To what extent is the Judiciary executing its mandate?
The Judiciary is the third arm of the Uganda Government.The other two,are the Executive and Legislature.
The Core function of the Uganda Judiciary, as understood by the Public,is to administer Justice through the settlement of disputes between individuals, and between the State and individuals as well as interpreting the Constitution and the laws below it.
The Judiciary, however, has other roles such as promoting the rule of law, contributing to the maintenance of order in society, safeguarding the Constitution, upholding democratic principles and protecting human rights of individuals.
On Monday, 27th, the Judiciary opened its 22nd Annual Judges’ Conference – a three-day long event,running under the theme “Discharging the Mandate of the Judiciary: Towards a Modern, Professional and Effective judiciary” -another opportunity to assess the performance of the Judiciary in executing its mandate as enshrined under Article 126 of the Constitution which provides that Justice be done to all people irrespective of their social or economic status; Justice not be delayed; adequate compensation be awarded to victims of wrongs; reconciliation between parties involved in Court disputes be promoted; and substantive Justice be administered without undue regard to procedural technicalities.
The provision also requires Courts of Law to be independent and not subject to the control or direction of any person or authority.
Throughout Uganda’s tumultuous Constitutional history, the Judiciary earned itself a reputation of incompetence and as a hotbed of Corruption, thanks in part, to sabotage from the Governments of the day.
Justice was always an aroma only smelt by the rich and politically powerful and/or connected. Courts usually determined cases in accordance with the wishes of the Executive President and not the Law, Court decisions were overturned by the Parliament of the day through the enactment of retroggressive Laws, as was seen in the case of Jowett Lyagoba Versus Bakasonga, where court had found that various persons had been unlawfully elected to Parliament and would thus have to vacate their offices, only for the National Assembly to enact a law, three months later, validating their election and effectively altering the decision of the Court.
Judicial Jurisdiction was circumvented through the establishment of military tribunals presided over by military officials, where prosecutors could never lose.
There was also enactment of Laws that were immediate and blatant assaults on Judicial independence such as the infamous Proceedings Against the Government (Protection) Decree No. 8 of 1972. This decree shielded Government from liability for injuries resulting from measures taken to protect the public and in enforcement of Law and Order.
Uganda, in 1995,adopted a new Constitution,envisaged to address many of these challenges,however, generally the trust and confidence in the Judiciary to deliver on its mandate, though improving, is still low. A wide section of the population still believes that Judges and Magistrates are incompetent and corrupt. That they collude with the Police and Prosecutors to kill off some Criminal Cases.
An Advocate of the High Court,who spoke to me on condition of anonymity, says, in Civil Cases, some Judges and Magistrates still receive bribes from litigants to have Judgements delivered their way.
At lower levels, its alleged that the Court staff can hide files so cases do not proceed unless bribed to return the file. Many still feel the Judiciary cannot protect them from blatant injustices especially when the perpetrators are rich, powerful and/or well connected.
The core values and principles of the Judiciary
The drafters of the 1995 Constitution looked at this sad state of the Judiciary and decided to attempt an overhaul thereof through the provision of several progressive values and principles the Judiciary must pay reverence to in the execution of its Constitutional mandate.
The history of the country required that there be an overhaul of the judiciary,as an institution, to instill honesty and competency. This was in pursuance of the core principles upon which the new NRM Government seized power that is; to uphold people’s rights, to suppress corruption amongst public servants and politicians, respect for democracy and also deal with past injustices.
This would be done by ensuring that Judges and Magistrates were competent enough for the roles to be bestowed on to them. Like never before, came a demand for strict adherence to the Constitutional principles of; independence of the Judiciary and impartiality, transparency, professionalism, integrity, accountability, equality and equity.
The role to scrutinize and ensure adherence to these principles was entrusted with the Judicial Service Commission.
Judges and Magistrates are vetted to ensure that they are competent and qualified for the task.
Judges enjoy immunity from any form of prosecution in execution of their lawful duties and are also guaranteed security of tenure so as to enable them discharge their duties without fear of being penalized for giving an unwelcome favorable judgement without any form of repercussions to their careers or threat to their salaries or privileges, Judicial Officers are presumably under a good position to dispense justice and fairly.
Extent of Jurisdiction of the Judiciary
Under the doctrine of Separation of Powers advanced by scholars like Montesquieu, the three arms of the State that is; the Legislature, Executive and the Judiciary exist autonomously and each independent of the other. It’s from this school of thought that the attitude of Courts initially to pronounce themselves in political events was negative. In the Tinyefuza Versus Attorney General case, one of the judges is remembered to have opined that the court did not have Jurisdiction to inquire into matters that fell under the Executive arm per the Constitution. According to him, intervention in such matters was an affront to the doctrine of separation of Powers.
