What Is Africa’s Problem

4. Colonial versus Modern Law

FOUR Colonial versus ModernLaw Let me take this opportunity to reiterate what I have said many times before, that the NRM government is fully committed to the rule of law, the protection of individual human rights, and the independence of the judiciary. Our country has gone through a traumatic experience for the last twenty or so years, mainly because Obote and Amin had no respect for the rule of law. Their soldiers and security agents had become a law unto themselves because they could murder, rape, and rob with impunity. The liberation war we fought was to restore the dignity and inviolability of the person of every Ugandan and to protect his property. Nobody has the right to take away a person's life, freedom, or property except within the due process of the law. Law is important for the preservation of order and good government. A society without laws would soon degenerate into anarchy and cease to be worth living in. A society with bad laws, on the other hand, isequally dangerous because it is oppressive and dispiriting. "Give me freedom or give me death" was the slogan against feudal oppression in France in the eighteenth century. A kind of "rule of law" exists in South Africa, but there law serves to oppress, exploit, and dehumanize the Africans. Whose Law? We must, therefore, be careful that we do not have laws on our statute books that serve the interests of the minority against the majority of Speech at a law seminar in Kampala, January 12,1987. 19 20 Colonial versus Modern Law our people. When we talk of the "rule of law" we should always ask ourselves, whose law? Against whom are these laws? And in whose interests do they operate? The laws we adopted at independence were colonial laws meant to serve the interests of the colonialists. We must revise these laws to suit our people and our present circumstances. Before the colonialists came, we had laws (which have now been dubbed customary laws) and a system of justice that was organically linked to our society and that was understood and respected by our people. The colonialists stopped the development and evolution of this law and imposed a system of justice that remains incomprehensible to the overwhelming majority of our people. Take the marriage law, for example, which we adopted from the British. Because of its alien nature , many people do not understand it or deliberately ignore its legal consequences. For example, divorce of a wife is allowed on grounds of adultery. Other grounds of divorce found in our traditional society, like insulting one's spouse's parents, are not permissible under the foreign law we have. The laws we adopt must be meaningful and relevant to our people if they are to earn their respect. Law exists to serve society and not vice versa. The principle against retrospective criminal legislation, for example, is something that should be reconsidered. It is common knowledge that Obote and Amin's security agents killed our people in the hundreds of thousands. We cannot enact criminal legislation making it an offense for a person to have been a member of a murderous organization because such a law would be retrospective, and, therefore, unconstitutional according to our present laws. The removal of the retrospective clause from the constitution would meet with stiff opposition from our learned friends both here and abroad for having gone against a sacred principle. The mass murderers of the people of Uganda are, therefore, untouchable. Liberating Law The NRM government is a revolutionary government in law and in fact. It does not owe its legitimacy to the old order, which we overthrew by force of arms. In a revolutionary situation, sometimes practice may be concretized and take form before it is fully legalized. Our Resistance Colonial versus Modern Law 21 Councils, for example, were established in the liberated areas long before we took power, but they are now established all over the country. Steps are now being taken to constitute them legally and to spell out their powers. Our not having done so earlier should not be seen as a manifestation of an intention or desire on our part to act in a lawless manner, but rather because circumstances dictated our actions at the time. We are opposed to a situation wherejustice is a preserve for the privileged few and where it is sold like a commodity...