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Uganda’s Dred Scott v Sandford: Unpacking the real constitutional damage wrought by the decision in Fox Odoi and Others v Attorney General

On 3rd April 2024, five justices of the Constitutional Court of Uganda issued a 203-page decision in the case of Fox Odoi and Others v Attorney General and Others (Consolidated Constitutional Petitions Nos 14, 15, 16 and 85 of 2023) which, in my view, will in time come to be recognized as one of the worst, if not the very worst, decisions ever rendered by that court.

Effectively, the decision handed down was the Ugandan equivalent of the United States Supreme Court decision in case of Dred Scott v Sandford delivered on 6th March 1857. I deliberately reference the Dred Scott case for two reasons.

First of all, the Ugandan judiciary itself foregrounded one of the most controversial recent decisions of the US Supreme Court – the 2022 decision in Dobbs v Jackson Women’s Health Organization – both in court’s judgment itself (at Page 103, Paragraph 266) as well as in the Press Release that accompanied it (at Page 3, Paragraph 5).

The latter was especially curious since, of all the decisions referred to in the 203-page decision of the Court (from various jurisdictions across the world), the 3-page Press Release only expressly referred to the US decision in Dobbs. It seems, therefore, that it is to the US jurisprudential winds that we are being directed.

The second, and more fundamental, reason are the inescapable parallels between the Fox Odoi decision (2024) and that in Dred Scott (1857) in terms of the courts’ shared view of the law (including the Constitution) and its capacity to include (or exclude) persons from its protection.

Given the centrality of Dred Scott for a proper understanding of the constitutional harm implicated by Fox Odoi, it is important to provide some context to that case. Dred Scott was born into slavery in the US state of Virginia. In 1818, he was moved by his ‘owner’ Peter Blow to Alabama and later to Missouri – in both of which states slavery was legal.

Following Blow’s death in 1832, Scott was ‘purchased’ by a Dr. John Emerson who moved him first to Illinois and later to Wisconsin – in both of which states slavery was illegal. Later, in 1838, Emerson moved Scott to Louisiana, a slave state.

Following a number of other movements, and three years after Emerson’s death in 1843, Scott sued for his freedom, on the basis of a law which stipulated that an enslaved person who entered a ‘free state’ automatically gained their freedom, and could not be condemned to slavery even on being moved to a ‘slave state’.

The case eventually made its way to the US Supreme Court, the issue before that court being whether Scott had the right – as a United States Citizen – to bring a claim in federal court. In a 7-2 decision, the Supreme Court held that all persons of African descent, whether enslaved or free, were not citizens of the US, and had none of the rights reserved for citizens.

The majority decision was rendered by Chief Justice Roger Brooke Taney, who noted that: ‘We think [that persons of African descent] … are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.

On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them’.

As if this fundamental negation of the humanity and citizenship of African Americans was not enough, the Chief Justice went on to note that: ‘… a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery, and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings.’

These postulations are important in so far as they demonstrate not just the majority’s view of the Constitution (and law more broadly) as it was at the time, but – and perhaps even more fundamentally – a view of what time (the past and the present) meant for the future.

The majority of the Court suggested that Americans were prisoners of their past, and even more problematically, thought that the injustices of that past not only infected the present but would continue fester to into the future.

This was the essence of Chief Justice Taney’s reference to the fact that African Americans had not been intended to be included in the constitutional status of ‘citizen’ and, more starkly, his invocation of a ‘permanent and impassable barrier’ stretching from 1857 into the very end of time itself.

It was a decision which offered absolutely no hope to those to whom it denied the protection of the United States Constitution. This decision is almost unanimously considered to be the worst ever rendered by the US Supreme Court, given the overt racism it contained, and the deeply flawed and problematic legal reasoning it employed.

This is all quite aside from the fact that it played a significant role in triggering the American Civil War, which started in 1861 (four years after Dred Scott was rendered). About forty years after Dred Scott, the US Supreme Court had another major opportunity to realize the full constitutional citizenship of African Americans – in the 1896 case of Plessy v Ferguson.

Homer Plessy was a mixed-race man (actually seven eighths Caucasian) who was charged under the Louisiana Separate Car Act of 1890 for boarding a ‘whites-only’ train car. He challenged the constitutionality of this law, and the case went up to the Supreme Court.

