ANNUAL JUDGES
CONFERENCE REPORT
CONFERENCE THEME:‘THE UGANDA JUDICIARY AS THE GUARANTOR OF THE RULE OF LAW’ 26TH – 29TH JANUARY, 2017 SPEKE RESORT CONFERENCE CENTER, MUNYONYO, KAMPALA
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Contents 1.0 PROGRAMME.......................................................................................................................................................................................................2
DAY 2: FRIDAY, 27TH JANUARY 2017
2.0 Opening ceremony...............................................................................................................................................................................................5 2.1 Constituting of the 19th Annual Judges’ Conference........................................................................................................................................5 2.2 Welcome Remarks by the Executive Director Judicial Training Institute (JTI)..................................................................................................5 2.3 Remarks by the Hon. Minister of Justice Kahinda Otafiire................................................................................................................................6 2.4 Address by the Hon the Chief Justice of Uganda Hon. Bart Magunda Katureebe..........................................................................................6 2.5 The Official Opening by H.E the President of the Republic of Uganda, Gen. Yoweri Kaguta Museveni........................................................9 2.6 Launch of the Criminal Bench Book....................................................................................................................................................................10 2.7 Launch of the Judicial Brand................................................................................................................................................................................10 3.0 Key Note Address: The Role of the Judiciary as the Guarantor of the Rule of Laws in the Contemporary World......................................12 3.1 Plenary (Question and Answers).........................................................................................................................................................................16 4.0 The Judiciary Show Case Skit...............................................................................................................................................................................16 5.0 Performance of the High Court...........................................................................................................................................................................17 6.0 The Court of Appeal/ Constitutional Court’s Performance...............................................................................................................................24 7.0 The Supreme Court Performance 2016.............................................................................................................................................................26 7.2.1 Plenary (Question and Answers)......................................................................................................................................................................28
DAY 3: SATURDAY 28TH JANUARY 2017
8.0 Prayer....................................................................................................................................................................................................................29 9.0 The Role of an Independent Judiciary in Emerging Democracies, by Justice Cart Singh................................................................................29 9.1 Plenary (Question and Answers).........................................................................................................................................................................29 10.0 Enhancing Cooperative Governance among the three Arms of Government to Foster the Rule of Law and National Development....30 10.3 Plenary (Question and Answers).......................................................................................................................................................................31 11.0 Panel Presentation on Combating Real and Perceived Corruption in the Ugandan Judiciary.....................................................................33 11.1 The IGG remarks.................................................................................................................................................................................................33 11.2 President, Uganda Law Society: Mr. Francis Gimara’s Remarks......................................................................................................................35 11.3 Views from the Chairperson, JLOS Integrity Committee, Hon. Justice Jotham Tumwesigye, JSC................................................................37 11.4 Views from Cissy Kagaba (ED) Anti-Corruption Coalition Uganda..................................................................................................................38 11.5 Moderator Mr. Charles Mwangusya’s Question and Answer interlude.........................................................................................................39 11.6 Plenary (Question and Answers).......................................................................................................................................................................40
DAY 4: SUNDAY 29TH JANUARY 2017 49
