Ghosts and the Law

Abstract

Ugandan law has long been haunted by ghosts. They come in many varied shapes and sizes — as the Common Law itself, as the Doctrine of Precedent and even in the manner, dress, deportment and language of our courts. All these are the ‘Ghosts of History Past, Present and Future.’ In the arena of Constitutional Law and governance the ghost appears in the form of the Political Question Doctrine (PQD), a concept most associated with the 1966 High Court decision, Uganda v. Commissioner of Prisons, ex parte Matovu. But as with all spiritual beings — such as the Roman God, Janus — there are two sides to the case. In other words, there are not just one but (at least) two ghosts of ex parte Matovu. There is the backward-looking one which supported the extra-constitutional overthrow of government in 1966 and paved the way for military dictatorship, judicial restraint and conservatism. And in the same case, there is its reverse which “jettisoned formalism” to the winds, overruled legal “technicalities,” and underlined the need for the protection of fundamental human rights. The jettisoning formalism decision eventually opened the way to a robust and growing industry of Public Interest Litigation (PIL) in Uganda. As we celebrate 20 years of the 1995 Constitution and approach the 50th anniversary of the decision in the case, it is the most appropriate time to look back and consider which of the ghosts of ex parte Matovu has been most successful in influencing the Ugandan body politic. What does the future portend for the life of these fraternal twins?