies, or anti-corruption and electionsupervisory bodies, all of which exercise a hybrid of all three kinds of 3

The Dissolution Case, 3 SC Indian Supreme Court at 660.

6

Introduction

governmental power? What happens when you have an intra-agency conflict, such as between Parliament and the Executive or between, e.g., the Executive and one of the constitutionally-established agencies or commissions? All considered, it becomes quite obvious that courts are not insulated from the political process, nor is it possible in this day and age for them to be so. There is yet another dimension to this phenomenon. The relationship among the three arms of government is also affected by what has been called the “judicialization of politics” (Yepes 2007) or what Ran Hirschl refers to as the discernible movement towards a “juristocracy” (Hirschl 2004). Matters that used to be monopolized and decided through channels that excluded the Judiciary are increasingly being referred to courts of law for resolution either through constitutional provisions or in ordinary legislation. Bills of rights today are much more detailed and expansive than they traditionally were, outlining many more rights and also opening space for the creation of additional ones. Article 45 of the 1995 Constitution of Uganda specifies that “the rights, duties, declarations and guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in this chapter shall not be regarded as excluding others not specifically mentioned.”4 But even with these elaborations, the room for conflicting interpretation is still vast given the broad and general manner in which constitutional and human rights instruments are typically couched: What does “freedom of association” actually mean? How about the “right to privacy”? And how do you define a “democratic society”? In such a context judges are invariably forced to dive into and negotiate the political waters in which these rights swim. To cap it all, modern formulations that directly give courts the power to interpret the compatibility of legislation with the constitution—the classic function of judicial review—have ensured that the last vestiges of the traditional political isolation of the courts have been effectively removed. Although courts can still run, it is no longer possible to completely hide as the citizenry increasingly demand third-party interventions to resolve problems the political class has failed to address. In an early analysis of this issue, Radhika Coomaraswamy stated: Standing between individual citizens and the wielders of power, the Judiciary has become the ultimate, and yet unwilling, arbiter in the arena of democratic politics. This sudden thrust onto the centre stage has made judging a difficult and complex exercise…. The Court often finds that it 4

See also Article 19(3)(b) of the Constitution of Kenya, 2010.

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has moral responsibility without the necessary safeguards of institutional integrity (Coomaraswamy 1987, 1).

The shift in the perceived role of the courts of law has extended even to areas previously deemed off-limits. For example, many countries typically excluded presidential elections from determination by the Judiciary. This effectively meant that the only way an elected Head of State could be removed (aside from coup d’etat or assassination) was at the next election or via a vote of no confidence in the interim. Both of these were decidedly non-judicial actions. Today, numerous countries around the world have transferred the power to adjudicate the election of a president to the judicial arm of the State. Kenya in 2013, and Uganda in 2001, 2006, and most recently in 2016 transferred disputes over the results of presidential elections to a court of law for settlement. The judicialization of politics has correspondingly meant that many social and political actors have begun to formulate their demands in legal and judicial terms (Von Doepp 2009). Finally, a parallel development has taken place within the international arena with what Maxine Kamari Clarke refers to as the “tribunalization” of international conflicts (Clarke 2010). The term refers to the increasing trend toward transferring a diverse array of conflicts to international courts for resolution, starting with those in the former Yugoslavia and Rwanda, progressing through a range of hybrid arrangements including those reached in Sierra Leone, Lebanon, and Cambodia, and culminating in the 1998 establishment of the International Criminal Court (ICC). The countries of East Africa have been particularly impacted by this expansion in international judicial power.

The Essence of Constitutional Supremacy All the above developments underscore a particularly important point, especially with respect to countries that were formerly British colonies or protectorates, such as those in East Africa: they illustrate the movement from a doctrine of parliamentary supremacy, under which the Legislature could do literally anything without question, to that of constitutional supremacy. What exactly does “constitutional supremacy” entail? In sum it means the following: 1) All organs of the state—including the Executive, the Legislature and the Judiciary—are bound by the Constitution, at least on the face of it; 2) A system of mutual checks and balances, rather than outright separation between the organs of government, is in operation, leading to

8

Introduction

a certain degree of uncertainty and even tension in the relationships between them; and 3) The judicial branch has oversight of the exercise of state power, especially the power of review as laid down in the constitutional instrument. This last power—the power of interpretation of the constitution—is an inherently political activity. Nevertheless, in using that power, courts must decide whether to pursue a course known as judicial “activism” or hold themselves back in a posture of its opposite, otherwise known as judicial “restraint.” Being vested with the power to determine whether a particular action taken by other arms of the state accords with the constitution, the Judiciary is able not only to act as umpire but also to determine what measures of reward or punishment will be extended to the parties in the event of a breach. Most importantly, the power of oversight marks a shift in context from relative certainty to some degree of indeterminacy. Such indeterminacy will vary in accordance with the history, political economy, and culture of governmental activity in each country. Ultimately, outcomes will also depend upon the extent to which organs of the state, particularly the Executive and the military, are subordinate to coercive power—and whether there is in place a culture of respect for civilian authority. While rewards are always welcome, unduly harsh or objectionable sanctions or punishments can lead to a backlash against the Judiciary. Indeed, there is no guarantee that an activist Judiciary will always make decisions that uphold and enhance the protection of fundamental human rights, or more broadly protect and support the general public good (Ngugi 2007, 3–4). In light of the above observations, discerning the “political” in operations of the courts can be done in any number of ways. For example, a comprehensive examination of where the judges come from, what they did before they came to the Bench, and how they got there could be revealing. In the case of judges who have moved up through the ranks of the Judiciary, one could gain insight by looking at their decisions in the lower courts before being appointed as compared to decisions made after appointment. For those drawn from Academia, a review of their published work where available would serve the same purpose. Such an exercise would be aimed at establishing the judge’s ideological position on various matters, or what is called “judicial politics.” However, there is no guarantee that any judicial appointee will remain true to his or her expected ideological moorings or loyal to the appointing authority. The stories of judicial “mavericks” abound.

About Courts, Politics, and East Africa

9

Numerous factors, ranging from the issues that come before the court to judges’ individual beliefs and experiences, as well as the influence of a host of extraneous factors—including public opinion and the nature of the Executive which is in place—impact the way a judge arrives at any particular decision. It is not unusual for a previously conservative individual to become a liberal—or vice versa—once they have climbed onto the Bench. The same applies to “pro-government” or “anti-establishment” individuals. It is also generally a fact that courts at the higher levels consist of more than one judge, implying that decisions of these courts would need to be viewed as a corporatist expression of individual judges’ views, accompanied by a dissection of individual judgments, especially where you have a very strong or distinctive dissenting opinion. To cap it all, while some judges are fairly consistent with their opinions, there are also many nonconformist judges who swing from one end of the spectrum of possible decision-making to the other. One final word on this issue is necessary. The constitutionalization of rights and what can be described as the documentary empowerment of the Judiciary is but a first step. The fact is that the three arms of the state are in constant struggle, in some cases latent and benign, in others open and even violent. Nowhere are these tensions on more open display than in relation to the phenomenon of public interest litigation.

Public Interest Lawyering and Litigation in East Africa Drawing on the links between politics and judicial intervention described above, this book primarily focuses on the mechanism of public interest litigation (PIL) as the prism through which we assess how politics in courts is “done” in East Africa. Insofar as the geopolitical focus of the book is concerned, “East Africa” refers to Kenya, Tanzania, and Uganda. It excludes Burundi and Rwanda primarily because of the different sociolegal and political heritage and distinct judicial links and practices experienced by these states. In addition, public interest litigation is far less developed in the two Francophone countries than in their Anglophone counterparts. The study also excludes South Sudan, for which the experience of political independence is simply too short to make any meaningful comparative conclusions. Beyond the historical ties—Kenya and Uganda for example were once administered as a single entity by the British—the legal regime and professions in all three countries are closely linked. The apex court of the three, the East African Court of Appeal, was established in 1902 and remained in place until 1977. During that time it decided hundreds of cases that still provide useful common authority to the courts in

10

Introduction

all three countries (Kakuli 2004, 36–38; Katende and Kanyeihamba 1973). When legal education was localized, it was situated at the University of Dar es Salaam, and all three countries sent students there to study for the Bachelor of Laws (LL.B) degree at the Faculty of Law, established in 1961. Comparative studies of the three countries are common, but much more as anthologies rather than as thematic, scholarly, in-depth examinations of particular phenomena. With respect to PIL, the major work primarily consists of reports from non-governmental agencies. In sum, there are no in-depth, critical, scholarly examinations of how public interest litigation has impacted the general body politic of the three East African countries. Why public interest litigation? Taken broadly, PIL refers to court action that seeks to secure the human and constitutional rights of a significantly disadvantaged or marginalized individual or group. It is a mechanism that has been utilized to challenge legislation, arbitrary State action, or even violations by private individuals that have public implications, such as ethnic or gender-based discrimination. Such legal action can be used in tandem with broader social and political movements directed at change or to encourage alliances that result in political action (Hershkoff and McCutcheon 2000, 283). The underlying goal is to foster broad social impact and change. According to Frederick Jjuuko: Public interest litigation has the potential to combine the virtues of political action with legal processes. It can conscientize and mobilize people to recognize and actively fight for their rights and interests and thereby strengthen civil society and a sense of shared and collective interests and destiny. Such a process can reveal the multifaceted nature of these problems by showing the interconnectedness between economic, political and legal issues and their ramifications (Jjuuko 2004, 102).

PIL has been described as the expression of politics through “other means” (Abel 1995) because this route is often chosen when traditional channels of direct political action aimed at achieving social or political change, namely voting or legislative action, have been closed off or blocked. While the expression “politics by other means” was initially used specifically in relation to challenging the institution of apartheid in South Africa, it is clear that politics through “normal means” is not always possible—even in countries that are ostensibly democracies. The use of courts to achieve political goals through litigation is thus an action still very much in use, whether or not fundamental change results from such intervention.

About Courts, Politics, and East Africa

11

A number of additional observations can be made about the nature of PIL in the twenty-first century. First, there is a wide range of issues that can become the focus of such litigation. Courts have enabled the concept to extend “beyond the restricting requirement of the existence of some proprietary interest of a public character” (Thio 1971, 140). Therefore, public interest law today does not describe a particular body of law or a specific legal or academic field. Issues ranging from employment or gender-based discrimination to protection of the environment, worker’s compensation, or unfair forms of taxation can all form the focus of legal struggle under this form of litigation. Hence, PIL describes both the nature of the issues and the class of persons being represented in such action. Second, public interest lawyers do not generally represent powerful economic interests, choosing instead to be advocates for otherwise underrepresented individuals. PIL generally focuses on issues of particular concern to the community at large, to a major section of the public, or to a recognizable but marginalized minority. The outcome of such litigation is deemed important in that it is likely to impact not only the individual complainant bringing suit, but also a larger cross-section of society. In this respect it is a kind of legal aid, although PIL has an interest broader than just the grievance of the particular individual who is being assisted. As Richard Abel points out, “the clientele of legal aid does not lend itself to organization, and … the offer of legal assistance actually may undermine collective action” (Abel 1985, 497). On the other hand, precisely because PIL is ultimately aimed at the collective and not simply for individual benefit or empowerment, it has powerful potential for organizing those affected by a particular law or government action and for ultimately fostering social change. It is in focusing on the collective that PIL crosses over from the purely personal to become political. Thirdly, PIL is generally targeted at failures or omissions on the part of the State to meet obligations, such as access to adequate health care, rights to and within education, and other forms of service delivery that are fairly well stipulated either in the constitution or in ordinary law. To borrow from Mario Gomez, public interest litigation is part of “a reaction to the failure of the political elite…to improve substantially the conditions of underdevelopment and poverty” (Gomez 1993, 7). Finally, given that states are only one of numerous other potential human rights violators or inhibitors, PIL is also increasingly focused on actors or agents—family, clan, community, and even corporations—that may be directly responsible for the violation. Despite what can be touted as its most positive attributes, PIL is a particular form of social action with a heavy focus on courts of law as the

12

Introduction

means for seeking realization of human rights. Invariably, there are limitations in such a strategy. Stuart Wilson cautions that rights fought for via PIL “come with a lot of baggage” primarily because they are generally understood to be a set of purely legal claims (Wilson 2014). This places too much reliance on institutions for enforcement of claims that may be too weak or compromised to deliver meaningful social change: It is no good asking an elite judge, through elite lawyers, to do something truly egalitarian. His (and it is still usually his) class and other social prejudices will interfere. Even if they don’t, strong traditions of judicial restraint will. At best, a transformative political claim will be wrung through the legal system and emerge as a much diminished legal right. That right will then be virtually impossible to enforce, because all the institutions of enforcement are operated by the very interests that the judgment is meant to curb. Rights also require a stable bureaucracy that respects the rule of law, and an independent Judiciary. These cannot always be guaranteed (Wilson 2014).

There are several other facets to the argument that PIL may not ultimately reinforce or foster the public good. Charges have been made that PIL is an elite project that steers the Judiciary away from its traditional functions and into arenas where it has neither the competence nor capacity to do much good. Some have argued that PIL presents an over-inflated vision of the possibilities of social change through court-dominated legal action (Rosenberg 1971, 70–71). There are also claims that using courts to achieve goals that are essentially political in nature lacks the necessary legitimacy to ensure that there is social buy-in of such interventions. According to this argument, court-made law is ultimately not sustainable. As Handmaker argues, “public interest litigation represents a confrontational expression of civic agency that is, generally speaking, more limited in scope than cooperative interactions (such as advising a policy-making process) but potentially has great value in elaborating a state-created structure” (Handmaker 2011, 71). Attention to these and other critiques will be an enduring feature of the subsequent analysis in this book.

The Structure of the Book This book is divided into seven chapters. Because it lies at the core of determining whether a matter will see the light of day, the critical question of who has a right to bring a case to court is addressed in the first chapter. The chapter considers the issue of access to courts of law and explores the historical, socioeconomic, and political questions that have influenced the evolution of the locus standi doctrine, otherwise translated as the right to

About Courts, Politics, and East Africa

13

be heard in a court of law. The chapter retraces the roots of the doctrine, contrasts the traditional African approach to pre-colonial systems of adjudication, and then considers the impact of the Common Law legacy on the realization of justice in the colonies. That legacy was incorporated into the various Orders-in-Council and their infamous “reception clauses,” which provided the legal basis for the colonial system of governance that was established. Chapter 2 considers the application of locus standi within the postcolonial East African context and examines the extent to which courts in the early years of independence modified, adapted, or retained key elements of the doctrine. It also examines the impact these actions have had on attempts to pursue the protection of rights and uphold democratic constitutionalism. The chapter also looks at the Political Question Doctrine (PQD) as one of the main mechanisms used by the Judiciary to shield itself from engaging in matters regarded as too political or controversial. That doctrine has had a marked impact on the manner in which East African courts have made their decisions on matters of public interest, and it continues to exert significant influence on the courts today. Beyond the question of standing is of course the manner in which the courts actually handle the issues they agree to consider. Thus, chapter 3 introduces and examines the evolution and development of the public interest litigation phenomenon as it first surfaced in jurisdictions elsewhere—specifically the United States, India, and South Africa—before turning to an in-depth examination of the East African experience. Chapter 4 considers the gendered manner in which women and sexual minorities have been traditionally excluded from engagement with and benefitting from the political economy of the justice system and how they have fought back against such exclusion. There is particular focus on how the treatment of women has played itself out in the courts of law. The chapter considers the ways in which justice in East Africa has been gendered, particularly through the preference given to dominant, patriarchal forces and institutions. Also considered is the impact on women of the processes of judging on issues both personal (family relations, cultural practices, and inheritance), and political (representation, inclusion, and participation). The chapter concludes by examining the gendered manner in which the law and courts have dealt with the issue of sexual minorities. Chapter 5 moves the focus of the book to an examination of how public interest litigation has been deployed to address economic, social, and cultural rights (ESCRs) against the wider backdrop of the relationship between law and poverty. It asks and attempts to answer the question: “what have courts got to do” with such issues?

14

Introduction

Chapter 6 examines the process of adjudicating disputes over presidential elections. Although not traditionally regarded as public interest litigation, presidential elections, this book argues, are crucial to the welfare and interest of the public, especially given the manner in which presidential politics has affected governance and social transformation in all the countries of the region. In other words, court action on presidential elections— although invariably instituted by the losing party—should be taken as a sui generis specie of public interest litigation. Noting that courts have traditionally been insulated from making decisions over this most controversial of political acts, the chapter examines the repercussions now that the power to review such elections has been given to the courts in both Kenya and Uganda. A similar mechanism of judicial oversight has been proposed in Tanzania. Chapter 7 consists of concluding reflections.

CHAPTER ONE DO YOU HAVE STANDING?

Courts of Law in East Africa are usually not very friendly places. Dark, mahogany-covered walls are most often the favoured choice of paneling. The Bench is elevated above the Bar so that—it is believed—the judges can look down condescendingly on counsel and on those seeking its intervention and the benefit of a hearing. There is the ambience and the substance of the proceeding and the fact that any way you look at it, the parties to the case are literally involved in a sophisticated form of begging. There is the dress and deportment of judges and lawyers, not to mention the inevitable and looming presence of the State by way of uniformed police personnel and bodyguards, even at civil hearings. It is the ultimate in power play and judicial gate-keeping (Jaffer 1992, 190–193). And then there is the language of the court. Even if you understand full well every aspect of the proceeding, the language used in judicial proceedings is arcane and distant—that is, the language of court is manifestly prohibitive. Indeed, courts in East Africa could be described as the furthest thing from friendly and all-embracing, making no pretense at being accommodating (Shivji 2001, 60–61). Despite the world having moved on to a stage of post-industrial capitalism, inside the courtroom feudal relations persist in the titles that the judges in most Commonwealth countries still retain: “My Lord,” and (depending on the situation, the particular tradition, and the specific judge), “My Lady.” In turn the lawyers in the Bar refer to each other and themselves as “learned,” not “learning.” Is the idea to maintain a front that is both exclusionary and alienating? Ironically, the stiff front could be taken to suggest that judicial brains have stopped working.1 But to cap the intimidating ambience that the judicial setting invokes, in a court of law there is also the uncertainty of winning. Even the best prepared and seemingly most obvious of cases can trip up on the whims of a tiny procedure omitted from one’s pleadings. Suits have been dismissed 1

The South African Constitutional Court has taken deliberate steps to change this perception (Comell 2014).

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Chapter One

for the lack of a signature in the right place, a missing document, or indeed for a misplaced comma (Twaib 2012, 287–289). Chief Justice Othman of Tanzania tells of one case that was summarily dismissed because the word “afternoon” was spelled with a hyphen, as in “after-noon”! (Othman 2011, 12). To compound the issue, many a time, when a matter is dismissed because of a technicality, there is no chance for a second bite of the pudding. Being in a court of law—as we were in the petition challenging the Anti-Homosexuality Act (AHA)—is thus always an event of great drama, irrespective of the issue in contention or the manner in which one has arrived there. This is especially the case in matters relating to human rights or with those that challenge legislation in a test of its constitutionality. More striking than the sheer drama of being in court is the process of getting there in the first place. In relation to the AHA petition, how, to be sure, had this motley collection of ten petitioners, arguably only three of whom could be said to have a “direct interest” in the matter before court, been allowed to file such a petition?2 The question of how we arrived in court is pertinent because it has not always been a given. Not every Wanjiku, Okello, or Kikwete in Kenya, Uganda, or Tanzania has always had the automatic right to go to court. Indeed, there are still jurisdictions around the world today where our petition would have been summarily thrown out for lack of what is called “standing,” or locus standi in the arcane language of the Law.3 In Namibia, for example, an applicant for judicial relief is required to demonstrate a direct and substantial interest in the subject matter and outcome of the application (Hinson and Hubbard 2012, 1). Such interest must be current and actual, as opposed to being abstract, academic, hypothetical, or simply remote.4 In Nigeria, by virtue of the Petition of Rights Act, for a long time suits against the government could only proceed with the consent of the government itself (Atah 2012, 72). Other countries—following the dubious example of apartheid South Africa—simply made recourse to clauses

2

The three were Kasha Jacqueline Nabagesera, Frank Mugisha, and Patience Julian ‘Pepe’ Onziema, who openly identified as gay or lesbian. Two of the petitioners were politicians, one a journalist, and another a medical doctor. The last two were human rights organizations. 3 Locus standi simply denotes the “legal capacity to institute proceedings and is used interchangeably with terms like ‘standing,’ or ‘title to sue’” (Thio 1971, 1). 4 The same was held in the recent Malawi case of The Registered Trustees of the Women & Law (Malawi) Research & Education Trust v. the Attorney General (Constitutional Case No. 3 of 2009).

Do You Have Standing?

17

in the law that would prevent courts from even making an inquiry into the matter in question in the first place (Ellman 1992, 13).5 Although the doctrine of locus standi has been described as “amorphous, intellectually inconsistent, and unnecessarily complex” (Stein 1979, 3), the question of how one is allowed to appear and be heard in a court of law lies at the bedrock of adjudication mechanics in an adversarial system such as that of English Common Law, which operates in all three of the East African countries discussed in this book. The right to be heard has less meaning in and of itself than in what it enables you to do. Put another way, it is the key that opens the door of access to justice (Bonine 1999). To borrow from Loveday Hodson, Judicial decisions on standing make [these] rights accessible to certain people or groups of people. As such, they not only control the scope of their application and define the category of person entitled to claim enjoyment of these rights, but also have an impact on the interpretation of these rights by deciding which actors become involved in the rights discourse. In considering the question of standing we are in effect asking how the rights we have been talking about can best be translated into a practical reality (Hodson 2003, 155).

The judicial key is thus a crucial one. But inserting the key into the lock is no guarantee of access: the key may fit and yet still be unable to unlock the door. As one judge noted, the parties may be right; the issue may be germane, and the law directly on point. Despite such favourable odds, the case can still be lost. In fact, but for a 1995 change in Uganda’s Constitution resulting from a series of court battles that were fought over several years to establish who had the right to petition in a matter involving the enforcement of human rights or the interpretation of the Constitution, our petition would have been dead in the water. These developments would allow future petitioners to at least get the proverbial “foot-in-thedoor.” Because access to the courts has not always been a straightforward matter, this opening chapter is devoted to an analysis of how an individual gains access in a matter of “public interest” in East Africa. It addresses the critical issue: who indeed has the right of standing?

5

In the Nigerian case of Abacha v. Fawehinmi [2001] CHR 20, the court got around the ouster clause by applying the African Charter of Human & People’s Rights.

18

Chapter One

A Brief Step Back into History Aside from periods of revolutionary turmoil and cataclysmic social change, sometimes issues of major social or political importance—for example the struggle against racial or gender-based discrimination, expansions on the right to freedom of expression, or improved protections of the vulnerable and the marginalized—only find accommodation and development when courts of law are compelled to make pronouncements about them. This is especially the case when the two other organs of government, the Executive and the Legislature, are too immobilized, too compromised, or simply too opposed to take progressive action. Legislative change in such instances may be held back by factional political interest, broad public opposition to social and cultural change, or even by the magnitude of the financial implications involved. Also, on issues of major social transformation it is unlikely that the Executive could act alone, unless, of course, we are speaking of a dictatorship. Conversely, when the main mechanisms of government fail to support such change, the people will step in via revolution. Against such a background, one can consider any number of judicial declarations that have radically altered the pre-existing legal regime and consequently the political and social context. One need look no further than the U.S. Supreme Court’s decision in Brown v. Board of Education of Topeka,6 which ended legal apartheid in public schooling in the United States of America. What of ex parte Pinochet,7 the controversial case in the English House of Lords that changed the body of principles on Head of State immunity in international law? In discussing the relevance and applicability of the doctrine of universal jurisdiction, which was the main issue in the Pinochet case, the Kenyan High Court held that “the doctrine of universal jurisdiction was a ius cogens obligation under international law. As such, states were authorized to arrest and prosecute persons engaged in international crimes regardless of their nationality or the place of commission of the crime.”8 Brown drastically transformed local social structures, while Pinochet adjusted global inter-state norms. Both cases brought about changes that 6

347 US 483 (1954). R v. Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte 3 WLR 1,456 (H.L. 1998). 8 See paragraph 64 of Kenya section of the International Commission of Jurists v. Attorney General and Minister of State for Provincial Administration and Internal Security and Kenyans for Justice and Development Trust (joining), [2011] eKLR, ILDC 1804 (KE 2011). 7

Do You Have Standing?

19

had been considered impossible only a few years before. Despite its contested legacy today, sixty-plus years after it was decided (Cobb 2014; Patterson 2001), Brown opened the way for African-American children all over the U.S. to study in desegregated schools, with diverse other impacts for other disadvantaged students of all types (Minow 2010, 1). What is often forgotten is that the case also stimulated advances in voting rights and desegregated housing, and paved the way for outlawing antimiscegenation statutes that had criminalized inter-racial marriage.9 Pinochet’s case foreshadowed the current position enshrined in the Rome Statute on the International Criminal Court (ICC), which stipulates that Heads of State are not immune from prosecution if they commit crimes of an international nature such as genocide or crimes against humanity, opening the way for indictments of both former and incumbent presidents.10 Although still a matter of considerable debate and contestation, there is no doubt that leaders are no longer able to rule with absolute impunity. The decided case law of countries like India, South Africa, Columbia, and numerous others around the world now vividly demonstrates that action in a court of law by a single aggrieved individual or by public-spirited groups in circumstances of social stress or political tension may have monumental implications for society at large. Decisions by courts of law are increasingly having an impact beyond the small coterie of curious law students, practicing advocates, university professors, and judicial officers who have traditionally paid attention to them. In the words of Leslie Stein, “Every time an individual dispute in respect of governmental action is

9

According to Greenburg, the Supreme Court did not stop with Brown, but “began to see itself as a vital protector of rights and liberties, including those not specifically addressed in the Constitution. It recognized greater rights for criminal defendants. It imposed limits on religious expression. It identified new constitutional rights to privacy. Its role in American society grew. It became a moral compass” (Greenburg 2008, 24). On the anti-miscegenation statutues see Loving v. Virgnia 388 US1 (1967). 10 The first former Head of State to face an international tribunal was Slobodan Miloševiü, who was arraigned and tried before the International Criminal Tribunal for the former Yugoslavia (ICTY) beginning February 12, 2002. However, he died on March 11, 2006, before conclusion of the trial. Charles Taylor—former president of Liberia—was the first African ex-Head of State to be indicted, tried, and convicted by an international tribunal (the Special Court for Sierra Leone), while Omar el-Bashir, president of Sudan, and Kenya’s current President Uhuru Kenyatta are both indictees of the International Criminal Court, although charges against the latter were eventually dropped by the prosecutor. The former president of Cote D’Ivoire, Laurent Gbagbo, was indicted in 2011.

20

Chapter One

determined, it readjusts the interface between the rights of all citizens and the power of public authority” (Stein 1979, 16). Consider the following: if one has been cheated on a contract, assaulted in a bar, or wrongfully deprived of property, the benefits of a judicial pronouncement in favour of the individual complainant are usually limited to that specific plaintiff. At most the complainant is entitled to damages, an apology, or the restitution of the deprivation or injury that has been done. By contrast, if a woman is denied rights of inheritance solely because of long-held social or communal prejudices and conventions about gender, or if a member of a religious community is denied a place in an educational institution primarily because of spiritual beliefs, then in both cases the individual litigant comprises part of a wider social group that is faced with similar conditions of exclusion or domination. Thus a progressive pronouncement of the court will have implications that reach far beyond the individual who filed suit to make a statement about a generic group or class of individuals in society. If access to courts of law is in the first instance limited or even barred, social and legal progress is likewise restricted and partial. Thus, central to the development of progressive judicial interventions is the degree to which courts of law are accessible to the general populace for issues other than those that affect them directly and individually. Put differently, access to courts is critical. However, it is only the first step towards securing access to justice. This is true, however, only within the framework of “modern” courts and society, where social existence has become so compartmentalized and specialized that the avenues for social transformation have likewise become more restricted. Our “modern” litigious societies have become transfixed by the idea that genuine justice can only be delivered through courts of law. Such attitudes have worked to minimize alternative avenues for dispute resolution and to simultaneously place an unduly heavy burden on the Judiciary as the main medium through which social and political disputes must be resolved. Thus, courts have come to be viewed as the do-all and end-all. In the process they often find themselves between a rock and a hard place, especially when the issue in contention is one of major social, political, or cultural concern to society at large. Consider the fractious debate over abortion rights in the U.S., same-sex erotics in India, or the Right to Die (to commit suicide) in Switzerland. Assigning the resolution of these disputes to the courts provides only a temporary respite from the process of grappling with social issues that extend far beyond legal settlement (Brundage 2008, 485).

Do You Have Standing?

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The modern-day affliction with court-based resolutions to social and political disputes raises other questions: how much are courts actually reflective of the “pulse” of the people? By taking these issues to court, haven’t we abdicated responsibility for addressing the hard questions in our societal evolution? Moreover, who selects the panel of individuals to arbitrate over such questions, and how transparent, inclusive, and reflective are these processes? In most instances, justice transmitted via the courts tends to confirm pre-existing structures of dominance and marginalization. As a matter of fact, in most countries courts of law are much more likely to err in favour of the status quo than in support of dramatic social change. In essence this results in “rule by law” rather than the ostensibly more desirable “rule of law.” The net result is that justice ends up being dominated by those with economic clout, social dominance, or political presence. How do we counter this process of hegemonic consolidation while still ensuring that courts deliver on their original promise of justice for all with neither fear nor favour? One final problem remains. The seeming monopoly of courts as dispute-resolution mechanisms closes out alternative visions of what can and should be done to allow common access to justice. It also gives the courts a monopoly over structuring the mechanisms for access to justice. We thus need to constantly revisit the idea that modern courts are the exclusive avenues through which we can expect the delivery of justice. Such revisiting helps us to imagine different, more egalitarian, more democratic, and ultimately more sustainable methods for securing improved access to justice in modern society. How, for example, was the question of access to justice addressed in pre-colonial East African societies?

Access and Justice in the pre-Colonial Setting Just as colonized territories were regarded as res or terra nullius (unoccupied territory) (Murphy 2012, 162) and African societies as absent of any history before colonialism,11 so too was the continent regarded as sans droit—without law prior to colonialism (Lamba 2001, 12–15). The various epithets and disparaging descriptors that accompanied these views of precolonial Africa need not detain us here, but they were directed towards the achievement of two crucial objectives. The first was to justify the imposition of alien laws and legal institutions, and the second to destroy, transform, or effectively neutralize what was found on the continent prior to colonialism. From descriptions in the literature of “hearts of darkness” to 11

For a contrary view see Shaw 1986, 33–38.

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Chapter One

biblical allusions to the “lost children of Ham,” colonial structures of governance did little to valorize or support existing ideas of law and justice in operation on the continent at the time (Elias 1956). Although indigenous laws were recognized, they were subjected to the “reception” clauses that were the mechanisms by which foreign English law was imported into the colonies. Indigenous laws were thus made contingent upon and subordinate to the imported regimes. If for that reason alone, it is important that any attempt to reinterpret contemporary notions of law and justice begin with an understanding of the origins of these early forms of adjudication. Such an attempt should both recognize the intrinsic limitations of our contemporary systems for access to justice and ensure that the narrative of history is not a one-sided, ethnocentric, or incomplete one (Diop 1987; Tiky 2012). Lastly, ensuring that this history is not lost makes the case for the design of new forms of adjudication stronger. Understanding the pre-colonial period entails comprehending the diversity of what erroneously came to be called “Customary” Law, namely the law that was operative before the imposition of a colonial framework of governance, of which the justice system was an intrinsic part (Ndulo 2011). Understanding this diversity also helps us begin a process of rethinking, reorienting, and reconstructing the law, which must be a central aspect of any project designed to comprehensively tackle the obstacles to obtaining full standing in the courts. Such unpacking is also necessary to secure improved access to justice. As Ugochukwu points out, there is a great need to Africanize the domestic operation of human rights as opposed to remaining fixated on Western models of governance and constitutionalism (Ugochukwu 2010). From the outset, we must acknowledge that obviously the sheer size, complexity, and diversity of the African continent, its peoples and sociopolitical organizations defy a single generalization of the state of affairs in this epoch (Mutua 2002, 74). As distinct from the existing situation, precolonial Africa was characterized by a vast array of legal pluralities, each of which sought to deliver justice both to the individual and to the community at large (Mojola 1996). As Mamdani has observed: First, precolonial Africa did not have a single customary authority, but several. Each of these defined custom in its own domain. There were thus age groups, clans, women’s groups, chiefs, religious groups, and so on. It is worth noting that only one of these—chiefs—was sanctified as a native authority under indirect-rule colonialism, and only its version of custom was declared “genuine.” The rest were officially silenced. In sanctifying

Do You Have Standing?

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the authoritarian version of custom as “genuine,” colonial power sought to construct native custom as unchanging and singular (Mamdani 2005, 6).

It thus follows that pre-colonial African societies were not dominated by a “single, unchanging tradition” (Roberts & Mann 1991, 4). What existed was “contested and continuously reconstituted traditions, best understood as clusters of rites, moralities, expectations, and conflicts which gave rise to changing regulatory practices.” Customary Law was, in the words of Martin Chanock, ultimately a site of negotiation (Chanock 1985). Regardless of the level of development, African societies largely employed an egalitarian and fully accessible apparatus of access to disputeresolution mechanisms, whether these were family, clan, community, or state-based. They were “egalitarian” in the sense that they were spaces of negotiation in which different categories of groups were provided with arenas in which to contest the application of the law to their particular circumstances (Manuh 1995). Also, unlike English Common Law, precolonial African law was not, in the words of Professor Allot, “dominated by procedural considerations” (Allott 1969, 179). One only needed to prove or affirm membership in any one or several of these particular institutions in order to ensure access. This did not necessarily imply that delivery of “justice” was guaranteed; it only assured that one would be heard. Pre-colonial forms of justice were meted out largely irrespective of status. In other words, status per se would neither strengthen nor diminish the likelihood of being heard. Access to the existing dispute-resolution mechanisms was in this sense fully democratized (Olutunji 2010, 301–308). As Maureen Owor points out in her comprehensive study of the clan courts of the Jopadhola community of Eastern Uganda: The community fully engaged in deliberations in a seemingly “casual” manner, particularly in the giving of evidence. Most importantly, “anyone and everyone who knows about the case would be allowed or encouraged to testify.” At the opening of the case some elders would permit people to speak on the issues in dispute between the parties. This “elasticity” of the procedure did not degenerate into a free-for-all, but was orderly, following the rigidity of custom. The wide latitude given by the judge or elders was intended to show absolute impartiality during the hearing. The verdict was normally pronounced by the most senior of the elders and based not on theories, but on moral assumptions implicit in norms known to the entire community. The judgments were therefore a “pragmatic” approach to societal justice, of which the adjudicators and other parties were part. Verdicts were arrived at after all adults present had expressed their opinions on the issues freely. Decisions could be deferred until all members of that community were present (Owor 2009, 178).

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Chapter One

There are several important features of the pre-colonial era that are relevant to our contemporary access-to-justice struggles. The first is that testimony and evidence were direct, not mediated through a third party such as a lawyer. Cross-examination—or the interrogation of the parties in dispute—was conducted by all in attendance, which meant that it was more representative and inclusive.12 Hence, those sitting in judgment were in direct interaction with the disputing parties, which is not necessarily the case with contemporary methods of adducing evidence or hearing from the plaintiff/complainant/petitioner. In other words, lawyers have not always been the primary intermediaries between those who seek justice and those who dispense it. When you add court interpreters into the mix—since the official language of the courts is the colonial one—the many possibilities of distortion, manipulation, and outright abuse are multiplied exponentially (Amutabi 2006). As the old saying goes, the mode of transmission of the message is as important as its content. The second point about the pre-colonial context is that, in contrast to the contemporary court system, while the adjudicatory bodies enforced the law, they did not necessarily have a monopoly over it given the community-based framework within which justice was conceptualized and implemented. Today, with the specialist knowledge of the courts and the Bar, it is very difficult for an individual without a similar kind of learning to effectively engage with the process, let alone to challenge it outside the terms set by those in control. The language alone acts as a significant barrier, not simply because it is predominantly English, but also because it is steeped in legal idiom and terminology, otherwise known as legalese. Among East African countries, Tanzania has made the greatest advances in indigenizing the language of its official bodies through the use of Kiswahili. Ironically however, the language of the higher level Tanzanian courts is still English, presenting a highly incongruous situation because all the parties in court—accused, lawyer, witness, interpreter, and judge—are fluent in Kiswahili! Another paradox is that, aside from the Constitution, all Tanzanian laws are written in English—a strange situation given that it is the many ordinary laws that have the greatest impact at lower levels of society. What is more, throughout Africa alternative mechanisms of dispute resolution such as local courts still do not enjoy either the necessary respect of the judicial system as a whole or the requisite support from the state to make them effective repositories of what can be described as “popular” justice (Oloka-Onyango 1993). This means that effective justice is confined to a very small proportion of the population. 12

Lloyd Fallers described the law as “popular,” “accessible,” and “embedded” (Fallers 1969, 312–315.)

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A third significant feature of the pre-colonial era was that a jury system of sorts was in place throughout most of the continent via participation of the whole community, or a distinctive segment of it chosen by age, status, or other qualifier (Grande 1999, 63). In most current Anglo-African systems of adjudication, the judge sits with assessors who are not necessarily representatives of the community and who may be as detached from it as the judge. This is clearly a direct relic of the colonial system in which panels made up of peers (jurors) of the same ethnicity or community as the accused could not be trusted to deliver “proper” justice. It was the classic extension of “divide and rule” into the court room. Such detachment in the umpire of mediation from those who are the direct beneficiaries of the process has stark implications for the delivery of justice, which must be rooted in the ideals and norms of society. Abstracting justice from those belief structures will result in a hollow form of justice, which explains the continuing discontent, abuse, and corruption that plague contemporary judicial structures in East Africa. In countries where the jury system has been retained, such as the United States, Australia, and Canada, the jury is recognized as fundamental to ensuring that justice retains a popular or communal element and does not become a distinctive preserve of the élite. Even if judicial errors sometimes occur, a jury system ensures that justice is democratized. Recent attempts to return to participatory forms of adjudication—such as the resistance committees and courts that followed the National Resistance Movement’s (NRM) capture of power in Uganda in 1986, and the more famous Gacaca in neighbouring post-genocide Rwanda—have had only partial success (Barya & OlokaOnyango 1994; Clark 2010; and Stover & Weinstein 2004). Finally, while the mechanisms of judicial remedy in the pre-colonial context ranged from the restorative to the punitive, the emphasis in such systems was on reconciling not only the individuals who had brought the matter for resolution, but also the community from which they came. Precolonial African justice ultimately reflected the adage, “I am because we are” (Mutua 1994–1995, 360; Okoth-Ogendo 1993). In contrast, contemporary systems of criminal justice under the Common Law give much more prominence to retributive and deterrent forms of punishment, focusing on the individual violator and his or her victim, both in isolation from the wider community. In terms of substantive content, Law in the pre-colonial era extended from rules over property, criminal justice, succession, and inheritance to the mechanics of governance. In sum, pre-colonial law ran the gamut of socioeconomic, cultural, and political activities in which communities were engaged. Rules of access were not necessarily uniform, but contin-

26

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gent on the specific issue in dispute. As Okoth-Ogendo pointed out with respect to the issue of land, the right of access was “conceived of as a multiple phenomenon that varies in nature and content with the kind of land use activity in which the individual or collective is involved” (OkothOgendo 1982). The crucial point was that rules of access were adjusted to address the specific features of the dispute in question; the rules did not remain static regardless of the nature of the dispute as is the case with modern Common Law systems. The colonial system imposed upon African societies effectively relegated pre-colonial forms of dispute settlement to inferior status within the wider corpus of the legal authority subsequently instituted (Lamba 2001, 20–21). Such imposition negated the pluralistic character of the Law and synthesized it into a single, static unit of colonial governance. With indigenous judicial systems thus inhibited, Customary Law suffered from atrophy and sometimes from deliberate manipulation, sabotage, or abuse (Obol-Ochola 1970, 175). In other words, under colonial influence precolonial Law underwent fundamental transformation and became subsumed in the new political economy. As Joan Vincent observes, in essence the Customary Law of the colonial era was “unwittingly or wittingly, a selective matter, and it represent[ed] a compromise between those recognized as leading elements in indigenous societies and the colonial administration who co-opted them” (Vincent 1989, 164). While a vast majority of the populace continued to operate under some variant of its reincarnation, the circumstances of colonial political economy denuded Customary Law of most of its essential and dynamic attributes while also injecting it with radically foreign concepts such as “prescription, limitation, and even the power of outright disposition,” for example in the critical area of property and land law (Ogendo 1979, 159). For the so-called “native courts,” which were designed by the colonial powers to deal mainly with civil disputes and criminal conduct among Africans, the tendency to rely on non-African forms of dispute resolution and punishment correspondingly grew (Coldham 2000, 220). A number of structural and conceptual forces served to ensure this dominance. Among the most important in East Africa was English Common Law.

On the Legacy of the English Common Law In contrast to the African experience before colonialism, English Common Law brought with it numerous rules to determine whether or not an individual had a right to go to court in the first instance or to be heard upon filing a complaint. Deriving from these rules, litigants who brought

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an issue to court had to prove a direct connection to the subject matter under contention. In other words, unless one could prove an intimate link to the issue in dispute, the individual could not seek audience in the courts of law. These rules—collectively known as the doctrine of locus standi— have come to play an inordinately significant role in determining whether access to court is realized. Indeed, the right of access to a judicial body, i.e., the question of whether you have a right to be heard, can be even more important than the merit of the case itself. To put it differently, it is a case of grammar winning over substance: locus standi is a hurdle that has to be overcome even before one can be heard on the specifics of the grievance at hand. According to Stein, locus standi exists as a separate right “apart from the factual or legal merits of the issue before the court or the jurisdiction of the court to adjudicate upon the issue” (Stein 1979, 3). Why is this so? Why was the Common Law so rigid in deciding who could and could not be heard in the courts of law? Several theories associated with the rule of standing have been advanced.13 The first has to do with the proximity of a litigant to the issue under contention. If an issue is of direct concern to you, then obviously your interest is clear and the pathway to the courts is straight. If it is not, what are you doing in court? If a stranger has been cheated, beaten, or denied a job, what business is it of yours? The second theory has to do with the possible abuse of court processes captured in the famous phrase “frivolous and vexatious” suits, or as the Indian Supreme Court poetically stated in the case of Janata Dal v. H.S. Chowdhary & Ors.,14 cases filed “without any rhyme or reason.” These are cases, the court went on to state, that are filed by “a mere busybody or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.”15 This last phrase captures the fear of using litigation to achieve dastardly or iniquitous goals intended either simply to harass, disturb, or disorient the other party. Given how many genuine grievances there are, why allow those with flippant concerns to clog up the system? The third theory is that without rules of standing you are encouraging litigation, or an “opening of the floodgates.” Under this kind of reasoning, the resources of courts are finite, judges are not in great abundance, and litigation is a timeconsuming, costly, and resource-intensive enterprise for all sides involved. 13

For a summary of the reasons usually given see the South African case of Ngxuza and others v. Permanent-Secretary, Department of Welfare, Eastern Cape and another; 2001 (2) SA 609 (E). 14 On 28 August, 1992; AIR 1993 SC 892, 1993 CriLJ 600. 15 Id.

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This is especially the case for the Bench, which has to deploy the judges and other court personnel required for the case, resolve the specific complaint alongside several others, and ensure a timely and well-reasoned decision on the issue. Finally, there is the theory that certain areas are simply off-limits to litigation, either on account of the sensitivity of the matter, the status or condition of the party that is the subject of the suit, or on account of that elusive but omnipotent animal named “public policy.” On further examination, none of these objections holds much validity. Taking just the floodgate theory as an example, Michael Beloff has stated: When floodgates have, despite the dire warnings of advocates, been opened in areas of court work, the consequence has been a trickle, not an overflow. And public law is, after all, at root about the public interest: no type of case should have a better claim on court resources. The Executive should rather appoint more judges than subvert the possibility that the reasonable control on its abuses should be strengthened (Beloff 2000, 290).

A deeper reading of the litany of objections raised by those who prefer a closed rather than a democratic system of access demonstrates that there are direct links between the origins and subsequent applications of the locus standi doctrine and the rise and development of a society distinguished by class differences. Indeed, the principle has undergone changes from the feudal period through capitalist times and on to its most modern permutations in varying legal regimes around the world. Those changes are reflective of considerable class struggle, albeit played out within the arena of the judicial process. What is concealed within the plethora of locus standi rules is the protection of vested interests in property and the consequent benefits that this confers by way of status. The roots of locus standi can be traced back to two peculiar features of the English court. The first was the idea that the courts belonged to an individual—the Crown. Therefore all public judicial proceedings were instituted in the name of the Sovereign, who owned the courts. That is why such cases are still designated with “R” representing Rex (King) or Regina (Queen) in the English system, and it is the reason the main court of the monarchy is described as the Curia Regis (King’s Bench). Ownership of the courts was personal, not communal or corporate, and was reflective of the absolute nature of rule exercised by the kingly regime. Thus, the initiation of private cases would obviously require permission from the owner of the courts, which explains the evolution of the “writ system”—a means of allocating each form of complaint into a standard category that could be dealt with by standard procedures—16 and of the “petition,” which is in 16

Wikipedia https://en.wikipedia.org/wiki/Writ

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essence a plea for permission to be heard and has its roots in medieval practices of serfs pleading for an audience (justice) with their Lords. The essence of a plea is that the person to whom it is addressed can choose to hear it, not to hear it, or even summarily to dismiss it. At the same time, medieval law was highly formalized, which explains why the writ system tied specific types of legal actions to a particular kind of writ. One’s cause of action had to fit precisely within the framework of a particular writ; failure to choose the precise writ matching the action being pursued could lead to collapse of the whole case. This system of adjudication followed the “no writ, no remedy” rule. With the passage of time the system became more and more formal and plagued by technicalities, with the result that categories of writ exploded from only fifty in 1216 to almost nine hundred by the early fourteenth century. Access to courts was contingent on the stringent, cumbersome, and expensive conditions established by the Crown, and no negotiation was permitted. This rigid structuring also meant that there was no automatic right to petition the courts. Rather, the right to petition was dependent on class, gender, and property holdings, among other status-related qualifications. Petitioning the monarch could even attract penalties, a practice that only changed with adoption of the Magna Carta in 1215—but the change was not consolidated until adoption of the 1688 Bill of Rights. Indeed, the struggle to secure these rights is demonstrated by the fact that the Magna Carta was not signed into law until 1297 and remained in abeyance until the Glorious Revolution that preceded enactment of the 1688 law. In 1598, when the future King James wrote The Trew Law of Monarchy espousing the notion of the divine rights of kings, England was still an absolute monarchy (Berman 2003, 234–235). Over time, the Law allowed more categories of court action to be brought against the monarch, but this was by no means a rapid process. The opening of the courts to more eligible petitioners was also gradual. For example, the Common Law doctrine of coverture specified that upon marriage a woman’s legal rights and obligations were subsumed by those of her husband, in line with the position that her legal existence was incorporated into her husband’s (Coulombeau 2014). A married woman thus had no standing to either own property or to sue in a court of law in her own right. The husband and the wife were “one person” and the one was the husband, an anomaly only corrected with the enactment in 1870 of the Married Women’s Property Act (Combs 2005). The second peculiar feature of the early English courts was that of sovereign immunity from court proceedings. This principle has evolved as sovereign, Head of State, or presidential immunity. If the courts belong to the Crown and the Crown is responsible for dispensing justice, then how

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can the actions of the Crown be subject to challenge? It was not until the 1947 Crown Proceedings Act that the British monarchy could be sued for breach of contract, reflecting how far protection of the Crown extended. Obviously, such rules encouraged a high degree of impunity not only for the Crown, but also for its political officers. Given the above history, it is not surprising that the list of Common Law rules—many of which inhibited individual liberty and social progress—inherited by colonial states is a long one. Heading the list was the so-called repugnancy clause, which subjected indigenous norms and customs to the received ideas of justice, morality, and “civilized” behavior introduced by colonialism.17 That clause had a defining influence on the nature and character of the Law that evolved in the colonized states (Kakungulu-Mayambala 2006; Mamdani 1996, 21–23). As H.F. Morris points out, to most High Court judges, native law and custom was something less than proper. Few, if any of the judges, wedded as they were to English precedent, and depending to an ever greater extent…on the decisions of the superior courts of England, would therefore have been prepared to accept that the substantive law of English origin operative in the territory might be replaced by, or substantially modified in light of, the native law and custom by which they were meant to be guided (Morris 1972, 77).

Following from the repugnancy clause, there was the absolute immunity of the Head of State, the English monarch before independence, which was conferred on the respective East African presidents after the attainment of political freedom. That immunity led to statements such as that made by one Kenyan Attorney General, who asserted that the president was “above the law,” resulting in all manner of executive caprice and abuse of power in the aftermath of political independence. Linked to this were the Crown’s prerogative powers, which allowed the Head of State to dismiss public officers at will18 or to deny an individual a passport and not be questioned in a court of law.19 Finally, there was the bar against issuing injunctions against the State, regardless of the damage or harm that would 17

See the judgment of Justice Wilson in Gwao bin Kilimo v. Kisunda bin Ifuti (1938), 1 Tanganyika Law Reports (Reprint) 403. 18 See for example the Ugandan case of Shaban Opolot v. AG (1969) EA 1, and the Kenyan decision in Mwangi Stephen Murithi v. Attorney General (High Court Civil Case No.1170 of 1981). 19 See Gibson Kamau Kuria v. Attorney General, High Court Miscellaneous Appeal No. 279 of 1985, and John Harun Mwau v. Attorney General (Nairobi Law Monthly, Dec. 1988—Jan.1989) at 6.

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result, effectively giving the State carte blanche to act with impunity. Despite the implication that Common Law, once transplanted, would be applied in a flexible manner in order to respond to local conditions, both the administrative and the judicial authorities applied the law “rigidly and uniformly in accordance with English authorities” (Seidman 1969, 56). Seidman refers to what was actually in force in the colonies of Africa as “a truncated, limited version of English law—and a version not merely old-fashioned, but skewed in a particular direction” (1969, 7). Thus, “whatever may have been the ‘democratic’ component of English law, it was plainly excised during transportation overseas” (1969, 78). This exported Common Law was marked both by the attributes imported with it and by the absence of those—such as the jury system and the Rule of Law—it left behind (Siedman 1978, 199). Moreover, with the division of the judicial structure into one for “natives” or “subjects,” as Mamdani has described them, and another for “citizens” or “immigrants,” it is clear that the very notion of justice was bifurcated.20 Institutionalized discrimination and inequality were hallmarks of the system. In the words of former Kenyan Chief Justice Willy Mutunga, the Common Law came to British East Africa as a “flawed inheritance” primarily because it came via the colonial route: The Common Law as applied in Kenya, at least to the indigenous inhabitants, as in the colonies generally, was shorn of many of its positive elements. During the Colonial era we were not allowed freedom of speech, assembly, or association. Our Judiciary was not independent, but was essentially a civil service, beholden to the colonial administration and very rarely minded to stand up to it. Indeed, administrative officers took many judicial decisions. There was no separation of powers. And institutions of the people that they trusted were undermined or even destroyed. Indeed, the Common Law was a tool of imperialism (Mutunga 2013, 20).

In all three East African countries, that “tool of imperialism” was carried over into independence. Despite the clear power to do so, courts of the early independence era were rather reluctant to endorse challenges to executive or legislative action that offended the Constitution (Pfeiffer 1978, 24). Hence judicial reviews of executive action were few and far between, leading to the early conclusion that in Kenya, “despite…adherence to formal constitutional appearances, practical executive authoritarianism [was] the reality of political life” (1978, 36). This attitude was grounded in the 20

That bifurcation—represented as a distinction between Administrative versus Common Law—was the subject of an inquiry in the region in the early 1930s (Bushe 1933).

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wider framework of rules inherited from English Common Law. According to Kathurima M’Inoti, “unswerving loyalty to principles of English constitutional law and judicial opinions in a jurisdiction that has a fundamentally different constitutional set-up, has proved to be the bane of [basic] rights and freedoms” (M’Inoti 2003, 195). There are several reasons why the position of the courts at this time appears to be at variance with the aspirations that ushered in political freedom. First of all, for several years after independence foreign expatriate judges—initially mainly British holdovers from the colonial period— continued to dominate the courts, although non-Europeans from India, the Caribbean, and West Africa gradually began to replace them (Aguda 1981, 6–7). The first indigenous East African Chief Justice was the Kenyan, Kitili Maluki Mwendwa, appointed to office on July 3, 1968.21 Reflecting the slow progress of developments on the legal front, it was not until the 1968 case of Re Maangi that Kenyan Africans could be legally granted letters of administration with respect to the estate of a deceased intestate African (Elias 1977, 87). Although on the face of it the inaugural post-independence judges enjoyed security of tenure under the new constitutions, they were invariably contract employees who would not have wanted to unnecessarily rock the (independence) boat. Secondly, given that the teaching of law in East Africa did not begin until 1961, the few indigenous East Africans who did eventually become court judges had invariably been trained in the UK or India.22 Lastly, although there had been a “change in the guard” from colonial rule to leadership of the independent state, neither the structures in place nor the ideologies espoused—such as Separation of Powers or the Rule of Law—underwent significant evolution during the post-colonial era. Under colonialism, the courts performed primarily bureaucratic or administrative, as opposed to judicial, functions (Opolot 2002, 41 and 44). Indeed, during the early days of colonization, district administrative officers doubled as magistrates. Being authoritarian in structure, the primary concern of colonial states and the judicial criminal justice systems they 21

At only thirty-eight years of age, Mwendwa was the youngest chief justice ever appointed to the office, although his tenure was also among the shortest since he resigned on July 3, 1971. Uganda’s first was Benedicto Kiwanuka, whom Idi Amin appointed to the office on June 27, 1971, and murdered on September 22, 1972. Augustine Saidi was the first indigenous Tanzanian, also appointed to the office in 1971. 22 Although India is now renowned for its PIL jurisprudence, this was not always the case (Baxi 1987, 107).

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created was law and order: “[criminal] sentencing was based on the principles of retribution and general deterrence, and there was a marked reluctance to take into account customary notions of compensation and restitution” (Coldham 2000, 220). There was no equivalent in the “mother country” to the offences that were defined for the colony.23 Unsurprisingly, not a single case during the era effectively held executive power in check, but rather allowed it to reign supreme and unfettered. For all the above reasons, within the context of matters that are more overtly political, English courts have traditionally been reluctant, as the old saying goes, to tread where angels fear to go. This has given rise to the notion of judicial “restraint” as a methodology of adjudication (Kellog 2007). The roots of this posture derive from English law, a position articulated most succinctly by Parke J. in the case of Egerton v. Brownlow:24 It is the province of the statesman, and not the lawyer, to discuss, and of the Legislature to determine, what is best for the public good and to provide by proper enactments. It is the province of the judge to expound the law only; the written from the statutes; the unwritten or common law from decisions of our predecessors and of our existing courts, from textwriters of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion, for the advantage of the community.

We can question the wisdom of adopting such a position, but that would necessarily entail an extensive debate on the merits or otherwise of an “activist” Judiciary—an issue that has many varied dimensions and will be examined subsequently. The reluctance expressed by the school of restraint has three foundations, the first being the view that law and policy are respectively made by the Legislature and the Executive and it is not the role of courts to intervene in or pass judgment over these processes. This idea is known as Separation of Powers, as recorded by the French philosopher, Baron CharlesLouis de Secondat—otherwise known as Montesquieu (Thio 1971, 3). That separation is married to the theory of Parliamentary Supremacy, which states that, of the three arms of government, the Legislature is most representative of the will of the people, to which the other two arms of government must invariably submit.

23

As Williams points out, the “offences” committed by Africans were carried out in a bid to “avoid or resist the economic production requirements of the colonial government” (Williams 2013, 298). 24 (1853) 4 HL at 196.

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The second origin of judicial reluctance is expressed in the well-known (but highly disputed) adage: judges do not make the law, they only find it. In other words, the role of judges is not to engage in policy formulation. The prevailing view is that courts “will snatch at any pre-existing rule available in preference to violating their most deeply-held professional commitment” (Siedman 1978, 62). A third source of reluctance has been described as the “antidemocratic” nature of intemperate or insensitive intervention on the part of the courts: “To the extent that legislative measures are the expression of the will of the people, judicial curtailment constitutes a restraint on majority rule and majority action” (Thio 1971, 3). This is coupled with the idea that in essence the judicial review of political decisions is arbitrary, promoting privilege against dispossession and thereby undermining democracy (Bellamy 2012). Taken together, these ideas explain why the doctrine of locus standi has so frequently been invoked in constitutional litigation to delimit, discourage, or simply dismiss a petition. In general, the more political the matter being brought forward for consideration, the less willing the courts are (or should be) to interfere (Bellamy 2012, 15–16). This attitude is captured in what has become known as the Political Question Doctrine (PQD), first enunciated in the U.S. in the famous case of Marbury v. Madison,25 but extending even further back in the case of English law (Castles 1979). English case law is replete with instances in which the courts, in deference to the superior authority of parliament or to executive prerogative, simply decline to take up a matter. It is rare that powers conferred by custom or convention on the Head of State or government are challenged in English courts of law. We shall return to an examination of how the Political Question Doctrine has been applied in East Africa after a broad consideration of the way in which locus standi has played out in the three countries of the region.

Conclusion This introductory chapter has demonstrated that the reasons behind the rules of locus standi relate much more to the maintenance of an oppressive status quo than to any concept of justice or Rule of Law derived from notions of inclusion and democracy. Instead, the doctrine has served to reinforce pre-existing structures of dominance and control, to confine court access to a limited class of privileged individuals, and to give primacy of place to technical rules of procedure over substantive claims of right. In 25

5 US 137 (1803).

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this way, locus standi has become not a handmaiden to justice, but an instrument of legal repression. Transmitted to a colonial context, the doctrine has been used by courts of law to thwart all assertions of equitable participation and increased inclusion. Although independence signaled a new political dispensation, liberation of access to justice has been long in coming. This is the subjectmatter of the following chapter.

CHAPTER TWO LOCUS STANDI IN POST-COLONIAL EAST AFRICA

The most significant post-independence change in the East African legal regimes was the introduction of written constitutions in all three countries (Pfeiffer 1978, 50). In addition to elaborating the structures of government and outlining the relationships between them, these documents confirmed the new place of the Judiciary, declaring it independent and tasked with the mediation of disputes among individuals as well as between individuals and the State. With the exception of Tanzania, which had a tortured history with the notion of rights (Peter 2008a, 2–9), these new instruments also introduced Bills of Rights that were intended to reflect the sacrosanct space of individual autonomy, understood to be free from State or community invasion. However, there was also a latent paradox in the new status of independence, adeptly captured by the words of Abdullahi an Naಟim: The postcolonial predicament sustains a sense of profound ambiguity among former colonies who are struggling to incorporate and reconcile contradictory histories and political visions. On the one hand, the postcolonial state is shaped by the colonial vision that subjugated and exploited its population, without sufficiently preparing them for the responsibilities of sovereign independent statehood. On the other hand, the postcolonial state is also shaped by the visions that have resisted the colonial apparatus and still sustain the intellectual and political legacies of anticolonial resistance and struggle (An-Naಟim 2006, 21).

Obviously, the postcolonial Judiciary was not free from this predicament, and early judgments from the Bench grappled with the legacy of colonial dominance, the pressures of political freedom, and the attempt to strike a balance—between inherited doctrines of the Common Law and the myriad indigenous legal structures and belief systems. All of this took place within a context of serious disjuncture between appearance and reality. As Kwame Appiah has argued,

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If the history of metropolitan Europe in the last century and a half has been a struggle to establish statehood for nationalities, Europe left Africa at independence with states looking for nations. Once the moment of cohesion against the British was over…the symbolic register of national unity was faced with the reality of [African] differences (Appiah 1992, 2).

At the official level, both Tanzania and Uganda demonstrated a higher degree of discomfort with this inheritance than was evident within Kenya’s political discourse. Though well known for his rabidly capitalistic views, Kenyan President Mzee Jomo Kenyatta incongruously couched his nationalism in the words of socialism. However, this was nothing but a subterfuge to appear en vogue with all the developments taking place around him at the time. Kenyatta’s famous Sessional Paper No.10, African Socialism and its Application in Kenya, written in the early days of independence, was actually a blueprint for sustained capitalist development (Ministry of Planning and Community Affairs 1963/5). While the policy might have been African, there was nothing even remotely socialist about it. Encouraging private enterprise was the key element in the policy. Moreover, the former colonial power exercised a close watch over Kenya on account of the remaining white settlers, who had secured several concessions via the independence settlement. Not too much of a radical nature could take place there, especially as the Kenyan economy came to rely more and more on Western sources of finance and investment, including a burgeoning tourist industry mainly supported by visitors from these countries. Uganda flirted with the ideology of socialist legality as eventually reflected in the “Move-to-the-Left” and the “Common Man’s Charter”1 of later years, but socialism had little impact on the actual operations of the Judiciary. Indeed, ideology in Uganda, and the place of the courts within it, mainly crystallized around a furor that erupted in the illustrious magazine Transition following the trial and rather lenient sentencing of a mercenary involved in clandestine activities in the (then) Belgian Congo (now the Democratic Republic of Congo) (Picho 1968, 47–49). What followed was a debate between several political and legal luminaries about the appropriate role of the Judiciary in a newly independent country such as Uganda, and the place of ideology with respect to the courts’ decisions (Transition 1968, 10–14). Ali Picho—author of the Transition article— 1

Ugandan President Milton Obote submitted the “Common Man’s Charter” to the Ugandan People’s Congress in 1968. The document, subtitled “First Steps for Uganda to Move to the Left,” was adopted by the party in October, 1969, heralding the start of a movement that was nominally a move towards socialism but also held strong nationalist overtones (Thompson 2015, 174).

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argued that the Judiciary in Uganda lacked the “ideological clarity” necessary to meet the aspirations of the newly independent state’s citizens. Those who engaged with Picho over the issue pointed to the “overall lack of ideological clarity within the State at large.” They also pointed out that the Ugandan government had in fact “failed to transform the conditions of economic dependence…inherited from the colonialists, and thus it was ludicrous to expect the Judiciary to be any different from the State in which it was operating.” The final point was that under the existing political conditions, no indigenous judges had been appointed or promoted, even though there were many who qualified. It was implied that this failing was due to the government’s ethnic and political discrimination (Mazrui 2007, 9; Mayanja 2015). As was rather typical in the country at the time, the debate produced two casualties, namely that of opposition parliamentarian and activist lawyer Abu Mayanja, who strongly criticized the regime for various failings with respect to constitutionalism and the rule of law; and Rajat Neogy, the editor of Transition. Both were detained and charged with sedition, and although eventually acquitted, the State’s actions on this matter led to the eventual demise of the magazine (Transition 1971, 43–49). Interestingly, the trial of Mayanja and Neogy produced one of the most celebrated freedom-of-expression cases decided in early post-independence East Africa (Lapþek-Neogy 1997, 247). The debate over the question of judicial power didn’t get much further on account of the 1971 coup d’etat, which ousted Milton Obote. Replacing him was Idi Amin, who introduced a wholly different and altogether much more tense and violent context to relations between the Executive and the Judiciary. Indeed, Amin presided over the abduction and subsequent disappearance of the country’s first indigenous Chief Justice (Wambuzi 2014). In Tanzania, by contrast, the adoption of African socialism, coupled with the imposition of a single-party state soon after independence, had a significant influence on the operation of the Judiciary. Critically, the Judiciary’s independence from the party and from the other two branches of government was at stake; and further these factors influenced to what extent the institution felt itself under obligation to uphold the governing political ideology of the time (Georges 1967). In comparison to Uganda, Tanzania’s view of the Judiciary, unsurprisingly, was informed much more by the socialist policies and doctrines that were the bedrock of thenPresident Mwalimu Julius Nyerere’s post-colonial political system (Aminzade 2013, 135–170). That system had several features, including land reform; the depoliticization of ethnicity; and the promotion of a na-

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tional, unified political identity, epitomized by the establishment of a single-party state in 1965 and further enshrined in the policy of Ujamaa (villagization), as outlined in the Arusha Declaration of 1967 (Fimbo 1990, 183–204). The demise of multipartism in Tanzania in the early 1960s was marked by a shift from parliamentary supremacy to party supremacy (Peter 2005, 68–70). First with the Tanganyika African National Union (TANU) and then with Chama cha Mapinduzi (CCM), which succeeded it, the preeminent role of the party in virtually every facet of social and political life in the country was pronounced. According to Chris Peter, the courts were unable to ignore the “all powerful party” essentially because primary level appointments in the courts were made by the Special Judicial Service Commission on the recommendation of the District Judicial Boards. Those boards were themselves chaired by the Regional Party Secretary, who doubled as Regional Commissioner (Peter 2005, 70). The fusion between party and state meant that all government institutions were subordinated to the overall direction and control of the Executive and the Legislature, taking the notion of parliamentary sovereignty to an entirely different level. For some time these measures appeared to be confined to the local levels of operation, while in the higher ranks of the Judiciary the time-honoured principles of recruitment via an independent commission remained in place. But the imperatives of the day meant that the all-powerful party would soon assert its authority and influence over the Judiciary, starting with appointments and eventually extending to harassment and finally contempt (Wambali and Peter 1987, 135–139). Nyerere’s reforms in the legal arena were imposed on a population that has been described as “obedient but not enthusiastic.” Although seemingly radical in purview, reforms met only nominal resistance when applied on the ground (Moore 2014). The first and most radical was in relation to the structure of local governance left behind by the British, especially the institution of chieftaincy, which in large measure was a bastardization of the institution as it had existed in the pre-colonial era. At the local level these chiefs fused all manner of administrative, judicial, and economic powers into a single organ of governance. Dismantling it would invariably have had a significant impact on the body politic. Of all the post-independence leaders, it was only Nyerere who had the gumption to institute this reform. In the words of Mamdani, his greatest achievement was to do away with the regime of legal pluralism where pluralism was not based on territorial decentralization, but on having different laws for different groups, even of groups living in the same territory. It managed to create a single Tanzanian common law deriving from multiple traditions:

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Chapter Two pre-colonial history, the entire complex of common law (both civil and customary) and the corpus of anti-colonial practices (Mamdani 2007, 20).

The reforms that affected the operation of the courts in Tanzania were aligned with the overall goals of Ujamaa, but despite the omnipotence of the party, reforms were incomplete and uneven. Virtually throughout the Nyerere period, the courts offered only occasional challenges to the experiments in socialist legality, perhaps in part because there was no constitutional guarantee of their independence, which was not incorporated into the constitution until the year 2000.2 The government thus prohibited primary courts from hearing litigation over land, substituting instead special tribunals of reconciliation for such cases. In essence, this meant that even judicial officers were under obligation to tow the party line, which most did with only perfunctory resistance. Perhaps this explains why, despite the absence of constitutionally guaranteed security, neither the Nyerere regime nor its successors made any attempt to summarily remove judges from office. An independent Judiciary was finally secured eight years after the country had returned to a multiparty system of governance in 1992, but no judges were summarily removed in the interim. By way of conclusion, we can make a number of observations regarding the Judiciary in East Africa during the early post-independence years. First, despite attempts to strike a different path in both Tanzania and Uganda, early operators of the judicial system remained steeped in English jurisprudence and in the norms and principles of English Common Law as applied over the several decades of colonial rule. Second, this jurisprudence came with all the strictures of stare decisis (the doctrine of precedent) (Sawyerr and Hiller 1971, 2); supremacy of parliament (even when all three countries had written constitutions); and the subordination of judicial power to the other two arms of government and (in the case of Tanzania) the ruling party (Georges 1973, 27 and 43–44). English Common Law still held a vice-like grip over the mechanisms and decisions of the post-colonial courts in East Africa. Third, with the exception of Uganda, directly political cases were few and far between. Fourth, despite rhetorical statements to the contrary, Customary Law remained relatively underdeveloped even in Tanzania, where there was a much more concerted effort to give socialism a truly “African” flavour. A final point is that the application of these colonial doctrines in the postcolonial context was compounded by a positivist approach to the law. 2

The thirteenth Amendment to the 1977 Constitution of Tanzania inserted Article 107B into the instrument, specifically confirming the independence of the Judiciary.

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In other words the focus was on the black letter of the law, as opposed to a broader conception of justice (Oloka-Onyango 1993, 5): “This is what the law is!” courts were heard to declare, while expressing no view on what it ought to be or asking why the law was so out of sync with any notion of social justice as understood by the populations to which it was applied. In Tanzania, which had no Bill of Rights but enshrined many similar principles in the Preamble to the Constitution, the Preamble was largely overlooked by the courts (Lugakingira 2001, 3). Correspondingly, no other principle had as strong an influence on the limits placed on access to the courts than that of locus standi.

A Look at the Case Law There was a broad unity of approach to the issue of locus standi and other technicalities in the early jurisprudence of courts in East Africa. That unity was especially marked in the higher courts, namely the High Court and the Court(s) of Appeal3 and is borne out by the fact that, historically, the courts in all three East African countries initially adopted a narrow approach to the issue of standing. Judicial restraint and hesitance were apparent rather early in the immediate post-colonial experiences of East Africa’s judiciaries, and this aspect of early litigation in the region is a story of courts battling with inherited legal doctrine and more egalitarian notions of what was just and right. The Ugandan case of Grace Stuart Ibingira & Others v. Uganda4 is instructive in this regard. It involved the detention and deportation of five of Obote’s cabinet ministers to the northeastern region of Karamoja under a colonial-era law that allowed for such action to be taken with respect to persons regarded as “undesirable.” The difference now was that, while there was no constitution or bill of rights under the colonial regime, independence introduced both. When Ibingira’s case first came to the court as a habeus corpus application, the High Court judge who heard the case upheld the detention, ruling that it was within the powers of the minister to order and execute such action. On appeal, the East African Court of Appeal found that the Depor3

At independence, appeals from the national high courts of each country went to the East African Court of Appeal (EACA), an institution developed under the framework of regional economic and political cooperation. Thereafter, further appeals could be made to the Judicial Committee of the Privy Council of the House of Lords in England. Each of the three countries eventually removed that mechanism from their systems and EACA collapsed with the demise of the East African Community in 1977. 4 [1966] EA 306.