12.0 Panel Presentation on Enhancing the Rule of Law through Land and Family Justice for All........................................................................42 12.1 Justice Mukiibi’s Presentation (Family Justice for All)......................................................................................................................................42 12.2 The Ag. Administrator General, Mr. Kasibayo Presentation............................................................................................................................44 12.3 Mr. Pius Bigirimana’s Presentation....................................................................................................................................................................47 13.0 Investing in the Rule of Law through Sustainable Resourcing of the Judiciary..............................................................................................49 13.1 Remarks by Hon. Dr. Yorokamu Bamwine........................................................................................................................................................49 13.2. Presentation by Hon. Minister Dr. Kisamba Mugerwa...................................................................................................................................50 13.3 Presentation by the PS/ Secretary to the Judiciary (Mr. Kagole Kivumbi)......................................................................................................54 13.4 Plenary Discussion..............................................................................................................................................................................................56 14.0 Strengthening Partnerships between the Judiciary and the Media to Enhance Access to Justice for All...................................................57 14.1. Robert Kabushenga’s Views..............................................................................................................................................................................57 14.2. Dr. Peter Mwesigye’s Views..............................................................................................................................................................................57 14.3 Plenary (Questions and Answers).....................................................................................................................................................................60 15.0 Recommendations and Resolutions of the 19th Annual Judges Conference...............................................................................................61
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ANNUAL JUDGES
CONFERENCE CONFERENCE THEME:‘THE UGANDA JUDICIARY AS THE GUARANTOR OF THE RULE OF LAW’ 26TH – 29TH JANUARY, 2017 SPEKE RESORT CONFERENCE CENTER, MUNYONYO, KAMPALA Master of Ceremonies: H/W Gadenya Paul Wolimbwa, Chief Registrar
1.0 Programme DAY 1: THURSDAY, 26TH JANUARY 2017 TIME
PRESENTATION/ ACTIVITY
RESPONSIBLE
04:00pm
Participants check in the Hotel
H/W Dr. Gladys Nakibuule Kisekka (Dep. Registrar Research) and Mrs. Muwonge Josephine (Commissioner HR)
CHAIR
DAY 2: FRIDAY, 27TH JANUARY 2017 TIME
PRESENTATION/ ACTIVITY
08:00 - 9:00am
Arrival and Registration of participants at the conference venue
09:00 - 09:10am
CONSTITUTING OF THE 19TH AJC Anthems - Uganda, East Africa Prayer - Representative of the Muslim Faith
RESPONSIBLE PERSON (JSI)
Prisons Board Muslim Mufti or Representative
10:00 - 10:45 am 10:45 - 10:50 am 10:50 - 11:00 am
OPENING CEREMONY Welcome Remarks by the Executive Director, JSI and Showcasing of the Uganda Judiciary Remarks by Minister of Justice and Constitutional Affairs Address by The Hon. The Chief Justice Official Opening by the Guest of Honor Launch of the Criminal Bench Book and Judiciary’s Brand Identity Group Photograph
11:00 - 11:30 am
Health Break
11:30 - 12:00 pm 12:00 - 01:00 pm
Key Note Address: The Role of The Judiciary As Guarantor of The Rule Of Law In The Contemporary World Plenary (Question and Answer)
Presenter: Prof. Hugh Corder, Professor of Public Law, University of Cape Town
01:00 - 02:00 pm
Lunch
Comm. HR and Hotel
02:00 - 02:40 pm
Panel Presentation On The Performance Of The Courts: The High Court
02:40 - 03:10 pm
The Court of Appeal/ Constitutional CourtThe
03:10 - 03:30 pm
Supreme Court
03:30 - 04:30 pm
Plenary (Question and Answer)
09:10 - 09:25 am 09:25 - 09:30 am 09:30 - 10:00 am
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CHAIR
Hon. Justice Dr. Henry Peter Adonyo Hon. Kahinda Otafire Hon. Justice Bart M. Katureebe H.E. The President of the Republic of Uganda
Chief Registrar
Hon. Lady Justice Dr. Esther Kisaakye Kitimbo
Comm. HR and Hotel
Hon. Justice Dr. Yorokamu Bamwine, Principal Judge Hon. Justice Steven Kavuma, Deputy Chief Justice Hon. Justice Jotham Tumwesigye
The Hon. Deputy Chief Justice
Hon. Lady Justice Stella Arach Amoko
TIME
PRESENTATION/ ACTIVITY
RESPONSIBLE PERSON
04:30 - 05:00 pm
Tea
Comm. HR and Hotel
06:00 - 08:00 pm
Cocktail
Comm. HR and Hotel
08:00 pm
Dinner (by Coupon)
CHAIR
DAY 3: SATURDAY 28th, JANUARY 2017 TIME
PRESENTATION/ ACTIVITY
RESPONSIBLE PERSON
CHAIR
08:30 - 09:00 am
Registration of participants Prayer
Secretariat DR Research Representative of the Seventh Day Adventists Faith
09:00 - 10:00 am 10:00 - 11:00 am
The Role of an Independent Judiciary in Emerging Democracies Plenary (Question and Answer)
Hon. Mr. Justice Carl Singh, Chancellor of the Courts, Guyana All
11:00 - 11:30 am
Health Break
Comm. HR and Hotel
11:30 - 12:30 pm 12:30 - 12:40 pm 12:40 - 01:00 pm
Dr. Busingye Kabumba, Faculty of Enhancing Corporate Governance Among The Three Arms of Government To Foster The Rule of Law, MUK Hon. Justice B.J. Odoki, Chief Law and National Development Justice Emeritus Comments on the Topic Plenary (Question and Answer)
01:00 - 02:00 pm
Lunch Break
Comm. HR and Hotel
02:00 - 03:00 pm
Combating Real and Perceived Corruption in the Ugandan Judiciary
Panelists:
03:00 - 03:45 pm
Plenary(Question and Answer)
03:45 - 04:00 pm
Health Break
Comm. HR and Hotel
03:45 - 05:30 pm
Justices and Judges’ Meeting
Chief Registrar
-
Cultural Gala
DR Research & Comm. HR
Justice Irene Mulyagonja (IG) (7 Mins) Ms. Cissy Kagaba (ACCU) (7 Mins) Justice Jotham Tumwesigye (JIC) (7 Mins) Uganda Law Society (7 Mins)
Hon. Retired Justice A.N. Karokora
Hon. Lady Justice Faith Mwondha
Moderator: Mr. Charles Mwangusya
Chief Registrar
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DAY 4: SUNDAY 29th, JANUARY 2017 TIME
PRESENTATION/ ACTIVITY
RESPONSIBLE PERSON
CHAIR
07:15 - 08:00 am
Prayers
Representative of Inter Religious Council
Secretariat
08:30 - 09:00 am
Registration
- All-
9:00 - 9: 50 am9:50 - Enhancing the Rule of Law through Land and 10:30 am Family Justice for AllPlenary (Question and Answer)
PRESENTERS: Hon. Justice Moses Mukiibi Ministry of Lands Commissioner Administrator General Mr. Pius Bigirimana, Permanent Secretary, Ministry of Gender
10:30 - 11:00am
Health Break
Comm. HR and Hotel
11:00 - 11: 45 pm
Investing in the Rule of Law through Sustainable Resourcing of the Judiciary Plenary (Question and Answer)
Hon. Justice Dr. Yorokamu Bamwine (15 mins) Mr. Kagole Kivumbi (15 mins) Mr. Keith Muhakanizi (15 mins) Dr Kisamba Mugerwa (15 mins)
01:00 - 01:30 pm
Strengthening Partnerships between the Judiciary and the Media to Enhance Access to Justice for All Plenary (Question and Answer)
Hon. Justice PRESENTERS: Hon. Minister of Information and Richard Buteera ICT, Mr. Robert Kabushenga (CEO, Vision Group), Dr. Peter Mwesigye (African Center for Media Excellence).
