In an interview on BBC Hard Talk programme a few weeks ago, the host Zeinab Badawi was to interrogate why FDC’s Dr. Kizza Besigye had continued to fail to mobilize the public behind him. Expectedly, Besigye pointed at the clamp down through rule by law. He further likened Museveni’s regime to that of Hosni Mubarak and dictator Idi Amin Dada. He argued that the direction is the same but what differs was “in extent”. The host was however quick to put to him that in fact, Uganda enjoyed more peace and freedoms than many countries in the region.
The question then is how factual are Besigye’s assertions? At least in as far as the state of rule of law in Uganda is concerned.
Rule of law is an ancient notion which up to date largely remains elusive. We all seem to love it but often either conveniently manufacture our own definitions or bend the existing ones to qualify our ends.
Plato, a strong advocate of rule by a benevolent dictator believed that when the society and government are a slave to the law, the life of men would be better. Aristotle on the other hand sturdily believed individuals are easily prejudiced by selfish passions and therefore would not make just laws. He was a fervent advocate of nomocracy.
In ancient times, the Christians adopted laws from the word of God and so is it for many today.
On the other hand, the Greeks adopted laws from old traditions of the natives and law was generally, inherent. The work of the leader and by inference a government was to exercise these laws accordingly and not make them.
Later around the 16th century, governments started discovering their legislative powers and this was to threaten the very existence of the rule of law ideal.
As a result, nomocracy was disfigured into two principal conceptions as powers that be crafted ways to have control of what was to seek to control them.
The first is the thick or substantive rule of law which is based on a set of laws founded on certain values such as human rights. The second is the thin or formal or procedural rule of law. This conception is based on a set of laws generated by any legislative process. It basically sets specific legal procedures to follow to observe rule of law and stops short of providing room for questioning the quality of the law and its justness.
In essence, my basic reading of the law is that rule of law is not just about the quality of the justice system in courts, police or about law and order. It is much more than just that. In fact, this type of narrow insidious definitions are often deliberately and meticulously employed to imply observance of rule of law yet what it actually succeeds in doing is to unconsciously imply not restraints on the government and those in authority but restraints on the common man.
While assessing rule of law in Uganda, we can look at the state of our judiciary today which has no substantive head, incommunicado detentions of suspects in our congested facilities, restrictions of various civil liberties, flouting of various legal provisions to benefit interests of those in authority and now we have over 50 proposals of constitutional amendments coming up. The detailed facts are in the public domain.
We need to go back to the spirit of our constitution specifically Chapter Four and cultivate substantive rule of law rather than chest-thumping on what is largely formal rule of law. I can tell you, it will be for the greater good.
For further reading on Rule of Law and Constitutionalism in Uganda and proposals for sound constitutional and legal reforms that can help break the conflict trap in Uganda, click HERE for PDF file.