Why do Kenya and Uganda copy each other’s bad habits? Just look at their judicial decisions

Kenya and Uganda are becoming “a mutual admiration club” in which they routinely copy each other’s judicial and legal mistakes. PHOTOS | FILE 

By WACHIRA MAINA

In Summary

• What are we to make of all this? Taken together, these copycat decisions suggest that, in a cynical way, the East African Community does work, just not the way that many Kenyans and Ugandans would have liked to see it work. Most East Africans would think that the fact that East Africa is a community of values should not be read as committing member states to common standards of folly and impunity. The Community is not a suicide pact.

The great Jimi Hendrix once remarked that he had been imitated so well that he had even heard people copy his mistakes.

Kenya and Uganda have taken Hendrix to heart, becoming “a mutual admiration club” in which they routinely copy each other’s judicial and legal mistakes.

In two years, Ugandan judges have twice copied bad practices from Kenya: One, on retirement of judges and two, on presidential petitions.

Earlier, in 2014, President Uhuru Kenyatta had refused to appoint judges already selected by the Judicial Service Commission, paying a compliment to President Yoweri Museveni’s exact same decision less than a year before. It looks like the twins on the Uganda railway are moving in lockstep with each other’s follies.

Start with judicial retirement. Uganda’s Deputy Chief Justice Steven Kavuma is caught up — like Kenya’s deputy chief justice Kalpana Rawal was mid last year — in unseemly manoeuvres to reduce his age and extend his time on the court.

The retirement

The parallels with the Kenyan cases are so striking there is no doubt these are cases of imitation. Kavuma is months away from retirement. In fact, he had already notified the Uganda Judicial Service Commission of his impeding retirement. His official records say that he was born in September 1948, making him 70 this year, the retirement age.

Late last year, he swore an affidavit saying that his true date of birth is different from the one in the records. He wants the JSC to revise his age by four years to 66. The word in the legal profession in Uganda is that Kavuma is part of a quiet pattern of judicial impunity in which terms in office are extended administratively: Judges swear “birthday affidavits” adjusting their dates of birth and file these with the JSC as their official bio-data. It is said that two judges have already done this.

Getting the Judicial Service Commission to revise a date of birth in its records seems less incoherent than the argument made by Justices Tunoi and Rawal last year that their term in office was set by the repealed constitution even though they were serving terms laid down in the new Constitution. However, it is certainly no less odious or blatant.

The Kavuma case has embarrassed both Chief Justice Bart Katureebe and the Judicial Service Commission. Last December, the Chief Justice kicked the problem to the JSC, asserting it was up to the Commission to keep “such data,” He claimed, implausibly, that he didn’t even know that Justice Kavuma was supposed to retire.

This is an extraordinary assertion from the head of the judiciary: Kavuma is, after all, not only his colleague but his deputy, too; a man, moreover, who has already served as acting Chief Justice and is simultaneously the President of the Court of Appeal.

Members of the Uganda bar are aghast: Justice Kavuma’s chequered career and the extraordinary skulduggery surrounding his latest efforts to stay in office aren’t helping the credibility of the judiciary.

His controversial appointment as deputy chief justice is being contested in the Supreme Court. It ought to have been before Kavuma’s court, the Court of Appeal, which also serves as the Constitutional Court, but that court’s registry blocked the filing. This has echoes of both Rawal and Tunoi asking the court in which they sat, the Supreme Court, to decide whether they should retire.

‘Dangerously uncritical’

Justice Kavuma has also not helped his cause by some of his extraordinary decisions. Dr Kizza Besigye, long Museveni’s opponent in presidential politics, says Justice Kavuma is an NRM sympathiser: He has even sent a complaint to the JSC on the matter. Besigye may have a point.

Last year, Kavuma banned Uganda’s largest opposition party from holding defiance campaigns. Later that year, he gave an order immunising senior police officers, including the police chief Kale Kayihura, from trial for violently beating up Besigye’s supporters earlier in the year.

If Kavuma’s nimble fox-trot in judicial corridors suggests that the Ugandan Supreme Court has been admiring and learning from Kenya, its wholesale borrowing of the decision in the 2013 Raila Odinga petition shows that the admiration and borrowing have become dangerously uncritical.

