BEYOND THE PARCHMENT SHIELD
Constitutional Due Process, Administrative Integrity, and the Jurisprudence of Liberty
By Hon. Asuman Kiyingi
2nd Annual Sam Kalega Njuba Memorial Lecture
Uganda Law Society
24 September 2026
My Lords, the Chief Guest, Justice Esther Kisaakye; the President of the Uganda Law Society; Members of the Family of the late Hon. Sam Njuba; Members of the legal profession; Distinguished guests; Ladies and gentlemen:
There is a story about Sam Kalega Njuba that, for me, captures the spirit of this lecture better than any formal description of his career.
A senior member of our profession, who was familiar with those events, has recalled that, during a deeply troubled period of our constitutional history, Sam Njuba—then President of the Uganda Law Society—was detained at Makindye Military Police following his outspoken opposition to human rights violations. When those who knew of his detention sought his release, the matter was taken up with Paul Muwanga, then Chairman of the Military Commission. According to that recollection, Muwanga’s response was: “Oyo twamaze dda okumuyunga”—that Njuba had already been falsely accused.
Whether one remembers that episode as a historical anecdote or as a warning from our national past, its constitutional significance is difficult to miss.
A lawyer, and the head of the country’s Bar, was detained because he had spoken out against violations of human rights. The machinery of coercive power had been brought to bear upon a man whose professional vocation was to insist that power itself must remain subject to law.
And that brings us to the central question I want to pose today:
What protects the citizen when the State becomes the threat?
What protects the lawyer when defending the law becomes dangerous?
What protects the judge, the magistrate, the tribunal member, the human rights commissioner, the journalist, the politician—or the ordinary citizen—when the institutions created to restrain power begin to feel the pressure of power themselves?
These are not merely questions about the Uganda of the past. They are questions about the Uganda of today.
It is therefore fitting that we gather today in the name of Sam Kalega Njuba.
This occasion is personal for me in more ways than one.
I knew Norah Njuba at Makerere College School. Her sister Stella was a year ahead of us. Norah and I later entered Makerere University together, and I had the privilege of supporting her campaign for Guild President. She would go on to become Makerere University’s first female Guild President.
So, long before I came to know Sam Njuba himself, I knew the Njuba family through his daughter.
I came to know Honourable Sam Njuba personally after I entered Parliament in 2006, when we served together on the Parliamentary Committee on Rules, Privileges and Discipline, which I had the privilege of chairing.
I knew him as a legal icon, a freedom fighter and a man of extraordinary intellectual depth. But what impressed me most was his quiet authority. He was deeply knowledgeable without being overbearing; principled without being theatrical; and, despite the extraordinary circumstances through which he lived, remarkably unassuming.
That is why I find the title of his memoir, The Betrayal, so evocative.
It is not simply a political memoir. It is a record of what happens when constitutional ideals encounter the ambitions, betrayals and compromises of those who exercise power.
Its preface contains a thought that, for me, captures something essential about Sam Njuba’s legacy:
“Integrity and credibility are values one establishes without profit, popularity or recognition.”
That is the Sam Njuba I am privileged to remember tonight.
And that is why I have chosen to speak about the parchment shield.
A Constitution can be beautifully written. It can contain elaborate protections for liberty, equality, due process and institutional independence. It can establish courts, tribunals, commissions and elaborate procedures.
But a parchment shield is of little use if those entrusted with holding it are afraid to stand behind it.
I. WHEN DOES POLITICAL PERSECUTION BEGIN?
Let me begin with a proposition.
Not every prosecution of a politician is political persecution. Politicians, like everyone else, are subject to the law.
The constitutional danger begins when the coercive machinery of the State is used in ways that deny the ordinary protections of law—unlawful detention, torture, disappearance, arbitrary restrictions on liberty, selective enforcement, or the manipulation of institutions to produce a predetermined outcome.
And when those things occur, the question for lawyers is not whether the victim belongs to our political camp.
The question is:
What does the Constitution permit?
Consider the cases that have confronted our courts and our conscience.
Kakwenza Rukirabashaija brought proceedings in which the High Court found violations arising from his detention and treatment, including torture, and awarded damages.
Muwanga Kivumbi was granted bail and was subsequently re-arrested. For nineteen days he remained unaccounted for before resurfacing and being brought before court on fresh charges.
Whatever the merits of those charges, the constitutional question remains: Who had lawful authority to take him away, and where was he being held?
Alex Mufumbiro spent more than sixty days on remand. The question raised by his proceedings was whether a constitutional guarantee of mandatory bail can be displaced by broad appeals to public interest.
And then there is the experience of Lord Mayor Erias Lukwago.
He was arrested in the very course of attempting to serve court process. A lawyer and public official, engaged in a legal procedure, was forcibly prevented from performing that function.
