When Prof. George Kanyeihamba writes about the rot in the judiciary, surely one has to believe him given his long time practice in the judiciary service in Uganda. It is no surprise that the players in judiciary get external influence. What we need is facts and then come up with a way forward. This calls for undertaking research to find out the truth.
William Kituuka Kiwanuka
This is how the Executive outfoxes the Judiciary
By Prof. George Kanyeihamba
Posted Sunday, January 22 2012 at 00:00
Ask Ugandan lawyers about the state, independence, impartiality, quality and performance of judges and judicial officers. The majority of the answers on most of these characteristics will be discouraging and negative. Lawyers who care and who do not benefit through unethical behaviour and lack of integrity in the profession will, if they are candid enough, reveal that the methods of vetting new recruits into the Judiciary are either very poor or non-existent. They will name the incompetent, the corrupt and the biased. They will narrate stories of how they or their clients were compromised or blackmailed by corrupt judicial officials. The system of nominating, appointing and disciplining judges and other judicial officers have become political and personalised. Allegations of corruption, abuse of judicial office and evidence amply justifying those allegations is freely available, but it seems no one wishes to do anything about these ghastly failures in our judicial service. The existence of this kind of behaviour and reactions or, to be exact, non-reactions, inevitably means that Uganda grossly lacks what may be termed in other jurisdictions ideal or acceptable standards of justice. The practice of nominating and approving the least desirable and qualified judges and judicial officers has been perfected under the National Resistance Movement party. Many lawyers know and regret the major reason why Uganda has sank below the level line of countries which are recognised as champions of independent, impartial and respected Judiciaries.
These are Judiciaries designed, protected and respected to interpret the law correctly and administer justice impartially. The trick used by the ruling party leadership to achieve this feat has been to ensure the absence of an independent and courageous Judiciary by establishing and sustaining weak and intimidated leaderships of the Judicial Service Commission, the Chambers of the Attorney-General and of the Judiciary in preference to fearless and principled ones that would represent and constantly fight for an independent, impartial and fearless Judicial institution. The institutions and personnel of the bodies set up under the NRM party to service the Judiciary have been deliberately or otherwise rendered toothless. The consequences of undermining or belittling the Judiciary have been disastrous for the country and litigants alike. The Judiciary has become a laughing stork of its critics. The quest for proper interpretation of the law and proper administration of Justice have yielded no or few responses. Corruption and incompetence have increased citizens’ dissatisfaction and cries for justice. Cases of disappointed litigants have increased as reports of incompetent and corrupt judicial officers have increased. Allegations of wrong-doing and improper conduct have become rampant in all sectors involving law and justice. According to the Constitution, Judicial power is derived from the people and shall be exercised by the courts in the name of the people and in conformity with the law and with the values, norms and aspirations of the people. Considering what Parliament, the press and the President have between them testified about the alleged offences of Hassan Basajjabalaba and other suspects, how can a Judge of the High Court, oblivious to all credible evidence regarding the same, block attempts by the government to recover Shs169 billion “irregularly” awarded to him? If a journalist of a daily newspaper is correct that a judge of the High Court who happens to be hearing land cases issued a temporary injunction blocking the Auditor General, the minister of Finance and Uganda Revenue Authority and other government agencies from investigating or taking any steps to recover part or the whole sum, then this country is in crisis.
I have seen and read several such injunctions and applications intended solely to delay or defeat justice. It is high time that the law relating to injunctions was reviewed by the Chief Justice’s initiative. The Executive arm of government has through directives and in defiance of the advice of the Judicial Service Commission, manipulated Articles 142 and 147(2), and imposed its own interpretation of the same with no effective protest or opposition from the Judiciary or the Uganda Law Society or, indeed, the entire national legal fraternity. In practice, the Executive today nominates or rejects any candidate for any office regardless of the position the candidate is nominated for in the hierarchy of the Judiciary.
Justice Kanyeihamba is a retired Supreme Court Judge.