Last week, this column engaged with Judge Sebutinde’s Dissenting Opinion in the South Africa v Israel case (Provisional Measures) before the International Court of Justice.
We explained that in two main ways – the ‘political question’ argument and the failure to provide for the most basic interim relief – the Opinion was out of tandem with the Court’s previous jurisprudence; Judge Sebutinde’s own prior approach to international adjudication, and arguably, even basic humanitarian considerations as articulated by Israel’s Judge Ad Hoc Aharon Barak.
The question we left unanswered was as to how it could be that an erudite Judge like Sebutinde could arrive at a decision at such odds with the consensus of her peers on the Court, that it contained a stance more extreme than that adopted by Judge Ad Hoc Barak. It is an important question – one which indeed is being asked and contemplated across the world, in the wake of the Court’s decision.
Perhaps predictably, given the state of the world today, aspects of these deliberations have been ugly, with needless invective and vituperation being hurled at the first African female Judge of the ICJ. It is obviously scurrilous to suggest that Judge Sebutinde might have been acting under direction from the Ugandan government – or that she was bribed, or intimidated, by any State.
If her Dissenting Opinion proves anything, it is that Judge Sebutinde does not fear to shock, offend, or take decidedly unpopular decisions. That said, as we pointed out last week, it is difficult to justify – in legal terms – the extreme posture adopted by Judge Sebutinde in her Dissenting Opinion. This brings us back to the deferred question, as to how such a decision might be reconciled with the clearly astuteperson and record of Judge Sebutinde.
In this case, I suspect that the only means of accounting for the nature and content of the Dissenting Opinion might be found in a somewhat unlikely corner – the influence of religion. At the risk of the impropriety of intruding upon what would otherwise be within the realm of her private sphere, we can reasonably refer to Judge Sebutinde’s strong connection to the Pentecostal movement in Uganda.
Indeed, she has herself made no secret of it – nor should she. This right – the right to freedom of thought, conscience and belief (including the freedom of religion) is one guaranteed to her, as it is to all Ugandans under Article 29 of the 1995 Constitution. Indeed, it is also guaranteed under a range of international human rights instruments, including the 1948 Universal Declaration of Human Rights (Article 18), the 1966 International Covenant on Civil and Political Rights (Article 18) and the 1986 African Charter on Human and Peoples’ Rights (Article 8).
Nonetheless, when one is exercising a public function, it is important that, as far as possible, private religious or other convictions not unduly motivate or inform the exercise of such function or duty. In this case, there is some circumstantial evidence that the disconnect between legal principle, Judge Sebutinde’s own previous adjudicatory approach and basic considerations of humanity; on the one hand, and the extreme nature of her stance in South Africa v Israel on the other, might have been unduly motivated by strongly held religious beliefs.
As noted above, Judge Sebutinde’s links to the Ugandan Pentecostal tradition in general, and the Watoto Church (formerly Kampala Pentecostal Church) in particular, are no secret. For instance, when in June 2014 Watoto Church held what it called the ‘Watoto big party’ one of the dignitaries who testified as to the impact of that church on their lives and work was Judge Sebutinde.
At that event, she noted that: ‘I have the chance to practice justice at the world level because of the values I picked from Watoto Church. I am proud of Watoto’ [See Carol Kasujja ‘Grammy award-winning Christian singer Israel Houghton thrills crowds at Watoto big party’, The New Vision, 6 June 2014] This invites a further enquiry into what the values – historical and contemporary – of Watoto Church might be.
In this regard, some indication is provided by a post, from October 2023, on Watoto Church’s Instagram account, in the following terms: ‘What an incredible opportunity that we have to participate in the extension of God’s Kingdom in Israel through our annual My Miracle Missions Offering. Numerous lives are being impacted as we partner with Fellowship of Israel Related Ministries (FIRM), a global family of believers that is empowering local ministries to transform lives in Israel with the love of Jesus. Thank you for giving #GodisAble #MYMMO2023# PioneerAgain’
Further indication is evident in a major sermon delivered by Pastor Gary Skinner (Founder of the Watoto Church), two years ago, entitled ‘Israel The Greatest Sign’ (available on YouTube, posted by the Watoto Church account).