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tation Ordinance was unconstitutional and was in essence a colonial relic. The court found such action to be anomalous to rights of citizenship and a violation of the right to free movement enshrined in the Constitution for all Ugandan citizens (Oloka-Onyango 1993, 310). The Court of Appeal returned the case to the High Court with an order that the application for habeus corpus be granted. The response of the government was to release the detainees (in accordance with the court order) and then have them immediately re-detained under the Emergency Regulations—which were in force exclusively in the region of Buganda where the court was sitting—as they left court. The government then passed what it called the Deportation (Validation) Act, effectively overturning the decision of the court. When the case challenging the subsequent detention came back for hearing, the Court never questioned the passing of the Validation Act, nor did it uphold challenges to the other anomalous aspects of the case (1993, 22–23). Quite clearly, this was a case of a Judiciary having been once bitten, becoming twice shy! The Ugandan Judiciary’s retreat into relying on technicalities to escape confrontations with the Executive was manifest in a case involving a claim of damages for false imprisonment. In Odongkara & Ors. v. Kamanda & Another,5 the court dismissed the application with costs simply because the notice of motion by which the action was brought did not sufficiently set out the grounds on which it was made. According to the court, the notice should have specified the rule of Civil Procedure under which it was being argued.6 To demonstrate that the problem was not simply a local one, in Opolot v. Attorney General,7 the regional East African Court of Appeal confirmed that the prerogative powers vested in the British Crown before independence—including the power to dismiss at will officers in its service—were now vested in the president of the Republic of Uganda and thus could not be the subject of challenge in a court of law. The officer in question had been the Army Commander during the 1966 coup d’etat and subsequent attack on the Kabaka’s palace at Mengo and had refused to obey the order to unleash the troops, leaving it to the second-in-command, Major General Idi Amin, to execute the dastardly task. During the early years of independence, Kenya had few cases that sought to address issues of a directly political nature. Those that did were treated rather summarily, with the courts generally denying themselves jurisdiction through the imposition of strict access rules (Wahiu 2005, 126). Indeed, the constitution was placed on the same footing as ordinary 5

[1968] EA 210. Odongkara & Others v. Kamanda & Another [1968] EA 210. 7 [1969] EA 631. 6

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legislation in the early case of Republic v. El Mann,8 providing the basis for future court decisions to similarly dismiss the instrument. Ultimately, this led to a negation of constitutionalism and the accompanying rise of a culture of judicial restraint in the extreme. In some cases Kenyan courts upheld detentions that were patently illegal by simply dismissing cases on minor technical details that had been omitted from a detainee’s application. However, if the State was at fault in terms of compliance, the scrutiny was far less exacting. Thus, for example, in the case of Republic v. Commissioner of Prisons, ex parte Wachira,9 the applicants were detained under the Public Security (Detained and Restricted) Regulations. They applied for a writ of habeus corpus on the grounds that: 1) the statements served on the detainees failed to provide detailed grounds for detention; 2) statements were not served within five days as per the law; and 3) notification of the detainees was not published within fourteen days of commencement of detention. In a rather cavalier dismissal of the petition, Chief Justice Simpson noted that S.83(2) of the constitution provided that the grounds upon which a person was detained must be specified in detail, but went on to hold that “insufficiency of the statement of the grounds is a mere matter of procedure and is not fatal as to render the detention order invalid.”10 In the case of Richard Kimani & S.M. Maina v. Nathan Kahara,11 the court invoked the locus standi doctrine in order to prevent a private prosecution. When Justice Dugdale declared rights in Kenya “as dead as a dodo” on account of the failure of the Chief Justice to make procedural rules, it was clear that the hurdles to be climbed via court action were very high.12 According to P.L.O. Lumumba, Kenyan judges’ reluctance to relax the rules on locus standi was an “instinctive” one, driven by “fear that [such relaxation might] open the floodgates to busy-bodies who [would] swamp the courts with litigation” (Lumumba 2006, 71). While this may be true (although not borne out by empirical data), it is clear from case law of the period that the reluctance was more directly linked to a fear of upsetting the status quo and giving judicial sanction to those who sought to challenge the KANU regimes of the time (Akech & Kameri-Mbote 2008, 367– 371). Hence in the case of Wangari Mathai v. the Kenya Times Media Trust Ltd.,13 Justice Dugdale denied locus standi to the applicant seeking 8

[1969] EA 357. No. 60 of 1984, [1984] LLR 5979 (High Court of Kenya). 10 Id. 11 Revision Case No.11 of 1983. 12 See Joseph Maina Mbacha & 3 Ors. v. AG, (HCMA No. 356 of 1989). 13 High Court Civil Case No. 5403 of 1989. 9

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an injunction to stop construction of an office complex in Nairobi’s iconic Uhuru Park, stating that only the Attorney General had the right to bring such cases to court. Reviewing a slew of cases decided in Kenya during this period, Kathurima M’Inoti asserted that the most appropriate word to describe such postures of the courts would be “delinquent” (M’Inoti 1998, 2003). Indeed, over the 1980s and into the early 1990s, the Kenyan Judiciary failed to liberate itself (Akech and Kameri-Mbote 2008, 364). The Judiciary hit a particularly low point under the Moi regime, with the era of Chief Justice Hancox being noted for extreme judicial subservience to executive power (2008, 374). Despite the conservative approach of the era, Akech and Mbote noted that “some judges were brave enough to make decisions against the regime” (2008). In Felix Njagi Marete v. Attorney General,14 the applicant, a civil servant, alleged that he had been dismissed for purported disloyal behaviour arising from his activities in the 1982 unlawful attempt to overthrow the government, and that he was tortured while in custody. Finding no “disloyal behaviour” in considering the applicant’s challenge to the dismissal, the court ruled that the two-and-a-half year suspension against him amounted to inhumane treatment. In Stanley Munga Githunguri v. Attorney General,15 the issue before the court was whether the Attorney General could institute criminal proceedings against a citizen despite the lapse of some eight years and repeated assurances that the matter with which he was charged (violations of the Exchange Control Act) had been closed. Holding that proceeding with the prosecution would be vexatious and harassment of the accused, then Chief Justice Madan stated, “the people will lose faith in the Constitution if it fails to give effective protection to their fundamental rights…. Destroy the rule of law and you destroy justice, thereby also destroying society.”16 A similarly strong stance was taken by Justice Akiwumi in the case of Maina Kamanda & Another v. Nairobi City Council.17 Pointing out that the issue of locus standi should not be considered in the abstract, the court stated: “the matter that the Applicants have raised is not a misguided or trivial complaint of an administrative error; it is one that involves a serious allegation of misapplication of public funds by a local authority.”18

14

High Court Misc. Civil Case No. 668 of 1986. High Court Misc. App. No.279 of 1985. 16 Id. 17 Civil Case No. 6153 of 1992 (High Court at Nairobi); (1992); 1KLR (e&l) (December 8, 1992). 18 Id., 79. 15

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Tanzania’s record in locus standi cases is interesting, with technicalities generally holding sway in the early years of independence, as they did in both Kenya and Uganda (Twaib 2012, 287–318). Over time, however, the lower High Court developed a more liberal interpretation of the question. In contrast, the Court of Appeal adopted a more conservative posture. For example, in the case of National Agricultural & Food Corporation (NAFCO) v. Mulbadaw Village Council & Ors.,19 the High Court held that the dispossessed community had locus standi and was thus entitled to compensation for the evictions and losses suffered. The Court of Appeal reversed the decision, holding that the Village Council had failed to prove that the villagers were “natives” as per the Customary Law principles applicable to the case (Peter 1987, 29–30). The appeal court’s decision was supremely ironic given that the respondents were Maasai who had been living in the area for generations, while NAFCO on the other hand was a post-colonial creation. Despite the strict application of locus standi in post-independence East African courts, in late-1970s England a shift in perspective was going on;20 while East African courts remained fixated on the doctrine, locus standi was undergoing evolution in the courts of the country where it was born. The shift in England related only in part to the nature of locus standi itself; rather, the reforms were part of a package related to the many different kinds of administrative remedies—certiorari, mandamus, distress, and so forth—provided for by the Common Law. As we saw in chapter 1, English Common Law was constructed around a host of procedural strictures founded on the writ system. By the 1970s, it had become increasingly confusing for each remedy to prescribe its own standing requirements. Hence, in 1978, England reformed its procedural rules in a bid to consolidate the disparate procedures that had been in place up to that time. The prerogative remedies and declarations could thenceforth be obtained under a single procedure with a unified standing requirement: the applicant had only to show a “sufficient interest” in a matter to be granted standing. Accordingly, in the case of R v. I.R.C. ex parte National Federation of SelfEmployed and Small Businesses Ltd.,21 the House of Lords broadly favoured a unified test for standing, a shift exemplified by Lord Diplock’s judgment in that case:

19

[1985] TLR 88. See the judgment of Lord Denning in Buchanan and Co. v. Babco Forwarding and Shipping Co. (UK) Ltd. [1977] QB 208. 21 [1982] AC 617; also known as the Fleet Street Casuals case. 20

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It would be...a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the courts to vindicate the rule of law and get the unlawful conduct stopped.22

Although English legal scholars make much of this change in the law of standing, England was actually quite late compared to many other countries in adjusting the law to address social pressures. Moreover, the “sufficient interest” test was not without its own problems in terms of addressing the exclusions that had prevailed traditionally. While the new rules went some distance in opening up English courts to public interest litigation, they did not go far enough. They were a typically English response to a problem: do things in moderation! Turning back to East Africa, despite the barriers of locus standi coupled with a host of structural and political obstacles, cases involving constitutional and human rights issues nevertheless found their way into the courts. Some of those cases produced surprising results on the question of standing; indeed, they represented an entirely different viewpoint from that which held the formal rules of the doctrine sacrosanct. One of the most famous cases of the era, Uganda v. Commissioner of Prisons, ex parte Matovu, dealt in fact with a major political issue—the very legitimacy of the constitution.23 In upholding the validity of what was dubbed the “pigeon-hole” constitution of 1966, the final decision of the Matovu court effectively provided legal cover for what was plainly a coup d’etat, civilian-led though it may have been. However, on the question of access the court adopted a progressive position. Asked to dismiss the case on several preliminary grounds including the standing of the applicant to bring the matter to court, then-Chief Justice Sir Udo Udoma agreed that the application was “indeed defective” and that the court would have been justified in holding that there was no application properly before it. The title and heading of the application was defective; no respondent was named against whom the writ was sought; the applicant appeared to be in some doubt as to who was actually detaining him; and the affidavits were not accompanied by proper documents, a defect “so fundamental,” said the court, “as to be almost incurable.”24 To compound matters, the applicant counsel’s affidavit was “bad in law and should have been struck out.” Indeed, the court declared 22

Id. [1966] EA 514. 24 Id., 519 and 520. 23

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that on examining the papers their first reaction was to “send back the case to the judge with a direction that the matter be struck off as we were of the opinion that there was no application for a writ of habeus corpus properly before him.”25 One can almost see the broad smile of approval on the Attorney General’s face when the court was giving this run-down of myriad procedural errors, just one of which could have led to the collapse of the whole case. Instead, the court observed: On further reflection, however, bearing in mind the facts that the application as presented was not objected to by counsel who had appeared for the state; and that the liberty of a Citizen of Uganda was involved; and that considerable importance was attached to the questions of law under reference since they involved the interpretation of the Constitution of Uganda; we decided, in the interests of justice, to jettison formalism to the winds and to overlook the several deficiencies in the application, and thereupon proceeded to the determination of the issues referred to us.26

Although the Attorney General eventually defeated the petition and Matovu’s case gave judicial sanction and negative precedent to the extraconstitutional usurpation of power, it paradoxically provided the foundation in Uganda for a gradual movement away from the swift dismissal of significant constitutional cases on flimsy technical grounds. More importantly, the mantra “jettisoning formalism” continued to crop up in subsequent judicial decisions, especially those of a sensitive political nature and/or involving illegal changes in government. Hence, in a case brought to challenge the removal of Yusuf Lule only sixty-eight days after he had been sworn in as president to replace the deposed Idi Amin in 1979, the court again asserted that technicalities would not stop its scrutiny of the substantive matters raised in the case.27 Nevertheless, just as had been done in ex parte Matovu, the court found a diplomatic way out of the legal quandary and declined to rule that the removal of Lule had in fact been unconstitutional (Oloka-Onyango 1993, 32–33). The court instead stated that not only had the circumstances of the case been overtaken by events, but also that the consequences of making such a declaration would be “grave indeed.”28

25

Id., 521. Id. 27 See Andrew Kayira & Paulo Ssemwogerere v. Edward Rugumayo, Omwony Ojwok, Frederick Ssempebwa & 8 Ors., Constitutional Case No.1 of 1979. 28 Id., Judgment of Chief Justice Wambuzi, 51. 26

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Uganda’s 1995 Constitution heralded a new era for the interpretation and enforcement of the Bill of Rights and other provisions of the instrument that had previously remained dormant. The process of the Judiciary rising to the challenge was nevertheless a slow and contorted one. One of the earliest cases confronting an issue of interpretation was Uganda v. Haruna Kanabi,29 which involved alleged sedition. In the view of the court, The law of sedition and that under S.50(1) of the Penal Code Act epitomizes the restriction imposed by the state on the fundamental rights and freedoms of the individual as recognized internationally, and as clearly set out in Uganda’s New Constitution. In the case before this court, we are dealing with a newspaper, so what is at stake herein is the freedom of the press.30

The court cited Article 29(1), which governs freedom of the press and the media, and went on to state, “but there are restrictions that are set by the same constitution. Thus under Article 43(1) and (2), in the enjoyment of the rights and freedoms prescribed in that chapter no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.”31 After citing the provision defining the term “public interest,” the court considered the evidence and then sentenced the accused. In her concluding observations, the court stated, This court is not a Constitutional Court. It therefore lacks the capacity to interpret the provisions of the Constitution beyond their literal meaning. As such, I am of the view that where a state having regard to its supreme law keeps on its statute books a law that makes it an offence to do a certain act and hence to limit the enjoyment of a specified freedom, this court shall accept that restriction as lawful and shall go ahead to punish any transgression of the same according to the existing law until such a time as the state deems it fit to lift such restrictions after realizing that such restriction violates a certain right.32

While the magistrate was acutely aware of the problematic nature of the offence, she was unable to grasp the problem by its neck. Thus, she stated, One can also comment that the law of sedition as it stands does not augur well with the provisions of the Constitution, but since what is demonstra29

Criminal Case No. U. 977/95. Id. 31 Id. 32 Id. 30

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bly justifiable in a free and democratic society has not yet been established in Uganda, court takes the existence of the Constitution and an individual’s right to freely express himself as a point in mitigation.33

In a per curiam statement, the Magistrate ended her judgment with the following observation: “There is need for matters like this one to be referred to a Constitutional Court to determine what is demonstrably justifiable in a free and democratic society and put Uganda in line with the position in other jurisdictions.” Although the case was appealed, the judge in the High Court merely observed that the magistrate should have referred the issue to the Constitutional Court.34 Tibatemwa Ekirikubinza (2002) makes several critiques of both judgments, lamenting the missed early opportunity for the development of progressive jurisprudence on human rights and democratic freedoms in the aftermath of adopting a new constitution. The first case to both reject the formalism of legal technicalities and to hold that purported changes to the constitution were improper was decided in the aftermath of Yoweri Kaguta Museveni’s 1986 take-over. Filed by university professor Edward Frederick Ssempebwa, the case concerned a judgment-debt he had won against the previous Obote government.35 When the Ugandan civil war began in earnest in the early-1980s, the government adopted a number of counter-insurgency methods. Among these was an exercise known as Panda-gari (literally, “climb onto the lorry”), in which Police and military sweeps would take place in neighbourhoods suspected of harbouring guerillas. In one of those exercises, Ssempebwa was illegally detained and mistreated, his property damaged and looted. He sued the government and secured a judgment including damages and costs against the Attorney General. However, despite several requests for payment, no money was forthcoming. Ssempebwa applied for a writ of mandamus to compel the Treasury Officer of Accounts to effect payment. Following the delivery of the judgment, but before Ssempebwa could be paid, the Museveni-led National Resistance Movement (NRM) came to power and issued Legal Notice No.1 of 1986, which legitimized its extraconstitutional assumption of power and attempted to insulate the NRM government from any claims related to the actions of its predecessors. Instead of obeying Ssempebwa’s writ as it should have done, the government passed an amendment to Legal Notice No.1 extending its immunity 33

Id. Haruna Kanabi v. Uganda, Criminal Appeal No.72 of 1995. 35 See E.F. Ssempebwa v. AG, Constitutional Case No.1 of 1987, and OlokaOnyango 1993, 40-43. 34

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even further. Ssempebwa challenged the new law as unconstitutional. Over the objections of the Attorney General, the court agreed that the new law failed to meet several requirements regarding amendment that the earlier Notice had put into place. In other words, the manner in which the amendment was made violated the very law that the NRM had enacted. The judgment by Justice Arthur Oder in this case affirmed many points that had hitherto been avoided or simply relegated to the back burner in litigation over politically-sensitive matters in Uganda. It confirmed the need for the Legislature to work within the bounds of constitutionalism and declared that retrospective legislation violated the principle of legality. The case represented a strong affirmation of judicial independence after many years of malaise.36 Ssempebwa’s case was important for several other reasons. It was the first since the early 1960s to find legislation unconstitutional and thus appeared to herald a new era of judicial revival in Uganda. Secondly, while all previous challenges since ex parte Matovu to the extra-legal amendment of the Constitution had failed, the court in Ssempebwa was unequivocal in condemning such action. It is true that the government went back to the Legislature in order to pass a new law effectively overturning the decision of the court. However, this action was not so much a reflection on the courage and competence of the court as it was a demonstration that even the new NRM government, which had seized power on a platform of “fundamental change,” was not quite ready to subject itself to complete judicial oversight and control. In Major General David Tinyefuza v. AG,37 Deputy Chief Justice Seth Manyindo again reverted to the ex parte Matovu model and stated that it would be “highly improper” to deny the petitioner a hearing on technical or procedural grounds: “I would even go further and say that even where the respondent objects to the petition, as in this case, the matter should proceed to trial on the merits unless it does not disclose a cause of action at all.”38 Thus, Tinyefuza was allowed to proceed with his claim that being compelled (by the president’s refusal to accept his resignation) to remain in the Army amounted to forced labour (Karugaba 2005). Similar cases setting aside technicalities gradually found their way into the jurisprudence of all three East African countries, although the speed 36

Id., Judgment of Justice Oder. The judge stated that the Court should “readily apply the provision of Article 126(2) (e) of the Constitution in a case like this and administer substantive justice without undue regard to technicalities.” On Art.126(2)(e) see Mbabazi 2001 and Kirunda 2010. 38 Id., 12. 37

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and direction of the process was neither fast nor straightforward.39 In several Tanzanian cases, beginning with Chumchwa Marwa v. Office i/c Musoma Prison & Another,40 the court held that the absence of rules of procedure did not preclude the High Court from enforcing the Bill of Rights.41 In the 1968 Kenyan case of Kihara Kimani v. AG,42 Justice Trevelyan stated, The law is a living thing, and a court would be shirking its responsibility were it to say, assuming that there be no existing recognized tort covering the facts of a particular case, “why then, this must be the end to it.” It would undoubtedly be shirking its responsibilities, for instance in a case in which injustice has been done, were it to take that stand. The law may be thought to have failed if it can offer no remedy for the deliberate act of one person, which causes damage to the property of another. The law must of necessity adapt itself: it cannot stay still. If a person has a right he must of necessity have the means to vindicate it and a remedy if he is injured in the enjoyment or exercise of it; and indeed, it is a vain thing to imagine a right without a remedy: for the want of right and want of remedy are reciprocal.43

Later, in the Kenyan case of Wakf Commissioners v. Mohamed Bin Umeya Bin Abdulmaji Bin Mwajibu,44 the court relied on Lord Diplock’s judgment in the National Federation case to hold that the courts should be more open to claims of unlawful conduct by public authorities, with a view to redress or eventually put a stop to such conduct. In Kenya Bankers Association v. Minister for Finance & Another (No.4),45 the Attorney General argued that the association had no right to litigate on behalf of its varied member banks. The court retorted as follows: Both on broad principles and in the particular circumstances of this case, the Kenya Bankers Association has the necessary locus standi in this litigation to enable the court to determine once and for all an issue affecting 39

See for example the cases of Essaji v. Solanki [1968] EA 218 and Mawji v. Arusha General Stores [1970] EA 137. 40 High Court of Tanzania at Mwanza, Miscellaneous Criminal Cause No.2 of 1988. 41 See also The Attorney General v. Marwa Magori, Tanzania Court of Appeal at Mwanza, Criminal Appeal No.95 of 1988 (Mwaikusa 1993, 75). 42 H.C.C.C. No. 711 of 1968 (Unreported). 43 Id. 44 Civil Appeal No. 83 of 1983 (February 23, 1984). 45 [2002] 1 KLR 61.

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the members of the association, and thereby avert an avalanche to litigation over the same thing.46

The court further observed that the Association was seeking to uphold the supremacy of the Constitution, and that the case had been filed in the public interest (Kaluma 2009, 190–191). Given the general response of the courts in Kenya up to this point in time, the Kenya Bankers case stands out as one which bucked the general trend of a strict reading and application of the locus standi doctrine. In response, one could say that the court arrived at this position because the issue involved was not an overtly political one, but related to fiscal policy and bank regulation. Whatever the reasons may be, the case reflected some relaxation of the rule, which would eventually reach even the most politically-sensitive matters (Odhiambo 2013). Thus, writing in 2006, Lumumba was able to observe that “Kenyan courts have moved with time and appear to be applying sufficient interest as the test for locus standi” (Lumumba 2006, 77). The preceding analysis demonstrates that the struggle to increase the framework of standing in East Africa’s courts has been a fairly long and engaged one. The point is not that technicalities should be totally disregarded, as some degree of order and certainty in the conduct of court business is necessary. However, as the Chief Justice of Tanzania has stated, “what is to be decried and expunged are cumbersome, excessive, onerous, obstructive and unnecessary procedures” (Othman 2011, 12). Today there is widespread acceptance of the fact that relaxed rules of standing, particularly in cases of public interest litigation, have become a more or less settled feature of contemporary jurisprudence. This has bolstered public confidence in the system because, as Twaib points out, the love for technicalities was not shared by many beyond the winning team of lawyers: “Technicalities can hardly be said to be the darling of the ordinary litigant. The general public finds it hard to appreciate the reasons put forward by lawyers and the courts in justifying procedural technicalities that sometimes ultimately decide the rights and liabilities of the parties” (Twaib 2012, 295). Departure from the tradition of giving preeminence to technicalities has percolated through even to the regional level and beyond. For example, the East African Court of Justice (EACJ) has become particularly active in political litigation. A few cases from East Africa have also reached

46

Id., 78.

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the African Commission on Human and People’s Rights.47 One case has been decided at the African Court.48 To recap the argument thus far: not only did the Common Law locus standi requirement severely limit access and litigation of broad social significance, it also confirmed the image of the Judiciary as an out-of-touch and difficult-to-reach institution. While locus standi was only one of a host of other English Common Law doctrines deployed in the East African courts of law (Tumwine-Mukubwa 2001, 287–307), it was perhaps the most debilitating as it knocked out a litigant even before the substance of the individual’s plea could be heard. “I can’t see you,” was the refrain of the courts to litigants whom they felt had no place appearing before them. Nowhere was this attitude more dominant than in relation to the Political Question Doctrine.

The Political Question Doctrine (PQD) Locus standi is obviously an issue in all sorts of cases, public or private, commercial or constitutional. However, in relation to Human Rights and Constitutional Law—the focus of this study—the doctrine gains in prominence because of the ramifications such litigation has on public order, especially on interactions among branches of government and on relationships between the individual and the State. As S.M. Thio has observed: The problem of locus standi in public law is very much intertwined with the concept of the role of the Judiciary in the process of government. Is the Judiciary function primarily aimed at preserving legal order by confining the legislature and executive organs of government within their powers in the interest of the public…, or is it mainly directed towards the protection of private individuals by preventing illegal encroachments of their individual rights (Thio 1971, 2)?

This dilemma manifests itself in bold relief with the Political Question Doctrine, a set of guidelines that has both directly and indirectly exercised the courts in East Africa in significant ways and will cap our discussion of

47

See Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya No. 276/03 (ACHPR 2009) and Institute for Human Rights and Development in Africa and others (on behalf of Children of Nubian Descent in Kenya) v. Kenya Communication 2/29 at the African Children’s Rights Committee. 48 See Tanganyika Law Society and Another; Mtikila v. Tanzania, Applications 9/2011, 11/2011 (joined), 14 June 2013, at paras. 106.1 and 107.2.

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locus standi before we move on to address Public Interest Litigation in more detail. Most scholars retrace the roots of the Political Question Doctrine to American constitutional law and the famous nineteenth century case of Marbury v. Madison.49 The decision in this case, while most commonly associated with the Political Question Doctrine, is particularly important for confirming the power of the court to conduct judicial review—to declare a law unconstitutional—which lies at the heart of Public Interest Litigation. In brief, the case involved an inquiry into the constitutionality of action taken by then Secretary of State James Madison in denying a commission to William Marbury appointing him Justice of the Peace. Marbury went to the Supreme Court seeking a writ of mandamus (command) compelling Madison to issue the commission. The question at issue was whether the law on which Marbury relied to go to the Supreme Court was constitutional or not. In addressing the role of the court in this case, Chief Justice John Marshall stated, “it is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule.”50 The court went on to expound on what exactly this meant in terms of the court’s role vis á vis the legislature: If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.51

While asserting this power, the court was nevertheless careful to outline the circumstances in which judicial review would be exercised, hence the Political Question Doctrine. According to Rachel Barkow (2007), the essence of the doctrine is that the Supreme Court’s remedial power does 49

Although Marbury is always celebrated as the first case of judicial review of legislation by the U.S. Supreme court, as a matter of fact, the pioneering decision was Hylton v. United States 3 US 171 (1796). 50 Marbury, 177. 51 Id., 177–178.

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not extend to all legal questions, especially where the Constitution has committed “absolute discretion” in the matter to Congress or the President (Barkow 2007, 24). In the words of Justice Marshall, “questions in their nature political, or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.”52 According to this rule, it is for the courts to determine the doctrine’s applicability depending on the nature of the act challenged. In other words, the Political Question Doctrine is primarily manufactured by the Judiciary. Secondly, “the subjects are political. They respect the nation, not individual rights.”53 Finally, in bringing together the different aspects of the doctrine, the judge stated, “the province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have discretion.”54 Summarizing the doctrine, Muthomi Thiankolu (2007, 14) asserts that its intent was prudential: The rationale for the doctrine is the American Judiciary’s desire to avoid plunging into conflicts between branches of the federal government. It is justified by the notion that some questions are best resolved through the political process, i.e., voters approving or correcting the challenged action by voting for or against it.

Indeed, it has often been said that since the Judiciary controls neither purse nor gun (and only pen), it needs to be careful about the manner in which it executes its basic function, especially in relation to the Executive and the Legislature. The Separation of Powers doctrine, which supports this position, asserts that there are distinct functions for each arm of the State and there should not be any encroachment by one arm of the State on the powers of another. Further, Separation of Powers holds that the power of judicial review is in any event anti-majoritarian and ostensibly an intervention by those who represent nobody but themselves (the courts) in a decision made by those who have been duly elected to their positions in the legislature as representatives of the people or by a directly-elected president (Bickel 1986, Thio 1971, 3). Most scholars regard the Political Question Doctrine to have died a natural death in the land of its birth, the U.S. (Tushnet 2007, 47–74), although it occasionally attempts a resurrection (Chopper 2007).55 Indeed, 52

Marbury, 170. Id., 166. 54 Id., 170. 55 The U.S. Supreme Court decision about former President Obama’s healthcare law—the National Protection and Affordable Care Act of 2010—appeared to demonstrate that the doctrine is not quite dead. In a five to four decision, Chief 53

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the very controversial case of Bush v. Gore,56 which was an intrinsically political case and ultimately decided the 2000 presidential election, has been cited as a clear illustration of the doctrine’s demise. The fact that such a controversial and outrightly political case made no mention of the doctrine is held up as proof of its death. Others are of the view that the U.S. Supreme Court has in fact become too political and consequently run rough-shod over all the other arms of the State (Mclean 2008). Edward Mclean for example has argued that “the Supreme Court has transformed itself into a center of power that is able to operate as it chooses, without any effective limitation being placed on it by the other branches of government, or the states” (2008, vi). Needless to say, in jurisdictions around the world, the doctrine is still very much alive and a major subject of debate. In East Africa in particular, the doctrine has had a particularly influential impact on the area of public interest litigation (Mukubwa 2001, 297–299). Ironically, the first case to substantially address the question in East Africa was that of ex parte Matovu, which as we have already noted first opened the doors to a broader reading of locus standi.

Revisiting Matovu Michael Matovu was the County Chief (Pokino) of Buddu in the Buganda Kingdom at the time then-Prime Minister Milton Obote arrested several of his own Cabinet ministers in an early morning putsch at the end of February, 1966. Obote’s action set off a spiral of increasing political tension that culminated in violent conflict. Less than two months later, on April 15, Obote suspended the independence constitution, banned the existing kingdoms, and declared Uganda a republic. Obote then vested himself with executive powers, effectively removing from office the then “ceremonial” president of the country, Kabaka (King) Edward Muteesa II. The climax came in late May of the same year, when in retaliation to OboJustice Roberts stated, “members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” See National Federation of Independent Business et al v. Sebelius, Secretary of State for Health and Human Services, et al, No. 11–303. Justice Scalia in dissent responded that the decision of the majority “carries verbal wizardry too far, deep into the forbidden land of the sophists.” 56 531 U.S. 98 (2000).

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te’s move against the King, the Buganda Lukiiko (parliament) demanded that the central government withdraw itself from “Buganda soil.” In response, Obote dispatched the forces of the Ugandan Army into the Kabaka’s lubiri (palace), sending him fleeing into exile, where he died in 1969 (Kasozi 2013). Among those detained under the hurriedly drafted “Emergency Regulations” was Matovu, who as a member of the Lukiiko had ostensibly been among those most vocal in demanding the expulsion of the central government. Dubbed “pigeon-hole” on account of the circumstances in which it was introduced in Parliament, the 1966 constitution was to be at the centre of the case that shot Matovu to historical prominence as the main protagonist in the challenge to the new constitution’s validity. The case began as a habeus corpus application to have Matovu released from a detention alleged to have been unlawful. The single judge in the High Court declined to release him, holding that his detention was indeed validly executed. In response, Matovu asserted that, because he had been detained under regulations belonging to a constitution that had been invalidly made, his detention raised constitutional issues rendering those regulations legally null. The judge therefore had no option but to refer the case to the threepanel Bench to consider the constitutionality of the challenge in accordance with the rules then prevailing on such matters. As we have seen, the court overruled the preliminary locus standi issues and agreed that Matovu was entitled to be heard on the merits of his application. On the more fundamental issue of the legality of the constitution and the validity of the government, Chief Justice Udo Udoma cited the American cases of Marbury v. Madison and Baker v. Carr,57 asserting that there was a difference between the court’s duty to interpret the constitution and giving an opinion on the validity of the Obote government. Making a fine distinction as to the applicability of the Political Question Doctrine to the case, the court stated that: Any decision by the Judiciary as to the legality of the government would be far reaching, disastrous and wrong because the question was a political one to be resolved by the Executive and the Legislature, which were accountable to the Constitution, but a decision on the validity of the Constitution was distinguishable and within the court’s competence.58

Having made this distinction, the court then relied on Austrian legal philosopher and jurist Hans Kelsen’s legal revolution theories and the 57 58

369 U.S. 186 (1962). Ex parte Matovu, at 533–534.

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more recent case of State v. Dosso,59 which had legitimated a coup d’etat in Pakistan, to uphold a constitution that had in fact been introduced by extra-constitutional means. By upholding the constitution, the court also validated the government which it created. In finding that the 1966 (pigeon-hole) constitution had been properly introduced, the Matovu decision ultimately upheld the Obote government’s extra-constitutional usurpation of power, giving it judicial validity and legal cover. At the same time, the court attempted to redeem itself both by allowing the litigation to go forward (rather than blocking it on technicalities) and by asserting its power of judicial review over the constitution. In Kenya under the 1978–1992 Moi presidency, a series of constitutional amendments and accompanying legislation reduced access to the courts, in effect introducing the political question a priori by barring the courts from even reviewing certain issues, which were simply declared off-limits to the Judiciary. In other words, in Kenya the executive branch designed and implemented the Political Question Doctrine, a reversal of the manner in which the doctrine had hitherto been applied, including in neighbouring Uganda. Thus, in the aftermath of banning all opposition parties, the 1966 Preservation of Public Security Act effectively reintroduced the colonial model of detention-without-trial and all its attendant lack of judicial protections. In June, 1982, Section 2A was introduced as a constitutional amendment, turning the country into a de jure one-party state, thereby outlawing all opposition political activity (Days III et al. 1992, 4).60 A few years later the president was conferred with power to summarily dismiss both the Attorney General and the Auditor General, and to cap it all, in 1988 a further constitutional amendment completely removed the security of tenure previously enjoyed by members of the Judiciary (Kuria & Vazquez 1991). In the arena of constitutional litigation and politically-sensitive matters, Kenyan courts throughout the Kenyatta and Moi eras were particularly weak and deferential to executive authority (Mutua 2001). Not only did courts fail to pass rules and regulations to facilitate the filing of human rights and constitutional cases, they also adopted openly hostile postures to petitioners who dared to challenge the status quo. As early as 1966, in the case of Ooko v. Republic,61 the Judiciary in Kenya demonstrated a high degree of reluctance to question the legality of detentions without trial. 59

PLD 1958 SC 533. Under pressure, then President Moi more or less restored the tenure of the judges two years later, although questions remained about their efficacy (Days et al., 20– 21). 61 H.C.C.C. No. 159 of 1966. 60

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The courts of the era were especially adept at playing ping-pong with applications that touched on sensitive political or security matters. Thus, in a pre-trial hearing of the treason case of former Member of Parliament Koigi wa Wamwere,62 the Chief Magistrate refused to order an investigation into allegations of torture, asserting that such complaints could only be heard by the High Court. When the matter got to the High Court, it ruled that any such allegation could only be addressed by the lower court from which the appeal had come (Burns et al. 2013, 41). As one human rights report of the time noted, “without question, the Kenyan courts have often evaded their constitutionally mandated responsibility to protect individual rights. Kenyan High Court judges evinced a troubling indifference or even hostility to constitutional litigation” (2013, 30–31). The cases emanating from the Kenyan courts in this era have a decided element of tragicomedy, and it is unbelievable that these decisions were made by fully trained and experienced judges of the highest court in the land. For example, in deciding a case in favour of the government, Justice Norbury Dugdale condemned “the open hostility expressed in the documentation against the government and against [KANU].”63 In Matiba v. Attorney General,64 a two-panel court ruled that it had no jurisdiction to hear the case because there had been insufficient identification of the specific constitutional provision that had allegedly been violated. The influence of ex parte Matovu was to find direct expression in the case of Republic v. the Commissioner of Prisons ex Parte Wachira.65 Decided in April, 1984, the case involved the detention without trial of four well-known political opponents of the regime: Kamonji Kangáru Wachira, George Anyona, Edward Oyugi, and Koigi wa Wamwere. The applicants argued that the detentions were illegal since the statements served on them failed to detail the grounds on which they had been detained and were not served within the statutory five days from commencement of their detentions; notifications for two of the detainees (Wachira and Oyugi) were not gazetted; and the rules had not been properly laid before the National Assembly in accordance with the Preservation of Public Security Act (Cap. 57) (Burns 2013, 401). Relying on Matovu, the court dismissed all the grounds—not surprising under the circumstances then existing in Kenya (2013, 407–408). The court held that an insufficient statement of grounds 62

High Court Misc. Application No. 574 of 1990 (reprinted in Nairobi Law Monthly, No. 30 of February, 1991). 63 In the Matter of the National Democratic Party, Misc. Civil Application No. 253 of 1991 (Unreported). 64 H.C.C.C. No. 666 of 1990 (Unreported). 65 Miscellaneous Civil Case No. 60 of 1984; [1985] KLR 398.

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was a mere matter of procedure, “not a condition precedent, and hence inadequate grounds, though improper, is not fatal so as to render the detention order invalid” (2013, 408). However, to add insult to injury, the court went on to condemn the applicants in costs, stating, “in view of the nature and importance of the case costs will be taxed on the higher scale” (2013, 411). Nevertheless, even in situations of oppression, there will always be a few heroic judges. In a review of fifty years of lawyering and the legal profession in Kenya, Pheroze Nowrojee points to a number of judges who swam against the tide of judicial spinelessness (Nowrojee 2014, 41–46). Chief Justice Madan stands out as a fearless defender of the rule of law, while Justice John Kamoni is cited for issuing orders of prohibition against oppressive criminal proceedings in the case of R. v. Jared Benson Kangwana.66 Numerous lawyers on the Bar as well as the Law Society of Kenya and other civil society groups pushed back against the repressive conditions that had been imposed. However, if anyone believed the problem to be exclusive to the KANU governments that ruled from independence in 1963 until 2002, the ensuing years would have proved that belief wrong. Even in the post-Moi era, up to the enactment of the 2010 Constitution, Kenyan courts failed to live up to the expectations of a public yearning for restoration of confidence in the Judiciary, which suffered from a “public perception of weakness, ineffectiveness, and political manipulation” (UNDP 2010). Public disaffection with the Judiciary reached its apogee with the decision of the High Court in Republic v. Judicial Commission of Inquiry into the Goldenberg Affair, ex parte George Saitoti.67 That case quashed the findings of a report on grand corruption in the government and effectively prevented prosecution of the main actors, who were believed to have cost the Kenyan government a substantial loss of revenue (Kituo cha Katiba 2005). Furthermore, the Saitoti decision provided precedent for subsequent cases that effectively barred criminal sanctions from being brought against government officials who routinely plundered State coffers.68 Growing frustration that there had been no substantive change in the Judiciary led to not one but two “surgeries” seeking to purge the courts of inefficiency and corruption. These were ostensibly attempts to censure the courts for the lack of mettle exhibited during the nearly four-decade tenure

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H.C. Misc. App. No. 466 of 1995. [2006] eKLR. 68 See the cases of Kotut v. Bosire & 2 Ors. [2008] eKLR and Wilfred Karuga Koinange v. Commission of Inquiry into Goldenberg, Misc. App.372 of 2006. 67

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of the KANU regimes.69 In the first instance, Justice Aaron Ringera (2013) conducted a probe that identified five out of eleven Appeal Court judges for investigation and named seventeen out of thirty High Court judges and eighty-two out of 254 magistrates as corrupt. Following this report, two tribunals were established for the respective high-level Benches. Carried out in public, the exercise of cleansing the courts sometimes took on an Orwellian tinge, with claims of midnight meetings and exchanges of money-filled brown envelopes in basement parking lots. A number of observers (Wahiu 2005, 138–139) have criticized the purge of the Bench for having skirted basic constitutional protections for independence of the Judiciary. Constitutional lawyer Winluck Wahiu has stated, “the problem with en masse removals is the risk of undercutting security of tenure and establishing a practice of replacement of judges with every new political administration” (2005, 148). As Mbote and Akech (2011) point out, the 2003 surgery did not eliminate the need for further vetting of judges barely seven years later. Indeed, based on the kinds of decisions made and the overall dissatisfaction of the Bar and the public with the state of the courts under Kibaki’s presidency, it would seem the Ringera surgery did not achieve much,70 as evidenced by the Orange Democratic Movement’s (ODM’s) condemnation of the courts and presidential candidate Raila Odinga’s refusal to take his dispute over the results of the 2007 election to judicial arbitration, citing a lack of confidence in the courts (UNDP 2010, 1; Akech & Kameri-Mbote 2012, 357– 358). That continued dissatisfaction resulted in the establishment of a more permanent framework of accountability, the Judges and Magistrates Vetting Board, created by an Act of the same name in 2011. The Board made a first assessment of the nominees for judicial office in April, 2012, weeding out some and recommending others for appointment. Since that time, the courts in Kenya have settled in to the business of judging under the radically reinvigorated “transformative constitutionalism” framework of the 2010 Constitution. How successful they have been, particularly in

69

Indeed, the rot in the Judiciary was recognized well before the KANU regime was removed from power in 2002. To that effect, an internal investigation was launched by the-then Chief Justice, Hon. Justice Z. R. Chesoni on January 7, 1998, and conducted under the chairmanship of Justice Richard Kwach, but with minimal impact. See Report of the Committee on the Administration of Justice (otherwise known as the Kwach Committee). 70 Report of the Task Force on Judicial Reforms in Kenya, Government Printer, Nairobi, August 2009; International Bar Association and International Legal Assistance Consortium 2010.

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relation to public interest cases, is an issue that we take up subsequently. For now, what has been ex parte Matovu’s legacy?

An Examination of the Matovu Legacy for Uganda and Kenya The legacy of Matovu and its progeny in East Africa has been a complicated one, especially because the case was decidedly schizophrenic in application. On the one hand, the case stands out as an assertion of judicial independence and flexibility in a context fraught with personal danger and manifest threat to the judges themselves. A reading of the judgment demonstrates that the court was acutely aware of the very recent developments that had rocked Uganda and of its own precarious position therein.71 Indeed, in such circumstances the court could simply have dismissed the case using the excuse of the many technical errors that plagued the application. On the other hand, by sanctioning the Executive’s extraconstitutional abuse of power, Matovu opened the way for many decades of judicially-sanctioned dictatorships and political turmoil in Uganda. What we have elsewhere described as the “ghost” of ex parte Matovu (Oloka-Onyango 1996) continued to haunt the country for decades and apparently set an ill-fated example to its sister Benches in both Kenya and Tanzania. Uganda’s experience with the political question doctrine and Kenya’s with the outright abdication of judicial responsibility over political cases significantly informed the constitution-making and enactment processes that eventually took place in both countries—in Uganda, from 1989 to 1995; and in Kenya, from the early 1990s to the 2010 enactment of a new constitution. With respect to Uganda, Article 3 of the 1995 Constitution (entitled “Defence of the Constitution”) stipulated as follows: 1. It is prohibited for any person or group of persons to take or retain control of the Government of Uganda, except in accordance with the provisions of this Constitution. 2. Any person who, singly or in concert with others, by any violent or other unlawful means, suspends, overthrows, abrogates or amends this Constitution or any part of it or attempts to do any such act, commits the offence of treason and shall be punished according to law.

71

The judges in the case must have also been acutely aware of their own personal circumstances. Not one was from Uganda: Chief Justice Udo Udoma was Nigerian, and both Dermot Sheridan and David Jeffreys-Jones were British.

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3. This Constitution shall not lose its force and effect even where its observance is interrupted by a government established by the force of arms; and in any case, as soon as the people recover their liberty, its observance shall be reestablished and all persons who have taken part in any rebellion or other activity which resulted in the interruption of the observance shall be tried in accordance with this Constitution and other laws consistent with it. 4. All citizens of Uganda shall have the right and duty at all times— a. to defend this Constitution and, in particular, to resist any person or group of persons seeking to overthrow the established constitutional order; and b. to do all in their power to restore this Constitution after it has been suspended, overthrown, abrogated or amended contrary to its provisions. 5. Any person or group of persons who, as required by clause (4) of this article, resists the suspension, overthrow, abrogation or amendment of this Constitution commits no offence. 6. Where a person referred to in clause (5) of this article is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be considered void from the time it was imposed, and that person shall be taken to be absolved from all liabilities arising out of the punishment.

In effect, Clause 3 of this Article sought to overrule the “militaristic” aspect of ex parte Matovu, effectively barring courts of law from ruling on the validity of any instrument purporting to extra-constitutionally replace the 1995 Constitution. The issue was hotly debated in the Constituent Assembly, with some delegates questioning whether such a provision would stop future coups from taking place, while others argued that the measure was a ruse to ensure that the National Resistance Movement government could never be removed from power.72 The proposer of the amendment, Hon. Edward Ssekandi, argued that the provision would prevent a government that had assumed power from availing itself of legal validity as had happened in 1966 and in several instances thereafter.73 Making reference to Matovu, Ssempebwa and the Pakistani decision in Dosso, Ssekandi stated: Since…the courts now recognize a revolution as a means of taking a government and getting legitimacy, [and] since I believe we do not want that 72

Hon. Eresu Elyanu (Kaberamaido County) in Republic of Uganda, Proceedings of the Constituent Assembly (Official Report), Monday, August 29, 1994, at 1716. 73 After 1966, Uganda was hit by extra-constitutional changes in government in 1971, 1979, 1980, 1985, and 1986. In each instance, the coup d’etat was given legal sanction by the courts of law, in line with the Matovu dictum.

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Chapter Two kind of situation to arise again, we have to expressly say in our Constitution that we do not support that decision. We do not support two thousand men and officers getting APCs, station[ing] themselves in Mbarara, in Kampala, Jinja, declar[ing] nobody should move, everybody is subdued, nobody comes to oppose, they take control of our court system [and] … say this is a legal government, you have to obey. So I believe…we should support this amendment…for avoidance of doubt, notwithstanding the legal position as it is contained in the two binding cases, we now say we do not take government by revolution.74

Although it amounted to an obvious restriction on the exercise of judicial power, the delegates who discussed the matter in the Constituent Assembly believed that the provision would benefit the greater good. Indeed, in the author’s considered opinion, Article 3 has effectively eliminated the Political Question Doctrine from Ugandan jurisprudence, especially insofar as it applies to the authority of a court of law over matters to do with the illegal assumption of state power. It overrules ex parte Matovu. Of course Matovu is still referred to as “good law” since no court in the country has come out to directly overrule the decision. Yet in fact, Uganda has not had a successful coup d’etat since enactment of the 1995 Constitution. Furthermore, only two cases in the post-1995 era of constitutional adjudication have sought to invoke Article 3, neither under circumstances similar to those engulfing the country at the time of the ex parte Matovu decision. In the case of Dr. Rwanyarare James and Anor v. The Attorney General, the court adopted a narrow reading of the article, stating: We find Article 3 very interesting. It was introduced in the Constitution for the first time in the history of this Country. It may have been put there in light of our sad and nasty past experiences of coup d’états (sic) and other forms of illegal seizure of governments by some Ugandans. It is clearly intended to spur Ugandans to resist such illegal seizures of government in future and even empowers them to bring culprits to book as soon as the Constitutional order is re-established. In the instant case, it cannot be contended that the present government seized control of government illegally when actually [it was] elected in the general elections; and so Article 3 was wrongly evoked.75

Despite this early reluctance, more recent cases have been willing to read Article 3 more dynamically, thereby invoking the more liberal aspects of ex parte Matovu. In the case of Uganda Association of Women Lawyers 74

Hon. Edward Kiwanuka Ssekandi in Republic of Uganda, Proceedings of the Constituent Assembly (Official Report), Monday, August 29, 1994, at 1720–1721. 75 Constitutional Petition No. 11 of 1997.

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& 4 Ors. v. Attorney General,76 for example, the issue of filing deadlines for constitutional petitions arose, with the Attorney General arguing that the case was time-barred for having been filed outside the period stipulated in the rules. In response to the specific invocation of Article 3 regarding this matter, Justice Twinomujuni stated: I am aware that the Attorney General has argued elsewhere that Article 3(4) of the Constitution only applies when the Constitution is threatened or has been violated through physical violence. With respect, I do not see any justification in giving the Article such a narrow interpretation. The people of Uganda have a duty at all times using all means available, peaceful or violent, Constitutional or unconstitutional, to resist attempts to unconstitutionally suspend, overthrow, abrogate or amend the Constitution.77

Justice Twinomujuni consequently held that Rule 4(3) of Legal Notice No. 4 of 1996,78 insofar as it restricted access to the Constitutional Court through imposition of a limitation period not provided for in the Constitution, sought to “vary” or “add” to the Constitution, essentially amending it without following the constitutionally provided provisions for amendment. This action, Twinomujuni argued, was against the spirit of the Constitution, inconsistent with Article 3, and therefore null and void.79 Unlike with some of the earlier cases that have since been overruled (such as Opolot’s case) and in which the courts showed undue deference to the Executive, ex parte Matovu remains “good law” in Uganda (Kirkby 2007). Moreover, the “jettisoning formalism” face of the case continues to be cited with approval in case after case in various Ugandan courts. The more humane face of Matovu has been buttressed by Article 43, which (following many other constitutions around the world) stipulates that any limitation to the enjoyment of rights and freedoms must not go beyond what is acceptable and demonstrably justifiable in a free and democratic society. According to Grace Mukubwa, this formulation in the Bill of Rights imposes a duty on the courts to directly engage political questions without excuse, since they must now consider the meaning of the words “democratic society” (Mukubwa 2001, 299). Indeed, nothing could be considered more political than an election. Given that the Judiciary is now empowered to question not only parliamentary but even presidential elec76

Constitutional Petition No. 2 of 2003. Id. 78 The Fundamental Rights and Freedoms (Enforcement Procedure) Rules, 1992 (Legal Notice No. 4 of 1996). 79 See also Fox Odoi and another v. the Attorney General, Constitutional Petition No. 8 of 2003. 77

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tions, there is virtually nothing beyond the purview of judicial scrutiny under the constitutional dispensation introduced in 1995 (Mukubwa 2004, Herman 2013). Of course, this is still a highly contested proposition (Dennison 2013). In chapter 6 of this book we examine how that most political of actions—a presidential election—has now become the issue of common court adjudication in East Africa. For Kenya, after twenty years of struggle, progress and reversal, a new constitution came into effect in 2010. Described as transformative, the instrument sought to reduce the excessive powers of the presidency, decentralize power to new geopolitical regions, and buttress law-and-order oversight institutions such as the police, the Department of Criminal Prosecutions, and the Anti-Corruption Agency. With respect to the Judiciary, the provisions in the 2010 Constitution reflect an attempt to reinforce its independence but also to re-write its oversight powers, which, as we have already seen, were severely curtailed by successive KANU governments (Mwangi 2010). Yash Ghai (2014a) tells us that the instrument “represents a radical departure from the earlier constitutions. It is written to serve the people, and it puts serious restrictions on the authority of the government and prescribes how it must exercise the powers of the state” (Ghai 2014a). In other words, the constitution sought to turn the tables on earlier practices of executive excess and judicial subservience. Ghai goes on to underscore the crucial role given to the courts, stating, “it is to the Judiciary that the drafters looked for the safeguarding of the constitution in the last resort, and on whom it placed the highest responsibility” (Ghai 2014a, 129). In specific reference to the fate of the locus standi doctrine, Ghai argues that under the new instrument, every person has the right to institute court proceedings if they can claim that a right or fundamental freedom in the bill of rights has been denied, violated or infringed, or is threatened, on behalf of others…or “acting in the public interest.” Court rules must ensure that formalities relating to the proceedings are kept to a minimum, including, if necessary, beginning proceedings by “informal documentation”; no fee is charged for commencing human rights proceedings; and, with permission of the court, an organization or person with particular expertise may appear as a friend of the court. Similar principles apply for non-human rights cases (Ghai 2014a, 129).

The words “highest responsibility” are not misplaced given the historical role that the Kenyan Judiciary played in desecrating the Bill of Rights and denying fundamental freedoms over the several decades following

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independence. Needless to say, the winds of change were blowing across Kenya even before the 2010 Constitution was finally adopted. Indeed, the case of Priscilla Nyokabi Kanyua v. Attorney General & Independent Electoral Commission80—decided just before the referendum adopting the 2010 Constitution—affirmed a new dawn on the issue of locus standi in the country. The case is important for several reasons. First, it gives a concise history of the development of the doctrine and its skewed application to Kenya, pointing out that locus standi had acted much more as an obstacle than as an aid to justice in the country. According to the court, “the issue of locus standi has shackled public law litigants for a long time.”81 Secondly, the court responded to the Attorney General’s standard assertion that the petitioner was “a busy-body… not actually representing anybody else” by stating: Many people whose fundamental rights are violated may not actually be in a position to approach the Court for relief, for instance, because they are unsophisticated and indigent, which in effect means that they are incapable of enforcing their fundamental rights, which then remain merely on paper. Bearing this in mind, where large numbers of persons are affected in this way, there is merit in one person or organization being able to approach the Court on behalf of all those persons whose rights are allegedly infringed.82

Finally, it is significant that the case was decided before the final adoption of the 2010 Constitution, demonstrating that the winds of change blowing through the country at the time were already beginning to have an impact on judicial attitudes toward matters of public interest. The case also points to the inevitability of judicial engagement with matters administrative and executive. Joel Ngugi (2007) argues that, for implementation of the 2010 Constitution, a reformulated political question doctrine will have to be adopted as “a device for allocating competencies within the various branches of the government” (2007, 18). He goes on to state that what he calls an “abstention doctrine” would mean that the court “simply refuses to review particular Executive decisions provided those decisions are made in good faith within the bounds of rationality.” This would protect the Ex80

Constitutional Petition No.1 of 2010 [2010] eKLR. According to the five-judge Bench, “The Courts usually held that if the issue was a public one, the litigant should show that the matter complained of had injured them over and above the general population. Otherwise public interest matters were to be litigated by the Attorney General or any other body the law set out in that regard (Id., 9).” 82 Id., at 12. 81

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ecutive from second-guessing of its decisions by citizens and courts and facilitate effective policy-making by the Executive branch (2007, 18). On the face of it, the 2010 Constitution radically shifts the discussion about the Political Question Doctrine in a direction that offers interesting possibilities for implementation of the Constitution, but especially for the relationship between the Judiciary and other arms of the State. As the “proof of the pudding is in the eating,” we shall return shortly to further examine the phenomenon of Public Interest Litigation. But first, a word on PQD and the case of Tanzania.

On the “Different Case” of Tanzania For several reasons, Tanzania has so far not featured prominently in our discussion of the Political Question Doctrine. First, compared to Uganda and Kenya, neither the courts of law nor the wider context of political power struggles in Tanzania were inclined toward the level of drama experienced elsewhere. Uganda was replete with civilian and military coups d’etat from the early days of independence up to 1986. Consequently, the country has experienced virtually every form of government known to humankind, ranging from quasi-monarchic federalism to fascist military dictatorship. The country’s courts of law were inevitably affected by the general chaos and social tension, producing the kinds of in-court drama that we have already encountered in this chapter. Although Kenya experienced only one serious attempt at the overthrow of government—the Air Force mutiny in 1982—the draconian methods of governance and subsequent denigration of the Judiciary’s place and authority nevertheless marked the KANU regime as a benevolent dictatorship at best, or an authoritarian autocracy at worse. Thus, both countries developed judicial mechanisms that, for better or for worse, were highly implicated in the political processes. On the face of it, Tanzania appears to have charted a different path—or did it? Most analyses, whether discussing the country’s policies on language, foreign relations, or democratic single-partism, treat Tanzania as an exception to the East African model. As the country’s first president, Nyerere enjoys iconic standing within the discourses of post-colonial liberation and state reconstruction, while his experiments with Ujamaa are lauded for fostering a unique sense of nationalism that contrasts with the experiences of Tanzania’s neighbors. Tanzanians are still regarded as more “placid” and “comradely” than their counterparts to the north. “Tanzaphilia” is the moniker long ago deployed by Ali Mazrui to describe this rather interesting phenomenon:

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What is Tanzaphilia? It is neither a disease nor an exotic flower. It is a political phenomenon. I would define “Tanzaphilia” as the romantic spell which Tanzania casts on so many of those who have been closely associated with her. Perhaps no African country has commanded greater affection outside its borders than has Tanzania. Many of the most prosaic Western pragmatists have been known to acquire that dreamy look under the spell of Tanzania. Perhaps many Easterners too have known moments of weakness (Mazrui 1967).

What was different, and what are the similarities between Tanzania and its two East African siblings regarding attempts to manage the colonial and post-colonial legacies of law and justice? This question is of particular importance in relation to political matters. Like its two counterparts, Tanzania enacted a preventive detention law, but according to Nigerian professor B.O. Nwabueze, this was “used only sparingly, the most conspicuous case being the detention of the leader of the opposition party after his organization had been banned in 1963” (Nwabueze 1973). Nwabueze’s statement reflects some degree of Tanzaphilia, or this could have been a manifestation of early days, as the truth is that the Tanzanian government did not hesitate to use draconian national security and political repression measures when the situation warranted. Moreover, because Tanzania lacked a Bill of Rights until 1988, the very notion that individuals ought to enjoy lives insulated from the excesses of state power was an alien one. This perspective played itself out in a variety of manifestations, from the arbitrary seizure of land, especially land belonging to pastrolists and other marginalized communities, to the excessive abuse of administrative power by district and national government officials. The government also engaged in deportation of those who stood up to oppose its policies, most prominently, the leaders of the trade union movement (Peter 1987, 6). Furthermore, the Tanzanian government was not above ignoring court orders that might affect national security interests. In two cases of note, the government demonstrated a high degree of contempt for orders from the Judiciary. In Sheikh Muhammad Nassor Abdulla v. the Regional Political Commissar of Dar es Salaam & 2 Ors,83 and in Attorney General v. Lesinoi Ndeanai & Others,84 the government simply ignored the habeus corpus writs that were issued by the courts and refused to release the detainees as required, rearresting them just as they departed the court premises (Wambali and Peter 1987, 138–139). The same happened in the case of Happy 83

High Court of Tanzania at Dar es Salaam, Misc. Criminal Cause No. 21 of 1983 (unreported). 84 [1980] TLR 214.

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George Washington Meada v. Regional Prisons Officer Arusha,85 and when similar behaviour was repeated, the judge made it clear that such action was not permissible (Peter 2008b, 18). Despite the judicial expression of displeasure, it is not evident that the Executive took much heed. But it was in another habeus corpus hearing that the courts in Tanzania demonstrated what Justice Lugakingira described as a rather “startling” capitulation to executive power (Lugakingira 2001, 3). In Ally Mpore v. Republic,86 the State Attorney representing the government conceded that the president had not yet signed the detention order which was the subjectmatter of challenge. The presiding judge correctly ruled that the detention was therefore illegal. However, he went on to order the detainee free forthwith, “unless after hearing of the application the president has made an order under Section 2 of the Preventive Detention Act, 1962.” In response the State Attorney told the judge that the president had already been advised to sign the order and requested an adjournment to ascertain the position, in effect to correct the anomaly. The judge granted the adjournment, and some time later the State Attorney returned with an order duly signed by the president, leading to a vacation of the discharge order and a direction that the detainee remain in custody! Commenting on this decision of the court, Justice Lugakingira argued that the order was wrong because the judge was in fact functus officio the moment he ruled the detention illegal: “It is difficult to understand how he [the judge] could adjourn a hearing which was in effect concluded, or how he could do so ostensibly to enable the Executive to make “lawful” that which was unlawful at the hearing” (Lugakingira 2001, 4). As has already been pointed out, unlike Kenya and Uganda, Tanzania did not adopt a Bill of Rights upon achieving independence, despite the pressure exerted by the departing colonial power to do so. It was argued that such a Bill was not reflective of the African way of life and that it would also not comport with the socialist principles that Nyerere was trying to construct in the country. That choice allegedly had an impact on subsequent political developments in the country, with Chris Peter pointing out that “maybe the presence of a Bill of Rights…from the time of independence would have acted as a check on some of the…autocratic decisions made in the early period of independence” (Peter 2008, 4). Of course, given the record of Tanzania’s two Bill of Rights-endowed East African counterparts, we would have to conclude that the mere existence of such a device would have been no guarantee of enhanced protection. 85

High Court of Tanzania at Arusha, Misc. Criminal Cause No. 36 of 1979 (unreported). 86 Misc. Crim. Case No. 2 of 1977 (Dar es Salaam Registry—unreported).

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But it was perhaps over the establishment of the Anti-Economic Sabotage tribunals that the government took its most extreme measures with regard to the Judiciary. First, the Act establishing the tribunals was retroactive, designed primarily to legalize several detentions that had already taken place. Secondly, the law introduced penalties that were considered “draconian.” Thirdly, the new tribunal would not be bound by standard rules of procedure and evidence: there was no right of bail, no right to legal representation, and no right to appeal a decision of the court (Widner 2001, 144). To cap it all, and in a move that would not have been out of place in Kenya or Uganda, the government went so far as to oust the jurisdiction of ordinary courts from trying offences related to matters covered by the tribunals. Effectively barred from these matters, the Judiciary pursued the path of quiet diplomacy (2001). Given such a context, it is not surprising that Tanzanian courts have sometimes appeared tentative and hesitant. For example, in the case of Mbushuu & Anor. v. Republic,87 an opportunity arose for an affirmative declaration to be made with respect to the death penalty, but the court vacillated. While the High Court found the death penalty to be cruel, inhuman, and degrading, the Court of Appeal reversed the decision, holding that, in spite of the validity of the High Court’s assessment and description, the death penalty was saved by Article 30(2) of the Constitution (Bhoke 2008, 56). Further, the court held that it was up to the legislature, not the courts, to change the article. This was a clear manifestation of the court’s deference to the other arms of government. In effect, the judgment retained the status quo. Once again, the Court of Appeal demonstrated that it was less willing than its subordinate to challenge the dominant structures of governance and autocracy in the country, hueing instead much more closely to the Political Question Doctrine. Where the lower courts clearly saw the way to a more robust and expansive reading of citizens’ rights, the higher court acted as a barrier. The same line of reasoning was apparent in the famous case of Christopher Mtikila v. the Attorney General. Overtly political considerations were not far from the Court of Appeal judges’ minds when they reversed the High Court’s decision declaring the eleventh amendment, which barred independent candidates from standing in elections, unconstitutional. Although the Political Question Doctrine was not mentioned, the court was clearly influenced by it. In overturning the decision of the lower court, the Court of Appeal stated:

87

[1996] 2 CHRLD 160.

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Chapter Two Apart from the legal argument we have advanced, there is a purely practical issue. Where will we stop? The argument is that the provisions of Art. 21 have been abridged since a candidate has to belong to and be sponsored by a political party. The next complaint will be why should a parliamentary candidate be required to be of the age of twenty-one years and a presidential candidate forty years? Why not be the age of majority of eighteen years? (sic) Also, why should the presidential candidate be a citizen born in Tanzania? Why do we exclude those born outside the Republic simply because their parents were faithfully serving the Republic outside the country? Are all these not abridging Art. 21?88

From the above review of the case law, our position on Tanzania is very clear. While the other two East African countries might have been more extreme, an examination below the surface of Tanzania’s “difference” demonstrates that it was actually not exceptional. Whereas the levels of open repression, politically-linked murder or disappearances, and the expressions of crass impunity that occurred to varying degrees in both Kenya and Uganda were not duplicated in Tanzania, there were many dark clouds lurking behind the silver narrative in which the country has been clothed. Clearly, the Nyerere government was not above employing detention-without-trial and internal deportation coupled with excessive police action to suppress opposition to the ruling single party. It is only because the government was less militaristic and arbitrary in its actions that its relations with the Judiciary were more cordial and less conflicted than was the case in Kenya and Uganda. For its part, the Judiciary was not willing to take too many chances. The return to multipartism in Tanzania definitely marked some improvement in the situation. In the case of Lujuna Shubi Balonzi v. The Registered Trustees of Chama Cha Mapinduzi,89 the court held that the rule of locus standi insofar as it related to human rights’ litigation must be interpreted broadly. However, elements of administrative and political high-handedness, as was demonstrated with the banning of the women’s organization Baraza la Wanawake Tanzania (BAWATA), remained evident (Mashamba 2009; Peter 2006). Although the High Court declared that the government’s refusal to register the organization—in effect banning it—was unconstitutional, nothing was done to rectify the situation, and what could have been a dynamic check to Chama cha Mapinduzi (CCM’s) hegemony simply faded into oblivion.

88

The Honorable Attorney General v. Reverend Christopher Mtikila, Civil Appeal No. 45 of 2009, Court of Appeal of Tanzania, 17 June 2010, at 44–45. 89 [1996] TLR 203.

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The courts did, however, frown on government action that was excessive or arbitrary. In the case of Vidyadhar Girdharal Chavda v. the Director of Immigration Services,90 Justice Samatta was of the view that except to autocrats, it must be intolerable that, in a democratic society like ours, [the society] should be impotent to grant a temporary injunction in favour of an individual who complains of unwarranted or oppressive use of statutory powers by a government minister or official. It should be perfectly clear, I think, that this court can halt the bulldozer of the State before it squashes the right of an individual, company, or society.

But old habits die hard. In the 1999 case of Augustine Lyatonga Mrema v. the Speaker of the National Assembly and the Attorney General,91 where a Member of Parliament (MP) challenged disciplinary action taken against him by the Speaker, the court refused to intervene, stating, “in obedience to Article 100(1) of the Constitution, I shall declare that this court has no jurisdiction to hear the petition, and therefore the application is unmaintainable and I shall not by illegal force break into that parliamentary castle.” A 2013 case involving Prime Minister Mizengo Pinda exemplified the tight-rope walking that the post-mageuzi Judiciary in Tanzania had become adept at pursuing and directly tested the extent to which courts were willing to go in a contest over Separation of Powers. The case of Legal and Human Rights Centre (LHRC) & Tanganyika Law Society (TLS) v. Hon. Mizengo Pinda & the Attorney General92 involved remarks made during Prime Minister Mizengo Pinda’s question time. According to the petitioners, Hon. Pinda made remarks that encouraged police to beat up protesters, thus spurring the commission of human rights violations; his remarks were therefore unconstitutional. The case raised a host of issues, including the extent of parliamentary privileges, the power of the court in judicial review, and that old bogeyman, locus standi. Raised as a preliminary objection, the court first addressed the issue of its power to review the actions of the Prime Minister—who could claim parliamentary immunity—and subsequently, dependent upon that answer, whether the petitioners had the requisite locus standi to challenge those actions. The court answered the first query in the affirmative given that the law on parliamentary privileges and immunities was “only an Act of Parliament and like any other Act of Parliament…[may] be challenged by

90

Misc. Civil Cause No. 5 of 1995, quoted in Shivji and Majamba 2011, at 4–5. [1999] TLR 206. 92 Misc. Cause No.24 of 2013 (High Court at Dar es Salaam). 91

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way of judicial review of legislative action.”93 This contrasted to the freedoms of thought and debate in the House, which the court declared were absolute.94 The court also gave a qualified reading on the issue of access, or locus standi, stating that, “while every person (a term which includes juristic persons) is entitled to institute proceedings for the protection of the Constitution and legality, such right must be pursued according to procedures laid down by the law.”95 On the question of who could then bring an action, the court found that in the specific challenge being raised, only a “natural person” could do so. The petitioners should therefore have shown that they were the direct or potential victims of the Prime Minister’s statement.96 According to the court, “The petitioners herein do not claim to belong to this group of persons in relation to the statement uttered by the first respondent. Indeed…they cannot do so since, as juristic persons, the alleged infringement cannot be committed in relation to them.”97 The court concluded by stating, “the petitioners’ allegations are in general terms, and they are litigating on behalf of individuals, which would bring the matter into the realm of public interest litigation under Article 26(2) of the Constitution.”98 Since the latter article had not been cited, the petition was dismissed. A later matter involving the Constituent Assembly’s powers in relation to the highly contentious draft constitution saw the Court of Appeal invoke the Political Question Doctrine, albeit obliquely.99 The court observed that although the assembly was not a parliament “in the usual sense of the word,” it was a representative body with policy-making powers.100 The court returned to its restrained reasoning: Members of the Constituent Assembly are entrusted with a crucial role in determining the future of our country. They have been given an important mandate by the law. While one may not agree with what they may be doing, it is important that, within that mandate, they are left to exercise their 93

Id., at 14. Id., at 18. 95 Id., at 22. 96 Id., 24. 97 Id., 24–25; emphasis original. 98 Id., 25. 99 Saed Kubenea v. the Attorney General, Misc. Civ. Cause No.28 of 2014. 100 According to the court, “The majority of its members are members of the two legislative assemblies (the Union Parliament and the Zanzibar House of Representatives). The rest are representatives of political parties and other interested organizations covering the broad spectrum of our people.” Id., 18. 94

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powers in total freedom. They have the discretion to decide how they go about doing that, as section 25(1) of the Act stipulates. Unless it is shown that they have gone beyond those powers by acting ultra vires or otherwise unlawfully or unconstitutionally, it is not the business of the court to get into the middle of that process and make pronouncements as to the propriety or otherwise of what is going on in the Assembly.101

While thanking the petitioner for having “exercised an important right” as a citizen by invoking the court’s powers of judicial review, the court said that it would not “meddle into that area, unless clearly supported by the law and facts,” because to do so “would be an intrusion into the process of constitution-making, an essentially political sphere that is beyond the scope of the constitutional mandate of the Judiciary.”102 What this and other instances of judicial engagement with the state represent is not very encouraging. Even though the courts in Tanzania sought to both confirm their independence and to hold the government in check in instances where it abused power or acted in an arbitrary manner, the results were rather mixed. This observation is important as we now turn our attention to a deeper examination of the state of public interest litigation in the three East African countries.

101 102

Id., 18–19. Id., 19.

CHAPTER THREE FROM LAW IN THE PUBLIC INTEREST TO “TRANSFORMATIVE CONSTITUTIONALISM”

“The Rev. Christopher Mtikila is a very determined man.”1 Thus begins judgment in a case involving one of the most active public interest petitioners in East Africa. That Mtikila was determined is demonstrated by the story of his initial foray into the Tanzanian judicial system. It happened during the early dawn of Tanzania’s transition from a single-party state to a multiparty democracy. The story begins in 1993, when Mtikila wanted to stand for election as an independent candidate and ends twenty years later, on June 14, 2013, when the African Court of Human and Peoples Rights sitting in Arusha delivered judgment in Mtikila’s favour.2 By that time, Mtikila’s case had already been decided twice in his favour by the Tanzanian High Court, only to be subsequently reversed by the Court of Appeal.3 As described in previous chapters, the pattern of reversing its subordinate on human rights and constitutional matters as exhibited by the Tanzanian Court of Appeal appears to have a well-established judicial pedigree, apparently in keeping with the old adage: the higher you go, the more conservative you become!

1

The Attorney General v. Rev. Christopher Mtikila, Civil Appeal No.45 of 2009 (hereafter ‘Mtikila No.3’). 2 Tanganyika Law Society (TLS) and The Legal and Human Rights Centre (LHRC) and Reverend Christopher Mtikila v. The United Republic of Tanzania, Applications 009 and 011/2011, para. 99 at 35. 3 The first case—Rev. Christopher Mtikila v. The Attorney General, Civil Case No.5 of 1993 (hereafter ‘Mtikila No.1’)—challenged the eighth amendment to the Constitution, which was declared unconstitutional by Justice Lugakingira. After losing the case, the government went back to Parliament and passed another law, the Eleventh Constitution Amendment Act (No.34 of 1994), basically re-enacting the law the court had declared illegal. Mtikila went back to court a second time and won again. The government appealed the decision to the Court of Appeal, where he lost the petition. See Christopher Mtikila v. AG, Misc. Cause No.10 of 2005 (HC) at 1 (‘Mtikila 2’).

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Faced by the decision of the Court of Appeal—the final court in the country—Mtikila decided to take his case to the continental level. Paradoxically, the African Court was just finding its feet and establishing itself within the framework of the African human rights’ architecture when his case arrived there in 2011 (Kane and Motala 2008). The case made history as the first in which the African Court upheld the merits of a petition and did not simply dismiss it on account of procedural technicalities (Abebe 2011). Not only was it fitting that the case came from Tanzania—where the court is headquartered, but also—given all that he had gone through to get there—that it was filed by the Rev. Christopher Mtikila. It is as if Mtikila’s case was just waiting for the African Court to fully settle down and assert itself for him to secure justice and thereby enter the annals of history as the first successful litigant in this pan-regional institution. Tenacity triumphed over resignation and retreat. Why is the Mtikila litigation in the African Court important, and what relevance does it have to the issue of public interest litigation (PIL) in East Africa? Mtikila’s case revolved around four broad issues—of those, three are of a procedural nature:4 1) whether Mtikila had exhausted all available local remedies; 2) whether the case was in the right place, and 3) whether the court had authority to hear the matter. The court easily dispatched with these questions, finding that Tanzania had violated rights protected under the Charter by which it was bound upon ratification.5 The Court found that the case was indeed in the right place, citing extensively the jurisprudence of the African Commission on Human and People’s Rights and a host of other regional human rights bodies and tribunals.6 Finally, regarding the exhaustion of local remedies, the court pointed out that the remedies envisaged were of a judicial nature and not of any other kind, administrative or political.7 Mtikila had taken his matter through all levels of the court system available in Tanzania and exhausted them: there was nowhere else to go judicially. While the government argued that the matter was under discussion in the constitution-making process set to begin at the time the case was filed, this argument was found wanting. The Tanzanian government had passed a constitutional amendment barring independent candidates such as Mtikila from vying for elected office. The court’s task was to determine whether this amendment was in accordance with a number of African Charter provisions, including the right to participate in government. In response, the court stated that the 4

Mtikila No.4, op.cit., paras. 79 to 80.3 at 22–24. Id., para. 84 at 29. 6 Id., paras. 84–88 at 29–30. 7 Id., para. 82.1 at 25. 5

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attempt to block such candidates amounted to a clear violation of the African Charter. But the court went further. The Tanzanian government had argued that the measures taken to bar independent candidates were in the interests of maintaining national unity and upholding the solidarity of the country, especially in light of Tanzania’s geographical division into the island of Zanzibar and the mainland.8 In the court’s view, there is nothing in the Respondent’s arguments set out earlier, to show that the restrictions on the exercise of the right to participate freely in the government of the country by prohibiting independent candidates falls within the permissible restrictions set out in Article 27(2) of the Charter. In any event, the restriction on the exercise of the right through the prohibition on independent candidacy is not proportionate to the alleged aim of fostering national unity and solidarity.9

Nonetheless, Mtikila had to wait a little longer to have his plea for the recognition and participation of independent candidates in elections in Tanzania finally resolved. At the time of this writing—several years since the case was decided—the government has yet to take the necessary measures to change the law and the Constitution in order to allow independent candidates to stand in election.10 To understand why the government of Tanzania was so intransigent on the one hand and why Mtikila pushed back so hard on the other, it is necessary to journey back into early post-independence Tanzanian history. Before making that sojourn, however, what does the term “public interest” actually mean?

Defining the “Public Interest” An historical analysis and appreciation of the terms “public” and “interest” is necessary because they have been neither static nor uncontested in the three East African countries or elsewhere (Rekosh 2014). Indeed, there is very little consensus on the meaning of the term “public interest,” with interpretations as diverse as the professionals and intellectuals who have addressed the issue—from economists to authorities on mass communication to anthropologists (Weisbrod 1978, 4). As a matter of fact, the different uses of these terms reflect the evolution of the law as an instrument of both oppression and liberation (Glendon 1960). Put differently, 8

Id., paras. 102 to 104, at 36 to 38. Id., paras.107.2, at 43. 10 Started in early 2104, the constitution-making process in Tanzania was afflicted by numerous problems, eventually leading to the shelving of the draft in 2015. 9

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law can be likened to the two-faced Roman god, Janus. Law has both endearing, progressive, and liberating features and a reverse visage which constricts, controls, and even dehumanizes. It is a double-edged sword that is supposed to protect when pulled out of the scabbard but should not cut its owner when sheathed. Viewing the terms separately, “interest” is less obscure or complicated than the word “public,” especially in a legal context. We have already examined the matter of interest extensively in the discussion of locus standi. Leaving aside the economist’s definition of the term (fee or levy), and that relating to the amorous or affectionate (love or desire), the most appropriate definition for the word “interest” in this context is that of concern, as in something that “concerns, involves, draws the attention of, or arouses curiosity.” The item of interest does not necessarily have to be physical. For example, one can be interested in an idea, a story, or a conspiracy. Tangible items of interest, such as a contract for sale of goods or copyright, are most likely to form the basis of a cause of action in law, although incorporeal items such as a person’s reputation can also be a matter of interest in a court case. In contrast, as Lord Denning, MR stated in the case of Attorney General v. P.Y.A. Colliers Ltd.,11 the term “public” is much more difficult to define legally. Does it refer to a community, a group of people in a particular region, or the whole of the nation? In common parlance the word “public” stems from the Latin word populus or policus and basically refers to a large gathering of the population. But, like the meaning of “democracy,” the etymology of “public” has moved on. The word does not simply refer to a quantitative mass. Otherwise, the interests of minorities would never qualify to be described as “public.” Rather it is a mass linked to civic affairs, or to issues associated with the operation of the state, in other words to those matters of concern outside of the purely individual or private sphere. The term is also qualitative. John Dewey defines “the public” as a group of people “who, in facing a similar problem, recognize it and organize themselves to address it” (Dewey 1927). Under Grunig’s situational theory of publics, there are in fact four kinds of publics, namely the nonpublics (those who have no problem), latent publics (who have a problem), aware publics (who recognize that they have a problem), and active publics (who do something about their problem) (Grunig 1983, 81).

11

[1957] 2 QB 169.

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The debate over the term “public interest” has been extensive.12 Bringing its various strands together, one can say that the term “public interest” is about matters of social or civic concern that relate to the process of governance in all aspects (not only the political) that have aroused the attention of a community or a prominent (as in definable) section of it. The State is supposed to be the custodian of this entity (the public interest) and to take measures to define, implement, and protect it. Of course in the case of a state or government that is at odds with the general public and fails to project or protect the public interest, there is a breach of trust that calls for correction. The public interest can also be held hostage to elite privilege, and the focus of public interest may be the object of concerted manipulation. Political scientists may refer to the most extreme situations—where there is a breakdown of the relationship between the State (represented by the government) and the public—as a breach of the social contract. At its worst, such a breakdown can result in protest, insurrection, or regime change. One need only think of Tunisia, Egypt, and Libya. Recently in Burkina Faso, for example, the people made their views very clear: extending Blaise Campaore’s presidential term of office was not in the public interest (BBC News 2014). Sieved through imperial or colonial institutions, the words “public interest” assume a somewhat different character. In the colonial era, “public interest” was rooted in the notion of “defense-of-the-realm” and in a range of structural conditions that automatically divorced “the public” from the State that ostensibly represented it. At the same time, the body entrusted with the duty of interpreting the public interest, namely the Judiciary, was an integral part of the oppressive apparatus of the state. “Public interest” found itself expressed throughout the legal regime of the colonial structure, and the courts faithfully interpreted it. And yet, the public interest was quite the opposite of what the colonizers and courts determined it to be. In fact, judicial decisions in Commonwealth Africa resulted in a set of rules that employed the “awesome power of the Colonial state to achieve the exploitative objectives of British imperial policy” (Seidman 1969, 48). All of this was done with the goal of protecting what was regarded to be the public interest. The result was “not a project centred on justice or rights” (Ellet 2013), but instead the politicization of judicial power and its firm entrenchment within the system of colonialism as an element that was

12

For an idea of the breadth of the debate, see the Law School at Queen’s University of Belfast’s Website on “Public Interest in UK Courts,” and especially the link, “Defining Public Interest.”

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fundamental to the explicit accumulation of political and economic power through marginalization, oppression and, ultimately, violence. Law simultaneously provided a superficial veneer of formality and legitimacy and a means of controlling the colonial state. The transplanting of common law courts and the subsequent restatement of Customary Law was an intensely ideological project (Ellet 2013, 31).

Thus, the interests of the State and those of society were deemed one and the same despite the fact that colonial regimes had been forcefully super-imposed over pre-existing indigenous structures (Ekeh 2004). In the words of Peter Ekeh, “[the] agents of European imperialism came to Africa with the supposition that African states belonged to their rulers” (2013, 31). Here, we see that there was a manifest disconnect between the colonial state and the African public written into the relationship right from the beginning. Of course the tension introduced by this anomaly did not take long to erupt, in the first instance with the wars of colonial resistance fought all over the continent from the Cape to Cairo. In East Africa, the most famous of these were the Maji-Maji rebellion in Tanganyika; the insurgencies conducted by kings like Kabaka Mwanga in Buganda and Omukama Kabalega in Bunyoro; and the Lamogi insurrection in Acholi. In Kenya, the anti-exploitation origins of the Mau Mau uprising in the early 1950s were manifest in the English name of the insurgency, the “Kenya Land and Freedom Movement” (Kanogo 1992, 23–25).13 All these movements underscored the point that the roots of anti-colonial resistance lay not simply in the appropriation of land and other resources for the benefit of the colonial political economy; rather they were linked to the damage that had been done through the dismantling and reconstitution of pre-colonial institutions of governance, represented in legal form by the various “agreements” that signified and consolidated the official onset of colonialism. Put summarily, they were both economic and political. Socio-cultural factors also formed a sub-text to the resistance. In addition to pursuing the resolution of this contradiction by means of war, some African leaders sought recourse via the colonial legal system. Hence, we witness one of the earliest public interest cases in colonial East Africa, concerning the appropriation of the Rift Valley lands of the Maasai in colonial Kenya. The 1912 case of Ol le Njogo & 7 Others v. The Honorable Attorney General & 20 Ors.14 sought to nullify patently fraudulent 13

To that list we may also add the issue of taxes, representing a classic element of democratic theory: no taxation without representation. 14 Civil Case No.91 of 1912; 5 E.A.L.R. 70 (1914), also known as the ‘Colonial Maasai Case.’

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treaties that had led to the loss of Maasai ancestral land to early British settlers (Ndahinda 2011, 273–276). It was a pattern that was to be repeated all over the continent (Barume 2010). As in later cases on similar issues, the court denied locus standi to both the Paramount Chief and to the Maasai people. To add insult to injury, the court relied on a Privy Council case to declare: It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations in which this court cannot enter. It is sufficient to say that even if a wrong has been done, it is a wrong [for] which no municipal court of justice can afford a remedy.

One might legitimately ask why the court even gave the Maasai a hearing. The answer is that it was in the character of the Common Law to provide a façade of justice. In the words of Bonny Ibhawoh: “Natives who appealed to the Courts of Empire were [ostensibly] entitled to the same standards of justice as their ‘civilized’ colonists, yet the boundaries of racial, ethnic, and cultural difference somehow had to be recognized and maintained” (Ibhawoh 2013, 4). Indeed, the so-called civilizing and modernizing mission of British justice could only truly be achieved through the recognition of local exceptionality and difference (Ibhawoh, 2013). As Ghai and McAuslan have stated of the Maasai case, the use of the defence of Act of State in these circumstances provides an example of arbitrary government which it is hard to parallel. The government could force the agreement on the Maasai, could then enforce their obedience to it, and when challenged could decline to allow the matter to be judged in the courts and could prevent or punish any recourse to extralegal remedies. The aggrieved persons were compelled to rely on the goodwill and sense of fair play of the government by whose actions they had been wronged in the first place. Looked at from the point of view of the natives of the protectorate, the defence of Act of State was the perfect instrument of executive tyranny (Ghai and McAuslan 1970, 23).

The rationale that fed the reasoning in the Ol le Njogo case was informed by the Reception Clause of the orders-in-council that applied English Common Law to all three East African countries under consideration. Central to the Clause, which was in fact applied across the board to all colonial situations, was a provision stipulating that “Native Law” would apply only insofar as it was not repugnant to (colonial) justice and morality. Ibhawoh points out the absurdity of this provision: “Customary laws could hardly be repugnant to the traditional sense of justice or morality of the community that still accepted them” (Ibhawoh, 2013, 56). Of course,

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the British standard was the one to be applied when considering whether or not a custom was “repugnant.” Any action deemed in opposition to the “public interest” enshrined in the words “justice” and “morality” would therefore draw swift judicial condemnation. Given the nature of the colonial system, the “public interest” under concern excluded the very public it supposedly protected! Such ironic readings of the law were possible because the Judiciary viewed itself much more as an appendage to the goal of achieving colonial [in]justice than as a bastion of protection for the indigenous population. To compound matters, the courts deferred to Parliament, which, in the absence of a written constitution, could effectively pass any law with scant threat of judicial challenge.15 The English cases of the colonial era are replete with references to the doctrine of Parliamentary supremacy. This is not surprising since even in England judges of this era frequently fit the description employed in the oft-cited words of Lord Justice Atkin: “more executive-minded than the executive.”16 Despite praise for the Common Law system outside of its colonial variant, the judges who administered it carried overseas with them prejudices borne of class, schooling, and political interest. Thus, John Griffith has pointed out that senior judges in England inevitably defined the public interest from the point of view of their own class: “And the public interest, so defined, is…the interest of those in authority. It includes the maintenance of order, the protection of private property, [and] the containment of the trade union movement” (Griffith, 1991, 327). To all the above, it is crucial in the colonial context to add the factor of race. Given the undeveloped nature of the labour movement in the early colonial period, the public interest essentially meant the suppression of anti-colonial sentiment not simply in relation to labour unrest but across the whole range of civil, indigenous, and political society. The native had to be kept in his or her place. Needless to say, the colonial courts and their oversight bodies, such as the Judicial Committee of the Privy Council, functioned with very few exceptions as essentially administrative rather than judicial arms of the State (Ibhawoh 2013). The colonial justice they dispensed reinforced the existing exploitative conditions. However, some scholars challenge or outrightly refute the notion that the courts were so transparently dedicated 15

See for example the words of Lord Justice Morris in the case of Pickin v. British Railway Board [1974] AC 765 at 789, and also Aguda 1981, 5–6. In the United Kingdom, despite the introduction of a Bill of Rights, the doctrine still holds considerable sway (Irvine 1999, 31). 16 Liversidge v. Anderson [1942] AC 206, esp. 244.

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to the colonial project. In a recent study of the Privy Council entitled Imperial Justice, Prof. Ibhawoh argues that the famous Nigerian case of Amodu Tijani v. Secretary of Southern Nigeria17 challenged what was considered settled imperial law on aboriginal land title. While the case represented the unlikely instance in which a colonial petitioner secured justice in a colonial court, it should be noted that the case was one of only a handful that produced such a positive outcome. The overwhelming majority of cases decided by the Privy Council took a different view of the colonized communities within the colonial. A few examples suffice to demonstrate this point. In the case of Ross-Clunis v. Papadopoullous,18 the Privy Council upheld emergency regulations providing for collective fines on the inhabitants of areas in Cyprus that were alleged to harbour terrorists. In the later case of Mungoni v. Attorney General of Northern Rhodesia,19 the Judicial Committee refused to uphold an award of damages for false imprisonment under a detention order; in this instance the Committee accepted the protectorate Governor’s right to delegate the power to detain an individual as well as his duty under emergency regulations to exercise control over any person. East Africans are most familiar with the case of Nyali Ltd. v. Attorney General,20 in which the court gave unfettered powers to the Crown to map out its jurisdiction insofar as a protectorate was involved. The license thereby given to the Crown effectively conferred on the British government carte blanche to do as it pleased with “natives.” With absolute discretion conferred by the Legislature and confirmed by the Judiciary, the colonial state was at liberty to impose whatever measures—however draconian—it saw fit, claiming to do so in the public interest. Quite clearly, the Privy Council was not a liberal instrument of adjudication insofar as the promotion of rights and liberties of the “natives” were concerned.21 Ironically, many of these decisions were handed down by that most famous and celebrated English judge, Lord Denning, known as “the people’s judge” for his willingness to override precedent to do what he saw as just (Palley 1984, 255). It should also be pointed out that although the Privy Council awarded the plaintiff compensation in the Tijani case—an award that occasioned huge celebrations back in Nigeria—the land in question (Lagos Island) remained vested in the colonial state up to the time the country regained its independence in 1960. While 17

[1921) 2 AC 399. [1958] 1 W.L.R. 54 (P.C.) 19 [1960] AC 336 (PC) 20 [1956] 1 QB 1. 21 But see Ex parte Mwenya [1960] 1QB 241, [1959] 3 All E.R. 525. 18

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the court held that the plaintiff was entitled to compensation, the land never reverted to him, confirming the “superior” title of the occupant/colonizer, despite the fact that the court implicitly recognized that the said “title” had in fact been secured by fraud. Even though the courts became a prominent feature of the colonial administration, they only gradually developed into a distinctive arm of government as the essence of colonial power was to effectively fuse the different elements into a single unit. How was the structure of colonial governance formed? It began with an Executive Council under the governor, who had oversight of both the Executive (policy-making) and legislative (law enactment) functions of the State, as chairman. At the apex of the system, the governors, as putative heads of state and representatives of the monarch, were at once law-makers, law-implementers, and lawinterpreters all rolled into one. This was interesting not only in light of the well-developed principles of separation of powers in England, but also because the English head of State was by this time already a constitutional monarch. And yet, the early colonial governors assumed all the features of absolutism that had been manifest in the pre-1688 era (that is, prior to the “Glorious Revolution,” when William III and a union of English parliamentarians overthrew King James II’s absolute monarchy).22 Only gradually did we see a separation of the legislative from the executive function. While the judicial function was also in theory separate, its primary role was to operate as an instrument of law and order—like the police—rather than as an independent administrator of justice irrespective of race. But even access to higher levels of the colonial judicial system was limited given the racialized structure that was put in place. That structure was apartheid in all but name. The hallmark of British indirect rule, at the lower levels of the colonial state, was an institution that fused all three state powers into one: the native colonial chief. As Mahmood Mamdani has said, the chief “combined in his hands executive, legislative, judicial, and administrative powers. When he faced the peasant, his fingers closed and the hand became a clenched fist” (Mamdani 2005, 7). In these courts, designed to administer justice to Africans, the preponderance of disputes related to private matters that never directly implicated the governance questions at the root of colonialism. When challenges were made, they were invariably decided by non-native courts in an easily predictable manner. 22

For an account of the legal theory of Absolute Monarchy, see Harold Berman, who quotes King James of England’s The Trew Law of Monarchy (Berman 2003, 234–235).

