Log in
Updated minutes ago

The Jurisprudence of Justice Fredrick Egonda-Ntende: Part II

Justice Fredrick Egonda-Ntende

Justice Fredrick Egonda-Ntende

Last week, this column examined three out of the six decisions of Justice Fredrick Egonda-Ntende’s which were expressly referenced in the official citation for the award to him of the Honorary Doctor of Laws (LLD) of Makerere University.

These three were Fredrick Kato v Ann Njoki (decided on 29th January 2009), In Re Nicholas Mwanje and Brenda Nakidde (decided on 1st July 2009), and – of course – Osotraco Limited v Attorney General (decided on 20th March 2002).

Today, we look at the other three decisions mentioned in the citation, that is to say: i) Major General David Tinyefuza v Attorney General (Constitutional Petition No.1 of 1996); ii) Salvatori Abuki and Another v Attorney General (Constitutional Case No.2 of 1997); and vi) Attorney General v Susan Kigula and 417 Others (Constitutional Appeal No.3 of 2006).

It is telling of the stature of Justice Egonda-Ntende that, while a High Court Judge, he was asked to serve on the Court of Appeal panel which decided the matter of Major General David Tinyefuza v Attorney General – the very first case brought before the Constitutional Court after the adoption of the 1995 Constitution.

His decision in that case, rendered on 25th April 1997, demonstrated clearly that even at that time, he belonged on that particular Court. In it, he undertook a thorough analysis of the principles applicable to constitutional interpretation – dedicating eight pages of the decision to a masterful articulation of these principles – an exposition which has continued to be an authoritative guide for the Constitutional and Supreme Court in this respect.

In particular he emphasized the critical role of the National Objectives and Directive Principles of State Policy, as well as the Preamble, as sources of the broad and foundational values underpinning the 1995 Constitution, that is to say, the achievement of a just, free and democratic society.

He observed: ‘By the use of the concept of a just, free and democratic society, the Constitution acknowledges an objective ideal which is our goal or our destiny. In matters of interpretation where the words of the Constitution or other law are ambiguous or unclear or are capable of several meanings, a benchmark has been established to enable us make a choice. And the choice ought to lead to a just, free and democratic society.

In travelling this path, it is not our personal opinions or idiosyncrasies that matter. It is the commands of the Constitution that we must obey. In doing so, we may have to use aids in construction that reflect an objective search for the correct construction. These may include international instruments to which this country has acceded and thus elected to be judged in the community of nations.’

Applying these principles to the facts of the case before him, he eventually found that Major General David Tinyefuza had ceased to be a serving member of the army with effect from 2nd February 1993, and was thereby no longer subject to army discipline. Incidentally, in the concluding section of this decision, Judge Egonda Ntende, zeroed down on an issue which has proven to be almost prophetic, that is to say the danger posed by presidential disrespect for the rule of law.

At page 34 of his decision, Judge Egonda Ntende observed: ‘...it is imperative that the President complies with the letter and spirit of the law for, with respect, the whole nation learns from him. For as Justice Brandeis stated in a dissenting opinion in Olmstead v US 277 US 438: “Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by example ... If the government becomes lawbreaker, it breeds contempt for the law, it invites every man to become law unto himself, it invites anarchy.”’

Unfortunately, since that time, President Yoweri Museveni has continued to display a contempt for the letter and spirit of the law (including the Supreme Law of the land) – and it is clear that large parts of the nation have learnt from him in this respect. Justice Egonda-Ntende recognized, and pointed out, this danger in 1997.

In that same year – 1997 – on 13th June to be exact, Justice Egonda-Ntende handed down another decision in service again on the Constitutional Court, in the case of Salvatori Abuki and Another v Attorney General. In it, he agreed with the majority of the Court in holding aspects of the Witchcraft Act to be unconstitutional.

In the first place, he regarded the offence of ‘witchcraft’ as established in Section 3 of the Act, to be insufficiently defined in terms of Article 28(12) of the Constitution (which requires any criminal offence to be defined and its penalty prescribed by law). This view was buttressed by the terms of Section 5 of the Act, which made it an offence to be found in possession of ‘articles used in practising Witchcraft’.

