Suo Motu Jurisdiction: Uganda Needs the Supreme Court to Step Up and Seize the Gauntlet

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The Supreme Court of India recently did something no ordinary court does: it opened a case that nobody had filed.

Troubled by a series of rape incidents, the Court registered a case, appointed a lawyer to advise it, summoned the Solicitor General and requested the Commissioner of Police, among others, to file affidavits personally.

The Court said it was not interested in multiplying protocols on paper; it wanted to know whether existing mechanisms were working. It warned that senior officers would be made personally answerable if their directions were not taken seriously.

It also reminded the State that citizens must be protected not only from crime, but equally from unlawful or disproportionate exercise of State power.

That is the essence of a suo motu jurisdiction: the power of a court to act without waiting for a case to be brought to it.

The people most in need of justice are frequently those least able to ask for it: the poor, the frightened, the detained, the dead, and the voiceless environment itself.

A court that only hears those who knock will never hear them.

Suo motu jurisdiction allows the Supreme Court to embed itself in the life of a nation and to serve as a living guarantor of justice, rather than a passive arbiter of whatever disputes happen to arrive at its door.

Acting to save the environment in India: Kamal Nath and the River Beas

The classic demonstration of this power is M.C. Mehta v. Kamal Nath.

Acting on a newspaper report, the Supreme Court took notice of the activities of a hotel developer who had encroached on forest land and altered the course of the River Beas.

No private litigant had the standing, resources or appetite to take on a politically connected enterprise over a river that belonged to no one and therefore to everyone.

The Court’s response became a landmark of environmental jurisprudence.

It held that the State holds natural resources such as rivers, forests and the seashore in trust for the public – the public trust doctrine, and that it cannot hand them over to private interests for commercial convenience.

The lease was quashed; the company was ordered to restore the river and its surroundings and pay compensation for the damage done.

Where the injury is diffused, the victims scattered and the wrongdoers powerful, ordinary adversarial litigation fails.

A court that is willing to act of its own motion becomes the guardian of interests that would otherwise have no guardian at all.

This landmark case was first brought to my attention probably in the early 2000s, by Professor Okidi (RIP) and Kenneth Kakuru (RIP) at an environmental law training sponsored by the National Environment Management Authority under the guidance of Robert Wabunoha.

We marvelled then at the courage of the Indian court and called on our courts to do the same.

Does the Supreme Court of Uganda have suo motu jurisdiction?

Under the Constitution, the Supreme Court is principally the final court of appeal.

Its original jurisdiction is limited to presidential election petitions.

The Judicature Act, which governs the jurisdiction and procedure of the superior courts, frames the Supreme Court’s work largely in appellate terms.

There is no express clause, equivalent to that of the Indian Constitution, which confers a free-standing power on the Supreme Court to initiate proceedings of its own motion.

However, the Constitution declares that judicial power is derived from the people and must be exercised in conformity with the law and with the values, norms and aspirations of the people.

It commands that substantive justice be administered without undue regard to technicalities.

The Constitution permits any person or organisation to bring an action for the violation of another person’s rights.

The Constitution already obliges all organs and agencies of Government, the judiciary included, to respect, uphold and promote fundamental rights.

Ugandan courts have also long recognised that superior courts possess inherent powers to make such orders as are necessary to secure the ends of justice.

Read together, these provisions supply the materials from which a principled, suo motu practice could be built.

Three routes suggest themselves.

First, within matters already before it, the Supreme Court can use its inherent powers to call for reports, appoint friends of court and issue supervisory directions.

Second, as head of the judiciary’s administration, the Chief Justice and the Court can use their administrative and supervisory authority to demand explanations for unexplained delay in the lower courts, especially in habeas corpus matters, where delay is itself a denial of the remedy.

Third, the Court can develop doctrine by reading the constitutional commands as a positive duty to act where rights are gravely threatened, and no other avenue is effective.

The limitations are real: the separation of powers, the risk of the Court appearing to take sides, the need for fair hearing for those affected, and the absence of an express textual mandate.

But these are reasons for discipline in the exercise of the power, not reasons for its absence.