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Late post-war colonialism witnessed a scramble to modify existing conditions on the ground as the imperial project sought to respond to anticolonial agitation while simultaneously attempting to guarantee that structures of economic dominion remained in place. We thus begin to witness a loosening of the nuts and bolts of control that had been placed around civic and political expression, through means such as the recognition of trade unions and the liberalization of control over cooperatives, and eventually in all three East African countries, permission to form political parties. Needless to say, the reformulated laws of this “human face” era of colonialism gave with one hand what was taken away with the other. Unions and other kinds of civic societies were allowed to operate, but their operation was contingent on supervision and sanction by colonial officials, in whom were vested extensive and rather draconian powers of control, including recognition and registration of such organizations or of their arbitrary dissolution. Likewise, the Penal Codes remained replete with offences that penalized political expression and civic action. Nevertheless, even with independence looming, the courts were still reluctant to fetter the power of the Crown, as demonstrated by the 1956 Nyali case. In Kenya, the Mau Mau Emergency regime of colonial absolutism rendered obsolete any notion of justice. Against this background it is now possible to turn to a deeper consideration of the meaning of public interest litigation.

What Is Public Interest Litigation? The terms “public interest law” and “public interest litigation” are as deeply contested as the term “public interest”; some would even describe them as “hopelessly indeterminate” (Chen and Cummings 2013, 3). More recent studies have adopted the terms “cause lawyer” and “cause lawyering” in preference to “public interest law” and “public interest lawyering” (Scheingold & Sarat 2004, 5–6). Alternative descriptions include “social action litigation.” Most scholars trace the origins of the PIL phenomenon to the social and political turmoil of early 1960s U.S. that heralded the rise of the Civil Rights movement. However, this kind of lawyering is actually much older. Long before its twentieth century variant appeared, similar litigation existed in Roman penal law, in what was called the actio popularis—an action brought by a member of the public in the interest of public order. Later, this became the Relator action, which was brought by a member of the public with the consent of the Attorney General and was in essence a private prosecution that was supposed to “benefit the public or a section of the public, and the Attorney General is in theory in control of the proceed-

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ings throughout” (Gomez 1993, 178). These are by nature criminal proceedings that are traditionally the preserve of the state but in exceptional circumstances can be initiated by a private individual. The more modern variant of public interest litigation can be retraced to the early years of the twentieth century. The first lawyer broadly acknowledged to have extensively engaged in the practice was Louis Brandeis, who eventually went on to become a much-revered justice of the U.S. Supreme Court, serving on the Bench for twenty-three years, from 1916 to 1939. According to Philippa Strum, Brandeis came to be known as the “people’s attorney,” taking part in almost every major social movement of the early twentieth century: “trade unionism, trust-busting, women’s suffrage, conservation, labour legislation, and Progressivism” (Strum 1995, 2 and 5). Brandeis was best known for a speech in 1905 in which he stated: Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people. We hear much of the “corporation lawyer,” and far too little of the “people’s lawyer.” The great opportunity of the American Bar is and will be to stand again as it did in the past, ready to protect also the interest of the people (Urofsky 2009, 203).

In the same speech, Brandeis invoked the “public interest”: The leaders of the Bar have, with few exceptions, not only failed to take part in constructive legislation designed to solve in the public interest our great social, economic and industrial problems; but they have failed likewise to oppose legislation prompted by selfish interests. They have often gone further in disregard of the common weal. They have often advocated, as lawyers, legislative measures which as citizens they could not approve…. They have erroneously assumed that the rule of ethics to be applied to a lawyer’s advocacy is the same where he acts for private interests against the public, as it is in litigation between private individuals (2009, 204).

Strangely enough, the one social cause conspicuously missing from Brandeis’ impressive and progressive repertoire was that concerning the struggle for the equal rights of African-Americans (Bracey 2014). What was to become one of the most prominent civil rights organizations established by African-American people—the National Association for the Advancement of Coloured People (NAACP)—was set up in 1909 during the period Brandeis was making his mark on the American body politic as the “people’s attorney.” However, there is no record of any engagement be-

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tween Brandeis and the NAACP (Bracey 2014, 864). Furthermore, Christopher Bracey charges that when elevated to the Supreme Court Brandeis was complicit in “rendering judicial decisions that reinforced core principles of the segregation regime” (Bracey 2014, 861). Although a tale of radical lawyering, the official story on Brandeis as public interest law pioneer obscures the role of many African-American lawyers who were involved in seeking recourse to the main problems of discrimination and inequality that plagued Black people at the time. Indeed, records show that African-American lawyers, though far less prominent in the dominant historical accounts, had been involved in this struggle from the mid-1800s onward (Smith Jr. 1993, 16). In the late nineteenth and early twentieth centuries, litigation was at the core of the struggles waged by Black lawyers and civil rights activists against societal wrongs from petty bigotry and racial intolerance (shared public facilities) to grand discrimination (biased juries, denial of voting rights) and violence, enshrined most graphically in the vigilante practice of lynching. Interestingly enough, organizations such as the NAACP initially favoured White lawyers to lead the struggle for civil rights in the courts, reflecting the complexity of the struggle for social justice in the U.S. at the time. Nevertheless, that Brandeis was absent from their lawyers’ inventory and from the organization’s history is a curious reflection on both the man and the times. The institutionalized form of public interest litigation that the U.S. became famous for began in earnest with the civil rights struggles of the 1950s and 1960s, commencing with the Brown23 case mentioned in chapter one and prosecuted by a man who was to become the first AfricanAmerican Supreme Court Justice, Thurgood Marshall (Williams 2000). According to Helen Hershkoff, Brown provided inspiration to a generation of lawyers who saw law as a source of liberation as well as transformation for marginalized groups. Courts, mostly federal but state as well, became involved in a broad range of social issues, including voting and apportionment, contraception and abortion, employment and housing discrimination, environmental regulation, and prison conditions (Hershkoff 2001, 5).

The goal of such litigation was—in the words of Abram Chayes—“to emphasize the needs and interests of groups long excluded from conventional majoritarian politics” (Chayes 1976, 1311–1312). In other words, while traditional political action via the vote and related democratic engagement could be one venue for change, public interest litigation brought 23

Brown v. Board of Education of Topeka, 347 US 483 (1954).

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to light the limits on the extent to which those methods could redress the wrongs of the most marginalized and dispossessed members of society. For Justice Brennan in the case of NAACP v. Button,24 PIL was a form of political expression: “Groups which find themselves unable to achieve their objectives through the ballot frequently turn to the courts…. And under the conditions of modern government, litigation may well be the sole practicable avenue open to a minority to petition for redress of grievances…. For such a group, association for litigation may be the most effective form of political association.” The American lawyers involved in the struggles of the 1960s and 1970s viewed themselves as public interest lawyers in contradistinction to those Brandeis had originally dubbed “corporate adjuncts”—those essentially providing legal support to the multinational groups expanding and consolidating all over the U.S. at the time. The public interest lawyers of that era also considered themselves an integral component of the movement to change race relations in the country—the issue among others of social concern, including the anti-war and women’s rights movements, that was nevertheless the most prominent. Perhaps one of the most significant elements of the struggle to emerge from this engagement was the legal teach-ins that took place over the same period. The lawyers and academics who invented the teach-ins were not only unhappy with the way law was being monopolized—they wanted to popularize it, marking the beginning of the “liberation schools,” “law communes,” and eventually of the “Street Law” movement that sought to take law out of the courts and into the community (Lefcourt 1971). Contrary to popular perception, Brown represented the culmination of a long era of legal struggles, not its commencement point. Nevertheless, Brown provided a defining moment not simply in its attack on discrimination in one of the most crucial features of the American body politic, but also in the methodologies used to make that attack. The civil rights struggles that followed Brown in the U.S. courts employed many of the tactics first deployed in that case, such as the use of sociological and psychological studies to highlight the negative impacts of legal inequality. Brown opened the way to the flood of litigation that exploded in the U.S. in the 1960s and 1970s, but there had been a fairly constant trickle well before that landmark case was decided. Despite what could be regarded as the many positive outcomes, there has been much debate and even controversy over the legacy of Brown. The case has been described as “at once a turning point and a source of resistance, a point of pride and an object of vilification” (Sarat & Scheingold 24

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2006, 5). The debate has been about both its method of attack on the structures of discrimination and its impact on public interest litigation in the U.S. (Minow 2010). The latter has of course been dependent on the shifting definitions given to the term “public interest,” a debate coloured particularly in the U.S. by the federal nature of the government system. While the tendency has been to believe that education had come to be considered a fundamental right following the decision in Brown, the 1973 case of San Antonio Independent School District v. Rodriguez25 revealed a different view. In its decision, the Supreme Court stated: The importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected.26

Under this formulation, as John Hogan points out, it is the states (not the federal government) that are constitutionally the custodians of a public school system with certain minimum attributes (Hogan 1974, 4). In essence, this means that there can be a wide disparity of standards not only between states but also within them. But the controversy over “state’s rights” as opposed to the Federal prerogative is not the major problem. Neither is the critique that the gains of Brown have been over-estimated or exaggerated. Rather, at issue is the claimed over-politicization that Brown allegedly injected into the American judicial apparatus. This has led to charges of partisanship and the attendant criticisms that public interest litigation is a badly misused and partisan tool. Although one may disagree with the main thrust of his argument, the late Supreme Court Justice Antonin Scalia made an interesting point concerning the impact of PIL on U.S. courts, specifically on the process of nomination, vetting, and appointment of judges—those who sit on a body that is now considered an integral component of the political process and hence of all the varied struggles that take place within it. This is especially the case with regard to the Supreme Court. Arguing that the impact of PIL has been to distort the original nature and intended focus of the courts, Scalia said, “you should not think that the evolutionary constitutionalism of the modern Supreme Court of the U.S. reflects a time-honoured and time-tested tradition.” He went on to assert that, 25 26

36 L.Ed. 2d 16–105. Id., at 44.

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to the contrary, it is quite new, and its consequences for our system of government are only beginning to be apparent. The people are not fools. Once it has become apparent to them—as it now has—that the Constitution does not have a fixed meaning determinable by lawyers through the use of analytical tools; that it means, rather, whatever it ought to mean in light of modern needs and modern desires; then they will begin selecting their Justices not for legal ability, but for agreement with them, the majority, as to what the Constitution ought to mean (Scalia 2002, 27).

Controversial though his opinion may be, Justice Scalia’s argument merits a closer look because of its implications for the judicial process not only in the U.S. but also elsewhere. First, however, we will examine the manner in which PIL has developed in India and South Africa, countries selected both for their geopolitical proximity to the East African countries under examination and for the interesting trajectories that public interest litigation has taken in those countries.

The Case of India In India, public interest litigation found its most dramatic growth and expression within the context of a recent (1947), non-settler ex-colony, being the first British imperial territory of this type to secure independence. In contrast to the U.S. experience, where the impetus for change came mainly from civil society organizations such as the NAACP and sympathetic philanthropies such as the Ford Foundation, in India the initiative was largely court-led (Gomez 1993, 79). Civil society and social movements followed the court’s lead, filing all manner of petitions in both state and federal courts, including ultimately the Indian Supreme Court (Cotterell 1992). Having been the first of Britain’s global south colonies to achieve independence, India was the ground on which many experiments in the Common Law were carried out in a colonial context, especially in the areas of procedure and evidence. India’s courts were thus very much steeped in English tradition—procedurally, in the substantive law, and even in the manner and deportment of judges and advocates—from the gown to the wig to the language of the court. For a variety of reasons, aspects of this heritage were subjected to serious challenges, most noticeably starting in the 1970s. The explanation most frequently cited is the sense of shame within the courts for having done so little to stem Prime Minister Indira Gandhi’s political emergency, which ran from 1975 to 1977 (Thiruvengadam 1987; Khilani et al. 2013, 347–356). As a highpoint of this judicial neglect, the Indian Supreme

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Court in the case of A.D.M Sabalpur v. Shiv Rant Shukla27 held that preventive detention laws were immune from judicial review. Of course some earlier decisions of the court had given inklings of the “judicial activism” that was to emerge, but it was only in the late 1970s that the trend was recognized as a movement. In the famous case of Kesavnanda Bharati v. State of Kerala,28 the court stated that although the Legislature had the power to amend the constitution, it could only do so within a structural framework that paid due attention to the way the instrument had originally been designed. Hence developed the so-called “basic structure” doctrine.29 In other words, certain features of the constitution were considered immune from amendment by parliamentary fiat alone. Following the Gandhi emergency and an appraisal of the damage done to the psyche and fabric of the nation, the Indian Supreme Court reformulated its mission, from a court in which elite causes predominated to a forum where the “meek and the lowly” could find justice.30 It thus radically reformulated its procedures for receiving petitions, removing the formality of structured plaints and allowing—in the Judges Appointment and Transfer Case31—for a court suit to be initiated by a mere letter, especially for persons unable to approach the court on account of poverty, disability, or social or economic disadvantage. This opened the way for what is now known as the Court’s epistolary jurisdiction. The court assumed the mantle of “judicial activism” with gusto and, in State of Kerala v. T.P. Roshana,32 quashed a scheme of admission to public medical colleges, substituting a temporary procedure in its place until an alternative could be devised. In this way, the court invaded an arena clearly reserved for the makers of government policy. The court also did away with the strict rules of locus standi, developed new mechanisms for gathering evidence and data, and employed different modes of enforcing its decisions. The arsenal of remedies developed included investigative commissions and inquiries. In this way, Indian judges gave new meaning to the term “activist Bench,” not simply because of the decisions they handed down, but also because of the manner in which they 27

AIR 1976 SC 120. (1973) 4 SCC 225. 29 The doctrine is to the effect that there are certain key elements of the constitution that cannot be altered by parliament, among them the supremacy of the constitution, the fundamental rights provisions, and the federal structure of government. 30 The pioneer case in this respect was Maneka Gandhi v. Union of India, AIR 1978 SC 597. 31 [1982] 2 SCR 365; [AIR 1982 SC 149]. 32 [1979] AIR 765; [1979] SCR [2] 974. 28

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re-read the very nature and character of judicial power and its enforceability. For example, the court described as “reprehensible” the government’s objection to the hearing of a petition concerning bonded labour. According to Justice Pathak in the case of Bandhua Mukhti Motcha v. Union of India,33 if any citizen brings before the Court a complaint that a large number of peasants or workers are bonded serfs or are being subjected to exploitation by a few mine lessees or contractors or employers or are being denied the benefits of social welfare laws, the State Government, which is, under our constitutional scheme, charged with the mission of bringing about a new socioeconomic order where there will be social and economic justice for everyone, equality of status, and opportunity for all, would welcome an inquiry by the court, so that if it is found that there are in fact bonded labourers or even if the workers are not bonded in the strict sense of the term as defined in the Bonded Labour System (Abolition) Act 1976 but they are made to provide forced labour or are consigned to a life of utter deprivation and degradation, such a situation can be set right by the State Government.

As was demonstrated in the above case but also in several others, of considerable import to the debate about PIL in India was the work by the Supreme Court in turning what were originally the non-justiciable provisions of the constitution—concerning health, education, and the right to food to mention a few—into justiciable rights that could be claimed against the State (Mate 2013, 270–273). However, what is recognized as its most radical intervention was the reading into the right to life (Art. 21) various aspects of the concept that were not immediately apparent from an initial interpretation of the provision (Gomez 1993, 81–82). The court used Art. 21 jurisprudence in the Bandhua judgment to assert that bonded workmen forced to live without adequate shelter, nourishment, drinking water, and sanitation facilities were being denied the right to life. In perhaps its most famous case—Olga Tellis and Ors. v. Bombay Municipal Corporation & Ors.34—the court extended the right to life to include the right to livelihood. Finding against the Bombay authorities who evicted and deported pavement and slum dwellers from the streets of the City, the court held that “the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.”35 33

[1984] AIR 802, 1984 SCR [2] 67. 1986 AIR 180 1985 SCR Supl. (2). 35 Id., at 188. 34

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Via its expanded reading of locus standi and the Bill of Rights provisions, the Indian Supreme Court used its power to protect working women from sexual harassment, to preserve ecological balance, and to control pollution of the River Ganges (Deva 2011). All this came from a radical re-interpretation of the Constitution. Pointing out that the document was not a “non-aligned national charter,” Justice Bhagwati, in the case of S. P. Gupta v. President of India,36 said the Indian Constitution is a document of social revolution which casts an obligation on every instrumentality including the Judiciary, which is a separate but equal branch of the State, to transform the status quo ante into a new human order in which justice—social, economic and political—will inform all institutions of national life and there will be equality of status and opportunity for all. The Judiciary has therefore a socio-economic destination and a creative function.37

There has been considerable debate about the ultimate impact of the Indian Supreme Court’s interventions on comprehensive structural reform and more specifically on eradicating poverty, especially in light of the claims made by individual members of the court (Rajagopal 2007; Gauri 2009). Some scholars have even argued that the Supreme Court has stood in the way of sustainable respect for human rights. According to Rajagopal, this was demonstrated most vividly in the case of Narmada Bachao Andolan v. Union of India & Ors.,38 where “the Court put its seal of approval on the largest Court-sanctioned forced eviction in the world, in spite of international legal materials in abundance showing that raising the height of the Sardar Sarover dam was contrary to existing legal standards” (Rajagopal, 2007, 162). More recently, the Supreme Court reversed a landmark ruling by the High Court of Delhi; the Delhi Court had declared unconstitutional a law (dating back to 1860 during the era of British rule) that criminalized sexual activities “against the order of nature.” Despite these controversies, there is no doubt that the decisions of the Indian Supreme court have provided new insights into how lifeless provisions on paper may be transformed into meaningful entitlements for litigants who would not have otherwise found access to justice (Desai and Muralidhar 2000). More importantly, the Indian court provided a non-western articulation of a phenomenon that would provide inspiration and precedent for numerous other states and their judiciaries throughout the global south.

36

AIR 1982 SC 149. Id., 196. 38 Supreme Court Verdict, January 2005. 37

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South Africa Before 1994 In many respects South Africa is the Tanzania of the twenty-first century, in the sense that there is a new SouthAfrophilia to which the country has been treated since it emerged from the fangs of legal apartheid more than twenty years ago. Praise comes in from all quarters—here talking about the transitional justice mechanisms the country adopted, particularly Archbishop Desmond Tutu’s Truth and Reconciliation Commission (TRC); there about its socioeconomic rights jurisprudence; and elsewhere about its revolutionary approach to the recognition and enforcement of the rights of sexual minorities. Today, more than three years after Nelson Mandela’s death, the country still basks in the afterglow of the accolades heaped on the great man. Mandela’s example projected the South African virtue of Ubuntu or “human-hood” onto the international scene.39 In different ways, the country is charting a novel path towards addressing some of the most intractable problems of the day. Among African countries, it is in post-liberation South Africa that public interest litigation has reached its fullest expression, having developed into a tool for social and political transformation that continually influences debate and discussion. This is not to say that PIL was not a feature of the judicial and political landscape during the apartheid era (Abel 1995)—an essential point with relevance for understanding post-apartheid litigation in terms of both its strengths and limitations. As John Dugard has described it, the apartheid-era Judiciary was “a liberal institution in an illiberal community” (Dugard 1978, 279). While such a characterization may be contested, it does reflect the fact that the Judiciary—unlike both the Executive and the Legislature—was an institution in which the demands of the deprived Black majority could at least find an audience, irrespective of whether or not they successfully secured justice (Budlender 2014). As Hlonipha Mokoena (2014) observed, apartheid functioned in part because it was a system that revered the law even while breaking it. As in governments around the world where the executive must be accountable to the Judiciary, you find those who departed from the prescribed text even under repressive conditions such as those existing in pre-1994 South Africa (2014, 6–7). Dugard (1978) quotes two apartheid-era Justice Ministers complaining about judges appointed by the executive: “The trouble [with] these judges is that they get delusions of grandeur. Having acquired security of tenure, they imagine they were appointed on merit” (Dugard, 1978, 285). 39

Ubuntu is the shortened version of the saying Ubuntu ungamuntu ngabanye abantu, which simply means that we as people are people through other people.

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Reflecting on the same topic, Albie Sachs points out that the 1950s policy of promoting Afrikaners, “most of whom were known to be generally sympathetic to the Government,” to the Bench “did change the character of the South African Judiciary, but not in as total a fashion as some people had anticipated” (Sachs 1973, 257). As others have noted, some of the most vociferous opponents of the apartheid National Party policies— both on and off court—were Afrikaners (Joffe 2007; Broun 2012, 16–19; Clingman 2013).40 Although quite limited, the space which the entries into apartheid-era courts provided should not be underestimated. In the words of Penelope Andrews, “even small individual victories were an encouragement to a population suffering under apartheid, and, along with political actions taken by various groups…helped to legitimate the political aspirations of the great majority of the people whose rights were then being denied” (Andrews 2012, 4). Given the extremely controversial and manifestly discriminatory reforms introduced under apartheid, it is not surprising that the courts provided fertile territory for their contestation, or that the decisions of the courts did not uniformly favour the expansion of civil liberties and human rights. Nonetheless in the early 1950s the courts struck down legislation promoting segregation in public accommodations (Haynie 2003, 34). This was followed by the Harris cases, in which four voters successfully challenged the attempt to remove so-called Coloured persons from the common voters’ roll in Cape Province (Union of South Africa) via the Separate Representation of Voters Act.41 The courts were not afraid to declare these laws unconstitutional even though Parliament went back to re-enact legislation which achieved the same effect as the impugned Acts (2003, 34). In the same law, Parliament gerrymandered the composition of the courts in order to reduce their power of judicial review (2003, 35). But those few steps forward turned into giant leaps backward when in the 1960s the courts upheld security legislation that clearly took away the rights of political detainees (Dugard, 1978, 290–302). And perhaps to demonstrate that their liberalism had a limit, in a case that seriously stifled “academic and press comment on the administration of justice,” the courts 40

The most famous of these was of course Bram Fischer, who not only defended Nelson Mandela and his co-defendants and secured their acquittals in the Treason Trial of 1956 to 1961, but also was lead counsel in the Rivonia Trial (1963–1964) that led to Mandela’s life imprisonment, before he was himself charged in court and detained; Fischer was in fact the leader of the South African Communist Party (SACP). 41 See Harris v. Minister of Interior, 1952 (2) SA 428 (A.D) and Minister of Interior v. Harris, 1952 (4) SA 769 (A.D), and Dugard, op.cit., at 288.

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upheld contempt-of-court charges against a white academic who had criticized a judgment made under the Terrorism Act (1978, 294–302). The same attitude extended into the area of most contention under apartheid— the ownership and distribution of land. A case decided in 1961 demonstrated just how perverse the definition of “public interest” could be in the hands of a government with unchecked power, where the rules of equality have been inverted. The Group Areas Act of 1950 (with subsequent amendments throughout the 1950s) allowed for areas to be claimed for the exclusive use of a particular racial group. In Minister of the Interior v. Lockhart,42 a group of South Africans of Indian extraction challenged a Durban zoning order on the grounds that it resulted in substantial inequality in its treatment of Indians. They argued that inequality was not authorized by the Act. The court of first instance held that the purposes of the Act could have been carried out largely without partiality or inequality and accordingly set aside the challenge. On appeal, the higher court overturned the lower court’s decision, stating: The Group Areas Act represents a colossal social experiment. It necessarily involves the movement out of group areas of numbers of people throughout the country. Parliament must have envisaged that compulsory population shifts of persons occupying certain areas [would] inevitably cause disruption and, within the foreseeable future substantial inequality.

Reviewing Lockhart, Llwelyn Angus points out: “The public interest requirement could always be construed in such a way that it could lead to potentially disastrous policies, legislation and judicial decisions” (Angus 2011, 8). In other words, the public interest under apartheid was in favour of legalized segregation. For Albie Sachs, the Judiciary of this period might have been called upon to answer the charge that “instead of investing their office with the prestige associated with the pursuit of justice, they…allowed [that] prestige…to be used for the pursuit of manifest injustice” (Sachs 1973, 13). This is especially true of the manner in which courts were engaged in enforcing the pass laws, sanctioning long prison terms and executions in criminal trials, and imposing and protecting the basic infrastructure of both grand and petty apartheid. It should also be noted that the lower courts, which had jurisdiction over the more repressive elements of the legal apparatus, were much more draconian in enforcing apartheid laws than their higher-level counterparts. The difference may be explained by the fact that the higher you go in the court structure, the less courts have to deal with 42

1961 (2) SA 587 (A).

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the nuts-and-bolts implementation of the law, being engaged instead in interpreting the finer points of its application. By the 1980s the combined impacts of internal resistance movements such as the Soweto uprising of 1976 along with international opprobrium and sanctions were beginning to have an effect on the decisions of the South African courts in matters of civil liberties and human rights. Gradually, the courts began to return to the comparatively “liberal” approach of the 1950s court. The case of Komani NO v. Bantu Affairs Administration Board Peninsula Area43 challenged the infamous “pass laws” (dompas in Afrikaans), which limited the rights of Black people to reside in urban areas. Komani possessed a permit allowing him to live in the Guguletu township of Cape Town as he had worked there for many years. However, his wife did not. The decision in the case secured the rights of wives and children to cohabit with employees in urban areas and marked a significant turning point in the struggle against one of the most visible features of the apartheid regime, which had drawn international attention to townships such as Sharpeville (Abel 1995, 24–43). The nearly contemporaneous case of Rikhoto (1995, 43–61) challenged the Urban Areas Act for placing impediments in the way of Black Africans seeking to remain in White urban areas. Together, according to Richard Abel, these two cases represented defining moments in the legal struggle against apartheid, revealing both its strengths and limitations. The choice of a legalistic strategy contrasts sharply with earlier challenges to the hated pass laws, from the 1952 Defiance Campaign through the women’s resistance in the Western Transvaal to the 1960 Sharpeville massacre (1995, 61).

Behind the two cases was the work of organizations such as the Legal Resources Foundation (LRF), which together with other liberal White groups like Black Sash devoted themselves to a concerted attack against the system. But, once again, that is the official story. The untold story is that of the many Black lawyers who were active against apartheid, both individually and through organizations such as the National Association of Democratic Lawyers (NADEL) and the Black Lawyer’s Association (Broun 2000). Of course, most prominent among them was Nelson Mandela, who—together with Oliver Tambo—from 1952 until his capture, trial, and detention in 1963 ran an active practice of law that was specifically designed to cater to the Black African majority (Mandela 1995). Though Mandela may not have been a public interest lawyer in quite the sense we know them today, he was “legal aid and public defender wrapped 43

1980 (4) SA 448 (A).

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into one” (Hansford 2014). Certainly, he provided inspiration for Black lawyers like the late Victoria Mxenge, who was assassinated by the apartheid regime for being a prominent legal activist against segregation.

PIL in a Post-Apartheid Dispensation The combination of civil society groups’ anti-apartheid work both inside and outside the country, coupled with the ANC’s Freedom Charter, and the the stark features of socioeconomic deprivation embedded in the apartheid system came together to produce a constitution in 1994 that sought to radically transform the landscape of human rights protection and adjudication in South Africa.44 The 1994 constitution contained a comprehensive bill of rights incorporating not only the more traditional civil and political rights, but also justiciable economic and social rights within the main body of the instrument. It established a Constitutional Court with exclusive jurisdiction to consider petitions alleging contraventions of the instrument, and it was the first national constitutional instrument in the world to unequivocally recognize and enshrine LGBTI rights. The instrument also adopted a radically different approach to Customary Law, elevating it to the same status as other laws and placing an emphasis on its “living” character (Himonga et al. 2014). Early decisions of the South African Constitutional Court seemed to provide an indication of a Judiciary willing to tackle some of the most serious issues facing a wide cross-section of the previously marginalized and dispossessed section of society, the Black African majority (Sachs 2009). In other words, the court immediately became an integral participant in the post-apartheid transformative agenda (Roux 2004, 93). Its first case—S. v. Makwanyane & Another45—led to abolition of the death penalty. Then, in a series of cases starting with Soobramoney v. Minister of Health, Kwazulu-Natal,46 the Constitutional Court signified its willingness to give serious judicial scrutiny to right-to-health claims made against the State, and to bring to the table a debate about State resources and their allocation within the framework of economic, social, and cultural rights. Although ultimately the court did not find that there was a right to kidney dialysis on demand for seriously ill patients, it signified a willingness to critically interrogate State protestations about resources rather than taking them on face value. 44

See the early case of De Klerk & Anor v. Du Plessis & Ors (1994) 6BLR 124, at 128-9 (Supreme Court of South Africa). 45 1995 (3) SA 391 (CC). 46 1998 (1) SA 765 (CC).

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In the Minister of Health v. Treatment Action Campaign,47 the court ordered the government to reduce the risk of mother-to-child HIV transmission by making anti-retroviral drugs available in the public health sector and to take reasonable steps to extend testing and counseling facilities at public hospitals and clinics. The famous housing/shelter case of Grootboom48 involved a homeless community challenging the local municipality’s refusal to provide them with temporary shelter. Citing provisions for housing and shelter in the Bill of Rights, the court held that the State’s failure to provide temporary shelter violated its obligation to “take reasonable…measures within its available resources” to provide access to adequate housing, and accordingly declared the housing program as applied in the municipal area in question unconstitutional to this extent” (Para. 99; Roux 2004, 95). In the more recent case of Khosa v. Minister of Social Development,49 the court declared certain provisions of South Africa’s social welfare law unconstitutional for denying benefits to permanent residents (basically immigrants from neighbouring African countries). The decision certainly signified a much more assertive posture towards review of governmental action than the court had taken in the past (O’Connell 2013, 62–66).50 All in all, with these decisions on social and economic rights, along with others on the death penalty, procedural rights, and the rights of women, the South African Constitutional Court sealed its reputation as one devoted to a different reading of the judicial function (Klug 2010, 270–271). Since the recently celebrated twentieth anniversary of the South African Constitution, reflections on both the politics of the African National Congress (ANC) and the jurisprudence of the Constitutional Court have been much more critical. The ANC’s adoption of a neo-liberal, pro-growth economic strategy is accused of having exacerbated inequalities. Consequently, the government has been accused of talking “left” but walking “right,” ignoring the plight of the masses who even now remain dispossessed of basic goods such as shelter, water, and education. Despite universal acclaim among jurists and legal scholars about the breath of fresh air the Constitutional Court injected into the stagnant field of jurisprudence, the claim has been made that the Court is overly deferential to the Executive and the Legislature; that its remedies have been lacking in effect; and that the government has failed to make a serious dent in 47

2002 (5) SA 721 (CC). 2001 (1) SA 46 (CC). 49 2004 (6) BCLR 569 (CC). 50 See also the case of Rail Commuters Action Group v. Transmet Ltd. 2005 (4) BCLR 301 (CC). 48

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the conditions of poverty and growing inequality in the country (Davis 2015). Whereas the freedom rights—such as the right to vote, to associate and to live wherever one wants—have largely been realized, the “bread rights” remain elusive (Stewart 2014). But even the so-called freedom rights have not been free from challenge in post-apartheid South Africa. The Marikana massacre, in which thirty-four striking mine-workers were shot dead in 2012, was eerily reminiscent of the apartheid era (Twala 2012). Related to traditional working class discontent are the service delivery protests and the rising movements against evictions and the lack of housing and shelter (Mbazira 2013). Xenophobia against migrants has led to many tensions between indigenes and so-called makwerekwere (Matsinhe 2011). The post-apartheid regime on refugee law has proven to be riddled with inadequacies that give the lie to exuberant claims of a “rainbow” nation (Handmaker 2011). To cap it all, the position of the courts has not always been progressive on these issues, exposing the soft underbelly of discrimination by a post-apartheid South Africa against non-South African “others.” Ironically, that differential treatment is often targeted against fellow Black people. Nevertheless, it is clear that the court’s decisions have at a minimum significantly changed the narrative on these issues (Cornell 2014, 30–31). We can now examine the evolution of PIL within the East African legal system under what some observers have described as a new age of constitutionalism.

East Africa’s Era of “New” Constitutionalism? As is well known, Tanzania led the way in establishment of a singleparty government in East Africa. Well before independence, the Tanganyika Africa National Union (TANU) was the dominant political force on the mainland, while contention for power in Zanzibar pitted an Arabdominated coalition—between the Zanzibar Nationalist Party (ZNP) and the Zanzibar & Pemba Peoples Party (ZPPP)—against Sheik Abeid Amani Karume’s Afro-Shirazi Party (ASP). Relations between the two sides were complicated by the colonial history of Zanzibar’s two main islands— Unguja and Pemba—where the British actively encouraged a system of divide-and-rule, and the Arab community dominated over indigenous Africans. In the final election preceding independence in mid-1961, the ZNP/ZPPP coalition won thirteen parliamentary seats to the ASP’s ten, entitling the coalition to form the government with the Sultan designated as constitutional monarch and head of state. In the Legislative Council elections for self-government on Tanganyika Mainland in 1960, TANU won all but one of the seats up for conten-

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tion, resulting in a de facto one-party state on the mainland. After independence, public opinion—aided by Nyerere’s charismatic personality, powers of persuasion, and vision of cohesive national unity—came round to the position that this state of affairs should be incorporated into the constitution (Carter 2014). Pursuant to this goal, the National Executive Committee of TANU met and resolved that Tanzania become a one-party state. On January 14, 1963, Nyerere announced this resolution and created a Presidential Commission to consider what changes were needed to realize this ambition. Appointed on January 28, 1964, the Commission reported on March 22, 1965, with recommendations to effect the legal transition from a multi-party democracy to a single-party state and government. In the meantime, Zanzibar had been rocked by a revolution. Led by the Ugandan Police constable John Okello masquerading as a Field Marshall, the ASP assumed power, and following secret negotiations between Nyerere and Karume, the two countries were joined on April 26, 1964 to become the United Republic of Tanzania. While TANU and ASP were the respective ruling parties on the mainland and in Zanzibar, it was not until 1977 that they merged to form the Liberation Party, which adopted the Kiswahili name Chama Cha Mapinduzi (CCM) to become the sole party for the whole country. Julius Nyerere remained in power until 1984, when he retired after twenty-three years as president. He left behind a legacy of national unity but also a country in serious economic trouble. Pressure for political change in the late 1980s and early 1990s—captured in the Kiswahili term mageuzi—eventually resulted in a transition from the nearly three-decade old single-party state back to a multiparty dispensation (Wambali 2009). In sum, TANU (through the reincarnated CCM) has enjoyed an uninterrupted hold on power in Tanzania since independence in 1961. We are now better equipped to understand the story of Christopher Mtikila’s twenty-year struggle for the right to stand for election as an independent candidate, as described at the beginning of this chapter. His challenge was in essence a struggle against the enduring character of the underlying structures of dominance erected and sustained in the immediate post-colonial era. Benevolent though it may have been, the structure in Tanzania assumed the form of a single-party civilian dictatorship. Despite the country’s transition to a multiparty political dispensation, Mtikila’s struggle to gain legal recognition for the rights of individuals to run as independents pulled up against the long history of CCM dominance in Tanzania’s political scene. It directly challenged the atavistic claim that the party had delivered on the pledge of sustaining national unity. It disagreed with the assertion that allowing independents to stand in a fragile

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political context such as existed in the immediate aftermath of the transition to a multiparty arrangement would be dangerous. Indeed, that assertion was a central plank of the government’s argument in defending its case at the African Court. Despite having made the transition from a oneparty to a multi-party arrangement, Tanzania to this day carries a degree of nostalgia that harks back to the good old, “harmonious” days, which in essence were days of political monopoly. To make matters worse, the enduring dominance of CCM reinforces some of the structural conditions from the past (Bakari & Whitehead 2013). This explains why to date there has still not been any movement on the independent candidate issue, despite the judgment of the African Court against the government on this matter. In this respect, Tanzania has not been radically different from its East African sistren, despite the different directions each country travelled. The differences were essentially a question of degree, not substance (BergSchlosser 1989; Mabirizi 1989 and Kisanga 1987). Despite pursuing different models of ideological and socioeconomic ordering, in the immediate post-independence era the dominant ethos in all three East African countries gave primacy of place to the idea of national/public security. Public security—a euphemism for regime stability— was in the “public interest.” In such an environment, the State was reified as the embodiment of public interests. This context witnessed justifications for detention-without-trial, executive excess, and judicial reluctance to overturn or sometimes even review legislation that was patently unconstitutional.51 Thus, PIL actions were rare, and many that arose were summarily snuffed out by courts of law with little interest in protecting those oppressed or marginalized by the system (Ghai & McAuslan 1970, 428– 430.) As discussed in chapter 2, this was an “era of technicalities,” when barriers erected by locus standi and the like only rarely allowed substantive constitutional or human rights issues to see the light of day, and those that did emerge were quickly disposed of (Ngugi 2007, 8). In the Kenyan case of Ooko v. the Republic,52 the court refused to inquire into the merits of the applicant’s detention, even as it issued an order that the grounds thereof be communicated to him. Although a number of individuals were tortured by Kenyan security service personnel, the record of courts in extending solace to victims was abysmal (KHRC 2009, 29–31; 37–82). 51

See, for example, the Kenyan case of George Anyona v. Zachary Onyonka and Another, Nairobi High Court Civil Case No. 3346/79 (unreported) and the Tanzanian case of Attorney General v. Lesinoi Ndeanai & Others, (1980) TLR 214. 52 High Court, Civil Case No.1159 of 1966, unreported; in Ghai & McAuslan, id., at 437–438.

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Courts were also unduly submissive to the executive. Thus, in the Kenyan case of Wangaari Mathai v. Kenya Times Media Trust Ltd.,53 in which the plaintiff sought to stop the construction of a multi-story building in the iconic Uhuru Park in Nairobi, Justice N. Dugdale ruled that matters of public interest could only be litigated by the Attorney General, effectively ensuring that cases challenging the status quo would be stillborn (Kaluma 2009, 194). Coupled with what Joel Ngugi referred to as the practice of unprincipled “avoidance” of human rights, the courts in Kenya developed a slew of technical rules that essentially deprived them of the power to address the grievances of those who came to them for relief (Ngugi, 2007, 8–9). Reflecting on the situation in Uganda, Frederick Ssempebwa condemned the early post-independence courts for refraining from “adjudicating on questions relating to matters ‘political.’ On the other hand,” he said, “they have provided judicial connivance to political adventurers and coup makers whose subjugation of the people has been held to be the main reason for legitimacy” (Ssempebwa, 154). In the early period after independence the Tanzanian courts were only infrequently called upon to adjudicate on similarly sensitive matters— perhaps because of the absence of a written Bill of Rights in their constitution, but also on account of the single-party state that was in place (Shivji & Majamba 2011, 4).54 Indeed, a serving Chief Justice suggested without irony that there was no problem with a judicial officer becoming a member of TANU (“if he wishes”), which at the time was the only political party allowed to operate in the country (Aguda, 1981, 33). Although Mtikila’s case stands in a class of determination all of its own, since the early 1990s many other East Africans have chosen to pursue a legal remedy through the mechanism of PIL. East Africa has been witness to a veritable explosion of cases ostensibly filed in the public interest. Several factors can explain this “new era of constitutionalism.” First, there was the courts’ gradual relaxation of the rules of locus standi as tracked in chapter 2. Secondly, East Africa also witnessed the reformulation of constitutional governance instruments, whether by constituent assembly reform or via judicial intervention. Each of the three East African countries has undergone a period of constitutional review: Uganda from 1989 to 1995, Kenya from the early 1990s to 2010, and Tanzania only recently, in an exercise that culminated with the submission of the Justice Warioba report (2013) and the establishment of a Constituent Assembly to debate a new draft constitution. Uganda and Kenya produced 53 54

Civil Case No.5403 of 1989; [1989] KLR 267. Tanzania only got a Bill of Rights incorporated into its constitution in 1984.

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constitutional instruments that bolstered human rights groups and social movements looking for increased space in which to push for democratization and enhanced social justice via public interest litigation. As for Tanzania, the jury is still out as the process of debate and adoption of the instrument was mired in controversy from start to finish (Paliwala 2014). With the election of a new president in 2015, the process seems to have been abandoned. In terms of the new approach to PIL, Uganda led the way with articles 50 (opening up locus standi), 126 (on circumventing technicalities), and 137 (on the interpretative jurisdiction of the Court of Appeal sitting as a constitutional court). Article 43 is especially important because it defines what “public interest” is not and exposes the excessive abuse and misuse to which the term was subjected in post-independence Uganda. The provision explicitly states that public interest does not include political persecution, detention-without-trial, or “any limitation of the enjoyment of the rights and freedoms prescribed by this chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this constitution.” The last of these provisions has been the subject of fairly extensive judicial interpretation. For example, Justice Kiryabwire in United Reflexologists of Uganda Ltd. & Alleluia Reflexology Health Solution & Nutrition Centre Ltd v. Hon. Stephen Malinga, Minister of Health and the Attorney General55 stated, “a decision in the public interest, however, must still meet the tests in the constitution or put differently must be reasonable not to be ultra vires.” The range and diversity of cases filed demonstrates that virtually the whole Bill of Rights has been tested, and that by a wide array of litigants, although the State represented by the Attorney General is the most prominent respondent. Over the twenty-two-year period since the enactment of a new constitution in 1995, more than three hundred cases seeking an interpretation of the Constitution have been filed. By contrast, fewer than five such cases were decided over the twenty-six years from independence in 1962 to the year 1986. Of those, only one case could be regarded as having been successful. In the post-1995 era, the range of issues successfully covered includes not only the varied provisions in the Bill of Rights, but also some “sacred cows” of earlier days. For example, the court in the case of James Rwanyarare & 9 Others v. the Attorney General56 stated (in reac-

55

HCT-00-CC-MC-12 – 2011 at 13, citing the case of Andrew Kaggwa & 5 Others v. Hon. Minister of Internal Affairs, (HCMC No.105/2002) which held that the Public Interest does not trample Natural Justice. 56 Constitutional Application No. 6 of 2002.

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tion to a law which barred the issuance of injunctions against the Government): That argument cannot hold under the present Constitution when judicial power is derived from the people and is exercised by courts in the name of the people. There is no sound reason under the Constitution why Government should be given preferential treatment at the expense of the ordinary citizen. That provision of the Government Proceedings Act is an existing law which under article 273(1) should be construed with such modifications [and] adaptations as may be necessary to bring it into conformity with the Constitution.57

Public interest litigation in Kenya found new impetus under the 2010 Constitution, especially through Article 22, which expressly allows suits brought in the public interest (Ghai & Ghai 2011, 173–174).58 Article 23(3) gives the High Court powers to grant appropriate relief including: a declaration of rights; an injunction; a conservatory order; a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights; an order for compensation; and an order for judicial review. Article 258 provides for the enforcement of the Constitution. In sum, the arsenal for pursuing public interest litigation in Kenya is now formidable, especially since the instrument does away with the dichotomy in the Ugandan constitution between the enforcement of rights (which can be done by any “competent court”) and interpretation (a power only exercisable by the Court of Appeal sitting as a Constitutional Court) (Tibatemwa 2002). Although some observers date the first public interest case in Kenya to the Public Law Institute v. Kenya Power & Lighting in 1986, it is quite clear that there were earlier cases, although they may not have been described as such (Odhiambo 1986, 265). In any event, the general view of the courts in Kenya was that such cases would not be entertained for a variety of reasons. As momentum gathered with the promulgation of the new constitution, several cases began to articulate a different vision for public interest litigation and the role of the courts in this respect. Thus, in the case of Jesse Kamau & 25 Others v. Attorney General,59 the Applicants had sought, among other things, a declaration that Section 66 of the 57

Id., at 7. See also the Court of Appeal case of Attorney General v. Osotraco Ltd., (Civil Appeal No.32 of 2002), and the earlier High Court decision of Osotraco Ltd. v. Attorney General, (High Court Civil Suit No. 00-CV-CS-1380 of 1986). 58 Between September, 2010 and May, 2013, over 200 cases of constitutional litigation were decided by the courts. For a sampling, see Kenya Law 2013. 59 (2010) eKLR Miscellaneous Civil Application 890 of 2004 (May 24, 2010).

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Constitution, which introduces and entrenches Kadhi’s Courts, infringes on the Constitutional rights of the Applicants to equal protection under the law as embodied in the Constitution and to that extent is discriminatory and unconstitutional.60 Specifically with the respect to the issue of public interest litigation, the Court stated: Rules of procedure, like any substantive law, are as valid and enforceable as substantive law. Rules of procedure, constitutional or other procedural law (like the Civil Procedure Act) are designed and enacted for the guidance of Plaintiffs or Claimants and the protection of Defendants or Respondents, and are a pillar in the dispensation of justice. In as much as no genuine litigant, or litigant with a justiciable claim should be turned away or locked out of the corridors or seat of justice.

In Kapi Ltd & Another v. Pyrethrum Board of Kenya,61 the question at issue was whether non-citizens could enforce their fundamental rights and freedoms under the Kenyan Constitution, and also whether private rights accruing out of contractual obligations could be canvassed in a Constitutional petition. Previously, non-citizens—especially immigrants and refugees—were given scant attention and suffered from virtual invisibility in the courts of law. In this case, however, the court held that non-citizens also had a right to enjoy and enforce the rights granted in the Constitution, subject to any limitations in the Constitution or Act of Parliament. In Momu Matemu v. Trusted Society of Human Rights Alliance & 5 Others,62 the court considered the issue of locus standi and stated: This Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the Courts, except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the arguments of lack of standing by counsel for the Appellant. We hold that in the absence of a showing of bad faith as claimed by the Appellant, without more, the first Respondent had the locus standi to file the petition.

60

The court referred to the decisions in Kenya Bankers Association v. Minister for Finance & Another [2002] 1 KLR 45, Ruturi & 2 Others v. Minister for Finance & Another (No.2), [2002] 1KLR 54, and Kenya Bankers Association v. Minister for Finance & Another (No. 3) [2002] 1KLR 61. 61 Petition 54 of 2012 (2013) eKLR (April 26, 2013). 62 Civil Appeal 290 of 2012 (2013) eKlr (July 26, 2013).

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Finally, the case of Kituo cha Sheria v. Independent Electoral and Boundaries Commission and Another63 concerned the issue of whether prisoners had the right to vote and whether the Respondent had violated this right by refusing them permission to do so. The court held that Article 83 does not exclude prisoners from being registered and consequently voting in an election. Furthermore, the court held that the state had the responsibility to ensure that all the people of Kenya—particularly those who are marginalized or vulnerable such as prisoners—were able to exercise this right. All in all, the courts in Kenya have taken up the provisions in the new constitution with vigour. As we saw with the decision in Mtikila No. 1, and albeit with mixed results, the courts in Tanzania have not waited for a new constitution before applying some of the principles developed elsewhere in East Africa. While constitutional review has yet to produce a new instrument in Tanzania, there is no doubt that the winds of change have blown through the country, bringing significant influence to the Judiciary (Masabo 2014). Thus, the decision by Justice Lugakingira in Mtikila No.1 is held up as a paragon of incisive and dynamic judicial reasoning, cited time and again in rulings throughout the region. The reasons for this are clear. The judge not only struck out against the limiting qualities of locus standi that had for so long plagued the operation of the Judiciary in his country, he also read the principles of public interest litigation into the Tanzanian Constitution when they were not explicitly stated to be there: The orthodox common law position regarding locus standi no longer holds good in the context of constitutional litigation.… In the circumstances of Tanzania, if a public spirited individual springs up in search of the Court’s intervention,…the Court, as guardian and trustee of the Constitution, must grant him standing. The principles of public interest litigation are expressed in the Constitution of Tanzania by vesting in every person the capacity of an individual by virtue of articles 12 to 24 of the Constitution, and the capacity of a member of the community by virtue of articles 25 to 28 of the Constitution, thereby equipping the individual with double standing to sue.

Lugakingira didn’t wait for a new constitutional instrument. He nevertheless eloquently captured the spirit of the moment. The same position was re-stated in the case of Julius Ishengoma Francis Ndyanabo v. AG,64 which challenged the constitutionality of provisions in the electoral law 63

(2013) eKLR Petition 574 of 2012 (January 21, 2013). Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No.64 of 2001; [2004] TLR 14; [2002] 3 LRC 699. 64

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requiring a petitioner who challenged an election result to deposit Tanzanian Shillings 5,000,000 as security for costs of the litigation. Justice Samatta stated, Access to court is, undoubtedly, a cardinal safeguard against violations of one’s rights, whether those rights are fundamental or not. Without that right, there can be no rule of law and, therefore, no democracy. A court of law is the “last resort of the oppressed and bewildered.” Anyone seeking a legal remedy should be able to knock on the doors of justice and be heard (Judgment at 25; Shivji and Majamba 2011, 10–11).

The conclusion that follows from an assessment of these developments is that PIL in East Africa has come of age and is developing as a prominent arena from which one can discern the direction of social and political struggles in the region. All of these initiatives could be said to amount to a “new” form of constitutionalism, if not quite yet a transformative one (Klare 1998, 150). One final observation needs to be made concerning this kind of litigation in East Africa. Despite it being perceived to be a lawyer-dominated arena, much of the litigation is driven by non-lawyer, “public-spirited” individuals (such as Mtikila in Tanzania, Andrew Okiya Omtatah Okoiti in Kenya, and Andrew Mwenda and Muwanga Kivumbi in Uganda). Several non-governmental actors have also been crucial in litigating issues of major concern to their different constituencies. Notwithstanding the increased litigation over women’s human rights, the PIL arena in all three countries is unfortunately still largely male-dominated. That is reflective of the wider structural constraints of the legal profession at large, a point that we shall return to. Despite this limitation, all the activity in this arena reflects first and foremost a rebirth of belief in constitutionalism. But secondly, and perhaps more importantly, it also marks the beginning of the end of a lawyer-dominated monopoly in a critical aspect of lawyering. Whether it actually marks the end of lawyer domination of this field remains to be seen. Nevertheless, East Africa’s new constitutionalism has not had a free run. Some of the biggest problems confronted in developing PIL jurisprudence have been the traditional doctrines of separation of powers and parliamentary sovereignty, relics (as we have seen) of the Common Law heritage that has been the bane of constitutional litigation in East Africa since independence (Mugwanya 2003, 74–78). Indeed, one of the very first post1995 cases in which the Ugandan court made a decision curtailing the powers of Parliament led to an Executive backlash, first via a constitutional amendment and secondly by a presidential verbal charge that the Judici-

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ary had overstepped its bounds.65 The point was eloquently (if erroneously) made by National Political Commissar of the ruling NRM, James Wapakhabulo. Arguing that Separation of Powers insulated the internal proceedings of Parliament from intrusion by the courts of law, he stated: Our constitution says that a judicial officer must not be told by any authority including Parliament how to do his or her job. Likewise, during his tenure of office, the President of Uganda is not bound to be sued or charged in any court of law. In similar strain, it is important that Parliament as the third organ of the state is also protected from interference by other organs of the state. The decision of the Supreme Court that opened internal proceedings to litigation in courts of law removed the protection which Parliament is supposed to enjoy. It destroyed the principle of separation of powers between the legislature and the Judiciary (Wapakhabulo 2001, 10).

In comparison to President Museveni’s reaction, Wapa’s position was decidedly mild. On national radio and television, the President expressed the view that judges were only meant to try cases involving chicken thieves and village trespassers. The President went on to issue a scathing attack against what he called the “confused” Judiciary (Ellet 2013, 147– 149). Supporters of the government were mobilized in public protest against the court, and a heightened situation of tension prevailed for several days (Tripp 2010, 89–90). The situation was diffused only when the Supreme Court agreed that the Act was unconstitutional but nevertheless upheld the referendum (Kirya 2003, 16). Despite the progress made in pursuing litigation that has opened the political space and made for a democratic and inclusive society, there are still holdovers. For example, in the case of Charles Mwanguhya Mpagi and Izama Angelo v. Attorney General,66 using the Access to Information (A2I) Act, the applicants sought to compel the government to release the production sharing agreements (PSAs) relating to Uganda’s oil resources. The Attorney General argued that release of the agreements would breach their confidentiality clauses. While noting the AG’s argument, the court determined that the applicants did not meet the legal standards set in section 34(b) of the Access to Information Act to demonstrate that the public benefit of disclosure would outweigh the harm. But negative executive reaction reached its apogee when the government deployed a paramilitary wing of the armed forces at the High Court 65

Paulo K. Ssemogerere & Others v. Attorney General, (Constitutional Appeal No.1 of 2001). 66 Miscellaneous Cause No. 751 of 2009.

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because Justice Sempa Lugayizi granted bail to suspects in a treason trial (Tripp, 2010, 90). The raid was executed by a group called the “Black Mamba Urban Hit Squad.” The suspects were allegedly members of the rebel Peoples Resistance Army (PRA), which was associated with Rtd. Col. Kizza Besigye (Kobusingye 2010, 128–133). The “sin” Besigye had committed was to announce that he was contesting the upcoming election against President Museveni. The government strenuously objected to the decision of the judge in releasing what it described as “terrorists” and showed its displeasure by storming the court and preventing their release. This led to the first case of industrial action in the history of the Judiciary and the legal profession to protest the actions of the executive (2010, 133– 136). Principal Judge, James Ogoola, penned the following poem, dubbed “The Rape of the Temple of Justice,” in commemoration and condemnation of the action: Black Mamba: They laid siege to the Fortress of Justice; Like mystic monks in mourning, dressed in black gowns, The Temple scribes stand, distressed. Their heads, begarbed in grey wigs, they shake in anguish. From their numbed lips, a gasp of moaning issues forth: bewailing the disgrace! bewailing the debauchery! becrying the desecration! (Ogoola 2006)

In many respects the negative reactions of the governments of East Africa recorded above are not surprising, even if in the case of Uganda they have sometimes been somewhat extreme. As Penny Andrews points out, “constitutional negotiation occurs against the backdrop of ongoing contestations about the meaning, purpose, and ideology of the newly established democracy and its constitution. The resulting constitution naturally reflects a compromise that mediates competing discourses of liberation” (Andrews 2011, 170). Being a compromise, the balance is a delicate one and the courts run the danger in responding to public interest litigation of courting remorse, ridicule and extensive backlash. Indeed, such over-stepping of the boundaries could risk the institutional integrity and respect enjoyed by the Judiciary (Ngugi 2007, 15). In a country like Uganda, with a history of militarism that it has failed to debunk, President Museveni’s vitriolic reaction in the referendum litigation and in the Kizza Besigye case demonstrates how fragile the judicial institution in such a context actually is. Such reactions should also be considered against the background of latent colonial governance structures inherited at independence. Nowhere are these tensions more apparent than in East African courts’ dealings with the issue of gender-based discrimination.

CHAPTER FOUR CONTESTING THE GENDERED AGENDA

This chapter moves the focus of analysis to a phenomenon that is often minimized, distorted, or simply ignored in the discussion on public interest litigation in East Africa: that is, the expression of gender relations within the law. In particular, what is the impact of the law on relationships between men and women and on the position of sexual minorities within society? For the purposes of this study, we are especially interested in how courts of law have responded to these issues and the consequent impacts of those decisions on social relations. Law has, to put it mildly, taken its time to recognize and fully accommodate the specific interests and status of women. It has been even less sympathetic and accommodating of sexual minorities such as sex workers and lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals. The gender biases and structural constraints in the law are legion, or as Mbote and Kabira have stated, “the language, logic, and structure of the law are male-created and reinforce male values” (Mbote and Kabira 2008, 15). The law also reflects and reinforces values that are largely heteronormative and strongly influenced by religion. As the Judiciary interprets and applies the law, it is equally clear why similar biases are often at play within this institution (Naggita 2000, 34–35). For a long time, the Rule of Law was a rule without women, and the struggle is still afoot to ensure that the Law fully incorporates women into its ambit as we advance further into the twenty-first century (Hallward-Driemeier & Hasan 2012). As was demonstrated with the passing of the Anti-homosexuality Act (AHA) in Uganda in early 2014, the struggle for sexual minorities is even more acute and conflictual (Jjuuko and Tumwesige 2013). Women and sexual minorities face especially serious problems gaining access to justice in general and access to East African courts of law in particular. For women and sexual minorities, gaining the right to be heard in the courts has always proven a difficult hurdle to overcome. To put it another way, locus standi has not treated women or sexual minorities favourably, whether in the English home of the doctrine’s birth or in its exported home in East Africa (Naylor 2005). The limitations on access have been

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both legal and socio-cultural in nature, ranging from restrictions relating to age, marital status, or property ownership to socially imposed elements of a patriarchal system such as concerns about female sexuality, attempts to protect women’s “honour,” and a variety of other strictures related to family structure. Despite the recent advances in some Western European and continental American countries, the idea of acknowledging sexual orientation as a ground for non-discrimination and legal protection remains controversial. While legal sanctioning of same-sex marriage has drawn the most media and political attention, there are multiple issues—beginning with basic survival and social acceptance—that are implicated in this debate. Given such a situation, law and legal struggles mediated through the Judiciary must occupy a central position in any analysis of these issues. As Tamale and Bennett point out: While law and judicial reforms are not a panacea for gender inequalities, the legal front is a central plank in this struggle as both shield and sword— a shield to protect women against discrimination and the violation of their fundamental rights, and a sword to challenge and overturn unjust sexist practices and to effect fundamental change to the status quo. While by no means a magic bullet, the law can indeed be a critical game changer in the gender political landscape (Tamale & Bennet 2011, 1).

The changes that law can introduce may focus on the most overt manifestations of patriarchy and exclusion, for example in the political arena (women’s underrepresentation), in labour and employment (equal pay for equal work), in education (access, equity, and non-discrimination), or with respect to sexual and gender-based violence (Muli 2004). The law can also focus on the structural conditions of exploitation and oppression that produce and reproduce lopsided relationships in the family, the community, and the state at large. Law determines whether or not a third gender is given recognition, and whether particular forms of sexual intercourse are criminalized or protected. Courts of law are thus crucial actors in this regard. Modhurima Dasgupta notes that in India the courts have played an essential role in substantially promoting and protecting women’s rights (Dasgupta 2002). In numerous African countries, courts of law have increasingly become battle grounds for addressing gender disparities in a wide range of areas. To a lesser extent, courts are also sites for confronting discrimination based on sexual orientation and gender identity (Ndashe and Sacco 2009, 26-34). However, one needs to be cautious. What may appear to be progressive interventions—such as the Tanzanian government’s attempts to change the policy and law on succession or any of the many issues that are successful-

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ly litigated on questions of equity and non-discrimination in East Africa’s courts of law—can be affected by a view of women’s rights as being primarily determined by “relationships” (Manji 1998, 659). As Beatrice Mwaka points out, women are more than simply appendages to men (wives, mothers, sisters, or daughters): “women are also farmers and workers, and where there is migrant labour, they remain behind as guardians of the land” (Odonga-Mwaka 2003, 248). Multiple factors affect the situation of women. Consequently, the struggle to ensure that they are able to fully engage with and benefit from the diverse ways in which they deploy their labour or interact with other members of society is necessarily a varied and protracted one. Law by nature must play a critical role in realizing the goal of more autonomy for women. We must examine not simply the manner in which legal interventions are made, but also their content: what kinds of interventions are appropriate in the circumstances? Are the strategies used to advance the cause of women’s emancipation applicable to the situation of sexual minorities? And lastly, how effective is justice delivered via a court of law in bringing about enduring social change? Given the diverse forces that influence gender relations in East Africa, the questions considered in this chapter will include the following: How does the degree of access to the courts influence protection of rights for women and sexual minorities? How does the composition of the courts influence these protections, or conversely, the extent to which these rights are ignored or violated? We begin with the issue of access and its implications for achieving manifestly progressive and liberating social, economic, and political conditions for women. Next we consider demographic issues in relation to composition of the courts, and the record of public interest litigation on women’s issues such as marriage, divorce, succession, and property rights. The chapter concludes by looking at the treatment of sexual minorities under the law: how has public interest litigation been used to address the many strictures imposed upon them by existing legal regimes? We examine the issue not only because of the gendered manner in which such groups have lawfully been treated, but also, and especially, because of its importance in the debate about public interest litigation.

Gender Justice and the Matter of Access Several factors serve to explain the phenomenon of gender-based discrimination. First, the manner in which relationships between men and women are socially constructed, producing masculinities and femininities, helps to reinforce differences. Access to justice reflects the manner in

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which society distributes power, resources, and opportunities, thereby determining the gendered divide between issues regarded as “public” or “private.” Although it is true that pre-colonial Africa was not free of this division or of the consequent limitations imposed on women politically, socially, and culturally, the fact is that with colonialism the divide was reinforced and bolstered with new forms of justification. As Morrell and Swart point out, colonialism was not simply an economic or racially motivated system; it was also a highly gendered one (Morrell & Swart 2004, 91). Judeo-Christian scriptures ostensibly gave the religious pretext for women’s subordinate position, while the highly patriarchal socio-cultural practices of the missionaries and colonial public servants formed a model for the treatment of women. The missionaries held out Western religion as a more enlightened and egalitarian model in which women’s autonomy was better recognized than in social structures existing on the continent at the time. In fact, however, for women the movement from the traditional/customary sphere to the so-called modern one amounted to trading in one form of social control for another (Kanogo 2005, 29). For both societies, the goal was the retention or creation of stable, patriarchal family structures. How was this achieved? Because the colonial legal system was structured along racial lines, Africans as a race hardly interacted with the superior courts. In the native courts, where African “justice” was dispensed by so-called “native” authorities, the orientation was toward effective control of the populace and the maintenance of law and order. As a result these courts were much inclined toward coercive and punitive measures: “Prison terms, fines, corporal and capital punishment were the main sanctions of the colonial criminal justice system” (Oloka-Onyango 1993, 14). Such measures largely ensured control of the men. Patriarchal rules on adultery, divorce, and elopement, to mention a few, exerted the necessary control over women in the home. On the other hand, discriminatory practices and conditions extended that dominance outside the home as well. The mechanisms deployed were both legal and extra-legal, mapping those already in place in the colonial country. Strictures that prevented women from accessing justice in Victorian England were exported to the colonies with only slight modification. Once there, they linked up with local African chauvinistic patriarchies that colonialism privileged with political and economic power.1 Colonial African women 1

Such coupling was evident in the 1900 Buganda Agreement, which included only three women in the distribution of the over 19 thousand square miles of land that

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nevertheless resisted many of these rules in different ways (Manuh 1995, 214). Aside from the racial, there was also a clear pattern of gender discrimination in the courts’ treatment of women. In non-criminal cases that did reach the higher level of the judicial structure, the main litigants were men. There were many reasons for this: often women lacked the resources to pursue their issues at higher levels; and legal and social restrictions as well as other obstacles simply barred them from doing so. Consequently, only a handful of the cases recorded in colonial law reports to have reached the higher courts directly addressed issues of female oppression and male domination, although cases on inheritance, family relations, and sexuality may have done so indirectly (Mbote 2001). In addition to patriarchal and racial factors, there was a third, perhaps more debilitating, dynamic at work in the East African colonial court systems. The courts’ attitude toward Customary Law—and the various relationships (marital, proprietary, or social) constructed under the colonial regime—had a strong influence on access to justice according to gender. Customary Law has been presented as a holistic representation of the existing social, economic, and political relations within pre-colonial African society. By describing such law as “customary,” the colonialists sought to distinguish it from the imported law which they introduced. But in doing so, they established an implicit hierarchy between the two. There were both explicit and concealed biases that the colonialists harboured towards Customary Law. According to Mubiru Musoke, the views of colonial courts on Customary Law were divided. One approach was to let this species of law die a natural death, “because there was no need to strangle a drowning victim” (Musoke 1978, 150). An alternative approach was to actively discourage its development or application. There was a third approach—that of modification—in other words the attempt to read into Customary Law western colonial notions of marriage, property ownership, inheritance, and the like (Kameri-Mbote 2001, 6–12). Whichever attitude was adopted—benign neglect, active disparagement and negation, or attempted modification—the context in which Customary Law could be applied was highly disputed, with the resultant negative impact falling heavily on women. To cite one example, rural male elders established forms of marriage they labeled as “customary” that were were redistributed. The three were the Queen of England (nine thousand square miles); the Namasole, Queen Mother to the infant king Daudi Chwa (sixteen square miles); and the King’s grandmother (mother to deposed King Mwanga) (ten square miles). The rest of the land was distributed among a coterie of male chiefs (Wengi 1997, 100–102).

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in fact alien to pre-colonial notions of the institution but were accepted by the colonial authorities because they conformed to colonial ideas of how women and family property should be treated and controlled. At the same time, the institutions of the colonial state could pick and choose which customary forms of marriage they would accord recognition. In the infamous criminal case of R. v. Amkeyo,2 which concerned the admissibility of evidence given by the wife of an accused person in a criminal trial, the question was whether the term “wife” could be applied in a polygamous relationship; if a woman was deemed not to be married to the accused, then she could testify against the husband. The judge in the case, Chief Justice Hamilton, stated: “the use of the word “marriage” to describe the relationship entered into by the African native with a woman of his tribe according to tribal custom is a misnomer which has led…to a considerable confusion of ideas.” The case of Rex v. Mwakio s/o Mwanguku3 was even more condescending, with the Judge stating, “it is unfortunate that the words ‘wife’ and ‘marriage’ have been applied in this connection. If only the woman party had been described as a concubine or something of the sort, the question could never have arisen.” Thus, not only did the judges denigrate a social relationship that lay at the very foundation of the African familial structure, they also relegated women to a secondary role within the structure.4 Colonial administrators and missionaries were of one mind in viewing African marriage arrangements as “backward” and dominating of women, in part because of practices such as polygamy, “bride purchase,” child betrothal, and the ostensible lack of property rights. More recently, some have taken the view that African women prior to colonization were less marginalized than has hitherto been assumed, especially in comparison to their status after colonialism took hold. This argument, although it could be viewed as an attempt to romanticize the pre-colonial past, is in fact based on the essential difference between pre-colonial custom—which was negotiable and not rigid, and colonial Customary Law—which was prescriptive and thus binding. In the former there was no state intervention or sanction; rather the arrangements were the subject of negotiation between 2

(1917) 7 EALR 14. [1930] 14 KLR 133. 4 That position remained the dominant view of the Judiciary (Abdulrahman Bin Mohamed and Another v. R [1963] EA 596 (Uganda); judgment of Sir Ronald Sinclair P). It was not until the case of Alai v. Uganda [1967] EA 596 that Sir Udo Udoma, then Chief Justice of Uganda, interpreted the phrase “any married woman” to include wives under Common Law as well as wives under customary law. See also Uganda v. John Ekudu [1975] HCB 359. 3

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the two parties, under loose supervision of the family, clan, or community. As Customary Law evolved during the colonial period, marriage arrangements were required to have a stamp of approval from the state, through local administration or the courts. According to this argument, it was under the rearticulated notions of Customary Law—as dictated by the male patriarchs empowered by the colonial system and colonial judges such as Hamilton—that women’s access to justice suffered the most. In other words, Customary Law denuded custom of its essentially voluntary—and hence negotiable—character. However, the situation is more complex than that. As Amkeyo’s case demonstrates, through the relegation of a wife into a mere concubine, the law became an instrument of politics as well as a language of legitimation (Manuh 1995, 214). In other words, the system was prejudiced by nature of its operational rules against giving attention or respect to women. This was true regardless of whether the operating system was Customary Law or Common Law, with its colonially-imposed rules and prescriptions. Many of the notions of marriage, divorce, and succession introduced by colonialism reinforced the patriarchal family rather than reforming it. This approach limited the choices that women had, undermining their capacity for self-empowerment (Todres in Ellmann et al. 2010, 54). Also, family and property (or land) law were carved out from other arenas of legal practice in order to retain lopsided structures of social organization and to reinforce the dominance of powerful men (Khadiagala 2002, 1–13). This structure allowed “those in power [to] provide poor, disempowered men with a sphere in which they [could] assert their dominance and exert control without threatening the broader societal power structure and those who [had] authority” (Khadiagala 2002, 54). The consequent denial of justice embedded within the law was in fact a reflection of the political economy introduced via the colonial system. As Okoth-Ogendo points out, by promoting the development of new land use systems and in particular of permanent cash crops under restrictive tenures, colonialism not only split the family economy into subsistence and monetary sub-sectors, it completely transformed the role of women in that economy. For they lost effective control of the family economy, while at the same time continuing to supply the labour necessary for both sub-sectors (Okoth-Ogendo 1982, 52).

The introduction of colonial property law, with individualized land tenure, transformed the role of women from that of landholders with guaranteed communal property rights to that of simple labourers (Khadiagala 2002, 53). Even where tenure remained communal, the dominant view was

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that under Customary Law women could never own land or property, let alone inherit it (Asiimwe 2001). This was clearly a corruption of tradition—a view promoted by the African male patriarchs acting as overseers on behalf of the colonial power. Yet a similar dispossession of women took place in a wide range of social and economic spheres, extending from marriage and inheritance to, eventually, employment and political participation. Labour migration, urbanization (with all its implications), and the development of a monetary economy added further layers to this complexity, with new pressures causing gender transgressions and disruptions in the relationships between the sexes (Kanogo 2005, 3). As Bennet points out, “the advent of capitalism opened new opportunities for people throughout Africa and forced women to play roles never expected of them by traditional society; its long-term effect was to downgrade or marginalize women in both the family and market place” (Bennett 1995, 84). It is only in more recent times that efforts have been commenced to provide a different, more nuanced and gender-sensitive rendering of Customary Law, which counters the dominant view that custom and the rights of women must always be in conflict (Tamale 2008, 47–69; LEMU 2014; Tripp 2004). Indeed, as Celestine Nyamu points out, the more instructive line of inquiry is to examine the complex ways in which Customary Law interacts with government policy, for it is often in this interaction that the position of women is undermined with regard to control of economic resources: “Customary land law has influenced and, in turn, has at the same time been influenced, altered and reproduced in government policy” (Nyamu 1998–99, 31).

Addressing Questions of Quality from a Quantitative Perspective To what extent does the gender makeup of an institution affect the manner in which it operates and delivers its decisions? This question has long been at the centre of studies on affirmative action, political participation, and social exclusion, especially of dispossessed social and ethnic minorities (Tamale 1999, 76–86). By contrast, there has not been much work done on how the decision-making process in courts of law is affected by the makeup of the court. Yet there can be little doubt that this will be a telling indicator on a wide range of issues. Throughout the history of colonial East Africa, the courts of all three countries were bereft of a single woman judge or magistrate. Likewise, the Bars of all three countries before independence were an exclusively male

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domain. These conditions should not be surprising; they simply reflect the biases and structural limitations imported from the imperial country and imposed upon African women. Despite the thousand-year history of the Common Law, there were no female members in the English Bar until 1924. Furthermore, the first female “Law Lord” in the history of UK superior courts joined the Bench in 2004 and rose to become the only female on the twelve-judge Supreme Court in 2013 (Bowcott 2014).5 Even in the twenty-first century, the face of justice in the UK is still largely a male one. As Table 4.1 below demonstrates, a similar pattern developed in the East African context. Although women were serving on the lower Benches within a few years following independence, their climb to the upper echelons of the Judiciary took considerably longer. The earliest appointment of a woman to a High Court in East Africa took place in 1974—over a decade after independence. In Uganda the process took all of twenty-four years. Name

Country

Julie C. Manning

Tanzania

Joyce Aluoch

Kenya

Laeticia Eulalia Mary Kikonyogo

Uganda

Date of Appointment January 2, 1974 June 5, 1974 February 20, 1986

Date of Retirement 1975 October 12, 2009 February 27, 2010

Position at Departure High Court 6 judge Justice of Appeal Deputy Chief Justice

Table 4.1. Pioneer Female Judges of East Africa Source: Court of Appeal of Tanzania, The History of Administration of Justice in Tanzania, Mathews Bookstore & Stationers, Dar es Salaam, 2004; author research.

It is hardly necessary to analyse the inequity of a judicial system that only began to fully incorporate women into its structures decades after 5

By contrast, in the U.S. the first women to gain admission to the Supreme Court Bar was Belva Ann Lockwood, in 1879, while the first female Justice was Sandra Day O’Connor, appointed to the court in 1981 (Gutgold 2012, 5). 6 Manning served as a judge for a brief period before being appointed Minister of Justice and never returned to the Judiciary. No other woman was appointed to the High Court Bench until the elevation of Justice Eusebia Nicholaus Munuo from magistrate to the High Court on April 1, 1987 (Court of Appeal of Tanzania 2004, 132). Given Manning’s short tenure it is often (wrongly) assumed that Munuo was Tanzania’s first female judge (Widner 2001, 341).

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independence. The facts in this instance speak for themselves. In spite of that, there are many arguments that seek to justify the status quo, the first being that quantitative measurements can obscure qualitative issues. It is not so much how many women you have on the Bench, goes this argument, but how the men on the court make gender-sensitive decisions. Aren’t male judges sensitive to the ways in which justice is gendered? Can’t men also be alive to the specific concerns and interests expressed by female litigants? Don’t they give judgments that concretely reflect such sensitivity? Finally, the pundits ask, what do women do once vested with judicial power? Are their actions markedly different from men’s? Such arguments fail to grasp the essential point that, just as racial composition affects adjudication over issues between Whites and persons of colour, the gendered makeup of any institution will certainly have an influence on the way issues between men and women are addressed. As many studies on the structures of government and other bodies have demonstrated, gender makeup significantly impacts the methods deployed by the institution, just as racialized structures do (O’Connor & Azzarelli 2014). There are running debates as to whether the presence of women on the courts fundamentally alters the manner in which justice is done—or simply the way it is perceived to be done. Both are important, but nevertheless distinct. This is a point taken up in the following parts of the chapter, starting with the manner in which cases implicating gender relations have been decided in the courts.

Women in the East African Courts: The Personal and the Political Drawing from the colonial court attitudes of disdain and disregard for the status and rights of women, all three East African independence constitutions initially contained exceptions to the application of nondiscrimination provisions in personal law, custom, and culture. Combined with their failure to bar discrimination on the basis of “sex,” these instruments offered scant protection for the rights of women. Hence, early cases in post-independence East Africa are replete with manifestly gendered court opinions and decisions. For example, in Uganda v. Stephen Apai,7 the accused was charged with rape. In giving her testimony, the complainant, Awor, asserted that the accused had “made me his wife.” Justice Lugayizi acquitted the accused because, in his view, the evidence of the complainant was “vague and meaningless.” The judge went on to state, 7

CSC No. 23 of 1994.

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“the complainant has only herself to blame for the fact that this case collapsed…. She stubbornly refused to say exactly what took place inside the accused’s hut on the day in issue.” The decision in this case was problematic for a number of reasons. A more sensitive judge would have realized that the recourse to euphemisms by the complainant was not because the assault did not happen. Rather, her language reflected first the general coyness about speaking of sexual matters in Ugandan society, with indirect or euphemistic explanations commonly substituted for what the courts might consider “plain language.” Secondly, the complainant was obviously traumatised on account of the assault, having not only to confront her assailant in court, but also to deal with the hostile and unfriendly atmosphere of the court itself. Finally, her use of the word “made” (“made me his wife”) makes it clear that she had been coerced into sexual relations by her assailant and that the sexual act under scrutiny was not a consensual one. While prejudices regarding gender and sexual violence were common in the early cases, decisions regarding succession, divorce, and property were also plagued by bias. Thus, in the Kenyan case of Kimani v. Kimani, which concerned, inter alia, the issue of whether the woman in the case was entitled to a share of the property acquired in the course of the marriage, the judge not only decided against her but also stated, “perhaps apart from procreation and occasional cooking, a number of important wifely duties, obligations, and responsibilities are increasingly being placed on the shoulders of the servants, machines, kindergartens, and other paid minders. Often the husband pays for these and more.”8 In the case of Rose Moraa v. Attorney General,9 the High Court held that a mother bears sole responsibility for a child born out of wedlock. The struggle for recognition of women’s equality in East African case law has been long and protracted, and at times advances have been turned into setbacks within a short period of time. Ndashe and Sacco correctly point out that litigation in this area has produced “mixed results”: Increasingly, in the region and internationally, courts have begun to understand that discrimination on a prohibited ground cannot be justified. This has not, however, stopped some courts from insisting that discrimination on the basis of sex can still be justified, particularly when dealing with women’s inheritance rights. It is when courts seek to justify the unjustifiable that the judicial precedent and recognised standards on nondiscrimination have fallen foul of the law (Ndashe and Sacco 2009, 26).

8 9

HCCC No.1610 of 1999 (unreported), quoted in Odhiambo and Oduor 2011, 104. Civil Case 1351, 2002 (High Court).

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This back and forth movement in the courts of law over women’s rights is reflective of a judicial context which is inconsistent at best, or outright sexist at worst.10 An example of the latter was evident in the Kenyan case of Ngare v. Ogila, in which the court stated: One thing is very clear, that is, the women aforesaid were unmarried (single) at the time. According to Luo customary law, a wife may divorce her husband for his habitual adultery with a married woman…. The respondent could not have committed adultery with unmarried women.11

Other cases illustrate a one-step forward, two-steps back motion in the progress of women’s rights in the courts of law. Take the issue of a woman’s right to matrimonial property based on her non-monetary contribution to the upkeep of the family. In Kenya as early as 1976, the principle was regarded as settled, as demonstrated in the case of Karanja v. Karanja,12 with further confirmation in the decision on Kivuitu v. Kivuitu.13 The statutory marriage in this case had benefitted from both the financial and indirect contributions of both the husband and the wife, and the matrimonial home was registered in their joint names. On the institution of divorce proceedings, the wife applied for the matrimonial home to be sold and the proceeds shared equally, a proposal rejected by the husband. In response, Justice Omolo stated, “the time when an African woman was presumed to own nothing and all [that] she owned belonged to her husband, and [she] was regarded as a chattel of her husband, [is] long gone.”14 The court went on to rule that: I can find nothing…which would force me to the conclusion that only monetary contributions must be taken into account. Any such limitation would clearly work an injustice to a large number of women in our country, where the reality of the situation is that paid employment is very hard to come by.15

However, the Court of Appeal in the later decision of Icharia v. Icharia16 held that in the absence of a definitive Kenyan law on matrimonial property, the previous decisions of the High Court were erroneously 10

It is not only East African courts that are affected by the back and forth progress of decisions on matters relating to gender and sex (Merrick 2015). 11 Civil Appeal No.24 (1980, Kenya High Court). 12 (1976) KLR 307. 13 2 Kenya Appeal Reports (1991) eKLR 241-250 (CA) (Kenya). 14 Id., at 241. 15 Id., at 249. 16 (2006) KAR. See also, Mbote and Kabira, 2008, 29, especially footnote 96.