01:30 - 02:30 pm
Lunch Break
Comm. HR and Hotel
02:30 - 02:40 pm
Presentation of the draft 19th AJC Resolutions and Approval
11:45 - 12:30 pm
12:30 - 01:00 pm
02:40 - 02:50 pm 02:50 - 03:20 pm
03:20 - 03:40 pm
OFFICIAL CLOSING Remarks by the Minister of Justice and Constitutional Affairs Official Closing by the Hon. the Chief Justice of Uganda Tea
Dr. Nakibuule Gladys Kisekka
Hon. Kahinda OtafireHon. Justice Bart M. Katureebe
Hon. Lady Justice Prof. Lillian Tibatemwa Ekirikubinza
Hon. Justice Stephen Egonda Ntende
Hon. Lady Justice Dr. Esther Kitimbo
Hon. Lady Justice Dr. Esther Kisaakye Kitimbo
Comm. HR and Hotel
END OF PROGRAMME
DAY 1: THURSDAY, 26TH JANUARY 2017 The Conference resident delegates checked in on the 26th January 2017, and registration of Hotel resident participants for the conference started.
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Session Chair: Lady Justice Dr. Esther Kisaakye Kitimbo
DAY 2: FRIDAY, 27TH JANUARY 2017
SESSION ONE 2.0 OPENING CEREMONY Guests continued with registration subject to accreditation
2.1 Constituting of the 19th Annual Judges’ Conference
H/W Gadenya Paul Wolimbwa, Chief Registrar
The Guest of Honor arrived at around 10.00a.m. The Uganda National Anthem’s three stanzas and the East African Anthem two stanzas were played respectively by the Uganda Prisons’ band. The Chief Registrar, as the Master of Ceremonies, invited the prayer leaders. Sheik Khatib Mukulu Wakika on behalf of Sheik Mubajje gave the lead day prayer, while Justice Helen
Obura, Justice of the Court of Appeal/ Constitutional Court g ave the Christian’s prayer. The Chief Registrar introduced the Judges present in their court categories, the registrars present, the administration staff, heads of civil service, and other dignitaries who were present.
2.2 Welcome Remarks by the Executive Director Judicial Training Institute (JTI)
Hon. Justice Dr. Henry Peter Adonyo, Executive Director (JTI)
Justice Adonyo, on his own behalf and on behalf of the organizing committee, welcomed all invited guests present all singularly in their specific designates. He thanked His Excellence for sparing his time to bless the conference with his presence despite his very busy schedule. He noted that the Judiciary values His Excellence’s fraternal interest in the matters relating to the administration of justice in this country, which has enabled it to play its proper role in ensuring that this country is secure, and is on the right path to prosperity under his leadership, and this is not taken for granted. He saluted him with an ‘Asante Sana bwana’. Dr. Adonyo outlined the theme of the conference as ‘the Uganda Judiciary as the guarantor of the Rule of Law. He enumerated the purposes for the theme as below: 1. To highlight the role and independence of the judiciary in defending and guarantying the Rule of Law in the Ugandan society. 2. To identify and address gaps and challenges that the judiciary faces in carrying out its mandate, which are critical to fostering and guarantying the Rule of Law.