At minute 28 of that recording, Pastor Skinner quite predictably (since the invocation of this particular verse is a common staple in Pentecostal churches) quotes Genesis 12: 1-3, which is to the effect that: ‘The Lord had said to Abram, “Leave your country, your people and your father’s household and go to the land I will show you. I will make you into a great nation and I will bless you; I will make your name great, and you will be a blessing. I will bless those who bless you, and whoever curses you I will curse; and all peoples on earth will be blessed through you.”’
It is not inconceivable that the position adopted by Judge Sebutinde in South Africa v Israel – one so extreme that she stood alone even on positions conceded by the Israeli Judge Ad Hoc Barak – was directly informed by this Biblical exhortation to avoid ‘cursing’ Israel through a finding that was adverse in any respect whatsoever.
An additional window into this approach – of analyzing global events through Biblical lenses – is provided in a May 2019 epistle written by the First Lady of Uganda (and Minister of Education), Janet Museveni, entitled: ‘A letter to all Ugandan children who call me Maama by choice’.
Among other things, she attributed a number of Uganda’s, and Africa’s, challenges to the cardinal sin the Egyptians committed when they enslaved Israelites several years ago: ‘The Bible informs us that ancient Egypt was the political and economic powerhouse of its day. The Pharaoh who was king had unrivaled influence and power over the known world. The Children of Israel who came to Egypt first as guests
or refugees of famine, soon had a reversal of fortunes and became the slaves of Egypt for 400 years ... All these accounts show that the Africa of antiquity was not only prosperous and wealthy but more so a political and global hegemon.
The question that I have pondered many times over the years is, “What happened to Africa?” Africa committed the grave sin of enslaving the children of Israel for 400 years, which returned to haunt the African continent with the advent of the evil trans-Atlantic slave trade.’
If anyone needed any further indication that Judge Sebutinde’s Dissenting Opinion – almost certainly informed by the terms of Genesis 12:1-3 – was wholeheartedly sanctioned by the Ugandan Pentecostal movement, this would come in the form of an Instagram post, on 28th January 2024, by Pastor Patience Museveni Rwabogo (who happens to be the daughter of President Yoweri Museveni and Mrs Janet Museveni).
Patience, the founding Pastor of the Covenant Nations Church, posted a picture of Judge Sebutinde with the caption: ‘Not all heroes wear capes. Julia Sebutinde has made a historic stand at the ICJ. May God always remember her for mercy and may Uganda as a nation always be found on the Lord’s side.’
For avoidance of all doubt, we should not be understood as suggesting that Judge Sebutinde was duty bound to find against Israel. Rather, the point (stressed in the column last week) is that her Dissenting Opinion was so patently incongruous with previous ICJ jurisprudence, her very own historical approach to adjudication and such elementary and basic considerations of humanity (as invoked by Judge Ad Hoc Barak) as to taint it with a high degree of irrationality and illegitimacy.
And this is the very danger posed by any uncritical suspension of rationality occasioned by religious belief. Simply put, bad – even tragic – consequences can result from this. It is for this critical reason that Article 7 of the Constitution requires that the State have a secular character, providing: ‘Uganda shall not adopt a State religion’.
This is an important provision, although unfortunately one more honoured in breach than in observance. Sadly, part of this breach has been on the part of Ugandan judicial officers. One of the most egregious examples in this regard was the decision of Justice Amos Twinomujuni in the 2007 case of Julius Rwabinumi v Hope Bahimbisomwe.
The issue in this case related to distribution of matrimonial property upon dissolution of a marriage. Instead of looking primarily to the relevant constitutional, statutory and common law principles to resolve the question before the court, Justice Twinomujuni felt compelled to additionally invoke, and rely upon, biblical principles, observing: ‘In this petition, we are dealing with the dissolution of a marriage contracted in Church under the Christian tradition.
Quoting the bible here cannot be regarded as far fetched. In Genesis Chapter 2 verses 21-25, we find the following provision ... This statement [provides that] though woman was created differently from man, yet they were made for each other to be equal to each other in unity as one. The parties to this appeal were married in the Christian tradition on 30th August 2003.
