Independence of the Judiciary is Absolute and As Solid As A Rock

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Waking up to the headline of Dr. Sam Mayanja’s New Vision article of 15 February 2024, ‘ Why judiciary’s independence is not absolute’, had me wondering if I was indeed awake or stuck in some garish legal nightmare.

Could we really be questioning a very basic constitutional principle of a modern democracy long settled in 1689? A basic element of the rule of law requiring the independence of the adjudicating arm of government?

Dr. Mayanja argued that under Article 126 of the Constitution, justice is to be administered in conformity with the law and also the values, norms, and aspirations of the people of Uganda and that under Article 99 the sanctity of the people is guaranteed by the vesting in an elected President all executive authority and a mandate to execute and maintain the Constitution.

According to Dr. Mayanja, for this reason, when the values, norms, and aspirations of the people of Uganda are ignored by the Judiciary, the President is mandated as the last bastion of constitutional enforcement, to guide the judiciary back to the constitutional path.

Dr. Mayanja then went on to limit judicial independence to the method of judicial appointments, remuneration, and security of tenure.

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At this point in the reading, I checked my temperature and my pulse to make sure that I had not passed from nightmare to delirium.

Alas, I was fully awake, very uncomfortable, and not believing that I was reading the opinion of the Hon. Minister of State for Lands!

It is easy to dismiss Dr. Mayanja’s arguments. First, not once does Dr. Mayanja refer to Articles 128 (1) and (2) that give the double command on independence of the judiciary.

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Article 128(1) provides that in the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.

Article 128(2) then says again no person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions!

The framers of the Constitution jealously protected these double commands by requiring the additional safeguard of a referendum for their amendment and by not sanctioning any exception to them whatsoever, not even for the President exercising his full executive authority.

These clear provisions, which contain the very essence of judicial independence, did not merit any attention at all from Dr. Mayanja in his rant.

As was well posited in Imaniraquha v URA, the decisional independence of a judicial officer: the ability to interpret and apply substantive legal principles in the specific context of an individual adjudication, should be free from control or interference, not only by the legislature and executive arms but also by the judiciary administrators.

In a recent case in Seychelles in which our Hon. Justice Ekirikubinza Tibatema sat, it was held that the word ‘independent’ is of a wider import than merely the state of mind of the judge in the actual exercise of judicial power.

It includes the status or relationship of the judiciary with regard to the other two branches of government, the executive and the legislature.

Second, the misplaced attempt to hide under Article 99 on executive powers of the President. Even the Attorney General, the chief legal advisor of government, knew better to stay away from this in his recent attempt to justify directives from the President to the Chief Justice.

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The executive powers under Article 99 are to be exercised in accordance with the Constitution and the law.

Any actions by the President must be within a particular Act of Parliament. To this extent, the so-called executive orders such as executive order no. 3 nullifying all land transactions by the Balaalo in Northern Uganda or a myriad of presidential directives are entirely without legal basis, notwithstanding the mindless enthusiasm with which they are implemented by the minnows of state authority.

Third, contrary to Dr. Mayanja’s brazen assertion, it is the judiciary, not the President, that is the custodian of the interpretation and enforcement of the Constitution. It is the Constitutional Court that has the mandate to interpret the Constitution.

It would be the Constitutional Court to determine what the norms, values, and aspirations of the people of Uganda are and whether or not they have been considered in a judicial decision or any legislative or executive action.

It is the High Court that awards compensation to a person whose constitutional rights are violated. And if there is any dissatisfaction with the decisions of those courts, there is an appeal to the next court.

This doctrine of the independence of the judiciary was stated in the case of Musalu Musene v. Attorney-General; Mpagi-Bahigeine JA (as she was then); “Judicial officers are charged with protecting the fundamental rights and freedoms of citizens. In the performance of their duties, they are entrusted with checking the excess of the executive and legislature. These duties require insulation from any influence direct/indirect that may warp their judgment or cause them to play on hands of corrupt elements”.

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Fourth, Dr. Mayanja asserts that the executive is a saintly arm holding an absolute paternalistic position over the other two arms of government- an interest decider and knower of what is good for citizens, who are presumably relegated to children and thus have no capacity to determine what is good for them.

This paternalistic notion, as clarified in the preceding paragraphs, is constitutionally flawed, especially when it is intended to control the psyche of the judiciary, systematically defeating the latter’s mandate as an impartial arbiter of all socio-economic, political, and cultural conflicts in the country.

I therefore disabuse the lawyer Minister of his erroneous interpretation of the constitution and invite him to be guided by the 2014 Constitutional Court decision in Horizon Coaches Ltd v. Mbarara Municipal Council & 2 Others handed down by Hon. Justice Kenneth Kakuru, JA.

The said ruling emphasizes that executive directives, even from the President, cannot overturn or contravene court judgments. It underscores the constitutional requirement that the President’s authority must be exercised in accordance with the Constitution and laws of Uganda.

Otherwise, if the Minister continues to promote the kerfuffle of presidential interference in judicial functions, the citizens of Uganda have a right and duty under Article 3 of the Constitution to bring him and his abettors to justice in all manners of revolutionary ways they can muster, as he loudly trumpeted.

This they can do immediately and with absolute immunity during the life of the government he serves (as an unelected talking head) or after it has vanished into the doldrums of political oblivion.

As the Bible says, the wicked shall not know peace.


Writer: Anthony Odor
Anthony Odur

The Writer is an Advocate of the Courts of Judicature of the Republic of Uganda and Human Rights Defender

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