Question for our Chief Justice: Is the Judiciary redeemable?

On the day of vetting of the Chief Justice and his deputy, I had some minor business to attend to at the Court of Appeal. The Court of Appeal has two registries – the civil registry and criminal registry. Nothing seemed amiss. It was about 4pm. The assistant registrar impugned for failing to receive a petition to block the consideration for vetting of Deputy Chief Justice Steven Kavuma was at her desk. Nothing looked out of ordinary until I settled in in a waiting suite. Pointed inquiries were going on between the junior staff at the court. They had witnessed the earlier troublesome scenes at the court in the day. They were all asking each other whether the Deputy Chief Justice had been vetted. The filing of court papers by a team led by a former Supreme Court Justice George Kanyeihamba was frustrated. For those of us who live in semi-rural Uganda, it took days to capture the tears of the retired judge.

Without going into the merits of the petition to block consideration of Kavuma’s nomination, some important points which have been raised elsewhere should be raised again. First, the courts have little ability to referee purely political disputes that belong to the other branches of government namely Parliament and the Executive. Ministers and security officials have contributed to deterioration of this situation by periodically calling judges each time a controversial matter reaches the court.

Second, the level of mistrust between the Judiciary and the government law offices has reached unsustainable levels. Each side has some merit in their grievances. There is, for example, consensus that the immediate former Attorney General was diving way above his capacities on his first tour in Cabinet. In the long list of principal law officers going as far back as Nkambo Mugerwa, Steven Ariko Omoding, Sam Kuteesa, Joseph Mulenga, George W. Kanyeihamba, Abu Mayanja, Bart Katureebe, John Patrick Amama Mbabazi and Edward Khiddu Makubuya, no Attorney General in living memory had openly attacked judges in the press. I have omitted Joseph Ekemu who was arrested and convicted! Mr Nyombi’s frailties included “hot air” opinions which were not processed through the rigorous machinery of the government law office. It took tenacity for the AG Chambers to stay intact, winning major legal battles at home and abroad.

That said, the Judiciary has been in some kind of slow fall into decadence for years. One of the controversies that dogged CJ Benjamin Odoki’s replacement, for example, included a process that on paper seemed transparent but locked out several candidates who applied for these jobs. Second, as an instrument to discipline judicial officers, the Judicial Service Commission (JSC) has a conflict of interest being asked to discipline persons it appoints and promotes. The other channels of administrative complaints, including the office of the Principal Judge (PJ), Chief Registrar of the courts, are institutionally weak. The Chief Registrar at any one time is a candidate for consideration of appointment as a Judge.

The PJ technically assigns work in the High Court and prior to considering any complaint, has to call the judge. He does not have any investigative machinery to deal with complaints. As such, apples go from good to bad and start to rot before the tool of last resort – proceedings by the JSC – can be invoked. This mechanism has only successfully unseated two judges from the High Court since the promulgation of the 1995 Constitution and none from the appellate courts, yet questionable practices by judges continues to eat at the fabric of the rule of law.
There are ways in which Katureebe and Kavuma can support each other by playing good and bad cop but that’s for another day.
Mr Ssemogerere is an Attorney-at-Law and an Aocate.

SOURCE: Daily Monitor


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