At a rally denouncing a government raid on Uganda’s High Court, a lawyer beaten by security men during the invasion held aloft his bloodstained shirt as colleagues shook their heads in disgust and anger.
Kiyimba Mutale suffered head wounds during an hours-long siege at the court on March 1 aimed at re-arresting bailed treason suspects.
At the rally two weeks later, he defiantly addressed colleagues who walked off the job in support of judges who went on strike in protest at the raid — stopping court business and shaking the Central African country’s authorities.
”We are descending into a situation with no rule of law,” Mutale told Reuters. ”The government is holding legal institutions in disdain whenever they make judgements against it.”
But Africa’s judiciary are fighting back. On a continent where successive waves of rule by colonisers then African strongmen have limited their authority, courts are trying to assert their independence and stand up against what they say is a catalogue of abuses by autocrats.
”There are rules to the game and if they do not stick by those rules, people get hurt,” James Ogoola, a top Ugandan judge, known for his caustic criticism of official wrongdoing, told Reuters in a warning to the government.
In Zimbabwe, where a crackdown on opposition gatherings has sparked international outrage, the High Court there issued several rulings against President Robert Mugabe, including one ordering security forces to allow a rally.
When Mugabe defied the ruling, the court ordered opposition leader Morgan Tsvangirai freed and for police to release the body of an activist killed by the security forces.
In Nigeria, a court ruled against attempts by President Olusegun Obasanjo to stop Vice-President Atiku Abubakar running in next month’s presidential polls — although the electoral commission ignored the ruling. Abubakar has appealed.
Courts there also overturned three illegal impeachments of state governors by the executive.
Lawyers’ associations are optimistic African courts can make a difference by taking such stands.
”In Africa, lack of respect for and political interference with judiciary continue to [be] challenges. … Strong judges … can serve as a push back to interference,” the American Bar Association writes on its website.
Law as the enemy
Analysts say at the heart of this conflict is a distrust of laws inherited from former European colonisers.
”The rule of law has been seen as the enemy, as rule of the colonial oppressor,” said Peter Takirambudde, Africa director for Human Rights Watch. ”To reverse that entrenchment, African leaders started a deterioration of [it].”
Ugandan President Yoweri Museveni has defended the High Court siege, but promised to investigate alleged abuses.
Not all attempts to hobble courts are as explicit as those in Uganda, a nation with a violent, coup-laden past.
”Countries like Uganda have a history of using the military to get power,” said Anne Muthoni, judicial reform officer at the International Commission of Jurists’ Kenyan branch.
”Somewhere like Kenya, there isn’t such blatant undermining of the rule of law. It is more subtle,” Muthoni said.
”Ministers [in Kenya] sometimes openly disobey a court order and no one can stop them,” Muthoni said. ”In these cases you need the public to speak out.”
Judicial appointments themselves are often politically motivated, despite constitutional checks.
In 2003, shortly after President Mwai Kibaki’s election, he suspended 17 members of Kenya’s High Court bench on corruption allegations, but Muthoni said this was largely a purging of judges loyal to the previous regime.
In the Democratic Republic of the Congo, a five-year war left courts at the mercy of President Joseph Kabila.
”All the judges in the Supreme Court were named by Kabila and many decisions [have been] favourable to him,” said Jason Stearns, International Crisis Group’s central Africa analyst.
These include denying amnesty for men implicated in killing his father and rejecting opposition complaints of voting fraud.
Africa’s history is full of martyrs to the cause of judicial independence.
Benedicto Kiwanuka, chief justice under Uganda’s late former dictator Idi Amin, was murdered by Amin’s henchmen in 1972 for repeatedly refusing to bend the law.
In 1996, Judge Kabazo Chanda ruled against Zambia’s Parliament imprisoning two editors on an independent daily. Then-president Frederick Chiluba removed him a year later.
Yet in a continent beset by such conflicts, President Thabo Mbeki has set South Africa apart from many peers by frequently bowing to judicial decisions, such as a 2003 ruling ordering the government to distribute antiretroviral drugs to Aids victims.
”The Constitutional Court has often ruled against [the ruling party]. They might complain, but they accept,” Takirambudde said. — Reuters