The Promotion of the Rule of Law in Uganda During the COVID-19 Pandemic

By: Aryamanya Rodrick, Bishop Stuart University, Uganda

ABSTRACT

The doctrine of Rule of Law ordinarily implies that the law is supreme. In essence, every person is subject to the law. The Concept of Rule of Law is espoused with three cardinal elements namely; supremacy of the law, equality of all and fairness or justice. All these elements portray that at all times the law should be the overall principal. For a state to effectively run, there should be a law that holds state actors accountable. In a bid to define the Rule of Law as per the global standards, the World Justice Project identified a few cardinal points inter alia; the government and its officials including the citizens are accountable under the law, the laws are clear, publicized, stable, just and protect fundamental human rights and then, the process by which the laws are enacted, administered and enforced is accessible, fair and efficient. Due to such, the current standards of Rule of Law are measured by the various socio-economic and political interests and standards. Therefore, with the prevailing dark shades (circumstances) influenced by Covid-19 Pandemic, in my opinion as a Law student who is well-versed with the basic knowledge of the concept of Rule of Law, I choose to avow that the concept in this period has been improbable, impractical and thus a myth, however there have been some efforts made to curb the shortfalls within question in order to promote the rule of law in Uganda, as my essay will observe.

INTRODUCTION

A threshold question, as I begin my observation, is what we mean by the words “the rule of law?” It’s a phrase that has been used with increasing frequency in recent years. The words are often invoked to support a variety of political agendas. Albert Dicey, a British lawyer and scholar, addressed the meaning of the rule of law in an important book in 1885.[1] In “The Rule of Law,” Dicey offered a definition of the words, after first noting what many other writers have noted: that the phrase is very difficult to define. Dicey concluded that the term included at least three concepts: first, the supremacy of the law as opposed to arbitrariness or even wide discretion by governments; second, the equality of all persons before the law; and third, in England, principles establishing the rights of individuals developed by case law through the centuries in that country.

Promotion of rule of law in modern times of the Covid-19 pandemic patch has been a hard nut to crack, different brains of all backgrounds invoke the rule of law as both the means to an end and as an end in itself. Everyone, it seems, is in favor of the rule of law amidst the pandemic though it is still lacking to the expectations of the citizens. Notwithstanding the above, globally the concept of Rule of Law is one of the most celebrated concepts by civilized nations. In this modern day, every state strives to respect the Rule of Law. Governments in different states including Uganda have put up structures to ensure that the Rule of Law is “upheld”. Therefore, as the essay question requires or directs, I choose to analyze the concept of Rule of Law amidst the pandemic in Uganda in various aspects of both socio-economic and political conditions as explained hereunder;

As reflected in Article 3 of the Constitution,[2] this clearly elaborates on the supremacy of the Constitution; the supreme law of the land. This was a ray of hope to the people of Uganda. To further and strengthen the Rule of Law, a whole chapter was dedicated to bill of rights.[3] The bill of rights enshrined a number of human rights in pursuit to uphold the Rule of Law for instance the Right to Freedom of Speech, Expression and Association among others. With such constitutional rights, the Covid-19 Pandemic has brought to the fore several basal human rights violations including the brutality by the security forces (Covid-19 guidelines enforcement teams), election violence of 2021, and other crimes against humanity and mostly the vulnerable, this has seen an increase in the watering down of the rule of law efforts. Therefore, as the government had initially set up a Human Rights Commission, it should go ahead and institute an efficient skilled committee to fill the gaps within, as a way of fighting to enforce and promote human rights as per required by the rule of law.