The ceremony took place in Our Lady of Africa Mbuya Catholic Church. All those who choose to be married in Church must take vows at the precise moment when they become husband and wife. The vows are to the effect that they undertake to live together as husband and wife, in shared companionship in riches or poverty.
These vows are usually made in presence of hundreds and sometimes thousands of their parents, relatives and friends. My understanding of the vows is that at the time the bridegroom and the bride become husband and wife, all the property they own become joint property.
All the property they acquire during the subsistence of their marriage is theirs to share equally in unity and love. At the time of the vows, it is never envisaged that the spouses would have to split. In fact they are told in Church that: “That which God has put together let no person divide” ... In my humble judgment, I do not see why the issue of contribution to the property should arise at all.
The property is theirs – Period ... My conclusion is that matrimonial property is joint property between husband and wife and should be shared equally on divorce, irrespective of who paid for what and how much was paid ... From [the moment of Church vows] onwards the fact that they are registered in the names of the wife or husband is not relevant. It belongs to both.
Therefore on separation they should be equally divided and shared to the extent possible and practicable.’
Luckily, on appeal to the Supreme Court in 2009, this anomaly was subsequently remarked upon, and expressly disapproved. Justice Esther Kisaakye, in particular, rightly pointed out that the secular nature of the Ugandan State required judicial neutrality in terms of the application of legal principles, noting that: ‘The statements and reasoning of [Justice Twinomujuni] are, with due respect, legally problematic, for several reasons.
First, it is important to note that Uganda is a secular state, which is not governed by Cannon law, but by the Constitution, statutory law, case law as developed from common law and doctrines of equity; principles of justice, equity and good conscience. Customary law is also applicable in some areas of personal law, provided it meets the Constitutional standard set out in Article 32(2) of the Constitution of Uganda, 1995 ... Given the secular nature of this country, it was again not proper, for the learned Justices of Appeal, to base their judicial decision on religious marital vows ... I therefore agree with counsel for the appellant when he took serious issue with the pronouncements made by the learned Justices of Appeal that legal title to an equal share of any property previously held individually passes to the other spouse ... by virtue of the marriage vows exchanged during the marriage ceremony ...’
Nonetheless, this trend has continued, almost unapologetically, in certain judicial quarters. In the 2021 case of Julius Kyobe Luseleka and 5 Others v Aida Namalwa, for instance, the Court resurrected the impugned Twinomujuni approach, when in determining burial rights as between the spouse and relatives of a deceased person, the Judge asserted as follows: ‘... upon marriage, men and women have the right and are expected to live independently and exclusively of any other person(s) including their parents and or brothers and sisters and clan members at that.
I also find that this is in line with the Biblical principle in Genesis 2:18, 24 which counsel for the respondent further relied on. That portion of scripture states thus: “the Lord said ‘it is not good for man to be alone. I will make a helper suitable for him’ ... For this reason, a man will leave his father and mother and be united with his wife and they will become one flesh.”
This same principle was re-echoed by Jesus Christ in Matthew Chapter 19 verse five (Matthew 19:5). I am mindful of the fact that Uganda is a secular nation and does not have a state religion but I am also alive to the fact that Christianity as one of the recognized religions in Uganda has the Bible as the major source of guiding principles, norms, values and standards.
In the instant case, the respondent and the deceased both practiced the Christian religion and chose to get married at Namirembe Cathedral which is the Anglican Church/Church of Uganda. My considered view is that by doing this, they chose to be bound by the biblical principles which are taught in church. I therefore do not find it out of order to cite the Bible.’
Fortunately, there have been some more positive indications from other sections of the Judiciary, which signal a greater commitment to the constitutional dictate contained in Article 7. For instance, in the 2017 case of Rev. Fr. Cyril Adiga Nakari v Rt. Rev. Sabino Ocan Odoki and Registered Trustees of Arua Diocese, Judge Mubiru noted that: ‘Under Articles 7 and 29 of The Constitution of the Republic of Uganda, 1995, the relationship between Church and State is based on two principles.