As he noted, the ambit of this provision was so broad that it might include otherwise innocuous items like a white cock, tortoise or gourd and so on. He also found Section 7 of the Act, which provided for exclusion orders, to be inconsistent with Article 24 of the Constitution (which prohibits cruel and inhumane treatment or punishment); Article 29 (2)(a) (which establishes the right of every Ugandan to move freely throughout the country and reside and settle in any part of it) and indeed Article 22 (1) (on the right to life).

This was because excluding an individual who lived on the land and worked it for his livelihood would be tantamount to denying them sustenance. In interpreting the right to life to include the right to livelihood Judge Egonda Ntende referred to Objective XIV (b) of the National Objectives and Directive Principles of State Policy, which obligates the State to endeavour to fulfil the fundamental rights of all Ugandans to social justice and economic development, including ensuring that all Ugandans enjoy rights and opportunities and access to education, health services, clean and safe water, work, decent, shelter, adequate clothing, food, security and pension and retirement benefits.

Aside from his decision in Tinyefuza, this was one of the earliest judicial references to the National Objectives as a guide to the interpretation of the Constitution – one which preceded the 2005 Amendment to the Constitution (introducing Article 8A), which further affirmed their status in this regard.

Aside from its technical rigour, Justice Egonda-Ntende’s decision in Salvatori Abuki was a deeply humane one. It demonstrated an awareness of, and a sensitivity to, the living conditions of many Ugandans who depend on the land for their food and, indeed, life.

In reaching his decision, he noted, in part, as follows: ‘Not only was the petitioner banished from his home, or residence for that matter, but also the surrounding areas to his home where partly the offence was alleged to have been committed ... The result would be that the petitioner would not be able to return to his home or enter and remain in the surrounding areas including his land upon which, I presume, his livelihood depended, being in rural Uganda.

I am prepared to take judicial notice of the fact that the majority of Ugandans live in rural Uganda working the land for their livelihood. The effect of a banishment order as in this case, would be to exclude such a person from shelter, food by denying him access to his land, and also means of sustenance, without provision of an alternative.

The person so banished is rendered destitute on leaving the prison gates.’ In my view, Justice Egonda-Ntende’s decision in Salvatori Abuki is a good example of a jurisprudence which dignifies and rehabilitates rather than demeans and dehumanizes. It represents a jurisprudence of dignity, humanity and, indeed, life.

Justice Egonda-Ntende’s particular brand of jurisprudence – of affirming dignity, humanity and the sanctity of human life – would again be on full display in the case of Attorney General v Susan Kigula and 417 Others, on which occasion he served as a Justice of the Supreme Court.

Evidently, again, as far back as fifteen years ago, it was recognized that he belonged on such a Court. And again, on that occasion, he delivered a decision which will no doubt stand the test of time.

In a opinion rendered on 21st January 2009, Judge Egonda Ntende, dissented from the majority view in so far as he found that Articles 24 and 44 of the Constitution (on the freedom from torture) applied to Article 22 (1) (which provides for the death penalty).

After a review of international and comparative case law, the textual history of constitutional prohibitions of torture in Uganda, and the Supreme Court’s previous case law on the point, he gently but firmly pointed out the glaring anomaly in the position reached by the majority of the Justices of the Supreme Court as follows: ‘The Constitutional Court held, and the majority of this Court now affirm, that delay in the execution of the death penalty in Uganda creates “death row phenomenon” that amounts to ‘cruel, inhuman and degrading treatment or punishment’ under Article 24 of the Constitution.

It is odd, in my view, that delay in executing the death penalty can amount to “cruel, inhuman, and degrading treatment” under Article 24 while at the same time the same provision cannot be used to determine whether the mode of implementing the death penalty meets the threshold provided by Article 24 of the Constitution.

I am unable to find any justification for this approach ... It is somewhat incongruous that one factor or circumstance surrounding the death penalty was found to be a violation of Article 24 while another factor or circumstance related to the death penalty could not even be examined to determine whether or not it may trigger Article 24 into operation.’