That incident deserves more than passing political commentary.
When a lawyer cannot safely serve court papers because coercive power intervenes, the problem is no longer simply the treatment of one individual. The legal process itself has become vulnerable.
The same concern arises in cases involving alleged torture and unlawful detention, including that of Faruku Muhamed. The deeper question is not merely whether a particular institution was independent enough at a particular moment. It is whether the State can inflict grave violations of liberty and bodily integrity and then avoid meaningful accountability.
That is the larger constitutional danger.
Because if the State can torture without accountability, detain without explanation, or disappear a citizen without consequence, the parchment shield has ceased to protect the citizen.
II. WHEN THE INSTITUTIONS THEMSELVES COME UNDER PRESSURE
The danger becomes even more serious when institutions created to restrain power begin to experience pressure themselves.
We have witnessed difficult questions concerning judicial independence.
In the case of Dr Kizza Besigye and Obed Lutale, the court had to balance the applicants’ claims to liberty against the seriousness of the treason allegations and the State’s asserted investigative interests.
I do not cite that decision to question the personal integrity of the judge.
I cite it because that is precisely where constitutional adjudication matters most.
The Constitution is not tested when everyone agrees.
It is tested when the liberty of a politically inconvenient person collides with the interests of the State.
The reported transfer of Magistrate Sheilah Gloria Atim shortly after she granted bail to Miria Matembe likewise raised public concern about judicial independence. There may be legitimate administrative explanations for any judicial transfer. But constitutional institutions must consider not only legality, but also the confidence that their conduct inspires.
And today we confront an extraordinary constitutional symbolism.
Our Chief Guest, former Supreme Court Justice Esther Kisaakye, is addressing this memorial lecture from outside Uganda.
The President of the Uganda Law Society, Isaac Ssemakadde, is also addressing us from outside the country.
One is a former Justice of Uganda’s highest court.
The other is the elected head of Uganda’s Bar.
Whatever one’s view of the individual controversies surrounding either of them, surely we must pause at what this means for a constitutional democracy.
A former Supreme Court Justice and the President of the Bar are participating in a lecture on constitutionalism from exile.
That is not a footnote to our discussion.
It is part of the constitutional story we are discussing today.
And it reminds us of a painful truth:
Silence does not necessarily buy protection from the abuse of power.
III. THE LAW MUST ALSO PROTECT THOSE WHO ENFORCE IT
I speak here with some personal experience.
The Leadership Code Tribunal was established under Article 235A of the Constitution to exercise adjudicatory powers over breaches of the Leadership Code.
I was one of the Tribunal members who challenged, in Constitutional Petition No. 16 of 2022, the constitutional character of the institution and the status of its members.
The Constitutional Court ultimately held that the Tribunal was not a Court of Judicature under Article 129 and that its members were not judicial officers of the Courts of Judicature.
That judgment is the law, and I accept it as such.
But I continue respectfully to disagree with part of its reasoning, particularly concerning the constitutional meaning of a judicial officer and the protection required for persons entrusted with adjudicatory functions.
My purpose today is not to reopen that litigation.
It is to draw a larger lesson.
Institutional independence must have consequences in practice.
If an adjudicator must decide a difficult case involving powerful interests, that adjudicator must be able to do so without fearing that the decision itself will determine his or her professional survival.
The same principle applies to judges, magistrates, prosecutors, investigators and other public officers.
A constitutional right to independence that carries no institutional protection is, in practical terms, a parchment right.
IV. WHEN THE GUN BEGINS TO SPEAK THE LANGUAGE OF POLITICS
Perhaps nowhere is this constitutional question more urgent today than in the relationship between military power and politics.
Article 208 of the Constitution requires the UPDF to be national, patriotic, professional, disciplined and non-partisan, and subordinate to civilian authority.
The Political Parties and Organisations Act also places restrictions on the political activities of serving members of the UPDF.
Those provisions embody a simple constitutional principle:
The gun must remain subordinate to the Constitution and to civilian political authority.
Yet we have witnessed the emergence of political mobilisation involving serving military officers and political organisations.
The Patriotic League of Uganda, for example, describes itself as a civic organisation and pressure group, but has also operated openly in political mobilisation and political debate.
Its founder and chairman is a serving military officer.
The constitutional question therefore cannot be avoided by terminology.
If the activities of an organisation amount to participation in partisan political activity, the law must be applied according to the substance of those activities rather than merely the label attached to the organisation.
And the law cannot mean one thing for a civilian and another for a General.
The question is not whether we agree with the politics involved.
The question is:
Where does the Constitution draw the line between military service and partisan political activity—and who is responsible for enforcing that line?
