KAMPALA – President Yoweri Museveni has issued two very controversial directives that have recently spawned debate in the media. In November of this year, he ordered the “Balaalo” with non-fenced farmland in the Greater North (regions of Lango, Acholi and West Nile) to leave the region within three weeks. Most recently, he has written to Chief Justice Alphonse Owiny Dollo regarding the warrant of attachment and sale of the immovable properties of Muslims, among which included the National Mosque at Old Kampala. In the said letter, he masks his order as a “request” to the Chief Justice to “…review this matter yourself and see how to restore sanity.” He concludes the letter by stating that “the NRM freedom fighters and the Government they head, cannot be associated with sick logic.”
Legal experts would tell you that both orders by the president cannot be claimed to be lawful if subjected to the age-old principles of contract law, and partly, the constitutional principle of separation of powers and independence of the judiciary. The directive against the Balaalo meddles with lawful contracts of sale, lease or rent of the land that the Balaalo had entered into with some people who enabled them to acquire the lands from which they have now been expropriated. The directive to the Chief Justice, though shrouded as a request, interferes with the independence of the judiciary to effectively wield the power to review the legality and constitutionality of the acts of public and private entities. We need to understand why the president, any reasonable president, might sometimes make such decisions that abuse the law, in order to save the law from itself.
Tweets and comments on the president’s directives by self-assuming “elites” on Twitter (X) bristled with reverential calls to the rule of law. While principles of the rule of law, like accountability, merit preservation, it is essential to approach them with both context and skepticism, as illustrated by the case of Mufti Shaban Mubaje, who is alleged to have sought protection from the President to evade responsibility in the sale and auctioning of Muslim properties. Certainly, I recommend that Ugandan Law Schools incorporate systematic instruction on the constraints of the law and the potential risks associated with its application, emphasizing the importance of considering the distinctive social-political factors crucial to the very existence of the legal system.
The Balaalo directive by Mr. Museveni was evidently a political decision, aimed at preventing a potential outbreak of violent instability arising from ethnic grievances. On the other hand, the order to the Chief Justice to intervene (actually to stop) in the auctioning of the National Mosque at Old Kampala was also politically made to arrest the potential eruption of wrangles among Muslim clerics and their followers, which in the past birthed the Allied Democratic Forces (ADF).
It’s important to bear in mind that the emergence of ADF resulted from longstanding conflicts over power and control of local mosques within the Ugandan Muslim community, particularly escalating since Idi Amin had consolidated all Muslim leaders under the Ugandan Muslim Supreme Council (UMSC) in 1971. In 1991, associates of the Tabligh community allied with a sheikh contending for UMSC leadership. Following the court’s affirmation of a rival faction’s election, Jamil Mukulu and his group attacked the UMSC headquarters at the Old Kampala Mosque, resulting in the death of multiple police officers. Mukulu and his associates were apprehended and incarcerated in Luzira prison, where they encountered former defectors from the Ugandan army, later evolving into ADF commanders. Therefore, it is literary impossible to know how the next ADF might spring up, or how such a court order as the auctioning of a National Mosque could be received by the Muslim community.
The primary responsibility of the president is to preserve the peace and stability of Uganda. It is impossible to enjoy the subtle mysteries of the rule of law under political instability. Therefore, law will always be subjective and subordinate to the political-economic contestations that produce the dominant ideology which supports the superstructural form of legal rules. That is why the president concluded his letter to the Chief Justice by reminding him emphatically that the NRM freedom fighters and the government they head cannot be associated with such “sick logic”. It was a reminder of the dominating ideology over legal rules.
We cannot wish away the fact that Constitutions, as progenitors of the rule of law, being inherently political documents, are subject to the outcomes of political decisions and contests. Fundamentally, a constitution cannot rely solely on its written content, rather, the effectiveness of its provisions hinges on the equilibrium of political power among diverse social forces and economic interests. Museveni’s directives are, therefore, a quintessential example of the win of social forces over the law.
The writer, Nnanda Kizito Sseruwagi is a lawyer