3. To examine the role of corporate governance in promoting and guarantying the Rule of Law. 4. To share best practices from the rest of the world on how the Ugandan judiciary can effectively guarantee the Rule of Law in a fast and changing society. Dr. Adonyo highlighted the major themes of the Programme scheduled from 26th January 2017 to 29th January 2017. He underlined that the conference was intended to be interactive with lively interludes and where necessary with some breakout sessions. Dr. Adonyo thanked all the dedicated Judiciary administration and all the participants in attendance, especially the Judicial Training Committee that organized the conference and the special guests who travelled from far to attend the conference. He encouraged them to enjoy the pearl of Africa. He finally wished all present a productive conference, and a happy and energized prosperous new year. The Master of Ceremony continued with the further introductions of the judges heading Commissions, retired justices Karokora and Tsekoko, Chairs of the Commissions, Visiting Professor Corder from South Africa, and the Attorney General and invited the Hon. Minister of Justice Kahinda Otafiire to address the conference. w w w .j ud i c i a r y .g o .ug | 5
2.3 Remarks by the Hon. Minister of Justice Kahinda Otafiire The minister saluted all present in their respective dignities. The Hon. Minister of Justice made an undertaking with the Chief Justice that by today the Administration of Bill would have been tabled. However, the Bill had issues that were to be harmonized. He promised that the Bill will be tabled by end of February 2017. Hon. Kahinda Otafiire, Minister of Justicr and Constitutional Affairs
The Hon. Minister of Justice reported that there will be salary increments cascading down from
the Chief Justice to the rest of all the cadres for the judiciary. He informed members that the ministry was working towards an effective and more robust JSC, despite previous setbacks, that include financial challenges which were being addressed too. He pledged that he was working on providing a leisure place for the judiciary. He invited the Hon, Chief Justice to give his remarks.
2.4 Address by the Hon the Chief Justice of Uganda Hon. Bart Magunda Katureebe
Hon. Justice Bart M. Katureebe, Chief Justice of Uganda
The Honorable the Chief Justice welcomed all guests present all in their capacities, and he noted that the Annual Judges’ Conference is a pleasant moment for the Judges to take stock of the previous year’s work and discuss contemporary issues affecting their administration of justice. He further observed that the Conference is also an opportunity too for the Judiciary to interact with its stakeholders and forge a shared vision on the administration of justice in Uganda. He singularly warmly welcomed His Excellence to the conference. He was grateful for His Excellence’s presence and honor of the invitation, for His Excellence’s observance the rule of law and the independence of the Judiciary where courts do their work freely, and for His Excellence’s promoting principled dialogue on matters of concern to Government. He recalled His Excellence‘s own words at the opening of the Conference Eastern and Southern African Chief Justices several years ago at the same venue that ‘if the judiciary is not made strong where will the citizens ran to’, and this was the theme of the conference. The Honorable the Chief Justice urged His Excellence to continue supporting the transformation of the Judiciary into an effective and efficient people driven institution partnering in development. His Lordship welcomed His Lordship CARL SINGH, Chancellor of the Judiciary of Guyana, and commended him to allow to travel to present a key note conference address, and for the bond of
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interpersonal friendship developed, now strengthened a of a Guyana hosted the CMJA in September 2016. He welcomed too Prof Hugh Corder from the University of Cape Town had also graciously accepted almost at a short notice to become a key note speaker to the conference. He welcomed further the two special guests to the judiciary, Hon. Justice Tarsis Karugarama from Rwanda, and Tobith Degram from the Justice Leadership group who were present to discuss with the judiciary possible collaboration in the sphere of administration of justice. The Honorable the Chief Justice congratulated the judges for the achieved 2016 milestones despite challenges. Milestones that include: significant conclusion of cases, addressing case backlog amidst limited financial, technical and logistical inadequacies, the Supreme Court timely disposal of the Presidential Election Petition despite the flipside that all other cases stalled then, and the High Court disposal the Parliamentary and Local Council election petitions within six months, registering yet another continental best practice. He assured that at the time of the conference the Court of Appeal was in the middle of the hearing of Election Petition Appeals and he hoped that the judges will dispose quickly those appeals so that people can sit comfortably in the parliament without looking over their shoulders for appealed petitions. He was confident that in accordance with Ugan-
da’s motto of ‘For God and My Country’, 2017 would be a great year for the Judiciary, and the nation. He hoped 2017 would be a great year for the Judiciary and nation. He emphasized that Judges during these annual conferences take stock of year past and plan ahead, while away from the routine, and they expect to get feedback, sharing best practices and innovations from external voices on matters that concern the administration of justice and other developments in the country. Thus, nurturing constitutionalism and promoting peace and stability in Uganda. The Honorable the Chief Justice highlighted the theme of the Conference as The Judiciary as the guarantor of the rule of law, a theme in continuation of the discourse of the CMJA held in Guyana in September 2016. He lauded the theme for underscoring the relevance of the rule of law, and recognizing the work that remains to fully realize the rule of law in a dynamic and unpredictable world. So, the goal of the Conference was to adopt mechanisms for the full realization of the rule of law. He raised the question of ‘whether one can have true observance of the rule of law if the adjudicatory organs (the courts) are weak and uncared for’. He argues that a strong independent Judiciary is a must for a society to attain the desired goal