Where such power is needed now

Enforced disappearances and incommunicado detention

Habeas corpus is meant to be the swiftest remedy known to the law. The Constitution says it cannot be suspended.

Yet the recent habeas corpus application for Sam Mugumya continues to be adjourned in the High Court.

Each adjournment is another day in which Sam’s liberty, and possibly his life, is left in the hands of those who refuse to account for him.

The case of John Bosco Kibalama is graver still: he disappeared and has never been seen again.

When the remedy designed to produce the body of a detained person cannot do so, the constitutional promise becomes hollow.

Let us also remember how the case of the Kenyan duo of Nicholas Oyoo and Bob Njagi left egg on our judicial face.

The two were abducted while attending Bobi Wine’s campaigns. An application for habeas corpus was filed.

The State denied holding them. Judge Simon Peter Kinobe then infamously said he “could not squeeze blood from a stone” and dismissed the application.

A few days later, President Museveni casually admitted at a public event that he was holding the two Kenyans in his “freezer.” They were subsequently released.

Can we continue to pretend there is nothing wrong with the Chief of Defence Forces running an illegal political organisation and operating a torture chamber?

The evidence is plain for all to see. Whether it is the political endorsements of Members of Parliament or the public, or stories and leaked videos from the infamous basement, or daylight abductions of people never to be seen again.

This is why Uganda needs the Supreme Court to step up and seize the gauntlet.

Only a high-level intervention can stop this slide to carnage.

And the time is now to break the silence by speaking for others, shunning the pseudo-safety of silence, lest Niemöller’s poetry come alive to you.

If you do not speak up for others, the time comes when nobody will speak up for you.

A Supreme Court willing to act of its own motion could call for the record of such applications, require the State to produce detained persons or explain their whereabouts on oath, and make named officers personally answerable, precisely as the Indian Court did with India’s senior police officers.

A state’s primary duty is to protect its citizens. A court’s primary obligation is to enforce the rights of the citizens.

Environmental and urban heritage destruction

Environmental groups filed a suit to challenge the allocation of the Nakivubo Channel. The case is still pending.

But the private developer is collecting rent from the completed commercial development over the Nakivubo Channel.

Litigation that outlives its subject matter is not justice; it is commentary.

This is exactly the situation the public trust doctrine of Kamal Nath was designed to meet, and it sits comfortably with our Constitution.

Are we not likely to witness the same fate befall Constitutional Square?

Public spaces that belong to the nation, and that carry its civic memory, can be lost by delay.

Other hot issues

Conditions in places of detention and chronic delay in criminal trials, the unacceptable loss of lives and property in road crashes are all matters in which the victims are numerous, dispersed and often powerless, and in which no single litigant can carry the burden alone.

Suo motu jurisdiction draws its life from the eyes and ears of the public.

In India, newspaper reports, letters and the work of journalists have repeatedly brought matters to the Court’s attention.

It is the public, as owners of the judicial power, who should draw attention to where they want it deployed.

Which wetland is disappearing? Which detainee has disappeared? Which public space is quietly being parcelled out? Which constitutional promise is broken in plain sight?

Every such issue, environmental, constitutional or human rights-related, is an opportunity for the Court to show that justice in Uganda does not wait to be summoned.

The Ugandan call should be “tusaba courti etuyambe”, not “tusabe gavementi etuyambe.”

The cry of the distressed citizen should be to the court and not to the government.

To the Supreme Court

Courts earn their authority not only by the correctness of their judgments but by their relevance to the lives of the people they serve.

The Supreme Court has the constitutional materials, the inherent powers and the moral standing to become a court that moves when the nation needs it to move.

What it requires is courage: the courage to look beyond procedural formalism, to treat Article 126(2)(e) of [the Constitution] as a command rather than a slogan, and to accept that a court which only waits will sometimes be too late.

Let the Supreme Court be relevant to the needs of the day.

Let it be the court that Ugandans can turn to when every other avenue has failed: when the habeas corpus application has been adjourned once too often, when the bulldozers have arrived before the judgment, and when the citizen who disappeared can no longer speak for himself.

The Supreme Court of India has shown that a court can speak first.

The Supreme Court of Uganda should not be content to speak last.

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