The Ghost of Exparte Matovu In Uganda

Introduction

In uganda, there existed a theory that has, for over half a century, dictated the boundaries of power and the limits of the law. This is the “Ghost of Ex Parte Matovu.” Born in the barbaric season of the 1966 constitutional crisis, the landmark decision in Commissioner of Prisons v. Matovu [1966] EA 514[1] did more than merely resolve a  writ of habeas corpus application, it altered the DNA of Ugandan legal system. By puting into work the Hans Kelsen’s “Pure Theory of Law” to validate a violent seizure of power, the High Court of Uganda effectively institutionalized the right of mightover the might of right.This article provides a critical analysis of the  judgment in Ex Parte Matovu, pointing the legal doctrines it birthed, the effects it had on the rule of law, and the ongoing efforts to finally exorcise this ghost from the legal system. The forcus here is that while Matovu was framed as a  judicial response to political reality, it established a dangerous precedent of judicial passivity that haunted Uganda’s democracy for a long time, only beginning to fade with the coming of the 1995 Constitution.

The 1966 Crisis

To understand the decision or judgement in this case,one must first understand what happened in this case. In the year 1966, the unexpected  post independence alliance between Prime Minister Milton Obote and the Kabaka of Buganda, Sir Edward Mutesa who served as the ceremonial President, collapsed. In a series of disagreements, Obote suspended the 1962 Independence Constitution,  detained several cabinet ministers, and went to assume all executive powers. By this,he brought what came to be known as the Pigeon Hole Constitution of 1966, because Members of Parliament found copies in their pigeon holes only after they had been asked to pass it without prior parliamentary debate.

Michael Matovu,a citizen of Uganda and also a proud Saza chief in buganda kingdom, was detained under a law known as the Emergency Powers (Detention) Regulations of 1966[2] which allowed Milton Obote to arrest him. Matovu challenged his detention through his lawyer, arguing that the regulations were unconstitutional and that the 1966 Constitution[3] itself was invalid as it had been established in violation of the 1962 legal order,therefore applied for the constitutional writ of habeas corpus which required him to be brought before court either alive or dead.Because matovu was detained by Obote and his whereabout was not known by anyone . So,the case presented the High Court with a choice either to uphold the law as it was written in 1962, or recognize the reality of the power currently being exercised on the streets of Kampala by Milton obote .

The Hans Kelsen’s Theory  Used As A Saviour

When this matter reached the high court of uganda ,The presiding judge, Chief Justice Sir Udo Udoma and the three other judges were faced with the absence of a legal source that they can rely on to guide their judgement since there has not been any writing on a matter such as this. After when the court failed to find any constitutional or legal publication or document on this matter especially in Uganda’s judicial system,the court turned to the legal philosophy of Hans Kelsen to resolve this dilemma. Kelsen’s Theory provides  that every legal system is built upon a grundnorm ,which is a basic norm from which all other laws derive their validity. The grundnorm is the Constitution. According to Kelsen, a successful revolution or coup d’état destroys the old grundnorm and replaces it with a new one. He stated that If the new order is efficacious, meaning if the people generally obey it and the government is in effective control,then it becomes the new legal order of the state.

In Ex Parte Matovu, the Court relied on the Hans Kelsen theory, made its  judgement that the events of 1966 constituted a victorious revolution in law. The 1962 Constitution had been swept away, and the 1966 Constitution[4] had become the new grundnorm. The Court reasoned that since the new government was in effective control and the 1962 order had no political reality left, this puts the judiciary in no  any other choice but to recognize the new legal order. The application of Kelsen was revolutionary. It suggested that the law is not just a static set of moral or procedural rules, but a reflection of whoever holds the biggest gun, provided they know how to use it and in fact use it effectively at that moment.

The Misuse of Legal Positivism

The analytical aspect in the  case of Matovu judgment falls in its transition from descriptive theory to normative justification because he was nothing but a legal positivist and his theory was intended to describe how legal systems function, not to provide a moral or legal justification for coups. By using Kelsen to validate Obote’s actions against Kabaka mutesa’s government, the Court transformed a tool of sociological observation into a weapon of political legitimation.This is again seen later in the overthrow of Dr.Milton Obote by Iddi Amin Dada in 1971 where Iddi Amin followed the same Hans Kelsen Theory to justify the legitimacy of his action. In the year 1986 Yoweri Kagutta Museveni also used the same means to come into power and used the Hans Kelsen’s theory to justify his coup.