In the Amama Mbabazi v. Yoweri Kaguta Museveni and three others, the petitioner, a contestant in the 2016 election, challenged President Museveni’s win.

He argued, as Kizza Besigye had had done in presidential petitions in 2001, 2006 and 2011, that the 2016 election was won by the same illegalities and irregularities as in the past: Military and police involvement in elections; inability or unwillingness of the Electoral Commission to enforce the law and a formalistic reading of the election law — especially section 59(6)(a) of the Presidential Elections Act.

He wanted the Supreme Court to answer six questions, of which four are important for this analysis.

• One, did President Museveni and the Electoral Commission comply with election law in the 2016 elections?
• Two, was the election done under the principles set out in the law?
• Three, if indeed the law was not followed, did the failure to comply affect the result in a substantial manner?
• Four, in case of a finding of illegality, were those illegalities committed by President Museveni personally, or with his connivance?

The Supreme Court decided, as it had in the Besigye petitions, that there were indeed widespread violations of the law. Nonetheless, it concluded that though the Commission and Museveni had, in key respects, not complied with the law, this “did not affect the results of the election in a substantial manner.”

In coming to this conclusion, the Supreme Court drew heavily not only from the Raila Odinga petition but also from the Nigerian and Philippines cases that the Kenyan case had cited.

Uganda’s Supreme Court judges hear the presidential election petition on March 15, 2016. PHOTO | MORGAN MBABAZI

In one instance, it even looked like the Ugandan Supreme Court had in fact not read the Philippines case that they were referring to. This seems so from the fact the Court attributed to that case the same erroneous holding that the Supreme Court of Kenya had attributed to it.

The Philippines case in question is Douglas R Cagas vs. the Commission on Elections & Claude P. Bautista. The Supreme Court of Kenya – like that of Uganda — quoted the case as an authority for the proposition that “technological breakdown” should not affect “the integrity of the electoral system.” But as pointed out in my analysis of the Kenyan judgment in The EastAfrican in 2013, the Douglas R. Cagas case involved a procedural technicality, not the role of technology in elections.

The petitioner, Douglas R. Cagas, won the governorship of the region of Davao del Sur. In his efforts to fob off and defeat the petition filed by his competitor, Claude P. Bautista, Cagas raised a procedural point to block Baptista case, which was then pending before the Election Commission.

He wanted the case dismissed on the ground that the petition had impugned election machines when the court had already ruled these machines reliable and accurate in the earlier case of Roque, Jr. v. Commission on Elections.

Borrowed errors

The Court merely refused to formulate a general presumption of reliability of technology. Just what the Court would have said about the reliability to be attributed to machines was never considered.

The Supreme Court of Kenya cited this case as a makeweight for its own failure to inquire into the cause of the systematic failures of electoral technology in Kenya. Thus, both Supreme Courts have taken a statement that the Philippines court made in passing on an issue that was not directly before it, as authoritatively settling the issue of technology.

But the borrowing raises problems much deeper than proper legal citation and attribution. Like the Supreme Court of Kenya, the Ugandan Supreme Court imposes an impossible burden on a petitioner: That is, he must prove not only that illegalities were committed but also that those illegalities affected the result of an election.

In this case, petitioner Mbabazi would have had to show that without the illegalities he had complained of, he rather than Museveni would have won the election.

But framing the legal principle in this way — which is remarkably similar to how the Kenya Supreme Court framed it — leaves a petitioner in the lurch: Illegalities can be comprehensive and widespread and yet a petitioner may still not be able to prove that they have affected the result.

Take voter intimidation, for example. Suppose the government deploys soldiers outside polling stations in opposition strongholds on voting day to keep out voters. How could a petitioner prove that this clearly illegal action “substantially affected the result?” There is just no statistical way of demonstrating to a court that votes that were never cast would have been cast for the losing candidate. No one can prove victory counter-factually.

Other illegalities are the same: The Electoral Commission could illegally deploy biometric registration kits in a discriminatory way so that opposition areas are substantially under-registered.