That question deserves an answer grounded in law, not personality.
The lesson of the Kabaziguruka litigation is also instructive.
The Supreme Court reaffirmed in 2025 that military courts could not exercise blanket jurisdiction over civilians, after which Parliament amended the UPDF Act.
That was an important constitutional correction.
But constitutionalism does not end when Parliament amends a statute.
We must also ask what happens to citizens who were subjected to unconstitutional processes before the law was corrected.
A constitutional judgment is not merely a legal document.
It must change the lived reality of the citizen.
V. THE COST OF ASKING: “SHOW ME THE LAW”
There is a phrase that has particular resonance in Uganda’s history:
“Show me the law.”
It is the question that every public officer exercising coercive power should be prepared to answer.
Where is the law authorising the arrest?
Where is the warrant?
Where is the lawful basis for the detention?
Where is the authority for the search?
Where is the constitutional authority for military intervention?
Where is the legal authority for interfering with an independent institution?
And where is the law that permits a public officer to punish another public official for exercising a constitutional right?
And where is the law that permits an individual, simply because of office or military rank, to determine for himself what is legal and what is not?
That last question is no longer theoretical.
We have heard a serving General say:
“I will define what is legal and what is not.”
That proposition should trouble every constitutional lawyer.
Not because of the personality of the speaker, but because of what the proposition represents.
Under constitutional government, no individual defines legality by personal decree.
The Constitution defines the limits of power.
Parliament makes law within the Constitution.
Courts interpret and enforce the law.
Public officers exercise powers conferred upon them by law.
The military operates under constitutional and statutory authority.
No General, Minister, police officer, magistrate, judge, politician or lawyer is above that order.
Otherwise, we cease to have government by law and begin to have government by discretion.
And government by unchecked discretion is the beginning of arbitrary rule.
VI. THE CONSTITUTION IS EVERYONE’S SHIELD
The temptation in Uganda is to think that constitutional violations are somebody else’s problem.
Today it is an opposition politician.
Tomorrow it may be a journalist.
Then a lawyer.
Then a magistrate.
Then a judge.
Then a public servant.
Then an ordinary citizen who happens to stand in the way of someone powerful.
But constitutional rights are not political party property.
The right against torture does not belong to the opposition.
The right to liberty does not belong to lawyers.
Judicial independence does not belong to judges.
Due process does not belong to politicians.
Constitutional supremacy does not belong to Parliament.
They belong to all of us.
That is why the defence of constitutionalism cannot be left to lawyers alone.
The citizen must defend it.
The journalist must defend it.
The academic must defend it.
The religious leader must defend it.
The traditional and cultural leader must defend it.
The business community must defend it.
Parliament must defend it.
The Judiciary must defend it.
And the legal profession must defend it—especially when defending it is inconvenient.
Because the Constitution is not a shield that lawyers carry on behalf of everyone else.
It is the shield every Ugandan must be prepared to hold.
And this is where I return to Sam Kalega Njuba.
His generation understood, often at enormous personal cost, that constitutionalism is not an ornament.
It is a discipline imposed upon power.
Sam experienced detention. He went into exile. He participated in a liberation struggle. He became Minister for Constitutional Affairs. He helped shape constitutional government. He returned to Parliament decades later as an opposition politician.
Through all those transformations, what survived was his reputation for integrity.
That is why his legacy matters now.
Not because Uganda has no Constitution—we have one.
Not because Uganda has no laws—we have many.
Not because Uganda has no courts—we have courts.
The question is whether those institutions can continue to restrain power when power is determined not to be restrained.
That is the real test of constitutionalism.
And so, when the police officer arrests without lawful authority:
Show me the law.
When soldiers take a citizen away:
Show me the law.
When a public official interferes with an independent institution:
Show me the law.
When an adjudicator is punished for deciding according to law:
Show me the law.
When a public officer invokes rank instead of legal authority:
Show me the law.
And when anyone—however powerful, however popular, however highly decorated—claims the personal authority to decide what is legal and what is not:
Show me the Constitution.
Because that is the difference between constitutional government and arbitrary government.
That is the difference between power and lawful authority.
And that is the jurisprudence of liberty.
Sam Njuba spent much of his life reminding Uganda, by his words and by the example of his life, that integrity is not established by office, popularity or power.
It is established by what one does when power is available—and by the courage to say no when power exceeds the law.
May his memory continue to challenge us.
May his integrity continue to embarrass our compromises.
And may the Uganda he believed in remain a country in which every exercise of public power can still be met with the simplest and most important question in constitutional government:
SHOW ME THE LAW. Thank you. (For comments on this story, get back to us on 0705579994 [WhatsApp line], 0779411734 & 041 4674611 or email us at mulengeranews@gmail.com).
