Africa / The Human Rights (Enforcement) Act of Uganda: a practical tool for the Judicial enforcement of Human Rights

By Ochieng Augustine

Oscar Associated Advocates

Kampala, Uganda

Introduction

The national courts in Uganda have been pivotal in guaranteeing the observance of human rights. The Constitution of the Republic of Uganda establishes the Constitutional Court as the forum through which the constitutionality of any acts or laws by both private and public entities can be challenged.[1] It is while interpreting the Constitution of Uganda that the judiciary often exercise their role of enforcing human rights. As a result, the Constitutional Court has frequently pronounced itself on human rights as it interprets the Constitution of the Republic of Uganda. Therefore, there is little doubt as to the role of the judiciary in enforcing human rights in Uganda. However, the effectiveness of the implementation of the judiciary’s decisions is questionable.

The judiciary is heavily dependent on many organs directly answerable to the Executive, like the police, to enforce its decisions.[2] In view of this, the Executive plays a big role in ensuring compliance with judicial orders. This has the impact of undermining the accountability of the executive to the judiciary for its actions.  Adherence to the judicial order by the executive or legislature would be heavily dependent on political will. In such circumstances, the court’s role falls short of being regarded as vehicle for the enforcement of human rights. Numerous cases have illustrated the judiciary’s efforts to enforce rights and how political will has hampered such efforts.

An example was the Constitutional Court in Muwanga Kivumbi v. Attorney General[3] which handled a petition that was challenging the constitutionality of Section 32 of the Police Act.[4] The petitioners alleged that the provision in question, which required one to seek permission from the Inspector-General of Police prior to exercising the right to assemble and demonstrate, were a violation of the freedom of association and assembly. The police were using the provision to disperse political rallies on security grounds yet permission to hold rallies was often unreasonably withheld. The Constitutional Court found Section 32 of the Police Act to be in violation of the right to freedom of association and assembly as guaranteed by Article 29 of the Constitution of Uganda. The court also ordered that the provisions were null and of no effect. This pronouncement by the Court on its own was sufficient to render the provisions of the Police Act inactive in Uganda. Even without amendment of the statute in the circumstances the human rights would have been regarded as enforced.

However, this initial success was watered down by the subsequent enactment of the Public Order and Management Act[5]. The Public Order and Management Act is being challenged for reintroducing provisions that the Court had declared unconstitutional in Muwanga Kivumbi v. Attorney General.[6] The matter was taken to court in 2013 but has never been determined by the Constitutional Court for close to 6 years[7]. And yet, in the same period the Constitutional Court and the Court of Appeal expeditiously heard and determined the initial petition relating to the presidential age limit provision in the Constitution and its appeal.  This was in a period of approximately two years.[8] The implication that judicial independence has been undermined in such circumstances is difficult to avoid. It points to a deliberate delay by the judiciary to avoid making a decision on human rights that is against the interests of the sitting government. This is particularly in view of the fact that the Public Order and Management Act is being selectively exercised to frustrate opposition parties.[9] In this case, the ruling government undermined a judicial decision that on its own would have amounted to enforcement of human rights.

The Human Rights Enforcement Act of Uganda as a Solution to Enforcement of Human Rights by the Judiciary

The Human Rights (Enforcement) Act[10] of Uganda applies to the enforcement of rights and freedoms as guaranteed by the Constitution of Uganda and human rights before a competent court.[11] The Human Rights (Enforcement) Act is a legislation aimed at addressing the challenges that are currently being faced when enforcing human rights especially through the courts.

The Act under Section 9[12] grants courts powers to make orders such as; guarantees of restitution of victims, rehabilitation of victims, and the order of satisfaction. The orders of restitution and rehabilitation place an obligation on parties that violate human rights to ensure that victims of human rights violations are compensated or placed in a situation similar to that before human rights violations occurred. The order of satisfaction is of particular interest to enforcement of human rights because it includes guarantees of non- repetition,[13] measures aimed at cessation,[14] and criminal and administrative sanctions for the human rights violations.[15]

The remedies ease in the judicial enforcement of human rights in that they eliminate the ambiguities that often arise with judicial decisions that do not specifically state how orders relating to human rights are going to be complied with. The order of satisfaction gives the court an avenue to address not just the current human rights violation but future violations of a similar nature as well. The guarantee of non-repetition as an order would counter the tendency of judicial decisions being undermined through the same repetitive violations being committed against different individuals or entities.

The imposition of personal criminal, civil and administrative liability for human rights violations is another feature that would ease enforcement of human rights through the courts.[16] It deprives human rights violators of state or institutional cover and makes them personally liable for their conduct, even when a state or institute has been sued. This would make violators of human rights personally accountable for their actions. This would make government and state agents more accountable for their actions and hence less eager to engage in activities that amount to human rights violations. In enforcing this the Act makes officers liable even when the government is sued vicariously.[17] The Act further requires officers obligated to pay a portion of all compensatory money that is awarded by courts as a result of human rights violations.

The Act also requires court orders to be complied with within a specific period of time given by the court.[18] This constitutes an attempt to make judicial enforcement of human rights more efficient. The time requirement for compliance would go a long way in eliminating the current challenge of numerous court orders whose enforcement is being stalled because of the lack of political will. The time requirement also gives court an avenue to intervene and monitor the enforcement of its orders. This in a way makes government institutions that are subject to court orders for human rights violations more accountable to the court.

The Human Rights Enforcement Act more importantly entrenches observance of human rights and makes courts directly involved in their enforcement.[19] Section 11(2) of the Act gives any Magistrate or Judge the power to render all proceedings before them a nullity where it emerges that non-derogable rights have been violated. The immediate effect of this provision is that it makes courts direct and active enforcers of human rights. Courts through this provision are given the power to be active supervisors and ensuring that government entities conduct themselves in a manner that is compliant with human rights. This ensures that courts are not complicit in legitimising proceedings that are a result of human rights violations.

Conclusion

The judicial role in enforcing human rights has very often been restricted by political will. The judiciary in Uganda lacks sufficient institutional independence to hold government entities accountable for enforcing judicial decisions. The result has often been that enforcement of the court’s orders has been subjected to political will. The Human Rights (Enforcement) Act gives the judiciary a substantial amount of leverage in enforcing its orders. The Act seeks to reduce the role the Executive plays in enforcing human rights and also makes individuals and the government more accountable to the judiciary when it comes to implementing human rights decisions.  In as much as political will plays a big role in how the Human Rights (Enforcement) Act gets implemented, the Act goes a long way in strengthening the role of courts in enforcing human rights.

Click here for reference notes [1] to [19]