Article 22 and 24 of the 1995 Constitution of Uganda gives the right to life and respect of human dignity and protection from inhuman treatment.[4] In this Covid-19 period, there have been arbitrary arrests, the unnecessary violence against civilians and the extra-judicial killings that have characterized the campaign period, thus stifling the civil and political freedoms particularly of members of the opposition and their supporters.[5] These acts of the security forces against humanity truly undermined the concept of rule of law in a democratic country of Uganda, but very fortunate the Uganda Law Society carried out extensive independent enquiries into the matters arising from the community and as a result, the Uganda Law Society called for an independent judicial-led inquest into each of the lives that had been lost as a result of the unfortunate incidents. The law provides under Section 10 of the Human Rights (Enforcement) Act 2019 that a public officer who individually or in association with others, violates or participates in the violation of a person’s rights or freedom shall be held personally liable for the violation notwithstanding the state being vicariously liable for his or her actions. As a result of this effort, we witnessed prosecutions of the security officers that had participated in the violation of human rights and some of them are still facing the might of the law hence observing the promotion of Rule of law in Uganda amidst the Covid-19 pandemic.

Furthermore, the Rule of Law during the Covid-19 period has been promoted through ensuring that the restrictive measures put in place by the task force during the health emergencies are rule of law-based. This strategy has influenced the making of Rule of law-based legal frameworks which has allowed careful balanced health emergency measures consistent with the International Health Regulations [2005][6] as well as with human rights standards as articulated in key instruments, including the Universal Declaration of Human Rights, and the International Covenants on Civil and Political Rights (ICCPR) and Economic, social, and Cultural Rights. Therefore, relating to the context of Covid-19, Uganda has introduced broad and sometimes draconian measures curbing freedoms of movement, speech and assembly in the name of public health. As a law student, I believe that adherence to the rule of law requires that restrictions be clearly defined in national law without ambiguity or misinterpretation by officials, preventing the arbitrary or excessive use of power. Where rights violations do occur, adherence to the rule of law ensures individuals can challenge violations and receive redress through an independent judiciary. Therefore, emergency laws placing restrictions on human rights must respond to a pressing public or social need, pursue a legitimate aim and be proportionate to that aim. On March 13, Minister of Health Jane Ruth Aceng issued an order declaring Covid-19 a “notifiable disease for the purposes of the Health Act.” This order is applicable to Covid-19 outbreak provisions of the Public Health Act concerning the power to make rules, prevent and suppress infectious diseases.[7] This order was issued based on authority granted to the minister of health by Section 10 of the Public Health Act. Officials while enforcing these guidelines and restrictions are encouraged to use no more restrictive measures than required for the achievement of the purpose of the limitation and should not be extended indefinitely. With such, I realize that the government’s recovery efforts of providing concrete pathways to address emergency aftershocks and pursue social and economic recovery, while rebuilding resilience is a great promotion of Rule of Law amidst the Covid-19 pandemic in Uganda. The Rule of Law has promoted effective legislative measures in line with state obligations to progress economic, social and cultural rights, such as essential primary health care, adequate food and nutrition, and basic shelter and housing. Herein, the President of the Republic of Uganda H.E Yoweri K. Museveni has appointed and formed committees such as the “Covid-19 National Task Force” among others, and of which they are mandated with an obligation of laying up work plans for the recovery and protection of the socio-economic relations.

More so, the Rule of Law in Uganda during the Covid-19 pandemic has been promoted through the administration of justice to the people. It is agreed upon in the social setting of the society that when individuals do not have access to justice and redress mechanisms, other aspects of their lives are adversely affected. Unresolved legal problems can result in further legal, social and health-related costs, whereby people fall into poverty and thus stunt inclusive growth and resilience. Basically, a rule of law-based response also provides access to remedy for people who suffer from socio-economic impacts of the COVID-19 crisis and those whose rights have been violated. With such impacts of Covid-19, I have realized also that long-term injustices drive grievances and disrupt social cohesion and peace, therefore justice institutions are essential for a Rule of law-based response as well as sustainable development, helping individuals and businesses share prosperity and reduce poverty.[8]

