Your Excellency, on behalf of the Members of the Uganda Law Society and the East Africa Law Society, I take this opportunity to wish you a belated happy 78th Birthday. May the Good Lord continue to bless you abundantly.
Your Excellency, today marks the eve of 50 years since the immortal Benedicto Kiwanuka was last seen in the public. Today, we do not mourn him but celebrate his life. A life that was distinguished in his works, a life that stood for truth and justice and a life that continued and has continued to impact generations of lawyers and the public. He is acknowledged as a Statesman who selflessly promoted democracy and justice in Uganda.
Today is also significant because of the new Minister of Justice and Constitutional Affairs, the Hon. Norbert Mao, whom I am fortunate to call an old boy having gone to the oldest school in this country, Namilyango College, the leader of the Democratic Party today, which party Benedicto Kiwanuka founded the eve of Uganda’s independence. It is a day of historic proportion, Your Excellency. On behalf of the members of the Uganda Law Society and the East Africa Law Society, I congratulate you on your appointment as the Minister of Justice and Constitutional Affairs.
Today’s theme urges us to reflect on the independence of the judiciary in modern times. Judicial independence is fundamental to democracy. Addressing the Cape Law Society, the Late former Chief Justice of the Republic of South Africa Arthur Chaskalson, has this to say: “Judicial Independence is a requirement demanded by the Constitution, not in the personal interests of the Judiciary, but in the public interest, for without that protection judges may not be, or be seen before the public to be, able to perform their duties without fear or favour.”
The principle of Judicial Independence is very extensive and complex but the common thread that runs through the various definitions exist at two levels: firstly, at an individual level – the ability of a judge to impartially and independently apply his or her mind to a matter without undue influence and secondly at an institutional level – the ability of the judiciary to control the administration and appointment of court staff. To do this, the judge must have security of tenure and financial security in order to guard against bribery and related interference and corrupt conduct and the judiciary must manage its own administrative functions and activities. The pertinent question therefore today from where we stand is whether there exists sufficient legislative mechanism to guarantee the independence of the judiciary, what progress has been made to actualize these legislative mechanism and what threats we see as a bar on the independence of the judiciary.
Progress Made: There has been significant progress made under your leadership towards ensuring the independence of the judiciary. We applaud you, your Excellency for the effort made this far and we shall highlight them:
The Enactment of The Administration of the Judiciary Act 2020 - through this the Judiciary has been able to have: increased funding for the Judiciary to UGX 376 Billion for the FY 2021/2022;
Inauguration of the Judiciary Council, a new oversight organ that was established to advise the Chief Justice on the administration of Justice and the Courts;
Improved Court Performance for the year 2021 as the courts were able to dispose of 158,423 cases; Alternative Dispute Resolution Interventions like plea-bargaining, small-claims procedure and mediation were promoted;
The structure of the Judicial Officers was expanded and remuneration for the lower bench was improved, allowing the Judiciary to receive 152 new appointments and promotions during the year 2021.
As the Uganda Law Society, we have also advocated for the independence of the Judiciary as a key tenet for a democratic and rule of law culture. In Uganda Law Society v Attorney General Constitutional Petition No. 52 of 2018 we successfully argued that the interpretation and scope of Judicial Independence as laid out under our Constitution included financial autonomy. The Court noted that Judicial Independence was an integral component of any progressive democracy and observed that Judicial Independence involved both individual and institutional relationships and the individual independence of a Judge in such matters as security of tenure and institutional independence of the court was also reflected in its institution or administrative relationships to the executive and legislative branches of government.
Justice Cheborion Barishaki in Uganda Law Society v Attorney General stated that supervision of court and application of disciplinary measures to judges must be organized in such a manner so that the actual independence of judges might not be violated.
Threats to the Independence of the Judiciary
Despite the significant achievements made in both the institutional and financial funding of the Judiciary, there are a number of threats which in our view need to be addressed as we progressively realise the independence of the Judiciary. Courts in Uganda are clothed with constitutional powers to dispense justice to all persons. Justice is delivered and communicated through Court orders, which must be obeyed by all persons, institutions and authorities in the land at all times. However, some government institutions treat Court orders as mere white papers with blank ink. They are accorded no respect and in some cases no attention at all. Especially, Security organs like police, intelligence agencies and departments like State House Anti-Corruption Unit, Health Monitoring Units among others. Police and law enforcement authorities must listen to the voice of the law (court pronouncements) and respect them to the dot. In some cases, a court of law will issue orders maintaining the status quo, only for the police to go and alter it. Respect of court orders is a cardinal tenet of rule of law, constitutionalism and Judicial Independence. Article 128(3) of the Constitution enjoins the organs of government to support the effective delivery of justice.
There is a perception that some judges do not act independently and there are decisions are influenced from powers above. This perception is fuelled by uninformed political statements by politicians and these need to be comprehensively and properly addressed. Examples include statements to the effect that cadre judges will be appointed to the Judiciary, statements alleging that certain judges have been bribed and so forth erode public confidence in the Judiciary especially when made by politicians. We believe that anyone aggrieved by Judicial decision must appeal that decision using the appellate process and any disciplinary issues against Judicial officers must be raised to the Judicial Service Commission. This perception is also fuelled by certain judgements especially relating to the protection of human rights and freedoms. As the court observed in Uganda Law society v Attorney General, the independence of Judges and courts is not an end itself, it is a necessary condition of protection of human rights and freedoms
Today, Your Excellency and Members of the bench, it is appropriate for me to refer to a decision by the Late Benedicto Kiwanuka, CJ (as he then was) in Musoke v Uganda (1972) 1 EA 137. The applicant was charged with robbery and was released on bail. There after the State amended the Charge to robbery with aggravation and successfully applied for bail to be rescinded. More than three months passed without the applicant being brought to bail. He again applied for bail and also named witnesses he wished to call but he was not brought from Prison and the trail could not therefore take place. After several adjournments, the trial eventually took place.
The Late Justice Kiwanuka had this to say on the events:
“I do not deny that the Director of Public Prosecutions has every right to alter charges as he sees fit. But as a Judge of this Court, I am bound to come to the rescue of our citizens where I detect an attempt on the part of those who have power to prosecute others to abuse the power in their hands. This in my view is one of those cases.”
How often are we coming to the rescue of our citizens? Is history repeating itself? Judicial accountability is crucial to Judicial integrity. In Attorney General v Gladys Nakibuule Kisekka Constitutional Appeal No 02 of 2016, the Supreme Court stated that whereas Judicial Independence can bolster Judicial courage exercised by Judges called upon to rule in difficult cases, accountability can bolster the integrity Judges demonstrate in their performance on the Bench. Judicial accountability refers to Judges being answerable for their actions and decisions to the community to whom they owe their allegiance.
Security of tenure is one of the key tenets of an independent Judiciary. It is important for providing stability in the functioning of the courts and prevents any perception of lack of independence in the Judiciary. We should strongly reconsider appointing Judges in an Acting Capacity and I appreciate that this is a court matter and I will say nothing more except to reemphasize that if Judges do not have security of tenure, the independence of the Judiciary is greatly undermined.
The enactment of the Administration of the Judiciary Act marked a key turning point for the independence of the judiciary. The subsequent implementation of the Act is a sign of good progress towards actualizing the independence of the Judiciary. We understand that this is not a destination but a journey and we must work together to strengthen the independence which is a key tenet for rule of law and democracy.
The threats we have highlighted must be sufficiently addressed. I would like to take this opportunity to thank the Judiciary and the Organizing Committee for this opportunity to share our thoughts as ULS.