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Supreme court, low expectations: Why the

decision in Kabaziguruka is good, but not
enough
by DR BUSINGYE KABUMBAFebruary 5, 2025
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Chief Justice Alfonse Owiny-Dollo

It was United States President George Walker Bush who in a

speech in 2000 referred to the ‘soft bigotry of low expectations’.

In that instance, he was making a case against affirmative action,

and arguing for a strictly merit- based societal order. As this
column has previously argued, we disagree with the core of that
reasoning, as it glosses over certain historical and systemic
realities which might affect the opportunities – and eventually
achievements – of various groups within a particular society.

Luckily, in our context, the legitimacy of affirmative action (for the

purpose of redressing historical injustices) is specially recognized,
and in fact mandated, under Article 32 of the 1995 Constitution.
Nonetheless, on its own, Bush’s formulation presents an
interesting, which might be applied more accurately in other
contexts.

One of those, in my view, relates to the decision of the Supreme

Court of Uganda in the case of Attorney General v Hon. Michael
Kabaziguruka (Constitutional Appeal No.2 of 2021, arising from
the decision of the Constitutional Court in Constitutional Petition
No. 45 of 2016). While many Ugandans, including many in the
legal community, profusely celebrated the decision – broadly to
the effect that civilians cannot be tried before military tribunals –
my own feelings were rather mixed.

Traditional African cuisine

Certainly, the decision is to be welcomed. It was the correct

decision. However, are we to be effusively grateful to the
Supreme Court for simply doing the job they are paid (relatively
well) to do? It seems to me that, to almost obsequiously thank the
Supreme Court for merely stating the correct constitutional
position is, in fact, to denigrate and even patronize that court.

It is to somehow suggest that we expected it to get the answer

wrong. That is to set a very low bar for what is supposed to be the
highest court in the land. It is to exhibit – in the starkest way – the
soft bigotry of low expectations. One of the most basic
expectations we the citizens must have of the judiciary, is
expeditious justice.

This fundamental notion is etched in Article 126 (2)(b) of the 1995

Constitution, which requires all courts to, among other things,
apply the principle that: ‘justice shall not be delayed’.
Unquestionably, the critical decision of the Supreme Court in
Kabaziguruka was inordinately delayed.

To his credit, the Chief Justice Alfonse Chigamoy Owiny-Dollo, felt

compelled to explain this delay (at pages 19-20 of his judgment).
He observed that the case had ‘suffered an unprecedented
affliction by a host of adversities’ which created ‘an imperative
need to clarify on what transpired within that period’.
In accounting for the delay, he outlined ‘[a] grave and persistent
series of events that characterized the lifespan of [the] appeal’
including: (i)a fire in the Chief Justice’s chambers on 27th April,
2022; (ii) flooding in the Supreme Court building; (iii) the
retirement of Justices Paul Mugamba and Justice Ezekiel
Muhanguzi; and (iv) the deaths of Justices Rubby Aweri Opio and
Stella Arach-Amoko.

This account was somewhat compelling – indeed almost

reminiscent of the biblical plagues which were said to have
afflicted the Egyptian Pharaoh’s people, land and palace when he
failed to render earthly justice in accordance with divine
standards.

The account was corroborated by Justice Mike Chibita, who

similarly addressed the issue (at pages 1-2 of his judgment).
Referring to what he acknowledged was ‘a point of public
interest’, he affirmed the Chief Justice’s account of the
‘unprecedented occurrences’ which had ‘indeed hindered and
stood in the way of expeditious disposal of [the] appeal’.

To his additional credit, Justice Chibita offered to the Ugandan

general public what the Chief Justice had perhaps inadvertently
omitted – an apology, noting: ‘[s]uffice to say that any delay in
dispensing justice is always regrettable, whatever the cause’.

Ugandan food recipes

While the explanation proffered by the Chief Justice for the delay
in Kabaziguruka is plausible, it becomes less so when placed
within the larger context of the Supreme Court’s general
performance historically, and that of the judiciary as a whole. In
this light, one cannot avoid the inescapable conclusion: that the
judicial system in Uganda is woefully inefficient, systemically
broken and in a crisis which seems to be evident to everyone but
the Judiciary itself.

According to the Judiciary’s Annual Report for the financial year

2023/2024, for instance, the Supreme Court took an average of
1,043 days (about 3 years) to complete cases before it (see page
28). It is difficult to see how such a period can be said not to
constitute a ‘delay’ in terms of Article 126 (2) (b) of the
Constitution.

Traditional African cuisine

For its part, in the same period the Court of Appeal/ Constitutional
Court required an average of 1,522 days (about 4 years) to
complete cases before it (see page 30). Seen in this light, the
delay in delivering Kabaziguruka is evidently not something out of
the norm – indeed, it is an expeditious judgment which would
have been surprising.