In addition to the above, Rule of Law in Uganda during this Covid-19 pandemic has been respected and promoted through the use of new digital systems in administering justice and investigating criminality against humanity, this has been ensured by creation of new avenues for hearings to take place, installation of high security digital machines such as cameras to observe security and peace, of which the result is promotion of Rule of law governance system. In these instances, the courts will have in place sanitizers, temperature thermometers and will observe the SOP’s in a way of disregarding the absolute closure of Courts. On March 19, 2020, Chief Justice Bart M. Katureebe issued a circular suspending all hearings and appearances for a period of 32 days; however he continued and said that courts will continue to hear “certificates of urgency” and take pleas “for serious cases and bail applications.” Arising from the efforts of the judiciary to have these court proceedings continue, there has been an initiation of digital court conferencing whereby courts continue to hear matters even without the parties necessarily appearing physically in court. This has enabled the continuation of the practicability of Article 28 of the Constitution[9] which would have been silenced by the Covid-19 pandemic if at all these solutions were not thought about and put in place. Though not all that efficient, at least courts have continued to hear cases and some of the offenders of the law have been brought to book as the law requires, and thus realization of promotion of Rule of Law in Uganda.

More so, Uganda has facilitated the promotion of Rule of Law in the Covid-19 pandemic through fostering participation, involving and empowering individuals in decision-making processes for which the public health measures and recovery efforts must be understood and supported to be successful. This requires participation by individuals in decisions related to their lives and health at local, national and international levels. Also, the adoption of just and equitable legislative measures in line with state obligations to progress economic, social and cultural rights such as essential primary health care, is an essential step to support recovery and help build resiliency for the next global health emergency. Hence, as Uganda continues to adjust to the Covid-19 pandemic, substantial justice gaps and declining commitment to the rule of law are anticipated to continue, resulting in democratic backsliding, reduced trust in government, worsening multilateral cooperation, stagnating economic development and poor public health outcomes.[10] With such, commitment to the rule of law and investments in justice systems and participatory policymaking will be required to help communities unite and maintain social cohesion, in the face of social and economic stresses resulting from the pandemic. Therefore, I recommend the following rule of law actions which can work hand in hand with the aforementioned efforts, to help and support an effective response to the Covid-19, while furthering development goals, resilience and modernization of the justice sector, and these are; ensuring that emergency restrictions are anchored in the Rule of law, Invest in justice services and expand legal aid, Foster participation and empowering individuals in decision making processes, among many others.

CONCLUSION

In a nutshell, together these rule of law values ensure that individuals are offered their best chance of fulfilling their maximum potential. Although there is a degree of willingness to uphold the Rule of Law by different actors, there remains much to be done to ensure that the spirit of defending and promoting the Rule of Law is justified. The rule of law, in the purist sense, is an ideal, a goal, something to be strived for. Its presence or absence should be judged in relative terms; what is possible in an advanced western democracy may not be possible in a developing nation like my country Uganda. No country may rightfully claim perfect adherence to these ideals. Therefore the above presents the efforts and initiatives taken by the government and other private institutions in Uganda as regards the promotion of Rule of law vis-à-vis issues that have more so been amplified by the Covid-19 Pandemic. The rule of law should be viewed as a lodestar to which countries can turn for guidance now and in the future therefore it is our most fundamental value.

[1] ALBERT V. DICEY, The Rule of Law, in INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 181 (St. Martin’s Press 1959) (1885). “The Rule of Law according to A.V. Dicey means that no man is punishable or can be lawfully made to suffer in body or goods except for distinct breach of law and no man is above the law.” [2] The 1995 Constitution of the Republic of Uganda, as amended [3] Chapter 4 of the Constitution of the Republic of Uganda, 1995. [4] This is an inalienable right under Article 44 of the Constitution of Uganda 1995, as amended [5] Dan Wandera, “Police accused of blocking NUP activities in Nakaseke,” Daily Monitor, October 28, 2020 [6] World Health Organization, International Health Regulations [2005], Third Edition, available: https://www.who.int/ihr/publications/9789241580496/en/. [7] Public Health (Notification of COVID-19) Order No.45, S1 (2020), Public Health Act. [8] World Bank, Justice and Development; available: https://www.worldbank.org/en/topic/governance/brief/justice-rights-and-public-safety. [9] The Constitution of the Republic of Uganda 1995, as amended. [10] Ministry of Health/ Government of Uganda/ Covid-19, www.health.go.ug