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decided (Federation of Women Lawyers—Kenya 2009, 17). Finally, after several court decisions decrying the absence of a legal regime on matrimonial property, the Kenyan Parliament enacted the Matrimonial Property Act, 2013,17 although the law was faulted because very few women would be able to demonstrate their contribution to the marriage.18 In Tanzania, the celebrated case of Bernardo s/o Ephraim v. Holaria d/o Pastory,19 decided in the late 1980s, led to a revolutionary holding when High Court Judge Mwalusanya declared that a customary law prohibiting women from inheriting and selling clan land violated the Tanzanian Constitution.20 Subsequent decisions, however, retreated from this position, finding refuge in a doctrine known as Constitutional Avoidance, which is to the effect that matters possibly impinging on the Constitution should be handled administratively or legislatively, not by the courts of law (Ndashe and Sacco 2009, 29–30). But as with the movement of other social forces, the general trend in the courts has also shifted over time, with even the opinions of individual judges changing. In 2002, Justice Lugayizi (the Ugandan judge of Stephen Apai infamy as recounted above) redeemed himself in the case of Uganda v. Peter Matovu,21 a case that concerned a charge of defilement, or rape of a minor, and involved a question of uncorroborated evidence. Under the English Common Law as applied in East Africa, the rule of corroboration was that a court could not make a conviction based on evidence from a single witness. Obviously, this worked against women victims of sexual assault, as in most such crimes the only evidence is that of the female victim. In finding the accused guilty of the charges, the judge relied on the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) to argue that the legal requirement for corroboration discriminated against women who were “by far, the most frequent victims 17

Act No.49 of 2013. See “UN Rights Experts Urge Repeal of Kenya Marital Property Law,” February 17, 2014. 19 High Court of Tanzania at Mwanza, 22 February 1990 (Civil Appeal No. 70 of 1989); (1990) LRC (Const) 757; AHRLR (TzHC 1990). 20 The earlier case of Ndewawiosia d/o Ndeamtzo v. Imanuel s/o Malasi (1968) HCD No. 127 (PC) Civ. App. 80–D-66, 10/2/68, decided by Justice Saidi, had in fact held, “it is quite clear that this traditional custom has outlived its usefulness. The age of discrimination based on sex is long gone, and the world is now in the stage of full equality of all human beings irrespective of their sex, creed, race, or colour. On grounds of natural justice and equity, daughters like sons in every part of Tanzania should be allowed to inherit the property of their deceased fathers, whatever its kind or origin, on the basis of equality.” 21 CSC No. 146 of 2001. 18

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of sexual offences and is therefore inconsistent with Uganda’s international obligations.”22 As was demonstrated by the Kenyan case In re Wachokire, such progressive jurisprudence has not been confined to the higher courts alone.23 In this case, Jane Watiri petitioned the court to award her one-half of a parcel of land—on which she lived with her four children—that had belonged to her deceased father. Her brother objected, arguing that he had cultivated a larger portion of the land during his father’s lifetime than his sister and was therefore entitled to the larger portion. Senior Principal Magistrate H. A. Omondi found that under Kikuyu customary law, an unmarried woman like Watiri lacked equal inheritance rights because of the expectation that she would get married. According to Omondi, this customary provision discriminated against women and was in violation of Section 82(1), prohibiting discrimination on the basis of gender, of the Kenyan Constitution. The practice was also a violation of Article 18(3) of the African Charter on Human and People’s Rights (the Banjul Charter) and Articles 15(1) and 15(3) of CEDAW, both of which provide for legal equality between men and women. In line with these provisions, the learned magistrate awarded Watiri and her brother each an equal share of their father’s property. The latter case of In Re the Estate of Andrew Manuzyu Musyoka (Deceased)24 affirmed this position, as did the Court of Appeal decision in the case of Rono v. Rono and Another.25 Samson Kiogora Rukunga v. Zipporah Gaiti Rukunga26 considered the issue of whether marital status was a justifiable ground on which to deny a share in her father’s estate to a woman who had been married but had since returned to her father’s home. Justice Kasango stated that the general provisions on non-discrimination, and specifically Article 60(1)(f) which

22

In Tanzania, the issue was addressed by the Sexual Offences Special Provisions Act (No. 4 of 1998), which amended Section 127(7) of the Evidence Act. In the case of Onesphory Materu v. The Republic (Criminal Appeal No. 334 of 2009, judgment of Justice Mandia), the Court of Appeal stated, “prior to the amendment there was a requirement for the court to warn itself of the dangers of basing a conviction on the uncorroborated evidence of a child where a sexual offence was involved. After the amendment, the need for the warning was done away with. The only burden imposed on the court now is to give reasons that it is satisfied that a child of tender years or the victim of the offence is telling nothing but the truth.” 23 Succession Cause No. 192 of 2000, Chief Magistrate’s Court at Thika, August 19, 2002. 24 [2005] eKLR. 25 CA 66/02; [2005] 1 EA 363 (CAK). 26 Succession Cause No. 308 of 1994; 8 CHRLD 274.

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provides for the elimination of gender discrimination with respect to land, meant that the daughter was entitled to a share in the property. Several other cases have engaged with customary practices that do not stand the test of non-discrimination and equality, which are now basic features in all three East African constitutions. Tanzanian courts have been particularly robust in addressing this issue, in part because legislation enforcing changes—the Law of Marriage Act (LMA)—was enacted in 1971. The earliest and most famous of such cases is that of Leonard Jonathan v. Republic,27 in which the appellant convict claimed that abducting and raping the woman victim was a permissible form of customary marriage.28 In response, Justice E.N. Munuo stated, In view of the above provisions of domestic and international law, the appellant seriously offended the complainant’s fundamental right to choose her spouse and marry on her own volition. These circumstances reinforce her complaint of rape, which I have already observed was proved beyond all reasonable doubt, for she never consented to the appellant carnally knowing her or marrying her under the obnoxious customary practice of grabbing women, locking them up and sexually assaulting them in the name of Chagga customary marriage.

In response to the argument that a non-working wife had made no contribution to the household, the Tanzanian Court of Appeal, in Bi Hawa Mohamed v. Ally Sefu,29 held that a wife’s non-monetary contribution (otherwise referred to as “house-keeping”) to the matrimonial home must be recognized as such.30 Referring to the Law of Marriage Act of 1971, the judge pointed out that the law was designed to rectify “what may be described as the traditional exploitation of married women by their husbands.” In the later case of Lawrence Mtefu v. Germana Mtefu,31 the judge responded as follows to counsel’s submission that the respondent was an

27

Criminal Appeal No. 53 of 2001, High Court of Tanzania at Moshi, September 21, 2001. 28 The case of Uganda v. Yiga Hamidu and 2 Ors (Criminal Appeal No. 10 of 2006), came to the same conclusion with regard to a similar abduction. 29 1983 TLR 32 (CA). 30 In Uganda the issue was first confirmed by Justice Bbosa in Muwanga Kintu v. Myellious Kintu (Divorce Cause No.135 of 1997, Arising from Divorce Cause No.17 of 1989, High Court of Uganda), and finally settled by the Supreme Court in the case of Julius Rwabunimi v. Hope Bahimbisomwe [2013] UGSC 5, Civil Appeal No. 10 of 2009, accessed at: http://www.ulii.org/ug/judgment/supremecourt/2013/5. 31 Civil Appeal No. 214 of 2000.

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“unemployed housewife” who earned no income and thus could not contribute anything to the construction of the house under contention: The submission by Mr. Mbuya, to say the least, is a clear reflection of the violence and discrimination which a woman has lived with in the society for years. Services by women which require recognition and compensation are termed conjugal obligations on the part of the woman. This is so even where they are not reciprocated and the woman ends up being exploited and a loser.

Finally, in the case of Mwajuma Mohamed Njopeka v. Juma Said Mkorogoro,32 the court relied on the fundamental principles of state policy on equal protection before the law, the 1948 Universal Declaration of Human Rights (Article 7) and CEDAW, to declare that the appellant was entitled to one of the couple’s two matrimonial houses. What about litigation in areas other than marriage and succession, i.e. outside of “relational” situations (Manji 1998)? In J.A.O. v. Homepark Caterers Ltd. et al.,33 which involved a suit claiming discriminatory treatment based on gender and wrongful dismissal from employment based on the claimant’s HIV status, the court refused to dismiss the case, overruling the defendant’s objection that the suit disclosed a cause of action based on “the universality of the HIV/AIDS pandemic and the development of the human rights jurisprudence.” Such cases demonstrated a growing sensitivity to gender-related discrimination within the courts as well as the need to act with caution when confronted by claims reflecting such biases. The progress of litigation over the rights of women in the region was given a major boost following the enactment of the 1995 Constitution of Uganda. Prior to its promulgation, the law offered only limited protection to the rights of women, and indeed the 1967 Constitution excluded gender from the grounds for non-discrimination.34 The instrument also permitted discriminatory treatment with respect to matters of custom and culture.35 The 1967 Constitution was discriminatory in many other ways as well, for example denying women who married foreigners the right to confer citizenship on their husbands or children, while permitting men to do so (Tamale 1993, 167–168). The independence constitutions of both Tanzania and Kenya had similar provisions. 32

High Court of Tanzania at Dar es Salaam, (PC) Civil Appeal No. 6 of 2001 (Unreported). 33 Civil Case No. 38 of 2003, High Court of Kenya at Nairobi, Sept. 2004. 34 See Article 20(3) of the 1967 Constitution of the Republic of Uganda, and Oloka-Onyango 2013, 3. 35 See articles 20(4)(d) and (e).

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Starting with broad provisions on gender balance and fair representation, and extending to affirmative action, the 1995 instrument represented a new dawn for the rights of women in the country. Of particular importance to protection of the rights of women was Article 33, clause 6, which stated, “laws, cultures, customs or traditions which are against the dignity, welfare, or interest of women or which undermine their status, are prohibited by this Constitution.” Using the above provisions of the Constitution, public interest cases have been brought on several issues affecting the status of women. Among them are the cases of Law and Women in Uganda (Law-U) v. Attorney General (No.1), on criminal adultery; FIDA-U v. AG,36 on the disparate grounds of divorce applied to women and men; and two cases filed by LAW-U that successfully challenged several provisions of the law on Succession37 as well as the practice of female genital mutilation (FGM).38 Sometimes, however, the legal victories heralded by progressive court decisions have turned out to be somewhat hollow. For example in the FIDA-U case, the applicants challenged the constitutionality of certain provisions of the Divorce Act, which applied different standards of assessing grounds for divorce to women as opposed to men. Whereas a woman had to prove both adultery and an additional ground—e.g. violence, desertion, bigamy or apostasy (otherwise known as aggravated adultery)—the man had to prove only one of these. The court found that these provisions violated the Constitution. In the words of Justice Amos Twinomujuni: I have…studied the History of the Divorce Act, especially, the English concepts of Marriage and Divorce before and after the enactment of the Matrimonial Causes Act of 1857. I have no doubt in my mind that the impugned provisions of our Divorce Act are a result of the Englishman’s pretwentieth Century perceptions that a man was a superior being to a woman and they could not be treated as equals in marriage. It is, in my view, glaringly impossible to reconcile the impugned provisions of the Divorce Act with our modern concepts of equality and non-discrimination between the sexes enshrined in our 1995 Constitution (Judgment of Justice Amos Twinomujuni in FIDA-U, 16).

Although the judge was quite clear in his ruling with respect to the discriminatory aspects of the provision, the conclusion of his judgment left some ambiguity: “This means that all the grounds of divorce mentioned in Section 4(1) and (2) are available to both parties to the marriage and the 36

Constitutional Case No. 2 of 2003. Constitutional Petition No. 13 of 2005 (2007). 38 Law-Uganda v. Attorney General (No.2). 37

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provisions of the Act relating to naming the co-respondent, compensation, damages and alimony apply to both women and men who are parties to the marriage.”39 What appeared to be a progressive decision did not in fact go far enough as it left intact the onerous conditions, based on fault rather than incompatibility, attaching to divorce. The problem in reforming the divorce law has been compounded by the fact that the Ugandan Parliament has obstinately refused to introduce reforms in the area of domestic relations, even in those instances where courts have clearly ruled certain legislation as unconstitutional (Kafumbe 2010). The absence of reforms was at least a contributing factor in the socalled “Bride Price” case decision (Mifumi [U] Ltd. v. the Attorney General)—in which the Constitutional Court refused to find that the practice violated the constitution.40 Where legal reforms have been introduced—such as with the promulgation of the Domestic Violence Act of 2010—the effects have sometimes percolated down into the judgments of the courts. In Uganda v. Kamuhanda Emmanuel,41 for example, Justice Batema set a precedent by taking into consideration what he called “accumulated anger arising from repeated acts of domestic violence” as a partial defence for murder in a domestic setting.42 The accused was found guilty of murdering his father, who had engaged in a persistent pattern of abuse and violence against his wife and children. Although the court found the accused guilty of murder, the judge went on to state: The gendered power relations in domestic violence can no longer be ignored in our principles of criminal law and in criminology in general. Domestic violence which was formerly condoned as a right of the heads of families is now condemned under the Domestic Violence Act, 2010. By 39

FIDA-U, Id., at 18. Constitutional Petition No.12 of 2010, UGCC 2. But see the dissenting judgment of Justice Amos Twinomujuni and Dennison (2014). On appeal, the Supreme Court found that “the custom of refund of bride price devalues the worth, respect and dignity of a woman. [I] do not see any redeeming feature in it.” The second respondent stated in his submission that the bride price was intended to avoid unjust enrichment. The court responded, “with respect, I do not accept this argument. If the term ‘bride price’ is rejected because it wrongly depicts a woman as a chattel, how then can refund of bride price be accepted? Bride price constitutes gifts to the parents of the girl for nurturing and taking good care of her up to her marriage, and being gifts, it should not be refunded.” Decision of Justice Tumwesigye in Mifumi (U) Ltd. & Others v. Attorney General & Another (Constitutional Appeal No. 02 of 2014) [2015] UGSC 13 (6 August 2015). 41 High Court of Uganda at Fort Portal, HCT-01-CR-SC-0024 of 2012. 42 Id., at 4. 40

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Chapter Four necessary implication the sections of the Penal Code Act that used to protect and exclude violent spouses from prosecution must be amended or repealed. Section 193, in general, and more so subsection (2) of section 193 in particular, defining what amounts to provocation in a domestic relation, can no longer hold. This provision looks gender-neutral but is in fact gender-blind, protecting violent husbands.43

The case was remarkable not only for the manner in which it reworked the principles of sentencing to take into account the gendered character of the law, but also in the deconstruction it made of the nature of the contemporary family: In our communities, it is men who are often, and sometimes automatically, still treated as heads of the home, and the women and children they live with as subordinates under their immediate care. The wrong assumption under the Penal Code Act is that no subordinate is supposed to get annoyed with and react violently to any abuse by the master of the home. I find that unlawful and unconstitutional.44

The 2010 Kenya Constitution, with a host of new provisions supporting improved economic, social, and cultural rights as well as reproductive health and increased political representation, has laid the foundation for even more progress with respect to the rights of women in East Africa.45 Described as an instrument with a new narrative of social justice (Domingo and Wild 2012), the 2010 Constitution made conceptual, institutional, and structural reforms to ensure that Kenyan women would no longer be denied these basic rights. In particular, the constitution reformulated the notion of equal opportunity in positive rather than negative terms, compelling attention to equity not only in the Bill of Rights but throughout the whole Constitution (Fitzgerald 2010, 58–60).46 The hope heralded by the new instrument was vindicated with the decision of the High Court in the case of CREAW and 7 others v. The Attorney General,47 which was concerned with the failure of President Mwai Kibaki to include women in his appointments to key state offices. In granting an injunction stopping the appointments, the court stated that, considering that the nominees were all men, “the spirit of equality and freedom from discrimination was not given due consideration.” Dismissing the 43

Id., at 3. Id., at 4. 45 African Women and Child Feature Service, “Women’s Power through the Constitution: Our Constitution, Our Life!” 46 See Article 27 and compare to Article 82 of the previous constitution. 47 Petition No.16 of 2011, High Court on February 3, 2011. 44

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response of the Attorney General, the court said, “while it may be argued that in future appointments to public offices women were likely to be included … no reasonable explanation was given by the respondent why none of the four appointees was a woman.” In contrast, the first decision of the Supreme Court on the issue of gender representation was not encouraging. In the Gender Representation case, a majority of members held that “there was no mandatory obligation resting upon the State to take particular measures at a particular time for the realization of the gender-equity principle.”48 The Court’s decision arose from the Attorney General’s request for an advisory opinion on whether Article 81(b) of the Constitution, on women’s political representation, was to be implemented immediately, i.e. during the March 2013 elections, or subject to the principle of progressive realization. The court held that the provision in question embodied a broad principle, not a right, and as such was not immediately enforceable. With respect to the elections just over the horizon, the court held that the principle was therefore not enforceable during the March 2013 franchise (Wachuka 2012). In effect, the Court held that an inequitable and non-gender-representative legislature would not be unconstitutional. Chief Justice Mutunga issued a strong dissent, arguing that in light of the history and circumstances of the struggle by Kenyan women for equity and equality in all spheres of life, to hold that the principle was subject to progressive realization would negate the will of the Kenyan people in voting for a new Constitution. Agreeing with the submission of the Katiba Institute as amicus curiae, he argued that the principle was in fact a minimum. The aim should be to achieve fifty/fifty parity between men and women. Justice Mutunga could not fathom how “a constitution that decrees non-discrimination would discriminate against women running for Parliament and the Senate. I see no constitutional basis for discrimination among women themselves as the consequence of the progressive realization of the two-thirds gender principle would entail.”49 The decision of the majority drew a good deal of criticism. As Dudley Ociel pointed out, even if the “progressive realization” premises of the judgment were to be accepted, it was still flawed because there is no evidence that the majority interrogated the State to find out what steps it had taken two years after the promulgation of the Constitu48

See In the Matter of the Principle of Gender Representation in the National Assembly and the Senate, [2012] eKLR (Advisory Opinion Application No.2 of 2012). 49 Dissenting opinion of Mutunga, CJ in Gender Representation, para. 11.5.

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Despite this setback, other courts in Kenya have not felt constrained by the tenor of the Supreme Court decision to make similar judgments; rather many have sought to give more substance to the gender-progressive provisions of the 2010 Constitution. The case of JAO v. NA,50 for example, placed a stamp of conclusion on the debate about division of matrimonial property between spouses by invoking the constitutional and international principles on non-discrimination and equality, affirming that equal rights ruled during, within, and after the dissolution of a marriage. In the so-called 160 Girls Decision, the High Court in Meru dealt with the issue of defilement and other forms of sexual violence.51 The case involved a petition for a declaration that the police had neglected and/or omitted to carry out prompt, proper, and effective investigations into the petitioners’ complaints of defilement and other forms of sexual violence meted out to them. Granting the petition, the court found that there had indeed been a violation of the petitioners’ constitutional rights, particularly freedom from violence and the right to dignity, non-discrimination, and enjoyment of equal protection under the law. Directing the respondent police to carry out prompt and proper investigations into the complaints, the court also found that there had been a breach of the constitutional duty placed on the police to protect the petitioner’s rights. As Winifred Kamau notes, the court also accepted the government’s culpability for systemic violence, noting that “failure to ensure proper and effective investigation and prosecution of sexual offences had created a “climate of impunity” for commission of such offences” (Kamau 2013). In spite of the firm statement of reproach issued by the court, the judgment stopped short of granting the prayer for formulation of a National Policy Framework to implement the guidelines provided in the Sexual Offences Act reference manual. Similarly, there was no order for the respondent police officers to appear in court to regularly report on compliance with the court’s orders. Reflecting on the decision, Kenyan Deputy

50

Civil Case No.86 of 2012 (High Court at Kitale). C.K (A child and 11 others v. Commissioner of Police/Inspector General of Police and 2 others, Petition No.8 of 2012 (2012) eKLR. 51

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Chief Justice Kalpana Rawal argues that such omissions limit the effectiveness of the Constitution with respect to women’s human rights: The nature of the rights of women and children to be protected from all forms of sexual violence … is that their realization is solely dependent on the willingness of the existing machinery of the state to efficiently, effectively, and professionally perform their tasks. The state, therefore, should not be heard to cite unavailability of resources as a reason for its failure to undertake a particular task. Therefore, unlike the socio-economic rights that require progressive realization, the rights of women and children to be protected from all forms of sexual violence should be subject to immediate realization (Rawal 2012). .

Echoing the powerful dissent of Chief Justice Mutunga in the Gender Representation case, Rawal argues that the progressive realization standard is not applicable to what she describes as “socio-legal” rights. She makes the point that the energy expended on realization of socio-economic rights needs to be turned to socio-legal rights as well, especially with regard to protecting the rights of women and children. Is the same argument applicable to the situation of sexual minorities such as the LGBTI community in East Africa?

The Right to Love and the Vexed Question of East Africa’s Sexual Minorities “Who says everybody has a right to love?” I was asked at one particularly heated public lecture I gave days after the passing of the Antihomosexuality Act (AHA) of 2014 (Oloka-Onyango 2014b). As the lead petitioner in the case that successfully challenged the law, I was placed at the frontline of the debate about sexual minorities and the issue of whether or not they could be accommodated within Uganda’s constitutional and legal regime. Even though asked somewhat sardonically, the question cut to the core of an issue that has seriously tested the International Human Rights Movement and the legal regime and foundational principles on which it is based. Obviously, many questions arise about the scope and applicability of public interest litigation concerned with the rights of sexual minorities. Indeed, a handful of public interest cases in both Kenya and Uganda (not yet Tanzania) provide some indication of the complexities involved in debating and resolving the issue. While the “right” to love appears in no known legal document— national, regional, or global—there is no doubt that it is a universal human sentiment. If one were to perform a dissection of the right to love, it would

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be found implicit in several human rights principles—freedom of association and expression; the right to health; the right to privacy; and especially the right to human dignity (Wintemute 2002). Despite the absence of the right in normative form, it is a central feature of human existence, especially within the context of sexual expression. To deny its existence is to deny the very essence of our humanity. And yet, in countries around the world, from Kyrgyzstan to Russia and from Nigeria to the Gambia, new laws are being passed that attack both gender identity and sexual orientation as an expression of the sexual self. The two could be considered as critical components of the right to love (Nyanzi 2014, 14). In this context, courts have oscillated between enlightened pronouncements and retrogressive decisions—or at times they have simply avoided taking a position. For example, a two-judge Bench of the Delhi High Court, in Naz Foundation v. Govt. of NCT of Delhi,52 declared that the notorious Section 377—on the offence of carnal knowledge against the order of nature—violated the Indian Constitution. In a dramatic twist of events, even before the celebrations over the landmark ruling had ended, the Indian Supreme Court overturned the lower court’s decision, stating that parliament should repeal the law, not the Judiciary.53 Despite the U.S. Supreme Court’s decision in the ground-breaking case of Lawrence v. Texas,54 which declared laws criminalizing same-sex conduct unconstitutional, various states in the U.S. are still clinging to arcane laws that delimit civil unions in an atavistic attempt to turn back the clock to the nineteenth century (Baume 2005). All these actions are in essence attacking the right to love in its most obvious manifestation—the right to choose whom one can love. To say that we live in an age of sexuality politics is no exaggeration, although we should be careful not to paint too broad a brush-stroke of homophobia throughout the African continent. As Thoreson pointed out, the issue is much more complex: Although they were ubiquitous, tropes of “winds” and “waves” of homophobia are not merely descriptive. Homophobia is difficult to define, much less instrumentalize, and it is far from clear that it can simply “rise” or “fall” in any regional, national, or intranational setting. By lumping disparate incidents together, these framings homogenize complex responses to sexual acts, identities, and politics. Decrying a wave of homophobia in “Africa” also elides local specificity, and bolsters racist dismissals of the 52

160 Delhi Law Times 277 (Delhi High Court 2009). See Suresh Kumar Koushal & Another v. Naz Foundation & Others, Civil Appeal No.10972 of 2013. 54 539 U.S. 558 (2003). 53

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Global South as inherently hostile to queers. By glossing both “homophobia” and “Africa,” these tropes leave little room for the nuance and specificity of sexual politics in postcolonial settings (Thoreson 2014, 24).

The politics of sexuality is intricately linked to the politics of gender. Gender is implicated in the discussion by the perceived subversion that same-sex relations and erotica present to the dominant norms of sexuality that govern society. Heteronormativity—the assumption of the existence of only two genders and the belief that human sexual relations between a man and a woman are natural and normal, with no other possibilities—is threatened especially by gay and lesbian relationships (Tamale 2011, 641). These gender non-conforming practices and identities threaten the dominance of masculinity, which places a premium on the control of women’s bodies. Sex between women is viewed as a rejection of that ownership, while that between men marks a serious disconnect between sex and reproduction, raising the ire particularly of organized religion. Also, homosexual men are considered effeminate and not “real” men. Many countries in Africa today find themselves in the midst of these sexuality/gender battles. The battlegrounds are numerous: homes, communities, workplaces, parliaments, and courts, as well as religious and educational institutions. Looking only at the courts, the question is: How have the national and regional courts in East Africa treated the vexed issue of sexuality insofar as it relates to love? In particular, what have the courts said about the intimate relationships between consenting adults that have been outlawed as part of sexuality politics and social control? What about questions of sexual identity? In sum, is East Africa ready to incorporate sexual citizenship into the core of jurisprudential thought? East Africa offers an important insight into this issue, not only because of Uganda’s recent experience with the AHA, but also because of other struggles taking place alongside the battle over sexual expression. Kiragu and Nyong’o provide a useful summary of the different forms of discrimination sexual minorities (particularly LGBTI people) face: Discrimination of sexual minorities can be in the form of criminalization of homosexuality, institutionalized homophobia, abuse in state institutions, pathologizing, forced medication and cruel treatments, neglect of the existence and needs of LGBTI people with disabilities, young and elderly LGBTI persons, diminished access to health care, work place discrimination and violence, and harassment from official state representatives including execution. Social repression with or without state tolerance can be manifested in the form of verbal abuse, silence, ridicule, hate crimes, “corrective rape” of lesbians, honor-related violence and forced marriage (Kiragu & Nyong’o 2005, 12).

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The above quote summarizes the extensive range of legal barriers that confront sexual minorities in the region. To these we can add issues relating to freedom of association, the right to form non-governmental organizations and even to meet in public places, and questions around the right to privacy and the right to human dignity as basic civil and political rights. In the sphere of economic, social, and cultural rights, we consider rights to health, shelter, and housing. There are rights to an adequate standard of living and the right to work, wherein discriminatory treatment of sexual minorities works against these basic enjoyments. The rights to privacy, basic human dignity, equality, and non-discrimination are cross-cutting rights. In short, the battle against legalized homophobia is extensive and multi-faceted. The extra-legal utilization of the law to achieve difficult goals poses another problem. For example, while the Penal Codes of all three East African countries have provisions criminalizing sex “against the order of nature,” the very nature of the offence makes it difficult to secure a conviction in court.55 Unlike other offences condemned by law, in this instance the criminalized conduct is carried out by two consenting adults. Given the rather obvious tension between what the Law aspires to achieve and the impracticality of its realization on the ground, the case for repeal of such laws would seem apparent. The poor record of conviction on such offences, however, does not prevent the police and other authorities from deploying the laws as tools of harassment, intimidation, and bribery, especially through the mechanisms of arbitrary arrest and pre-trial detention. According to the Human Rights Awareness and Promotion Forum (HRAPF) and the Civil Society Coalition surveying convictions on such offences in Uganda, these laws hang over the heads of sexual minorities like the sword of Damocles: Over the period 2007–2011, there is neither a single conviction nor an acquittal for consensual same-sex conduct on file in any magistrate’s court in Kampala. In an egregious example of a waste of both police and judicial resources, all cases that were filed in court during the period 2007–2011 in Kampala district ended in dismissal for want of prosecution. Though not conclusive since cases before magistrates’ courts largely go unreported, attempts to look for other acquittals or convictions in the Law Reports revealed no single conviction or acquittal since the laws were introduced (with the exception of those for non-consensual same sexual relations with

55

In the case of Mamoon v. Canada [2009] FC 578, the Federal Court of Canada held that criminal laws punishing homosexuality are rarely applied in Tanzania (para 12).

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minors before 2007) (HRAPF and CSCHRCL 2013, 13, and chapter 4, 2015).

In light of these and other developments, it is clear that while East Africa’s courts will be crucial arenas for the struggle and fascinating sites of critical appraisal, one questions whether they are up to the task. Assessing decided cases as well as emerging jurisprudence from the region—and seeking explanations of the varied directions East African courts have taken or may take in the future—thus constitutes an important and timely contribution to a debate that is likely to become even more intense over time. Consequently, the following sections of this chapter look at the cases of Uganda, Tanzania, and Kenya before making broad conclusions on the implications of these developments for sexual minorities in the region.

Courts, Love, and Sexuality in Uganda Uganda provides a useful point of departure for considering these issues in light of the numerous (and peculiar) recent developments there in the position of sexual minorities. The country has recently witnessed a growing number of public interest cases in this area, beginning with Victor Juliet Mukasa and Yvonne Oyo v. Uganda56 and culminating most recently with the case of Oloka-Onyango & 9 Others v. The Attorney General.57 The Mukasa case is important not only because it was one of the first involving sexual minorities decided after the 1995 Constitution, but also because of what it said and omitted to say about this kind of discrimination. Victor Mukasa was a well-known activist for the rights of LGBTI individuals. One evening, Local Council (LC) officials led by the LC1 village chairman raided her home and found her roommate, the second applicant (Oyo) in the house. They forcibly entered the home, removed several personal items, and held Oyo in forced detention for several hours, subjecting her to sexual harassment, intimidation, and inhuman treatment. Justice Arach-Amoko found that the second applicant was arrested while she was in Mukasa’s home resting. Following the arrest, Oyo was forcibly taken to the police post and denied the use of the toilet. She was also forcibly undressed and “examined,” that is, fondled by the Police Officer-inCharge (OC) to establish her gender.58 The court observed that 56

Miscellaneous Cause No. 24/06, High Court of Uganda at Kampala, Civil Division, 22 November 2008; (2008) AHRLR 248. 57 Constitutional Case No. 8 of 2014. 58 Judgment in Victor Mukasa at 16.

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the acts of the police, LDUs [Local Defence Units], and the Chairman were high-handed, illegal, humiliating, and did not only cause…grief, injury and apprehension, but above all, these acts were a breach of several constitutional rights which are guaranteed by the Uganda Constitution which the Police, LC1 Chairman and LDUs are enjoined to protect and defend. They were acting in the usual course of their employment and the Attorney-General is therefore vicariously liable.59

The court concluded by finding a variety of rights had been violated, including the right to privacy of person and property, protection from inhuman treatment, and the sanctity of one’s right to dignity. The court emphasized this as a human rights case: “this case, as Mr Rwakafuzi rightly pointed out in his submission, is, however, about abuse of the applicants’ human rights and not abuse of office.”60 The court went on to state, “It is … not about homosexuality. This judgment is therefore strictly on human rights.”61 Despite the irony of the decision in divorcing the right of sexual expression from broad human rights, the case was important for the related questions of sexual orientation and gender identity. Heralded as Uganda’s first case decided in favour of a sexual minority, Victor nevertheless needs to be treated with some caution. On the one hand, the applicant’s sexual orientation did not cloud the opinion of the court or stop it from affirming the rights of two individuals who had been grossly mistreated by the authorities. It would have been quite easy for the court to have found that the two were engaged in an “illegal act” (the state alleged that they were caught “kissing” in public) and to have either dismissed the case or issued a sanction against the women because of their sexual orientation and conduct. On the other hand, despite the judge’s assertion that the case was “not about homosexuality,” it is quite clear that the harassment and violence to which co-applicant Oyo was subjected were primarily on account of her presumed sexual orientation and relationship to Mukasa. According to Busingye Kabumba, the issue of sexual orientation was the “elephant in the room” (Kabumba 2009, 221). This is evident not only because of several allusions in the proceedings, but also from the stature of the applicants, at least one of whom was a well-known activist for the rights of LGBTI individuals in Uganda. The Victor Mukasa case was successfully prosecuted and won in the Ugandan courts. However, it underscored the structural nature of the violence that LGBTI individuals faced, as well as the passive acceptance (if 59

Id., at 6. Id., at 16. 61 Id., at 16. 60

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not active encouragement) of such violence by the State and the public at large. This point surfaced in bold relief in the later case of Kasha Jacqueline, David Kato Kisuule & Onziema Patience v. Rolling Stone Ltd. & Giles Muhame (“Kasha-1”).62 The case involved a cover story by the Rolling Stone newspaper, which printed photos of several individuals alleged to be gay, with the caption, “hang them: they are after our kids!” The three applicants were among those named in the article, and they sought a declaration that the newspaper had violated their rights to privacy of person and property. Repeating the mantra that the case was “not about homosexuality,” Justice Kibuuka Musoke held that the report was an assault against the dignity of the applicants. The judge also firmly asserted that the call to violence against sexual minorities, particularly LGBTI persons, was unacceptable: Clearly the call to hang gays in dozens tends to tremendously threaten their right to human dignity. Death is the ultimate end of all that is known worldly to be good. If a person is only worthy of death, and arbitrarily (sic), then that person’s human dignity is placed at the lowest ebb. It is threatened to be abused or infringed.63

While disclaiming that the case was “about homosexuality,” the court nevertheless went on to make the crucial point that Section 145 of the Penal Code could not be used “to punish persons who themselves acknowledge being, or who are perceived by others to be, homosexual.” In order to be regarded as a criminal, stated the court, one had to commit an act prohibited under the section. Further developments on the legal scene came with a 2005 constitutional amendment prohibiting same-sex marriage, marking Uganda as the first African country to adopt such a position (Mujuzi 2009). A last-minute amendment to the 2007 Equal Opportunities Commission Act—to prevent the EOC from investigating matters involving behaviour regarded as “immoral or socially unacceptable” by the majority of cultural groups in Uganda—followed.64 By far the most dramatic development in Uganda was the emergence in 2009 of the anti-homosexuality bill (AHB) introduced by Member of Parliament David Bahati (Englander 2011). Drawing condemnation from 62

Miscellaneous Cause No.163 of 2010. Id. 64 This provision of the law was challenged in the case of Adrian Jjuuko v. Attorney General (Constitutional Petition No.1 of 2009). The case was filed on January 5, 2009, and heard on October 3, 2012. Judgment was delivered on November 11, 2016 (HRAPF 2015). 63

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around the world, the AHB sought to recriminalize and expand the range of same-sex relationships subjected to penal sanction, extending the bar to lesbian sex65 and even proposing the death penalty for what was described as “aggravated homosexuality” (Tamale, 2009). The AHB was particularly dangerous because it escalated existing homophobia in Uganda to an “entirely different level” (Oloka-Onyango 2012, 31), seriously threatening the security, well-being, and health of sexual minorities. Hence, when President Museveni dramatically signed the bill into law in early 2014, there was really no choice but to take the matter to the courts, as all earlier attempts to stop enactment of the bill had failed. Unlike the cases already reviewed, which gingerly skirted around the issue of sexual orientation and instead focused on the broader rights involved, the Oloka-Onyango petition by necessity brought the issue directly to the surface; the elephant could no longer be kept hidden. The petition was built around the strategy of compelling the court to directly confront a law that was clearly targeted at gay people, seeking to challenge the broad, arbitrary, imprecise, and vague definitions used by the Act. For example, the term “homosexual” was defined in the Act to mean a person who engages or attempts to engage in same-gender sexual activity, while “homosexuality” was defined as same-gender sexual acts. The definition of “sexual act” was stipulated to include: 1. physical sexual activity that does not necessarily culminate in intercourse and may include the touching of another’s breast, vagina, penis or anus; 2. stimulation or penetration of a vagina or mouth or anus or any part of the body of any person, however slight, by a sexual organ; and 3. unlawful use of any object or organ by a person on another person’s sexual organ or anus or mouth.

The Act was also problematic for the disproportionate penalties that it prescribed (including life imprisonment) and the introduction of new offences such as “promotion” and “recruitment,” which were accompanied by extensive discretionary powers conferred on state officials—particularly the minister and the police—to determine what these offences meant. Finally, the Act had wide implications for Ugandan society at large, including parents, counsellors, friends of LGBTI individuals, employers, health 65

It is the general view that the offence of sex “against the order of nature” refers to male-to-male intercourse and is rooted in the British Common Law offence of buggery or sodomy, first set down in the Buggery Act of 1533. Over the years, it has been defined to mean anal or oral intercourse by a man with a man or woman, or vaginal intercourse by either a man or a woman with an animal.

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practitioners, academics, and journalists, as well as civil society activists and human rights defenders. All in all, the Act was an unmitigated disaster for protection of the rights of sexual minorities, but it also greatly impinged on the democratic freedoms and rights of those outside the gay community. At the same time, the strategy adopted by the petition was dictated by pragmatism. Parliament passed the AHB into law on December 20, 2013, ostensibly as the promised “Christmas gift” from the Speaker of the House, Rebecca Kadaga, to the people of Uganda.66 It was a lazy Friday afternoon, the last day of the parliamentary session before the Christmas recess. The bill had been smuggled onto the day’s proceedings at a time when the gallery was filled with proponents of the bill, including several religious leaders and conservative former politicians, while the human rights and LGBTI activists who opposed and had been tracking the bill’s development were nowhere near Parliament that day as they knew nothing of its inclusion on the agenda; the bill was not even listed as an item on the day’s order paper (Johnson 2014, 11–14). The process of passing legislation in Uganda has often been fraught with problems. Among the most serious of these is the question of quorum. The 1967 Constitution was largely silent on the issue, leaving the matter to rules of parliamentary procedure, which could be the subject of manipulation and gerrymandering. As a result, many laws were debated and passed in circumstances that left a lot to be desired, with an inadequate number of parliamentarians present for the process. In a bid to ensure at least minimal representation and an above-board process, the 1995 Constitution for the first time incorporated the issue of quorum into the mother law. Article 88 stipulated that “the quorum of Parliament shall be one-third of all members of Parliament.” For a time, there was no controversy over the matter, although it is doubtful whether the numbers were strictly adhered to. However, in the heated debate over the Referendum Bill in mid1999, the issue was raised by a member of the opposition in a bid to stop the passing of a law considered manifestly unfair to the opposition political parties. The matter ended up in court, producing one of the most tense and dramatic stand-offs between the Judiciary and the Executive since enactment of the new Constitution. The details in the case of Paul K. Ssemwogerere and Zackary Olum v. Attorney General67 need not detain us here save to note that the court declared there was no quorum when the Referendum Bill was passed, render66

See “Uganda to pass anti-gay law as ‘Christmas gift’,” November 13, 2012. Constitutional Appeal No. 1 of 2002 (SC). See also P.K Ssemwogerere and others v. Attorney General (Constitutional Petition No. 7 of 2000). 67

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ing it unconstitutional. However, in response the government amended Article 88, to state as follows: 1. The quorum of Parliament shall be one-third of all members of Parliament entitled to vote. 2. The quorum prescribed by clause (1) of this article shall only be required at a time when Parliament is voting on any question. 3. Rules of procedure of Parliament shall prescribe the quorum of Parliament for the conduct of business of Parliament other than for voting.

The above reformulation of the quorum provision sought to give Parliament more discretion in voting on bills. Despite the clear attempt to water down the law and subvert the court’s decision in Ssemwogerere, quorum nonetheless remained a mandatory provision of the Constitution. Given this history, the back-up position for the Oloka-Onyango petitioners was to revert to the issue of quorum.68 Indeed, this is what won the case, with the court deciding to hear argument only on this issue and declaring: It is our decision that the respondent having been presumed to have admitted the allegations of the Petitioners in the petition that there was no Coram, we find that on the balance of probabilities, the Petitioners have proved that at the time the Prime Minister (twice) and Hon. Betty Aol raised the objection that there was no Coram and Coram was never established, and that was in contravention of the Constitution and the Rules.69

Although the decision was thus considered to have been won on a technicality (Byekwaso 2014), it is clear from the judgment of the Constitutional Court that the issue of quorum in Uganda as a matter of fact, and law is a constitutional issue. According to the Court: Parliament as a law making body should set standards for compliance with the Constitutional provisions and with its own Rules. The Speaker ignored the Law and proceeded with the passing of the Act. We agree with Counsel Opiyo that the enactment of the law is a process, and if any of the stages therein is flawed, that vitiates the entire process and the law that is enacted as a result of it. We have therefore no hesitation in holding that there

68

There were other procedural defects, such as the failure to advertise the AHB debate in the Order Paper, as well as the failure to give appropriate consideration to legal concerns raised by the CLPA minority and majority reports and other MPs (Johnson, 2014, 27). However, these could not be considered as constitutional issues. 69 Judgment in Oloka-Onyango 2014, at 19).

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was no Coram in Parliament when the Act was passed, that the Speaker acted illegally in neglecting to address the issue of lack of Coram.70

The court found that resolution of the issue of quorum determined the whole case, and thus declared the AHA unconstitutional. Nullification of the law allowed for a collective sigh of relief among the LGBTI community and their allies. Conversely, the decision was met by expressions of outrage from members of the anti-gay lobby, who immediately began a drive aimed at re-introduction of the law,71 and a spike in vigilante homophobic attacks against individual members of the community. On the positive side, Amnesty International pointed out that nullification of the AHA helped restore some confidence amongst healthcare providers that they would be able to treat LGBTI individuals (Amnesty International 2014, 65). However, Amnesty’s report went on to note that section 145 of the Penal Code, which prohibits sexual intercourse against the order of nature, remains a threat hanging over the rights of LGBTI persons in Uganda. The report also noted lingering fear about possible arrests of LGBTI individuals for visiting groups that offer health and counselling services to the community. In sum, nullification of the AHA did not mean that the homophobia it had stirred up dissipated, or that the courts would treat the issue more liberally if confronted with it again. Indeed, the spike in homophobia continued throughout debate and enactment of the bill, and even after nullification (CSCHRCL et al 2014). As noted by Akshay Khanna, the most peculiar aspect of the Ugandan story, perhaps, is that in the period of more than four years that the Law was a Bill, the state, the media, and sections of society, had already begun to behave as though it was, in fact, a law, routinely targeting NGOs and activists working in opposition to the Bill. The Bill, in other words, already had a social and political life even while it did not, strictly speaking, have the legal status as law in force. In this period it was impossible to challenge the instrument—it was not a “law” subject to judicial review and formal litigation. And yet, it was having the effect of Law, generating fear and action against LGBT folk, activists, artists and the like (Khanna 2014).

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Id., at 20. One Peter Naloda was outraged by the decision, but turned his wrath onto the members who had absented themselves from the parliamentary vote, suing for a declaration that those who stayed away on voting day had contravened their oaths of allegiance and the Anti-Corruption Act (Nsambu 2014, 6). 71

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The case of Jacqueline Kasha Nabagesera & 3 Ors. v. Attorney General & Anor (“Kasha-2”),72 decided after the AHA was enacted into law but before its nullification by the Constitutional Court, underscores the back and forth movement on these issues. The case was brought because the Minister of Ethics and Integrity, the Hon. Simon Lokodo, broke up a seminar that had been organized by the group Sexual Minorities—Uganda (SMUG) in the town of Entebbe, a few miles outside the capital city Kampala. The applicants in the case were the organizers of the meeting, who were suing the Attorney General (in his official capacity) and the minister Lokodo (in his personal capacity) for violating the freedoms of assembly and association. In response, the judge concluded that the minister was indeed justified in forcibly closing down the workshop. Turning the reading of the notion of “public interest” on its head, the court stated: My reading of the above provisions—i.e. Article 43 of the Constitution defining the term “public interest”—persuades me that it recognizes that the exercise of individual rights can be validly restricted in the interest of the wider public as long as the restriction does not amount to political persecution and is justifiable (and) acceptable in a free democratic society. Whereas the applicants were exercising their rights of expression, assembly, etc., in so doing, they were promoting prohibited acts (homosexuality) which amounted to action prejudicial to public interest. Promotion of morals is widely recognized as a legitimate aspect of public interest which can justify restrictions.

While the case was essentially concerned with freedom of expression and assembly versus the arbitrary exercise of state power by an errant government official, it is quite clear from the judgment that the court was reading much more into the case. Indeed, the judgment was all about homosexuality and moreover was approached with a thinly-disguised homophobia, as evident from the following passage of the judgment: In my ruling I have endeavored to come to conclusions that while the applicants enjoyed the rights they cited, they had an obligation to exercise them in accordance with the law. I have also concluded that in exercising their rights they participated in promoting homosexual practices which are offences against morality. This perpetuation of illegality was unlawful and prejudicial to public interest. The limitation on the applicants’ rights was thus effected in the public interest specifically to protect moral values. The limitation fitted well within the scope of valid restrictions under Article 43 of the Constitution. Since the applicants did not on a balance of probabili72

Judgment of Justice Stephen Musota in Jacqueline Kasha Nabagesera & 3 Ors. v. Attorney General & Anor, Misc. Cause No. 33 of 2012, [2014] UGHC 49.

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ties prove any unlawful infringement of their rights, they are not entitled to any compensation. They cannot benefit from an illegality.

The Kasha-2 case represented a serious setback following a series of cases that had witnessed consecutive successes of broad protections for sexual minorities in Uganda. While studiously avoiding making the connection to sexual orientation or questions of identity, the courts in the earlier cases of Mukasa and Kasha-1 were able to protect LGBTI individuals by simply treating them like other human beings. Even though the OlokaOnyango case brought the issue of same-sex erotics more directly to the surface, the court was nevertheless able to deliver a judgment that nullified the law without engaging the more controversial aspects of sexual orientation and gender identity. By contrast, the Kasha-2 case took the struggle back to the legal apartheid encapsulated in Section 145, which outlaws sex against the order of nature and related laws against idleness, disorderly conduct, or causing a public nuisance—which are often deployed to harass members of the LGBTI community. Furthermore, the judge in Kasha-2 also added considerations—such as the “promotion” of homosexuality—that could only have been derived from the anti-homosexuality bill, even though the events relating to the case occurred before AHB became law. The decision in Kasha-2 also gave a government agent inordinate power to take arbitrary, draconian action against an individual or group simply because of their sexual orientation. In effect, the decision basically granted government officials carte blanche not only to arbitrarily decide that certain conduct was illegal, but also to decide on the most appropriate action to take in response. The Kasha-2 case is especially dangerous because it reversed basic principles of the law—such as the burden of proof and presumption of innocence—underscoring a threat that should alarm and concern even those who are not gay. Even though the AHA has ceased to be law, other dangers persist. Aside from Section 145, other laws that are generally overlooked in discussing rights of sexual minorities may yet pose a serious threat to members of this community. The Global Commission on HIV and the Law pointed to more subtle laws that may be laws of general application, on adultery for example, that are applicable to people engaged in same-sex sexual conduct while married to a person of the opposite sex. Laws may be selectively applied to same-sex couples, such as laws on age of consent. Public order laws addressing lewd public behaviour or disorderly conduct have been regularly enforced in gay venues, even where same-sex sexual behaviour is not per se illegal.

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The case of Uganda represents the extreme. How have sexual minorities been treated by the courts of law in Kenya and Tanzania?

The Treatment of Sexual Minorities in Tanzania and Kenya In the immediate aftermath of the AHA’s enactment in Uganda, there were calls in Kenya and Tanzania for similar legislation to be passed (Byrd 2014), and Tanzanian MP Ezekiel Wenje claimed to have submitted a draft titled “the Bill to Prohibit and Control any form of Sexual Relations between Persons of the Same Sex, 2014,” as a private member’s bill (Muga 2014). However, despite the occasional outburst by religious and political conservatives vowing to stamp out the practice, not much more was heard about the issue in either country, and neither Kenya nor Tanzania has taken the debate to the level it reached in Uganda. This does not mean that the two countries are more liberal—perhaps just that they are not quite as extreme in their views. Issues of same-sex orientation and the situations of sexual minorities have been of concern in both countries for some years. Let us start by looking at the case of Tanzania. Like Uganda, Tanzania inherited its legal infrastructure on sexual minorities after becoming a mandated territory of the British following the Second World War, and this regime has largely remained in place throughout colonialism and since independence (Moen et al. 2014a and 2014b). The Penal Code Act dates back to 1945 and adopts the same template as that of other East African countries, with section 138A (acts of gross indecency), 154 (carnal knowledge against the order of nature), and 157 (indecent practices between males). However, amendments have been made resulting in heightened sentences for some of these offences; for example Zanzibar passed an amendment in 2004 that equated the punishment for attempting to engage in same-sex relations with that of murder (International Lesbian and Gay Association 2008). Remarking on a UN Human Rights Council review, a number of organizations pointed out that these policies tend to equate “sexual orientation (a person’s sexual and emotional attraction to people of the same sex, another sex, or both sexes) with sexual activity (a man/woman having sex with a man/woman)” (Centre for Human Rights Promotion et al. 2009). The point has also been made that Tanzania’s penal code reaches far beyond private, adult same-sex sexual activity. All in all, the general view of

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same-sex erotics in the country is that they are “immoral, against nature, and a threat to society” (Scharf 2014, 9). The gay community in Tanzania is “hidden and secretive” but exists, and according to Bryan Wiener “is thriving in its own manner” (Weiner 2014). Field work conducted in 2014 by the organization LGBT Danmark shows that the LGBTI community in the country “is slowly growing stronger, but is still scattered and characterised by small constituencies. Furthermore, there is very little coordination among the various LGBT NGOs” (Scharf 2014, 16). In an appendix to its report, LGBT Danmark defines five categorizes of these organizations,73 from those that don’t differentiate between categories of sexual minorities to non-LGBTI groups that provide support to the LGBTI community. The report counts fortyfour such organizations, including the LGBTI support group of the Centre for Human Rights Protection, the Tanzania Rainbow Forum (TARAFO), Amka Empowerment (AE), and Blue Girls (BG). Despite a growing associational life, James Wandera Ouma, reportedly the director of the LGBTI group known as WEZESHA, was detained by the police for several hours in late 2011 and only released on condition that he refrain from further activism on LGBTI issues (Global Alliance for LGBT Education [GALE] 2011). Perhaps in response to this threat, WEZESHA seems to have gone into hibernation, although Ouma himself resurfaced as the Executive Director of LGBT Voice Tanzania, which has largely an online presence.74 Ouma summarizes the current situation of LGBTI people in Tanzania as follows: Homophobia against lesbian, gay, bisexual and transgender (LGBT) individuals and activists in Tanzania is well known. The challenges vary from everyday personal hardships to high-level factors such as hostility from civil society organizations, religious bodies, government, and law enforcement. In many cases, homophobia is perpetuated by policies that criminalize homosexuality or neglect our basic human rights. Harassment, rejection, and violence lead many of us to actively hide our feelings and relationships, denying ourselves the social support that could improve our health and quality of life (Ouma 2013).

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The categories are: 1) LGBT (non-differential), five groups; 2) LBW and female-to-male transpeople, eight groups; 3) MSM and male-to-female transpeople, thirteen groups; 4) sex workers (both hetero and homosexual), eleven groups; and 5) non-LGBT groups providing support to LGBT organizations and individuals, seven groups. In total the number comes to forty-four (Scharf, 2014, 17–18). 74 See http://lgbtvoicetz.org/.

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In contrast to the situation in Uganda, Tanzanian courts have not featured prominently in either assertion of rights by LGBTI activists, or conversely in state attempts to curtail rights via draconian penal provisions. However, as already noted, harassment and intimidation are a staple diet for the LGBTI community in Tanzania. Turning to Kenya, British inherited law is applicable here as elsewhere, having been enacted as far back as 1897 (Finerty 2012, 436–438). Although uncommon, there have been criminal convictions on the basis of these laws. For example, in 2002 one Francis Odingi was sentenced to six years in prison for having “carnal knowledge of M.O. against the order of nature.”75 Serious concern about same-sex sexuality issues first surfaced in bold relief during a constitutional debate over whether to include the right to non-discrimination on the basis of sexual orientation as a provision in the new constitution, a recommendation that was ultimately rejected after extensive public debate. The debate followed hard on the heels of adoption of the 2010 constitution, in the context of public hearings over appointment of a new Chief Justice.76 Among the candidates was Willy Mutunga, a scholar-activist who had strong public backing for the position, but who as director of the Ford Foundation in Nairobi had supported the setup and operation of several gay rights organizations in the country (FIDA 2012). On meeting the parliamentary Committee on Implementation of the Constitution (COIC), Mutunga was forced to address the issue of his own sexual orientation because some church leaders had objected to the ear stud that he wore, which ostensibly put into question “his morality and probably even (his) sexual orientation” (Njioka 2011). Mutunga retorted that he wore the stud as part of his religion, and that it was an act protected in the same way as the right of a Catholic to wear a rosary. Following a direct question from Runyenjes MP Cecily Mbarire, Mutunga responded, “let me say it straight out, I am not gay. And having said that, let me say also I do not discriminate against gay people. That will be my straight answer.” The response closed the debate on the issue; given his strength as a candidate, the Committee had no choice but to recommend his appointment, which was enthusiastically welcomed by civil society activists throughout the region. On the whole, Kenya has a vibrant and active LGBTI community, which persists in advocacy despite government-led outbursts and hostility from the general public (Equal Rights Trust & Kenya Human Rights 75

(2006) 2011 e.K.L.R. (C.A. Nakuru). He was not given a higher sentence because he was a student at the time of the offense. 76 As one commentator sarcastically stated, “Kenyan justice is a sex thing, and orientation is at the centre of it” (Makokha 2011, 12).

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Commission 2012, 114–130). LGBTI activism in Kenya dates back to the late 1990s and is both more apparent and more tolerated than the same activities in Tanzania or Uganda (Kenya Human Rights Commission [KHRC] 2011, 2). For example, although he withdrew from the race early largely due to financial reasons, openly gay activist David Kuria ran for election to the Kenya Senate in 2012 (Smith 2012). Such an act would be hard to duplicate in either Uganda or Tanzania. Groups such as the Gay and Lesbian Coalition of Kenya (GALCK) have a fairly prominent profile in the wider human rights community, while local groups such as Me and You (in Meru) and the Kisumu Initiative for Positive Empowerment (KIPE) operate outside Nairobi, manifesting a much wider outreach than their counterparts in Uganda and Tanzania. A common problem is that LGBTI activists are still denied registration of their organizations and thus remain marginalised. As the Kenya Commission on Human Rights (KHRC) observed: Human rights advocacy and responses by (mainstream) Civil Society Organizations (CSOs) to human rights abuses against LGBTI persons have been few, reactionary, and lacking in strategic focus. Moreover, the interventions rarely address the real source of the problem (criminalization), nor do they build on past responses. Further to this is an absence of mainstreamed LGBTI programmes in most organizations, especially those that deal with women and gender issues (KHRC 2011, 3).

That situation has now changed with a 2014 decision delivered by the High Court. In the case of Eric Gitari v. NGO Co-ordination Board & the Attorney General,77 the court found that the grounds on which the Board sought to deny the group registration violated the Bill of Rights. In a decision that was erudite in its exposition of the transformation heralded by the 2010 Constitution, the Court roundly condemned the Board, holding: The upshot of our findings…is that the Board infringed the petitioner’s freedom of association in refusing to accept the names he had proposed for registration of his NGO, thereby in effect refusing to contemplate registration of the proposed NGO. There is a whiff of sophistry in the recommendation by the respondent that the petitioner register his organisation, but by another name. What this recommendation suggests is that the petitioner can register an organisation and call it say, the Cattle Dip Promotion Society, but carry out the objects of promoting the interests of the LGBTIQ

77

Petition No. 440 of 2013 [2015] eKLR.

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community, which suggests that what the Board wants to avoid is a recognition of the existence of the LGBTIQ groups.78

While this decision represents a major boost for sexual minority groups in Kenya, and the general context for operation of such groups is bound to become more tolerant, the community still faces a whole range of rights violations familiar in both Uganda and Tanzania—including harassment by state officials, stigma and exclusion by family and society, physical violence and threats of death, expulsion from learning institutions, blackmail and extortion, medical research abuse, poor access to health care, and a lack of comprehensive services (KHRC 2011, 20–41). The KHRC points clearly to the root cause of the problem: The criminalisation of homosexuality is a legacy which has now passed its use-by date. The colonial laws from which the criminalisation of homosexuality emanates have no place in a world where central to the stability of a society is the need to respect cultural variety. For such reasons, convicting those who have been found to engage in homosexuality activity has no place in a modern society (KHRC 2011, 48).

Concern about the criminalization of same-sex relations and the use of the courts to uphold the rights of sexual minorities culminated in a challenge against the use of anal examinations against persons alleged to have engaged in homosexual activity by the Kenyan police (Gaffey, 2016). However, the court found that there were sufficient grounds for the police to carry out such examinations in order to adduce the required medical evidence. Moving on from the issue of sexual orientation, the chapter concludes by looking at the situation with respect to transgender and intersex individuals.

A Note on the “T” and the “I” Most analyses of sexual minorities concentrate on the issue of sexual orientation; thus an inordinate degree of attention is given to the “L” (lesbian), the “G” (gay), and the “B” (bisexual). Much less attention is given to the “T” (transgender) and the “I” (intersex), or indeed to the issue of non-conformity with gender norms, all of which relate to the question of gender identity rather than sexual orientation. Such non-conformity is a factor that facilitates stigma and ostracism (Amnesty International 2013, 47–57). Indeed, threats of persecution “confine individuals to strict gender 78

Id., 46.

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and sexual norms for fear of being labelled LGBTI; as a result, [such ostracism] maintains power inequalities between men and women. Lesbians and women who have sex with women are particularly vulnerable to the effects of strict gender norms, which are perpetuated by anti-homosexuality laws” (KHRC 2011, 47). Needless to say, East Africa has also recently had to come to grips with the complexities presented by intersexuality and transgenderism. There are major issues that affect this category of individuals. As the KHRC points out with respect to the situation in Kenya, which is also applicable elsewhere: There is no legal framework that allows or facilitates Transgender and Intersex individuals to choose their gender and have it recognized by law; most intersex individuals are taken through unnecessary corrective surgeries when they are born or simply assigned a gender role and raised as such without being given a chance to choose their gender or undergo a sex correction surgery when they are of age. The transgender persons suffer lack of legal recognition and are legally bound to a gender they do not want to identify with (KHRC 2011, 42).

The legal and policy responses to issues relating to transgender and intersex individuals have been mixed. Once again, Uganda leads the way with the most extreme reactions. Transgender and intersex individuals have been subjected to all forms of harassment, including hate crimes; transgender women in particular have been subjected to accusations of masquerading in order to dupe and extort money from the public. Alternatively they are accused of being homosexual, confusing the separate issues of gender identity and sexual orientation. In addition to being ostracized, barred from housing, and suffering all manner of discrimination in their places of employment, some have also been beaten or faced lynch mobs. The HRAPF/CSCHCRL report on the enforcement of laws criminalizing same-sex conduct in Uganda summarizes the situation well, pointing out that just being a transgender or intersex person is apparently sufficient to satisfy the police that one is a homosexual engaged in “carnal knowledge against the order of nature” (HRAPF/CSCHCRL 2013, 61). To compound matters: The persons arrested are not informed of their rights, and the whole circumstances are so humiliating that the suspect cannot reasonably be said to be having a fair trial. When a suspect cannot pay a bribe and charges are placed, and where suspects have no lawyer, persons such as Brian Mpande and Fred Wesukira are not availed of the right to a hearing on bail. Demands for bribes, coupled with ongoing harassment, ensure that suspects cannot have a fair trial. Suspects are also kept in police cells for more than

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The most recent manifestation of the phobia against transgender and intersex individuals was apparent in the Ugandan parliamentary debate over the Registration of Persons Bill, 2014. Clause 39 of the committee’s report suggested adoption of the following provision from the earlier Births and Deaths Registration Act: If a child, after being registered, either through an operation or otherwise, changes from a female to a male or from a male to a female and the change is certified by a medical doctor, the registrar of the births and deaths registration district in which the birth is registered shall, with the approval of the Executive Director and on the application of the parent or guardian of that child, alter the particulars of the child which appear on the births register.79

An immediate interjection was raised. What followed exemplifies the knee-jerk reaction of Ugandan politicians to anything even remotely connected to sexual minorities. It is thus in order to quote extensively from the Hansards of the day: Chairperson: Honourable members, order! Mr Ekanya: Madam Chair, is it in order for the chairperson of the committee to read a statement that is derogative to the Constitution of the Republic of Uganda? Chairperson: Honourable members, my understanding is that she is reading the provisions of the law which exists. Ms. Namugwanya: Madam Chair, what I am reading here was imported from the Registration of Birth and Death Act of 1973 of the Republic of Uganda (Hansards 2015, 242).

Despite the clarification, the response of members of parliament reflected a fixation with an issue that was in fact not the subject under consideration, homosexuality:

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See Section 14 ‘Change of sex of child,’ the Births and Deaths Registration Act, (Cap.309, Vol. XII, 2000 Laws of Uganda).

Contesting the Gendered Agenda Ms Betty Amongi: Thank you, Madam Chairperson. I have no problem with the importation of the law except when it comes to the provision related to a man changing to a woman [laughter] or a woman changing to a man. It is good that the chairperson indicated that those Acts were of 1973 and under our new law, the 1995 Constitution Article 31(2)(a), it states that marriage between persons of the same sex is prohibited. And the provision which talks about any law that contradicts the Constitution is null and void. So in other words, when we come to delete that particular one, it will be in tandem with it; in fact a law, which contradicts the 1995 Constitution would be in tandem with that particular one (Hansards 2015, 248).

The chair sought to bring some clarity to the matter: Chairperson: Honourable members, I think we should be a bit careful. There are people who are hermaphrodites; who are born with two sexual organs and at some stage you must decide whether you are going to be a man or a woman [laughter]. Honourable members, this is serious, it is not a joke. There are hermaphrodites in this country. These are born with two sexual organs. There are people who have both a male and female organ and it is the same person.

Needless to say, the House had already fixed its mind on the matter: Ms. Alaso: Thank you, Madam Chairperson. I think that God has accorded us an opportunity in this bill that we are considering to correct something which is now very explosive. I would like to take cognisance of the fact that there are Ugandans that are born hermaphrodites and there will be need for corrective surgery. But, for us to carry forward these 1973 anomalies in the law which talked of “Otherwise”; what does “Otherwise” mean in our time? We need to boldly contextualise this and read into the possible interpretation in our day and era. My heart goes out for the children of this country that are being adopted by homosexuals. We read just a month ago, a little boy who was called Jack being told to change into a girl to be called Jacqueline and they took the little fellow who cannot consent, or understand the times, they cut out what they wanted to remove and turned the fellow into a Jacqueline. This is the time for us to protect the children of this country [applause]. Who [is] going to help the people who are abused? For tonight, let us be very specific. If we want to say we want our brothers and sisters, who have a disability and anomaly at birth to have a corrective surgery, let us be very specific. But we can no longer leave it to chance. Madam Chairperson, if you are born and your leg has a problem, and they correct it, it does not change you to something else. You just get facilitated to be better. That is the corrective surgery Dr. Bitekyerezo has been telling

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Chapter Four us about. I think it would be very dangerous in this day and era to leave this provision which is even like Hon. Betty has said—against the provisions of our Constitution! Let us amend it (Hansards 2015, 249 [emphasis added]).

Quite clearly, the ghosts of the AHA were once again on the loose in the House. The Speaker was forced to adjourn proceedings to the following day on account of the ruckus the debate had generated. Given the general atmosphere prevailing in Uganda, it is not surprising that no attempt has yet been made to institute a public interest action on the behalf of transgender or intersex individuals. In Kenya, the knee-jerk reaction of the courts to the issue of intersexuality was evident in the case of Richard Muasya v. Attorney General.80 In that case the petitioner sought the recognition of a third gender and damages for poor treatment at the hands of government health authorities. The court accepted that the petitioner had indeed been inhumanely treated and awarded him five hundred thousand Kenyan shillings (about US$5,000). At the same time, however, the court noted that the law recognized only two sexes and that protecting intersex people from discrimination using an “other status” category necessitated recognition of a third gender category. Arguing that Kenyan society was not ready for such a development, the court stated, “Kenyan society is predominantly a traditional African society in terms of social, moral and religious values. We have not reached a stage where such values involving matters of sexuality can be rationalized or compromised through science.”81 The court reached a somewhat different conclusion on the Transgender Education and Advocacy (TEA) organization’s application for judicial review.82 In this case, the NGO Coordination Board refused to register the organization, citing a string of flimsy reasons covering for their trepidation over the issues that such a group would address. The case brought to the fore the question of whether it was appropriate to refuse registration to an organization established to advocate for the rights of transsexuals. The Board had in fact refused to register TEA, despite having received all the necessary documentation as per the regulations governing NGO registration in the country. The ostensible reasons were that the names and passport photograph sizes of two of the officers in the application were different from those on their national identification cards.83 The Board also 80

[2010] eKLR (HCK) (Kenya) Misc. Civ. Applic 890 of 2004). Id., para. 148. 82 Miscellaneous Application No.308A of 2013. 83 Id., paras.11 and 12. 81

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claimed that the applicant’s change of gender had put a halt to the registration process since there was an ongoing court case where Audrey Mbugua (the TEA chairperson) had “sued the national examinations council seeking the removal of the male gender mark from his academic certificate to reflect her female status.”84 The Board also claimed that it had not refused registration of TEA but was “awaiting the outcome of a pending case in which some (TEA) officials had sought to officially change their names and gender.”85 The court found that the grounds of refusal were wrong, given that officials on an application were not required by the Act to state their gender. The court very clearly stated that the introduction of the issue of gender by the first respondent as a ground for refusing registration, however, is not one of the considerations in deciding whether or not to decline registration. By introducing that issue the first respondent has obviously introduced and considered an irrelevant factor.86

Having reviewed the law relating to the exercise of discretion and finding that the NGO Board had not acted correctly in denying the application for registration, the court concluded, “it is my view that to discriminate… and deny [persons] freedom of association on the basis of sex or gender is clearly unconstitutional.”87 Why was the decision in the TEA application important? In the first place, it marked a significant departure from the Muasya case, which adopted an ostrich-in-the-sand position on the question of sexual diversity. Secondly, by allowing the TEA application the court affirmed the importance of granting marginalized minority groups the right to recognition and a voice in civil society. Often the ability to organize and express oneself is the elemental foundation of asserting one’s rights; indeed as Chris Peter and Nakazeal Tenga point out, the right of association is the “mother of all rights” (Tenga and Peter 1996). The TEA case is also significant because it gave voice to a constituency (alongside intersex persons) that is often described as “forgotten” (Kaggwa 2011). Lastly, the TEA case confirmed the essential viability of the constitutional bar against discrimination enshrined in the 2010 Constitution. While numerous issues of concern remain regarding the rights of intersex and transgender people in Kenya, the TEA case has at least made a start.

84

Id., para. 13. Id., para. 28. 86 Id., para. 31. 87 Id., para. 36. 85

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Action on intersex identity was given a boost with the Baby A case,88 which sought legal recognition and protection of intersex children, with a guarantee of equal rights. In addition, the applicants requested that all nontherapeutic surgery on intersex infants be approved by law; they sought guidelines, rules, and regulations on the treatment of intersex children; and they requested a court order directing the government to investigate and collect data on intersex children in Kenya.89 While refraining from ruling on whether or not there should be a third gender—an issue the court said should be left to Parliament—the court referred to Article 27(4) of the 2010 Constitution. According to the court, the article categorically states that there shall be no discrimination “on any ground” from that provision. An inclusive provision is not exhaustive of all the grounds specifically mentioned therein, including sex. That finding will therefore have to mean that intersexuals ought not to be discriminated against in any way, including in the issuance of registration documents such as a birth certificate.90

The court also extended its ruling to intersex persons in general as opposed to the specific interests of only Baby A. The court directed the government to develop guidelines for governing, among other things, the registration of, medical examination and corrective surgeries needed for, and data collection on intersex children.91 In addition, the recent “Persons Deprived of Liberty Act” (2014)92 not only defined the term “intersex” but also introduced several new protections in terms of rights to privacy, health, and medical treatment.

Conclusion In concluding this chapter, it is quite clear that courts have played a central role in supporting the achievement of women’s rights via public interest litigation. While the outcomes have sometimes led to mixed results (e.g. the 160 Girls and FIDA-U decisions), or even retrogression (as 88

Baby A & the Cradle v. the Attorney General & Two Others, Constitutional Petition 266 of 2013. 89 Id., para. 61. 90 Id., para. 61. 91 Id. paras. 67 and 68. 92 Accessed at: http://kenyalaw.org/kl/fileadmin/pdfdownloads/PersonsDeprivedofLibertyBill 2014.pdf.

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with the Gender Matter and Mifumi-1 cases),93 the general movement in East Africa has been positive. Issues such as abortion, bride price, and cohabitation will remain hot-button topics for a considerable period of time, and there is no indication of which direction they will go if subjected to judicial intervention. The timing and framing of strategic litigation on such issues will thus have to be carefully considered. The recent decisions and developments in Kenya on transgender and intersex people point to some hope on the horizon if their lessons in balance and sobriety can be taken across the border into Uganda and Tanzania. That is not to say that progress will be easy, given the time it has taken for societies around the world to come to grips with the varied dimensions of sexual orientation and gender identity.94 While there has been considerable discussion of decriminalization in relation to lesbians and gays, numerous factors will have to be taken into account before court action can be initiated. Ironically, while the Ugandan courts have had the most engagement with the issue, action in those courts at this time would be illadvised. The experiences we have recounted lead us to ask how appropriate courts of law are for the kinds of battle encapsulated in the cases reviewed here. In many respects, the Oloka-Onyango victory over the AHA in Uganda was bittersweet. The fact that the case turned on the issue of quorum meant that the more substantive rights issues were not tackled. In other words, the court found an easy way out, nullifying the law without addressing the very controversial substantive rights issues that the AHA raised. That means there still has not been a comprehensive judicial engagement with the issue of discrimination on the basis of sexual orientation. This leaves the ominous possibility that fresh legislation could be introduced with the goal of legally obliterating same-sex orientation entirely from Ugandan society.95 In such a situation, there is no telling which direction the courts might move. 93

The Mifumi decision was partially successful on appeal with the Supreme Court ruling that the refund of bride price was unconstitutional. See Mifumi (U) Ltd & Anor v. Attorney General & Anor, Constitutional Appeal No.02 of 2014. 94 As the New York Times points out, “For years, writers and academics have argued that gender identity is not a male/female binary but a continuum along which any individual may fall, depending on a variety of factors, including anatomy, chromosomes, hormones, and feelings. But the dichotomy is so deeply embedded in our culture that even the most radical activists have been focused mainly on expanding the definitions of the two pre-existing categories” (Scelfo 2015). 95 Recent press reports indicate that this is precisely what has happened. The new bill is called the Prohibition of Unnatural Sexual Offences Bill, 2014 (Danielsen & Imaka 2014).

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As was demonstrated in the Naz case heard in the Indian Supreme Court, the age-old battles over separation of powers and claims of overjudicialization of social issues are also implicated in East African court interventions. At the regional and international levels, there are questions of cultural relativism and charges of “sexual imperialism” (Nyanzi 2014). In the heat of the debate over AHA, World Bank President Jim Yong Kim waded in, condemning the law in an op-ed piece. “Institutionalized discrimination is bad for people and societies,” he wrote. “Widespread discrimination is also bad for economies. There is clear evidence that when societies enact laws that prevent productive people from fully participating in the workforce, economies suffer” (Kim 2014). While his sentiments on the law were correct, the action was viewed as hypocritical given the Bank’s ominous silence on a myriad of other human rights violations.96 At the end of the day, there is no doubt that the basic rights of the marginalized and persecuted will triumph, even if the battle is long, rough, and lonely. Although his comments related to women’s rights, JP Amissah’s judgment in the famous case of Unity Dow v. Attorney General of Botswana is apposite regarding discrimination against sexual minorities: Today, it is universally accepted that discrimination on the ground of race is an evil. It is within the memory of men still living today in some countries that women were without a vote and could not acquire degrees from institutions of higher learning, and were otherwise discriminated against in a number of ways. Yet today the comity of nations speaks clearly against discrimination against women. Changes occur. The only general criterion which could be put forward to identify the classes or groups is what to the right thinking man is outrageous treatment only or mainly because of membership of that class or group and what the comity of nations has come to adopt as unacceptable behaviour.97

In sum, discrimination against sexual minorities will also end. However, the demise of such discrimination will in part be contingent on the extent to which we are able to address one outstanding and still resilient phenomenon affecting society, the question of poverty. Poverty is intimately related to the realization of economic, social, and cultural rights and is the subject considered in the following chapter. 96

As Andrew Mwenda—one of the co-petitioners in the Oloka-Onyango case— points out, “law is (and must be) a reflection of the values, beliefs and traditions of the society that it governs. No state, democratic or authoritarian, can force a lifestyle on a society which 90 percent of the population sees as an abomination (Mwenda 2014, 9).” 97 African Human Rights Law Reports. 2001. AHRLR 99 (BwCA 1992), at para. 90.

CHAPTER FIVE POVERTY AND RESOURCES: WHAT HAVE COURTS GOT TO DO WITH IT?

At the end of 2014 Kenya joined the group of middle-income countries, becoming the first in the East African/Great Lakes region to do so. Despite a setback resulting from the rise in terror attacks over the past few years, Kenya’s recent economic growth has been around 5.7 percent annually (World Bank 2015). The country’s use of mobile telephony, represented by the M-Pesa phenomenon for transferring resources throughout the country and the region, has been extraordinary (Graham 2009, 136). Indeed, Kenya is the undisputed leader in “mobile walleting” or banking, with sums in excess of US$200 million per year transferred around the country through the touch of a mobile phone button—or increasingly— through “a tap on an app.” Thanks to M-Pesa and other forms of electronic money transfers, the vast majority of Kenyans now “bank” via mobile phone. And yet, when M-Pesa was first introduced in 2007 the reaction was one of dismissal and opposition, particularly from the commercial banking community. Today that community is playing catch-up and ruing the day it missed getting on board this particular bandwagon. What has Kenya’s economic performance and M-Pesa got to do with the issue of public interest litigation in East Africa? In the same way that M-Pesa adopted a non-traditional lens for viewing “customers” and “banking,” so an out-of-the-box perspective must be adopted to appreciate the usefulness of public interest litigation as a tool for moving people out of poverty and into the realization of their economic, social, and cultural rights (ESCRs). Put differently, the struggle to eradicate poverty cannot rest solely on higher growth rates or an increased share of the market for goods and commodities, especially in a context of high and growing levels of inequality (Society for International Development 2004). Rather, that struggle must be viewed through the lens of human rights and sustainable development, especially in relation to dispossessed groups and communities. The struggle must also take into account the many other forms of marginalization, e.g. disability, gender, sexuality, and age, to mention only

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a few. These conditions are tied to structural conditions of exclusion, including ethnicity, racism, corruption, unequal access, and the barriers erected through the imposition of a socioeconomic glass ceiling (Spicker 2003, 131–134). Understanding this intersectionality—or promoting the ability to see the world through multiple lenses of identity, inclusion/exclusion, and status—is crucial to addressing the barriers to improved prosperity. Without this perspective, it would be hard to comprehend, in the midst of all the prosperity Kenya has recently experienced, the simultaneous dramatic increase in socioeconomic inequality (East African Centre for Human Rights 2014). Economic, social, and cultural rights were long treated as poor second cousins to civil and political rights (CPRs) such as the rights to free expression, a fair trial, assembly, and the right to political opposition (O’Connell 2012, 1–5). Comprehensive recognition of ESCRs entails the promotion and protection of rights to basic necessities such as appropriate shelter or housing, food and adequate nutrition, satisfactory health care and services, and a basic education. Where ESCRs are ignored or given inadequate attention, the levels of poverty and disempowerment tend to be high and on the increase as citizens are unable to meet the basic necessities of life and sustenance. But the approach to meeting these needs must be a holistic one. As Amartya Sen argues with respect to the question of hunger: The prevalence of widespread hunger in the world calls for critical analyses of the diverse causes that can reduce people’s entitlement to food and restrain their capability to remove and conquer hunger for all people— children, women, and men. A much broader approach is needed than can be obtained from a narrow concentration on food production only. Even though the output of food is an important component of the collectivity of factors that influence people’s nutritional security and the avoidance of hunger, there are many other factors that are also involved (Sen 2013).

It is important to point out that there is also an intricate link between ESCRs and CPRs because rights of expression, assembly, and association find best manifestation in a context of holistic well-being. Indeed, as Sandra Liebenberg (2010) avers, the boundary between the two categories of rights is porous (Liebenberg 2010, 35). Excluding ESCRs from the ambit of binding state obligations implies that the most marginal in society are condemned to an incomplete and inhumane existence. To paraphrase Nelson Mandela, giving a person the right to vote without the attendant right to eat caters to only one half of what it means to be human. The converse is obviously also true. Being able to eat while forced to keep your mouth shut is equally debilitating.

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And yet, for a long time ESCRs were not regarded as “real” rights. Governments preferred to take refuge in moral exhortation rather than decisive enactment of binding legal obligations to address the protection and implementation of these rights. An approach rooted in welfarism dominated this category of rights: “we will give them to you if we can, but they are not yours as of right.” This explains why, during the spate of privatizations and structural adjustment programs implemented by all three East African countries in the 1980s and 1990s, government support to public housing, healthcare, and social security witnessed a serious decline. Correspondingly, the failure of the state to provide these basic necessities was viewed as a mere shift in policy perspective, not a negation of the State’s legal obligations. Thus, most of the measures adopted by the State were not challenged in a court of law, although other forms of challenge— protest, sabotage, and non-cooperation among them—were often pursued. The failure to protect and enforce ESCRs is intimately linked to poverty and marginalization. Drawing on this linkage, three elements must be at the core of all efforts to tackle poverty and social exclusion. These are equity, sustainability, and accountability (Fukuda-Parr 2012). As former UN High Commissioner for Human Rights Navi Pillay stated: “The litmus test of development is the degree to which any strategies and interventions satisfy the legitimate demands of the people for freedom from fear and want, for a voice in their own societies, and for a life of dignity.”1 Short of meeting these conditions, the results will be both inconsistent and unsustainable (Liebenberg 2010, 36). In light of the above, this chapter examines the extent to which ESCRs have been the focus of attention in East African public interest litigation. We begin by asking a basic question: are such rights justiciable? In other words, is the right to food or the right to adequate shelter an entitlement that can be mediated through the mechanism of court action in the same way, for example, as the right to free expression? The justiciability question is important not only because of ESCRs’ historical relegation to the level of mere gifts from the State, but also because the jurisprudence and experience of addressing this category of rights in East Africa has been quite intriguing. Particular attention will be given to the 2010 Kenyan Constitution, which for the first time in the history of the region directly incorporates ESCRs into the Bill of Rights provisions, specifically in articles 43 and 46. How have Kenyan courts responded to this development?

1

Emphasis in original. Accessed at: http://www.ohchr.org/EN/NewsEvents/Pages/Display News.aspx?NewsID=14652&LangID=E

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Moving on from the justiciability question, the chapter then considers how public interest litigation and judicial engagement with the issue of land—especially land belonging to indigenous peoples such as the Batwa in Uganda, the Endorois in Kenya, and the Maasai in Tanzania—has aided or hindered the empowerment of marginalized communities. The lands on which such communities sit usually comprise considerable resources, both above and below surface. Such lands are invariably held under a framework of governance that gives pride of place to the communal or collective well-being of the whole, rather than to the narrow interests of individual citizens. These circumstances provide fertile ground for dispute between proponents of private ownership, with its incumbent opportunities for appropriation and exploitation of land; and advocates for communal management, which aims to preserve the cultural values associated with the occupation of such lands. The chapter also examines the right to a healthy environment and the different ways that courts in the region have acted to protect that right. Focusing on this topic helps us to see the links between socioeconomic and political rights, and throws more light on rights belonging to or exercised by a discrete group or community. In the environmental arena, public interest litigation has been significantly deployed in all three East African countries. Finally, we will consider the question of cultural rights. Ironically, the “C” is often forgotten in the ESCR debate. Our discussion of cultural rights is first an attempt to ensure a comprehensive debate of the topic and secondly a bid to return to a question that has brought to the surface many complexities in engaging PIL—the phenomenon of Customary Law.