He then set out the extensive affidavit evidence adduced to demonstrate the cruel, inhumane and degrading nature of hanging as a means of execution, noting that this evidence (which included affidavits from Dr. Harold Hillman of the United Kingdom, Dr. Albert Hunt from Scotland and Mr Antony Okwanga from Uganda) was ‘as compelling as it was chilling’.

After extensively quoting from Okwanga’s affidavit, he observed that: ‘...hanging as a method of execution as it is carried out in this country, is a process that is cruel, inhuman and degrading treatment and punishment. In situations where the head is plucked off this is like killing an insect or a bird. It is inhuman to decapitate persons in the name of punishment.

To subject those who do not die instantly to death by bludgeoning is likewise not only cruel, it is inhuman and degrading as well. This is akin to the times when the order for death by hanging included quartering and disembowelling! This is definitely beyond the pain, suffering or humiliation that should be associated with the death penalty.’

It was clear, in Susan Kigula that Justice Egonda-Ntende found it difficult to reconcile the approach adopted by the majority on the Supreme Court, and before it, the Constitutional Court with regard to the scope of the prohibition of torture under Article 24 of the Constitution.

Judicial decorum forced him to express this in terms of such words as ‘odd’ and ‘incongruous’ but his meaning was clear. In the words of a layman, the approach of the Constitutional Court and the Supreme Court, simply put, did not make sense. It was illogical.

The minority opinion expressed by Justice Egonda-Ntende in Susan Kigula is consistent with his broader judicial philosophy, one grounded in a concern for dignity, humanity and life – rather than dehumanization and death. It is unfortunate that in that important decision, one of the most critical since the adoption of the Constitution in 1995, he found himself in the minority. However, again I strongly suspect that time will be kind to the views he expressed in that case on 21st January 2009.

In his acceptance speech at the Freedom Square, Makerere University, on the occasion of the award of the Honorary Doctor of Laws, Justice Egonda-Ntende observed in part as follows: ‘While I was a young advocate I appeared for a client in a matter in the High Court which my client lost. I formed the view that the court had left the words of our Constitution lifeless. A thought ran through my mind that if I ever became a judge my duty should be to breathe life into the words of the Constitution to provide full enjoyment and protection of the law to those that sought redress in our courts’.

As fate would have it, he became a judge. The person whose journey begun in the small village of Makoka went on to breathe life into the words of Constitutions not just in Uganda but around the world, from East Timor, to Kosovo and Seychelles.

As the official citation for the award of the LLD noted: ‘Throughout the breadth and depth of his jurisprudence, a consistent thread is to be found: an expression of views without fear or favour; and an unquestionable belief in the independence of the judiciary, coupled with a commitment to increasing access to justice for common people.’ To this I would add, that part of the consistent thread in the jurisprudence of Egonda-Ntende has been a love for human beings, a recognition of the intrinsic dignity of the person, and an abiding respect for the sanctity of life.

That such a jurist has not thus far served as Chief Justice of Uganda, or – at the very least – on the Supreme Court of our land is a national shame. For his part, when Justice Egonda-Ntende retires from judicial service in about two years from now, the people of Makoka can rightly be proud of their son, whose singular mind has been of benefit not just to Uganda but the cause of humanity in general.

The writer is Senior Lecturer and Acting Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.

Comments   

+1 #1 Akot 2024-07-10 16:53
DR BUSINGYE KABUMBA,

Calling Ugandans to say NO to the tribalistic system & to UNITY to block & end Rwandese Museveni's ownership of Uganda are what EVERY Ugandans, especially the educated like you, MUST do!

Why is everything in place to ensure Museveni's lifetime rule & succession by his son in the waiting?

Soon 40 years, but Rwandese Museveni is protected by powerless tribally divided ruled who go for fake elections to legalise their enslavement!

Ugandans are keeping Museveni on, but are complaining to who & who will save them?

Is Uganda formed by Museveni's tribal lands?
Quote | Report to administrator