of governance according to Rule of Law principles; only if the factors that impact on its administration are addressed. He further contends that despite the global massive improvements in the respect for the rule of law, to a great extent there is also an affront to it breaking it down, through issues such as terrorism, corruption, poverty, inequality, climate change, oppression, hunger, diseases and flagrant abuse of basic fundamental freedoms, that the world is still grappling with. Cognizant of these challenges, he noted that in order to access justice, the United Nations and Uganda’s National Development Plan II and Vision 2040 in tow, have increased the scope of freedoms, to create opportunities for all, to actively participate in the transformation of lives and societies. He recalls that effective enforcement of the rule of law is a function of the will of the people and institutions charged with enforcing it, because it is not a self-effecting doctrine. He emphasizes that
this position was illustrated by Professor Kabudi who says that the solidity of a constitution and respect of its principles relies much more on legitimacy rather than on legality. He called on true enforcement of the rule of law that is dependent upon effective, trusted and accountable institutions especially, the Judiciary, which is the last line of defense against oppression. He recommends therefore that firstly, structural and systemic issues limiting access to justice for all must be addressed. Particularly for Uganda, Chapter 8 of her 1995 Constitution should be operationalized to establish a strong, viable and vibrant Judiciary which is capable of defending the Constitution, administering justice and fostering the rule of law. Secondly, that the Judiciary Administration Bill should be enacted into law and the budget of the Judiciary should be increased to make the Judiciary more efficient in fostering and guaranteeing the rule of law, through the provision of the necessary tools, such as adequate funding, and ICT to serve justice to the people. Thirdly, the Judiciary must be independent, accountable, impartial, and trustworthy and run by individuals of impeccable integrity. Integrity, being the bedrock of the administration of justice. So, he decried reports of real and perceived corruption in the Judiciary at various levels in different forms. Forms that include: bribery, wastage of judicial time, interference in the judicial process and circumvention of the due process. He cautioned that corruption is expensive to developing countries deepening their poverty levels, and also short circuits the administration of justice, undermining the ability of the Judiciary to guarantee the rule of law. He argues that, with corruption there is a tilted level field where courts cannot accord equal application of the law to all, without fear or favour. He therefore recommends too public reports on corruption against judicial officers to the judiciary administration and its strengthened Inspectorate of Courts, the Judicial Service Commission and the Inspectorate of Government, to collectively eliminate it. He however cautioned against reckless and malicious allegations against Judicial Officers. Quoting Justice Sakala, the former Chief Justice of Zambia, he recalls that the integrity of the Judiciary will remain a pipe dream if the men and women who sit on the bench themselves w w w .j ud i c i a r y .g o .ug | 7
lack integrity. He advises that each judicial officer owes him/herself and to the society a duty to exhibit the highest degree of integrity so as to win the public trust. He undertook that the Judiciary will continue to support national efforts to eradicate corruption through timely disposal of cases in the Anti-Corruption Division of the High Court. Further, that the law on Judicial Review will be amended to stop unscrupulous corrupt litigants from using other courts to block their prosecution, except when prosecution is being challenged on constitutional issues. The Hon. the Chief Justice recalls the United Nations Office on Drugs and Crime that the centrality of a strong justice mechanism lies in its essential contribution to fostering economic stability and growth. Thus, the Uganda Judiciary, in line with the Uganda’s National Development Plan II and Vision 2040, should provide a conducive legal and regulatory environment and stability to support economic development. Citing Brazil’s experience, he argues that a strong Judiciary is a good catalyst for economic growth due to the promoted investor confidence and attracted capital markets. Therefore, he submits that Judges must be alive to the consequences of their decisions on the society as they administer justice, and appreciate that delayed justice holds money for production and that protracted trials, hurt and sink the poor deeper into a maze of poverty. The courts must support and not frustrate accountability institutions, through resolute enforcement of the law to promote public good, fight corruption and curtail arbitrariness in the exercise of public power, which has far reaching consequences on the society. The above notwithstanding, he argues that the Judiciary’s ability to guarantee the rule of law depends on the collective willingness of the Executive, Legislature and Judiciary to work together to promote the common good of citizens. Avenues must be found for the three arms of the state to communicate, cooperate, and coordinate state business through mutual respect and self-restraint but without ever unduly interfering in the work of the other except as permitted by law. He therefore commended that interactions like in this conference would provide a modicum for better understanding of the mandate of each arm and resolution of tensions, which is good for fostering and guaranteeing the rule of law. For example, 8 | The Ju di ci ary
