It was 2001, and Uganda was just coming to terms with the new Constitution and what it meant for enforcement of human rights.

Articles 50 and 137 allowed anyone to bring an action to enforce the human rights of another person. It was a novel concept in our law. Some lawyers and judges were alive to it.

Many were not. Some cases had been filed in the Constitutional Court, but had been wantonly dismissed.

Justice Kenneth Kakuru JA, (now), Andrew Kasirye SC (now) and I had only recently undergone training in environmental law litigation organised by the National Environment Management Authority (Nema). Excited by this training, the possibilities of the Constitution, and examples from other jurisdictions, we formed The Environmental Action Network (TEAN).

TEAN filed a case in the High Court seeking declarations that smoking in public places was a violation of the rights of non-smoking members of the public to a clean and healthy environment, and to their right to life. The matter was placed before Justice Herbert Ntabgoba PJ.

Objection

The Attorney General, represented by Henry Oluka (RIP), another gentle soul, raised a preliminary objection that TEAN had no right to bring an action on behalf of the Ugandan public. This was the understanding of the law at the time bolstered by a decision from the Constitutional Court.

The Constitutional Court has said they could not accept the argument that any spirited person could represent any group of persons without their knowledge or consent.

In the opinion of the court, that would be undemocratic and could have far reaching consequences.

In the hotly contested submissions that followed, it boiled down to one point. Whether Justice Ntabgoba would follow a Tanzania case of Christopher Mtikila or the retrogressive precedent of the Constitutional Court.

When we presented the Mtikila case, Justice Ntabgoba had remarked gruffly that Justice Rugakingira (RIP), was his classmate at the University of Dar-es-salaam. As we walked from court that day, Kasirye chuckled and said he hoped our judge respected his classmate during their time at law school.

As Isaac Ssemakadde, one of Uganda’s leading public interest advocates, commented, Justice Ntabgoba’s ruling was true to the ancient geography of his ancestral roots in Kisoro. The ruling was a volcanic eruption completely overturning established legal norms.

Justice Ntabgoba dismissed the Attorney General’s objections and said: “The applicant says they are, especially interested in the infringement of the rights and freedoms of the poor, and children - those who cannot know and appreciate their rights and freedoms and who do not know where to go and how to go there for redress. Is it not compelling that a body like the applicant stands up for them and fights for their cause. I think the applicant deserves hearing and I will hear it.”

He ordered expeditious hearing of the matter. He granted the orders sought, which later resulted in regulations banning smoking in public places.

Thus the doors to public interest litigation were courageously opened in Uganda. One commentator said the very gate posts had been uprooted and cast asunder. Public interest litigation has been applied to address a great many matters. It enhances access to justice for all and acts as a sharp tool to hold not only government, but all persons accountable.

Barely a month ago, an astounding victory was scored in the Constitutional Court by Legal Brains Trust, in holding private entities, including banks, accountable for corruption. The order, which made for a refund of approximately Shs147b, is probably the largest ever made in Uganda’s jurisprudence.

I don’t know if Justice Ntabgoba was told of this decision. I don’t know if he learnt of it. But the timing of his passing was as if to say, ‘yes, my work here is done’. He has gone to sit with the Judge of judges.

May you rest in peace, great judge.

You fought a good fight. You did your bit for this earth. Your legacy shines bright. Your legacy lives on.

May the same be said of us.

Mr Karugaba is the head of ENSafrica Advocates | Uganda 

ABOUT JUSTICE NTABGOBA

Death. The former Principal Judge died shortly after midnight at International Hospital Kampala (IHK) on April 12.

According to one of his daughters; Ms Justina Ntabgoba, the former administrative head of the High Court, had been unwell for some time and that he had been in and out of the hospital lately.

Background. He was born in the western district of Kisoro in 1936.

He retired as Principal Judge in 2004 after clocking the retirement age of 65, and he was replaced by Justice James Ogoola in the same capacity.

By Anthony Wesaka 

Justice Jeremiah Herbert Ntabgoba May you rest in peace, great judge. You fought a good fight. You did your bit for this earth. Your legacy shines bright. Your legacy lives on,”

PHILLIP KARUGABA HEAD OF ENSAFRICA ADVOCATES | UGANDA