On the Contested Justiciability of Economic, Social, and Cultural Rights There are many reasons why economic, social, and cultural rights— unlike civil and political rights— initially met serious resistance to court enforcement; indeed in many countries, ESCRs are violated with impunity and no redress. It has been argued that ESCRs are vague and their content indeterminate (International Commission of Jurists 2014, 2). Concerns have also been raised about the kinds of remedies available. However, the primary obstacle to court enforcement of ESCRs has been the question of justiciability, or the assertion that such rights—dependent especially on the availability of resources—are not amenable to judicial process (Mashamba 2008, 42–46). The argument is that the Executive and Legislature are best suited to determining how to distribute the national purse. For courts to

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intervene in these processes would amount to an unjustified intrusion into powers explicitly allocated to the two other branches of government. According to this argument, the allocation of resources is essentially a matter of policy—and courts do not make policy. Put simply, to be “justiciable” means that an issue can be the subject of a court trial and can be decided on the basis of well-known legal principles. Even more simply, justiciability is the right to a remedy for a violation (International Commission of Jurists 2008, 6). In the case of Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General),2 Justice John Murphy of the Nova Scotia Supreme Court in Canada stated: Justiciability may be defined as a set of judge-made rules, norms, and principles delineating the scope of judicial intervention in social, political, and economic life. In short, if a subject-matter is held to be suitable for judicial determination, it is said to be justiciable; if a subject-matter is held not to be suitable for judicial determination, it is said to be non-justiciable. The criteria used to make this determination pertain to three factors: 1) the capacities and legitimacy of the judicial process; 2) the constitutional separation of powers; and 3) the nature of the dispute before the court.3

But the above definition fails to disclose the clearly ideological parameters within which the concept of justiciability was conceived and developed. The fact is that those who have been historically marginalized and deprived stand to lose the most from being denied their day in court. Those with resources and power rarely need to fret over access to healthcare, adequate shelter, or sufficient food, and they do not require an instrument of the State to guarantee their rights to these social goods; they simply purchase them or use their political clout to access what they need. Another argument made by those opposing court involvement in the enforcement of economic and social rights is that, unlike ESCRs, civil and political rights do not require resources for implementation. According to this claim, CPRs are classic “hands-off” rather than “hands-on” rights. By contrast, the State has to make a serious commitment of resources to give effect to ESCRs. This claim is simply not true (ICJ 2014, 9–12). Consider, for example, the resources that go into guaranteeing a fair trial or humane prison conditions, or cases where the state is ordered to pay compensation for acts of government-sanctioned torture and malfeasance. From this perspective, meeting the state’s obligation on the prevention of torture is not cheap. Or consider the regulatory framework, including expenditures on police needed to ensure that freedoms of assembly and association are 2 3

2008 NSSC 111 (CanLII); 267 NSR (2d) 21. Id., para. 21.

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protected. How about the right to vote, with attendant outlays for organizing, supervising, and mediating electoral contests? These can make a serious dent in state resources, especially as external aid is often needed to provide assistance. In fact, a decision to suspend aid in the run-up to an election can have serious consequences (Suruma 2014, 167). The reverse side to this argument is that, in many instances, resources are not required to guarantee the implementation of ESCRs. Consider the practice of eviction, which is invariably directed against the poor and marginalized, depriving them of the right to shelter or housing. Water and sanitation service policies, upon examination, also reveal an implicit bias against this group, with deliberately discriminatory policy choices that can be corrected by judicial intervention. Why is it that the collection of water in jerry-cans is a phenomenon largely confined to low-income sectors of society? It is fairly straightforward for courts to pass judgment on questions of equality and equity where state institutions have neglected these issues. How much does it cost to enforce a policy of social parity? Indeed, many economic, social, and cultural rights could be realized immediately—rights that are, in the words of the Chief Justice of Mauritius, “plainly and currently justiciable” (Pillay 2003, 1; International Committee on Economic, Social and Cultural Rights, 1998). Among these are equal rights for men and women, equal pay for equal work, the right to form and join trade unions with the attendant right to strike, and the rights of children to a whole host of basic needs including free, compulsory education, adequate healthcare, and freedom from exploitation (OlokaOnyango, 2007, 18). Viewed from the above perspective, it becomes very clear that the argument of non-justiciability is deployed not only to deprive the poor and marginalized of access to justice, but more importantly, to prevent challenges to the status quo. As Kabange argues, the justiciability of ESCRs is “implicitly a channel through which (the) poor are empowered to pursue a dialogue with public institutions involved in the implementation process of their rights” (Kabange 2014). Capitalist society is averse to providing such access because it upsets the unlimited pursuit of profit. This also has political implications. A clear example is the debate in the U.S. over “Obamacare,” the attempt to provide comprehensive health insurance to the most marginal and deprived members of U.S. society. Why is justiciability a point of contention? For an answer, one can retrace the history of human rights as articulated in legal documents, beginning with the 1948 Universal Declaration of Human Rights (UDHR). This declaration was followed by the two covenants of 1966—the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the

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International Covenant on Civil and Political Rights (ICCPR). Ironically, the earliest recorded legal articulation of a human right was in reference to the right to work—a classic ESCR—incorporated in the founding instrument of the International Labour Organization (ILO) in 1919. This document not only gave legal articulation to the right to work, it also covered work conditions (health and safety) as well as remuneration, marking the right to work as a central tenet in the development and operation of the welfare state. However, the ILO charter was passed before the onset of the Cold War, an age dominated by the ideological “Iron Curtain,” which descended over Europe in the aftermath of the Second World War and cast a dark shadow over further developments in the human rights arena (OlokaOnyango 2004, 4–5). The broad divide that dogged a rational development of international human rights after 1945 pitted the socialist states of Eastern Europe, led by the Union of Soviet Socialist Republics (USSR, today Russia) against the capitalist-oriented countries of the West, spearheaded by the U.S. While socialist states argued that socioeconomic and cultural rights were as important as civil and political ones, capitalist countries viewed socialist support for these rights as purely ideological. ESCRs were thus dubbed “socialist” rights, while CPRs were considered the quintessence of a functioning capitalist system and were dismissed by socialist countries as “bourgeois” privileges. This stand-off partially explains why the two categories of rights, in contrast to the UDHR, were enacted in different covenants (but see Whelan 2010, 134 and 214). It also explains why it took eighteen years to produce the covenants following adoption of the UDHR in 1948. The effort to reach agreement on a single instrument incorporating both categories of rights simply failed. The different formulation of obligations in the two instruments is attributable to the same divergence. Whereas CPRs were deemed to be subject to immediate realization, ESCRs were subjected to the progressive realization standard, which was further diluted by the “available resources” rider. Tagging the implementation of rights to the availability of resources provided an easy escape route for States seeking to evade their obligations with respect to these rights. All States—without exception— have expressed a strong commitment to improving the social and economic well-being of their citizens. However, lack of capacity is often raised as a major barrier to achieving this goal. States also shy away from being held legally accountable on this commitment. The battle against the justiciability of ESCRs has been a long and protracted one. But as was demonstrated in chapter 3, public interest litigation in India and South Africa has largely debunked the idea that such rights

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cannot be the subject of court adjudication. In India, the expansive reading of the right to life and the justiciable reading of the National Objectives provisions of the Constitution have amply demonstrated the point. South Africa directly incorporated ESCRs into its Bill of Rights, thereby decisively transforming, as Sam Adelman has observed, “debates about the nature, justiciability, adjudication, and enforcement of socio-economic rights” (Adelman, 2013, 559). Both countries have developed an impressive jurisprudence on this category of rights. Yet beyond the mere fact of being subject to court process, these rights are now subject to debate on how such intervention should be undertaken, starting with the fact that these rights are “ultimately…designed to provide certain entitlements and protections for the interests of individuals in having access to certain socio-economic resources” (Bilchitz 2014, 713). This implies two things. First, the State has positive obligations—to ensure that certain needs are met. Secondly, the State has obligations of a negative nature—to guarantee that the individual is not deprived of basic necessities through arbitrary action by the State or other legal entity (such as a corporation). As Bilchitz points out, such obligations “essentially protect people in their possession of the resources that they already have, requiring that no one harms their ability to use them to realize their socioeconomic interests” (Bilchitz 2014, 714). But like the right to property, ESCRs are only meaningful if a citizen is already in possession of them. Taken in combination, these obligations cover a range of socioeconomic rights that the modern State is bound to respect. Elsewhere, I have designated these obligations as follows: viz., the obligations to recognize, respect, promote, protect, and fulfill (Oloka-Onyango 2007, 17).4 The obligation of recognition is the acknowledgement that the right exists in the first place, particularly by subscribing to international and regional instruments that incorporate it. Going further, recognition of rights would include the local incorporation of ESCRs into a constitutional bills of rights, as Kenya has recently done. The obligation of respect implies that the State adopts measures of enforcement for a right that has been recognized. Promotion places an obligation on the State to publicize—through media and other public means— the right’s existence and official recognition. The State is also under an obligation to protect these rights—to ensure that rights are not violated and that adequate redress is made in the event a violation occurs. Finally, 4

This formulation was developed from the 1997 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights and General Comment No.12 of the Committee on Economic, Social, and Cultural Rights (The Right to Food, Article 11), UN Doc. E/C.12/1999/5.

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there is an obligation to fulfill, which implies that the State has a duty to implement the right in question through any means available. It is important to underscore that, while negative obligations are unconditional and must be respected at all times and in all places, there are certain circumstances—such as disasters or economic crises—under which positive obligations may be considered conditional (Bilchitz 2014, 715). Here we encounter the debates around progressive realization, the idea of a “minimum core” of rights, and the question of tying the realization of a right to the availability of adequate resources. Each of the above standards has implications for the manner in which ESCRs are implemented. The idea of “progressive realization” introduces a staged approach towards implementation. For example the state might take steps towards fulfilling the right to health, beginning with adoption of the necessary policy and legislative measures. A classic example would be ensuring that drugs essential to certain populations are available to them either free or at an affordable cost.5 Secondly, the steps taken must move the goal forward, building on what is already in place. State action that undermines implementation of the right—for example introducing prohibitive taxes or other measures that block, inhibit, or eliminate general access to a necessary medication—is not permissible (Mbazira et al. 2014, 35– 38). Implementation of the right must also be tested against the “4As & Q” standard: Availability, Accessibility, Acceptability, Adaptability, and Quality, elaborated by the Committee on Economic, Social and Cultural Rights.6 In its General Comment 3, the UN Committee on Economic, Social and Cultural Rights (1999) introduced a “minimum core” concept stipulating that states have an obligation to “ensure the satisfaction of, at the very least, minimum essential levels of each of the rights.”7 Failure to meet this 5

This was the main basis on which the Treatment Action Campaign (TAC) sued the Mbeki government in South Africa, resulting in the landmark decision of the Constitutional Court in the case of Minister of Health and Others v. Treatment Action Campaign and Others (No 1) (CCT9/02) [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075 (5 July 2002). For a critical review of the case and its impact, see Davis and le Roux (2009, 151–154). 6 See Committee on Economic, Social and Cultural Rights, General Comment No.13: The Right to Education (Twenty-first session, 1999), U.N. Doc. E/C.12/1999/10 (1999), and Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000). 7 Para. 10, General Comment No. 3 of the Committee on Economic, Social and Cultural Rights, The Nature of States Parties Obligations, Article 2(1), UN Doc. E/1991/23 (1990).

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threshold means that the State is, prima facie, in breach of its obligations. The concept establishes a safety net to ensure that the basic minimum social and economic needs of the state’s citizens are met at all times, but especially in dire conditions of crisis or dislocation. A responsible State cannot simply abandon its people to the elements. Despite the many ESCR cases that have come before it and the illuminating judgments it has issued in response, the South African Constitutional Court has been criticized for failing in one particular—it has failed to recognize the minimum core concept as being integral to jurisprudence in this area (O’Connell 2012, 70). The court has instead opted for the test of “reasonableness”—determining whether the means adopted by the state are “reasonably capable of facilitating the realization of the socioeconomic rights in question” (Liebenberg 2010, 151). The failure to develop a theory that focuses on the minimum core has drawn the following criticism: In one sense the (South African Constitutional) Court has fashioned an extensive and much admired jurisprudence around the judicial enforcement of socio-economic rights, but in doing so the Court may very well be said to have abdicated the transformative role conferred on it by South Africa’s transformative Constitution. So while the Court has articulated an approach to adjudicating on socio-economic rights which is, at the very least, defensible from the perspective of a contextual institutional analysis, its approach might also be said to be too deferential in the context of the institutional and normative arrangements in place in South Africa (Liebenberg 2010, at 77).

The South African example provides food for further thought about the minimum core, especially when tied to the available resource dimension of the debate on ESCRs (Ebadolahi 2008). We will further explore this issue as we consider examples of how ESCRs have been promoted and protected in East Africa.

Early Debates on ESCRs in post-Independence East Africa Given the ideological battles that have surrounded the enforcement of ESCRs, it is somewhat surprising that socialist Tanzania under Julius Nyerere did not incorporate ESCRs into its founding constitution. The omission may in part be explained by the fact that—as we saw in chapter 2— the country refused to include a Bill of Rights in its independence charter (Mashamba 2010). That anomaly remained in place until 1977, when Tan-

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zania recognized the Universal Declaration of Human Rights.8 Subsequently, the Bill of Rights promulgated in 1984 further embraced recognition of ESCRs, though the bill was riddled with claw-back clauses that undermined the essence of the rights seemingly conferred (Peter 2010, 7– 10; Widner 2001, 162–170). When the government removed most of the claw-back clauses in 2005, it retained a provision allowing for the suspension of rights in the “public interest,” without defining exactly what “public interest” meant (Peter 2010, at 10). Still, ESCRs were not included in the document, with the exception of reference to the “right to work,” and to “self-education and social welfare at times of old age, sickness or disability and in other cases of incapacity.” The provision goes on to state, “Without prejudice to those rights, the state authority shall make provisions to ensure that every person earns his livelihood” (Peter 2010, at 31). A number of points can be made about the above. The first is that the government saw fit to mention only a small range of rights in this category, excluding rights to housing/shelter, food, and an adequate standard of living. Secondly, the government then stipulated that “it shall be the duty and responsibility of the Government, all its organs and all persons or authorities exercising executive, legislative or judicial functions to take cognizance of, observe and apply the provisions of this part of this chapter.” This was a positive statement of official obligation. However, sub-article 2 immediately negated this provision by stating, The provisions of this Part of this Chapter are not enforceable by any court. No court shall be competent to determine the question whether or not any action or omission by any person or any court, or any law or judgment, complies with the provisions of this Part of this Chapter.

Commenting on the same idea, a former Attorney General declared that “as a matter of common sense…rights set out in Part II of Chapter One of the Tanzania Constitution cannot be justiciable in a court of law” (Peter 2010, 31). Chris Peter correctly observes that the formulation adopted in the Tanzanian instrument was “no accident, but rather designed to ensure that [the designated rights] are not a subject of litigation in the courts of law, practically making these rights inaccessible to the people” (Peter 2010, 32). Nevertheless, a number of cases in the Tanzanian courts have dealt positively with ESCRs, either directly, via other provisions in the Bill of Rights, or through ordinary legislation. A case that attracted a good deal of 8

See Article 9(f), 1977 Constitution of the United Republic of Tanzania.

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attention was that of The Judge i/c High Court (Arusha) and AG v. N.I. Munuo Ng’uni,9 in which the respondent High Court Advocate refused to accept six briefs assigned to him by a judge on the grounds, inter alia, that the stipulated fee payments were unacceptably low. The judge threatened Munuo with disciplinary action if he refused to accept the briefs, and upon the latter refusing to change his mind, suspended him under provisions of the Advocates Ordinance. Munuo challenged the suspension, arguing among other things that imposing a maximum remuneration of five hundred Tanzanian shillings to an advocate assigned a legal aid brief contravened Article 23(2) of the Constitution, which provides that “every person who works is entitled to just remuneration.” The courts in which the matter was heard agreed with Munuo and prescribed remuneration deemed appropriate. Although the litigant in this case could not be described as a marginalized or vulnerable individual, the principle established by the case was an important one. An indirect application of ESCRs was witnessed in the case of Lausa Alfan Salum & 106 Others v. Minister for Lands, Housing and Urban Development & National Housing Corporation. The case challenged a ministerial edict exempting the National Housing Corporation (NHC) from the provisions of the Rent Restriction Act, in effect implying that the Corporation (which is a public body) could hike its rents at will. Although the petition failed, as Mashamba has noted, it set a precedent for litigants invoking the equality clause to enforce the right to housing in Tanzania (Mashamba 2010, 94). In the recent case of Zakaria Kamwele and 126 Others v. the Minister of Education and Vocational Training and the Attorney General,10 which concerned expulsion of children who refused to sing the national anthem on account of being Jehovah’s Witnesses, the Court of Appeal noted that “the nervous system of this Constitutional litigation does not only centre on the right to freedom of religion. It also concerns the Appellants’ entitlement to education.”11 The absence of a right to education in the Constitution did not prevent the court from applying it elsewhere, in this instance the National Education Act. A more direct engagement with a rights issue was elicited in the Court of Appeal case Haruna Mpangaos & Others v. Tanzania Portland Cement 9

Civil Appeal No. 45 of 1998, Court of Appeal, Arusha (unreported); [2003] 4 CHRLD 51. 10 Civil Appeal No. 3 of 2012 (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam); reproduced in Zanzibar Yearbook of Law 3 (2013): 491–516. 11 Id., at 514.

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Company Limited,12 which concerned a dispute over land: the appellants claimed a customary right to land adjacent to the respondent’s factory in the Wazo Hill area of Dar es Salaam. The respondents asserted that they had been granted rights of occupancy and wanted to evict the appellants. The appellants lost the case in the High Court but appealed to the Court of Appeal, simultaneously seeking a stay of execution pending determination of the appeal. Although the decision did not mention the right to housing, the Bench clearly held that an eviction was not justified: The question is, as between the applicants and the respondent, which one would be more inconvenienced if a stay order is not granted? Execution of a decree would mean that the houses in which the applicants are accommodated with their families will have to be demolished, giving way to quarrying activities. The applicants would of necessity have to be evicted from their homes. We are of the firm view that the applicants will suffer greater injury if a stay is refused than the respondent will suffer if it is granted.

Perhaps the right that has attracted most litigation in the Tanzanian courts is the right to work. Under the Nyerere regime, the labor movement was essentially an arm of the State, with an unholy alliance between leaders of the movement and politicians preventing aggressive action on the part of workers (Shivji 1986). However, even formulation of the right to work in the 1984 Bill of Rights did not result in the extension of positive obligations to the working citizens of the country. As Clement Mashamba has observed, in a real sense the right was hardly protected at all (Mashamba 2007, 479). Hence, in Timothi Kaare v. Mara Co-operative Union,13 the Court of Appeal held that the right to work “by its very nature cannot be absolute.” Nevertheless, a number of judicial interventions have served to uphold this right, which has come under concerted attack and disparagement in the age of globalization. Among the most famous was the case of Hamisi Ally Ruhondo & 115 Others v. Tanzania Zambia Railway Authority (TAZARA),14 which concerned the massive layoffs of some three hundred workers, 96 percent of whom were skilled craftspeople (Shivji, 2006, 17– 19). When the Permanent Labour Tribunal ordered their restoration, TAZARA moved to the High Court for judicial review, quashing the award. While the High Court sided with TAZARA, the Court of Appeal held that the statutory provision on consultation required “meaningful con12

Court of Appeal of Tanzania, Civil Reference No. 3 of 2007, unreported). Civil Appeal No. 42 of 1992, Court of Appeal at Dar es Salaam, unreported. 14 Court of Appeal at Dar es Salaam, Civil Appeal No.1 of 1986. 13

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sultation” with the trade union branches at the place of work before the decision for layoffs had been made. In the earlier case of Augustine Masatu v. Mwanza Textiles Ltd.,15 Justice Mwalusanya held that the provisions entitling an employer to summarily dismiss an employee were repugnant to the Bill of Rights. In so doing he made a forceful rendition on the meaning of the right to work, asserting that: The right to work is the most important…right in labour law…. Its ideological basis is the need and necessity of the working class. It aims at securing the possibility of continued employment. It is not an empty slogan but a survival for existence. For this right to exist in any real sense, it is necessary that economic, political and legal orders of the society assure everybody who is capable of working of the possibility of participating in building his society through work in accordance with his capacity and education and the right to earn an income proportional to the quantum of his work. And so job security is the hallmark of the whole system.16

While the Masatu decision represented a progressive reading of the law, particularly in the context of a country in the process of liberalization (as Tanzania was in the late 1980s and 1990s), the dominant view in the Judiciary was quite the opposite. For example, in the case of Mahona v. University of Dar es Salaam,17 Justice Kisanga held that an employer had the right to refuse an employee reinstatement, even if that employee had been found innocent of charges leveled against him; the employer could instead, according to this judgment, terminate the employee’s services with full benefits. This position was confirmed by the Court of Appeal in the case of Dan Kavishe v. Arusha International Conference Centre.18 In a series of cases that followed, the Tanzanian courts adopted a hostile attitude toward petitioners seeking redress, especially in the case of layoffs (Shivji ‘Lawyers’ 2006, 20–24). To compound it all, casual workers—in fact the majority of the workforce in Tanzania—are granted scanty legal protection, and the courts have not been of much assistance in addressing their plight (Mtembwa 2009). The hostility of the Tanzanian courts to progressive decisions on ESCRs explains the Legal and Human Rights Centre’s (LHRC) decision to tackle the question of land evictions not through the courts, but via the Human Rights Commission (Buchanan et al. 2011, 91–121). Nyamuma, 15

High Court of Tanzania at Mwanza, Civil Case 3 of 1986 (unreported). Id., at 174. 17 [1981] TLR 55. 18 Court of Appeal of Tanzania at Arusha, Civil Appeal 1 of 1987 (unreported). 16

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on the border of the Ikorogo Game Reserve, adjacent to the famous Serengeti, was the site of a forced eviction carried out by the district authorities in October 2001. Citing political risk, the likelihood of case stalling, and the distance of the courts from the locale, the LHRC chose the Commission to hear the case because it promised more speed and independence. In addition to considering the Tanzanian constitution, the Commission would also look at the international principles on ESCRs, which were largely absent from the domestic framework (Buchanan et al. 2011, 95–96). Even though the Commission issued a fairly scathing report, the government not only refused to accept its findings, but also failed to compensate the evictees (Buchanan et al. 2011, 96–97). At the end of the day, the LHRC was forced to go back to the courts only to find itself mired in the judicial bureaucracies it had sought to avoid (Buchanan et al. 2011, 97). This explains the low number of cases filed to enforce ESCRs in Tanzania. To compound matters, the draft constitution, which was the subject of debate in 2015, gave scant attention to ESCRs. Unlike pre-2013 Tanzania, Uganda has had two opportunities in which to debate the issue of ESCRs—first in the process of promulgating the 1995 Constitution, which was preceded by the collection of views and a six-year debate; and secondly following the establishment of the 2003 Constitutional Review Commission (CRC) to make recommendations on amending the 1995 Constitution (Mugwanya 2001). Both were lost opportunities as ESCRs were given little attention in either case. The debate in the 1990s was in large part dictated by the recommendations of the Uganda Constitutional Commission (UCC), led by Justice Benjamin Odoki. The Commission refused to include ESCRs in the Bill of Rights because they ostensibly involved “ideals and aspirations which cannot easily be made enforceable at the present time” (Oloka-Onyango 2004, 14). Instead, they were moved to a chapter entitled “National Objectives and Directive Principles of State Policy.” Had they remained there, one could at least have argued that they were part of the main body of the Constitution and arguably could form the basis of judicial action. However, when the draft reached the Constituent Assembly for final debate, not only was the chapter removed from the main part of the Constitution, but most delegates emphasized that the principles contained therein were nonjusticiable, more or less sealing their fate (Oloka-Onyango 2004; Buchanan et al. 2011, 16–21). The only ESCR provisions that found their way into the Bill of Rights were the right to Education (Article 30), the right to Culture (Article 37), the right to a healthy environment (Article 39), and a broad provision entitled “Economic Rights” (Article 40), which was essentially about the Right to Work.

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When the Constitution came up for review nearly ten years later, the Constitution Review Commission, headed by Prof. Frederick Ssempebwa, paid scant attention to the issue of ESCRs. Indeed, the most notorious aspect of the review was the recommendation to remove presidential term limits, paving the way for President Museveni to serve for an unlimited period of time. The Bill of Rights remained intact, as did the section of the instrument on National Objectives. Surprisingly, a new provision surfaced in the amendments that Parliament eventually adopted: Article 8A (1), entitled “National Interest,” stated that “Uganda shall be governed based on principles of national interest and common good enshrined in the national objectives and directive principles of state policy.” Clause 2 stipulated that Parliament would make relevant laws for the purpose of giving “full effect” to clause (1). Neither the Ssempebwa Commission report nor the Government White Paper mentioned the new provision (Republic of Uganda 2004). Its origins are traceable to the parliamentary debates (the Hansards) over the amendments spearheaded by Margaret Zziwa, then Kampala MP (Rukare 2011, 122–124). In the wake of the 2005 amendment, the use of the term “shall” has given rise to considerable debate as to the legal nature of the National Objectives. While some commentators have argued that using “shall” makes it mandatory for courts to consider the National Objectives when interpreting the Constitution, others have claimed that in the absence of the legislative framework ostensibly mandated by Clause 2, the provision remains a dead letter (National Conference on Economic, Social and Cultural Rights 2014). In any event, the amendment changed the nature of the debate over this section of the Constitution. The matter now awaits a definitive judicial pronouncement. Against this background, cases seeking enforcement of ESCRs in Uganda have been sporadic and somewhat accidental. One could say that the record on this category of rights has been abysmal, even when allowing for the unsupportive legal and constitutional framework. An early case that obliquely addressed ESCRs was Salvatori Abuki & Richard Obuga v. AG.19 In this case, two petitioners convicted under the Witchcraft Act challenged the conviction and particularly an order of ten-year banishment (exclusion) imposed by the magistrate’s court, which initially tried the case. The Constitutional Court found that the exclusion order obviously deprived the petitioner of his property. But Justice Tabaro was of the view that:

19

Constitutional Case No. 2 of 1997; [1997] UGCC 5.

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It cannot be contended that deprivation of one’s means of subsistence is not a threat to one’s life. And of course, as a matter of axion (sic), a threat to life is cruel and inhuman. Once one is deprived of means of subsistence one can only survive by the grace of God, as the mercy of His people will no longer be available, except, perhaps, through begging—very degrading indeed.20

Justice Tabaro based his opinion mainly on the provisions relating to right to life and the prohibition against cruel and inhuman treatment. Justice Egonda-Ntende went further to demonstrate that such an order in fact impacted on a wide range of economic and social rights, including livelihood, shelter, and food. While Abuki addressed ESCRs only obliquely, the case of Sharon Dimanche et al. v. Makerere University21 directly tackled the question of the right to education. In this case the petitioner, a Seventh Day Adventist, sued the university, declaring that holding classes and other academic activities on Saturday (the Sabbath), constituted a violation of both her religious rights and the right to an education. The case was dismissed largely on the grounds that the actions of the university did not violate the petitioner’s right to religious freedom. However, on the issue of education, Justice Leticia Mukasa-Kikonyogo stated as follows: I wish to emphasize that the provisions of Article 30 (on the right to education) notwithstanding, University education is not compulsory and is not obtainable only from the respondent. The petitioners had an option to join other Universities and other tertiary institutions. With regard to the alleged unconstitutional burden, the respondent’s policy did not prohibit the petitioners or hinder them from practicing, or believing or participating in any religious activities.22

The Dimanche petition failed to elicit judicial sympathy primarily because it concerned university education, which is largely viewed as a luxury or a benefit, even though the provision in the Constitution (Article 30) is a blanket stipulation, conferring the “right to education” without specifying the level at which it should be delivered. It was also a rather dogmatic decision that failed to address the need for public institutions to accommodate the whole range of religious and cultural diversity in the country. In spite of the education provision in the Bill of Rights, and even though activists have regularly criticized the state of primary education in the country, court actions on the issue have been rare. However, in mid20

Id., at 9. Constitutional Cause No.01 of 2003. 22 Id., at 17–18. 21

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2014 a member of parliament teamed up with the group Initiative for Social-Economic Rights (ISER) to block the reading of the budget pending a court action compelling Parliament to revise per capita grants for the Universal Primary Education (UPE) program in the upcoming financial year (Kahill 2014). The government had reduced the grant from Ugandan Shillings (UGX) 7,560 to UGX 6,800, an action described by the petitioners as detrimental to all UPE beneficiaries. While the hearing of the main suit was pending, the petitioners sought an injunction restraining the government from “implementing or enforcing any reduction in the UPE Capitation [per capita] Grant” before the petition was heard.23 The court refused to grant the motion, observing that “the intention of the government as a whole is never to deprive any school-going child [of] the right to an education.”24 To grant the application, the court continued, would amount to “taking the wheels off the vehicle of the Government in its drive to provide an education to the children of Uganda.”25 According to the court, the action requested in the petition would effectively stop the allocation of 10 percent of the national budget and would thus “deprive the children of Uganda the right to an education as set out in Article 30 of the Constitution. Such interference cannot be remedied or corrected by any of the proposals made by the Applicants.”26 The court held that granting the petition would place the financial management of the country in “uncertainty,” speculating further that even the Courts might cease to function if funds were not appropriated under the budget.27 At the end of the day, the government decided not to cut the budget. In an act of calculated contrition, the Minister of Education appeared in Parliament and promised to look into increasing UPE funding for the next year.28 The parties to the suit (ISER and the government) then entered mediation to work out a compromise. Outside the Right to Education provision, the only other case that has dealt with ESCRs in court is the right to a pension, though this does not appear in the Bill of Rights. Nevertheless, the courts have found that in

23

Initiative for Social and Economic Rights (ISER) and Hon. Ssewungu Gonzaga Joseph v. The Attorney General of Uganda, Misc. App. No.173 of 2014. 24 Id., at 6. 25 Id., at 7. 26 Id., at 7. 27 Id., at 8. 28 Email interview with Salima Namusobya, Executive Director ISER on March 24, 2015. The problem though is that actual disbursements are usually less than what has been budgeted.

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Uganda there is an enforceable right to a pension. In the case of Karokora v. AG,29 Justice Kiryabwire declared that: Article 254 of the Constitution leaves no doubt in anyone’s mind that a pension is an enforceable right in Uganda. Even without Article 254…, by merely reading section 9(1) of the Pensions Act in conjunction with Article 45…the inevitable conclusion would be that a pension is an unshakable and enforceable right to any pensioner in Uganda. Thus any suit intended to enforce a pension right would be competent.30

It needs to be pointed out that the petitioner in this case was a recently retired judge of the High Court. Another case, Centre for Health Human Rights & Development (CEHURD) & 3 Others v. AG,31 sought to address the issue of maternal health care and the failure of the government to provide adequate facilities in public hospitals for pregnant mothers. The petition relied particularly on the stipulations in the National Objectives section of the Constitution— Clauses XX, XIV (b) and XV—since there is no right to health provision in the Bill of Rights. The petition also invoked Article 8A32 to argue that, since the 2005 amendment to the Constitution, these objectives had become binding. The Constitutional Court was not prepared to entertain the petition. Surprisingly however, the Court declared that the case raised a political question, and was thus beyond its jurisdiction: Much as it may be true that government has not allocated enough resources to the health sector and in particular the maternal health care services, this court is…reluctant to determine the questions raised in this petition. The Executive has the political and legal responsibility to determine, formulate and implement polices of Government…. This court has no power to determine or enforce its jurisdiction on matters that require analysis of the health sector government policies…. If this Court determines

29

Civ. CS. No. 591 of 2007; [2009] UGHC 162. Id., at 169. A similar conclusion was arrived at by the Uganda Human Rights Commission (UHRC) in the earlier petition of Kalyango Mutesasira v. Kunsa Kiwanuka et al. (Complaint No.501 of 2000). 31 Constitutional Petition No.16 of 2011 [2012] UGCC 4. 32 Article 8A (1), entitled “National Interest,” stated that “Uganda shall be governed based on principles of national interest and common good enshrined in the national objectives and directive principles of state policy.” Clause 2 stipulated that Parliament would make relevant laws for the purpose of giving “full effect” to clause (1). 30

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The court suggested that a petition for redress would be better brought under Article 50, completely ignoring the arguments on Article 8A. It is interesting that after several years in abeyance, the political question doctrine (PQD) resurfaced in a case concerning ESCRs (Dennison 2014). In this instance there was a silver lining to the re-emergence of the PQD. On appeal to the Supreme Court, not only was the doctrine described as having “limited application to Uganda’s current constitutional order,”34 but furthermore the case was remitted to the Constitutional Court to determine whether the government had met its obligation to ensure provision of basic medical services to the population.35 The PQD has proven a difficult animal to subdue, even with respect to the enforcement of ESCRs. A more recent petition challenged a government program for the export of health workers to Trinidad and Tobago.36 In what came to be dubbed the “Medical Brain Drain” case (Birungi 2015, 15–17), the petitioner argued that the action of the State in facilitating the migration of highly-trained professional nurses and doctors out of Uganda was “unconstitutional, irrational, illegal, [and] unethical.” Further, the petitioner asserted that such action violated the right to health and several provisions of the National Objectives and Directive Principles of State Policy, including Objective XX, which covers the provision of basic medical services to the population. After filing the application, the petitioners went to court seeking an interim injunction preventing government from proceeding with the program of export until the main suit had been disposed of.37 The government opposed the application, arguing that the applicant was attempting through the courts to determine and restrict the manner in which health professionals in Uganda could be gainfully employed, and that all workers including health professionals had a constitutionally-guaranteed right to seek gainful employment anywhere in Uganda and the world.

33

Id. CEHURD & 3 others v. Attorney General, Constitutional Appeal No.1 of 2013; judgment of Justice Esther Kisaakye at 25. 35 Id., judgment of Chief Justice Bart Katureebe at 22. 36 Institute of Public Policy Research (IPPR) v. The Attorney General, Miscellaneous Cause No.174 of 2014. 37 Institute of Public Policy Research (IPPR) v. The Attorney General, Miscellaneous Application No.592 of 2014 (arising from Miscellaneous Cause No.174 of 2014). 34

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The petition generated a great deal of attention, not simply for its innovative focus on constitutional provisions that had remained somewhat under-utilized, but also on account of the public commentary and international responses it generated (Labonté et al. 2015, 13). For example, the Belgian government suspended aid to Uganda over the plan, and the European Union (EU) cautioned that it would do the same (Nakirigya 2015b, 4). The adverse reaction from the public in particular forced the government to backtrack and deny that any such action had actually been planned (Bwambale 2015, 5). Likewise, the government of Trinidad appeared to have developed cold feet over the scheme (Barigaba 2015, 1). Despite the fairly clear rights’ dimensions of the issue, the High Court refused to grant the injunction. But to add insult to injury, the learned judge invoked the political question doctrine, stating that: Unless convinced otherwise…I am persuaded that since the decision to export health professionals to Trinidad and Tobago was a decision of the Executive arm of Government, it remains a political decision which would ordinarily have nothing to do with courts. The court would normally get concerned if the decision had been implemented by legislation; otherwise the courts may not interfere in how government deploys its resources. Further, court’s intervention would be appropriate if the health professionals, having been educated by the Government, had been bonded to work for government for a certain period, which period had not expired. This is not stated to be the case here. I shall wait to be convinced on the balance of probabilities in the main cause, if court’s intervention is appropriate under the circumstances.38

The ruling marked a major setback to obtaining serious consideration for the protection of economic, social, and cultural rights through the Judiciary. The invocation of the political question doctrine demonstrated the continuing reluctance of the courts to get their heads around the nature of these rights. Worse, the ruling obviously has quite serious implications for other arbitrary, non-legislative government action, as the court appears to give carte blanche to the Executive to expend state resources in any manner it pleases. The court in the Brain Drain case said nothing about the National Objectives or about Article 8A—which was one of the planks on which the petition rested—although in the main ruling there was nothing to stop the judge from further damaging the status of these stipulations in a future ruling. Now, however, by overturning the decision of the Constitutional Court in the CEHURD case, the Supreme Court has provided an oppor38

IPPR v. AG, ruling of Justice Elizabeth Musoke (April 10, 2015), at 5.

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tunity to positively and conclusively resolve the importance of the National Objectives. The Constitutional Court’s decision in CEHURD marked a sharp reversal from the holding of the same court in the earlier case of Major General David Tinyefuza v. Attorney General,39 in which Justice EgondaNtende stated that the principles and objectives “ought to be our first canon of construction of this constitution. [The objectives] provide an immediate break [with] or departure [from] past rules of constitutional construction.”40 It is important to note that the Tinyefuza opinion was given before the enactment of Article 8A. By neglecting the Article 8A principles, the Constitutional Court in the CEHURD decision set the struggle for improved enforcement of ESCRs back several years (Namusobya 2014). Recognizing this error, the Supreme Court appeal ordered that the case be heard on the merits.41 While the growth in litigation over ESCRs needs to be celebrated, there is still much to be done in both Tanzania and Uganda. The number of lawyers possessing the skills set required to successfully bring cases of this nature to court remains quite small, with many lawyers not having the requisite exposure to properly litigate ESCRs.42 This problem begins in the Law Schools, where the topic hardly features in the regular curricula. Coupled with this is a limited understanding of ESCRs’ negative and positive obligations. Different approaches need to be developed to address the two faces of implementation. In sum, the prejudices against application of ESCRs remain deep (Mbazira et al. 2014, 1). As was demonstrated in the Brain Drain injunction ruling, those prejudices are carried over into the Judiciary. Hence any strategy for improving judicial respect for and enforcement of ESCRs would have to include an aggressive policy of engagement with this arm of the State (Nakirigya 2015a, 4).

39

Constitutional Petition No.1 of 1997. But see the judgment of the Court of Appeal in Zachary Olum v. The Attorney General, Constitutional Petition No.6 of 1999, in which the court confusingly said that the principles of state policy are, “non-justiciable and are important canons for the interpretation of the Constitution.” 40 Id., at 18. 41 Centre for Health Human Rights & Development (CEHURD) & 3 Others v. AG (Constitutional Appeal No.1 of 2013). 42 See for example a case which sought to prevent the registration of mobile phone simcards: Human Rights Network-Uganda (HURINET-U & Legal Brains Trust (LBT) v. Uganda Communications Commission & The Attorney General, (Misc. App. No. 81 of 2013).

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Scaling the Wall: The Example of the 2010 Kenyan Constitution Although it took nearly twenty years of violent street action, intense political negotiation, and adroit social engineering, the 2010 Constitution of Kenya could be described as well worth the long wait. This is particularly true with respect to the reformulation of judicial powers, which has given vulnerable and marginalized groups much better access to the courts. Article 22 followed the Ugandan model of “busy-body” access, allowing court access not only to persons whose rights have been violated, but also to a whole range of others, including “a person acting in the public interest.” Article 23 buttressed this position by stipulating that the courts can give a wide range of different reliefs in ESCR cases, accommodating a diversity of remedies and opening the field to more imaginative methods of enforcement. In the case of John Harun Mwau & 3 Others v. Attorney General & 2 Others,43 the court observed that “the intent of Articles 22 and 23 of the Constitution is that persons should have free and unhindered access to this court for the enforcement of their fundamental rights and freedoms.”44 Equally significant has been the incorporation of ESCRs directly into the Bill of Rights—the first instance of that occurrence in East Africa and one of only a few such instances around the continent. Article 43 explicitly protects the rights to health care services, accessible and adequate housing, reasonable standards of sanitation, freedom from hunger, clean and safe water, and social security and education. Article 20(5) directly addresses the issue of resources by saying that the State has the responsibility to show that resources to implement the right in question are not available, clearly laying on the state the burden of proof that its failure to implement the right has been reasonable. The provision also gives a rider against possible over-enthusiasm on the part of the Judiciary: “the court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion.” Finally, Article 21 stipulates that “the State shall take legislative, policy and other measures, including the setting of standards, to achieve the progressive realization of the rights guaranteed under Article 43.” To cap it all, Article 258 provides for the manner in which the constitution will be enforced. 43 44

High Court Petition No. 123 of 2011. Id., para. 179.

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The provisions in the constitution were buttressed by new rules issued by the Chief Justice with respect to enforcement of human rights.45 Known as the “Mutunga” Rules after the Chief Justice who formulated them, the rules emphasize enhancing access “in a just, expeditious, proportionate, and affordable manner.” Further, the courts in Kenya are now required “to take into account the situation of vulnerable groups such as the poor, illiterate, uninformed, and unrepresented as well as persons with disabilities” (The East African Centre for Human Rights 2014, 6). The rules also provide for lenience with respect to costs, especially where public interest cases are concerned, thus ensuring that those who pursue such litigation are not also punished with awards in costs against them.46 In the short time that the 2010 Constitution has been in force, litigation over ESCRs in Kenya has been fairly robust, especially when contrasted to the desert-like situation surrounding those rights before (Nderitu 2014). The courts have largely taken to heart the new provisions, which have elevated this category of rights to constitutional protection. That development has been accompanied by a broad reorientation in the perspective of the Kenyan Judiciary, away from the overly-deferential and timid Bench that was in place from independence through the end of the 1990s. Justice Mumbi Ngugi, in the case of Mitu-Bell Welfare Society v. Attorney General,47 reflected on this transition by remarking, As Kenya embarks on the implementation of the new Constitution with its provisions on the rights of citizens, all parties must be reminded of the need to observe the rule of law, which is the core and the foundation of our society. Without observance and obedience of the orders of the court by parties in the position of the second respondent and indeed by all organs of state and all persons, the aspirations of Kenyans set out in the Constitution will remain a mirage. The court must be on guard to prevent this.48

How much has the spirit of the new instrument actually been adopted by the courts of law? The case of Patricia Asero Ochieng & Ors. v. AG49 involved a challenge levelled against the Anti-Counterfeit Act of 2008 on the grounds that the law threatened the petitioners’ access to affordable 45

See The Constitution of Kenya (Protection of Fundamental Freedoms) Practice and Procedure Rules, 2013, Legislative Supplement No. 47, 28 June 2013, Kenya Gazette Supplement No. 95. 46 See the case of Consumer Confederation of Kenya v. Attorney General & 4 Others (High Court Petition No. 88 of 2011, paras. 43-46). 47 Petition 164 of 2011. 48 Id., para. 32. 49 Petition 409 of 2009; 8 CHRLD (2014) 230.

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and essential drugs and medicines, infringing their fundamental right to life, human dignity, and health as persons living with/affected by HIV/AIDS (Durojaye & Mirugi-Mukundi 2013). The court noted that the law failed to exempt generic drugs and medicines from the definition of counterfeit goods, and as a consequence it inadequately protected those who needed such drugs to enhance their health and “prioritised enforcement of intellectual property rights in dealing with the problem of counterfeit medicine.”50 The Ochieng case (Ochieng n.d.) was important for several reasons, first because it reaffirmed the viability of litigation to advance social rights and justice (Durojaye and Mirugi-Mukundi 2013, 40). It demonstrated that a case initiated by a few individuals could have wide implications for a broad cross-section of society, particularly the less privileged (Durojaye and Mirugi-Mukundi 2013, 41). Nevertheless, the case has been criticized because it did not rely on the non-discrimination clause in the Bill of Rights and failed to cite the jurisprudence of the African Commission on Human and People’s Rights on the right to health (Mirugi-Mukundi, 2013, 43). A number of cases have dealt with the issue of evictions. In Satrose Ayuma & 11 others v. Registered Trustees of the Kenya Railways Staff Benefits Scheme & 2 others51 (the “Muthurwa Case”), Justice Mumbi Ngugi heard a matter concerning the illegal eviction of the residents of Muthurwa Estate. The petitioners claimed that they had been unlawfully evicted in violation of the constitutional right to housing, the right not to be treated in a cruel, inhuman or degrading manner, the right of every child to be protected from inhuman treatment, the right of older members of society to live in dignity, and the right of access to information held by the State—a mix of ESCRs and CPRs. The petitioners sought an injunction restraining the respondents and anyone acting on their behalf from demolishing the petitioners’ houses, terminating leases or tenancies, or in any way barring the petitioners from access to their homes. The court issued an interim order restraining the respondents from carrying out “constructive evictions,” and the two parties were directed to come to an agreement on a program of eviction taking into account all the considerations stated in the judgment. The case was especially important for pointing out the lack of legal guidelines on eviction and displacement in Kenya, particularly for low-income earners.52 50

Id., judgment of Justice Ngugi in PAO v. AG, para. 83) Constitutional Petition 64 of 2010 (Dated: August 30, 2013). 52 The court also made reference to the United Nations Basic Guidelines and General Comment No. 4 of the Committee on Economic, Social and Cultural Rights. 51

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The case of Susan Waithera Kariuki & Ors. v. Town Clerk, Nairobi City Council & Ors.53 also addressed the issue of evictions from so-called informal settlements. Relying extensively on International Law and South African jurisprudence in the area, Justice Musinga declared the two days’ notice as “unreasonable” and “unconstitutional.”54 The court held that the Council was obliged to provide the evictees with adequate alternative accommodation.55 The Micro & Small Enterprises case56 elaborately laid out the framework for evictions under the new Constitution, but also displayed the court’s willingness to ensure that petitioners had their full day in court. Even though the petitioners had not mentioned the obvious provision that affected their case, the court invoked the decision in the Githunguri case57 to state that Article 43 “entitle[d] the petitioners to protection of their opportunity to earn their living through hawking business as a means of protection of the right to be free from hunger and to social security.”58 The petitioners challenged their eviction from the streets of Mombasa by the County Government, who claimed that as hawkers, they posed a security threat and adversely affected tourism. The Government claimed a need to keep Mombasa “safe and environmentally friendly to attract more tourists,” noting that tourism is a major foreign income earner for the nation.59 The court condemned the attempt to hold up the petition in a raft of technicalities, including locus standi.60 As a midway solution, the court or-

Although the injunction against eviction was granted, the prayer for reconnection of sewerage systems, water supply and toilet facilities was rejected because the court found that the tenants had failed to pay their dues. 53 Petition Case No.66 of 2010; 8 CHRLD (2014) 206-207. 54 Id., at 7. 55 The case of Ibrahim Sangor Osman & 1121 Others v. The Minister of State for Provincial Administration and Security & 3 Others, Constitutional Petition No.2 of 2011 (High Court of Kenya at Embu)—concerning an eviction in Garissa— recognized the interdependence of civil and political rights on the one hand, and economic, social and cultural rights on the other. 56 Micro & Small Enterprises Association of Kenya Mombasa Branch (Acting in the interest of its Members to the exclusion of those who may have sought reliefs in their own right) v. Mombasa County Government & 43 others, Constitutional Petition No.3 of 2014, [2014] eKLR. 57 [1985] KLR. 58 Judgment in Micro & Small Enterprises, 2013, para. 12. 59 Id., para 6.xxii. 60 Id., para. 16.

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dered that the petitioners be allowed to continue hawking their wares in areas outside the Central Business District.61 In a spate of recent cases on evictions, the Kenyan courts have stepped up to the mark on this particularly vexing issue, especially where evictions have taken place within “a culture of impunity [with] persistent and routine disregard for individual rights and freedoms” (Juma 2012, 475). Through a mixed application of International Law and the right now embedded in the Constitution, the courts have made clear they will no longer look away as evictions take place with impunity. The new provisions of the Kenyan Constitution have also opened the space for more focused litigation over health rights. In the case of Matthew Okwanda v. The Minister of Health and Medical Services,62 the petitioner sought reasonable care and assistance as an older member of society under Article 57 of the Constitution. Suffering from diabetes mellitus and benign hypertrophy, the claimant petitioned the court under Article 43 (the omnibus provision on ESCRs). While the petition was dismissed for failure to adduce sufficient evidence that the petitioner’s right to health had actually been infringed, the court held that the state was required to design and implement policies leading to the progressive realization of the right. This approach found approval and development in the recent case of The AIDS Law Project v. AG & 3 Others,63 which challenged section 24 of the HIV and AIDS Prevention and Control Act64 criminalizing HIV exposure and transmission. Citing Jeremy Bentham’s essay Truth versus Asthurst and criticizing the Act’s overly broad provision giving the courts wide powers of discretion, the court held that judges have no power to create laws as purported by the Act.65 Going on to rule on whether the section was precise enough, the court found lacking any clear definition of the words “sexual contact,” making it impossible to know how and with whom those targeted in this section “were expected to conduct themselves.”66 While the ruling of the court made no reference—though the petition itself did—to the right to health,67 it is quite clear that the case marks a significant victory for persons living with or affected by HIV/AIDS. Furthermore, given that similar laws have been enacted by other countries in 61

Id., para. 22. High Court of Kenya at Nairobi, Petition No. 94 of 2012. 63 Constitutional Petition No. 97 of 2010; [2015] eKLR, March 18, 2015. 64 No. 14 of 2006. 65 Id., para. 67. 66 Id., para. 80. 67 Id., para. 37. 62

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the region, the well-reasoned judgment should offer significant guidance to the courts where similar provisions have been challenged for nonconformity to constitutional and human rights’ provisions (Human Rights Watch 2014; Barton 2014). However, not all Kenyan judges are speaking from the same script with respect to ESCRs in the post-2010 era. The judge in the case of Charo wa Yaa v. Jama Noor & 4 Others68 held that the right to housing was “not a final product for dispensation but an aspirational right, which the state is to endeavour to render progressively.” In the case of John Kabui Mwai and 3 Others v. Kenya National Examination Council and 2 Others,69 the court started off by making the valid observation that “[t]he realisation of socio-economic rights means the realization of the conditions of the poor and less-advantaged and the beginning of a generation that is free from socio-economic need.”70 But then the court went on to state: One of the obstacles to the realization of this objective, however, is limited resources on the part of the government. The available resource is not adequate to facilitate the immediate provision of socio-economic goods and services to everyone…. There has to be a holistic approach to providing socio-economic goods and services that focus beyond the individual. Socio-economic rights are by their very nature ideologically loaded. The realization of these rights involves the making of ideological choices which, among others, impact on the nature of the country’s economic system…; these rights engender positive obligations and have budgetary implications which require making political choices. In our view, a public body should be given appropriate leeway in determining the best way of meeting its constitutional obligations.

Critiquing the case, Arwa (2013) argues that the Court in this instance appears to be making three fundamental pronouncements on the process of developing this kind of jurisprudence, namely: 1) don’t focus on individual rights but on the impact of a decision for all citizens; 2) available resources are inadequate to facilitate the immediate provision of socioeconomic goods and services; and 3) the adjudication of socio-economic conflicts should more appropriately be left to the Executive and the Legislature (Arwa 2013, 424–425). This amounts to a near-total abdication of court responsibility to take a new approach to ESCRs following enactment of the 2010 Constitution. 68

Misc. Civ. App. No.8 of 2011. Petition No.15 of 2011. 70 Id., at 6. 69

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Surveying the general jurisprudence on ESCRs since enactment of the 2010 Constitution, Arwa points to broader limitations. First, he notes a continuation of the hostile judicial attitude towards human rights litigation, coupled with the culture of judicial conservatism and deference to executive decisions. But for those cases that have moved away somewhat from the shadow of executive obsequiousness, Arwa claims there is a tendency to copy the jurisprudence from South Africa, compounded by a lack of exposure to international human rights law. Finally, he asserts that the requisite procedural framework for enforcement of socio-economic rights is absent. These criticisms found expression in the appeal of the Mitu decision (see above), when the Court of Appeal reversed the judgment of the High Court and condemned the use of a structural interdict to ensure compliance with court orders.71 The above criticisms may be valid, and indeed the Kenyan terrain is still a highly contested one. Nonetheless, the scale of ESCR cases the Kenyan Judiciary has taken up and decided progressively in a relatively short period of time is quite impressive. Indeed, a significant conceptual and psychological barrier has been broken: litigants can see the light at the end of the tunnel, and courts do not shy away from illuminating the journey to that end. Furthermore, the manner in which cases have been decided gives lie to the belief—abundant in case law and obiter opinions of Ugandan and Tanzanian courts—that such rights are not justiciable. Certainly, the courts in these two countries can draw illuminating lessons from Kenya and other African countries to improve their approach to this category of rights, even if the domestic constitutional framework for the protection of ESCRs is not yet in place.72 In fact, the absence of such a framework is not an insurmountable obstacle. Since both countries are party to the International Covenant on Economic, Social, and Cultural Rights, that instrument could provide an avenue for beginning a process of more serious engagement with ESCRs. Key to the process is the courts’ willingness to revisit presumptions about these rights, including a review of the different approaches to enforcement (Ray 2008). A review would also entail a renewed commitment to the use of existing frameworks for supporting improved socio-economic outcomes. How much would such an approach improve the situation of indigenous peoples with respect to land rights and protection of the environment? 71

See Kenya Airports Authority v. Mitu-Bell Welfar Society & 2 Others, Civil Appeal No. 218 of 2014; [2016] eKLR, July 1, 2016. 72 See for example the case of Malawi, described in Gloppen & Kanyongolo 2007, 265 and Kapindu, 2013.

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Court Battles over Land and the Environment In all three East African countries, the issue of land has long been a matter of contestation and conflict. Colonialism was the most rapacious of land-grabs as it converted peoples who had previously enjoyed full control over their territories into serfs of a foreign imperial master (Shivji 2006, 11). The centrality of the land question within the colonial experiment was made manifest not only in treaties such as the Buganda and Maasai agreements, which led to creation of the “White Highlands” in Kenya, but also in the anti-colonial reactions that followed, such as the Maji Maji rebellion in Tanganyika, the Bataka Uprising in Uganda, and the Mau Mau movement in Kenya. Moreover, as noted in chapter 3, public interest litigation over land questions, as for example in the Maasai treaties case, was met with summary dismissal during the colonial era. All three East African post-colonial governments have attempted in varying degree to address the land question. While noting these efforts, we focus in this section on the question of indigenous peoples and their rights to land, and the place of the courts in this regard. This focus is dictated both by the marginalized status of indigenous peoples within contemporary East African political economy and by the significant role the courts have played in acting variously as protector or persecutor with respect to this group. The chapter then moves on to examine public interest litigation as related to the right to a healthy environment.

Indigenous People’s Rights to Land To indigenous peoples, land is not simply a source of livelihood. Land is also a site for religious, cultural, and social engagement with the past, the present, and the future. Land is spiritual and is thus a direct expression of the soul of the community (Wachira 2007, 242–243). Ownership is also largely communal as opposed to purely individual, especially in the sense that the community interest is given prominence of place. For example, to the Barbaig or Datoga peoples of Northern Tanzania, “land is made up of a bundle of rights that apply to a number of disaggregated resources. These can include certain vegetation species, ground water, or trees. Rights of use of some land can be enjoyed by the whole community, but certain limits do apply to resources within it” (Lane 1995, 88). Needless to say, the rights of indigenous peoples to their land have long been a source of controversy, targeted for misuse and even expropriation, often in the name of “development,” but essentially as a cover for

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bio-piracy (Mgbeoji 2005). Marginalized peoples have sometimes pursued court action in a bid to secure not simply possession or title to the territories in dispute, but also a reaffirmation of their relationship to the land and their identity on it. All three East African countries under study have addressed indigenous land rights with varying degrees of empathy and progressive action, and the courts have responded in different ways. The Kenyan experience with land differs in some measure from that of either Tanzania or Uganda because of the more blatant colonialism practiced there—directly expropriating lands and vesting them in White settler communities of foreign origin. Basically this meant that the local populations were turned into tenants at the sufferance of the British Crown (Makoloo 2005, 5). This appropriation represented a large-scale privatization of land and allocation thereof to a non-indigenous community—in perpetuity. In Uganda the privatization was done with the help of indigenous local collaborators, especially under the mailo regime in the Interlacustrine kingdom, most prominently in Buganda; while in Tanzania land was exclusively vested in the colonial state. This produced different kinds of tensions between the colonial state and those subjected to expropriation. To this day, creation of the “White Highlands” in Kenya, which entailed the dispossession of various communities from the area, continues to have repercussions. This partly explains why the struggle for recognition of indigenous people’s rights in Kenya became entangled in disputes over individual versus community rights. In the case of Kinyanga and others v. Isiolo County Council and others,73 for example, the plaintiffs, members of the Maasai community, sought declarations that they were the rightful occupants of the suit land, held in trust for them by the defendant Council, which was allegedly in breach of that trust. They also requested that the court order the Commissioner of Lands to declare the suit area an exclusive trust land for the Maasai community. Decrying what it described as a “stupid notion,” the court instead stated that “any intended division of this country into tribal or community [areas] in order to promote particular tribe or community welfare, well-being of tribal interests, be they of a commercial or political nature, would be unconstitutional and unacceptable.”74 In the case of Rev. Dr. Timothy Njoya & Others v. the Attorney General & Others,75 the court reiterated the notion that human rights could 73

Civil Suit No. 11 of 1995 (High Court at Meru). For a discussion of the case, see Kariuki 2013, 66. 74 Id. at 9. 75 H.C. Misc. Civil Application No. 82 of 2004 (OS); [2004] 1 EA 194 (HCK), delivered on March 25, 2004.

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only be individual, not communal. Although the context was different insofar as it concerned a challenge to the constitutional review process, the case nevertheless underscored the hostility of the court toward the representation of groups as opposed to individuals. In the words of the High Court, except for a detained person for whom someone else may take up the cudgels, every other complainant of alleged contravention of fundamental rights must relate the contravention to himself [sic] as a person…there is no room for representative actions or public interest litigation in matters subsumed by section 70–83 of the Constitution.76

The above two cases set the framework within which the pre-2010 Kenyan courts approached the issue of indigenous people’s rights. The approach was generally hostile to group or community claims, regularly taking recourse to locus standi arguments, which were commonplace in other cases involving human rights. An exception was the case of Rangal Lemeiguran & Others v. Attorney-General & Others (the Il Chamus petition).77 The case sought a declaration that the statistical chance of an Il Chamus candidate being elected in what was then the Baringo Central constituency was in practice so minimal as to effectively deny the group any chance of being represented in the national Parliament (ILO/ACHPR 2006, 25–26). In a well-reasoned judgment, the High Court stated, “minorities such as the Il Chamus have the right to participate and influence the form of implementation of public policy, and to be represented by people belonging to the same cultural and economic context as themselves.”78 Overall, the situation in Kenya before 2010 was one of hostility towards the rights and interests of indigenous peoples. In particular, the Ogiek of the central Rift Valley were victimized in this era (Ohenjo 2003). A hunter-gatherer community, the Ogiek—sometimes disparagingly called the “Dorobo” (poor people who cannot afford cattle)—had suffered a gradual displacement that was sealed through the declaration of their ancestral lands as forest reserves in the 1930s (Kamau 2000). Unfortunately, attempts to seek redress from the post-colonial State have not been very successful. In 1997, the Ogiek challenged the illegal allocation of land plots to non-Ogiek individuals—stated by the government to be “landless”—in and around the Mau Forest.79 While they se76

Id., para. 44. Miscellaneous Civil Application No. 305 of 2004; 2008 3 KLR (EP) 325. 78 Id. 79 Joseph Letuya, Patrick Kibet Kuresoy & Others v. The Attorney General & 5 Others, Civil Application No.635 of 1997. 77

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cured an injunction from the court preventing further allocations until the case was heard, the court stalled on account of numerous adjournments. The main suit was thus never heard (Barume 2010, 91–95). In early 1999, the government issued a fourteen-day ultimatum to the Ogiek to vacate the Tinet Forest, an action that was challenged in the case of Francis Kemai & 9 Others v. AG.80 The petitioners argued that the eviction contravened their rights to equal protection and non-discrimination, as well as the right to life. The petitioners also argued that the Tinet Forest was their ancestral land, on which they were dependent for livelihood, as well as for physical and spiritual survival. The court made their view painfully clear— declaring that the petitioners’ claim was without merit, “[belying] the notion” that the Ogiek had no means other than hunting and gathering to sustain their livelihood, and denying that their cultural and economic activities depended upon the continuous presence of forests.81 Such a view is obviously out of touch with contemporary understandings of the situation of indigenous peoples. According to the African Commission on Human and People’s Rights, the question of rights and justice for marginalized groups is not so much about current modes of production as it is about a paradigm of respect from dominant mainstream development groups for those “whose culture and ways of life are subject to discrimination and contempt and whose very existence is under threat” (International Work Group for Indigenous Affairs 2006, 87). Quite clearly, the Ogiek fit this description. Yet apparently not satisfied with disparaging the Ogiek’s mode of livelihood, the court ridiculed the very foundation on which their claim was based.82 The court then went on to address the question of ownership, reducing the issue to one of access, and making ludicrous comparisons to other natural resources that the judges felt belonged in the same category as the forests to which the Ogiek laid claim: To say that to be evicted from the forest is to be deprived of the means to livelihood because then there will be no place from which to collect honey or … to cultivate and get wild game…is to miss the point. You do not have to own a forest to hunt in it. You do not have to own a forest to harvest honey from it. You do not have to own a forest to gather fruits from it. This is like to say, that to climb Mount Kenya you must own it; to fish in our territorial waters of the Indian Ocean you must dwell on, and own the Indian Ocean; to drink water from the weeping stone of Kakamega you

80

Civil Case 238 of 1999. Id., at 9. 82 Kemai judgment, 1999, 13. 81

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must own that stone; to have access to the scenic caves of Mount Elgon you must own that mountain.83

In a rather disingenuous move, the court then turned the claim of discrimination against the Ogiek on its head, asserting on the contrary that the community was seeking special treatment. To be fair, the court also pointed to the evidentiary flaws in the petition, contrasting the arguments made to those in the famous Australian case of Eddie Mabo and others v. the State of Queensland,84 which radically restated Australian land law with respect to indigenous claims over land, for the first time giving due recognition to the Aborigines’ claims. The Kemai court averred that there was a “missed opportunity” for a close analysis of Kenyan land law because petitioner’s counsel had not brought the land statutes and customary law to the attention of the court, “and the case was presented within the narrow limits of the forests legislation and the extra-curial struggles and resistance of the people who had been removed from the place and relocated elsewhere.”85 The court thus turned the case into one for protection of the environment.86 Finally, the court declared that the government action called into question by the petitioners did not “contravene the rights of the plaintiffs to the protection of the law, not to be discriminated against, and to reside in any part of Kenya.” Rather, the court claimed the problem was with the extralegal actions of the Ogiek themselves.87 Failing to secure relief domestically, the Ogiek took their case to the African Commission (Oluoch 2014), but the High Court ruling also demonstrated a callous disregard for the rights and interests of a dispossessed community (Wachira 2007, 245–249). Even worse, it reflected a gross misunderstanding of the law relating to indigenous peoples, including some of the basic principles relied on by the Mabo case, which the court cited with such enthusiasm. In Kenya, the Endorois of the Lake Bogoria area of Baringo and Koibatek districts, as well as the Laikipia and Nakuru districts in the Rift Valley, encountered a similar experience (Makoloo 2005, 17). When the lake area was declared a game park, the Endorois were displaced without consultation (Sing’Oei, 2013, 373). In a bid to seek redress for their displacement and the violation of their trust rights, they filed an action in the High 83

Id., at 14. [1992] 66 QLR 408. 85 Kemai judgment, 15. 86 Id., at 19. 87 Id., at 21–22. 84

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Court against the local County Council. However, the case was lost on a technicality.88 Nevertheless, some concessions were extracted from the government, such as the removal of park entrance fees and the granting of access to religious sites and limited access to pasture, though these were granted only at the discretion of park officials (Makoloo 2005, 18). Through the Centre for Minority Rights Development (CEMERIDE), the Endorois filed a case at the African Commission on Human and People’s Rights. In February, 2010, the Commission found the Kenyan government to be in violation of various provisions of the African Charter and ordered a range of measures including compensation for the unlawful evictions.89 According to Korir Sing’Oei, the Endorois decision by the African Commission provided a rallying cry for minorities within the context of a campaign for a new constitutional dispensation (Sing’Oei 2013, 401). Since enactment of the 2010 Constitution, the position of indigenous peoples in Kenya has altered somewhat, beginning with their legal recognition as “marginalized communities” (Article 260).90 Furthermore, Article 63 recognizes and defines “community land,” while Article 56 provides for affirmative action programs directed at marginal communities, with promises of “reasonable access to water, health services, and infrastructure.” Most importantly, the Constitution “effectively abolished the trust land regime … and created a new tenure arrangement based on consensus, constituting the greatest policy gain yet for minorities in Kenya” (Sing’Oei 2013, 401). In Tanzania, disputes between authorities and indigenous peoples have similarly revolved around the appropriation of their lands for commercial exploitation, conservation, or tourism (Peter 2007, 455). The record is generally not a positive one (McHugh 2011, 194–196). In the 1970s, the state-owned National Agriculture and Food Corporation (NAFCO), in collaboration with a Canadian conglomerate, embarked on a wheatgrowing project in the Basotu Plains, in the Hanang district of Arusha region (Lane 1995, 92–93). Traditionally, the area had belonged to the agropastoralists known as the Barbaig, who were summarily dispossessed of land they had lived on for generations. No compensation was made for the 88

William Ngasia & Others v. Baringo County Council & Others, High Court Misc. Civil Application No. 183 of 2000 at Nakuru. 89 Centre for Minority Rights Development (CEMERIDE) & Minority Rights Group (MRG) International (on behalf of the Endorois) v. Kenya (February 2010); Communication No. 276 of 2003. 90 “Marginalized community” is defined, inter alia, as “an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy.”

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evictions, and the existing legal procedures were simply flaunted, with serious human rights violations inflicted on the populace (Shivji 2009, 216). The impact on the community was devastating: the loss of pasturelands led to decimation of the Barbaig’s herds and wide-scale destruction of trees, while human rights abuses abounded (Shivji 1995.). The Barbaig went to court and won their initial petition in the High Court,91 but lost when NAFCO appealed.92 The Barbaig filed another case disputing NAFCO’s occupation of thirty thousand acres of land the company had acquired in excess of the seventy thousand originally requested and seeking full compensation. In a bid to defeat their claim, the government of Tanzania issued an executive order extinguishing any customary claim to land in the vicinity of the wheat farms. To add insult to injury, the order was made retroactive to a date preceding the filing of the Barbaig claim.93 Other cases on the issue were similarly unsuccessful (Lane 1995; Mvungi 2008, 6–8).94 A series of court actions brought by Maasai pastoralists further demonstrate the hurdles indigenous peoples have experienced in securing their rights through the Tanzanian courts. In the Ngororgoro Conservation Area (NCA), over fifty thousand Maasai residents were shifted to the plains upon creation of the Serengeti National Park in the late 1950s (Shivji 2009, 217). The agreement with the colonial government had been that Maasai interests would be paramount. Not only was this agreement ignored and violated, but other protections—such as the 1975 bar against cultivation in the area—have gradually been encroached upon. Similar treatment was meted out to Maasai pastoralists in the Mkomazi Game Reserve, established in 1952 with the same recognition of existing inhabitants’ rights. In the late 1980s, the government began a systemic process of evicting pastoralists, leading to two cases challenging the state’s actions (Mvungi 2008, 11–12). In both cases, which were later combined,95 the plaintiffs argued that the evictions did not follow due pro91

Mulbadaw Village Council & 67 Others v. NAFCO, Civil Case No.4 of 1982, High Court of Arusha. 92 NAFCO v. Mulbadaw Village Council & 67 Others, Civil Appeal No. 3, Court of Appeal, 1985. 93 See Extinction of Customary Land Rights (Amendment) Order, 1989, Government Notice No. 260 of July 28, 1989. 94 See Yoke Gwako & 5 Others v. NAFCO & Gawal Farm (Civil Case No .52 of 1988), and Aho Gembul & 10 Others v. NAFCO & Waret & Gidagawmod Wheat Farms (Civil Case No. 12 of 1989). 95 Lekengere Faru Kamunyu and 16 Others v. The Minister for Tourism, Natural Resources and Environment and 3 Others, (Civil Case No. 33 of 1994) and Kopera Keiya Kamunyu and 44 Others v. The Minister for Tourism, Natural Resources

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cess and were unconstitutional as they breached customary rights to land (Juma 2000). In response, the court found that the Maasai were “not the first tribe to arrive in the geographical area which is the subject of this case,” thus denying them customary title. In sum, the court made the ludicrous finding that the Maasai were not indigenous to the area. This decision contrasts with that of the Court of Appeal in the case of Attorney General v. Aknonaay & Another,96 which established that even though title to all public land in Tanzania vested in the president, it was subject to the beneficial rights of the customary occupants, who would be entitled to compensation on eviction. The court also validated the claims of indigenous peoples, but the case was ultimately lost on account of the principle against retroactivity. Taken together, these cases demonstrate the Tanzanian courts’ general hostility toward customary claims of ownership, on which indigenous communities ultimately rely. Despite some views that the future of protected groups in Tanzania is turning brighter (Rwegasira 2012, 304), we can do no better than agree with Sengondo Mvungi that “success has not been on the side of pastoralists and other indigenous groups in the courts of law” (Mvungi 2008, 2). In Uganda, the Benet of Mount Elgon, the Karimojong of the northwestern region, and the Batwa of the southwest (ILO/ACHPR 2006) are the best known indigenous communities that have been subjected to land alienation, dispossession, and discriminatory treatment (German et al., 2012, 224–225). Of the three, most attention has been focused on the Karimojong and the Batwa, with the former subjected to a series of statebacked interventions ranging from “pacification” to de-pastoralization intended to address what were regarded as problems of armed conflict and over-grazing, which have been a source of contention for decades. Of these groups, only the Benet of Mount Elgon have sought recourse through the courts (ILO & African Commission on Human and People’s Rights 2009, 29). Similarly to their cousins across the border, the Ogiek,97 the Benet were evicted from the slopes of Mount Elgon following the colonial declaration of the area as a protected forest and game reserve. Legal action led to a ruling by Justice Katutsi that the Uganda Wildlife Authority’s (UWA) occupation of the Benet’s homeland, and its designation as a reserve, were illegal. Observing that the Benet were the historical and inand Environment and 3 Others, (Civil Case No. 33 of 1995) both at the High Court of Moshi. 96 Civ. App. No.31 of 1994; (1994) TZCA 1. 97 The Benet are also known as the “Ndorobo,” a disparaging term also used to describe the Ogiek.

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digenous inhabitants of the land and were thus entitled to stay and carry out economic and agricultural activities there, the judge ordered its degazettement.98 The government was also ordered to address problems including lack of education, infrastructure, health and social services that had ensued from the point of gazettement (African Commission Working Group of Experts of Indigenous Peoples and Communities 2005, 54–55). To date, the Benet have yet to regain access to their land, despite continuous promises that their plight will be given attention. The government has not even designed an interim program of affirmative action and support. Although action on the regional and international stages has been contemplated, this has yet to be pursued.

Using Courts to Protect the Environment Protection of the environment is related to indigenous claims over land, although not always in a complementary fashion. Indeed, in the Ogiek case in Kenya, protection of the environment was given as a reason to deny indigenous claims to land. In many respects, this juxtaposition of claims contrasts sharply with the historical manner in which indigenous peoples related to the environment. As Juma and Ojwang point out, environmental governance was the main preoccupation of the traditional resource management system in Africa. Indigenous…systems reflected the way communities organized their lives with[in] the constraints of the environment in which they lived. Decision-making institutions focused on utilizing and managing environmental resources based on the knowledge of the community. This was done within the framework of their world, in other words in accordance with their ethics, norms, and beliefs. Indigenous knowledge of environmental management allowed classification of soil and vegetation types, prediction of resources availability, and planning of use strategies. This knowledge enabled communities to avoid overutilization of an area through monitoring its status and adjusting their resource-use patterns (Juma and Ojwang 1996 17–18).

Needless, to say, East Africa’s approach to protecting the environment has not been straightforward, and has in many respects subverted the traditional resource management systems that were in place before colonialism. This is in part because most current laws governing the environment were initially conceived during the colonial period. As such, “they were informed by the political economy of colonialism; and even when they were 98

That is, land that had been seized and declared a wildlife reserve was now to revert to the Benet.

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adopted by the independence government(s), they retained major characteristics of their colonial antecedents” (Odhiambo, n.d., 265). The twin foci of this regulatory framework were pollution control and the preservation of nature, which ignored “the relationships between particular environmental problems and the systematic connectivity between various components of the environment” (Odhiambo, n.d., 265). At the same time, policies were informed by a notion of the environment as a social good for the colonial citizen, but not necessarily for the native subject. Indeed, the regime of environmental law and governance constructed during the colonial era confronted indigenous communities as a coercive and blunt instrument of force much like that of the criminal justice system. Emphasis was on the interests of the state, not on colonized African communities. Lastly, the regime of law was largely informed by private as opposed to public considerations, allowing free reign for the doctrine of locus standi to prevent action against the tide of environmental exploitation (Murombo 2010, 171–173). Environmental rights give lie to the division between civil and political rights on the one hand and economic, social, and cultural rights on the other. This is because they implicate the rights to life and health as much as they affect rights to free expression, assembly, and association. In an early Ugandan case concerning a sugar company’s attempt to appropriate a forest reserve claimed by the neighboring community, the court invoked the right to health in order to demonstrate the all-encompassing nature of the right to a healthy environment: The right to health does not…stop at physical health. It covers intellectual, moral, cultural, spiritual, political and social wellbeing. Politically and socially, Butamira Forest reserve belongs to the local community in Butamira. The people of Butamira also have a moral, cultural, economic and spiritual attachment to Butamira Forest Reserve as a source of sports, worship, herbal medicine, economy, etc.99

Both the right to life and the Common Law Doctrine of Nuisance have similarly been used as a means to seek court protection of the environment. Taking the argument even further, it is clear that environmental accountability is as much about questions of governance and transparency as 99

Advocates Coalition on Development and Environment (ACODE) v. The Attorney General, Miscellaneous Cause No.0100 of 2004, at 22 (also known as the ‘Butamira Forest’ case). See also the judgment in Uganda Electricity Transmission Co. Ltd. v. De Samaline Incorporation Ltd., Miscellaneous Cause No.181 of 2004 (High Court of Uganda).

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it is about moral duty and legal obligation (Boyd 2012). Environmental rights demonstrate that such rights are not only about the relationship between the citizen and the state, but are concerned with the myriad horizontal relations—for example between citizens and non-state actors such as corporations—which are implicated in the bid to ensure that the environment is protected. In this respect, the implementation of such a right can be a powerful tool in the struggle against economic impunity, which often involves the private appropriation and abuse of natural resources drawn from the common patrimony (Nampewo 2013). Of the three East African countries, Uganda was the first to incorporate into its constitution a provision explicitly recognizing the right to a healthy environment. The 1995 Constitution, as well as several parts of the National Objectives and Directive Principles of State Policy (Kasimbazi 2009),100 both included provisions that appeared to open up the interpretation of locus standi to more court action. Environmental activists immediately began to test whether the progressive provisions in the instrument could actually be brought to life (Twinomugisha 2007). Early decisions were not positive. In the case of National Association of Professional Environmentalists (NAPE) v. AES Nile Power Ltd.,101 the applicants were unable to secure an injunction preventing the government from signing a power project agreement without conducting an environmental impact assessment. In Byabazaire Grace Thaddeus v. Mukwano Industries,102 the court stated that the National Environment Management Authority (NEMA) had to establish air quality standards before the totality of the right to a healthy environment could be assessed. In the absence of such standards, a court was unable to take action against an alleged industrial polluter. The case of Grace Sentongo v. Yakubu Taganza103 was simply dismissed on a technicality. PIL advocates were becoming increasingly frustrated and dismissive of constitutional provisions on the environment as a legislative tool, while state attorneys became experts in raising preliminary objections and avoiding ever having the cases decided on merit. And then, somebody dared light a cigarette outside the chambers of the Principal Judge. Justice Herbert Ntabgoba ordered that the offending culprit be arrested and detained for contempt of court. Somehow the suspect escaped, but word got around to the PIL community that Justice Ntabgoba hated smokers. Armed with 100

Until the 2010 Kenyan Constitution, it was also the most comprehensive (Mbote & Odote 2009, 32). 101 Miscellaneous Application No. 268 of 1999. 102 Miscellaneous Application No. 39 of 2001. 103 Miscellaneous Application No. 8 of 2003.

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this knowledge, and levering its case on the public interest provisions of the Constitution, the Environmental Action Network (TEAN) sued the AG and NEMA “on its own behalf and on behalf of the non-smoking members of the public under Article 50(2) to protect the rights to a healthy environment, the right to life and for the general good of public health in Uganda.”104 Sweeping aside all the State Attorney’s preliminary objections as to hearsay evidence, the expertise of the applicant, and locus standi on account of the applicant’s alleged (un)representative capacity, Justice Ntabgoba ordered that costs be paid by the respondents for delaying the hearing of the main application. The judge went on to state that “the interest of public rights and freedoms transcend technicalities, especially as to the rules of procedure leading to the protection of such rights and freedoms.” Reading the direction in which the petition was flowing, before the court issued a final ruling on the matter, NEMA issued a new regulation limiting smoking in public places.105 The TEAN litigation provided the necessary precedent to allow PIL cases on the right to a healthy environment to flourish in Uganda. A host of cases followed, with varying degrees of success. Some of them focused on access to information relating to environmental issues,106 while others dealt with the phenomenon of environmental impact assessments. Thus, in the Butamira Forest case, Justice Aweri stated that the question involved was more delicate because it involves the interest of the local community whereby even common sense should demand that an Environmental Impact Assessment study be carried out to determine [the] social, political, cultural and economic impact of the project. If it is true that land in Uganda belongs to the people as provided in the law, it should be equally true that the local community in Butamira should have been consulted as a matter of transparency, accountability and good governance.107

The same judge also invoked the public trust doctrine by stating that the Butamira Forest Reserve was 104

H.C. Miscellaneous Application No.39 of 2001. See the National Environmental (Control of Smoking in Public Places) Regulations (2004). 106 Greenwatch v. Uganda Electricity Transmission Co. Ltd., (Misc. Appl. No. 139 of 2001). 107 H.C. Misc. Cause No. 0100 of 2004, at 21. See also National Association of Professional Environmentalists (NAPE) v. AES Nile Power, H.C. Misc. Applic. No. 268 of 1999. 105

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The court went on to note the circumstances in which the license had been granted: there was evidence that the permit had been granted to Kakira Sugar Works amidst protests from local communities; over fifteen hundred people who depended on agro-forestry as a livelihood and further relied on the reserve as a source of water, fuel, and other forms of sustenance formed a pressure group to halt the permit. There was therefore a breach of the public trust doctrine. This doctrine was also applied in 1956 by the Principal Forest Officer of the time, when he rejected the demands to alienate the Reserve to Kakira Sugar Works Ltd.109 Ugandan courts have also been asked to find a balance between competing rights such as the right to a healthy environment versus the right to property. For example, in the case of Amooti Godfrey Nyakana v. National Environmental Management Authority & 6 Others,110 the applicant sued NEMA for destroying his house, which had been built in a wetland. Holding that the constitutional right to property was not absolute, the Constitutional Court stated that “wetlands could not be granted to private individuals/entities because the state holds such natural resources in trust for the citizenry, and they must be preserved for the public benefit, in this case to protect the environment.”111 On the whole, the Ugandan courts have taken a creative approach and “to some extent [have] held the state, its agencies, and private actors accountable for violations of the right” (Boyd 2012, 154). Nevertheless, the government has frequently ignored court judgments, while the enforcement capacity of NEMA has also witnessed a rapid decline (Kasimbazi 2011, 523). The 2010 Constitution of Kenya provides for the right to a healthy environment. Before that, petitioners had a difficult time getting around the issue of locus standi in such cases (Kameri-Mbote, 2009, 451–78). In the case of Professor Wangari Mathai (Coordinator, Greenbelt Movement) v.

108

Id., at 16. Id., at 16. See also Siraji Waiswa v. Kakira Sugar Works Ltd., H.C. Misc. Applic. No. 230 of 2001. 110 Constitutional Petition No. 03/2005. 111 Id., judgment of Mpagi Bahegaine, at 14. 109

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Kenya Times Media Trust Ltd.,112 which challenged the attempt to construct a building complex in the iconic Uhuru Park in Nairobi, the court first dismissed the application on grounds of locus standi. But the judge went on to disparage the claim that the suit was based on moral or social grounds and thus representative of broad public opinion.113 Observing that the plaintiff had “strong views that it would be preferable if the building of the complex never took place, in the interests of many people who had not been directly consulted,” the court concluded, “of course many buildings are being put up in Nairobi without many people being consulted. Professor Mathai apparently thinks this is a special case. Her personal views are immaterial.”114 Enforcing environmental rights in pre-2010 Kenya was problematic in the absence of a constitutional provision or—more importantly—an enabling legislative framework to support these rights. The problem was compounded by traditional and timid judges. Hence, the most conservative of traditions and concepts drawn from English Common law were applied during this time.115 Environmental matters were considered to be strictly private law issues and of little concern to public law. This partly explains why a court declared that the Kenya Ports Authority (KPA) lacked standing to sue the East African Power and Lighting Company for damages to clean up Mombasa port after an oil contamination: the waters were classified by the court as res nullius (nobody’s property).116 The court stated that the KPA lacked property interest in the waters, an argument that would not stand scrutiny today in the era of a well developed public trust doctrine (Shelton and Kiss 2005, 24). However, not all judges in the pre-2010 Kenyan Judiciary were willing to simply ignore violations of the right to a healthy environment. In the case of Abdikadir Sheika Hassan & Others v. Kenya Wildlife Services (KWS),117 the court permitted the plaintiff to bring a suit barring KWS from removing or dislocating a rare and endangered species from its natural habitat because the judge found that according to Customary Law,

112

High Court Civil Suit No.5403 of 1989. Id., at 17. 114 Id., at 18. 115 See for example Lawrence Nginyo Kariuki v. County Council of Kiambu, (HCCC Misc. No.1446 of 1994). 116 See Kenya Ports Authority (KPA) v. East African Power and Lighting Company Ltd. (Case 41 of 1981; Court of Appeal at Mombasa). 117 Case No.2059 of 1996 (High Court of Kenya). 113

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those entitled to use the land were also entitled to the fruits thereof, including the flora and fauna.118 In P.K. Waweru v. Republic of Kenya,119 the court stated that the accused persons were emptying effluent including solid waste into the Kiserian River, raising “very serious environmental issues and challenges.” Although the court pointed out that there was a discriminatory element in the manner in which criminal charges had been brought against the polluters (who instituted a constitutional challenge against their conviction), the court found that the people’s right to a clean environment had been violated.120 Similarly, in Rodgers Muema Nzioka and Others v. Tiomin Kenya Ltd.,121 the court observed that the mining company had failed to take into account any environmental factors in carrying out its activities and ordered an injunction against them. Despite the absence of a specific environmental right in the Constitution, the judge in the 2008 case of Charles Lekuyen Nabori v. Attorney General & 3 Others122 held that: Each Kenyan is entitled under the constitution and under the environmental Act EMCA to a right to life, a right to a clean and healthy environment. The Prosopis Jeliflora plant has seen the populace being misplaced and their development and social life style being interpreted (sic). Their right to develop and improve their life style has been curtailed by the introduction of this plant. The government has failed in its task to put in place a management programme or to make it a national issue.