he argues we could discuss whether the State should purchase an extra helicopter or put the resources to purchasing vehicles for Magistrates to resolve land cases, and the Judiciary is not left out as mere bystanders or passive participants in the democratic dispensation, as to make the rule of law work. He recommends Judges to seriously take their special role in an open and democratic society by filling the vacuum left either by inaction of the Executive or Legislature in areas of social reform and expansion of the application of the bill of rights to cover echelons of the vulnerable and marginalized. Citing Brown vs. Board of Education, he points out that is the court and not Congress that declared segregation in schools unconstitutional when the Congress had failed to act. He emphasizes the courts responsibility to deal with societal issues that have been ignored to ensure that democracy is open to all. Re-echoing the words of Anthony Lewis, life is not perfect. Statesmen, including judges, must do as well as they can with what they see, if democracy and by implication the rule of law, is to thrive and be guaranteed. Nevertheless, in such a manner so as to make the doctrine (of separation of powers) real efficacious by ensuring that each branch of Government respects the principal functions of another branch and desists in encroaching on powers of another arm of government without compromising the principle of checks and balances that is required in a democratic country that respects rule of law and exercises good governance. (Prof. Kabudi - The doctrine of separation of powers and its application in Tanzania: successes, challenges and prospects.) The Hon. the Chief Justice concluded that the Judiciary plays a fundamental role in guaranteeing the rule of law to provide grounds for stability, progress, inclusive of sustainable growth, prosperity and peace for all, through sacrifice and struggle. Thus, the Judiciary and other institutions charged with enforcing the rule of law must not spare any efforts to cultivate and nurture the rule of law as the perfect gift to humanity. Pragmatism and idealism is what is desirable for all judicial officers in Uganda as the bedrock for the rule of law in our Country.
2.5 The Official Opening by His Excellency the President of the Republic of Uganda, General Yoweri Kaguta Museveni
H.E Yoweri Kaguta Museveni, President of the Republic Uganda
His Excellence, the President of the Republic of Uganda, Yoweri Kaguta Museveni welcomed all members present. He thanked the Chief Justice for the invitation to officiate the 19th AJC, yet he had also officiated the 18th Judges’ Conference. He lauded these conference meetings. Recalling the Conference theme, his excellence argued that such interactions of this kind are healthy for democracy, just as Rule of Law is vital for the efficient function of the country. He analyzed the act to ‘Judge’ from the local dialect’s point of view as an act of dispute resolution for the two parties. He underlined that the NRM supports the rule of law for the good or bad within the law, even if the law may not be just. He was emphatic that the NRM government supports and respects the law as is, even when it may not agree with the philosophies therein where the executive has not deciphered the NRM philosophy into the law. His Excellence, highlighted the traditional value of philosophical jurisprudence, in dispute resolution management. He gave the examples of circumstantial evidence such as the truism in the saying that if the sheep’s hair is found in the hyena’s stool, then it is the Hyena that must have ate the sheep ; looking people right in the eye if one is truthful; the duty to answer the alarm and failure of which indicates guilt; among others. He argues that due to the African jurisprudence, stability in society was maintained for a millennia. He further underlines the need for legitimacy within the rule of law to avoid bad laws. He argues that through liberation war, ideologies have been changed to the extent that Uganda has registered economic growth of 6% per annum; growth from 5 billion to 11.2 trillion in Financial Year 2016; and growth in micro economy. He promised that the state undertakes to remove bottlenecks in managing business, and will also promote Uganda’s investment environment. He observes that it is important to have a conducive judicial environment for protection of property rights and investments. His excellence therefore
appealed to judges to expedite land and commercial cases since these areas are critical to the growth of the economy; explore ADR; and prioritize commercial disputes and murder cases. He recalls the need to give service not necessarily when hinged on financial resources, and improvise in all the activities the government does. He undertook to engage the Judiciary through the Chief Justice in the budgetary process allocations. He stressed the need to harmonize budgeting by all the three arms of government. He also stressed that things ought not to be handled mechanistically, citing the Maputo Declaration where in regard to education where it had been declared that 17% of the budget be spent on education, yet African states lack needs such as roads. He urged for holistic budgeting and not compartmentalized budgeting. To his excellence, this is highly relevant for countries like Uganda that have suffered a totally collapsed infrastructure in the past decades to prioritize the mostly worst affected cores of the organization of the systems of the state as a whole. He gave an example of the Biblical Creation story which was systematic, and Man was created last. Not that he was less important, but his living environment had to be established before he came into existence. Thus, his excellence contends that budgeting for the cultural in-recovery is distinct from the budgeting of a collapsed economy. The former is gradual amidst a growing population like that of Uganda which now stands at a population of 40million. His excellence showcases the growing infrastructure where the roads are being built, the electricity availability, and the railway construction underway, among others. He compares these activities as the core organs of governance as the fetuses of growth of a child in the mother’s womb. His excellence is in total agreement that a disorganized judiciary is a total disarray from the rule of law. However he strongly calls for commercial cases, murder, election petitions cases’ prioritization to foster economic development, than cases of domestic scuffles such as divorces, irrespective
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of the growing case backlog. He was positive that Uganda is gradually economically developing giving the discovery of as an example. He emphasizes triand integral budgeting to avoid time wasting. He also informed the conference that the executive is working on transforming Uganda through wealth creation. His excellence implores that courts/judicial decisions should amplify social priorities for the society’s common good. He notes that the presence of good governance, democracy and security are good indicators of the rule of law and that the government has democratized the rule of law at all structures of the population.