First: there is no State Church; Church and State are separated. This means on the one hand that the state should not identify itself with any ideology or religion, and, on the other hand, that it must not be institutionally attached to churches or to one single church.
Second: “religious bodies” regulate and administer their affairs autonomously (independently but in cooperation with the state) within the limits of the law, i.e. the right of churches and other religious communities to conduct religious activities autonomously (e.g., build places
of worship, conduct worship services, pray, proselytise, teach, select their own leaders, define their own doctrines, resolve their own disputes, etc.) ... Neutrality of the state can be seen as the most important principle governing the state in regard to religious communities.’
Similarly, Judge Ssekaana in the 2020 case of Rev Charles Oode Okunya v Registered Trustees of the Church of Uganda, cited Mubiru J’s approach in the Cyril Adiga case with approval and emphasized the importance of state institutions, including courts, refraining from any actions which might be ‘interpreted as an endorsement of one religious view over another’.
These positive trends should be affirmed and entrenched, and the Twinomujuni approach (reasserted in Kyobe Luseleka) actively challenged and resisted. This is because not only is it inconsistent with a core constitutional value (the neutrality of the State), but it can also, in some cases, lead to some really perverse and unconscionable outcomes – particularly where the fundamental rights of persons, or groups of persons, are implicated.
One can imagine a wide range of issues where it will always be important for all bodies exercising State power – executive, legislative and judicial – to be fully cognizant of the duty to avoid unduly infusing religious feeling (however deeply held) into the conduct of public affairs.
Where state power is exercised, this should be on the basis on rational considerations, based on sound evidence and founded upon fundamental constitutional values – rather than being founded on private beliefs. Again, for avoidance of all doubt, individuals (including public officials) are free to hold whatever beliefs they like – however fanciful and farfetched these may be.
As a United States Court noted in the 1998 case of Argello v City of Lincoln: ‘Government is not free to declare certain beliefs — for example, that someone can see into the future — forbidden. Citizens are at liberty to believe that the earth is flat, that magic is real, and that some people are prophets.’
The challenge is where such officials appear to transpose these private beliefs into their public roles and functions. Certainly, international adjudication based on the fear of a curse, or the hope of a blessing, contained in Genesis 12:1-3 is problematic, as is the conduct of educational (or other) policy based on the notion that the colonialism of Africa was divine retribution for the actions of Egyptians hundreds of years ago.
Beliefs that the earth is flat, that magic has real effects or that certain people are (or were) prophets can be privately held, but not publicly imposed through the exercise of executive, legislative or judicial power.
Several questions will continuously have to be dealt with in the public sphere – at the national, regional and global levels - involving issues which elicit significant contestation, emotion and controversy. Yet, it is precisely these matters which require persons charged with the authority of legislating, applying or adjudicating them to apply law and sound principle – rather than fear, belief (or, it must be said, superstition) in their determination and resolution.
At the national level, one can think of several such issues, like access to safe abortion; comprehensive sex education; the possibility of no-fault divorce regimes; the rights of unmarried, or cohabiting couples (including to fair property distribution in the event of the termination of such relationships); the regulation of alcohol consumption, and the use of narcotic and other substances; the rights of sexual and gender minorities; whether terminally ill persons might have the right to medically assisted death to promote dignity and alleviate suffering; arrangements around surrogate pregnancy; pre and post-nuptial agreements; organ donation; rights of biological and adoptive parents and children; possible legal implications of conscious artificial intelligence; transgenerational equity and many others.
One hopes that when these questions arise – particularly before the Judicial branch – that the Judges look to the law – constitutional, statutory, common, and where applicable, international – and resolve the questions before them as per their judicial oath. It is the Constitution, and other relevant law, which should guide them, rather than the text of the Bible – or the Koran (or other religious texts for that matter).
The Constitution promises to all of us an open, liberal and secular democracy. It would be unfortunate for Judges, Members of Parliament, Ministers and other political connected persons to turn Uganda - by stealth or with impunity – into a theocracy.
The writer is senior lecturer and acting director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.