The provision on the right to a healthy environment in the 2010 Constitution has already become a focus of activism mediated through the courts (Kenya Law 2013a), building on the National Environmental Tribunal as well as other mechanisms established by the Act (Boyd 2012, 155). In the case of Kwanza Estates Ltd v. Kenya Wildlife Services,123 Justice Angote invoked the principles of sustainable development enshrined in Article 69(10)(d) of the Constitution and the Environmental Management and Coordination Act (EMCA) of 1999 to rule that an Environmental Impact Assessment was mandatory for the construction of public toilets next to a 118

In the earlier case of Paul K. Nzangu v. Mbiti Ndili (Case No.8 of 1991; High Court of Kenya at Machakos), where the defendant was found to have illegally dumped waste on a neighbour’s property, he was ordered to clean it up. 119 (2007) AHRLR 149 (KeHC 2006). 120 Id., para. 24. 121 Civil Case No.97 of 2001 (High Court at Mombasa). 122 [2008] eKLR. 123 HCC. No. 133 of 2012 (High Court of Kenya at Malindi).

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beach resort. Another court invoked the National Principles of State Policy—noting that they were “not on their own justiciable”—to underscore the point that in the Preamble to the 2010 Constitution, the citizens of Kenya had “made it clear that they were respectful of the environment, which was the heritage of Kenyans, and that they were determined to sustain it for the benefit of future generations.”124 Finally, in a case in which a pastor, a gospel musician, secular artisans, traders, and businesspeople in the music industry sued for a declaration that noise-control regulations were unconstitutional, the court stated that “all the law required of the petitioners was that they adhere to a certain level of noise so as not to harm the public in the manner they conducted their business.”125 Clearly, in the fairly short time that the Kenyan courts have engaged with the new constitution, a significant jurisprudence on environmental rights has sprung up. This may be related in part to the division of labour and specialization introduced to the courts, but it is also clear that there is a new, rights-friendly atmosphere in the courts. In Tanzania, while there is no explicit constitutional provision on the right to a healthy environment, some scholars have argued that a binding legal framework is provided by the Directive Principles of State Policy in the Constitution, combined with the Environment Management Act (EMA) of 2002 (Kabudi 2009, 513–514). In a case decided several years before enactment of the EMA, a court found the City Council in breach of its obligation to ensure that the public was protected from abuse. The case of Joseph Kessy et al. v. Dar es Salaam City Council126 is believed to be the very first litigation on the continent to use a constitutional right-to-life provision to address the issue of environmental damage (Weston & Bollier 2013, 301). The case was brought by residents of the Tabata area of the city, who sought to prevent dumping and burning of solid waste in the area, while the respondent Council sought permission to continue doing so (Kabudi 2009, 518). Justice Mwalusanya first chastised the Council for having the audacity to even come to court seeking such an order and found that the actions of the Council affected the right to life (Kabudi 2009, 518).

124

R v. Kenya Forest Service Ex parte and Clement Kariuki & 2 others suing as the Chairman, Secretary and Treasurer of the National Alliance of Community Forest Association, (Judicial Review Case No 285 of 2012, High Court at Nairobi). 125 James Jessie Gitahi & 202 others v. Attorney General & 2 others (Petition No. 683 of 2009, High Court at Nairobi). 126 Civil Case No. 299 of 1988.

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Employing the Common Law Doctrine of Nuisance, the case of Festo Balegele & 749 Others v. Dar es Salaam City Council127 provided yet another avenue for litigation. Speaking for the three-panel Bench, Justice Yahya Rubama stated that the right to a healthy environment was an integral part of the right to life and was violated by the establishment and operation of garbage dumps near residential communities, and that it was the statutory duty of the City Council to stop nuisance and not to create it.128 Thus, even in the absence of a specific right in the Constitution, the courts in Tanzania have found ways of reading environmental rights into a broad number of situations, taking inspiration where necessary from general Bill of Rights provisions such as those on the right to Life, or from the arena of Common Law doctrine and judicial precedent.129 The overall impact of this jurisprudence has been to demonstrate that you can—to turn Okoth Ogendo on his head—have constitutionalism even in the absence of a constitution (Okoth-Ogendo 1991). The critical question is: are courts willing to move in that direction?

The Neglected Question of Cultural Rights If economic, social, and cultural rights are a poor cousin to civil and political rights, then cultural rights are the most distant, dispossessed relation, many times removed. Cultural rights may be the most marginalized of all in the mainstream of human rights activism, protection, and litigation. Indeed, out of the twenty-one general comments issued by the Committee on Economic, Social, and Cultural Rights, only two cover this category.130 While the literature on economic and social rights is abundant, very little exists on cultural rights. Even when social and economic rights are invoked in discussions on poverty and resources, cultural rights are very often forgotten. Most denigrated within this category is the arena of 127

Misc Civil Cause No. 90 of 1991 (in the High Court of Tanzania at Dar es Salaam). 128 Id., at 89–90. 129 See for example the case of Erick David Massawe v. The Tanzania National Roads Agency, Loi Langisho Mollel and the Attorney General, Land Case No. 16 of 2004 (High Court of Tanzania at Arusha; unreported). 130 These are General Comment No. 17, The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (Article 15, paragraph 1 (c), of the Covenant) and General Comment No.21, Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social, and Cultural Rights.

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Customary Law—a legacy of the colonial era, when institutions and practices in place at the onset of imperialism were greatly marginalized—the practice of which even today represents much-contested social and political terrain. But what exactly are cultural rights? Perhaps the best starting point is to define the term “culture.” According to Kwesi Prah (2013): [Culture] may be said to be the whole complex of distinctive spiritual, material, intellectual and emotional features that characterise a society or a social group. It includes not only arts and letters, but also modes of life and livelihood, the fundamental rights of human beings, value systems, customary practices, and beliefs (Prah 2013, 66).

Sieved through the framework of rights’ language, cultural rights include “demands for the recognition of customary law for indigenous peoples; demands for language rights by sub-state national groups; mothertongue education for immigrant groups [as well as] demands for the accommodation of cultural and religious practices” (Prah 2013, 68). Considered together, cultural rights amount to demands for respect as well as inclusion, validation rather than denigration, and liberation instead of suppression. Returning to the links between human rights and poverty with which we began this chapter, a traditional in-the-box approach would focus only on the written (official) law. Needless to say, while the official law is no doubt important, the uncoded law in pluralist countries such as the three under examination is just as relevant and pertinent. In the same way that the introduction of M-Pesa demonstrated that the vast majority of Kenyans were not engaged with the traditional banking system, most East African citizens are disengaged from the operation of official written law except where confronted with its most coercive, criminal, and punitive aspects. Unofficial (or plural) law is both an enabler and an inhibitor to achieving the goals of social justice and individual emancipation. Understanding how this is so is crucial to realizing the goals of poverty eradication and socio-economic liberation. According to Kane et al. (2005), Customary Law systems are flexible; they evolve as communities evolve and provide communities with a sense of ownership, in contrast to formal legal systems that are perceived as alien to a considerable number of people in Africa. Customary law tribunals are inexpensive, accessible, and speedy. Their proceedings are easily understood by users of the system. They are useful when the formal state institutions are unable to reach the people, or where such institutions have broken down or are affected by civil strife and conflict.

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While there are undeniable problems associated with Customary Law systems, there is no doubt that plural, customary, or traditional law has been insufficiently studied and appreciated in terms of its role and place in achieving a more just and equitable society. Indeed, most reactions to this regime of law are to dismiss, disparage, or disregard it. The belief is that modernization will render such law irrelevant or that attention to official law is sufficient to address the problems of poverty, social dislocation, and political alienation. And yet, wherever one looks in the context of a developing economy, the influence of a more traditional law is phenomenal and has proven surprisingly resilient. We should not underestimate the connections between expression of cultural rights and a host of other obligations within the regime. Elsewhere I have noted that “cultural or traditional knowledge and its exploitation or misappropriation have implications for the right to health and the right to food, not to mention the right to an adequate standard of living” (Oloka-Onyango 2005, 12). There are several other connections that can be drawn between the expression and realization of cultural rights, on the one hand, and enhanced overall development of society on the other. Consider just the question of women and land. While there is a running presumption that Customary Law practices regarding women and land are largely negative, a number of scholars and activists have demonstrated that this is not necessarily always the case (LEMU 2014). Given that 80 percent of land in a country like Uganda, for example, is held under customary systems of tenure, at a minimum there is a need to engage with the different dynamics of this legal regime. Table 5.1 below outlines some of the myths and facts regarding customary land tenure. Although the data is drawn from Uganda, similar conditions exist across the East African region. MYTH 1. CT exists only in rural areas. 2. CT exists only in northern and eastern Uganda. 3. Land held under CT cannot be sold. 4. All land under CT is owned communally. 5. Land held under CT does not provide security of tenure.

FACT 1. Much urban land is owned under CT. 2. Over 80 percent of land in Uganda is held under CT. 3. Land held under CT has been the subject of economic transactions for many years. 4. Most agricultural land held under CT is privately owned. 5. Customary owners have the same rights as title holders.

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6. The majority of Ugandans currently own land under CT. 7. The rules that govern CT are continually evolving (for better and for worse).

Table 5.1. Misconceptions about Customary Tenure (CT) in Uganda Source: LEMU 2014

Table 5.1 implies that the omission of plural law from discussions about poverty and resources needs to be comprehensively revisited. To borrow from Sylvia Tamale, “the place of culture and custom cannot simply be dismissed from our discussion of these phenomena” (Tamale 2008). Similarly, when considering “legal institutions” we invariably think of courts, legislatures, and executive or administrative bodies—the established organs of the State. While these bodies are obviously important, we also need to look at institutions operating within the extra-legal arena— what economists refer to as the “plural” or “parallel” economy—such as traditional institutions and their dispute resolution mechanisms (Kamau 2009). Such institutions have a significant influence on the capacities of individuals and communities to engage with the economy, whether through erecting and reinforcing traditional barriers to voice, participation, and inclusion or helping to bring them down (Anying 2012). In sum, we need to investigate a plurality of spaces in order to understand and assess the overall scope and impact of the customary. Against the above background, it is important to recall that colonialism created a dual system of judicial administration, with the so-called “African,” “local,” or “native” courts administering Customary Law under the supervision of provincial or district commissioners. This legal apartheid structure was abolished in the court systems following independence, but persisted substantively in that the two streams of law—common and customary—were handled differently, with even the independence constitutions treating customary law as somewhat inferior. To say that the treatment of Customary Law following independence was a travesty is in fact an understatement, even though steps were initially taken to comprehensively address the issue. The 1963 African Conference on Local Courts and Customary Law in Dar es Salaam attempted to address the colonial legacy and to forge a comprehensive process for handling Customary Law in the newly independent countries (Ghai 1964, 613–615). The conference recommended, among other things, integration of the courts. On Customary Law the conference noted that “there was no question of the disappearance of Customary Law in the foreseeable future

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as a significant part of the African legal system” (Ghai 1964, 614); hence quick action was needed to train a large number of judges to competently address disputes in the area. In terms of substance, the conference noted that There were certain areas where Customary Law never applied or could not effectively be applied today (e.g. the whole gamut of commercial laws); it was desirable that there should be a uniform criminal law [all] over the country; and the system of land tenure would have to be modified to enable a more scientific and economic exploitation of land to be carried out (Ghai 1964, 614).

The conference identified personal customary law as a system likely to continue in operation, but the question was whether this would subsist as a separate system or be integrated into the main body of statutory laws—a process that would be dependent upon different political ideologies in each context. Spurred on by the recommendations of the Dar es Salaam Conference, the three East African countries proceeded to address the issue in different ways. Uganda established a commission, which reported in 1965, to study family law and the status of women (GOU 1965), while Kenya set up a similar body in 1967 to report a year later. Both urged comprehensive reform and integration of the disparate religious and customary law systems. The Kenya Legislature, however, rejected the commission’s draft bill multiple times on the grounds that it was “un-African, a model of English law that took insufficient account of African customs and traditions and gave too many rights to women” (Fluet, Calaguas, and Drost 2007). The matter remained on hold until 2014, when the Kenyan Parliament passed the Marriage Act amidst some controversy (Dudley 2014). In Uganda, despite the vigorous efforts of the women’s movement, no bill was even submitted to Parliament for another forty-plus years—well after enactment of the 1995 Constitution. Even then, debate was so intense that the government eventually withdrew the proposed bill, with President Museveni equating contention over the matter to “civil war.” Attempts at its reintroduction have been thwarted by an old and familiar foe—the institution of patriarchy (Hore 2013). Only Tanzania succeeded in overhauling its family law in line with the spirit of the Dar es Salaam conference. The Mapendekazo ya Serikali juu ya Sheria ya Ndoa (Government’s Proposals on the Uniform Law of Marriage, Government Paper No. 1 of 1969) provided the framework for Tanzania’s groundbreaking Law of Marriage Act (LMA), 1971. The reforms introduced included recognition of religious and customary marriages,

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registration requirements, the establishment of marriage conciliation boards, requirement of a judicial decree as a prerequisite to a valid divorce, and the presumption of marriage based on a two-year period of cohabitation (Fluet et al 2007, 23–24). In sum, while the law allowed for plural operation of the substance of law, it sought to introduce a degree of uniformity to the manner in which it was administered and supervised. Simultaneously, the LMA also radically transformed the legal status of women throughout Tanzania. Given this background, the fate of cultural rights within the East African court systems has been mixed. Prior to the 2010 Constitution, the position on cultural rights in Kenya was vague, although it was possible to read the right into the Chapter Nine provisions of the earlier instrument on trust land (ILO 2009, 30–31). As Nancy Baraza noted of the pre-2010 Kenyan High Court: “The High Court has held in some cases … that customary law should be recognized and is capable of qualifying an individual’s rights and in others that they are not overriding interests and should therefore be ignored (Baraza 2008–2010, 5).”131 Part of this confusion stems from the case of Ernest Kinyanjui Kimani v. Muira Gikanga,132 a case decided in the early 1960s by the East African Court of Appeal. Although primarily about the manner in which Customary Law is proved and not about its substance, the case was important because it reflected the tension between the colonial approach and an insurgent attempt within the post-colonial Judiciary to change the discourse. As we have seen throughout this book, the manner in which legal issues are framed can be as important as the actual resolution of the dispute. The majority of the judges in Kimani held that Customary Law must be proved by the parties, and judges could only take “judicial notice” of a custom if it was “notorious” or firmly entrenched through judicial precedent (Dennison 2014). This position embodied the traditional British colonial approach and reflected the parallel regimes that colonialism established—one for the “citizen” and the other for the “subject.” Under this system, judges were under no obligation to actually study and understand Customary Law, which invariably meant that its interpretation was medi131

The cases under reference include Muguthu, Mwangi v. Maina Muguthu (Civil Case No.377 of 1968), Misheck, Samuel Thata & others v. Priscilla Wambui & Another (Civil Case No.1400 of 1973), Limuli, Edward v. Marko Sabayi (Civil Case No 22 of 1978) and Kiama, Alan v. Ndia Muthunya & Others (Civil Appeal No.46 of 1978) which recognize Customary Law, and Obiero v. Opiyo [1972] EA 227, Esiroyo v. Esiroyo [1973] EA 388 and Murai v. Wainaina (No.5) [1982] KLR 51, which don’t. 132 (1965) E.A. 735.

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ated through the dominant legal framework, i.e. English Common Law. The only dissenting voice in Kimani came from the Ghanaian Judge, Justice Samuel Azu Crabbe, who argued that it was time for the courts in East Africa to get over this colonial mentality. Although the majority view in Kimani largely held sway in East African courts, a more liberal approach was adopted in reforming Kenya’s Evidence Act, which expressly provided judges with the power to judicially “notice” unwritten law,133 even though the Kimani “hangover” lingered in some subsequent decisions of the courts (Ochich 2011). The treatment of Customary Law in Tanzania has been the subject of much attention. President Nyerere’s efforts to address the colonial legacy of divide-and-rule, reforms introduced through the removal of colonial chieftaincy, and the introduction of Family Law via the LMA have all been subjected to study and analysis. The removal of customary rule (or leadership) did not imply that the regulations (Customary Law) developed in different communities were also wiped out. As Sally Falk Moore noted in her study of Tanzania’s Chagga region, adaptations were made in form, even though substance remained largely intact (Moore 2011). Customary Law was nevertheless recognized and respected as legitimate within the judicial system. Thus, in the case of Maagwi Kimito v. Gibeno Werema,134 the Court of Appeal held that Customary Law enjoyed the same status as other laws and was subject only to the Constitution, not to the pre-independence “repugnancy” test. As such, Customary Law remained an arena of contestation, especially with respect to women’s rights. It was in this context that the Tanzanian High Court made the nowfamous decision in Ephraim v. Pastory.135 The court referred to section 5(1) of the Constitution (Consequential, Transitional, and Temporary Provisions) Act, which compelled courts to construe existing law, including customary law, “with such modifications, adaptations, qualifications, and exceptions as may be necessary to bring it into conformity with the provisions of the Fifth Constitutional Amendment Act, that is [the] Bill of Rights.” According to the court, this meant that women were entitled to the same treatment under the law as men, confirming that the custom of limiting customary inheritance to only one gender was discriminatory. In subsequent cases, the LMA has been described as “an instrument of liberation and equality between the sexes” that sought to “cure or rectify what may be described as the traditional exploitation and oppression of 133

See sections 13 and 51 of the Evidence Act, Cap.80, Revised edition, 2012. 1985 TLR 132 (CA; Court of Appeal at Mwanza). 135 1990 LLR 83 (High Court of Tanzania) at 1. 134

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married women by their husbands.”136 Other cases have decreed the more equitable distribution of marital assets,137 confirmed that a woman’s consent is necessary to validate a customary marriage,138 and held that the distribution of marital property upon divorce should be in accordance with the contributions of the parties to the marriage.139 Under the 2010 Kenya Constitution, there has been a reinvigoration of the context and framework within which cultural rights in general and Customary Law in particular have been situated. Starting with the Preamble, the 2010 Constitution adopts a much more liberal approach to the issue of culture. Article 11 states that “this Constitution recognizes culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and the nation.” The Article further enjoins the state to “promote all forms of national and cultural expression through literature, the arts, traditional celebrations …and other cultural heritage; recognise the role of science and indigenous technologies in the development of the nation; and promote the intellectual property rights of the people of Kenya.” Sub-clause 3 enjoins Parliament to enact legislation to 1) “ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and 2) recognize and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics, and their use by the communities of Kenya.” At the same time, the Article attempts to balance cultural expression and self-determination with the rights of those who may be vulnerable or unfairly targeted under “harmful cultural practices.”140 Other provisions cover language and its use, participation in cultural life, and the right to join and maintain cultural associations. The recent case of Katam v. Chepkwony & Anor.141 exemplified the courts’ approach to Customary Law. The case considered whether a marriage between two women was valid under Nandi culture. Justice Ojwang found that the custom was well-established and that case law existed supporting this institution. The custom of woman-to-woman marriage was read into the scheme of S.29 of the Law of Succession Act, and the court

136

Judgment in Bi Hawa, at 43. Doitha Thuway v. Amathi Bura High Court Civil Appeal No. 9 of 1990. 138 Jonathan v. Republic High Court Criminal Appeal No. 53 of 2001. 139 Njobeka v. Mkogoro. High Court Civil Appeal No. 6 of 1991. 140 See articles 53(d) and 55(d). 141 8 CHRLD (2014) 274–276. 137

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held that the petitioner was indeed wife to the deceased, and her two sons were children of the deceased.142 Outside of the traditional court structure, the Kenyan Constitution also recognizes traditional dispute resolution mechanisms, although it applies limitations to their scope and operation. Such mechanisms must operate in accordance with the Bill of Rights and the Constitution and must not be used in a way that is repugnant to justice or morality. Although the language used is straight out of the colonial formulation on “repugnancy” clauses, these provisions seek to provide the necessary constitutional cover and balance to mechanisms that are obviously central to the expression of cultural rights in Kenya—a fundamental goal in realizing full access to these rights. As Yash Ghai points out, the need for balance should be of paramount consideration: Sometimes the solution (to inter-communal and inter-ethnic tensions) may lie in accepting that there are certain individual rights that trump group rights (like dignity, right to life, freedom from torture, fundamental equality), but there may be some areas, of particular concern/ideology/religion, where a group may be allowed to have its own rules (Ghai 2013, 168).

Decided cases in Uganda recognize Customary Law, but only after a law has been proved through the traditional method espoused in the Kimani case. While the 1995 Constitution re-valorized Customary Law, Article 33(6) has provided the fulcrum on which much of the contestation over its relevance and place has revolved. Focused on the rights of women, the provision stipulates that “laws, cultures, customs, or traditions which are against the dignity, welfare, or interest of women or which undermine their status, are prohibited by this Constitution.” The provision has been successfully used to challenge the practice of female genital mutilation and provisions on the law of succession, and it has been brought to bear on the issue of criminal adultery. The case of Mifumi (Uganda) v. Attorney General and Kenneth Kakuru centered on the question of the so-called “bride price,” which the petitioners argued was—aside from being a discriminatory practice—also the cause of domestic violence. They sought a declaration that the practice— especially that of its return upon divorce—violated the provisions of Article 33 (Dennison 2014, 4–12). The case was lost by a four to one majority, with only Justice Amos Twinomujuni willing to find that the practice was a violation of the Constitution. Although the decisions of the four majority judges were largely 142

Id., at 276.

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in tandem, each one gave a different rationale. There were also different views on the manner in which Customary Law should be proved, i.e., the Kimani (traditionalist/conservative) approach versus a more liberal view. Justice Steven Kavuma took most exception to the manner in which Customary Law was treated in Ugandan courts, supporting Justice Crabbe’s dissent in Kimani and citing Justice Hamilton’s infamous quote about African customary wives in the Amkeyo case. Tracking the historical evolution of Customary Law’s treatment in court from colonial times up through the introduction of reforms in Kenya and Tanzania, Kavuma called for a new approach in Uganda. Taking a cue from the South African case of Bhe,143 he called for Customary Law to be “accommodated” and not merely “tolerated.”144 The right to freedom of religion is something of a cross-over, bearing aspects of both cultural and civic rights. This is especially true when religious expression is asserted within a minority group. Issues such as dress, language, and social practice straddle the line between religion and culture. Courts in East Africa have been called upon to examine whether the imposition of certain uniform standards of conduct is acceptable. As we saw with the Ugandan case of Sharon Dimanche, which concerned alleged violation of the rights of Seventh Day Adventist students, courts have generally been rigid. In the case of Republic v. Head Teacher, BOG Kenya High School, ex-parte SMY,145 the respondent’s right to wear a hijab at Kenya High School was rejected.146 The court argued that standardized dress codes were necessary in controlled environments, and that allowing the wearing of the hijab amounted to preferential treatment that could “invite disorder” among the other students. The court went on to argue that, in a secular state, allowing the wearing of the hijab would “be tantamount to elevating the applicants and their religion to a different category from the other students.”147 Quite clearly, the learned judge in the Hijab case failed to consider the Constitutional provisions on the balanced application

143 This is the South African case of Nonkululeko Letta Bhe & 4 others v. The Magistrate, Khayelitsha & Four Others, Case CCT 49/03. 144 Id., judgment of Justice Langa, para. 41. 145 Judicial Review 318 of 2010 [2012] eKLR. 146 The court observed that “the limitation imposed by the respondents in this case was justifiable in an open and democratic society like Kenya’s, whose face and diversity was represented by students at the Kenya High School. It was therefore lawful and did not amount to an infringement of the applicant’s constitutional rights.” 147 Id.

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of limitations to rights (Article 24). Had she done so, her decision would have been more nuanced (Ghai 2013, 145–162). An example of a better approach may be found in the case of Seventh Day Adventist Church (East Africa) Limited v. Minister for Education & 3 others.148 Although the court followed the same reasoning as the Ugandan Bench had done in Dimanche, the ruling marked a significant departure from that of the Ugandan court. Justice Lenaola argued that there was need for balance and observed that it was not clear whether the rules on the Sabbath had been applied uniformly in all public schools. In order to standardize what could have been different approaches to the same issue, the court ordered the Minister of Education to design regulations concerning respect for religious liberty, including enforcement and mechanisms for filing complaints. The decision was important because it proceeded from a standpoint other than the dominant view that prevailed in the Hijab case. First, the decision recognized the diverse nature of communities in the public sphere and the obvious differences that would proliferate among them. Secondly, it sought to balance that diversity with the need for a certain level of uniformity. Finally, it sought to protect minorities, whether religious or cultural, offering them equality of treatment and inclusion in the making of decisions that might affect them. In other words, it placed emphasis on the right of participation. As Justice Ojwang made clear in the case of Muslims for Human Rights v. Registrar of Societies,149 equality and nondiscrimination should be the starting point for any decision. The preceding analysis demonstrates that court action is not always a panacea for abuse of cultural rights. As Johanna Bond points out, although litigation plays a crucial role in the right to participate in formulation of cultural policies, the mechanism must be used with due care and diligent regard for sensitivities. “If discourse fails or leads to illiberal outcomes, advocates may use litigation as a backstop. In other words, they may— indeed, should—explore litigious avenues as an alternative, complementary way to promote women’s equality rights” (Bond 2010, 573). Despite this caution, the courts have increasingly become a point of recourse for individuals and groups who believe their rights have been shortchanged. In such a context, we need to ensure that the courts are better equipped to address and resolve concerns in innovative and enduring ways. With the possible exception of cultural rights—especially those mediated through the framework of Customary Law—it is still early days for East African courts dealing with ESCRs. 148 149

Petition No.431 of 2012. Petition 1 of 2011.

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Achieving more effective enforcement of cultural rights will require that certain frameworks be put into place. Normative principles to guide implementation will allow not only for a more sober and objective assessment of those claims that do end up in court, but also for the ability to predict more reliably the direction courts might take on the various issues (Kabange 2014, 25). The process must be guided throughout by regard for “both the plight of the particular people [involved in a case] and the structural causes of the broader social problem that the case [exemplifies]” (Brand in Vilhena et al, 431). There is no guarantee that the intervention of a court in determining a right will always be positive. As Karl Klare and Lucy Williams point out, court performance falls on a spectrum from slavish rubber-stamping to unbounded activism that ignores the legislature. Between the polar extremes, judicial activism is sometimes more, sometimes less appropriate. A court’s appropriate role in a particular case depends on numerous factors and considerations. In some situations the relevant considerations may point with reasonable clarity to a result or trumping principle…. But more nuanced decision-making is required whenever the balance is less one-sided, as is frequently the case (Klare and Williams 2015, 19).

The truth of this statement has been demonstrated with vivid clarity in the preceding analysis. If courts have been unpredictable in their approach to civil and political rights, why should we expect a fundamental difference when they take on economic, social, and cultural rights? In many ways, therefore, the struggle over the realization of this category of rights in East Africa has just begun.

CHAPTER SIX AT THE PINNACLE OF POLITICS: DECIDING A PRESIDENTIAL ELECTION

When former Vice President Al Gore challenged incumbent George W. Bush to the presidency of the United States of America in the 2000 election, pundits were sure of a close race. Few predicted that the matter would be so close as to end up in the courts of law, as indeed, most previous American presidential elections had been settled without recourse to the Judiciary. However, Bush v. Gore1 turned out to be that one exception to the general rule. More important than the challenge itself was its resolution, or rather the failure on the part of the U.S. Supreme Court to deliver a satisfactory, uncontested, and respectable conclusion to the debacle. The bitter taste left in the mouths of many Americans was captured most aptly in the title to Alan Dershowitz’ book Supreme Injustice, in which he described the thirty-six days of the election saga as among the most “confusing, exhilarating, nerve-wracking, educational, divisive, uplifting, and depressing” in the recent history of the U.S. The election “was a wild ride for the candidates, their supporters, and a fascinated world,” as Americans were exposed to “a high-stakes civics lesson on a subject about which most Americans had strong feelings but little prior knowledge” (Dershowitz 2001, 20). The angst of the American public in 2000 is one experienced by voters in many other countries in a wide variety of electoral contests, but most acutely in the balloting for the presidency. In certain respects this is an expected reaction. Elections everywhere are a high-stakes business, and the emotions generated by the process are of such a nature that disappointment will be as endemic as celebrations and joy. The only benefit is that the process is periodic; most elections take place only once in four or five (or at most, seven) years, so there is an opportunity for a reversion to “normal” and some considerable time for rest, recovery, and (hopefully) reconciliation. Of course, this does not mean that the happiest people are 1

531 U.S. 98 (2000).

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those living in countries where elections are few and far between, or indeed, where there are no elections at all. The reasons for what can be described as post-election “trauma” (PET) are numerous. Some elections are so poorly arranged and executed that the outcome is determined before the day of the ballot. In others, the process is pro forma, producing such fantastical results that it is clear the results were concocted before the polling actually began. yet others are so inconclusive that the outcome is contested for decades afterward, entering the folklore of the national psyche as a tale of bygone lessons in the vicious game of politics. For all the travails of the balloting process and its results, in postmortem analyses pre-election conditions— the proverbial “playing field” and its levelness or lack thereof—are the focus of much attention and the cause of much distress. Hence, most consideration is given to the structures and processes in place before the actual day of balloting. Laws governing the process as a whole, as well as the composition and powers of the election management board (EMB), are often considered. Additionally, measures taken to ensure free campaigning, the transparent oversight of finances and spending, and guarantees for effective operation of the media must be weighed (Shumba 2002 and Kühne 2010). For example, the Kenyan government’s decision in 1997 to include the opposition in selecting officials for the Electoral Commission of Kenya (ECK) was considered a major coup (Abuya 2010, 128). Up to that point, the process had been monopolized by the ruling party. Other analysts look at the structural conditions, namely the ethnic, social, and demographic makeup of a particular society, and examine how voting patterns either mirror or mark a departure from these. Political cultures—the extent to which decision-making processes within the context of government are inclusive or otherwise—are another element at play. Until recently, post-election conditions were not given much scholarly attention (Gloppen et al. 2004). That was quite understandable. After election results were announced, there were few options left on the table, and of those, many would be regarded as extra-legal. Engagement with the election usually ended there; election observers, academics, and intellectuals put away their books and did their post-mortems and waited for the next election to roll around. Unless of course there was violence. However, as Bush v. Gore demonstrated, the role of the courts as crucial actors in the post-election context is now important and growing, especially with respect to presidential elections. The increasing number of presidential elections that have ended up in courts of law is indicative; recent cases involving African elections include those of Cote d’Ivoire,

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Ghana, Zambia, Nigeria, Zimbabwe, and Sierra Leone, among others (Azu 2013, 3). Where before recourse was made to the “bush,” or the streets, it is more likely than not that losing candidates will today turn to the courts of law. Clearly, more attention needs to be paid not only to the manner in which courts are becoming involved in presidential elections, but also to the overall impact of such intervention. In the words of Akoko Akech, The most critical aspect of managing elections begins the morning after victory. It is managing the cleavages wrought by bruising electoral contests and narrow margins of victory, undoing the dirty work of creating friend or foe categories across various ethnic groups—building bridges across ethno-political divides. It is the management of the potential seeds of discord within the victor’s camp, lest it flower in the next general election (Akech 2013, 10).

A substantial component of “managing the cleavages” now involves the creation of a competent and capable dispute-resolution mechanism in the event there is a wrangle over the election results. However, such a mechanism should not be viewed as a panacea. Rather, involvement of the courts has added a new dimension—and several layers of complexity—to the election scenario, implying that it isn’t over until it’s over. The ascendancy of the courts as vital actors in a post-election dispute obviously has great import for the state of the ballot. To borrow again from the playing field analogy, whereas in the past it was the referees— such as the EMB and other poll supervisors—who were crucial to the conduct of the game, today one also has to consider who is watching over those actors. The word of the referee is no longer final. It is the classic case of the Latin Quis custodiet ipsos custodes—who is watching over the watchmen/women? All things considered, courts have become part of the apparatus of post-election therapy, making space for a “letting off [of] steam” and allowing the trauma to subside (Gloppen et al. 2008, 86). This chapter focuses on the aftermath of elections as opposed to the run-up to or events on the day of the balloting. We will look at only one institution—the court of law as it sits in judgment over the presidential election petition and the intricacies of its decision. Here we are less concerned with the “freeness” or “fairness” of the process, looking rather at how disputes over elections have been handled. Different considerations therefore come into play. East Africa has had its fair share of disputatious balloting. But it has had only a handful of judicial contests involving substantive issues in presidential elections—thrice in the case of Uganda (2001, 2006 and 2016), and once in the case of Kenya (2013). Tanzania’s presidential election has

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never been disputed in a court of law, in large part because under the single-party arrangement there was never more than one candidate for the office, and secondly because (in a hangover from the single-party era) the law still does not allow for such dispute resolution. The first time a presidential election was seriously challenged via the courts in any East African country was nearly forty years after independence. And yet, we know very well that the elections held before then were not free of controversy. What factors are responsible for the exclusion of the Judiciary? Was the problem with those involved in the contest, or with those who would oversee its resolution? Or was the problem that courts were not even perceived as a possible part of the solution? Before examining the proceedings and decisions of the courts in each instance, this chapter first considers the relationship between elections and the public interest, arguing that today judicial oversight of a presidential election has become a matter of such crucial public interest that the proper role of the courts must be re-examined. Then, with the conceptual framework established, the chapter moves on to consider attempts in East Africa to challenge presidential election results as well as the form these challenges have taken in each country. The chapter ends with an examination of three cases in which presidential elections have been substantively challenged in East African courts.

Elections and the Public Interest There can be little doubt that elections are a matter of great public interest, and indeed litigation over them qualifies for a special category of adjudication, even though election petitions may not immediately come to mind when considering public interest litigation in the manner we have discussed it thus far. The petition in an election is, on the face of it, first and foremost about the losing party; the interest involved is primarily personal. The petitioner is seeking a judicial resolution of a contest that he or she has lost. Hence, the challenge is not to a constitutional provision, testing its viability and application vis á vis the Bill of Rights or other constitutional provision. Furthermore, the violation that may have been done is not personal in the sense of, say, being subjected to torture or denied the right to speak or to associate with others. At best, the issue could be a massive assault on one’s ego, or at worst a denial of the right to political office. And there is no Bill of Rights in the world that asserts a fundamental right to political (or any other kind) of public office. However, a presidential election is much larger than the individual petitioner. It is about a crucial civic right, the right to vote, and the right to be

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voted for, which is markedly distinct from the claim that one has the right to an office. That view was confirmed by the Supreme Court of Kenya in deciding the challenge brought by Raila Odinga against president-elect Uhuru Kenyatta in 2013 (Judgment in Raila Odinga v. Uhuru Kenyatta).2 Noting that the nature of the matters decided in such a petition were unique, the Court stated, “although the petition is filed by individuals who claimed to move the Court in their own right, the constitutional issues are of a public nature—since such an election is of the greatest importance to the entire nation.”3 Just how important is the bundle of rights involved in a presidential election? In days gone by, the right to vote was central to the struggle for self-determination. The political economy of colonial domination was built on denying the people a voice in their own government. Thus, while colonialism was about the violation of land rights, displacement of indigenous cultures, and enforcement of a whole host of inequalities, this denial of voice was among the most visible, direct, and painful of such violations. The gradual mode of recognizing the franchise—dictated first by race, then ethnicity, then possession of property, and finally gender—also demonstrated the importance of these rights to the colonizers; it was a privilege to choose your leaders, and this right was not granted without the attachment of conditions. Of course pre-colonial Africa did not practice the forms of democracy—such as periodic elections for a choice of political party—common in much of the world today. Nevertheless, whether the government in place was a monarchy, chieftaincy, shaman, or gerontocracy, the mechanisms for choosing leaders were basically autochthonous or home-grown; that is, pre-colonial Africans exercised the right to self-determination. Colonialism did not take away the right to vote; it simply refused to confer it. Voting was a highly contested privilege to be conferred at the exclusive discretion of the colonial power and its domestic agents. Instead of the ballot, Africans were rewarded with the dompas or the kipande, that notorious identity card tied to the system of compulsory taxation (Stoll 2011 and Elkins 2005). Such denial of the right to self-determination was an assault on basic human dignity. Unfortunately, the post-colonial governments did little better in terms of delivering a comprehensive and enduring right to vote. The East African independence constitutions made no mention of the right, leaving the matter entirely to ordinary legislation (Abuya 2009, 129). The record for enforcing the right to vote was poor, especially as the descent into single2 3

Petition No. 5 of 2013. Id., para. 309.

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party governance became the order of the day. Both Kenya and Tanzania soon turned into single-party states, while in Uganda, the right to vote was suspended for nearly twenty years as the military took over politics and civilian dictatorship gave way to fascist autocracy (Mamdani 1983). When voting was finally restored, it was only a hollow shadow of what an electoral franchise was meant to be. The historical struggles around the right to vote in East Africa thus underscore its significance as a right that merits particular attention. Coming out of these struggles, all three East African countries now accord the right to vote a high degree of constitutional recognition, with whole chapters of their constitutions devoted to its articulation.4 Beyond the rights of an electoral candidate and his or her supporters, other matters project a presidential election well beyond purely individual interest. First and foremost is the matter of election-related violence. When an electoral process has been rigged, the likelihood of post-election violence increases dramatically, as was demonstrated in 1980 Uganda and more recently in Zanzibar, Cote d’Ivoire and Kenya. Samuel Atuobi offers the following explanation of post-election violence: Election violence can be explained by two perspectives—cultural and structural. The cultural perspective presupposes the existence of “a political culture of thuggery that generally predisposes actors to engage in violence and intimidation during political contests,” while the structural explanation suggests that “society and politics are organized in a manner that generates conflict.” These two perspectives are reinforced by ethnic rivalries and mobilisation in politics in most African countries that have been volatile during elections (Atuobi 2008).

But the explanation above is only partially correct. Election violence is not necessarily a pathology; it is linked to the drive to ensure that political dominance is maintained and perpetuated. That is, violence may erupt when the political dominance of the ruling party is disrupted. In this respect such violence is an extension of the economic, social, and political structures that have been put into place. That is why many African countries have removed presidential term limits from their constitutions; lacking the mechanisms to guarantee that peaceful change will not result in disenfranchisement of a group of people, these countries have instead opted for no change. Under conditions of extended incumbency, while there is no absolute guarantee of retaining office, the probability of securing the 4

See for example, Chapter Five (Representation of the People) of the 1995 Constitution of Uganda and the similarly entitled Chapter Seven of the 2010 Constitution of Kenya.

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vote repeatedly remains high. But such short-term gains are offset by the proportionate increase in the potential for conflict. The kind of electoral system in existence will also have an impact on the violence that may ensue: The choice of a particular system has a profound effect on the future of politics in the country concerned. About twenty-eight African countries use the plurality/majority system, fifteen countries use the proportional representation system, and five countries employ a mixed system. The electoral system used should ensure a stable and accountable political system for the particular country. However, the plurality/majority (winnertakes-all) system, with its adversarial nature, usually engenders divisions and provides incentives for competitors to cheat. This does not, however, suggest that parties do not try to cheat under other systems, but, since opponents can lose completely, the desire to cheat with the plurality system is higher (Atuobi 2008, 13).

Beyond the question of violence, presidential elections are important because they send out a message about the political maturity and security of the society in which they take place. Since all other economic, social, and cultural activities impinge on the stability of a society, the extent to which it is able to peacefully resolve governance issues is a marker of its ability to effectively engage on other fronts. Linked to this is the question of political succession and renewal of the body politick. Even if the leadership remains the same throughout the process, the exercise itself is expressive of some degree of democratic accountability. Finally, presidential elections in many countries around the world are closely linked to wider geo-political interests, which operate in diverse ways in the era of globalization. Questions around investment, resource extraction, strategic and security interests, and regional positioning are all critical elements in deciding who ascends to and holds the highest office in the land. Such questions are especially crucial in contexts where institutional entrenchment is weak. Messages—both subtle and direct—come from major external powers concerning their preferences in a particular election exercise. These external players are never “neutral” onlookers; they too have a stake in the exercise. This explains why the business of election observation—however hollow and farcical it may be in substance5—has boomed over the years (Abuya 2009, 129). As Judith Kelley 5

In the 2001 Ugandan Presidential election petition, Justice Arthur Oder made the following observation about election observers’ reports: “They can hardly be taken seriously, in my view, because the teams were here for only a few days and their reports concern only a few polling stations in limited areas of the country. Conse-

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observes, the assessments of election observers invariably reflect the interests of their member states or donors as well as other tangential organizational norms (Kelly 2009). Aside from representing the usual paternalism intrinsic to ex-colonial and current imperial authorities, interests of a diverse nature are vested in ensuring that an election can be considered to have passed muster; in this day and age, even elections require international certification.

Post-Independence Scenarios It seems rather preposterous, but Uganda had more elections in the two years before independence than it did in the twenty years that followed. The first election on universal franchise was the poll held for selfgovernment, the precursor to the grant of full independence. Held in April, 1961, the election was boycotted by the Buganda kingdom because, by virtue of a colonial agreement, Buganda enjoyed a different status from the rest of the Uganda protectorate and was thus unhappy with the negotiations for independence. The departing colonial master was advised to take Buganda’s interests into account in order to conclude successful negotiations. That demand eventually mutated into the quest for a federal system of government, which would guarantee the autonomy and free operation of the kingdom. In the meantime, the boycott meant that Buganda was effectively excluded from the first election, with only 3 percent of the electorate within the territory voting. Consequently, the Democratic Party (DP), led by Benedicto Kiwanuka (who was a Muganda but refused to be party to the election embargo), won the poll, taking twenty of the twenty-one parliamentary seats that were available. Kiwanuka thus assumed the office of Chief Minister of Uganda, becoming the first indigenous ruler of the country. Waiting on the sidelines, the other party in the self-government election was the Uganda People’s Congress (UPC), led by Apolo Milton Obote. Realizing during the negotiations for independence at Lancaster House that the only route to effective power was via Buganda, the UPC acceded to the demands for an indirect franchise for the kingdom, with the Lukiko (Buganda’s parliament) acting as an electoral college. Buganda thus won quently, what they reported about, do[es] not reflect what happened in the entire country. Kampala and Jinja [are] not Uganda. By nature of their short visit that was to be expected.” Judgment of Oder, JSC, at 363–363, (Rtd) Colonel Dr. Kizza Besigye v. Lt. Gen. Kaguta Museveni and Another, Election Petition No.1 of 2001 (Unreported).

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the right to first select its own nominees and then transmit them on to the national assembly. In the election that followed, the Kabaka Yekka (KY)6 won sixty-five of the sixty-eight seats in the Lukiko and thus nominated all twenty-one of the members of parliament from Buganda. The Democratic Party suffered from having defied the kingdom’s call for a boycott. Against this backdrop, the results of the April, 1962 election, which determined who would lead the country to independence, were as follows (Table 6.1 below). Political Party Uganda People’s Congress Kabaka Yekka Democratic Party Uganda National Congress Bataka Party Uganda National Union Independents TOTAL

Leader Apolo Milton Obote (Sir Edward Mutesa) Benedicto Kagimu Kiwanuka Jolly Joe Kiwanuka

No. of Seats 37

Votes 545,324

21 24

Indirect 484,933

0 0 0 0 82

Table 6.1. Election Results For Uganda’s 1962 Election Source: African Elections Database, http://africanelections.tripod.com/ug.html

By agreeing that elections in Buganda would be indirect, the KY and UPC effectively shut out the DP. Whoever took Buganda took the country. Hence, the combined total of parliamentary seats for the UPC/KY coalition guaranteed that Obote would lead Uganda to independence. Ironically, because of the design of the election and because of coming from Buganda, Kiwanuka didn’t even win a seat in the House. He was thus forced to cede the leadership of the opposition to his deputy, adding to the pain 6

Kabaka Yekka (The King Only!) never became a formal political party and was essentially a movement devoted to two broad goals, as articulated in its program: 1) “to see that political changes do not destroy the good customs and traditions, do not destroy the kingdom, the clans and our way of life, all of which are valuable for our society,” and 2) the party will not allow anybody to be above the Kabaka” (Hancock 1970, 419). Mutesa was thus never KY’s leader, but certainly was its inspiration.

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and trauma of losing the chief ministry. Because of the 1966 Constitution crisis, elections scheduled for 1967 were postponed and promised for 1972. By that time, Idi Amin had installed a military government, postponing elections indefinitely (Kabwegyere 1987). Elections were not held in Uganda again until the end of 1980. In contrast, both Tanzania and Kenya have held regular elections since independence, although the extent to which they have effected the right to vote is questionable (Martin 1984). Since Tanzania’s single-party state came early in the day,7 Nyerere was sole candidate for TANU (later CCM) until he left office in 1985, a period of twenty-three years. To the extent that there were any internal challenges to his rule, these did not prove so detrimental as to spill out of the party to threaten the overall stability of the regime. To an extent, this was due to the manner in which elections were organized inside the party. As Berg-Scholosser and Siegler noted, “within the framework of the one-party system, only yes or no votes are allowed; if less than half the voters give the candidate their support, he is considered to have been rejected” (Berg-Scholosser and Siegler 1990, 83-84). This was never a problem for Nyerere, who consistently garnered between 93 and 98 percent of all votes cast. Following Nyerere’s retirement, the elections assumed a slightly more competitive edge but remained stable thanks to Nyerere’s domineering presence in the party. His anointed successor, Ali Hassan Mwinyi (1985 to 1995), was unchallenged. Together, Nyerere and Mwinyi eventually oversaw the transition from a single party to a multi-party system, the process dubbed Mageuzi. This paved the way for the first contested election in 1995, with CCM facing a number of challengers from newly-formed political parties, although none initially posed a serious threat. Since then, elections have been held in 2000, 2005, 2010, and 2015, each convincingly won by the CCM candidate—first by Benjamin Mkapa, followed by Jakaya Mwirisho Kikwete, and then John Pombe Joseph Magufuli. CCM has maintained its electoral dominance even in the face of the recently emerged opposition parties such as Chama Cha Demokrasia na Maendeleo (CHADEMA), which have been able to garner significant levels of support, especially in urban enclaves (Babeiya 2012). Despite the challenge, CCM’s Magufuli won the closely fought October 2015 election. One complication on the question of elections in Tanzania has come from Zanzibar, especially since the return to a multi-party system. The roots of the tensions, however, date back to the British manipulation of the 7

Before independence, TANU was rivaled in Tanzania by the African National Congress (ANC), led by Zuberi Mtemvu. The ANC in Tanzania was dissolved following the elections of 1962 (Taylor 1963).

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first election to determine who would lead the country to independence (Oloka-Onyango and Nassali 2003). Following the return to a multiparty system in 1995, the first election was bitterly fought between CCM’s Salmin Amour and Seif Sharif Ahmad of the Civic United Front (CUF), with Amour garnering 50.24 percent of the vote to Ahmad’s 49.76 percent, amidst claims of serious irregularities. In 2000, major problems in the poll forced a re-run. CUF went to court to have the election nullified, but their efforts failed and the party organized a boycott (Karume 2004). In the 2005 election, tensions were still high, although CCM’s Amani Abeid Karume increased the polling for his party to 53.18 percent. In the run-up to the 2010 elections, talks between the two sides led to a power-sharing arrangement, with a referendum on July 31 followed by establishment of a Government of National Unity. In the election that followed, CCM’s Ali Mohamed Shein polled 50.11 percent to Seif’s 49.14 percent.8 The unity between the two sides significantly diffused tensions on the island (Moss & Tronvoll 2015). Matters reverted to form, however, when the October 2015 election was cancelled. Despite also being a single-party state, the history of elections in Kenya was quite different. By law, the country was a multiparty democracy from independence until 1982. At independence, KANU’s main competitor was the Kenya African Democratic Union (KADU), a group of conservatives and moderates who eschewed the more radical conurbation that came together behind Jomo Kenyatta. Multi-party elections were held in 1961 and again in 1963, but thereafter the few opposition KADU members were persuaded to cross over to the ruling party, resulting in a de facto single-party system. However, in 1966 discontent over that monopoly led to the formation of the Kenya People’s Union (KPU), led by erstwhile Vice President, Jaramogi Oginga Odinga (Barkan & Okumu 1978). KPU was established by Odinga to address growing discontent over the issues of land, corruption, and rising social inequality. The party faced considerable harassment and intimidation and was banned before it could gain traction; many of its leaders and supporters were eventually detained (Widner 1993, 58–60). After the death of Kenyatta in 1978 and his succession by Daniel arap Moi, the ruling party was content to leave matters in legal limbo for several years. However, following the Air Force-led attempted coup d’état in 1982, President Moi moved for a constitutional amendment that established Kenya as a de jure one-party state (Widner 1993, 143–147). The infamous Article 2A of the Constitution meant that the only party allowed to legally operate in Kenya was KANU. Consequently, for all the subse8

For the statistics on the Zanzibar election, see African Elections Database.

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quent elections until 1992, challenges to Moi’s rule inside or outside the party simply did not arise. Following the return to a multiparty system, political competition was restored to the Kenyan electoral scene. For those who had regretted the establishment of a single-party system and condemned Moi’s part in it, the transition to a multiparty system was no easy feat, nor did it bring about the transformation that had been hoped for. Although opposition parties were able to secure space in which to campaign and organize, Moi acted as if he were still operating a single-party system in everything but name. Moi’s first real challenge came in the general election at the end of 1992. Although the results of the process were a foregone conclusion, for the first time in the history of the country the ballot featured the post of president, previously elected by the National Assembly. In a face-off with five other candidates—Kenneth Matiba, Mwai Kibaki, Jaramogi Oginga Odinga, George Anyona, David Mukaru Ng’ang’a, and John Harun Mwau—Moi won 36.4 percent of the vote. Given the first-past-the-post system that was in place at the time, Moi was re-elected president, a fact which was lamented because of the failure to forge a united opposition against him. Not surprisingly, the poll was marred by targeted ethnic violence, especially in the Rift Valley, along with allegations of ballot-box stuffing and numerous other electoral malpractices. The 1992 election witnessed several attempts to challenge the status quo in court, and especially to overturn the result of the vote for Moi. Many of the issues taken up in court challenged the structure of rules governing the electoral process, with lawyers arguing that the rules were not reflective of a multiparty dispensation. In the case of Odinga v. Chesoni,9 Oginga Odinga, then leader of the opposition Ford-Kenya, brought a motion complaining that the Chairperson of the Electoral Commission was unfit to serve and requesting that the court stop the registration of voters on the grounds of irregularities committed by the Electoral Commission. The issue of locus standi arose, questioning the applicant’s right to institute the proceedings. Although the Court upheld the applicant’s right to bring the motion, the case did not succeed on the substantive front. Yet another case brought in the run-up to the election was Odinga v. the Electoral Commission.10 The case involved a challenge to actions of the Attorney General, who had issued a Legal Notice on October 23, 1992 purporting to rectify Section 13(3)(b)(1) of the National Assembly and Presidential Act. His amendment changed the word “less” to “more” in the 9

Civil Application No. 602 of 1992 (November 13), before judges Abdullah, Githinji, and Mwera. 10 Civil Case No. 5936 of 1992.

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following passage: “The day or days upon which each political party shall nominate candidates to contest parliamentary elections in accordance with its Constitution or rules which shall not be less than twenty-one days after the date of publication of such notice.” The Petitioner challenged the AG’s action. The Court found the Attorney General’s amendment null and void and furthermore nullified the Electoral Commission’s notice pursuant to the amendment, which had allowed the political parties only eight days to nominate their candidates. The Odinga cases were filed before the election, which may explain why they were decided in the petitioner’s favor. However, it is more likely that the cases succeeded because the issues brought forward were largely peripheral to the crucial aspects of the voting. But the majority of cases decided following the election that year were a litany of desperation, met by a consistent response of frustration from the courts that heard the matters. In other words, while the courts received and were willing to hear all manner of petitions challenging President Moi’s controversial reelection, the substance of the matter—the critical question of whether the election was “free and fair”—was never actually adjudicated. Instead, all the cases of the period covered purely technical issues; Moi’s lawyers were experts in tying up petitions with procedural objections. Thus, the case of Matiba v. Moi (No.1)11 discussed only the question of the High Court’s jurisdiction with respect to election matters. Matiba v. Moi & 2 Others (No.2)12 challenged an application for leave to appeal. In a third case, President Moi challenged the signature on an affidavit and election petition, which had been signed by Matiba’s wife since the candidate himself was indisposed.13 The decision in Moi’s favour effectively terminated Matiba’s hopes of making any headway with the petitions against [Moi]. Akweywa v. Moi and 8 others14 was on the striking out of a party to the petition, while Nyamai and another v. Moi and others15 examined the issue of serving the petition. Orengo v. Moi and 12 Others (No.1)16 considered whether the court should hear a petition during vacation. The case of Imanyara v. Moi and 12 Others17 discussed service of the election petition, which because the president had refused personal service, was published in the official gazette. Perhaps the one bright light in all these peti11

Civil Application No. NAI 241 of 1993; (NAI 103/93) (2008) 1 KLR (EP) 525. Civil Appeal No. 179 of 1993; (2008) 1 KLR (EP) 670. 13 See Moi v. Matiba & 2 Others, Civ. App. No.176 of 199; (2008) 1 KLR EP 622. 14 Election Petition No. 1 of 1994; (2008) 1 KLR (EP) 736. 15 Election Petition No. 70 of 1993; (2008) 1 KLR (EP) 468. 16 Election Petition No. 8 of 1993; (2008) 1 KLR (EP) 597 17 Election Petition No. 4 of 1993; (2008) 1 KLR (EP) 472. 12

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tions came from the statement of the court in this case when it validated the filing of the petition even though it had been published late in the gazette: Equity looks on that as done which ought to be done and will not suffer a wrong to be without remedy. Let it not be said in this instance that we had the opportunity to remedy a wrong and did not take it or that, confronted with injustice, we turned our backs on it and took cover under subsidiary legislation.18

Nevertheless, the petition never received a substantial hearing. The one petition that got a fairly serious review was Orengo v. Moi and 12 Others (No.3),19 which asserted that the election violated Section 9(2) of the Constitution limiting the president to no more than two terms of five years each. It was contended that Moi had already served three terms: 1979 to 1983; 1983 to 1988, and 1988 to 1993. The court held that there was basically one issue to decide, i.e. whether the constitutional provision was prospective or retrospective. The court’s decision read as follows: The global effect is one attaching to future election to the office of the president. It is no matter that the first respondent had held tenure in the office of the president on more than two occasions in the past. It is also no matter that by this our interpretation of the law the consequences are that if the first respondent offers himself successfully for election after his first term of five years expires he will as one person be in that office for more than twenty years. If the law had intended to cut down this then it should have stated so in plain words. It did not do so and we cannot be persuaded that section 9(2) ought to be construed to mean that indeed it is what Parliament…intended.20

Some of the petitions even assumed a somewhat comic character, reflecting the desperation that was at play in the country. For example in Moi v. Mwau,21 the Court of Appeal considered whether the failure to use standard sheets of foolscap paper rendered the nomination invalid. The court made much of the petitioner’s keen eye for detail, resilience, and tenacity, although it still dismissed the petition on the grounds that the law did not specify such levels of exactitude. All in all, the opposition expended a great deal of legal capital challenging the election, but with little im-

18

Id., at 482. (2008) 1KLR (EP) 715. 20 Id., at 726–727. 21 Civil Application No. NAI 131 of 1994; (2008) 2KLR (EP) 90. 19

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pact on either challenging Moi’s election or developing substantive jurisprudence on presidential elections in general. The 1997 election brought little change, in spite of challenges from Mwai Kibaki, Wamalwa Kijana, and the fresh Raila Odinga in a field of fourteen candidates. Indeed, splitting the opposition vote among multiple candidates allowed Moi to sneak through the cracks in what would have been a formidable team to beat. Had the three candidates who followed Kibaki in the tally joined forces to challenge Moi, their combined polling would have been unassailable. Indeed, as demonstrated in the table below, Moi would have lost even if Raila alone had thrown in his lot with Kibaki.

1.

Candidate Daniel arap Moi

2. 3.

Mwai Emilio Kibaki Raila Amolo Odinga

4. 5. 6. 7.

Kijana Wamalwa Charity Ngilu Martin Shikuku Katama Mkangi

8.

George Anyona

9. Kimani wa Nyoike 10. Koigi wa Wamwere 11. Munyua Waiyaki 12. Godfrey M”Mwereria 13. Stephen Oludhe 14. David Waweru Ng’ethe TOTAL

Party Kenya African National Union (KANU) Democratic Party (DP) National Development Party (NDP) Ford-Kenya Social Democratic Party Ford-Asili Kenya National Congress Kenya Social Congress Ford-People Kenya National Democratic Alliance United Patriotic Party of Kenya Green African Party

Votes 2,500,856

Percentage 40.60

1,911,742 667,886

31.00 10.80

505,704 488,600 36,302 23,484

8.20 7.90 0.60 0.39

16,294

0.27

8,564 7,463

0.14 0.12

6,103

0.10

4,555

0.07

Independent Economic Party Umma Patriotic Party of Kenya

3,653

0.06

3,526

0.06

6,096,479

100.00

Table 6.2. Kenya’s 1997 Election Source: African Elections Database, accessed at: http://africanelections.tripod.com/ke.html.

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In challenging Moi’s election, Kibaki raised a number of issues regarding freeness and fairness. True to form, the cases of Kibaki v. Moi22 and Kibaki v. Moi & 2 Ors.23 were decided on technicalities related to the National Assembly and Presidential Elections Act,24 which inter alia governed the service of election petitions. Prior to the 1997 elections, the Act had been amended by Act No.10 of 1997 to provide that a petition questioning the validity of an election had to be filed and served within twenty-eight days of the election results’ publication in the Gazette. Moi’s defence—to which the court agreed—was that he had not been personally served with the petition as required by law. In fact, it was impossible for the process-servers to get past the gates of the State House as President Moi, of course, had no incentive to let them in. As a result, the petition was struck down. On appeal, the higher court affirmed the decision of the lower court, ruling that because the provision in question (s.20 (1)(a) had not prescribed any specific mode of service, the courts must go for the best form, which was personal. In the words of the court, “since the legislature has decreed…that service of election petitions must be personal…the court must enforce the law until the legislature should itself be minded to change it.”25 This was obviously a black-letter reading of the law that defeated the true interests of justice involved in the case. Like water from a duck’s back, Moi was able to brush off the petition against him; once again, President Moi lived to see another day in office (Throup and Hornsby 1998). President Moi thus served his last five-year term, bringing his total to twenty-four years in power, just slightly pipping the tenure of Mwalimu Nyerere as the longest-serving president in the region. To the surprise of many, Moi did not try to extend his tenure, instead backing a young Uhuru Kenyatta to take up the KANU mantle in the 2002 elections. But the die was already cast; Kenyatta was dubbed the Moi “project” and blamed for all the ills KANU had inflicted on the country since independence. Moreover, the lessons of 1992 and 1997 had left their mark on the opponents to KANU’s rule (Oyugi, Wanyande, and Odhiambo-Mbai 2003). KANU lost the 2002 election to a coalition of several parties under the National Rainbow Coalition (NARC) umbrella, led by Kibaki and famously endorsed by

22

Civil App. No. 173 of 1999 (2008) 2 KLR 308. 24 Cap.7, Laws of Kenya. 25 Kibaki v. Moi (No.3), (2008) 2 KLR 351 at 377–378. 23

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Raila with the two words, “Kibaki Tosha!”26 Kibaki won 62.2 percent of the vote in comparison to Kenyatta’s 31.32 percent. Kenyatta graciously accepted defeat, and there was no court challenge to an election that was billed one of the most free, fair, and wholesome in Kenya’s postindependence history. This was in sharp contrast to the poll that took place five years later, in 2007, an exercise that requires a more extensive examination.

Kenya’s 2007 Franchise and Aftermath The euphoria that greeted the rise of the NARC government—the very first opposition party to gain power via an electoral process in the region— in 2002 was soon dashed by the wrangling that afflicted the coalition. Corruption on a grand scale—believed to have been the Moi government’s exclusive monopoly—resurfaced to split the coalition down the middle. A referendum in 2005 over a hotly-disputed draft constitution marked the beginning of the end of the coalition, with President Kibaki sacking his whole Cabinet and replacing it with diehard supporters, upsetting the delicate balance of post-KANU allies. By the time the 2007 election came around, the mood in the air appeared to be one for even more change. The manner in which the 2007 election progressed and concluded has been the subject of extensive documentation and analysis, both scholarly and popular (Opondo 2014; Adeagbo and Iyi 2011), and thus does not require much rendition here. It is generally agreed that both the run-up to the election and the actual balloting proceeded in relative calm. The explosion came when there was first some delay in the announcement and transmission of the results, followed by extremely suspicious behaviour on the part of the Electoral Commission. Matters became all the more tense when results for parliamentary seats showed that Odinga’s Orange Democratic Movement (ODM) was well ahead of Kibaki’s Party of National Union (PNU), but the reverse appeared to be true of the presidential polling. Finally, there was a blackout on media computing and on the presence of campaign agents in the central tallying centre—followed by mayhem. When the lights were turned back on, Kibaki was being sworn in as a second-term president on the lawns of the State House in Nairobi. The Independent Review Commission (IREC), chaired by South African judge Johann Kriegler and tasked with examining the violence that followed the 26

The phrase can be loosely translated from the Swahili as “Kibaki enough!” or “Kibaki alone!” meaning that Kibaki would be supported as the undisputed candidate of a united opposition.

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election, described the sundown ceremony as being clouded by the perception of “unseemly haste” (Independent Review Commission 2008, 149). Despite the intensity of the events that followed that fateful December day, it is quite clear that structural problems were the main cause of the breakdown. As identified by IREC, the problems “were not the finalisation of the vote count or the way results were presented, [rather] they related to the ethnic composition of the country, the political culture, and the mismanagement of elections by the electoral commission.”27 But what role did the courts play in all this? Perhaps the best place to start is with the conduct of then Chief Justice Evans Gicheru in the immediate aftermath of the disputed election. Abuya states: Within an hour of the Election Management Board’s announcement that Kibaki had won the 2007 presidential election, Gicheru hurriedly swore him in at the Nairobi State House. Gicheru’s presence at the ceremony shattered…trust in the Kenyan Judiciary…. His conduct contradicted his 2007 call that judges should take their constitutional mandate seriously…. In light of the conditions surrounding the swearing in of Kibaki, it was doubtful that the Judiciary would be impartial and independent in deciding any petition that challenged his election (Abuya 2009, 155).

The Kriegler report of the Independent Review Commission consists of seven chapters of analysis and one of recommendations, the total covering over 160 pages plus fourteen appendices. Section 7.3 of the document covers the issue of post-election dispute settlement, i.e. the role of the courts (IREC 2008, 141–143). The report begins with the point that there was no “effective electoral dispute resolution (EDR) mechanism to resolve the mounting challenges to the integrity of the results from Kibaki strongholds” (IREC 2008, 141). The responses of ECK Chairman Kivuitu and Minister Martha Karua, directing those who disputed the results to the courts, only exacerbated matters. The problem was compounded by the fact that under existing law the electoral process could only be challenged after the results had been announced, in essence presenting the aggrieved parties with a fait accompli. Altogether, the Kriegler report makes eight observations/recommendations, covering the following issues:

27

Preventing and managing violent election-related conflicts in Africa: Exploring good practices, Conference Proceedings Report, Electoral Institute for Sustainable Development in Africa (EISA)’s Fourth Annual Symposium, Rosebank, South Africa November 17–18, 2009, at 29.

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The report also made the following additional recommendations/observations: 1. The type of court, allowing for adoption of different models; 2. The lowest-level-of-competence rule, meaning that dispute resolution should—as far as possible—take place at the lowest point of authority; 3. Adequate enforcement remedies, capable of inducing timely, appropriate, and binding responses; 4. Consequences for failed remedies, which lead to a loss of legitimacy; and 5. The role of the government: making sure that rules in place are fair and executed with utmost integrity.28

Thus, while Gicheru’s conduct was one of the main factors influencing the ODM’s decision not to seek relief in court, there was also a strong be28

The IREC itself did not escape criticism. According to the Kenyans for Peace with Truth and Justice, the report was inadequate in giving the political context to its legalistic argument: “While the commission takes note of abuse of state power and resources during the campaigns, there is only limited discussion of the role of the security agencies before, during, and after the elections. More generally, the inescapable conclusion is that while the commission may be competent to carry out electoral analysis in a technical sense, it falls short of expectations in its political analysis. The commission fails to answer the more fundamental questions about power and responsibility. IREC shies away from any discussion of these burning issues, and there is, therefore, no convincing political context for interrogating the integrity of the elections” (Kenyans for Peace with Truth and Justice 2008, 5–6).

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lief that no justice could emanate from the institution of which he was chief; in other words, the problem was structural and not simply individual. The Kriegler report adequately demonstrated that there was really no reason for ODM to have expected anything different. In sum, the courts were structurally incapable of assisting the people of Kenya with their post-election trauma. As we saw with the review of the 1992 and 1997 election petitions, the Kenyan judicial system was particularly unsuited to addressing postelection disputes. For those contestants who bothered to go to court, the legal regimes in place, the manifest bias against opposition candidates, and the duration of the hearings all acted as a barrier to securing real justice (Ndunguru & Njowoka 2008, 173). According to Sipalla, “electoral disputes took so long to be concluded that the beneficiaries of disputed elections served out their full five-year terms before judicial determination [was reached]” (Sipalla, 2014). As a matter of fact, numerous accounts of the dispute settlement process governing elections in Kenya before 2007 had pointed out that the mechanisms in place were simply not equipped to handle either the magnitude or the intensity of the complaints (Sihanya and Okello 2010). Indeed, when their capacities were critically tested by events of the Kibaki/Odinga election, the courts were clearly in no position to effectively address the challenges involved. Meanwhile, what was the situation in post-Idi Amin Uganda?

Challenging Presidential Elections in Uganda Few events in Uganda’s post-colonial history were greeted with as much emotion as the ouster of military dictator Idi Amin, in part because under him the right of most Ugandans to self-determination had been severely compromised by the lack of electoral franchise. However, Amin’s removal by the Tanzanian People’s Defence Forces (TPDF) with a coterie of Ugandan exiles did not bring the country’s governance troubles to an end, in part because of the military manner of his removal and the domineering presence of the armed forces in political life (Acheson-Brown 2001). The first president after Amin, Yusuf Kironde Lule, survived only 68 days as head of the Uganda National Liberation Front (UNLF), which set up government in exile in the Tanzanian town of Moshi. Lule’s successor, Godfrey Lukongwa Binaisa, was also removed in a coup d’état after about eleven months. Part of the problem arose from his design for holding elections. Binaisa was convinced that if he made an injudicious decision about the appropriate mode of elections, Uganda would return to the sectarian divisions that had plagued the country since

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before independence. He thus suggested that instead of a full-fledged multiparty system, with a first-past-the-post means of choosing the winner, political parties should come together under an “umbrella” emphasizing individual merit as opposed to political party affiliation. The military junta that replaced him punched holes in the umbrella project, promising to host elections on a multiparty ticket before the end of 1980. For their part, the political parties welcomed the move and immediately began to campaign for the upcoming poll.

The Dispute over Uganda’s 1980 Election and its (non)Resolution Uganda’s December 1980 poll, widely believed to have been gerrymandered, witnessed a battle among four parties: the Milton Obote-led Uganda People’s Congress (UPC); the Democratic Party (DP), now under the leadership of Paulo Kawanga Ssemogerere; a reincarnated Kabaka Yekka, renamed the Conservative Party (CP) and led by Jehoash Mayanja Nkangi—Buganda’s last Prime Minister before the abolition of kingdoms; and the Vice-President of the UNLF Military Commission, who had set up the new Uganda Patriotic Movement (UPM). His name was Yoweri Kaguta Museveni. Among the many shortcomings that marred the poll were manipulation of constituencies; intimidation of candidates and supporters; extensive use of the Army and police to garner support and frighten the opposition; the prevention of candidates from even registering for the poll; and wideranging theft, stuffing, exchange, and destruction of ballot boxes (Mbazira 2009, 9–10). A few days after Milton Obote was declared the winner by a highly-compromised Electoral Commission, Museveni took twenty-six men with him into the “bush,” signifying the start of a guerilla war. He was to return five years later, taking over the presidency and vowing to introduce “fundamental change,” particularly in relation to the methods of governance that prevailed in the country. Nobody bothered to challenge Obote’s election in court. Part of the problem was that Obote did not stand in any constituency, but became president by virtue of his leadership of the Uganda People’s Congress. In any event, as the law had made no provision for challenging a presidential election, such a petition would not have gone far. Several disenfranchised candidates went to court to challenge their own individual losses of parliamentary seats, especially those who stood as DP candidates. However, not a single case was decided against an incumbent from the ruling party, and the decisions made offer a fascinating portrayal of judicial politics in Uganda during this period. Judicial nonchalance and compromise was so

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high that in one instance, a petition filed shortly after the election had still not been decided five years later—at which point a new election would have been scheduled. Any serious use of the courts to mediate over elections had to await the ascendance to power of Museveni’s National Resistance Movement (NRM). Yoweri Kaguta Museveni faced myriad challenges when he was sworn in as Uganda’s ninth president on January 29, 1986. Among the most daunting was how to restore belief in the ballot to a people who had experienced only one previous election following independence in 1962, and had never experienced an election free of controversy. The first step, acknowledging the view that politics in Uganda was too fractious to accommodate a competitive, pluralist electoral process, was to revert to a system resembling Binaisa’s “umbrella.” Named the National Resistance Movement (NRM), that “umbrella” grew as an offshoot of the National Resistance Army (NRA), which had led the successful five-year guerilla insurgency against the Obote government. The new framework of governance assumed a constitutional form described in Legal Notice No. 1 of 1986, which amended the 1967 Constitution.29 This law stipulated that the NRM would be in power for four years as an interim arrangement before the return to a fully-fledged democratic system of government.30 The notice suspended provisions on the legislature, allowing the unelected National Resistance Council (NRC) to assume the power to make law; while the chairperson of the NRM, Museveni, doubled as chairperson of the NRC. He also happened to be the commander-in-chief (the usual ceremonial position) and the substantive head of the NRA, a position of direct command and control. Uganda, in short, was a quasi-military pseudo-democracy. Because of the legitimacy crisis faced by the UPC and on account of the weak leadership of the DP, Museveni was able to assert what he called a “gentleman’s agreement” suspending political party activity and substituting what was described as an “inclusive, broad-based” government incorporating all the political and military forces that had emerged over the period of military despotism (Moehler 2008, 47). Parties were allowed to operate national headquarters, hold meetings of their executive bodies, and organize seminars and workshops, but not to establish party branches upcountry, host delegates’ conferences, or conduct public rallies. In sum, parties were to be seen but not heard (Moehler 2008, 48). The trade-off was the promise that elections were to be held in four years, but nobody 29 30

Proclamation, Legal Notice No. 1 of 1986. Id., Section 14.

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said anything about what kind of political system would conduct those elections. The first election that took place in post-conflict Uganda was the expansion of the NRC in 1989, shortly after Legal Notice No.1 was amended to extend the tenure of the NRM by another five years. The amendment also changed the franchise to one based on place of residence rather than political party affiliation. In addition, government was decentralized such that government-appointed chiefs no longer held power. In one fell swoop, elections in Uganda had been democratized and were now being held at all levels, with an expanded franchise targeted to include women, youth, workers, and people with disabilities. Although people had to line up (mlongolongo) to vote, these first-ever relatively free elections were embraced with enthusiasm. The only office that remained out of reach was the presidency. While elections for the lower levels of government were the subject of fairly intense competition, no elections were held for the presidency. Challenges to this model of governance first surfaced in the Constituent Assembly that was elected to debate the draft constitution in 1993. The problem emerged because, for the first time, the law officially proscribed political parties, translating the gentleman’s agreement into law and stipulating that elections to the body would be on a no-party basis. Political parties were disallowed from performing the function for which they were intended, namely to compete for political power (Katorobo 1995). In response the chairperson of the UPC brought a constitutional challenge, alleging that party members’ rights had been infringed by the proscription in the law. The court replied that the arrangement was temporary and would be adjusted in the fullness of time. The fears expressed in the UPC petition were exposed in bold relief following the election. Ostensibly held under the individual merit/no-party arrangement, the election was barely over when Museveni declared, “we have won!” betraying the fact that, indeed, the Movement operated much more like a political party than it was prepared to admit. To make matters worse, the NRM now enjoyed a courtsanctioned legal monopoly of the political space. Things were beginning to look much more permanent than had initially been suggested. In effect, then, Museveni was able to avoid presidential elections for ten years as Uganda awaited the enactment of a new Constitution; thus there were no court petitions that directly challenged his presidency. Several court cases brought by the UPC nevertheless sought to challenge the existence of the movement over which he presided, attacking the referen-

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dum on political systems,31 the Political Parties and Organizations Act,32 and the nebulous “Movement” system of government.33 Attempts were also made through the Human Rights Commission to argue that the Movement system violated the freedoms of assembly and association of the Ugandan people.34 Most of the cases were unsuccessful, not only because the spirit of the 1995 Constitution opening access to the courts had not been fully internalized by the Judiciary, but also because the courts were simply not prepared to rock the Movement boat, which was on a fixed course setting sail out to sea (Oloka-Onyango 2000). Thus, in the case of Rwanyarare v. Attorney General,35 the court refused to allow the petitioner’s challenge to the Movement Act, ostensibly because he lacked the representative capacity to do so. Invoking the doctrine of locus standi, the court stated: We cannot accept the argument of Mr. Walubiri that any spirited person can represent any group of persons without their knowledge or consent. That would be undemocratic and could have far reaching consequences. For example, how would the Respondent recover costs from the unknown group called Uganda People’s Congress? What if other members of Uganda People’s Congress chose to bring a similar petition against the Respondent; would the matter have been foreclosed against them on the grounds of res judicata?

In 1996, the first post-constitution election was held under the Movement system, and though political parties were still not allowed to operate, Paul Ssemogerere of the DP left the broad-based government and stood against Museveni. He lost, and though he raised loud claims that the election had been rigged and was marred by violence, Ssemogerere chose not to challenge the matter in court. He eventually retired into private life, giving up active politics and the presidency of his party. Matters were even more tumultuous when Museveni met his next challenger, Rtd. Colonel Dr. Kizza Besigye.

31

Dr. James Rwanyarare & another v. AG, Constitutional Petition No. 5 of 1999; [2000] UGCC 2. 32 See Ssemogerere & Others v. AG, Constitutional Appeal 4 of 2002, and Dr. James Rwanyarare & others v. AG, Constitutional Petition No.7 of 2002; [2004] UGCC 5. 33 Dr. James Rwanyarare & others v. AG, Constitutional Petition No. 11 of 1997. 34 In the Matter of The Free Movement and the State, Uganda Human Rights Commission (Legal & Complaints Department) Complaint UHRC No.671/98. 35 Constitutional Petition No. 11 of 1997.

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Besigye versus Museveni: Rounds 1 and 2 It is one of Uganda’s great ironies that medical doctor Warren Kizza Besigye joined Museveni in the bushes of Luweero in 1982, enjoying a strategic and special closeness to the “Chairman.” Besigye was Museveni’s personal physician, saving his life on a number of occasions (Kalinaki 2014). Out of the bush he rose through the ranks to become a colonel and National Political Commissar of the NRA and a member of Museveni’s Cabinet. However, almost from the start of life after-the-bush, Besigye seemed to disagree with his boss. In the Constituent Assembly where he was a member representing the Army, he joined a group of liberal-minded NRA officers to argue for a less rigid position on the operation of political parties. In response, Museveni rebuked the group, invoking the military code to impose discipline and stop their pursuit of an “erroneous” line of debate (Mubangizi 2010). However, by 1999, Besigye could no longer retain fidelity to the “correct line.” He authored a paper critical of the state of the Movement (Kobusingye 2010). Museveni’s erstwhile doctor unleashed a scathing attack on the undemocratic practices of his former patient, decrying especially the lack of transparency and the departure from the ideals that took them into the bush in the first place (Rubongoya 2008). Museveni was so incensed by this “missive” against him that he wanted to order Besigye’s immediate arrest and court-martial. However elders from Besigye’s home district of Rukungiri intervened, pleading for clemency for their prodigal son. Museveni agreed to the pardon, reluctantly allowing Besigye to resign from the Army, a decision he was to later regret. Indeed, just as Museveni had feared, as soon as Besigye secured his letter of discharge, he announced that he was going to run against Museveni in the forthcoming 2001 election. He did so again in 2006, following the reversion of the country to a multiparty system. The minute details of those electoral races have been recounted in other studies (Kizza et al. 2008) and need not engage us here, save to say that Besigye lost both elections. In both instances, the courts were actively involved. What were the cases about? The first, (Rtd.) Colonel Kizza Besigye v. Lt. Gen. Kaguta Museveni (No.1),36 challenged the March 2001 elections, alleging that there had been violations of the 1997 Electoral Commission Act, the 2000 Presidential Elections Act, and by implication, the 1995 Constitution (TumwineMukubwa 2004, 33). The issues that the court considered were as follows: whether or not there had been compliance with the electoral laws; whether 36

Election Petition No.1 of 2001.

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the election was “free and fair”; whether there had been malpractice extensive enough to invalidate the poll; whether candidate Museveni had committed election-related offences; whether Museveni had made a false statement—by alleging that Besigye was suffering from HIV/AIDS; and whether costs should follow the cause. Given the historic nature of the case, the court began by underlining why the petition was important, referring to previous elections and the different (largely illegal) courses of action that had been taken with respect to their resolutions. Elections, said Chief Justice Odoki, were the highest expression of the general will and symbolized the right of the people to be governed only by consent (Judgment of Odoki, CJ at 38). The court also laid out in some detail the basic principles that were supposed to guide the Uganda Electoral Commission (EC) in ensuring that elections were free and fair. These principles included ensuring sufficient campaign time, guaranteeing the absence of unfair manipulation of the process, a leveling of the playing ground, and ensuring that the election was conducted in “an atmosphere free of intimidation, bribery, violence, coercion or anything intended to subvert the will of the people.” Those principles were derived from International Law, the 1995 Constitution, and the Presidential Elections Act (Tumwine-Mukubwa 2004, 3–5, 10–14, and 16–33). The court underscored the point that election procedures should guarantee “the secrecy of the ballot, the accuracy of counting, and the announcement of results in a timely manner.” It was important that the laws and guidelines for the exercise be published in good time. The court concluded by saying, “Fairness and transparency must be adhered to in all stages of the electoral process. Those who commit electoral offences or otherwise subvert the electoral process should be subjected to severe sanctions. The Electoral Commission must consider and determine election disputes speedily and fairly.” It was unanimously found that there had been non-compliance with the law in nearly every complaint raised by the petitioner.37 These ranged from the accuracy of the voter register to the failure to supply the petitioner with the lists of voters. The judges differed on the effects of that noncompliance; three held that the question was one of quantity—was the result affected in a “substantial” manner? while two others—Oder and Tsekooko—took a qualitative view. All five judges agreed that there had been intimidation and other related offences, but they disagreed on whether candidate Museveni should bear responsibility for those offences. All five also agreed that petitioner Besigye had presented insufficient evidence regarding Museveni’s alleged statement that the petitioner had HIV/AIDS. 37

Judgment of Oder, JSC, at 39.