In a 7-1 decision, the court upheld the Louisiana law on the convoluted basis that separation did not necessarily imply inequality. For the majority, Justice Henry Billings Brown expressed the view that: ‘Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation … If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.’

The lone dissenting voice from this calumny was Justice John Marshall Harlan who observed that: ‘[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. 

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.  The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. 

It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.’

One would, with only very slight variations, be excused for believing that Justice Harlan was speaking of the decision of the Ugandan Constitutional Court in the Fox Odoi case. In concluding his dissent in Plessy, Justice Harlan went on to very presciently note that: ‘In my opinion, the judgment this day rendered will, in time, prove to be quite pernicious as the decision made by this tribunal in the Dred Scott case.’

Like Dred Scott, the opinion of the majority in Plessy was stark in terms both of its denial to African Americans of the protection of the United States Constitution as well as in its very limited view of the power of the law to move towards progressive social change.

Instead of asserting the promise and power of Constitution to protect the rights and welfare of a socially and politically vulnerable group, the Supreme Court essentially declared that the impotence of the supreme law in this regard.

It is not difficult to see why Justice Harlan – correctly as it turned out – declared that the majority decision in Plessy would in time come to be recognized as being as infamous and as constitutionally harmful as that in Dred Scott.

The terrible legacy of Plessy v Ferguson and its progenitor, Dred Scott, would somewhat begin to be effectively undone by the US Supreme Court in its 1954 decision in Brown v Board of Education of Topeka. Oliver Brown was an African American whose daughter was not permitted to enroll in the school closest to her, which was reserved for white children.

In a unanimous decision, nine justices of the US Supreme Court agreed that this was unconstitutional. In the opinion of the Court, rendered by Chief Justice Earl Warren, the Court acknowledged that: ‘[I]n the field of the public education, the doctrine of “separate but equal” has no place’.

The decision in Brown did not immediately change American society. In 1957, for instance, Arkansas Governor Orval Faubus called in the Arkansas National Guard to stop nine black students from entering Little Rock Central High School. It took the intervention of President Dwight D Eisenhower, who deployed the United States army to ensure that black students could register and eventually attend their scheduled classes.

Similarly, in 1963, Alabama Governor George Wallace stood at the entrance of the University of Alabama’s Foster Auditorium to stop two black students from registering. This was in fulfilment of the pledge he had made both during his campaign and at his inaugural address in which he had promised: ‘Segregation now, segregation tomorrow, segregation forever.’

He was only compelled to stand aside at the intervention of General Henry Graham of the Alabama National Guard, who had himself been deployed on the orders of President John Fitzgerald Kennedy. Evidently, the Supreme Court’s (itself belated) recognition and application of constitutional promise and principle in Brown did not immediately change socio-political sentiment.

However, it did provide impetus to the movement for the civil rights of African Americans – a struggle which continues today, seventy years after it was delivered. Constitutions are not self-executing.

Courts have the sacred duty of giving breath and life to them, of making their promise and power real for those who most need the protection of those fundamental documents. When they fail in this regard, they abdicate this solemn responsibility – even where this failure and abdication is obfuscated in 203 pages.

In Dred Scott, the US Supreme Court condemned a section of Americans to a permanent second-class status, depriving them of the protection of the Constitution. The Constitutional Court of Uganda in Fox Odoi did exactly the same thing.

Inevitably, in reaching this position, the Constitutional Court had to, and did, do significant harm to several substantive provisions of the 1995 Constitution. In denying the protection and promise of that fundamental document to some, it made that text bear false witness to its own letter and spirit, to the ultimate detriment of all Ugandans.

Like the US Supreme Court did in Dred Scott, and later in Plessy, the five justices of the Constitutional Court of Uganda in Fox Odoi offered a severely limited (and inherently limiting) view of the power, protection and promise of the 1995 Constitution.

Having provided some context around the real and foundational problem with the Fox Odoi decision, we shall, starting next week, begin the painstaking effort of laying bare the full and unmistakable extent of the constitutional damage wrought by the five justices of the Constitutional Court.

In the first place, we shall address the quite dangerous position the Court adopted with regard to the rights of Ugandans to participate in the affairs of their government.

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.

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