The crisis in the Ugandan judiciary becomes even more stark

when one considers the situation of constitutional petitions and
appeals, which by their very nature have significant implications
for the rights of all Ugandans. The 1995 Constitution envisaged
that constitutional matters would be given priority. To this end,
Article 137 (7) is to the effect that: ‘Upon a petition being made or
a question being referred under this article, the Court of Appeal
shall proceed to hear and determine the petition as soon as
possible and may, for that purpose, suspend any other matter
pending before it.’

This preferential treatment for such matters was premised on the

special character of the Constitution itself, which is the supreme
law of Uganda, with binding force on all authorities and persons
throughout Uganda (Article 2(1)). It also follows that where any
law or custom is inconsistent with any provision of the
Constitution, that other law or custom is, to the extent of the
inconsistency, null and void (Article 2 (2)).

At the same time, while all Ugandans may know intuitively that a
particular law or action is unconstitutional, the determination in
this regard is reserved to the Court of Appeal (as Constitutional
Court) and Supreme Court (as the appellate body in constitutional
matters). Even when it is as plain as daylight that something is
unconstitutional – and where the liberty, rights and even lives of
Ugandans are being lost and violated as a result of an
unconstitutional law or practice, we are forced to wait for the
Constitutional Court to determine that this is in fact the case.
Supreme court session

Unfortunately, as pointed out above, the Constitutional Court is

not quick in providing these determinations. In the 2023/2024
financial year, for example, the Constitutional Court determined a
total of 66 constitutional petitions, leaving 173 petitions pending
at the close of that period (see page 30 of the above quoted
Report).

In other words, in that period, the Constitutional Court provided

an ‘answer’ to only 66 questions asked of it, leaving 173
‘answers’ unprovided. Thus, with respect to the fundamental law
of the land, there were as at the end of that period, 173 pressing
questions – going to the root of both the nature of our governance
and the safeguarding of our liberties – with no responses.
However, and this is where the real disfunction exemplified by the
Kabaziguruka delay becomes evident, even for some of those
constitutional cases where an ‘answer’ had been provided, such
an answer was effectively discounted by way of appeal to the
Supreme Court combined with a stay of the Constitutional Court’s
decision.

Such a position would not have been so problematic if, at the

Supreme Court, the definitive determinations of those queries
were forthcoming. Unfortunately, more often than not, it appears
that the Supreme Court is the place where constitutional
questions go to be buried, rather than settled.

Taking the financial year 2023/2024 again, the Supreme Court

only determined 3 constitutional cases, leaving a total of 29 such
cases pending (see page 28 of the above-quoted Report). In other
words, in that period, the Supreme Court determined only 3
Kabaziguruka-type cases, with another 29 ‘Kabazigurukas’
remaining without resolution.

This reality – of delayed justice as a norm rather than an

exception in the Ugandan judiciary – is borne out even by a
consideration of the Kabaziguruka case record itself. The matter
was filed in 2016, determined by the Constitutional Court in July
2021(after five years), and the appeal from that 2021 decision
finally determined in 2025.

Are we to believe that the delay at the Constitutional Court is

similarly attributable to the ‘biblical plagues’ which appear to
have afflicted the Supreme Court?

Unfortunately, there are real world consequences to this delayed

justice. A good insight into these was recently provided by the
Ugandan civil society group – Agora – through its Uganda Prisons
Exhibition. According to a summary of the Exhibition published by
Agora: ‘[a]lmost half of Uganda’s prison population of 78,057 are
on remand with some people on remand for over 15 years.’

A particularly egregious case highlighted in the summary, and

quoting findings by the Human Rights Committee of the Uganda
Parliament, is that of Alfred Byamukama, who has spent 28 years
on remand. Can this situation also be explained by floods and
fires at the various court premises?

The effect of judicial delay – and the depth of the judicial crisis
undeniably exposes – is even more pernicious when one has
regard to doctrine of prospective annulment broached by various
Justices of the Supreme Court in Kabaziguruka the essential effect
of which is to suggest that the pronouncement of
unconstitutionality (especially with respect to criminal matters)
only operates going forward and not backwards.

This is a separate question which should seriously occupy the

attention of the legal community, and Ugandans in general. There
are, of course, several other issues which arise from the decision
both in terms of its content and the response to it (including the
response from the army and the President). And no doubt
Ugandans will over the next days, weeks, months and years
discuss these.

For today, however, it is important that the Supreme Court be

reminded that from the Supreme Court, supreme answers are to
be expected, delivered at supreme speed and with supreme
efficiency. Ugandans, should not be content with any less. It
follows that, as a starting point, we must continue to put the court
to task to deliver the other several ‘Kabazigurukas’ pending
before it – especially given the idea of the largely prospective
effect of annulments.

Put simply, for this column at least, the Judiciary of Uganda

remains very much on trial.

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