Furthermore, the Court’s reliance on the “Political Question Doctrine” and the “Doctrine of Necessity” created a shield behind which the executive officers could hide. The High Court argued that while it could interpret the Constitution, it could not question the validity of the government itself. This created an ironical legal situation where the judiciary claimed to be the guardian of the 1962 Constitution while at the same time admitting it was powerless to stop that Constitution from being torn apart by the executive. This was not just a legal error, it was a judicial surrender.

The Effects of Matovu on the Rule of Law

The immediate effect of Ex Parte Matovu was to provide a legal support  for Milton Obote’s dictatorship. However, its long term impact was far more insidious. By validating the1966  Milton Obote’s coup, the High Court opened the way for the even more brutal regime of Idi Amin Dada. When Amin seized power in 1971, his legal advisors merely pointed to the Matovu precedent. If a successful revolution creates a new legal order, then Amin’s coup was just as valid as Obote’s.So,by this,the “Ghost of Matovu” therefore became a blueprint for every aspiring autocrat in Uganda’s history.

The “Doctrine of Revolution” created some sort of culture of judicial passivity. For so many years, the Ugandan courts were reluctant to challenge the executive on matters of constitutional importance whenever they arose to be handled. The Political Question Doctrine, as interpreted in Matovu, became like a convenient excuse for the judiciary to avoid sensitive cases. This erosion or fading of the rule of law  has led to a state of affairs where the Constitution itself was seen not as a sacred and holy contract between the state and its citizens, but as a temporary document that could be done away with at the expense of the powerful.

The impact was not limited to  only Uganda. The Matovu judgment was cited in other Commonwealth jurisdictions, such as Pakistan and Ghana, where courts found themselves with similar issues of extra constitutional change. In Pakistan, the Dosso case (which Matovu relied upon) was later overruled in the case Asma Jilani v. Government of Punjab [1972] PLD SC 139, where the Supreme Court of Pakistan finally recognized that  Hans Kelsen’s theory was more of a descriptive tool for legal scientists, not a rule for judges. But Uganda was however,  slower to reach this realization.

Exorcising the Ghost Of Ex Parte Matovu

The first and the major blow to the Matovu doctrine came in the famous case of Kayira v. Rugumayo [1979] Constitutional Case No. 1.[5] Following the overthrow of Idi Amin, the legitimacy and validity of the newly formed Uganda National Liberation Front (UNLF) government was challenged. The Court of Appeal (sitting as a Constitutional Court) began to distance itself from the rigid Hans Kelsen’s theory used in the case of Matovu. While the Court still recognized the reality and presence  of the revolution, it interested itself and pointed that the judiciary must remain the supreme proclaimer of constitutional validity any revolutionary government that has overthrown the ruling government.

The real exorcism,however, began with the enactment of the 1995 Constitution. Of course we cannot talk about the killing on the hans Kelsen’s theory without appreciating the promulgation of the 1995 constitution because the framers of this Constitution were very aware of the “Ghost of Matovu” and sought to put a final end to it and  ensure it could never return. Article 1(1) of the 1995 Constitution[6] explicitly states that all power belongs to the people, and Article 3 provides a core and undisputable defense of the Constitution:

“Any person who, alone or in combination with others, by any violent or other unlawful means, suspends, overthrows, abrogates or amends this Constitution or any part of it, or attempts to do any such act, commits the offence of treason.”

Furthermore, Article 3(2)[7] states that this Constitution does not lose its validity even if it is successfully overthrown. This article sounds like a direct repudiation of the Hans Kelsen’s Theory because Under the 1995 Constitution, a successful coup is still a crime, and the Constitution remains the supreme law, waiting for its eventual restoration.This again means that when a person organizes a coup d’état against a ruling government and indeed succeeds in it even though he or she overturns the Constitution by establishing a new one,such a person shall  by the promulgation of Article 3(3)[8] of the 1995 Constitution be deemed to have committed treason and shall be tried using the same.

From Ssemogerere to the Age Limit Case

In the years following 1995, the judiciary of Uganda has shown a renewed commitment to constitutionalism in many aspects of cases . In Ssemogerere v. Attorney General [2004] UGSC 10,[9] the Supreme Court of uganda struck down a major piece of legislation, pointing that it would no longer be a solid stamp for the executive arm of the government. By this, the Political Question Doctrine has been brought to nothing, and the courts have become increasingly willing to intervene and give their opinions in matters of high political sensitivity.