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Finally, on the question of costs, the court held that, given the public interest nature of the petition, each side should bear its own costs (TumwineMukubwa 2004, 168). Besigye fled into exile soon after the 2001 elections, having been placed under house arrest amidst rumours that he was going to be detained for a very long time (Naluwairo 2006, 5). He returned as the 2006 election neared, announcing his candidacy under the newly-formed Forum for Democratic Change (FDC), which had been allowed to register under the restored multiparty dispensation. In contrast to 2001, when the courts were invoked ex post facto via Besigye’s presidential election petition, in this instance the courts were deployed a priori in an effort to cripple his electoral campaign. At least four different court processes tracked him over this period, ultimately landing him in jail (Ellet 2013, 184–189). First, he was charged in Criminal Court with treason; this case was transferred to the General Court Martial (GCM) after he was granted bail by the High Court. However, because the GCM refused to release him, the matter ended up in Constitutional Court for an interpretation of GCM’s powers.38 Then it was back to Criminal Court again, where he was charged with rape (Naluwairo 2006, 6–11). The intention of all this was clearly to handicap his campaign and stifle his chances of success in the forthcoming election. That intention became even more obvious when the ominously-named Black Mamba paramilitary forces raided the High Court to prevent Besigye and his co-accused from leaving the premises after he had been granted bail. Finally, the Electoral Commission wrote to Attorney General Khiddu Makubuya inquiring whether Besigye could be nominated to contest for the presidency. Khiddu’s reply was telling: in a nutshell he said that the Commission could not nominate Besigye because being nominated was “a personal matter requiring personal physical presence.”39 He went on to make what must rank as the most outstanding example of legal gymnastics ever to be issued on an electoral process: [A]nybody aspiring to occupy the office of president, which is the highest office in the land and is an embodiment of a sovereign state, should be a person of integrity, of high moral values and be law abiding. Out of more than 30 presidential candidates, Dr. Besigye is the only person on remand. His conduct is a subject of serious criminal proceedings. Although he is presumed innocent until proven guilty, it certainly cannot be said that he is on the same level of innocence as that of the other presidential candidates.

38 39

See Uganda Law Society (ULS) v AG, Constitutional Petition No.16 of 2005. “Why Besigye Can’t Stand—Makubuya,” New Vision, December 10, 2005 at 3.

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Even if he is blameless, he is currently a subject of serious charges of treason in the High Court.40

Fortunately, the Electoral Commission took a different view, asserting that although in detention, Besigye could be nominated in absentia (Makara 2007, 72–73). The Attorney General challenged this decision in Constitutional Court, but failed to get it overturned.41 Indeed, the preposterous attempt by the government to do all in its powers to stop Besigye from effectively participating in the election was obvious to even the most casual observer. In giving his ruling on the rape case, Justice John Bosco Katutsi ended his scathing judgment with the words of Lord Brougham’s speech in defence of Queen Caroline some three hundred years before: The evidence before this court is inadequate even to prove a debt; impotent to deprive of a civil right; ridiculous for convicting of the pettiest offence; scandalous if brought forward to support a charge of any grave character, [and] monstrous if to ruin the honour of a man who offered him[self] as a candidate for the highest office of this country. In complete agreement with the lady and gentleman assessors, I find that prosecution has dismally failed to prove its case against the accused. He is accordingly acquitted and set free forthwith.42

After losing the election Besigye went back to the Supreme Court a second time, basically reprising the same set of issues that had been adjudicated in the 2001 petition.43 Once again, the court found that electoral offences had indeed been committed (Tusasirwe 2014, 63). However, the court held that the rigging and irregularities did not substantially affect the result.44 The ruling of the court is summarized in Table 6.3 below, demonstrating the breakdown of the rulings in relation to each issue that was covered by the petition:

1. 2. 3. 40

Issue Did the EC comply with the law? Was the election Free and Fair? Did malpractices affect the results?

YES 0 0 4

NO 7 7 3

Decision No No Yes

Id. Asol Kabagambe, Faraj Abdullah and The Attorney General v. The Electoral Commission & Dr. Kizza Besigye, Constitutional Petition No.1 of 2006. 42 See, “Katutsi acquits Besigye,” New Vision, March 7, 2006 (emphasis added). 43 Rtd. (Col) Dr. Kizza Besigye v. Lt. Gen. Kaguta Museveni, Election Petition No.1 of 2006. 44 Claims that the judges had been bribed were in wide circulation, prompting the Chief Justice to issue a public reprimand (Tusasirwe 2014). 41

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Is candidate Museveni innocent? Should the elections be annulled?

5 3

2 4

Yes No

Table 6.3. Supreme Court Decision in the 2006 Petition Source. Besigye v. Museveni (No.2); Muyita et al. 2006.

Several observations can be made about the two judgments. The first and most important is in relation to the degree of malpractice and irregularity permissible in a presidential election, and the burden involved in proving it. The problem is that the majority interpretation of the Presidential Elections Act favoured a pedantically quantitative test that raised the burden of proof exceptionally high (Gloppen et al. 2008, 19). Of particular concern is the view of the majority that the irregularities and malpractices in such an election had to have affected the results “in a substantial manner” to justify nullification (Twesiime in Oloka-Onyango 2001, 86-87). Having erred in favour of a quantitative appraisal of the election, the Court’s observation below seems rather incongruous: We are constrained to comment on four matters which have given us grave concern: the continued involvement of the security forces in the conduct of elections where they have committed acts of intimidation, violence, and partisan harassment; the massive disenfranchisement of voters by deleting their names from the voters’ register, without their knowledge or being heard, the apparent partisan and partial conduct by some electoral officials….

Is not “massive disenfranchisement” indication of a problem of substantial nature? How can you speak of a “free and fair” election when it has been demonstrated that security forces have committed “acts of intimidation, violence, and partisan harassment?” Given such an assessment, it would appear that, as Justice Kanyeihamba stated in his dissenting judgment in the 2006 petition, all that really needed to be proven was that both the Constitution and the election laws had been substantially violated. In sum, the judgment ultimately required a qualitative assessment. After that, it is a question of judicial bravery. Of course, another problem is that courts operate within legal frameworks; while there is some leeway for interpretation, that freedom will depend on both the context and content of the provision in question. Timing is critical. Article 104 sets impossibly short periods within which a petition must be lodged and within which the court must act. Those limits create two problems: first, the party with fewer resources—usually the losing petitioner—is at a disadvantage, especially vis á vis an incumbent

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president. Second, the amount of evidence that can be gathered is limited. Often, a petitioner’s assertions simply cannot be proven because he or she lacks evidence to support claims that would have been easily verifiable given a longer period of time. It is true that the Court relied to an extent on Article 126(2)(e), which provides for a relaxed approach to technicalities in order to dispense with procedures that slow things down. However, application of this option was highly selective; the court insisted on evidential fidelity in some cases, while erring toward laxity in others. A clear case in point was the court’s differential treatment of affidavits, which also seemed to favour the respondents (Tumwine-Mukubwa 2004, 184–185). The right to vote critically depends on how the voting process is organized and on who organizes it. Both the 2001 and 2006 judgments unanimously issued serious and scathing reprimands of the Electoral Commission (EC)—which is telling given that the two bodies were made up of entirely different people. This implies that the problem was structural and not with the individual officials involved. A look at the 1995 Constitution will unearth where the problem lies. The provisions on the EC (Article 60.1) raise serious questions as to whether, under the present formulation, the body can ever deliver a free, fair, and genuine representation of the Ugandan people. The formulation in the 1995 Constitution reflects the monolithic Movement system of government and did not take into account the transition to a multi-party political dispensation. Among other problems, no special qualifications for the positions of EC chair and commissioners are listed. In addition, the limitations on who can hold office are too lax to fully insulate the body from the political pressures involved in supervising an election fraught with political tension.45 Finally, the president has the power to remove any member of the Commission without recourse to countervailing forces. This contrasts with rules regarding other constitutional bodies and the Judiciary; a member of the Electoral Commission can be removed at the whim of the president.46 The above factors combined adversely affect the most critical element in the functioning of an electoral body, i.e. its independence, and thus undermine full realization of the right to vote. Although Article 62 decrees that the Electoral Commission will not be subject to the direction or control of any person or authority, the mode of appointing members, the lack of serious public participation in vetting members, and the ease with which 45

Article 60(5). This is indeed what happened when President Museveni replaced the previous commission chair, Aziz Kasujja, with Badru Kiggundu at the end of 2002 (Kibalama 2005, 33). 46

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members can be removed all bode ill for the effective functioning of the body. In light of these limitations, it is impossible for the Ugandan Electoral Commission as currently formulated to operate effectively—and it is therefore likewise impossible to hold a genuinely free and fair election. Since the judgments in these cases simply condemned the operations of the EC without making the logical connection to the impact of its incompetence and partiality on the election, the net effect of the court’s action was to give legal sanction to executive impunity.

Odinga versus Kenyatta: Unpacking the Court Challenge of 2013 If Raila Odinga had consulted a soothsayer in the aftermath of his party’s victory over the 2005 referendum on the draft Constitution (Andreassen & Tostensen 2006, 13), he would have been told that the stars were aligned in his favour for a 2007 triumph; everything he did seemed to be politically opportune. Of course, as we have seen, the election didn’t meet those expectations, although Odinga’s failure to secure the presidency on his second attempt did not diminish his enthusiasm for a third try in 2013. By most accounts, Odinga faced a different set of issues on his third attempt. Among them was his falling out with William Ruto, who had brought in the large Rift Valley vote in 2007, forcing him into a marriage of conspiracy with Uhuru Kenyatta and thus giving birth to the Jubilee (UhuRuto) alliance. Another issue was the indictment by the International Criminal Court of the “Ocampo Six.”47 Odinga was suspected of personally sending the six names to the Hague and could not escape the charge, however much he tried. In this respect, Odinga’s opponents took a leaf out of the book by Quintus—brother to famous Roman orator and Consul, Cicero—on how to run a successful campaign (Cicero 2012). According to Mamdani, there were basically two issues in the 2013 election: the question of land (in the Coast and the Rift Valley), and the issue of the ICC, with its implications for maintaining peace and security in the country (Mamdani 2013, 11). Of course, some of the long-standing elements of the Kenyan political economy—such as politicized ethnicity (Kanyinga 2013), fractured elite con47

In 2010, ICC Prosecutor Luis Moreno Ocampo announced a summons for six people being indicted for crimes against humanity: Deputy Prime Minister Uhuru Kenyatta, Industrialisation Minister Henry Kosgey, Education Minister William Ruto, Cabinet Secretary Francis Muthaura, radio executive Joshua Arap Sang, and former police commissioner Mohammed Hussein Ali. They were indicted on March 8, 2011, and summoned to appear before the Court.

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solidation, and outstanding issues of reconciliation and truth (Moueller 2011)—also had a role to play. Whatever the factors were that influenced the electorate, Odinga lost the poll and decided to take the matter to court rather than to the streets, following an exercise that passed off largely peacefully (Long et al. 2013). What had changed between 2007 and 2013? First of course was the enactment of the 2010 Constitution, a document that drew on the lessons of post-election violence in order to attempt a more comprehensive response to the issues raised in the Independent Review Commission’s (Kriegler) report of 2008 (Cottrell & Ghai 2013, 107–109). Second, there were changes in the Judiciary. As we have seen earlier, the 2010 Constitution provided for a new methodology of appointing judges, just as it also tried to formulate a more petition-friendly framework for the adjudication of election-related disputes—especially disputes over presidential elections. A new chapter entitled “Representation of the People” tried to lay down a comprehensive framework within which the right to vote in Kenya could be realized and disputes over that right effectively resolved (Cheeseman, Lynch and Willis 2014, 15). Finally, the Constitution revamped the Election Management Board, creating the Independent Electoral and Boundaries Commission (IEBC) and introducing new standards of appointment and oversight, which served to build confidence in the contestants under the Commission’s care. Thus, in contrast to 2007 when Odinga’s ODM party shunned the courts, in 2013 the Coalition for Reforms and Democracy (CORD)—the new electoral vehicle which Odinga put together for the campaign—viewed recourse to the Judiciary as a viable option. That confidence was not misplaced, since over the short period that it had been in operation the reconstituted Judiciary had begun to demonstrate that it was attuned to the demands for reform and constitutional fidelity that the people of Kenya had long sought. In fact, issues relating to the forthcoming election had already been given judicial consideration. For example, the case of John Harun Mwau & 3 others v. Attorney General & 2 others48 concerned the date of the first general elections under the new Constitution. The Petitioners sought a declaration from the court that paragraphs 9(1) and 10 of the Sixth Schedule to the Constitution were inconsistent with Articles 101 and 102 of the Constitution insofar as they implied that the first general elections under the 2010 Constitution might be held on a date other than the second Tuesday of August, 2012. Mwau also sought a declaration that elections of the President, the National Assembly, 48

Petition No. 65 of 2011 (2012) eKLR (August 30, 2013).

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the Senate, the County Assemblies and County Governors should be held on the same date. In contrast to those judicial Benches that had heard similar matters in years past and declined or simply failed to consider their substance, the Mwau court agreed to hear the matter and declared that the first elections under the 2010 Constitution were to be held within sixty days of January 15, 2013. The court made a strong statement in support of public interest litigation within the context of elections, holding that in matters concerning public interest litigation, a litigant who has brought proceedings to advance a legitimate public interest and contributed to a proper understanding of the law in question without private gain should not be deterred from adopting a course that is beneficial to the public for fear of costs being imposed. Costs should therefore not be imposed on a party who has brought a case and lost, equally, there is no reason why the state should not be ordered to pay costs to a successful litigant.

In contrast to previous decisions over electoral matters in Kenya, the judgment in this case was a comprehensive, lucid, and well-reasoned analysis of the issues, leaving little room for questioning the court’s rationale. The decision signified an important turning point for the Judiciary not only in terms of institutional capacity, but also, and especially, on the crucial question of public perception. The court also decided a case that tested whether the Elections Act was compatible with the Constitution in its provisions on the resignation of public officers who wished to contest in the election.49 The same petitioners filed a case to test Kenyatta and Ruto’s eligibility to stand for election in light of the ICC charges they were facing.50 The petitioners wanted the court to declare that the ICC’s confirmation of charges against both “would be a threat to the Constitution.”51 They also asked whether “the presumption of innocence in favour of the two persons committed to trial before the ICC overrides or outweighs the overwhelming public interest to ensure protection and to uphold tenets and principles of the Constitution as set out under Articles 10 and 73.”52

49

Charles Omanga & Patrick Njuguna v. IEBC, AG and Union of Kenya Civil Servants, Constitutional Petition No. 2 of 2012. 50 Patrick Njuguna, Augustino Neto, Charles Omanga, Kenya Youth Parliament and Kenya Youth League v. Attorney General, Commission on Implementation of the Constitution and IEBC, Constitutional Petition No.21 of 2012. 51 Id., at 12. 52 Id.

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This case was withdrawn and a fresh one filed by a coalition of civil society groups,53 where the prayer was to the effect that given that the two had been committed to trial at the ICC they “would not be able to properly discharge [their] duties as public or State officer[s] since they would be required to attend the hearings…on a full-time basis.”54 It was further contended that “the honour, integrity and confidence bestowed on public office under Chapter Six of the Constitution (on integrity in leadership) and by Kenyans would be seriously eroded…because the proceedings of the trial at the ICC [might] be broadcast live and watched not only by Kenyans but also worldwide, and therefore impair the ability of the third and fourth Respondents to discharge their State functions if elected.”55 Chapter Six was also invoked because it was averred that a leader was “not only required to be elected and/or selected in a transparent process, but also to bring a measure of dignity, legitimacy and trust of the people to the office.”56 In response, the court observed that under Article 50 of the Constitution the two were presumed innocent until proven guilty—a fundamental right that could not be limited under Article 25 of the Constitution.57 Further, the court held that granting the call for a declaration of “a threat to the constitution” would amount to pre-determination of the question of whether the respondents were qualified to stand for the offices of President and Deputy President respectively. This was an issue—in the view of the court—within the exclusive jurisdiction of the Supreme Court.58 Finally, the court held that the petition had been “overtaken by events,” since Uhuru and Ruto had already been nominated by the time the decision was being rendered. Controversially, the court also awarded costs in the case against the petitioners and in favour of the respondents, even while clearly recognizing that the matter had been filed in the public interest.59 Although the verdict on costs could be questioned, the court’s rationale on the wider issues was largely sound; though the court did not grant the petition to bar the respondents from contesting in the election, they did critically engage with the key issues raised. One could argue that the case was defeated on the basis of a technicality—that jurisdiction belonged to the Supreme Court and that the issue in question was nomination, not elec53

International Centre for Policy and Conflict & 5 Others v. Attorney General & 4 others, High Court at Nairobi Petition No. 552 of 2012, (February 15, 2013). 54 Id., para. 15. 55 Id. 56 Id. para. 16. 57 Id., para. 168(d). 58 Id., para. 168(a). 59 Id., para. 169.

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tion—but the substantive manner in which they engaged the question can hardly be faulted. Referral to the Supreme Court was no guarantee that the case would have been decided before the deadline stipulated for holding the poll, or indeed, that the higher court would have found for the petitioners. Against the above background, the case of Raila Odinga v. Uhuru Kenyatta60—which was a consolidation of several separate petitions— challenged the presidential vote on a number of grounds, the first being the inclusion of rejected votes in the final tally (Kenya Law 2013b and Azu 2013, 28–31). Secondly, given that there was no accurate voter’s register, the petitioners argued that the poll had not been conducted in accordance with the 2010 Constitution and electoral laws; that the count was compromised by the failure of the electronic voting machine (EVM), which led to errors in the manual tally; and that designated agents of the candidates were excluded from the national tallying centre. Considering these grounds together, the court addressed two broad issues: first, whether the election had been conducted in a free, fair, transparent, and credible manner in compliance with the relevant laws; and second, whether the second respondent, the IEBC, had erred in including rejected votes in its final tally. The Supreme Court held that Kenyatta and Ruto had been validly elected, dismissing the claim that the IEBC had not exercised its discretion properly when it resorted to manual tallying of the vote.61 To reach this conclusion, Section 39 of the Elections Act and Regulation 82 of the Election Regulations had to be construed to mean that the electronic transmission of results was neither exclusive nor mandatory. The court held that no injustice had resulted from the fact that the EVM was not used exclusively throughout the process of tallying. Furthermore, the court held that petitioner Odinga had failed to prove that the tallying system employed by the IEBC and its chairperson (first and second respondents) inflated the votes for Kenyatta (the third respondent), but deflated votes for Odinga.62 Crucially, the court held that the evidence regarding discrepancies in the register were not of a magnitude to have adversely affected the polling. Reflecting on the process of voter registration, the court found that it was “generally transparent, accurate, and verifiable,” and that the resultant registration was generally credible.63 On the issue of rejected votes, the court referred to Article 138(4) and the phrase “all votes cast,” concluding that the only logical interpretation was that the phrase referred to valid votes cast. Hence, the rejected votes 60

[2013] eKLR. Judgment in Odinga v. Kenyatta, para. 235. 62 Id., para. 246. 63 Id., para. 257. 61

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should not have been included in the final computation. That fact notwithstanding, the Supreme Court held that the petitioners had failed to prove that inclusion of the invalid votes had distorted the election results such that they did not reflect the Kenyan people’s electoral intention.64 Following the marathon hearing of arguments, the Supreme Court issued its decision—though neither the hearing nor the issuing of the decision were without controversy. Among the matters of contention, first had been the exclusion of certain amicus curiae (friend-of-court) applicants who had sought to have their briefs included in the documentation of the case; there was also the court’s refusal to accept additional affidavit evidence from the petitioner.65 Secondly, instead of delivering a final judgment in the case, the court on March 30 issued only a summary ruling, stipulating that more comprehensive reasons for its decision would follow. These came two weeks later, on April 16, 2013. Finally, there was the unanimous ruling of the Bench. In contrast to the Besigye 2 results in Table 6.3, those of Odinga v. Kenyatta are summarized in Table 6.4 below. Issue 1. Was the election free, fair and credible? 2. Were Uhuru Kenyatta and William Ruto validly elected? 3. Was the inclusion of “spoiled” votes in the final tally correct? 4. Does the Supreme Court have jurisdiction to order a re-computation of votes? 5. Should the elections be annulled?

YES 7 7

NO 0 0

Decision Yes Yes

0

7

No

0

7

No

0

7

No

Table 6.4. Summary of Verdict in the Kenya Presidential Election Petition, 2013 Source: Raila Odinga v. Uhuru Kenyatta 64

Id., paras.303–304. In Re: Considerations for admission as amicus curiae in a presidential election petition, Supreme Court of Kenya, Petition Nos. 3, 4 and 5 of 2013, the court allowed for the joinder of the Attorney General to the petition but rejected the Law Society of Kenya (LSK) on the grounds that it was perceived as partisan. With respect to the amicus application by Katiba Institute, the court held that different considerations applied because “the adversarial nature of the presidential election petition was different from that of an advisory opinion hearing by the court, to which the Institute had previously enjoyed audience.” In the instant case, the court averred that it was convinced by the perception of bias that attached to the applicant (In re: Bias and Partisanship a Bar to be Admitted as an amicus curiae in a presidential election petition). 65

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What was the response to the decision? A number of observers felt that the Court had not sufficiently demonstrated a respect for the gravity of the issues involved or for the sensitivities that underpinned the dispute (Maina 2013). Waikwa Wanyoike criticized the decision for disposing of the case without a deep reflection on the many conflicts in principle that were raised (Wanyoike 2013). The Coalition for Reforms and Democracy (CORD) was upset over the court’s refusal to accept the additional evidence, averring that it contained the “smoking gun.” Some surprise was expressed at the fact that the decision was unanimous, without even a dissent or a concurrence. Nevertheless, the response to the judgment did not evoke 2007. Although there were some isolated cases of rioting, the peace generally held, especially when Odinga called on his supporters to respect the verdict even if he didn’t agree with it. In the overall scheme of things, the case of Odinga v. Kenyatta was historic in that it was the first time a dispute resolution mechanism had comprehensively dealt with the intricacies of a presidential petition in Kenya. This was no small feat given the tragicomedy of earlier attempts. It confirmed that there could be a non-violent avenue for the transmission of some post-election trauma. Secondly, the fulsome manner in which the petition was dealt with also gave credit to the seriousness with which the petition was received and heard; the fashion in which it was delivered erred on the side of public relations, not the Law. Lastly, although the Mutunga Court did not escape some vitriolic assaults on its integrity— especially in the blogosphere and on social media—in the wider scheme of things it acquitted itself fairly well (Herman 2013).

A Look at the Bigger Picture By way of conclusion, Besigye 1 and 2 and Odinga had certain commonalities, although the differences between them allow for only broad generalizations. The Odinga decision cites Besigye only once.66 However, the citation concerns the key question of burden of proof—and that is where all three petitions reviewed in this book have something in common. In dealing with an election petition the courts operate mainly within a legal framework that has largely been predetermined by election legislation. That is why presidential elections were simply off limits to the courts for many decades—the law barred them from interfering (Ugochukwu 2012). The second point of similarity is the contexts within which the cases were decided; both countries had experienced serious contestation over 66

Judgment in Odinga v. Kenyatta, para. 191.

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occupation of the office of the presidency, with the struggle spilling over into the bush and onto the streets. While Uganda had witnessed a wide range of open civil war and conflict in relation to disputed polls, the postelection violence in Kenya brought to the fore tensions that had long been simmering. Lastly, while both courts upheld the elections, they each had scathing things to say about the election management boards—both the Electoral Commission of Uganda and the IEBC in Kenya. With respect to the latter, the court even suggested the opening of criminal proceedings.67 But there were also many differences jurisprudentially and in terms of the form that the judicial petitions took. The most stark is that in both Besigye decisions there was a clear lack of unanimity; strong dissenting opinions came from justices Oder and Tsekooko in Besigye No.1, and the same two judges were joined by Justice Kanyeihamba in Besigye No.2. The decision in Odinga was unanimous. The main point of disagreement in the Besigye decisions can be boiled down to the “qualitative” versus the “quantitative” approach to answering the question: was the election “free and fair”? In Odinga, this was also a major consideration, although a lot more turned on the evidentiary dimensions of the petitioner’s submission than it did in the Uganda cases. The question thus requires further consideration. The problem of adopting a pedantically quantitative standard can be discerned even from a literal perspective if we simply consider the definition of the word “substantial.” The table below is divided into two parts, reflecting a qualitative and a quantitative dimension. Quantitative Abundant Ample Considerable Firmus Great Large Real Sizable Strong Substantive

Qualitative Concrete Consequential Established Existent Existing Flush Genuine Gravis Important Significant Valid

Table 6.5. Qualitative versus Quantitative Definitions of the Word “Substantial” 67

Judgment in Odinga v. Kenyatta, para. 234.

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Table 6.5 speaks for itself. While some definitions might overlap the two columns, the semantic division serves to demonstrate that with respect to enhancement of constitutionalism—which is essentially a qualitative, not a quantitative value—it is obviously erroneous to adopt a quantitative approach. Thus, in the absence of massive, comprehensively-documented and extensive irregularities, no presidential vote is ever likely to be overturned by a court of law in either country (Oloka-Onyango 2013, 205– 207). Beyond what could be dismissed as semantic disputes lies a much more important question. What is the wider understanding, or the broader ideological framework, within which the courts and individual judges operate? Here, one can read between the lines of the judgments in both cases and discern a number of relevant points. Was the operative framework positivism, legal realism, critical theory, or conscientialism? Did the courts operate from a position of restraint or one of judicial activism? Courts that decide crucial political issues such as elections cannot pretend ignorance of the political context in which they are operating. In the Besigye cases, this is not very difficult to see; Chief Justice Odoki’s allusions to the case of Bush v. Gore and to the implications of the petition not simply for the individual parties, but for the whole country reveal a keen awareness of context (Judgment of Odoki, CJ in Besigye No.1, at 162– 163). In fact the courts were considering a question of regime stability and ultimately of national security. Given Uganda’s recent and not-too-distant history, these issues, according to the court, were weighty matters to consider. Though it did not appear in the judgment, the small matter of latent and overt acts of Ugandan executive assault against the Judiciary must have been taken into consideration. While Museveni was no Idi Amin— under whom the disappearance and murder of Uganda’s first indigenous Chief Justice, Benedicto Kiwanuka, took place (Bade 1960)—it was under Museveni’s watch that the Black Mamba invaded the court barely four months before judgment in the election petition was delivered. Museveni has long held the view that patriotism in the Judiciary means that the Movement must not be derailed from its overall mission. In the Kenyan case, was the Supreme Court’s judgment a similar nod to caution? Cheeseman et al. state that CORD and Odinga’s complaints about the time limits, the unanimous verdict of the court, and the high burden of proof may be valid, but were somewhat naïve. According to them: The Court was always likely to take a conservative position: annulling the election based on procedural failures would set a dangerous precedent, as Kenyan elections are typically procedurally faulty, while there was also a vocal section of Kenyan society who were pleased with a Jubilee win and

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presented the largely peaceful election as a success. In this context, it was easy to depict a re-run to be an unnecessarily expensive and potentially destabilizing risk. Given this, it was always going to take strong evidence of systematic rigging to force the Court’s hand—and this is what CORD, operating under intense time pressure, could not provide (Cheeseman et al. 2014, 15).

The above opinion can be faulted on two grounds, the first that the Odinga petition turned simply on “procedural failures,” and the second that the court grounded its case on the “potentially destabilizing risk” and cost of deciding in favour of a re-run. There is no doubt that the Mutunga court was influenced by the situation outside the courtroom. As in Besigye’s cases, Bush v. Gore found its way into the judgment, although in this case via the invocation of respondent counsel.68 However, both the above assertions minimize what is perhaps the most critical point, namely, the extent to which the Kenyan Judiciary was the product of comprehensive and structural constitutional reform. This also marks the difference in context between the decisions in Besigye and Odinga. In other words, the argument by Cheeseman et al. gives short shrift to the overarching transformation within which the Kenyan Judiciary was supposed to operate. It is not by accident that the Odinga decision begins with the following exhortation: “On the 4th of March, 2013, Kenya held its first General Election since the promulgation of the new Constitution on 27 August, 2010. The Constitution was a culmination of the efforts of the Kenyan people to bring about a more progressive governance set-up. Kenyans affirmed the new Constitution as the supreme law of the Republic, which binds all persons and all State organs.”69 This point is taken up in an extensive examination and critique of the decision by John Harrington and Ambreena Manji, who argue that the 2010 Constitution “sanctions a transformative role for the Judiciary in superintending the limitation of executive power. Crucially, it also mandates a shift in legal culture away from the narrow literalism formerly prevalent to a more purposive and principled mode of argumentation” (Harrington and Manji 2013, 2). Harrington and Manji further argue that the restraint apparent in the decision was driven by an overarching imperative to maintain peace, protect the “young” institutions created by the Constitution, and privilege speed in hearing and disposing of the petition (Harrington and Manji 2013, 5 and 7). Citing the work of American scholar Karl Klare, who coined the term “transformative constitutionalism,” as 68 69

Judgment in Odinga v. Kenyatta, para. 222.. Judgment in Odinga v. Kenyatta, para. 1.

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well as Chief Justice Mutunga’s own extra-judicial pronouncements, they argue that like South Africa’s instrument, the new Kenyan Constitution was supposed to represent a “marked departure from the past” (Harrington and Manji 2013, 3). In their opinion, Odinga v. Kenyatta re-established that connection. However, despite the textural critique of the decision, Harrington and Manji avoid a larger question: is a presidential election petition the best place to judge the ability of a judicial body to institute transformation? Returning to Dershowitz’ reflections on the Bush v. Gore trauma with which we opened this chapter, would a Democrat-dominated Supreme Court have ruled in favour of George Bush instead of its compatriot Al Gore, in the way that the Rehnquist-Republican dominated Bench could clearly not have ruled against their political fellow traveler? The critical question is: what are the limits of transformation through the mechanisms of constitutional law and the Judiciary? While that is a very large question, the data in Table 6.6 below might help us arrive at an answer. The data reflects the record of presidential election petitions since the beginning of this century, indicating in very summary fashion the outcome of the election, i.e. whether or not the court ordered that the result be overturned. Year 2000

Country USA

Parties Bush v. Gore

2001

Uganda

Besigye v. Museveni

2002

Zambia

Mazoka v. Mwanawasa

2004 2003

Ukraine Nigeria

Yuschenko v. Yanukovych Ojukwu v. Obasanjo

2003

Nigeria

Buhari v. Obasanjo

2007

Uganda

Besigye v. Museveni

2008

Nigeria

Abubakar v. Yar’Adua

2010

Cote d’Ivoire Ghana

Gbagbo v. Ouattara

2012

Akufo-Addo v. Mahama

Decision Confirmed Results Confirmed Results Confirmed Results Rejected Results Confirmed Results Confirmed Results Confirmed Results Confirmed Results Rejected Results Confirmed Results

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2012 2013

Sierra Leone Zimbabwe

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Confirmed Results Confirmed Results

Table 6.6. The Record on Twenty-first Century Presidential Election Petitions While Table 6.6 shows data for a diverse range of countries with very different legal, political, and cultural practices, a number of broad conclusions can be drawn. The great majority of court decisions have upheld the election results, especially in contexts where incumbents were involved. In those instances where elections were overturned, i.e. Cote d’Ivoire and the Ukraine, the descent into civil disorder and conflict was marked. While the court decision per se cannot be the only factor contributing to such conflict, it is nonetheless tempting to ask whether a contrary decision might have led to greater stability. Secondly, a review of the decisions elicits a common pattern. In most cases, the courts are operating in an atmosphere of high political tension— the country is in an abnormal or super-normal situation. In some of the decisions the tension is palpable: Dershowitz records all thirty-six days of the Florida-generated tension. Then there is the time factor, which reflects the legal constraints and political conditions that surround such a petition; one cannot have a long-drawn out judicial reflection on who should be living in the State House.70 Only in Ghana did the court really take its time to deliver a judgment, and perhaps their decision not to tamper with the election result is an indication of their sensitivity to the possible political repercussions. After such a long wait, it would have been astonishing for the court to have ruled that President Mahama should vacate Flagstaff House. Finally, the high number of cases in which the court makes a skeleton ruling before delivering full judgment is notable. Presidential political contests are virtually the only legal disputes where such a methodology is deployed, demonstrating in a way their sui generis character. There is a fourth and final point that needs to be made about presidential election petitions. Absent from Harrington and Manji’s analysis is an historical appreciation of the rise and influence of the Political Question Doctrine (PQD), a phenomenon which we discussed extensively in chapter 70

With regard to the East African cases, Besigye No.1 gave the ruling on April 4 and the judgment on July 6; while in Besigye No.2 the period was much longer; April 10, 2006 for the ruling and January 31, 2007 for the final judgment. In Odinga, the difference was only two weeks.

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3. Although it finds no mention in any of the decisions of the courts, it is quite clear that the Doctrine is operating somewhere at a subaltern level. Courts are reluctant interlopers on the presidential election dispute resolution scene; it takes them completely out of their comfort zones. The key point here is not so much that courts have avoided contentious election cases but that, in most cases where they have implemented the PQD, they have taken on the case and rendered a full decision on the matter but avoided upsetting the status quo. This is what happened in Marbury v. Madison, in ex parte Matovu in Uganda, and most recently in East Africa with the Tanzanian case of LHRC & Another v. Pinda. This is true of all presidential election petitions thus far decided in the courts of East Africa, including the most recent one challenging the re-election of President Yoweri Museveni in February, 2016.71 What conclusion can be drawn from all this? We conclude that, while courts can do politics, there are limits to the kind of politicking that can be done. And perhaps it is at the pinnacle of political action—an election— that the limit is ultimately reached.

71

See Amama Mbabazi v. Yoweri Kaguta Museveni, the Electoral Commission, & the Attorney General; Professor Oloka-Onyango& 8 Ors (Amici Curiae); Presidential Election Petition No.O1 of 2016.

CHAPTER SEVEN FOSTERING STRUCTURAL TRANSFORMATION THROUGH CAUSE LAWYERING

On a warm Dar es Salaam afternoon, Dr. Ringo Tenga—former Law School don and public interest litigation pioneer—recounted the following Kiswahili axiom to me: “Hata mbuyu ulianza kama mchicha,” translated as, “even the mighty baobab began life as a little seed.” The saying summarized Tenga’s reflection on the growth of public interest litigation (PIL) in Tanzania since the 1980s court decisions in the Barabaig/Maasai cases—broadly recognized to be the first PIL cases in post-independence Tanzanian history—discussed in chapter 5. The Legal Aid Clinic— founded by Tenga along with others such as Issa Shivji and Chris Maina Peter—represents that little seed, first planted at the University of Dar es Salaam in the early 1980s. Dedicated to the cause of those who would not otherwise have access to the courts of law—the typical clients of any legal aid scheme—the Clinic grew into the main site for litigation over public interest issues in Tanzania until the task was taken over by the nongovernmental community. Groups such as the Legal and Human Rights Centre (LHRC),1 the Tanganyika Law Society (TLS),2 and the National Organization for Legal Aid (NOLA)3 took up the mantle in the 1990s and have been at the forefront of pursuing such litigation since then. Among the clinic’s repertoire of cases are those on the government takeover of Maasai communal land, the case of the TAZARA workers laid off without adequate compensation, and a challenge to the State’s refusal to register the women’s organization, BAWATA—all cases previously reviewed in this book. Kenya’s first PIL case (against the national power company) was filed by Oki Ooko Ombaka, feisty executive director of the Public Law Institute (PLI), former student leader, vice-chair of the first constitutional review committee, and eventually member of parliament until his early death in 1

Interview with Helen Kijo-Bisimba, Dar es Salaam on November 4, 2013. Interview with Emmanuel Massawe, November 6, 2013. 3 Interview with Kaleb Gamaya, Dar es Salaam on November 4, 2013. 2

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2002—unfortunately well before he had tasted any of the fruits of his extensive efforts in the struggle for implementation of a new era of constitutional law and litigation in the country (Ooko-Ombaka n.d., 52–59). Although that first case did not make much headway and was summarily dismissed along with most others that were filed under the Moi regime, the work that the PLI embarked upon in the 1980s could be said to have directly led to the transformative features now embedded in the 2010 Constitution. Again, what started out as a small seed has grown into a great tree watered by a very active human rights and public interest law community in Kenya. The same is true of contributions from pioneers such as Prof. Frederick Edward Ssempebwa in Uganda, who pursued his work in this area alongside more traditional labour within a commercial law firm. In sum, the public interest law tree in East Africa has grown many branches and today is thriving. However, some circumspection is needed. Tending a garden and nurturing a seed into a tree is hard work and requires not only a great deal of consistent effort, sustained over time, but also a strategic vision of the end result. Although the mchicha (seeds) may be successfully planted, tender plants must be nurtured with perseverance and endurance through setbacks to become fully grown mbuyu. Similar goals apply to the arena of public interest litigation. Ultimately, the objective to which advocates such as Tenga, Ombaka, Ssempebwa and numerous others covered in this book are devoted is achievement of fundamental change in the way people—whether single individuals, members of a distinct community, or the broader legal regime—are treated by the courts. This is the essence of what is most aptly described as “cause lawyering,” an all-embracing term that I use in this chapter to encompass litigation, law, and the lawyers who work on the public interest scene. In a nutshell, cause lawyering is the deployment of legal resources— particularly litigation—to advance progressive social, political, or economic causes with a specific focus on the law. It is the all-inclusive term that encompasses the four pillars of law, litigation, lawyers, and litigants dedicated to the pursuit of matters in the public interest (Sarat & Scheingold 2005). The key question with regard to such litigation is whether it can lead to, or has comprehensively led to, changes in the structures of dominance, exploitation, and marginalization that underpin discrete actions. The cumulative impact of such litigation, we propose, is nothing less than transformation of society as a whole—resulting in more inclusion of those who live on the fringes, deeper respect for individual and community autono-

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my, and an enhanced belief in the efficacy of law as an instrument that can achieve lasting social transformation. To test whether the above changes have indeed taken place or are at least underway in the countries studied, this concluding chapter starts by first looking at the broad profile of structural transformation and its challenges. We examine the links between law and governance at the state level before turning to a consideration of the courts. Next we revisit the role of public interest lawyers in spearheading change, while also looking at the place of the chief government legal officer—the Attorney General— within this scheme. The chapter concludes by considering the impact of cause lawyering on the broader community. However, we cannot leave this study without examining the phenomenon of backlash which has become a prominent feature in response to legal interventions undertaken to advance public interest litigation in the region. What is the cause of this push-back?

The Elephant in the Room: Structural Transformation and its Myriad Challenges The previous chapters of this study have given a broad overview of the way PIL has evolved over the past several years in East Africa. As Karen Kong (2009) has noted, the effective development of public interest litigation requires a robust civil society, skilled lawyers, an adept Judiciary, and activist judges who are “willing to loosen traditional adversarial procedural rules of litigation and allow non-governmental organizations and individuals to bring their controversial public interest issues to the courts” (Kong 2009, 327). All of these elements have been present to some extent in the countries surveyed in this study. But Kong’s statement is also something of a cliché. The more critical question that arises from analysis of the preceding chapters is this: to what extent has public interest litigation fostered structural transformation with respect to the lived experiences of the individuals, groups, and institutions targeted by this kind of intervention? Looking only at civil society, skilled lawyers, and the Judiciary is a little like navel-gazing. Beyond the legal community, what impact is this kind of litigation engendering? Some tentative answers are offered in the following sections, beginning with a look at the State itself (Oloka-Onyango 2015, 805–823).

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Law, Governance and the State in East Africa As ex-colonies that have faced significant challenges in addressing the twin legacies of authoritarian colonial dominance and dysfunctional postindependence regimes, it is understandable that the countries of East Africa have struggled to find appropriately responsive legal systems. As Frederick Schauer points out, such a struggle is not easy: Although the desire to start afresh is a characteristic mode of (winning) revolutionaries, starting legally afresh has rarely occurred. Or, to put it more precisely, even in those societies where there have been revolutionary political, economic, and social changes, the legal changes have often been quite a bit less revolutionary (Schauer 2003, 13).

In the East African context, both Kenya and Uganda illustrate this point, with dramatic histories that accompanied their respective postcolonial development. In the aftermath of the 1986 removal of the military from power in Uganda, President Museveni promised fundamental change, even threatening to overhaul the existing legal regime and judicial apparatus and to replace them with what was described as “popular justice” (Oloka-Onyango 1993). Today, the notion of popular justice in Uganda has more or less disappeared from the political lexicon, while the local government structures that were initially designed to implement such justice have gradually atrophied. State judicial structures have changed little and in some instances have even decayed (Jjuuko 2014). Through all of this, state support for the Judiciary has waxed and waned, allowing relatively free rein especially in the settlement of commercial disputes, but offering only lukewarm support for criminal and constitutional jurisdiction. Free rein on commercial issues aligns with the neo-liberal economic reform policies adopted early in the life of the Museveni government and also helps to create a climate conducive to foreign investment. Moreover, the law and order functions of the Judiciary have their own challenges. The Ugandan government has created specialized units on corruption and international crime, while dabbling with doing the same for terrorism. The Museveni government remains unhappy with reforms it considers not to have gone far enough, berating the Judiciary for granting bail to suspects involved in the commission of serious crimes. The height of the Uganda government’s disdain was manifest in the Black Mamba assault on the court premises to prevent alleged terrorism and treason suspects from going free. In sum, the approach of the Ugandan state has been to prop up those elements of judicial power that support and entrench its economic agenda. In contrast, it has chafed at the exercise of judicial pow-

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er with respect to protection of civil liberties. Consequently, the state has promulgated a whole raft of illiberal legislation, ranging from the Public Order and Management Act to a new law on pornography—with the Antihomosexuality Act (AHA) signed by President Museveni in early 2014 as its crowning anti-liberal achievement (Oloka-Onyango 2014a). Radical surgeries conducted in Kenya under the new constitutional dispensation were designed to transform not simply the degree of access to justice but also its very character. This is apparent right from the preamble and permeates every feature of the constitution’s provisions. The 2010 Constitution marked a deliberate attempt to create a state rooted in respect for basic human rights and democratic constitutionalism. But the critical question is this: how much has the state in Kenya actually changed? Passed during the waning days of the Kibaki government, the constitution’s early operational years have tested both the ties binding the three arms of the State and their grafting onto a new, highly decentralized system. Tensions have been apparent in the extent to which county governments have operated; in the relationships between the new upper house, the senate, and the traditional parliament; and obviously between the Executive, the Legislature, and the Judiciary (Ngirachu 2014, 6; Obala & Njagih 2014, 1). This is the Kenyan story from above, i.e. within the State and its operative entities. From below, new pressures for social transformation have also sought to find expression via the litigation on economic, social, and cultural rights that was reviewed in chapter 5. That pressure is producing some changes in the traditional posture of the State towards issues such as evictions and forced displacement in the name of development. Uhuru Kenyatta’s assault on the new constitution after assuming power in 2013 was not long in coming. This took place on three main fronts, namely, in the unconstitutional use of state coercive power, especially against the Somali community and the wider Muslim population; in increased corruption and fiscal mismanagement; and finally in the blatant executive disregard for various provisions of the instrument, extending even to the practice of “enforced disappearance”4 (Ghai 2014a). The controversial passing of the Security Laws (Amendment) Act,5 designed to address the rise in terrorism-related actions that have hit Kenya in recent years, was a watershed moment. Although eventually overturned by the

4

A term used in human rights law to refer to the practice by a state or political party of secretly abducting or imprisoning a person and then refusing to acknowledge the person’s fate or whereabouts. 5 Act No. 19 of 2014.

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High Court,6 the passing of the law signified a gradual re-emergence of the security state that President Moi had erected in the post-1982 attempted coup era. Indeed, in many respects, security agencies in the country have continued to operate as if the law were actually in force. In Tanzania, meanwhile, it would appear that the complex legacy of socialism, Ujamaa, and the union of Tanganyika and Zanzibar were finally being addressed through the debate on a new constitution. However, the provisions of the draft document on the Judiciary raised many questions as to whether the justice apparatus in the country would undergo significant change. As this book has made evident, the Tanzanian state has always retained an ambivalent position on the Judiciary. Indeed, the transition to ideological acceptance of a multiparty political dispensation has not been matched by acceptance of judicial oversight, as evidenced by the executive’s frequent recourse to new legislation simply overturning court decisions that do not go in its favour. A new Tanzanian government was elected in October 2015. Despite a vigourous challenge by the opposition, CCM won the election. Even the pressure of a significant counterforce to fifty years of CCM dominance did not fundamentally change the relationship between the Executive and the Judiciary. Furthermore, the debate over a new constitution aborted in the run-up to the election, and the new government under President Magufuli has emphatically demonstrated that enacting a new constitution is definitely not one of its priorities. What does the above synopsis of the three East African states tell us? According to Frederick Schaeur, states that have undergone revolutionary change inevitably seek to transform inherited structures of governance, including the Judiciary (Schauer 2003). As ex-colonial countries, each of the three East African states has undertaken varying degrees of reengagement with the existing structures in order to transform them. Success has been limited, with variance in historical experience and the trajectories pursued. And that is not too surprising. As Schaeur points out, “although inclinations towards the wholesale replacement of legal institutions and legal systems plainly exist, it is almost as plain that the manifestations of those inclinations have not transpired” (Schauer 2003). In other words, institutional change in the Judiciary has not matched the degree of change in political, economic, and social institutions in substantially transitioning societies. None of the three countries has succeeded in eradicating the im-

6

See Coalition for Reform and Democracy (CORD), Kenya National Commission on Human Rights (KNCHR), and Samuel Njuguna Ng’ang’a v. Republic of Kenya & The Attorney General, Petition No. 628 of 2014.

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pact and legacy of the colonial Common Law system; it hovers over their legal regimes like a ghost. Against this background, public interest litigation has provided a different and potentially empowering route for effecting legal change and transformation. As is clearly demonstrated by the limited case-sampling of this study, the three East African states are being compelled to do away with retrogressive legislation, reduce the repressive conditions faced by historical minorities, progressively ensure more equitable conditions in gender relations, and increase their respect for the environment. Yet all three governments still exhibit a high degree of executive impunity—they don’t hesitate to shift goal-posts after a court decision has been rendered against them, they often fail to enforce unwelcome judicial pronouncements, and the looming specter of (negative) constitutional amendments in both Kenya and Uganda adds to the overall reality of legislative and executive chafing at any robust assertion of judicial power (Ghai 2014a; Wanyeki 2014). In some cases, the reaction of the State can border on the homicidal, as was witnessed in the Black Mamba assault on the High Court premises in Kampala. In sum, old habits die hard, as exhibited by the casual nonchalance all three governments have often shown towards the issues taken up in most PIL cases. This attitude is evident throughout the judicial process—from initial responses to cases, to delaying tactics during proceedings, to failure to act on court orders that go against government wishes. In all three countries, judiciaries complain of a dearth of resources to effectively execute their mandates, although the Ugandan Judiciary receives only one-tenth, proportionately, of the GDP allotted to the Kenyan courts. Needless to say, control of the purse-strings is used as a mechanism to convey where ultimate power lies. A key element in the success of any public interest litigation is the foundation of information on which a case is constructed. However, access to information (especially that in possession of the State) is often difficult to secure, even where there are laws in place to ensure public access. In the Ugandan case of Charles Mpagi Mwanguhya & Izama Angelo v. AG,7 the court refused to grant an access to information request by two journalists on the grounds that regulations restricted such access. The case concerned Production-Sharing Agreements (PSAs), made between the government and various multi-national companies, on the exploration of Uganda’s oil resources. The two applicants moved under Section 18 of the Access to Information Act to compel the Permanent Secretary to release 7

Miscellaneous Cause No.751 of 2009.

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the information. The Secretary refused, stating that he needed more time in order to consult other government agencies. The Solicitor General meanwhile, acting on behalf of the Attorney General, refused to disclose the agreements, citing a confidentiality clause requiring the third-party consent of the prospecting companies. The applicants sought an order8 setting aside the Solicitor General’s decision and declaring that the public interest in disclosure outweighed any third-party harm.9 They argued that Uganda’s oil was the property of its people, who, for purposes of efficient, accountable, and transparent management, had a right to know how it was being exploited. The Attorney General stuck to his claims of confidentiality. At the magistrate’s court where the matter was heard, the Court determined that the applicants had failed to demonstrate that the public benefit of disclosure outweighed the harm that such disclosure would entail and thus had failed to meet the legal standard of Section 34(b). The Court held that a statement concerning citizens’ rights to participate in government was insufficient to prove the public interest; further the court maintained that the applicants had not revealed how they would have the information published nor how that process would make the government more transparent, accountable, and efficient in the management of oil resources.10 Finally, the Court disagreed with the proposition that whatever a government holds in trust for its people (in this case oil) must always be disclosed.11 Government business is not in its entirety—according to the court—supposed to be in the public domain, as certain documents must be kept secret for the proper functioning of public service.12 As with any other court case, public interest litigation can be lost in the course of argument. Still, appeal is always an option—and indeed in many instances success has only come on the second or third attempt at judicial hearing. The larger problem manifests in fact when a case has been won. Enforcement of successful PIL judgments poses a particular problem, especially when judgments are of a declaratory nature—what happens after a law has been declared unconstitutional? In such cases, legislation is generally not reviewed to conform with the judgments passed, and in worst-case 8

Under Articles 41 and 244 of the 1995 Constitution and Sections 37, 34(b), 41 and 42 of the Access to Information Act. 9 Id., at 2. 10 Id., at 4–5. 11 Id., at 5. 12 Id., at 6. A later case on A2I adopted a different and more progressive position on the issue. See Hub for Investigative Media v. National Forestry Authority, Miscellaneous Cause No. 73 of 2014.

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scenarios—such as with the Public Order and Management Act in Uganda or the eleventh constitutional amendment in Tanzania—the State simply reintroduces the impugned legislation under a different guise. In many instances, court declarations are not followed through with law reform or amendment, which means that the status quo for many actors (police, prison officers, local government officials, etc.) does not change and they persist in the actions that have been outlawed. Despite all of this, there is a need to look beyond case law and the implementation of court decisions. As Siri Gloppen states, we need to consider [the] broader impact of the litigation process on social policy, directly and through influencing public discourses on social rights and the development of jurisprudence nationally and internationally. The systemic impact of public interest litigation is not necessarily directly related to its success in court; the litigation process may also indirectly impact on public discourse and policy (Gloppen 2008, 13).

Viewed from this perspective, there is some hope that the State in East Africa will undergo transformation, gradual though this may be. Even when unacknowledged, the indirect reaction of the State may indicate much more about the impact of a court judgment than an outright declaration of compliance. For example, in the CEHURD (No.1)13 case in Uganda, on the issue of maternal mortality, the Constitutional Court struck out the petition on the grounds of the Political Question Doctrine.14 Nevertheless the government took steps to increase the stock of ambulances and to improve working conditions of staff at district hospitals. Although no mention was made of the court action in these interventions, the coincidence in timing, viewed against previous nonchalance over the matter, demonstrated that the publicity attracted by the case had forced the government into action. In a similar manner, the government called off the plan to “export” doctors, in what was described as the “Brain-Drain” case (Sserunjogi 2015, 4). The response of the Tanzanian government to the suit concerning Prime Minister Pinda’s parliamentary utterances signified that public officials would in future exercise much more care over what they said in public.

13

CEHURD v. Attorney General, Constitutional Petition No.16 of 2011. See also CEHURD & Akiba Uhaki, 2013, at 33–40. 14 Id., judgment of the Constitutional Court, at 25–26.

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Transformative Justice and the Functioning of the Courts of Law The impact of PIL on the courts in countries like South Africa and India has been well documented. In East Africa, critical assessment is just beginning, and the reflections here can only be regarded as preliminary and tentative. While the jury may still be out for deliberation, a number of broad observations can nevertheless be made. First, PIL has definitely impacted not only the corporate character of each country’s judicial institutions but also the positions and outlooks of individual judges. The movement on technicalities reflects the fact that courts are battling to deliver justice as opposed to simply rendering the same stale letter of the law. While it is still too early to celebrate the death and burial of legal technicalities, there is no doubt that in the jurisprudence of Constitutional Law they have been severely crippled. Court judgments are full of allusions to the unique nature of such litigation and the need for courts to adopt a different approach to cases of this kind. Many courts now urge lawyers to get on with the substance of the matter and desist from dwelling on technicalities. In some individual judgments, one sees members of the Bench who are impatient with the status quo and urge change in every sentence of their opinions. Others are content to go with the flow. There are also consistent resisters, steeped in the jurisprudence of their law school learning or so enamoured of British judicial custom and Common Law tradition as to be incapable of engaging with fresh ideas. Finally, East Africa’s courts have their fair share of judges lacking in courage, competence, or simple empathy. A full judicial appreciation of PIL’s relevance and nature is yet to be realized, even among members of the Bench who are intellectually sound, willing to learn, and willing to make progressive and even path-breaking judgments. During the several meetings with members of the Judiciary that I facilitated during the course of research for this book, judges frequently expressed surprise at the nuances of this area of the Law, decrying both the lack of training on its complexities and the dearth of information and jurisprudence exchange among the higher courts. A reading of judgments demonstrates that, while courts may be willing to push the boundaries of legal application, many still feel constrained by the black letter of the Law. This is one explanation for the lack of movement on economic, social, and cultural rights with respect to the courts in Tanzania and Uganda.

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However, changes in the law do not guarantee that judicial attitudes will in fact be transformed. Getting transformation underway in the Judiciary is no overnight thing. For example, Orwa claims that even within Kenya’s “new” post-2010 Bench, which was quite brutally sieved through public scrutiny of credentials and integrity and charged with oversight of a Constitution replete with justiciable economic, social, and cultural rights, “a culture of cynicism, conservatism, and deference to the decisions of the executive organs of government” still persists (Arwa 2013, 427). Hence, in the jurisprudence we see the re-emergence of doctrines that would appear to have been long dead and buried (Dennison 2012)—such as the award of costs against petitioners in PIL cases when none should have been made, and a degree of impatience and exasperation against persistent PIL litigators. There are even some indications of bias or moral turpitude (Mutunga 2013, 2). But PIL cases also reflect certain distinctions from other types of litigation, and it is important not to lose sight of these. First, such cases generally require far more time to litigate and can thus suffer from failing litigant support (petitioner fatigue). Some cases are also confronted by what can only be described as judicial stalling over contentious matters,15 delays in rendering judgments, and implicit prioritization of certain cases over others. In Uganda, despite a large backload of undecided cases filed years ago and awaiting court interpretation, highly sensitive political cases seem to routinely leap-frog the queue.16 Helen Kijo-Bisimba (2014) pointed out that Tanzanian Prime Minister Pinda’s case appeared to have been adjudicated on a fast track, being heard within a matter of months, as compared to a case brought by Mwanahalisi Publishers challenging the draconian Newspaper Act of 1976, which has taken over five years without being concluded (Kijo-Bisimba 2014, 6.). A review of concluded PIL cases demonstrates that they run the risk of being hijacked and ultimately distorted; sometimes the courts themselves, through a misreading of the actual intent of the litigation, may give a judgment that only advances the struggle halfway or even sets it back.17 15

See, e.g., Jjuuko Adrian v. AG, Constitutional Petition No. 1 of 2009, challenging certain provisions of the Act establishing the Equal Opportunities Commission, which took seven years to be decided. 16 See, e.g., Severino Twinobusingye v. AG, Constitutional Petition No. 47 of 2011 (involving censorship of the Prime Minister); Saleh Kamba, Agasha Maryam & NRM. v. The AG & 4 others, Constitutional Petition No. 16 of 2013 (the case of the so-called NRM ‘Rebel MPs’), and Prof J. Oloka-Onyango & 9 Others v. AG, Constitutional Petition No. 8 of 2014 (challenging the Anti-Homosexuality Act). 17 See, e.g., Mifumi v. AG, Constitutional Petition No. 12 of 2007.

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While such misreadings may be accidental, the absence of a clear ideological framework within which to work can easily lead to such errors. Indeed, only the post-2010 Kenyan Judiciary has explicitly articulated a concrete description of its corporate ideological position—that of transformative constitutionalism á la the South African model—although there are certainly still differences in perception and interpretation over what exactly that means (Klare 1998, 150). With the exception of cases concerning the environment—which lie in a special category of rights—litigation over economic, social, and cultural rights (ESCRs) is still very new, with Kenya taking the lead in this area. However, such litigation is problematic and unclear in Uganda18 and Tanzania. The predominance of civil and political rights (CPRs) cases reflects the familiarity of lawyers with this genre, but it also suggests some skepticism that the courts will embrace ESCR litigation with any degree of enthusiasm. At the same time, although ESCR cases are on the increase, they appear disconnected from civil and political rights. In other words, there is no reflection on the interconnectedness, interdependence, and mutual relationships among all categories of rights. The point cannot be overemphasized that, like their civil and political rights counterparts, ESCRs are essentially concerned with issues of good governance and sound political order. Failure to see these links was apparent in the Kenyan case of Kabui Mwai, reviewed in chapter 5.19 Failing to appreciate the link between categories of rights, as the Mwai court evidently did, is basically a failure to see “the forest for the trees” and ultimately will stunt the growth of this area of jurisprudence. Courts in East Africa need to look at the manner in which progressive judgments on such issues have been made in other judicial forums. As Frans Viljoen pointed out regarding the Endorois case, the African Commission “found a violation of [the right to development], highlighting the added benefit of the right…in serving as a bridge between socio-economic and ‘civil and political’ rights” (paragraphs 277–278, and Viljoen 2013). The Endorois 18

See CEHURD v. AG, Constitutional Petition No. 16 of 2011; see also Sharon Dimanche v. AG Constitutional Petition No.1 of 2003. 19 See John Kabui Mwai and 3 Others v. Kenya National Examination Council and 2 Others. According to Arwa, the Constitutional Court appears to be making three fundamental pronouncements on the process of developing this kind of jurisprudence: 1) don’t focus on individual rights but on the impact of a decision for all citizens; 2) available resources are inadequate to facilitate the immediate provision of socio-economic goods and services; and 3) the adjudication of socio-economic conflicts should more appropriately be left to the Executive and the Legislature (Arwa 2013, at 128).

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case held that there had been a violation of the right in relation to both the substantive outcome of a development project undertaken by the Kenyan government and in the failure to consult with (or obtain informed consent from) the affected community prior to implementation of the programme. Aside from issues internal to the judicial institution itself, PIL brings into bold relief the tensions among separate branches of power when the Judiciary is called upon, as it has been under the new East African constitutions, to become an activist Bench. The question of balance has always been an issue (Kanyeihamba 2010): exactly how far can judges go (Isanga 2009)? At one extreme is the Mutunga doctrine, which basically stipulates no (or minimal) limits to the exercise of judicial power. In a summation of his views on the remit of the Kenyan courts under the 2010 constitution, then Chief Justice Mutunga stated: Let me remind you that our Constitution specifically mandates public interest litigation. Our appointment process is precisely designed to give us independence [from] the executive and the legislature so that we can if necessary “force other institutions of governance to do what they are supposed to do.” We can only pray that we have the moral stature, the legal skills and the courage to do what we are directed to do (Mutunga 2013, 20).

However, in the 2013 Kenyan presidential election petition, the Supreme Court en banc was more cautious about the extent of its supervisory power. When called upon to exercise judicial restraint in considering whether or not to nullify the process,20 they responded: Without as yet deciding the main question in the contest, we express the opinion that, in the special circumstances of this case, an insightful judicial approach is essential. There may be an unlimited number of ways in which such an approach is to guide the Court. But the fundamental one, in our opinion, is fidelity to the terms of the Constitution, and of such other law as objectively reflects the intent and purpose of the Constitution.21

Fear of clashing with the executive is an underlying and ever-present concern in many PIL cases. This explains the re-emergence of the political question doctrine in the CEHURD case in Uganda, reviewed in chapter 3. Despite the surprise expressed by activists and some scholars over its reemergence in a maternal health care case, the doctrine has a long pedigree

20

See Raila Odinga v. Independent Electoral Commission and 3 others, (Petition No.5 of 2013) at para. 219–30, at 81–84. 21 Id., paragraph 230.

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reaching back to ex parte Matovu. It was more recently reiterated by Justice Kanyeihamba in Tinyefuza. The rule appears to be that courts have no jurisdiction over matters which arise within the constitution and legal powers of the Legislature or the Executive. Even in cases where courts feel obliged to intervene and review legislative measures of the legislature and administrative decisions of the executive when challenged on the grounds that the rights or freedoms of the Individuals are clearly infringed or threatened, they do so sparingly and with the greatest reluctance.22 23

Although largely accepted and repeated ad nauseum by courts throughout East Africa,24 this reading of the position is simply wrong. This is the “ghost,” dissected and examined in chapter 3—the dark side of the infamous ex parte Matovu, which sanctioned extralegal usurpation of power and privileged executive power and military force over all else, effectively denigrating and obliterating checks and balances. Despite enactment of a new constitution and the attempt to put an end to extralegal or undemocratic modes of governance, the ghost still finds expression in Uganda’s contemporary jurisprudence. For example, in the case of Miria Matembe & 3 Others v. AG, the Constitutional Court declined to intervene during enactment of a bill, citing concerns that intervention at that time would have been premature and an unjustifiable invasion of parliamentary sovereignty. The one dissenting voice—that of Justice Alice Mpagi-Bahegeine—offered an illuminating take on the issue. Justice Mpagi argued that the courts could conceivably intervene even at such an early stage.25 Citing Kanyeihamba but offering a different take on the issue, the learned judge stated:

22

Judgment of Justice Kanyeihamba in Tinyefuza, 1998, at 13. To paraphrase the quote: Courts have no jurisdiction over matters that fall within the powers of the legislative and executive branches. Even in cases where courts feel obliged to intervene—to review legislative measures or administrative decisions on the grounds that individual freedoms are clearly threatened or infringed— they must do so sparingly and with reluctance. 24 For example, see the Constitutional Court decision in Brigadier Henry Tumukunde v. Attorney General and Electoral Commission, Constitutional Petition No. 6 of 2005. See also the judgment in the Mizengo Pinda case in Tanzania. 25 Other jurisdictions have dealt with the same issue. For example, the South African case of Doctors for Life 2006 (6) SA 416 asked whether it was competent for the Constitutional Court to issue declaratory relief in respect of parliamentary proceedings before Parliament had concluded its deliberations on a bill. The Court gave a fairly circumscribed answer. 23

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In this regard…I would have no hesitation in rejecting [Kanyeihamba’s] submission that this court is intent on prohibiting Parliament from executing its constitutional functions. It is well established that the constitutional platform is to be shared between the three institutional organs of Government—Parliament, the Executive, and the Judiciary in that order, though each has its own field of operation and exercises its powers independently. This court is acutely aware that it should refrain from trespassing into areas not demarcated for it by the Constitution and should only intervene in the clearest of cases calling for intervention to determine the constitutionality or legality of an action, where agents of Government have exceeded their powers or acted unjustly.26

The dissent emphasized the crucial role of the Judiciary in protecting the Constitution under a Constitutional Republican system. Ultimately, this latter position is a more fulsome reading of the role of courts in tackling executive excess, legislative caprice, and community intemperance. Indeed, this is precisely what all three countries’ exercises in “postliberation” reform and amendment were designed to do. Judicial intervention cannot be reserved for clear infringements or concrete threats to rights and freedoms, but must apply more broadly to situations exhibiting an excessive exercise of power. While the most important function of courts is to deliver justice, there are other issues that emerge within an institution that is part of the State and also has time-honoured traditions to uphold. Change is difficult to achieve. In a speech reflecting on two years in office, then Chief Justice Mutunga (Kenya) alluded to persistent problems not only within the institution but more importantly within the structural conditions under which it operates (Mutunga 2014). Drawing inspiration from the South African experiment (Sachs, supra., xi-xii), attempts to introduce changes in cultural traditions such as the attire of the judges (wigs/no wigs), the language of the court (“Judge” or “Justice” replacing “My Lord”), and the stripping down of many time-honoured hierarchies and histories within and outside the institution have been only partially successful. Mutunga reflects on the serious challenges he faced over things as seemingly mundane as the drinking of tea within the Judiciary (Mutunga 2015). As a reflection of the resilience of tradition, when a new Chief Justice replaced Mutunga, the wigs and gowns were restored. In reviewing the East African experience of courts and public interest litigation, it is tempting to make comparisons to countries such as India and South Africa, which have made great strides under conditions that are not dissimilar to those of our own region. But the differences cannot be 26

See dissenting judgment of Mpagi-Bahegaine, accessed on September 1, 2014.

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glossed over. India has never had a coup d’etat or paramilitary forces raid its high court premises, nor has a Chief Justice ever been abducted from his chambers in broad daylight and murdered in cold blood, as happened in Uganda. The Indian courts have enjoyed much more independence than their East African counterparts have experienced even in the best of times. Similarly, South African courts are free to operate as they currently do because of the end of apartheid and because the ANC government is loath to be associated with such an abject historical disaster. Because of their unique history, East African courts must be rigorous and exacting when dealing with executive and legislative excess in order to underscore the point that such actions will never again be countenanced. The old Latin expression inter armes leges silent (in the midst of arms the law is silent) applies here. The law in East Africa is truly in danger of falling silent unless the courts are diligent and bold.27

Public Interest Lawyers, Spirited Litigants, and the Office of the Attorney General Although a great deal of operational capacity has been created in public interest litigation across East Africa, there is still a surprising paucity of specialized PIL lawyers in the region. That limitation is coupled with a lack of technical expertise even among the top ranks of the profession. Many have never done an academic or practical course in PIL and have instead simply learned on the job. Thus in the case of The Center for Health, Human Rights and Development (CEHURD No. 2) and others v. Nakaseke District Local Administration,28 the judge berated the plaintiff’s lawyer for having been sloppy in both his pleadings and in arguing the case. After reviewing the manner in which the pleadings could have been improved, the court stated that counsel for the plaintiff had exhibited very poor advocacy skills and that “[in] a number of instances, in the conduct of this case, counsel for the plaintiff apologized to the court for not being prepared to discharge his responsibilities to his clients and to the court.”29 Given that the lawyer in question had already had several years experience with PIL, this is a matter of serious concern. With the exception of Makerere University, which recently set up a center exclusively devoted to PIL, none of the many law schools among 27

Inspiration in this respect could be taken from the Pakistani case of Asma Jilani v. Government of Punjab, [PLD 1972 SC 139]. 28 Civil Suit No. 111 of 2012. 29 Id., 18–19.

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the region’s several universities teaches public interest law.30 While a good number of law schools run legal aid clinics, most of them—with the exception of the Legal and Human Rights Centre (LHRC) at Dar es Salaam—do not take on public interest cases, preferring instead to focus on traditional legal aid dealing with individual concerns as opposed to broad legal transformation. The general scarcity of public interest lawyers in the region has led to monopolization of the field by a handful of prima donna types. Paradoxically, as PIL grows in scope and prominence, it will doubtless attract more actors—and not all will be genuinely altruistic. Indeed, the growth of successful PIL interventions may lead to law and NGO careerists bringing such cases in search of self-aggrandizement or simply to make a quick buck. As Upendra Baxi states, for many lawyers, the ideological questions are a distant second to the more material benefits that may come from a case: “[e]minent ‘public interest’ lawyers see no role conflict in appearing one day vigourously arguing for transparency in governance and the next day in indulging in spectacular forensic displays aimed at the protection of the rights of people in high places charged with corruption” (Baxi 2009, 159). PIL lawyers in East Africa are often very busy, very complicated, very expensive, and very elusive. A few have filed petitions to appropriate PIL for corporate gain, political advantage, or personal benefit. Frivolous and vexatious suits—some of them masquerading as PIL, but essentially feeding egos and retrogressive agendas— threaten to stifle the innovation and enthusiasm of this most powerful instrument of legal change. In some instances, while a petition may raise issues of general concern, it may be filed in the wrong forum and with obscure intention. For example, the Constitutional Court in Uganda dismissed the case of Jude Mbabaali v. AG31 as being a disguised election issue that should have followed usual procedure for such matters rather than being directed to a court devoted solely to Constitutional interpretation. In the words of Justice Eldad Mwangusya, the case was: An Electoral Petition disguised as a Constitutional Petition. . . . This Court should not be turned into a Court for hearing cases where it is merely required to make findings of fact and legal positions that are obvious and straightforward as opposed to those that require constitutional interpretation. This Court should not condone the practice of litigants jumping from

30

The Public Interest Law Clinic was established at Makerere University in 2012. Judgment of Justice Eldad Mwangusya in Mbabali Jude v. Edward Kiwanuka Ssekandi, Constitutional Petition No. 0028 of 2012 at 13 [2014] UGCC 15. 31

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courts with jurisdiction…to seek relief in the Constitutional Court, whose jurisdiction…is limited.32

The lawyer in this case may be excused. However, a growing area of disguised PIL cases has emerged from public officials charged with criminal offences related to administrative vice, abuse of office, and corruption. The ploy is to claim that some aspect of the prosecution—or the totality of the proceedings—raises matters of a constitutional nature, thereby necessitating interpretation and delaying or even derailing the criminal trial. Cases may be submitted for interpretation even on the flimsiest of matters in a bid to secure reprieve from the criminal process. And yet, such cases cannot simply be dismissed out of hand, because in the final analysis they may raise serious human rights and Constitutional Law questions that can only be resolved after full adjudication. Often, a finding of frivolity or obfuscation can be made only after both sides have been heard. Despite several cases filed to address women’s human rights issues, the number of women lawyers engaged in public interest litigation remains miniscule. This partly reflects the fact that the profession as a whole is still largely dominated by men. While the number of women who begin law school is growing—in some cases even exceeding the number of men— those who go on to become qualified law practitiouners represent a vastly smaller group than those at entry. The arena of public interest litigation, like the profession as a whole, is in need of engendering. Finally, there is the disturbing issue of lawyer’s costs or fees in PIL cases. The traditional view is that they follow the cause—in other words, the winning party will receive litigation costs. However, most courts decline to award costs in public interest litigation because they correctly recognize that there is no personal benefit or direct injury involved. Some commentators have argued that this practice acts as a disincentive to bringing such cases, which often require significant outlays in terms of both direct (hiring skilled lawyers) and indirect (researching the issues) costs. The concern is that, as the profession grows, few lawyers will remain willing to take on these typically pro bono cases. That position is debatable; there will always be public-spirited individuals, including lawyers, ready to challenge injustice whenever and wherever they see it. However, two troubling developments have recently emerged. First, the court occasionally awards unreasonably high costs to petitioner’s counsel, raising serious questions about the court’s integrity—not to mention the motives of the petitioner and counsel in filing the case. For example, in Twinobusingye Severino v. The Attorney Genera, (Okuda 2014), an 32

Id.

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important case seeking interpretation from the Ugandan Constitutional Court on Parliamentary powers to pass a vote of censure against the Prime Minister and Cabinet, the petitioner was awarded 13 billion Uganda shillings—the equivalent at current rates of U.S. $5 million! (Kakaire 2014). 33 To make matters worse, the award in this case was then used as a benchmark for subsequent public interest petitions. In the petition against the Anti-homosexuality Act, lawyers reportedly argued that given the extensive research involved and the large number of petitioners in the case, they anticipated an award equal to or greater than what had been assessed in the Twinobusingye decision. Such a preposterous position makes sport of the facts and the law. In a petition on constitutional interpretation, costs are not awarded to individual petitioners unless they have suffered personal injury—a condition clearly absent from Twinobusingye. Secondly, although the case that challenged the Anti-homosexuality Act raised a great deal of public concern—both domestically and internationally—the matters at issue did not involve extraordinary research compared to other public interest cases. Developments such as the above should be cause for serious concern. As aptly stated by Justice A.S. Anand of India, “[c]are has to be taken to see that PIL essentially remains public interest litigation and is not allowed to degenerate into becoming political interest litigation or private inquisitiveness litigation” (Anand 2001). In such a context, even subversive or unusual attempts to achieve social justice goals by means of law should be welcomed and encouraged. For example, Uganda’s “Barefoot” lawyers (Ward 2014) is a grassroots organization that gives legal aid and assistance to indigent clients by means of mobile phone technology and social media such as Facebook and Skype. Perhaps this model could be extended to the arena of Public Interest Litigation. A second disturbing issue concerns costs awarded against the PIL petitioners, who are usually human rights groups. For example, in the Kenyan case of International Centre for Policy Conflict & 5 Others v. The Attorney General & 5 Others,34 the court held as follows: Costs follow the event, and are also at the discretion of the court. The Petitions that have been brought were on a matter of public interest. However, the Respondents have had to defend several petitions, and we hold they are entitled to costs. We award the first, second, third, and fourth Respondents costs of the Petitions brought against them to be paid by the first, second, third, fifth, and sixth Petitioners, jointly and severally. We also award the 33

Twinobusingye Severino v. The Attorney General, Constitutional Petition No. 47 of 2011. 34 Petition 552 of 2012 [2013] eKLR 169.

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Given that the petitioners in this case were a group of human rights NGOs challenging the Uhuru/Ruto presidential elections ticket in 2013, the award of costs against them is difficult to justify. A Tanzanian court’s order against the Legal and Human Rights Centre and two others in the Dowans case (Kijo-Bisimba 2014) was an even greater travesty. Costs were awarded against the petitioners as if to punish them, even though the case was dismissed on a preliminary objection and never reached consideration of the merits. Such punitive measures serve as a disincentive to the bringing of public interest cases, as nobody—particularly civil society groups that generally do not have large resources—would be willing to risk such a loss. Of course, a court may refuse to award costs to the petitioners in order to punish counsel for unprofessional conduct. In a petition by Ugandan MP Gerald Karuhanga over the issue of re-appointing Benjamin Odoki as Chief Justice, Justice Remmy Kasule observed: “on the issue of costs, I have already expressed my disapproval of the conduct of the Petitioner and the team of his lawyers, who walked away from Court just because they did not agree with the decision of the Court to proceed with the hearing of the petition. I [therefore] refuse to award any costs to the Petitioner and his team of lawyers.”36 Overall, much work remains to be done if we are to achieve improved conditions and establish best practices in public interest litigation. This will involve the reform of Law School curricula, more interaction and exchange among lawyers who have prosecuted such cases, and the mentoring of those new to the field. Law schools also need to begin designing and teaching PIL as a component of their curricula in a bid to expand the pool of lawyers who have both the interest in and the capacity to take on cases of this nature. Postgraduate legal training should likewise be reformed so that different cadres of the legal profession will begin to internalize the specie. However, every law case has at least two distinct sides. In public interest cases, the petitioner is seeking redress for a human rights violation or interpretation of a constitutional provision with which he or she does not agree. On the other side of the petition is the respondent, against whom the claim is being made. In the vast majority of public interest cases, the re35

Id., para. 169. See Hon. Gerald Kafureeka Karuhanga v. Attorney General, Constitutional Petition No 0039 of 2013, [2014]. 36

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spondent is the State, who must by law be represented by a specific legal officer—known in all three East African countries as the Attorney General. How has this office played its role where it is ironically positioned to oppose protection of the public interest?

Caught between Politics and the Law: East Africa’s Attorneys General Andrew John Chenge was more feared and loathed than he was respected, which is quite an achievement in a country like Tanzania where a premium is placed on amiability. By contrast, Mwalimu Nyerere, though generally well known for his uncompromising and principled positions— and even for harshness where he felt it was warranted—was much loved for his humility and down-to-earth humour. But then, Chenge was a lawyer and also—from 1993 to 2005—the Attorney General of the United Republic of Tanzania. Chenge is thus part of a cast of colourful, powerful, and largely disliked characters who have played significant roles in directing the winds of legal change—or in closing the door on change to achieve stagnation—in East Africa. Among the most outstanding were Charles Muigai Njonjo, Attorney General of Kenya from independence until the late-1980s; and Godfrey Lukongwa Binaisa, Queens Counsel (QC), who occupied a similar position in Uganda. Binaisa drafted the infamous 1966 “pigeon-hole” constitution, resigned from his position in 1967, and then went on to lead the country as president for eleven months between 1979 and 1980, becoming the first and only person in East African history to have held both offices. Indeed, Binaisa is the only lawyer to have ever become president in the post-independence history of the region. Aside from the presidency, few public offices in East Africa are as much in the spotlight as is the office of Attorney General (the “AG,” or “OAG” in Kenya) (Musila 2007, 4). This is primarily because the AG is the principal legal advisor to the government, operating at the interface of law, policy, and judicial power—an arena rife with tension, drama, and often outright controversy. The AG’s office performs two basic functions—legislation and litigation—the former being the translation of government policy into law (from legislative bill to Act of Parliament), while the latter consists of representing the government in court, in cases both for and against the state. Kenya alone had for a time an added level of controversy in that its Attorney General’s office also held the function of criminal prosecution.37 37

The two offices were separated in the 2010 Constitution.

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Table 7.1 shows the tenure in office of those who have served in this capacity in each of the three countries: KENYA (1963 to 2016) Name Tenure 1. Charles Njonjo

1963–1980

Legal Practice

2. James Karugu 3. Joseph Kamere 4. Matthew Guy Muli 5. Amos Wako 6. Githu Muigai

1980–1981 1981–1983 1983–1991

Legal Practice Legal Practice High Court judge

Presidency and Period in Office Jomo Kenyatta (15) 38 Moi (2) Moi (1) Moi (2) Moi (8)

1991–2011 Incumbent

Legal Practice Legal Practice/ Academic

Moi (11)/Kibaki (9) Kibaki (2)/Uhuru Kenyatta (4)

Legal Draftsman

Colonial Government/Nyerere (3) Nyerere (2) Nyerere (11)

TANZANIA (1961 to 2016) 1. J. S. R. Cole 1961–1964 2. Roland Brown 3. Mark Bomani

1964–1965 1965–1976

4. Joseph Sinde Warioba 5. Damian Lubuva 6. Andrew John Chenge 7. Johnson Mwanyika 8. Frederick Werema 9. George Masaju

38

Origins

1976–1985

AG Chambers Civil Servant— SA39 Civil Servant —SA

Nyerere (9)

1985–1993 1993–2005

Civil Servant —SA Civil Servant —SA

Nyerere (1)/Mwinyi (8) Mwinyi (2)/Mkapa (9)

2005–2009

Private Sector

Mkapa (1)/Kikwete (3)

2009–2014

High Court Judge

Kikwete (5)

Incumbent

Bureaucrat—SA

Kikwete (1)/Magufuli (1)

Figures in brackets represent total years in service, unless specified as days or months. 39 “SA” stands for “State Attorney,” a senior official in the Attorney General’s Chambers.

Fostering Structural Transformation through Cause Lawyering UGANDA (1962 to 2016) 1. Godfrey Lu1962–1967 kongwa Binaisa 2. Lameck Lubowa 1967–1971 3. Peter James 1971–1974 Nkambo Mugerwa 4. Godfrey Lule 1974–1977 5. Mathias Bazitya 1977–1979 Matovu 6. George William 1979 Kanyeihamba 7. Steven Omoding 1979–1985 Ariko 8. Sam Kahamba Kuteesa 9. Joseph Nyamihana Mulenga 10. George William Kanyeihamba 11. Abubaker Kakyama Mayanja 12. Joseph Kalias Ekemu 13. Bart Katureebe 14. Francis Ayume 15. John Patrick Amama Mbabazi 16. Edward Khiddu Makubuya 17. Peter Nyombi 18. Fred Ruhindi 19. William Byaruhanga

Politician—UPC

Obote-1 (5)

Politician—UPC Civil Servant— SG40

Obote-1 (4) Amin (3)

Civil Servant —SG Civil Servant —SG

Amin (3) Amin (2)

PoliticianUNLF/Academic Politician—UPC

Lule (68 days) Binaisa (11 mths)/ Muwanga(8 mths)/ Obote-2 (4) Okello-Lutwa (6 months)

1985–1986

Politician—DP

1986–1988

Museveni (3)

1991–1994

Politician— DP/NRM Politician— NRM/Academic Politician—NRM

1994–1996

Politician—NRM

Museveni (2)

1996–2001 2001–2004 2004–2005

Politician—NRM Politician—NRM Politician—NRM

Museveni (5) Museveni (3) Museveni (1)

2005–2011

Politician—NRM

Museveni (6)

2011–2015 2015–2016 Incumbent

Politician—NRM Politician—NRM Legal Practice

Museveni (4) Museveni (1) Museveni

1988–1991

281

Museveni (2)

Museveni (3)

Table 7.1. Attorneys General Of Kenya, Tanzania, and Uganda (1961– 2016) Sources: Ghai, 2014b; Wikipedia; news reports (1961–present); and author research. 40

“SG” stands for “Solicitor General,” the second-highest official in the Attorney General’s Chambers, who also acts as the Permanent Secretary.