However now, the attitude has changed. The courts are aware of their full extent of Jurisdiction that is to inquire into any matter of any nature. The Constitution gives courts unlimited jurisdiction to inquire into any matter of any kind as was held by the Supreme Court in CEHURD Versus Attorney General.
This has resulted into a system of checks on the excesses of the other arms of state.
Furthermore, Courts now have the Jurisdiction to entertain a matter brought by anyone and not necessarily one whose personal interests are at stake.
This, according to Prof Oloka Onyango in his Ghosts and The Law, is a precept of the infamous Judgement in the Ex parte Matovu case. This position demonstrates how much weight is attached to preserving and protecting human rights.
Interpreting the Constitution
The Judiciary plays a key role in deciding the validity of laws, particularly with regard to their consistency and compatibility with the Constitution.
The Constitution under Article 137 empowers the Constitutional Court to entertain matters that relate to the Interpretation of the Constitution.
When the case concerns human rights, the court is required to adopt the interpretation that “most favors the enforcement of a right or freedom’.
The Court must promote the values that underlie an open and democratic society based on human dignity, equality, equity and freedom as well as the spirit and objects of the Bill of Rights so as to permit the development of the Constitution; and contribute to good governance.
Justice for all and Sundry
This concerns access to justice and it has two facets to it.
The first is that people should be in position to afford robust legal representation and secondly, that people should have legal knowledge to know when their rights are violated.
The judiciary has tried to be more approachable through modernizing the court system and soon clients will be able to file their cases online.
Also, the number of courts has greatly increased so as to enable even the deepest areas have access to courts and this at its helm has seen the establishment and maintenance of local council courts.
The number of High Court circuits has also increased to 20 and very soon, every County should have a High Court Circuit.
The Court of Appeal and Constitutional Courts have had minor regional sessions with less impact and thus the Court should be decentralised.
The Lack of Resources for Legal Representation is being addressed by the Judiciary and the Uganda Law Society through Legal Aid projects although Legal Aid still looks unpalatable to most Lawyers.
Justice shall not be delayed
The Uganda Judiciary is bogged down by heavy workload and understaffing challenges which results into intolerable levels of case backlog.
Many cases go on forever. Some Judges and Magistrates don’t appreciate the suffering of litigants and as such adjourn matters unreasonably.
The litigants suffer in incurring extra costs each day and continue to live in uncertainty of the outcome of their cases especially in land matters.
Expediency is only highly observed in Presidential Election Petitions largely due their being time bound and highly sensitive.
Justice without undue regard to procedural technicalities
The strict adherence to stringent procedures has been minimized. Courts admit and consider cases on merit rather than form. Cases are no longer frustrated due to technicalities.
The Constitution under Article 126(2)e requires service of substantive justice without udue regard to technicalities.
This can be traced back to the ‘jettisoning formalism to the winds’ in the Ex parte Case.
However, Judges and Advocates seem fond of technicalities, especially when they confuse their clients. Advocates also like to use technicality to subvert substantive consideration of cases especially when they are in apprehension of loss.
There’s still a very huge need to make admission and consideration of cases on merit. Very many conservative judges are still strict on adherence to strict and useless procedures especially during admission of evidence and filing of documents on time.
The Judiciary has a huge task to cleanse itself of all the negative aspects that it has been associated with and to build its reputation amidst compromises of Judicial power and integrity especially from the other arms of the state which are substantially political and usually seek convenience of illegality and unlawfulness, excessive corruption within itself, among others.
In this task, so far, the judiciary has improved but there is still a long way to go.
The tight screening may not be a definite success but it has helped get rid of at least some incompetent and corrupt judges.
There is arguably a fair process of appointment and discipline of judges through the Judicial Service Commission and this has greatly attempted to restore some confidence in the Judiciary.
Initiatives taken by the leadership of the Judiciary have done away with useless traditions that detached Judges from the Ordinary People, and promoted dialogue between Judicial officers and the public.
The modernization of the Judiciary through adoption of technology ( The Supreme Court, Court of Appeal and some High Court circuits boast of recording and transcription equipment and soon there will be a Case Management System to track a Case from filing to determination) and the provision of an opportunity to citizens to report incompetent judges and the submission of judges to educational sessions on the constitution and specialized laws have served to enhance their appreciation of the Law.
Courts are now required to file disposal of Cases reports and this may help bolster Court Performance.