(such as the army and the police) in the principles of the rule of law and democratic governance, through on job trainings, even if most recent recruits are graduates. He applauds the economic objectives in the government Vision 2040, and calls for zero tolerance on corruption to maximize resources especially in justice management. Justice should not only be for the rich. He declared the government’s dedication to cooperate economic integration such as in the East African Community, and that the courts should not delay cases in the system. He finally proposed a meeting with the judiciary to discuss in camera the judiciary concerns outside a conference environment, and declared the 19th AJC open.
He recommends training of all justice agencies
2.6 Launch of the Criminal Bench Book The Criminal Bench Book was introduced by the retired Justice Tsekoko. He recalled that a similar Bench book, the Civil Bench book was launched in 2016. Justice Tsekoko introduced the committee that included Hon. Justice Buteera, Justice Wangutusi, the Director of the LDC, Mr. Frank Othembi, Ms Ruth Sebatindira, former President ULS, Jane Okwog Public Relation Officer for the DPP, and Didas Bakunza Head of Editorial & Law reporting LDC.
He commended the involvement of the police in learning expeditious modules of criminal cases. His Excellence, the President of Uganda launched the Criminal Bench Book. His Excellence congratulated the Judiciary in coming up with practical steps of empowering judicial officers to handle criminal processes. He signed two copies of the bench book, and handed one of the signed copies to the Chief Justice of Uganda and the other copy to the Chancellor of Guyana.
2.7 Launch of the Judicial Brand His excellence with the assistance of the Hon. the Chief Justice launched the Judiciary brand. Lady Justice Mugambe Lydia explained that the rationale for the branding of the Judiciary was to: firstly to provide the Judiciary with a unifying corporate identity and platform for both internal and external communication. Secondly, to get the public to reappraise the Judiciary. Thirdly, to inspire the Judiciary staff to meet the expectations of the general public, and fourthly, to boost Judiciary’s public visibility and public awareness initiatives. She highlighted that the brand logo had in it: a symbol representing the Kampala High Court Building, seated on a Uganda Court of Arms, and 10 | The Ju di ci ar y
with a scale of justice weights each scale on the sides as the logo’s arms. The Judge explained the symbol colors too. The official Judiciary’s colors are ‘gold’ and ‘purple’. The ‘purple’ blend for the judiciary as a body, while the ‘gold’ represents a blend out of which the judiciary does its work. She illustrated the brand with: a judiciary identity card sample and with images of the roll- up judiciary stand banners, and the Judiciary L- Fliers, Direction signs, and with Letterheads samples of the Chambers of the Chief Justice, the Deputy Chief Justice, the Principal Judge, Secretary to the Judiciary, Judiciary’s General, the Judicial Studies Institute, Registry of Planning & Development, the High Court, and Mukono Circuit.
President Yoweri Museveni and the Chief Justice at the launch of Judiciary’s new Brand Identity at the 19th Annual Judges Conference in January 2017.
Lady Justice Mugambe Lydia, Chair Editorial Committee explains to the President the rationale of branding the Judiciary.
His Excellency Yoweri Kaguta Museveni in the group pause with the Chief Justice on his left, the Minister of Justice on his right, the Attorney General on his 2nd right, followed by the Deputy Chief Justice, while in the company of the Judges & some Key JLOS Actors.