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One could make a fascinating analysis of the data in the above table. At a minimum, it reflects the different trajectories of political history that the three countries have undergone since independence, not to mention the highly gendered profile of the office. It is quite astonishing that never since independence has there been a female AG in any of the three countries.41 For the purposes of the present analysis, the primary question is fairly straightforward: What is the proper function of the office of the Attorney General with relation to public interest litigation? Although it does not figure in any of the East African independence constitutions, traditionally the AG is supposed to be the legal custodian of the public interest and to protect it against violation.42 Thus, according to Mauro Cappelletti, the duty of the AG is to “promote the interests of all sections of the community and to prevent the wrongdoing of one, resulting in injury of the general welfare” (Cappelleti 1989, 288). In a similar fashion many Commonwealth jurisdictions recognize the AG as representing the parens patriae, the Latin word for “parent of the nation” (Thio 1971, 6–7).43 Taking up the original interpretation of the role of the office, S.M. Thio states, The AG is the legal representative of the Crown, and he is invested with the dual functions of protecting and enforcing the interests of the Crown qua sovereign as well as its interests qua parens patriae. In the exercise of his latter function, the AG acts as the representative of the public, and his standing to invoke the aid of the courts in this capacity is limited to the protection of the public rights or interests as opposed to matters of a private character (Thio 1971, 133–134).

The above quotation reflects an understanding that the function of parens patriae is imbued with a certain degree of paternalism. In a monarchy or a dictatorship this is perhaps appropriate, but not in a democracy. A more appropriate interpretation would be that of a protective body, performing a good faith oversight function of the public interest, defined in 41

The closest that a woman has come to the office has been in instances where women were appointed to head the ministries of justice and constitutional affairs— in Kenya the powerful Martha Karua during President Kibaki’s first term in office; and in Uganda the Hon. Janat Mukwaya. 42 According to Musila, the public interest dimension of the office is found in the fact that the Attorney General is “an anticorruption campaigner, consumer advocate, public trustee, [and] human rights defender rolled into one” (Musila 2007, 26). 43 Originally, the parens patriae function imputed the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker and to act as the parent of any child in need of protection.

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terms of the basic principles outlined in the Constitution (Musila 2007, 25). The idea of the Attorney General acting as parens patriae meshes with the goals of public interest litigation insofar as it is supposed to be cooperative and not antagonistic. The Attorney General’s office requires examination for several other reasons. First, the AG is the government’s chief legal representative and thus is usually placed at the front line in defense of Constitutional and human rights litigation petitions.44 Second, the Attorney General is the only person in the Cabinet appointed specifically for the professional function he or she is meant to perform. Indeed, in all three East African constitutions, the office of Attorney General is the only cabinet position that merits some degree of description. Article 119 of the 1995 Uganda Constitution stipulates as follows: Attorney General 1. There shall be an Attorney General who shall be a Cabinet Minister appointed by the President with the approval of Parliament. 2. A person shall not be qualified to be appointed Attorney General unless he or she is qualified to practice as an advocate of the High Court and has so practised or gained the necessary experience for not less than ten years. 3. The Attorney General shall be the principal legal adviser of the Government. 4. The functions of the Attorney General shall include the following: a. to give legal advice and legal services to the Government on any subject; b. to draw and peruse agreements, contracts, treaties, conventions, and documents by whatever name called, to which the Government is a party or in respect of which the Government has an interest; c. to represent the Government in courts or any other legal proceedings to which the Government is a party; and d. to perform such other functions as may be assigned to him or her by the President or by law.

44

As Waris points out, “The role of chief law officer might be referred to as the Attorney General’s overall responsibility as the independent legal advisor to the Cabinet and possibly the Legislature. The importance of the independence of the role is thus fundamental to the position and well established in Common Law, the Constitution and tradition. As chief law officer, the AG has a special responsibility to be the guardian of that most elusive concept—the rule of law. It is the rule of law that protects individuals, and society as a whole, from arbitrary measures and safeguards personal liberties” (Waris 2005, 77).

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The office of Attorney General, then, has a mission beyond formulation of policy and is the only cabinet position for which technical qualifications are given as a prerequisite for holding the office.45 While a lawyer who knows nothing about medicine or engineering can head the Ministry of Health or Infrastructure, an engineer or a doctor—however highly trained in their respective professions—cannot be appointed AG. The office of the Attorney General has to be occupied by a lawyer with a certain degree of experience and standing. Given that the primary purpose of the office is to give technical or legal advice, by nature the office itself should afford the AG a certain degree of insulation from the “waft and wave” of political pressures. Like the Auditor General, the Attorney General is expected to give professional advice and expects such advice to be taken professionally. However, unlike most Auditors General, many Attorneys General double as politicians and are usually either very strong in the ruling party or closely linked to the president.46 Thus, even when attempts have been made to insulate the office from political pressures, there is little to guarantee that the Attorney General will be able to operate with the necessary independence of mind.47 45

See Article 59(2) and 109(8) of the Constitution of Tanzania and Article 156(3) of the 2010 Constitution of Kenya, which provides that the qualifications for the holder of the AG office shall be the same as those for the Chief Justice. These are found in Article 166(3): “The Chief Justice and other judges of the Supreme Court shall be appointed from among persons who have—(a) at least fifteen years experience as a superior court judge; or (b) at least fifteen years’ experience as a distinguished academic, judicial officer, legal practitioner, or such experience in other relevant legal field; or (c) held the qualifications mentioned in paragraphs (a) and (b) for a period amounting, in the aggregate, to fifteen years.” 46 As Table 7.1 demonstrates, virtually all of Uganda’s Attorneys General since 1986—with the exception of the incumbent—have been MPs from the ruling NRM. Githu Muigai—the current AG in Kenya—is not a politician but was close to former president Mwai Kibaki and was appointed as part of a compromise deal. On the case of Githu, see Sihanya 2012, 15. Tanzania appears to have favoured more of the technical versus the political types as occupants of the office, although the extent of their independence from political influence is debatable. 47 Questions have been raised as to whether it is even possible to serve in such a position and yet maintain strict respect for the Law irrespective of your relationship to the ruling Executive. As per Musila, “Lamentably, the history of the three countries is littered with inexplicable decisions of a legal nature that have plunged them into deep indebtedness, [and] perpetrated the scourge of corruption and abuse of human rights” (Musila 2007, 28). Musila also argues that if the AG were sensitive to the country’s international obligations, the many laws enacted by parliament would not have been found in violation of those obligations or of the Constitution. (Id., 29).

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More often than not the AG dances to the president’s tune. The reasons for this can be retraced both to history and to the nature of the office (Ghai 2014b). Of the three countries, Kenya has had the most experience with attempting to insulate the Attorney General from political pressure. But its approach to the problem has been inconsistent, partly because for a long time—indeed until enactment of the 2010 Constitution—the office combined the function of criminal prosecutor with that of government’s chief advisor on all matters of a civil nature (Waris 2005). Tension between the technical and political roles of the office have also affected its development. Because of this duality, the independence constitution of Kenya (through its various revisions) has referred to the Attorney General’s office in two sections: in Chapter II, on The Executive and “Executive Powers” (26); and in Chapter VIII (109), concerned with the Public Service.48 In the latter section, provisions relating to the AG were joined together with those on the Commissioner of Police and the Controller/Auditor General, underlining the dual positions in which the holder of the office was placed. The specialized function of the office was also reflected in the security of tenure it enjoyed, equivalent to that of a High Court judge.49 No other Cabinet office was conferred with a similar degree of protection. Conspicuously missing from the list of AG office functions—though one might say that this was implicit in the very functions of the office— was reference to the public interest (Musila (2007, 24–27). To understand why, it is important to first appreciate the historical position of the office vis á vis this particular form of litigation. According to Michael Kirby, the place of the English Attorney General with respect to PIL was linked to the issue of locus standi: “In the nineteenth century one important context in which issues of standing arose concerned the use and misuse of charitable trusts. Many such trusts were designed for public purposes and not simply for the advancement of the proprietary interests of those who controlled the trust fund” (Kirby 2011, 537). Courts in England thus were called upon to decide whether municipal corporations acting as administrators of such trusts had misapplied those funds, using them in a manner contrary to the public purposes intended. In this context, courts began to accept the Attorney General’s role as a representative of the community; the AG could bring application for an injunction or restraining order on the

48

See Laws of Kenya, The Constitution of Kenya Revised Edition (1998, 1992), Government Printer, Nairobi. 49 See sections 109(4) to (8) of the 1998 revised Constitution. In Uganda and Tanzania, the AG enjoyed no such privilege.

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community’s behalf. This led to development of the Attorney General’s special role as public interest defender. However, in time, it was accepted that an ordinary litigant could also obtain relief provided [he or she] had first sought, and been granted, the AttorneyGeneral’s fiat (or leave) to commence “relator” proceedings, in effect on behalf of the public. In such a case, the “relator” did not require a demonstration of a personal interest in the controversy. The Attorney-General’s fiat cured that obstacle. Without the fiat, it was not competent for a private individual to enforce a public trust by a private suit (Kirby 2011, 538).

As we saw in chapters 2 and 3 analyzing the development of locus standi rules, courts eventually allowed standing to private individuals even without a fiat from the Attorney General. This reflected not only the growing complexity of society but also the reality that the AG would not always be disposed to permit a suit against a government official or agency. In the colonial context, public interest followed a different trajectory because the interests of the state and the public were deemed to be one and the same. Public interest cases were few and far between and in most instances were summarily dismissed by the courts. Following independence, in the adversarial adjudication system inherited from the colonial powers, East African governments—especially offices of Attorneys General— viewed public interest litigation challenges as subversive attempts to undermine the ruling party and thus something to be resisted irrespective of government culpability. Consequently many countries severely restricted the possibility of court action against the state.50 The 2010 Kenya Constitution sought both to address the anomalies of history and to restore the AG’s relationship to the public. The office of the AG was originally intended to carry out technical, as distinct from policy, functions, with policy being left to departments for justice, law, and order. According to Mbondenyi and Ambani (2013, 105), the OAG as conceived in the 2010 constitution carries a “thin” mandate and “narrow” authority; Article 156 specifically excludes the office from “criminal proceedings,”51 vesting that power instead in a fully independent Director of Public Prosecutions (DPP) with secure tenure (Article 157). Secondly, the AG is authorized—with leave of the court—to appear as amicus curiae (friend of the court) in any civil proceedings to which the government is not a party [Article 156(5)]. There are instances, as for example in the 2013 Kenyan 50

The classic example of such resistance can be found in Uganda’s Civil Procedure and Limitation (Miscellaneous Provisions) Act of 1969, described by one author as an “obnoxious” act (Kasule 1985, 26–31). 51 Article 156(4)(b).

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presidential election petition, where the court may benefit from the AG’s input even when the office is not a party to the matter. Finally, Article 156(6) of the constitution reinstates the long-missing function of the office: “The Attorney General shall promote, protect and uphold the rule of law and defend the public interest” (emphasis added). This formulation offers a different paradigm from which the government may approach public interest suits. As Justice Baghwati of the Indian Supreme Court pointed out in the Bonded Labour case, PIL “is not… adversar[ial] litigation but … a challenge and an opportunity to the government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them of social and economic justice.”52 Despite attempts at reform, the office of Attorney General is, we must remember, intrinsically political, not only because the AG is usually a member of the Cabinet at full ministerial rank (and often doubles as the Minister of Justice and/or Constitutional Affairs), but also because governments are often involved in matters that may provoke a good deal of legal controversy. According to Mario Gomez (1993, 178), “the idea that the AG should act as representative of the Public Interest…has certain defects. The AG is essentially a political officer whose fundamental role is to act as legal advisor to the government…. It would be unreasonable to expect an officer of this nature to initiate or intervene in litigation in the Public Interest.” This view appears to have prevailed in contemporary Kenya following the enactment of the 2010 Constitution. Under it, the Kenyan office no longer enjoys the same degree of security it previously did. There is nevertheless a difference of opinion on the implications of the reforms. Mbondenyi and Ambani argue that the provisions of Article 75 on the general conduct of public officers would apply (Mbondenyi and Ambani 2013, 106). Ghai disagrees, arguing that the AG is not a “state officer” and thus escapes the procedure which applies to their removal (Ghai 2014c 160). Perhaps this is why—despite the changes to the Kenyan situation after 2010—there appears no discernible transformation in the view of Attorneys General chambers towards public interest litigation. The office differs little from its counterparts in Tanzania and Uganda, where systems could be described as decidedly “old school” (Ghai 2014b, 161–162). To make matters worse, the incumbent Kenyan AG—Githu Muigai—orchestrated promulgation of the Office of Attorney General Act,53 which has greatly extended the powers of the office in Kenya (Ghai 2014b, 158). Muigai has 52 53

Holding 6. Act No. 49 of 2012.

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been the subject of criticism in several public interest petitions, but the admonitions against him appear to have had little effect (Ghai 2014b, 161– 162). Dissatisfaction with Muigai’s performance thus far has led to a court action brought against him.54 Indeed, his susceptibility to presidential influence was amply demonstrated by his response to the indictment of President Uhuru Kenyatta at The Hague, where Muigai appeared to be acting as the president’s counsel while also stonewalling on delivery of evidence to the ICC prosecutor. If, as President Kenyatta insisted throughout the saga, Muigai was attending The Hague proceedings in his personal capacity, why then was he fighting so hard to defend the president? The job of the Attorney General is to facilitate justice, not to obstruct it, but Muigai’s role in the ICC saga was clearly to impede just settlement of the action against the president. Given the fine line between politics and the Law, controversy is of course not alien to the office of Attorney General—advice given, actions taken, or the failure to act where action was called for can all give rise to controversy.55 While Charles Njonjo, Kenya’s AG from 1963 to 1979, is most remembered for his many eccentricities—being described as “very fond of the British way of life” (Ghai 2014b, 147)—his modus operandi caused serious damage to the Kenyan body politic and to protection of the rule of law in the country (Ghai 2014b, 147). Despite the “English country gentleman” image he sought to project, Njonjo was instrumental in supervising the abuse of human rights, turning prosecutorial power into a political tool, and using his position to undermine the independence of the Judiciary as well as to foster corruption in the institution (Ghai 2014b, 146– 151). For his part, Tanzania’s Chenge was implicated in a major corruption scandal over the purchase of radar for the country from British Aerospace Industries. However, few holders of the office have been plagued by as much contention as Uganda’s Peter Nyombi, who held office from May 2011 to March 2015. In August 2013, Nyombi was suspended by the Uganda Law Society because of three controversial opinions he had rendered.56 Although the suspension was largely symbolic given that the So54

Okiya Omtatah Okoiti v. AG, Petition No. 292 of 2014. Ghai makes a fairly damning chronicle of Kenya’s Attorneys General, from the first AG, Charles Njonjo, to incumbent Githu Muigai, who, Ghai says, “has shown himself [to be] no different from his predecessors” (Ghai, 2014b, 160). 56 The ULS claimed that Nyombi misadvised the Speaker of Parliament regarding expulsion of three MPs from the NRM; he argued in favour of appointing a serving officer in the Uganda People’s Defence Force as Minister of Internal Affairs, and 55

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ciety’s charter does not provide for such action, the rebuke amounted to a stern repudiation of Nyombi, particularly since the Attorney General is regarded as honorific head of the Bar. Nyombi brushed off the action, but public confidence in him continued to wane, with even Museveni (who appointed him) expressing reservations (Kagenda 2014, 10–13). The embarrassment stalked him throughout his tenure. Holding onto Nyombi as Attorney General eventually proved such a liability that he was sacked from the position in early 2015. The developments in Uganda over the Nyombi tenure reflect an extreme breakdown of relations between the Bar and the office of Attorney General as well as overall frustration with the state of rule of law in the country. When the State is viewed as the primary purveyor of impunity and abuse of the rule of law, the office of Attorney General—which represents the public face of that disdain—will bear the brunt of negative reactions. Furthermore, when occupants of the AG’s office take on powers— and many of them have done so—well beyond those specified for the office in the constitution, public sentiment sours even more. For example, the new Kenyan OAG Act has granted a multitude of powers not provided for under the 2010 Constitution. Ghai argues that the Act has created a new kind of AG, one which is “neither one thing nor another: civil servant, advocate, or politician. The constitution proceeds on one assumption: [the AG as] advocate, with the state as client, [and] client able to replace advocate; the Act [proceeds] on another assumption: [AG] as a tenured sole civil servant cum advocate” (Ghai 2014b, 160). The disdain for public interest litigation in all three AG offices is amply demonstrated by the fact that not a single one has a division devoted to this specialized branch of litigation, despite the fairly large volume of such cases. To compound matters, the knee-jerk reaction to petitions of this kind appears to be uniform. A reading of plea responses in public interest cases gives the impression that the entire region shares the same PIL response template. The same arguments are applied regardless of the nature of petitions filed, ranging from outright denial to, at the most, minor concessions.57 In sum, the posture of East African offices of Attorneys General on public interest matters is antagonistic and non-accommodating. finally he supported the re-appointment of former Chief Justice Benjamin Odoki, even though he had attained the mandatory retirement age of seventy years. See Rugambwa (2013). 57 In an exception to the general rule, the Ugandan Attorney General entered a nocontest plea in a case relating to the unconstitutionality of female genital mutilation, Mifumi (Uganda) Ltd. and 12 Others v. Attorney General & Kenneth Kakuru, Constitutional Petition No. 12 of 2007. Perhaps it would have appeared crass for

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Perhaps the East African offices could take a leaf from India’s public interest book. India embodies a different vision of public interest practice, wherein the government lawyer is expected to suppport the court in its constitutional mandate to uphold the rights of the disadvantaged.. The words of Justice Bhagwati in Bandhua Mukti Morcha v. Union of India58 demonstrate this vision: The government and its officers must welcome public interest litigation, because it would provide them an occasion to examine whether the poor and the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community.… [If a] public interest litigation [complaint] is found to be true, [the government] can in discharge of the constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements.59

The above discussion raises the question: which public is the East African State working for when it persists in violating human rights and justifies its actions with a vigourous defense when sued for protection of the people? Under these conditions, the term “public interest” has in fact been subverted to signify the state’s divorce from the public. East African Attorneys General chambers need to conduct a serious reappraisal of their proper function in the area of public interest litigation. Such an appraisal will not only reduce the resources expended on obviously lost causes—i.e. cases where government actions constitute blatant human rights violations or are not aligned with the constitution—but will also help the office to focus on the crucial elements of its mandate to provide sound legal advice to the government.

Impacts on the Broader Community Ultimately, PIL is intended to transform the lives of ordinary people, including both citizens and non-citizens such as refugees, immigrants, and undocumented workers. Community impact and empowerment is the ultimate goal of such litigation—especially bringing public awareness to the rights of marginalized groups including women, indigenous persons, sexuthe government to have spoken in favour of a practice which had attracted such widespread opprobrium. Indeed, the Prohibition of Female Genital Mutilation Act was eventually passed in 2010. 58 AIR 1984 SC 802. 59 Id., at 811 para. 9.

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al minorities, and persons with disabilities. These are the groups who primarily face the negative effects of structural violence, endemic discrimination, and social marginalization. The overall impact of PIL on each of these groups could be the subject of a separate book—and indeed even categorizing them together as I have done here subjects them to a different form of structural violence. More importantly, however, progressive court intervention stimulated by PIL has incremental implications—both therapeutic and, in some circumstances, real—for those on the margins of society. For example, there can be little doubt that the declaration striking down the Anti-homosexuality Act in Uganda brought significant reprieve to sexual minorities. Nevertheless, we would caution against too uncritical an embrace of the PIL phenomenon. Indeed, the old saying that too much of any good thing can have adverse consequences is of some relevance. Dennison (2012), speaking about the decision of the court in the case CEHURD No.1 dealing with maternal health care issues, points out that over-liberalizing the arena of Public Interest Litigation could have an undesirable effect: Given the actual and proxy presence of comparatively well-resourced, non-Ugandan actors with ideological objectives in Uganda, the potential social and political impact of public interest litigation is substantial. A progressively encouraging judicial result in CEHURD could incite a flood of public interest litigation initiatives reflecting the ideologies of whoever funds the litigation (Dennison 2012, 16).

PIL also runs the danger of being taken up by what are deemed “sexy” causes, driven by a particular NGO’s output for a donor grant cycle, or reflective of an idea that is essentially filmic in content. So-called development partners too—for a variety of reasons ranging from strategic interest to genuine concern—may be willing to fund PIL actions, but only on their own terms and conditions. Ultimately, this can lead to the “NGOization” or depoliticization of social struggles, in which NGOs have become “catechists of aid” instead of agents of change (Shivji 2009, 191–192). Such interventions undermine the autonomy of the petitioner(s), and more importantly, of the particular human rights struggle. In other words, external agendas may be foisted onto struggles that are by nature local and indigenous. PIL cannot be insular and introverted, but will often have to find recourse in universalist notions of equality, non-discrimination, and equal protection. This will allow it to secure full protection for vulnerable and threatened minorities, despite often vociferous opposition from the dominant, powerful actors in society, who are quick to draw the cultural-

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relativist or religious card to block transformation. However, appealing to the universal will not always be free from controversy. This leads us to our final observation on the structural and ideological aspects of pursuing PIL: the question of social reaction.

Backlash and Associated Reactions While many PIL cases are welcomed and supported—as the public ultimately benefits from the improved protection of human rights—there are times when public reaction to a court-mandated victory is hostile. This is most likely to occur when the state and society speak from the same page on an issue, but in a manner that diminishes, rather than expands, the parameters of social and economic justice. Cases that deal with controversial and/or populist social issues, especially those involving sexuality—such as the rights of sex workers, the question of abortion, and how to deal with pornography—provide examples. The biggest contestation occurs over the rights of minorities, especially social and sexual minorities, but also manifests in broader questions relating to culture and belief. Cultural relativism also raises its head in debates over which issues can appropriately be addressed by public interest litigation. In Uganda, a number of LGBTI activists challenged the action of a minister who arbitrarily closed their workshop, claiming they were engaged in the promotion of homosexuality. The court unabashedly found that the Minister had taken this action “in the public interest.”60 This judge’s view found wide support within the broader Ugandan public. In a newspaper article written about those who challenged the Anti-homosexuality Act, one journalist stated, “frankly…that self-styled group of so-called prominent Ugandans can go hang. Most of us know that they are just publicity-seeking, self-indulgent and egoistic individuals who don’t give a toss about our culture and dignity” (Nganda 2014, 6). A similar posture of antagonism found its way into bar association elections held soon after the successful petition. Members of the Christian Lawyers’ fraternity—a powerful constituency within the legal community—mobilized against colleagues who had argued for the petition. One of the lawyers who had served in the petition against the AHA, Nicholas Opiyo, was charged with “promoting homosexuality” and lost his bid for the ULS presidency.

60

See Jacqueline Kasha Nabagesera & 3 Ors. v. Attorney General & Anor., Misc. Cause No.33 of 2012 [2014] UGHC 49.

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In Kenya, a similar reaction followed a court finding that the Registrar of NGOs could not legally reject the application of a group advocating for LGBTI rights. In the case of Eric Gitari v. NGO Co-ordination Board & The Attorney General,61 the court found that the Board had sought to deny the group registration on grounds that violated the Bill of Rights. The Court roundly condemned the Board, holding that the Board had infringed the petitioner’s freedom of association.62 The reaction of the public was swift, with the Weekly Citizen publishing the names and photographs of twelve LGBTI activists, including some who had not publicly disclosed their sexuality (Morgan 2015). One of the activists named in the paper—Dennis Nzoika—responded with the following reflection: “If homophobes were looking to target people, if the police were looking to arrest people, if anti-gay youths were looking to attack some teen they assume is gay, they now have a face and a name.” The religious community also expressed opposition to the court’s decisions (Nzwili 2014). What the above reactions demonstrate is the multifaceted character of “the Public” that is engaged with or affected by this kind of litigation. In sum, it is a reflection of the multifarious tensions that exist and operate within society, and also that the struggle over the realization of rights will find resistance from all kinds of quarters. When transmitted through the courts of law where the result will often mean that there is a victor and a vanquished, the efficacy of this kind of litigation clearly needs to be carefully thought through.

A Few Pointers for the Future The basic conclusion of this study is that Public Interest Litigation is likely to become all the more relevant in the future of the three East African countries surveyed for several reasons. First, the residue of problematic laws inherited from the colonial era (many, but not all, of which are penal) will require legal challenge. Second, PIL will increase in importance because of growing state/government impunity—a marked trend in all three East African countries. PIL is also likely to increase because of growing tensions within communities, for example over established (but outdated) customary practices and discrimination against vulnerable minorities. Third, PIL may provide the necessary means to secure accountability of state actors and proxies within the wider community in order to 61 62

Petition No.440 of 2013 [2015] eKLR. Id. para. 145.

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protect the vulnerable. Finally, PIL holds considerable potential for developing much-needed non-adversarial constitutional litigation (Muralidhar 1997, 29-31). PIL may be understood as presenting not just a challenge to the state, but also an opportunity for constitutional dialogue within the arms of government so that either the Executive or the Legislature may respond to court decisions that do not reflect the values of the general populace. From a broader perspective, PIL has the potential to devolve into a quagmire of controversy. For example, it runs the risk of stretching the role of courts beyond mere arbitration to reach into the arena of legislation and policy formulation. Such a role has been condemned as legislation-bystealth, or subterfuge. In other words, there is a fear of judges really making law. This raises a broad question: are the courts a suitable arena for social change? Public interest litigation also runs against the continued threat of backlash against judicial activism, as manifest in Kenya during several standoffs between the Judiciary and Parliament since the enactment of the 2010 Constitution. In Uganda, the violent reactions of the Executive to the bail decision which they opposed provides another example (Kanyeihamba 2012, 376–393). The debacle over the rights of women in polygynous marriages that took place in Kenya in 201463 demonstrates that the coming battle over social justice for disadvantaged minorities is bound to be a long and protracted one. Negotiation over separation of powers is bound to become more complex with the likely continued passage of unconstitutional legislation that invites judicial intervention, as legislators become more desperate and frustrated over actions of the courts. The battlefronts for this legislation are also bound to change. New forms of media and politics will give rise to different approaches to achieving social change, supplementing the achievements of public interest litigation. We need a new level of innovation to seek the full enforcement of judgments that will appropriately challenge governments’ high levels of impunity. Very few of the jurisdictions we have examined in this book have regular law reviews and updates that reflect status quo-altering judicial pronouncements. Our final question for this study is a fairly straight-forward one: how useful is the constitution (and especially its Bill of Rights) as a focal point in the struggle for fundamental, enduring social and political change in excolonial African countries? Possibly East Africa’s human rights advocates might have been a bit naïve to expect that constitutional reform would be the panacea to end all the problems of authoritarian rule and social ine63

See “Kenya Parliament Passes Polygamy Law,” Al Jazeera.

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quality. In East Africa, we may have marked some distance from the position once described by the late Professor H.W.O. Okoth Ogendo as having “constitutions without constitutionalism” (Okoth Ogendo 1991, 3–27). Unfortunately, we may have reached a point of having constitutions with only minimum constitutionalism. The denominator, in other words, is not very high. We need to deploy public interest litigation in order to move a notch higher and finally secure adherence to the letter of the constitution as well as a more complete and holistic commitment to its spirit.

INTERVIEWS/PERSONAL COMMUNICATION

Akulima, Magdalena. 2013. Women’s Legal Aid Centre (WLAC), Dar es Salaam, November 6. Besigye Aaron. 2014. Uganda Law Society (ULS), Kampala, April 10. Chande, Mohammed Othman. 2013. Chief Justice of the United Republic of Tanzania, Dar es Salaam, November 5. Cote, David. 2013. Lawyers for Human Rights (LHR), Johannesburg, October 29. Dugard, Jackie. 2013. Socio-Economic Rights Institute (SERI), Johannesburg, October 29. Gamaya, Kaleb. 2013. National Organization for Legal Aid (NOLA), Dar es Salaam, November 6. Gimara, Francis. 2014. Centre for Public Interest Law (CEPIL), Kampala, April 8. Heywood, Mark. 2013. Section 27, Johannesburg, October 30. Kabanda, David. 2014. Centre for Health, Human Rights and Development (CEHURD), Kampala, April 8. Kakuru, Kenneth. 2014. Justice of the Court of Appeal of Uganda, Chobe Lodge, September 29. Jjuuko, Adrian. 2014. Human Rights Awareness & Promotion Forum (HRAPF), Kampala, April 8. Kanushu, Laura. 2014. Legal Aid for Persons with Disabilities (LAPD), Kampala, April 11. Katemi, Alphonse. 2013. Women’s Legal Aid Centre (WLAC), Dar es Salaam, November 6. Kegoro, George. 2013. International Commission of Jurists—Kenya Chapter, Nairobi, October 2. Kijo-Bisimba, Helen. 2013. Legal and Human Rights Centre (LHRC), Dar es Salaam, November 4. Kimeze, Isaac S. 2014. Legal Brians Trust, Kampala, March 5. Kwaga, Irene. 2014. Uganda Law Society (ULS), Kampala, April 10. Massawe, Emmanuel. 2013. Tanganyika Law Society (TLS), Dar es Salaam, November 6.

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Mboya, Apollo. 2013. Law Society of Kenya (LSK), Nairobi, September 30. Meyersfield, Bonita. 2013. Centre for Advanced Legal Studies (CALS), Johannesburg, University of Witwatersrand, October 30. Mkogoro, Yvonne. 2013. Retired Justice of the South African Constitutional Court, Pretoria, October 31. Muli, Elizabeth. 2013. Commission for the Implementation of the Constitution (CIC), Nairobi, October 1. Mutunga, Willy. n.d. President of the Supreme Court & Chief Justice of the Republic of Kenya (various times). Namusobya, Salima. 2014. Institute for Social and Economic Rights (ISER), Kampala, March 5. Ndashe, Sibongile. 2013. Initiative for Strategic Litigation in Africa (ILSA), Johannesburg, October 30. Njeru, Lillian. 2013. Law Society of Kenya (LSK), Nairobi, September 30. Nkuubi, James. 2014. Human Rights Network—Uganda (HURINET—U), Kampala, April 8. Okoiti, Okiya Omtatah. 2013. Public Interest Litigator, Nairobi, September 30. Ongoya, Elisha Z. 2013. Public Interest Lawyer, Nairobi, September 30. Patel, Preti. 2013. Southern African Law Commission, Johannesburg, October 29. Ruhangisa, John. 2013. Registrar, East African Court of Justice (EACJ), Arusha, October 14. Skelton. 2013. Ann Centre for Child Law, University of Pretoria, Pretoria, October 28. Tenga, Ringo. 2013. Former Law School lecturer/private practitioner, Dar es Salaam, November 6. Viljoen, Frans. 2013. Centre for Human Rights, University of Pretoria, Pretoria, October 28. Wachira, Michael. 2013. Centre for Rights Education and Awareness (CREAW), Nairobi, October 2. Wangechi. 2013. Centre for Rights Education and Awareness (CREAW), Nairobi, October 2. Wanyoike, Waikwa. 2013. Katiba Institute, Nairobi, October 1.

TABLE OF CASES

Kenya Abdikadir Sheika Hassan & Others v. Kenya Wildlife Services, Case No.2059 of 1996 (High Court of Kenya).ACHPR v. Republic of Kenya, (15 March, 2013), No.006/2012. Aho Gembul & 10 Others v. NAFCO & Waret & Gidagawmod Wheat Farms, (Civil Case No. 12 of 1989). Akweywa v. Moi and 8 others, Election Petition No. 1 of 1994; (2008) 1 KLR (EP) 736. Attorney General of Kenya v. Independent Medical Legal Unit (IMLU), 15 March 2012, EACJ Appellate Division, Appeal No. 1 of 2011. Centre for Minority Rights Development (CEMERIDE) & Minority Rights Group (MRG) International (on behalf of the Endorois) v. Kenya (February 2010), Communication No.276 of 2003. Charles Lekuyen Nabori v. Attorney General & 3 Others,[2008] eKLR Charles Omanga & Patrick Njuguna v. IEBC, AG and Union of Kenya Civil Servants, Constitutional Petition No. 2 of 2012. http://kenyalaw.org/caselaw/cases/view/81929. Charo wa Yaa v. Jama Noor & 4 Others, Misc. Civ. App. No.8 of 2011. Coalition for Reform and Democracy (CORD), Kenya National Commission on Human Rights (KNCHR) and Samuel Njuguna Ng’ang’a v. Republic of Kenya & The Attorney General, Petition No.628 of 2014. Consumer Confederation of Kenya v. Attorney General & 4 Others, (High Court Petition No. 88 of 2011. East Africa Law Society and 4 others v. Attorney General of Kenya and 3 others, Reference No 1 of 2007, at 30 (Unreported). Ernest Kinyanjui Kimani v. Muira Gikanga,(1965) E.A. 735. Esiroyo v. Esiroyo,[1973] EA 388. Francis Kemai & 9 Others v. AG, Civil Case 238 of 1999; http://www1. chr.up.ac.za/chr_old/indigenous/documents/Kenya/Cases/Ogiek %20case-Kemai%20and%20others.pdf. Gibson Kamau Kuria v. Attorney General, High Court Miscellaneous Appeal No.279 of 1985. Githunguri case, [1985] KLR.

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Harun Mwau & 3 others v. Attorney General & 2 others, Petition No. 65 of 2011 (2012) eKLR (August 30, 2013). Hub for Investigative Media v. National Forestry Authority, Miscellaneous Cause No.73 of 2014. Ibrahim Sangor Osman & 1121 Others v. The Minister of State for Provincial Administration and Security & 3 Others, Constitutional Petition No.2 of 2011 (High Court of Kenya at Embu). Icharia v. Icharia, (2006) KAR. Imanyara v. Moi and 12 Others. Election Petition No. 4 of 1993; (2008) 1 KLR (EP) 472. Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of children of Nubian descent in Kenya) v. The Government of Kenya, No. 002/Com/002/2009 (March 22, 2011). http://www.opensocietyfoundations.org/sites/default/files/ACE RWC-nubian-minors-decision-20110322.pdf. International Centre for Policy Conflict & 5 Others v. The Attorney General & 5 Others, Petition 552 of 2012 [2013]eKLR 169, http://www. kenyalaw.org/Downloads_FreeCases/552of2012.pdf. J.A.O. v. Homepark Caterers Ltd. et al, Civil Case No. 38 of 2003, High Court of Kenya at Nairobi, Sept. 2004. James Jessie Gitahi & 202 others v. Attorney General & 2 others, (Petition No. 683 of 2009, High Court at Nairobi). John Harun Mwau v. Attorney General,Nairobi Law Monthly, Dec. 1988– Jan.1989. John Kabui Mwai and 3 Others v. Kenya National Examination Council and 2 Others, Petition No.15 of 2011. http://www.hakijamii.com/publi cations/Education_case.pdf. Joseph Letuya, Patrick Kibet Kuresoy & Others v. The Attorney General & 5 Others, Civil Application No.635 of 1997. Karanja v. Karanja, (1976) KLR 307. Kenya Bankers Association v. Minister for Finance & Another (No.4), [2002] 1 KLR 61. Kenya Ports Authority (KPA) v. East African Power and Lighting Company Ltd, Case 41 of 1981; Court of Appeal at Mombasa. Kenya section of the International Commission of Jurists v. Attorney General and Minister of State for Provincial Administration and Internal Security and Kenyans for Justice and Development Trust (joining), [2011] eKLR, ILDC 1804 (KE 2011). Kiama, Alan v. Ndia Muthunya & Others (Civil Appeal No.46 of 1978). Kibaki v. Moi & 2 Ors, (2008) 2 KLR 308. Kibaki v. Moi (No.3), (2008) 2 KLR 351.

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Kibaki v. Moi, Civil App. No. 173 of 1999. Kinyanga and others v. Isiolo County Council and others, Civil Suit No. 11 of 1995 (High Court at Meru). Kivuitu v. Kivuitu, (1991) KLR 241. Koigi wa Wamwere, High Court Misc. Application No.574 of 1990 (reprinted in Nairobi Law Monthly, No.30 of February, 1991). Koigi wa Wamwere v. Attorney General, [2012]eKLR. Kopera Keiya Kamunyu and 44 Others v. The Minister for Tourism, Natural Resources and Environment and 3 Others, (Civil Case No. 33 of 1995), High Court of Moshi. Kotut v. Bosire & 2 Ors, [2008] eKLR. Kwanza Estates Ltd v. Kenya Wildlife Services, HCC. No. 133 of 2012 (High Court of Kenya at Malindi). Lawrence Nginyo Kariuki v. County Counicl of Kiambu, (HCCC Misc. No.1446 of 1994). Lekengere Faru Kamunyu and 16 Others v. The Minister for Tourism, Natural Resources and Environment and 3 Others, (Civil Case No. 33 of 1994), High Court of Moshi. Limuli, Edward v. Marko Sabayi(Civil Case No 22 of 1978). Matiba v. Attorney General, H.C.C.C. No. 666 of 1990 (Unreported). Matiba v. Moi & 2 Others (No.2), Civil Appeal No. 179 of 1993; (2008) 1 KLR (EP) 670. Matiba v. Moi (No.1),Civil Application No. NAI 241 of 1993; (NAI 103/93) (2008) 1 KLR (EP) 525. Matthew Okwanda v. The Minister of Health and Medical Services,High Court of Kenya at Nairobi, Petition No.94 of 2012. Micro & Small Enterprises Association of Kenya Mombasa Branch (Acting in the interest of its Members to the exclusion of those who may have sought reliefs in their own right) v. Mombasa County Government & 43 others, Constitutional Petition No.3 of 2014, [2014] eKLR. http://kenyalaw.org/caselaw/cases/view/94712/. Misheck, Samuel Thata & others v. Priscilla Wambui & Another, (Civil Case No. 1400 of 1973). Mitu-Bell Welfare Society v. Attorney General, Petition 164 of 2011. http://kenyalaw.org/caselaw/cases/view/80426. Moi v. Mwau, Civil Application No. NAI 131 of 1994; (2008) 2KLR (EP) 90. Muguthu, Mwangi v. Maina Muguthu, Civil Case No.377 of 1968. Mulbadaw Village Council & 67 Others v. NAFCO, Civil Case No. 4 of 1982, High Court of Arusha. Murai v. Wainaina (No.5), [1982] KLR 5.

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Mwangi Stephen Murithi v. Attorney General, High Court Civil Case No. 1170 of 1981. Nyamai and another v. Moi and others, Election Petition No. 70 of 1993; (2008) 1 KLR (EP) 468. Obiero v. Opiyo,[1972] EA 22. Odinga v. Chesoni, Civil Application No. 602 of 1992 (November 13, 1992). Odinga v. Kenyatta, para.1, http://www.icj-kenya.org/dmdocuments/papers/full%20judgementpetition%20no.%205%20of%202013.pdf. Odinga v. The Electoral Commission,Civil Case No. 5936 of 1992. Okiya Omtatah Okoiti v. AG, Petition No.292 of 2014. Ooko v. Republic, H.C.C.C. No. 159 of 1966. Orengo v. Moi and 12 Others (No.1), Election Petition No. 8 of 1993; (2008) 1 KLR (EP) 597. Orengo v. Moi and 12 Others (No. 3), (2008) 1KLR (EP) 715. Patricia Asero Ochieng & Ors. v. AG, Petition 409 of 2009; 8 CHRLD (2014) 230. Patrick Njuguna, Augustino Neto, Charles Omanga, Kenya Youth Parliament and Kenya Youth League v. Attorney General, Commission on Implementation of the Constitution and IEBC, Constitutional Petition No. 21 of 2012. Paul K. Nzangu v. Mbiti Ndili, Case No.8 of 1991; High Court of Kenya. Priscilla Nyokabi Kanyua v. Attorney General & Independent Electoral Commission, Constitutional Petition No.1 of 2010 [2010] eKLR, http://kenyalaw.org/Downloads_FreeCases/75044.pdf. Prof. Peter Anyang’ Nyong’o & others v. AG of Kenya & 5 Others, Reference No.1 of 2006. R v. Kenya Forest Service Ex parte and Clement Kariuki & 2 others suing as the Chairman, Secretary and Treasurer of the National Alliance of Community Forest Association, Judicial Review Case No. 285 of 2012, High Court at Nairobi. Raila Odinga v. Uhuru Kenyatta,[2013] eKLR. Rangal Lemeiguran & Others v. Attorney-General & Others (the Il Chamus petition). Miscellaneous Civil Application No. 305 of 2004; 2008 3 KLR (EP) 325. Republic v. El Mann, [1969] EA 357. Republic v. Head Teacher, BOG Kenya High School, ex-parte SMY, Judicial Review 318 of 2010 [2012] eKLR. http://www.kenyalaw.org/ Downloads_FreeCases/88818.pdf.

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Republic v. Judicial Commission of Inquiry into the Goldenberg Affair, ex parte George Saitoti, [2006] eKLR. Rev. Dr. Timothy Njoya & Others v. The Attorney General & Others, H.C. Misc. Civil Application No. 82 of 2004 (OS);[2004] 1 EA 194 (HCK), delivered on 25 March 2004, accessed at: http://www1.chr.up.ac.za/index.php/browse-bycountry/kenya/1126.html. Richard Kimani & S.M. Maina v. Nathan Kahara, Revision Case No.11 of 1983. Rodgers Muema Nzioka and Others v. Tiomin Kenya Ltd, Civil Case No.97 of 2001 (High Court at Mombasa), accessed at: https://www.elaw.org/node/1996. Satrose Ayuma & 11 others v. Registered Trustees of the Kenya Railways Staff Benefits Scheme & 2 others, Constitutional Petition 64 of 2010 (Dated: August 30, 2013). Susan Waithera Kariuki & Ors. v. Town Clerk, Nairobi City Council & Ors,Petition Case No. 66 of 2010; 8 CHRLD (2014) 206–207. The AIDS Law Project v. AG& 3 Others, Constitutional Petition No. 97 of 2010; [2015] eKLR, March 18, 2015. Wangari Mathai v. the Kenya Times Media Trust Ltd, High Court Civil Case No. 5403 of 1989. Waweru v. Republic of Kenya, (2007) AHRLR 149 (KeHC 2006).http:// www.chr.up.ac.za/index.php/browse-by-subject/339-kenya-waweru-vrepublic-2007-ahrlr-149-kehc-2006-.html. Wilfred Karuga Koinange v. Commission of Inquiry into Goldenberg, Misc. App. 372 of 2006. William Ngasia & Others v. Baringo County Council & Others, High Court Misc. Civil Application No. 183 of 2000 at Nakuru. Yoke Gwako & 5 Others v. NAFCO & Gawal Farm, (Civil Case No .52 of 1988).

Tanzania Attorney General v. Aknonaay & Another, Civ. App. No.31 of 1994; (1994) TZCA 1. Augustine Masatu v. Mwanza Textiles Ltd., High Court of Tanzania at Mwanza, Civil Case 3 of 1986 (unreported). Chumchwa Marwa v. Office i/c Musoma Prison & Another, High Court of Tanzania at Mwanza, Miscellaneous Criminal Cause No.2 of 1988. Dan Kavishe v. Arusha International Conference Centre, Court of Appeal of Tanzania at Arusha, Civil Appeal 1 of 1987 (unreported).

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Doitha Thuway v. Amathi Bura, High Court Civil Appeal No. 9 of 1990. Ephraim v. Pastory, 1990 LLR 83 (High Court of Tanzania) at 1.http://jurisafrica.org/html/customary_law.htm. Erick David Massawe v. The Tanzania National Roads Agency, Loi Langisho Mollel and the Attorney General, Land Case No. 16 of 2004 (High Court of Tanzania at Arusha; unreported). Essaji v. Solanki [1968] EA 218. Festo Balegele & 749 Others v. Dar es Salaam City Council, Misc Civil Cause No. 90 of 1991 (in the High Court of Tanzania at Dar es Salaam). Gwao bin Kilimo v. Kisunda bin Ifuti (1938) 1 Tanganyika Law Reports. Hamisi Ally Ruhondo & 115 Others v. Tanzania Zambia Railway Authority (TAZARA), Court of Appeal at Dar es Salaam, Civil Appeal No.1 of 1986. Happy George Washington Meada v. Regional Prisons Officer Arusha, High Court of Tanzania at Arusha, Misc. Criminal Cause No.36 of 1979. Haruna Mpangaos & Others v. Tanzania Portland Cement Company Limited, Court of Appeal of Tanzania, Civil Reference No. 3 of 2007 (Unreported). Jonathan v. Republic, High Court Criminal Appeal No. 53 of 2001. Joseph Kessy et al. v. Dar es Salaam City Council, Civil Case No.299 of 1988. Katam v. Chepkwony & Anor, 8 CHRLD (2014) 274–276. Lausa Alfan Salum & 106 Others v. Minister for Lands, Housing and Urban Development & National Housing Corporation, Court of Appeal: November 9, 1994, Civil Appeal No. 15 of 1994. Maagwi Kimito v. Gibeno Werema, 1985 TLR 132 (CA; Court of Appeal at Mwanza). http://jurisafrica.org/html/customary_law.htm. Mahona v. University of Dar es Salaam, [1981] TLR 55. Mawji v. Arusha General Stores, [1970] EA 137. NAFCO v. Mulbadaw Village Council & 67 Others, Civil Appeal No. 3, Court of Appeal, 1985. National Agricultural and Food Corporation (NAFCO) v. Mulbadaw Village Council & Ors, [1985] TLR 88. Njobeka v. Mkogoro, High Court Civil Appeal No. 6 of 1991. Sheikh Muhammad Nassor Abdulla v. The Regional Political Commissar of Dar es Salaam & 2 Ors, High Court of Tanzania at Dar es Salaam, Misc. Criminal Cause No. 21 of 1983. Tanganyika Law Society and Another; Mtikila v. Tanzania, Applications 9/2011, 11/2011 (joined), 14 June 2013.

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xxxxxx Tanzania Railway Workers Union v. Tanzania Railways Corporation and PSRC, Civil Case No. 190 of 2002, High Court of Dar es Salaam (unreported). The African Network for Animal Welfare v. AG of the United Republic of Tanzania, Reference No. 9 of 2010.http://eacj.org/wp-content/uploads/ 2014/06/Judgement-Ref.-No.9-of-2010-Final.pdf. The Attorney General v. Marwa Magori, Tanzania Court of Appeal at Mwanza, Criminal Appeal No. 95 of 1988. The Judge i/c High Court (Arusha) and AG v. N.I. Munuo Ng”uni, Civil Appeal No.45 of 1998, Court of Appeal, Arusha (unreported); [2003] 4 CHRLD 51. Timothi Kaare v. Mara Co-operative Union, Civil Appeal No. 42 of 1992, Court of Appeal at Dar es Salaam, (unreported). Zakaria Kamwele and 126 Others v. The Minister of Education and Vocational Training and the Attorney General,Civil Appeal No. 3 of 2012 (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam); reproduced in Zanzibar Yearbook of Law, Vol.3 (2013): 491516.

Uganda Advocates Coalition on Development and Environment (ACODE) v. The Attorney General, Miscellaneous Cause No.0100 of 2004. Amooti Godfrey Nyakana v. National Environmental Management Authority & 6 Others, Constitutional Petition No.03/2005. https://www.elaw. org/system/files/Constitutional+Petition.pdf. Andrew Kayira & Paulo Ssemwogerere v. Edward Rugumayo, Omwony Ojwok, Frederick Ssempebwa & 8 Ors, Constitutional Case No.1 of 1979. Asol Kabagambe, Faraj Abdullah and The Attorney General v. The Electoral Commission & Dr. Kizza Besigye, Constitutional Petition No.1 of 2006. Attorney General & Hon. Nyombi Peter v. Uganda Law Society, Misc. Cause No.321 of 2013. Byabazaire Grace Thaddeus v. Mukwano Industries, Miscellaneous Application No. 39 of 2001. Centre for Health Human Rights & Development (CEHURD) & 3 Others v. AG, Constitutional Petition No.16 of 2011 [2012] UGCC 4, August 30, 2014. http://www.ulii.org/ug/judgment/constitutional-court/2012/4.

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Charles Mpagi Mwanguhya & Izama Angelo v. AG, Miscellaneous Cause No.751 of 2009. http://www.right2info.org/cases/r2i-charles-mwanguhyampagi-and-izama-angelo-v.-attorney-general Colonel Dr. Kizza Besigye(Rtd) v. Lt. Gen. Kaguta Museveni and Another, Election Petition No.1 of 2001 (Unreported). Dr. James Rwanyarare & another v. AG, Constitutional Petition No.5 of 1999, [2000] UGCC 2. Dr. James Rwanyarare & others v. AG, Constitutional Petition No.7 of 2002, [2004] UGCC 5. Dr. Rwanyarare James and Anor v. The Attorney General, Constitutional Petition No. 11 of 1997. E.F. Ssempebwa v. AG, Constitutional Case No.1 of 1987. Environmental Action Network (TEAN) v. AG and NEMA, H.C., Miscellaneous Application No.39 of 2001. Felix Njagi Marete v. Attorney General, High Court Misc. Civil Case No.668 of 1986. Fox Odoi and another v. The Attorney General, Constitutional Petition No. 8 of 2003. Grace Sentongo v. Yakubu Taganza, Miscellaneous Application No. 8 of 2003. Grace Stuart Ibingira & Others v. Uganda, [1966] EA 306. Greenwatch v. Uganda Electricity Transmission Co. Ltd., (Misc. Appl. No. 139 of 2001). Haruna Kanabi v. Uganda, Criminal Appeal No.72 of 1995. Hon. Gerald Kafureeka Karuhanga v. Attorney General, Constitutional Petition No 0039 of 2013, [2014] UGCC. http://www.ulii.org/ug/judgment/constitutional-court/2014/13 . Honorable Sitenda Sebalu v. Secretary General of the EAC, Attorney General of Uganda, Honorable Sam Njuba, and the Electoral Commission of Uganda, 30 June 2011, EACJ First Instance Division, Ref. No. 1 of 2010. Human Rights Awareness and Promotion Forum (HRAPF) v. Attorney General of Uganda, Reference No. 6 of 2014. Human Rights Network-Uganda (HURINET-U & Legal Brains Trust (LBT) v. Uganda Communications Commission & The Attorney General, (Misc. App. No. 81 of 2013). In the Matter of The Free Movement, Uganda Human Rights Commission. Initiative for Social and Economic Rights (ISER) and Hon. Ssewungu Gonzaga Joseph v. The Attorney General of Uganda, Misc. App. No.173 of 2014.

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Institute of Public Policy Research (IPPR) v. The Attorney General, Miscellaneous Cause No.174 of 2014. Jacqueline Kasha Nabagesera & 3 Ors. v. Attorney General & Anor, Misc. Cause No.33 of 2012, [2014] UGHC 49, accessed on September 2, 2014.http://www.ulii.org/ug/judgment/high-court/2014/49. Jjuuko Adrian v. AG, Constitutional Petition No.1 of 2009. John Harun Mwau & 3 Others v. Attorney General & 2 Others,High Court Petition No. 123 of 2011. Kalyango Mutesasira v. Kunsa Kiwanuka et al., (Complaint No.501 of 2000). Karokora v. AG,Civ. CS. No. 591 of 2007, [2009] UGHC 162. Major General David Tinyefuza v. AG, Constitutional Petition No. 1 of 1996. Mbabali Jude v. Edward Kiwanuka Ssekandi, Constitutional Petition No. 0028 of 2012 at 13[2014] UGCC 15. http://www.ulii.org/ug/judgment/constitutional-court/2014/15. Mifumi v. AG, Constitutional Petition No.12 of 2007. National Association of Professional Environmentalists (NAPE) v. AES Nile Power Ltd, Miscellaneous Application No.268 of 1999. National Association of Professional Environmentalists (NAPE) v. AES Nile Power, H.C. Misc. Applic. No.268 of 1999. Odongkara & Ors. v. Kamanda & Another, [1968] EA 210. Prof. J. Oloka-Onyango & 9 Others v. Attorney General, Constitutional Petition No. 8 of 2014. R. v. Amkeyo, [1917] 7 EALR 14. Rtd. (Col) Dr. Kizza Besigye v. Lt. Gen. Kaguta Museveni, Election Petition No.1 of 2006. Saleh Kamba, Agasha Maryam & NRM. v. The AG & 4 others, Constitutional Petition No. 16 of 2013. Salvatori Abuki & Richard Obuga v. Attorney General, Constitutional Case No. 2 of 1997; [1997] UGCC 5. Seventh Day Adventist Church (East Africa) Limited v. Minister for Education & 3 others, Petition No. 431 of 2012. Severino Twinobusingye v. AG, Constitutional Petition No. 47 of 2011. Shaban Opolot v. AG, (1969) EA 1. Sharon Dimanche et al. v. Makerere University, Constitutional Cause No. 1 of 2003. Siraji Waiswa v. Kakira Sugar Works Ltd., H.C. Misc. Applic. No. 230 of 2001. Ssemogerere & Others v. AG, Constitutional Appeal 4 of 2002.

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Uganda Association of Women Lawyers v. Attorney General, Constitutional Petition No. 2 of 2003. Uganda Electricity Transmission Co. Ltd. v. De Samaline Incorporation Ltd., Miscellaneous Cause No.181 of 2004 (High Court of Uganda). Uganda Law Society (ULS) v. AG, Constitutional Petition No. 16 of 2005. Uganda v. Commissioner of Prisons Exparte Matovu, 1966, East African Law Reports 515. Uganda v. Haruna Kanabi, Criminal Case No.U. 977/95. Uganda v. Karamagi Andrew, Criminal Case No.81 of 2014. Uganda v. Kwoyelo, Constitutional Appeal No.01 of 2012. http://www. ulii.org/ug/judgment/supreme-court/2015/5. Uganda v. Peter Matovu, CSC No. 146 of 2001. Uganda v. Stephen Apai, CSC No. 23 of 1994. Zachary Olum v. The Attorney General, Constitutional Petition No.6 of 1999.

South Africa Doctors for Life, 2006 (6) SA 416. Mbushuu & Anor. v. Republic, [1996] 2 CHRLD 160. Minister of Health and Others v. Treatment Action Campaign and Others,(No 1) (CCT9/02) [2002] ZACC 16; 2002 (5) SA 703; 2002 (10) BCLR 1075 (5 July 2002). Ngxuza and others v. Permanent-Secretary, Department of Welfare, Eastern Cape and another, 2001 (2) SA 609 (E). Nonkululeko Letta Bhe & 4 others v. The Magistrate, Khayelitsha& Four Others, Case CCT 49/03 (Constitutional Court of South Africa).http://jurisafrica.org/docs/lawreports/J-CCT493.Bhes%20case%20on%20female%20succession.pdf

United States Baker v. Carr, 369 U.S. 186 (1962). Brown v. Board of Education of Topeka, 347 US 483 (1954). Bush v. Gore, 531 U.S. 98 (2000). Hylton v. United States, 3 US 171 (1796). Marbury v. Madison, 5 US 137 (1803).

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United Kingdom Buchanan and Co. v. Babco Forwarding and Shipping Co. (UK) Ltd, [1977] QB 208. Egerton v. Brownlow, (1853) 4 HL at 196. R v. Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte 3, WLR 1,456 (H.L. 1998). R v. I.R.C. ex parte National Federation of Self-Employed and Small Businesses Ltd, [1982] AC 617.

Pakistan Asma Jilani v. Government of Punjab, [PLD 1972 SC 139]. State v. Dosso, PLD 1958 SC 533.

India Dissolution Case, 3 SC Indian Supreme Court at 660. Janata Dal v. H.S. Chowdhary & Ors, AIR 1993 SC 892, 1993 CriLJ 600, September 9, 2014. http://indiankanoon.org/doc/1830927/.

Malawi The Registered Trustees of the Women & Law (Malawi) Research & Education Trust v. The Attorney General (Constitutional Case No.3 of 2009).

Nigeria Abacha v. Fawehinmi, [2001] CHR 20.

Australia Eddie Mabo and others v. The State of Queensland, [1992] 66 QLR 408.

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Canada Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General,) 2008 NSSC 111 (CanLII); 267 NSR (2d) 21, http://www.canlii.org/en/ns/nssc/doc/2008/2008nssc111/2008nssc111. html.

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INDEX

Abel, Richard, 10, 11, 95, 98 Aborigines, 192 Abuya, Edwin, 217, 220, 222, 233 Access to Information Act, 110, 265, 266 actio popularis, 86 Adelman, Sam, 166 African Charter on Human and People’s Rights, 17, 77, 125, 193 African Commission on Human and People’s Rights, 53, 77, 183, 191, 193, 195 African Court on Human and People’s Rights, 9, 41, 42, 52, 76, 77, 103, 209 African-American, 19, 87, 88 African Socialism, 37 Akech, Akoko, 43, 44, 61, 218 Allot, Philip, 23 amicus curiae, 131, 251, 286 Amin, Idi, 32, 38, 42, 47, 225, 235, 254, 281 Amka Empowerment, 147 Amnesty International, 143, 150 an Naಟim, Abdullahi, 36 Anand, A.S., 277 Andrews, Penelope, 96, 111 Angote Amugo, Oscar, 202 Angus, Llwelyn, 97 Anti-Homosexuality Act (AHA), 16, 269 Anti-homosexuality Bill (AHB), 1, 139, 140, 141, 142, 145 Apartheid, 10, 16, 18, 85, 95, 96, 97, 98, 99, 101, 145, 207, 274 Appiah, Kwame, 36, 37 Arusha, 39, 51, 70, 76, 170, 172, 193, 194, 204

Atuobi, Samuel, 221, 222 Aweri, Ruby Opio, 199 Baghwati, P.N., 287 Bahegeine, Alice Mpagi, 272 Baraza la Wanawake Tanzania (BAWATA), 72, 259 Barbaig, 188, 193, 194, 330 Barkow, Rachel, 54, 55 Basic Structure Doctrine, 92 Baxi, Upendra, 5, 32, 275 Belgian Congo, 37 Beloff, Michael, 28 Benet, 195 Bennett, T.W., 113, 119 Berg-Scholosser, Dirk, 225 Besigye, Kizza, 111, 223, 239, 240, 241, 242, 243, 244, 251, 252, 253, 254, 255, 256, 257 Bickel, Alexander, 4, 55 Bilchitz, David, 166, 167 Bill of Rights, 29, 41, 48, 51, 65, 66, 69, 70, 83, 94, 100, 104, 105, 106, 130, 149, 161, 166, 168, 169, 171, 172, 173, 174, 175, 176, 177, 181, 183, 204, 210, 212, 219, 293 Binaisa, Godfrey L., 235, 237, 279, 281 Bisimba, Helen Kijo, 259, 269, 278 Black Mamba, 111, 242, 254, 262, 265 Bond, Johanna, 214 Bracey, Christopher, 87, 88 Brain Drain, 178, 179, 180, 267 Brandeis, Louis, 87, 88, 89 bride price, 129 bride purchase, 117 British East Africa, 31

352 British judicial custom, 268 Brougham, Henry, 243 Brown v. Board of Education, 18, 88 Buganda, 42, 56, 81, 115, 188, 189, 223, 224, 236 Buganda Agreement, 115 Burkina Faso, 80 Burundi, 9 Bush, George W., 56, 216, 217, 254, 255, 256 Cappelletti, Mauro, 282 Centre for Human Rights Protection, 147 CHADEMA, 225 Chama cha Mapinduzi (CCM), 39, 72 Chanock, Martin, 23 Chayes, Abram, 88 Chenge, Andrew, 279, 280, 288 Cicero, 246 Civic United Front (CUF), 226 Civil Rights movement, 86 Civil Society Coalition (CSC), 136 Columbia, 19 Common Law, 13, 17, 23, 25, 26, 27, 29, 30, 31, 36, 40, 45, 53, 82, 83, 91, 109, 117, 118, 124, 140, 197, 204, 210, 265, 268, 283 Common Law Doctrine of Nuisance, 197, 204 Common Man’s Charter, 37 Conservative Party, 236 Constituent Assembly, 63, 64, 74, 104, 173, 238, 240 Constitution of Kenya, 2010, 60, 61, 66, 67, 68, 106, 130, 132, 149, 155, 156, 181, 182, 186, 187, 193, 200, 202, 209, 211, 221, 247, 248, 250, 255, 260, 263, 279, 284, 285, 287, 289 Constitution of Uganda, 1995, 6, 48, 62, 63, 64, 127, 128, 137, 141, 153, 173, 198, 208, 212, 221, 239, 240, 241, 245, 266

Index Constitutional Court, 15, 48, 49, 65, 99, 100, 106, 129, 142, 144, 167, 168, 174, 177, 178, 179, 180, 200, 242, 243, 267, 270, 272, 275, 276, 277 Constitutional Republican system, 273 Constitutional Review, 173 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 124 Coomaraswamy, Radhika, 6, 7 Cote d’Ivoire, 217, 221, 256, 257 Coverture, 29 Crabbe, Samuel Azu, 210, 213 Crown Proceedings Act, 30 CUF (Civic United Front), 226 Curia Regis, 28 Customary Law, 23, 26, 40, 45, 81, 99, 116, 117, 118, 119, 123, 124, 125, 162, 192, 201, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214 Dar es Salaam, 10, 69, 70, 73, 108, 120, 127, 170, 171, 172, 203, 204, 207, 208, 259, 275 Democratic Party (DP), 59, 223, 224, 230, 236 Democratic Republic of Congo (DRC), 37 Dennison, Brian, 66, 129, 178, 209, 212, 269, 291 Deportation (Validation) Act, 42 Dershowitz, Alan Morton, 216, 256, 257 Dewey, John, 79 Directive Principles of State Policy, 173, 178, 198, 203 Divorce Act, 128 Domestic Violence Act of 2010, 129 dompas, 98, 220 Dorobo, 190 DRC, See Democratic Republic of Congo Dugard, John, 95, 96

When Courts Do Politics Dugdale, Justice Norbury, 43, 59, 104 EACJ, See East African Court of Justice East African Community, 41 East African Court of Appeal, 9, 41 East African Court of Justice (EACJ), 52 Economic, Social and Cultural Rights (ESCRs), 13, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 172, 173, 174, 175, 176, 178, 180, 181, 182, 183, 185, 186, 187, 214, 270 Egonda-Ntende, Fredrick, 175, 180 Ekeh, Peter, 81 Ekirikubinza, Lillian Tibatemwa, 49 Electoral Commission (EC), 67, 217, 227, 228, 232, 236, 240, 241, 242, 243, 245, 246, 258, 271, 272 Electoral Commission Act, 240 Electoral Commission of Kenya, 217, 227, 245 Endorois, 53, 162, 192, 193, 270 England, 4, 29, 30, 41, 45, 46, 83, 85, 115, 116, 285 English Common Law, 40, 45, 53 English courts, 3, 29, 33, 34, 46 English House of Lords, 18 Equal Opportunities Commission, 139, 269 ESCRs, See Economic, Social and Cultural Rights European imperialism, 81 ex parte Pinochet, 18 Exchange Control Act, 44 Female Genital Mutilation (FGM), 128, 212, 289 functus officio, 70 Gacaca, 25 Gandhi, Indira, 91, 92 Gay and Lesbian Coalition of Kenya, 149 General Comment No. 3, 167

353

Ghai, Yash, 66, 82, 103, 106, 207, 208, 212, 214, 247, 263, 265, 281, 285, 287, 288, 289 Ghana, 218, 256, 257 ghost (of ex parte Matovu), 62, 272 Gloppen, Siri, 187, 217, 218, 244, 267 Gomez, Mario, 5, 11, 87, 91, 93, 287 Gore, Al, 56, 216, 217, 254, 255, 256 Griffith, John, 2, 3, 4, 83 Grunig, James, 79 habeus corpus, 41, 43, 47, 57, 69, 70 Hamilton, Chief Justice, 117, 118, 213 Handmaker, Jeff, 12, 101 Harrington, John, 255, 256, 257 Head of State immunity, 18 Hershkoff, Helen, 10, 88 Hirschl, Ran, 6 Hodson, Loveday, 17 Hogan, John, 90 homophobia, 134, 135, 136, 140, 143, 144, 147 Human Rights Awareness and Promotion Forum (HRAPF), 136 Ibhawoh, Bonny, 82, 83, 84 Immunity, 18, 29, 30, 49, 73 Independent Review Commission (IREC), 232, 233, 247 India, 13, 19, 20, 32, 91, 92, 93, 94, 113, 165, 268, 273, 277, 290 Indian Supreme Court, 5, 27, 91, 92, 94, 134, 158, 287 indigenous people, 189, 190 Indigenous People’s Rights, 188 Interlacustrine Kingdom, 189 International Criminal Court (ICC), 7, 19 International Development, 159 intersex individuals, 150, 151, 152, 154 intersexuals, 156

354 Jjuuko, Frederick, 10, 112, 139, 262, 269 Jopadhola, 23 Judeo-Christian, 115 judicial activism, 92, 215, 254, 294 judicial review, 6, 34, 54, 55, 58, 73, 74, 75, 92, 96, 106, 143, 154, 171 judicialization of politics, 6, 7 Juma, Laurence, 127, 185, 195, 196 justiciability, 161, 162, 163, 164, 165 Kabaka of Buganda, 42, 56, 81, 224, 236 Kabaka Yekka, 224, 236 Kabira, Nkatha, 112, 123 Kabumba, Busingye, 138 KADU (Kenya African Democratic Union), 226 Kamau, Winnifred, 132 KANU (Kenyan African National Union), 43, 59, 60, 61, 66, 68, 226, 230, 231, 232 Kanyeihamba, George William, 10, 244, 253, 271, 272, 273, 281, 294 Karuhanga, Gerald, 4, 278 Kasango, Mary, 125 Kasule, Remmy, 278, 286 Katiba Institute, 131 Katutsi, John Bosco, 195, 243 Kelly, Judith, 223 Kelsen, Hans, 57 Kenya, 4, 6, 7, 9, 14, 16, 18, 19, 31, 37, 42, 43, 45, 51, 52, 53, 58, 59, 60, 61, 62, 66, 67, 68, 70, 71, 72, 81, 86, 104, 106, 107, 108, 109, 120, 123, 124, 127, 130, 132, 133, 137, 146, 148, 150, 151, 154, 155, 156, 157, 159, 162, 166, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 196, 200, 201, 202, 203, 208, 209, 210, 211, 212, 213, 217, 218, 220, 221, 225, 226, 227, 230, 231, 232, 235, 247, 248, 250, 251, 252, 253,

Index 255, 259, 262, 263, 264, 265, 269, 270, 279, 281, 282, 284, 285, 286, 287, 288, 293, 294, 310, 311, 312, 313, 315, 317, 318, 319, 320, 321, 323, 324, 326, 327, 328, 330, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 345, 346, 347, 348, 349, 350 Kenya African Democratic Union, See KADU Kenya Bankers, 51, 52, 107, 299 Kenya People’s Union (KPU), 226 Kenyan African National Union, See KANU Kenyan High Court, 18, 59, 209 Kenyatta, Jomo, 37, 226, 280 Kenyatta, Uhuru, 19, 37, 58, 220, 226, 231, 232, 246, 248, 250, 251, 252, 253, 255, 256, 263, 280, 288 Kibaki, Mwai, 61, 130, 227, 230, 231, 232, 233, 235, 263, 280, 282, 284 Kikonyogo, Leticia, 120, 175 Kirby, Michael, 285, 286 Kiryabwire, Geoffrey, 105, 177 Kisumu Initiative for Positive Empowerment (KIPE), 149 Kiswahili, 24, 102 Kiwanuka, Benedicto, 32, 64, 177, 223, 224, 254, 275 Klare, Karl, 109, 215, 255, 270 Kong, Karen, 261 KPU (Kenya People’s Union), 226 Kriegler, Johann, 232, 233, 235, 247 Law of Succession Act, 211 Legislature, 5, 7, 18, 33, 39, 54, 55, 100, 162, 263, 272, 283 Lenaola, Isaac, 214 LGBTI, 99, 112, 133, 135, 137, 138, 140, 141, 143, 145, 147, 148, 149, 151, 292, 293 Liebenberg, Sandra, 160, 161, 168 locus standi, 12, 13, 16, 17, 27, 28, 34, 41, 43, 44, 45, 46, 51, 52, 53,

When Courts Do Politics 54, 56, 57, 66, 67, 72, 73, 79, 82, 92, 94, 103, 104, 105, 107, 108, 112, 184, 190, 197, 198, 199, 200, 227, 239, 285, 286 Lugayizi, Edmund Sempa, 111, 121, 124 Lukiiko, 57 Lule, Yusuf, 47, 235, 281 Lumumba, P.L.O., 43, 52 Luweero, 240 M’Inoti, Kathurima, 32, 44 Maasai, 45, 81, 82, 162, 188, 189, 194 Maasai treaties, 188 Mageuzi, 73, 102 Magna Carta, 29 Mahama, John, 257 Maji-Maji, 81, 188 Makubuya, Khiddu, 242, 281 Mamdani, Mahmood, 22, 23, 30, 31, 39, 40, 85, 221, 246 Mandamus, 45, 49, 54 Mandela, Nelson, 95, 96, 98, 160 Manji, Ambreena, 114, 127, 255, 256, 257 Marikana Massacre, 101, 347 Marshall, Chief Justice John, 54 Marshall, Thurgood, 88 Marxist-Leninist, 3 Mathai, Wangari, 43, 104, 200, 201 Matovu, Michael, 46, 47, 50, 56, 57, 58, 59, 62, 63, 64, 65, 124, 258, 272, 281 Matrimonial Property Act, 124 Mau Mau, 81, 86, 188, 346 Mayanja, Abu, 38, 236, 281 Mazrui, Ali, 38, 68, 69 Mbondenyi, Morris, 286, 287 Mbote, Patricia, 43, 44, 61, 112, 116, 123, 198, 200 McAuslan, Patrick, 82, 103 mchicha (seeds), 260 Mclean, Edward, 56 Minimum Core, 167, 168

355

Moi, Daniel arap, 44, 58, 60, 226, 227, 228, 229, 230, 231, 232, 260, 264, 280 Mokoena, Hlonipha, 95 Montesquieu, 5, 33 Morrell and Swart, 115 Morris, H.F., 30 Movement system, 239, 245 Mpagi-Bahegeine, Alice, 272 M-Pesa, 159, 205 Mtikila, Rev. Christopher, 53, 71, 72, 76, 77, 78, 102, 104, 108, 109 Muigai, Githu, 279, 280, 284, 287, 288 Mukasa Kikonyogo, Leticia, 175 Mukubwa, Grace, 65 multipartism, 39, 72 Museveni, Yoweri Kaguta, 1, 49, 110, 111, 140, 174, 208, 223, 236, 237, 238, 239, 240, 241, 243, 244, 245, 254, 256, 258, 262, 281, 289 Musinga, Daniel (Justice), 184 Musoke, Mubiru, 116, 139, 179 Muteesa, (Sir) Edward II, 56, 327 Muthomi, Thiankolu, 55 Mutunga, Willy, 31, 131, 133, 148, 182, 252, 255, 256, 269, 271, 273 Mutunga Court, 252 Mutunga doctrine, 271 Mwalusanya, James Lewis, 124, 172, 203 Mwanahalisi, 269 Mwangusya, Eldad, 275 Mwau, John, 30, 181, 227, 229, 247, 248 Mwendwa, Kitili Maluki, 32 Mxenge, Victoria, 99 Namibia, 16 National Development Party (NDP), 230 National Interest, 174, 177 National Objectives and Directive Principles of State Policy, 166, 173, 174, 177, 178, 179, 198

356 National Rainbow Coalition (NARC), 231 National Resistance Movement (NRM), 25, 49, 63, 237 native courts, 26, 85, 115 Neogy, Rajat, 38 Ngugi, Joel, 4, 8, 67, 103, 104, 111, 182, 183 Ngugi, Mumbi (Justice), 182, 183 Nigeria, 16, 84, 134, 218, 256 non-indigenous community, 189 non-justiciable, 93, 163, 173, 180 Nowrojee, Pheroze, 60 Ntabgoba, Jeremiah Herbert, 198, 199 Nwabueze, B.O., 69 Nyamu, Celestine, 119 Nyamuma, 172 Nyerere, Julius (Mwalimu), 38, 39, 40, 68, 70, 72, 102, 168, 171, 210, 225, 231, 279, 280 Nyombi, Peter, 281, 288, 289 Nzoika, Dennis, 293 Obote, Apolo Milton, 37, 38, 41, 49, 56, 57, 58, 223, 224, 236, 237, 281 Ociel, Dudley, 131 Oder, Arthur, 50, 222, 223, 241, 253 Odinga, Raila, 61, 220, 226, 227, 228, 230, 232, 235, 246, 247, 250, 251, 252, 253, 254, 255, 256, 257, 271 ODM, See Orange Democratic Movement Odoki, Benjamin Josses, 173, 241, 254, 278, 289 Ogendo, Okoth H.W.O, 25, 26, 118, 204, 295, 339 Ogiek, 190, 191, 192, 195, 196 Ogoola, James, 111 Ojwang, Jackton Boma (Justice), 196, 211, 214 Ombaka, Oki Ooko, 259, 260 Omolo, Riaga, 123 Omondi, H.A., 125

Index Orange Democratic Movement (ODM), 61, 232 Orders-in-Council, 13 Owor, Maureen, 23 Pakistan, 58 Panda-gari, 49 parens patriae, 282 Parke J., 33 Party of National Union (PNU), 232 patriarchal family, 115, 118 Penal Code Act, 48, 130, 146 Peoples Resistance Army (PRA), 111 per curiam, 49 Permanent Labour Tribunal, 171 Peter, Chris Maina, 36, 39, 45, 69, 70, 72, 81, 124, 143, 155, 169, 193, 259, 281, 288 Petition of Rights Act, 16 Picho, Ali, 37, 38 pigeon-hole Constitution, 1966, 46, 57, 58, 279 PIL, See public interest litigation Pillay, Navi, 161 Pinda, Mizengo, 73, 258, 267, 269, 272 Pokino, 56 Political Question Doctrine (PQD), 13, 34, 53, 54, 55, 57, 58, 64, 68, 71, 74, 257, 258, 267 popular justice, 262 Preservation of Public Security Act, 58, 59 Presidential Elections Act, 231, 240, 241, 244 presidential term, 80, 174, 221 Prima donna, 275 pro bono, 276 Production-Sharing Agreements (PSAs), 265 progressive realization, 131, 132, 133, 165, 167, 181, 185 Public Interest Litigation (PIL), 9, 10, 11, 12, 32, 54, 68, 77, 86, 89, 90, 91, 93, 95, 99, 101, 103, 104, 105, 109, 162, 198, 199, 259,

When Courts Do Politics 261, 265, 266, 268, 269, 271, 274, 275, 276, 277, 278, 285, 287, 289, 290, 291, 292, 293, 294 Public Order and Management Act, 263, 267 Quintus, 246 Quis custodiet ipsos custodes, 218 Rajagopal, Balakrishnan, 94 Regina (Queen), 28 Rent Restriction Act, 170 Repugnancy Clause, 30 res nullius, 201 Rex (King), 28 Right to Die, 20 Ringera Commission, 61 Rome Statute, 19 Rubama, Yahya, 204 Rule of Law, 2, 31, 32, 34, 112 Ruto, William, 246, 248, 249, 250, 251, 278 Rwanda, 7, 9, 25, 315 Sachs, Albie, 60, 96, 97, 99, 273 Samatta, Barnabas, 73, 109 same-sex erotics, 20, 145, 147 sans droit, 21 Scalia, Antonin, 56, 90, 91 Schauer, Frederick, 262, 264 Seidman, Robert, 31, 80 self-determination, 211, 220, 235 Sen, Amartya, 160 Separation of Powers, 5, 32, 33, 55, 73, 110 sexual minorities, 1, 13, 95, 112, 114, 133, 135, 136, 137, 139, 140, 141, 145, 146, 147, 150, 152, 158, 291, 292 Shivji, Issa, 15, 73, 104, 109, 171, 172, 188, 194, 259, 291 Sierra Leone, 7, 19, 218, 257 Sing’Oei, Korir, 193, 329 Sipalla, Humphrey, 235 socio-economic rights, 133, 166, 168, 186, 187 South Africa, 10, 13, 16, 19, 91, 95, 96, 99, 100, 101, 165, 167, 168, 187, 233, 256, 268, 273

357

South African Constitutional Court, 1, 99, 100, 168 SouthAfrophilia, 95 Soweto uprising, 98 Ssekandi, Edward, 63, 64, 275 Ssemogerere, Paul, 110, 236, 239 Ssempebwa, Edward Frederick, 47, 49, 50, 63, 104, 174, 260 stare decisis, 40 Stein, Leslie, 17, 19, 20, 27 Street Law, 89 Strum, Philippa, 87 sui generis, 14, 257 Supreme Court, 4, 18, 19, 54, 56, 87, 88, 90, 93, 94, 99, 110, 120, 126, 129, 131, 132, 134, 157, 163, 178, 179, 180, 216, 220, 243, 244, 249, 250, 251, 254, 256, 271, 284 sword of Damocles, 136 Tabaro, Patrick, 174, 175 Tamale, Sylvia, 113, 119, 127, 135, 140, 207 Tanganyika, 30, 39, 53, 73, 76, 81, 101, 188, 259, 264 Tanganyika African National Union (TANU), 39, 171, 172, 187, 194, 195 Tanzania, 9, 14, 16, 24, 36, 37, 38, 29, 40, 41, 45, 51, 52, 62, 68, 69, 70, 71, 72, 73, 75, 76, 77, 78, 95, 101, 102, 103, 104, 105, 108, 109, 113, 120, 124, 125, 126, 127, 133, 136, 137, 146, 147, 148, 149, 157, 162, 168, 169, 170, 171, 172, 173, 180, 187, 188, 189, 193, 194, 195, 203, 204, 208, 209, 210, 213, 218, 221, 225, 235, 258, 259, 264, 267, 268, 269, 270, 272, 278, 279, 280, 281, 284, 285, 287, 288 Tanzanian courts, 24, 71, 104, 126, 148, 169 Tanzaphilia, 68, 69, 332 Tenga, Nakazeal, 155 Tenga, Ringo, 259

358 terra nullius, 21 Thiankolu, Muthomi, 55, 178, 179 Thio, S.M., 53, 282 Thoreson, Ryan, 134, 135 TPDF (Tanzanian People’s Defense Forces), 235 transformative constitutionalism, 61, 255, 270 transgender, 151, 154 Transition, 37, 38 transsexuals, 154 Trinidad and Tobago, 178, 179 Tsekooko, John Wilson, 241, 253 Tutu, Desmond, 95 Twaib, Fauz, 16, 45, 52 Twed Towers, 1 Twinomujuni, Amos, 65, 128, 129, 212 U.S. (United States), 3, 4, 13, 18, 19, 20, 25, 34, 54, 55, 56, 57, 86, 87, 88, 89, 90, 91, 120, 134, 164, 165, 216, 277 Ubuntu, 95 Udoma, Sir Udo, 46, 117 Uganda, 1, 2, 4, 6, 7, 9, 14, 16, 17, 23, 25, 32, 37, 38, 40, 41, 42, 45, 46, 47, 48, 49, 50, 56, 58, 62, 63, 64, 65, 68, 70, 71, 72, 104, 105, 109, 110, 111, 112, 117, 120, 121, 124, 126, 127, 128, 129, 133, 135, 136, 137, 138, 139, 141, 142, 143, 144, 145, 146, 148, 149, 150, 151, 152, 154, 157, 162, 173, 174, 176, 177, 178, 179, 180, 188, 189, 195,

Index 197, 198, 199, 200, 206, 207, 208, 212, 213, 218, 221, 223, 224, 235, 236, 237, 238, 239, 240, 241, 242, 253, 254, 256, 258, 260, 262, 265, 266, 267, 268, 269, 270, 271, 272, 274, 275, 277, 279, 281, 282, 283, 284, 285, 286, 287, 288, 289, 291, 292 Uganda National Liberation Front (UNLF), 235 Uganda Patriotic Movement (UPM), 236 Uganda People’s Congress (UPC), 223, 224, 236, 239 Ugandan Court of Appeal, 1 Ugochukwu, Basil, 22, 252 Ujamaa, 39, 40, 68, 264 Ukraine, 256 UN Human Rights Council, 146 United States, See U.S. University of Dar es Salaam, 259 Viljoen, Frans, 270 Vincent, Joan, 26 Wamwere, Koigi wa, 59, 230 Wanyoike, Waikwa, 252 Wiener, Bryan, 147 Wilson, Stuart, 12, 30 Witchcraft Act, 174 Xenophobia, 101 Yahya, Rubama, 204 Zambia, 171, 218, 256, 315 Zanzibar, 74, 78, 101, 102, 146, 170, 221, 225, 226, 264 Zimbabwe, 218, 257