Polling officials could even stuff ballot boxes in ways that make accountability for the final result impossible, say votes are stolen from the candidate who came second and given not to the winner but to candidates who were third and fourth respectively. This can affect the result and yet still leave the runner-up unable to prove that he rather than the announced winner was the leading candidate.

This problem is created by a simple mistake in the way the two courts have framed the legal principle. There are two ways in which an election can be invalid. First, it can be invalid from errors and irregularities whose impact can be statistically shown through recounts or ballot scrutiny, such as wrong tallying. Second, and differently, an election can be invalid because of widespread illegalities whose impact is almost impossible to show statistically.

Both the Kenya Supreme Court and the Uganda Supreme Court have conflated these two grounds of invalidity: Irregularities that can be arithmetically shown to have affected the result and illegalities that are so extensive that they can be reasonably inferred — not shown — to have affected the result.

Kenya's Supreme Court judges during a past case. PHOTO | FILE

The first ground focuses on the numerical impact of the irregularity while the second ground focuses on the scale of the illegality. Lord Denning summarised the law on this matter in three basic propositions in the leading case of Morgan v. Simpson.

• One, an election conducted so badly that it does not substantially comply with law is invalid irrespective of whether the result was affected or not.
• Two, an election that substantially complies with the law is valid even when some rules and procedures have been violated so long as those violations have not affected the result.
• Three, if however, an election complies with the law but breaches the rules and procedures in a manner that affects the result then that election is invalid.

By joining Denning’s third point to his first one, the two Supreme Courts have erected serious legal obstacles in the way of anyone who challenges the results of a presidential election in Kenya and Uganda.

The third incident concerns appointment of judges in which it is Kenya that seems to do the copying. In January 2014, the Judicial Service Commission submitted the names of 25 judges to President Uhuru Kenyatta. For months, Kenyatta would not act and then abruptly he appointed 11 of the 25, leaving 14 in limbo.

In July, seven months later, the Law Society of Kenya went to the High Court seeking orders to compel President Kenyatta to appoint the 14. Before the Court could rule on the matter, the president acted, arguing that he had delayed the appointment to do further background checks.

Few lawyers took that claim seriously. The roles and powers of both the JSC and the president are set out in the Constitution in a manner that makes it clear that the president is constitutionally obliged to appoint judges interviewed and scrutinised by the Judicial Service Commission. The claim that he has residual discretion to do further vetting seemed like a ploy to screen those appointed for political reliability.

Kenya copies Uganda

President Kenyatta’s actions could well have been scripted in Uganda. The year before, 2013, the judiciary in Uganda was seriously understaffed: the Court of Appeal had only seven of the 15 judges it should have had; the Supreme Court had only five instead of the 11 that it needed.

The problem was worse in the High Court, where only 50 of an establishment of 82 were in position. As with Kenya, the Judicial Service Commission, had selected and forwarded the names of the additional judges to be appointed to the Supreme Court and the Court of Appeal to make up the shortfall.

President Museveni demurred, arguing he could not appoint them because the money to pay for additional judicial positions had not been set aside under the Uganda Budget Act. He also said that the law did not set a timeframe within which appointments had to be made.

These arguments were rehashed when the case came before the trial division of the East African Court of Justice in Arusha. The Court ruled in favour of President Museveni, saying that he had not acted arbitrarily in refusing to appoint.

An appeal was filed to the appellate division of the same court but, as happened in Kenya, it may already have been overtaken by events. In 2015, while the trial was going on, President Museveni made the additional appointments: The Supreme Court now has nine judges, 10 including the deputy chief justice — Mr Kavuma — who is the presiding judge of the Court of Appeal.

The Court of Appeal now has 13 judges. That both Kenyatta and Museveni acted just as matters got to court casts doubts on the arguments that they had made to justify their earlier inaction.

What are we to make of all this? Taken together, these copycat decisions suggest that, in a cynical way, the East African Community does work, just not the way that many Kenyans and Ugandans would have liked to see it work. Most East Africans would think that the fact that East Africa is a community of values should not be read as committing member states to common standards of folly and impunity. The Community is not a suicide pact.

Wachira Maina is a constitutional lawyer.