The most recent litmus test of this new spirit in the legal field of Uganda was the  case  of Age Limit Case of Mabirizi v. Attorney General [2018] UGCC 4[10]. While the Court strongly upheld the removal of presidential age limits, the very fact that this case was heard and debated with such boldness is a testament to how far Uganda has come from the days of Matovu. A politically careful person may observe that The Ghost of Exparte Matovu still moves around the legal field of uganda,sometimes appearing in the form of executive pressure or judicial caution but it no longer reigns supreme.

The Tension Between Might and Right

At its peak, the Matovu judgment points to the eternal tension in the legal philosophy between what we may separate as might and right. The Court in 1966 was faced with a stark reality blow if they ruled against the government, their orders would likely be ignored, and they might even be arrested as well. By choosing to validate the coup, they preserved the existence of the judiciary at the cost of its integrity.This is what most people would choose to call as “judicial wisdom” in Uganda.

Some top notched scholars argue that Matovu was a pragmatic compromise that allowed the legal system of Uganda to continue operating during a time of total collapse. Without Matovu, they argue, there would have been no law at all, only anarchy. However,i would only say this view ignores the long term cost of such a compromise because when a court validates a coup d’état, it tells every citizen that the law is not a shield for their rights, but a tool for their oppression. The “Ghost of Matovu did not just validate a government,it invalidated the very idea of constitutionalism in the minds and blood of the people.

The similarity drawn in cases like Sallah v. Attorney General in Ghana or Madzimbamuto v. Lardner Burke[11] in Rhodesia shows that many courts in the Common law have struggled with this issue for a good number of judicial years. The acceptable remedy that has emerged lately in many states today is that the “Doctrine of Necessity”should only be used to preserve the state, not to validate the destruction of the constitutional order.

Conclusion

In a nutshell, the Ghost of Ex Parte Matovu[12] serves as a strong reminder that the law is only as strong and powerful as the people who are willing to defend it. A constitution is not just a piece of paper,it is a living covenant between a state and its future. If the judiciary allows that covenant to be burnt out in the name of political reality, then to me,the law ceases to be a guide for justice and becomes merely a tool for the powerful and by that The ghost may still continue to haunt the doors of justice, but the light of constitutionalism is growing brighter and brighter everyday.

Bibliography

Cases

• Asma Jilani v. Government of Punjab [1972] PLD SC 139
• Commissioner of Prisons v. Matovu [1966] EA 514
• Dosso v. Federation of Pakistan [1958] 2 PSCR 180
• Kayira v. Rugumayo [1979] Constitutional Case No. 1
• Mabirizi v. Attorney General [2018] UGCC 4
• Madzimbamuto v. Lardner-Burke [1969] 1 AC 645
• Sallah v. Attorney General [1970] 2 G & G 493
• Ssemogerere v. Attorney General [2004] UGSC 10
• Tinyefuza v. Attorney General [1997] UGCC 3

Statutes and Constitutions

• The Constitution of the Republic of Uganda, 1962
• The Constitution of the Republic of Uganda, 1966
• The Constitution of the Republic of Uganda, 1995 (as amended)
• Emergency Powers (Detention) Regulations, 1966

Books and Journals

• Hans Kelsen, General Theory of Law and State (Harvard University Press 1945)
• Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967)
• George W. Kanyeihamba, Kanyeihamba’s Commentaries on Law, Politics and Governance in Uganda (Renaissance Media 2006)
• Joe Oloka-Onyango, ‘The Ghost of Ex Parte Matovu: Kelsen in the Courts’ (2015) SSRN Electronic Journal
• F.C. Daly, ‘The Portable Coup: The Jurisprudence of “Revolution” in Uganda and Nigeria’ (2021) 39 Law and History Review 123

[1] [1966]EA 514

[2] 1966 Emergency power regulations

[3] 1995 Constitution of the Republic of Uganda

[4] Ibid

[5] [1979]Constitutional case No.1

[6] Art 1,1 of the 1995 Constitution

[7] Art3,2 of the 1995 Constitution

[8] Art 3,3 of the 1995 Constitution

[9] [2004]UGSC 10

[10] [2018]UGCC 4

[11] (1945)1SSHC 2

[12] Ibid