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3.0 Key Note Address The Role of the Judiciary as the Guarantor of the Rule of Laws in the Contemporary World, Prof. Hugh Corder, Public Law, University of Cape Town i. Meaning of the Rule of Law (ROL)
Prof. Hugh Corder, Public Law, University of Cape Town
Professor Hugh traced the meaning of the Rule of Law from the work of Albert Venn Dicey (an English constitutional lawyer)’s book, Introduction to the Study of the Law of the Constitution (1885, 198-199). Dicey’s interpretation stresses ‘…the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power…’, ‘…equality before the law…’ and ‘… the ordinary law of the land…’ He tracks further its historical growth in its gradual extension after World War II to include basic civil and political (the ‘first generation’ or ‘blue’) rights, and the socio-economic (or ‘second generation’ or ‘red’) rights. The paradigm rose to the level of the endorsement of the most basic level of meaning of the rule of law (that government rules by law, and not by arbitrary abuse of power as a ‘human achievement of universal significance’ (E P Thompson, Whigs and Hunters (1975)). Professor Hugh argues that by the late 1980’s, a South African scholar Tony Mathews, reformulated Dicey’s definition in three propositions below:
First proposition Government according to the rule of law means that with a view to the preservation of the basic rights enumerated in the second proposition below, the relevant laws shall take the form of pre-announced, general, durable and reasonably precise rules administered by regular courts or similar independent tribunals according to fair procedures;
Second Proposition The basic freedoms of person, conscience, speech, information, movement, meeting and association shall be equally guaranteed by the law to all citizens of the society;
Third Proposition Any limitation on the civil rights or freedoms enumerated in the second proposition shall be in the 12 | The Ju di ci ar y
form of rules conforming to the requirements of legality expressed in the first proposition. Furthermore, restrictions on the basic freedoms shall be limited in scope and, except in times of genuine crisis or emergency, shall not encroach upon the essential content of such freedoms. Tony Mathews, Freedom, State Security and the Rule of Law (1986), at 20): He further states that by 2010, to the former Lord Chief Justice of England and Wales, Tom Bingham, the rule of law was (Tom Bingham, The Rule of Law, at 8): The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts. This statement is not comprehensive…, and even the most ardent constitutionalist would not suggest that it could be universally applied without exception or qualification… But generally speaking any departure from the rule … calls for close consideration and clear justification. Professor Hugh sums that, rule of law comprises a stable ‘law’ as the medium through which public power is exercised, rather than the arbitrary use of power , guarantying the basic rights and freedoms in the legal system.
ii. Historical Significance of the Rule of Law Professor Hugh argues that the greatest extent of the evolvement of the ROL was in the mid-twentieth century, in four ways. Firstly, through the PUBLIC international customary law regime on the UN formation and the adoption of the Universal Declaration of Human Rights in 1948, the role of public international law in all its guises was stimulated. Secondly, on decolonization of the African and Asian empires to create independent states with emphasis on democrat-
Session Chair: Hon. Steven S.B. Kavuma, Deputy Chief Justice
ic governance. Thirdly, on the paradigm of constitutionalism after the fall of the Berlin Wall in November 1989. Fourthly, in Africa, on the continual independence of the African states, such as Namibia, South Africa, Malawi, Uganda. Zimbabwe, and Kenya. Hugh contends that a clear indication of the ROL growth is also illustrated by 2011 in the initiative of the American Bar Association project, the Rule of Law Index. The index defines ROL through four ‘universal principles’, compliance with which is measured across 102 countries, by consulting 2500 experts and polling about 100 000 members of the public about their perceptions of compliance by their governments. This information is then arranged under nine factors, such as restraints on government powers, corruption, access to justice, openness of government, civil and criminal justice, and so on. As well as by geographical region and relative national wealth, to create rank-orders among the nations surveyed.
a reality that is respected by all the branches of government (including courts) who wield public power.
iv. Enforcement of the Rule of Law: Fidelity to Law by all Government branches Professor Hugh argues that a primary precondition for the establishment and survival of the ROL must be what is commonly known as fidelity/belief in/ faithfulness to the concept by all branches of government, as well as the citizenry as a whole. He therefore underlines the necessity for widespread public education of the benefits of the ROL, for everyone in the state concerned including the rulers and their subjects, the powerful and those with little power.
Professor Hugh concludes that globally there have been paradigm shifts from an extraordinary period of democratic ‘constitutionalism’, over the past 70 years despite sporadic disturbing trends of non-democratic governance in 2016.
While Hugh also observes that the law has its limits and deficiencies, sometimes depicted in the Acts of Parliament and subordinate legislation, like it was the case during the South Africa Apartheid regime; he however believes strongly that the benefits of the rule of law far outweigh any deficiencies. He emphasises that courts therefore stand centrally and are key in ensuring compliance of the law.
iii. The Rule of Law as a Constitutional value
v. Doctrine of the Separation of Powers
Professor Hugh illustrates that most written constitutions enshrine clearly the direct application of the ROL. Such states that directly enshrine ROL in their constitutions include: Namibia’s 1990 Constitution, Article 1 (1); and South Africa’s 1996 Constitution, Section 1 (c). The remaining states indirectly enshrining the supremacy of the Constitution as the basis for governance, such as Nigeria’s 1999 Constitution, section 1, Kenya’s 2010 Constitution, section 2; and Uganda’s 1995 Constitution Article (2). The cut offline is that globally it is an established practice that the ROL is a constitutional obligation. Nevertheless, Hugh questions the extent to which ROL is
Hugh argues that while the doctrine of separation of power is as old as at least 250 years, it varies in its form and context from system to system. To Hugh, the doctrine in its simplest form, means that the legislature, the executive and the judiciary, as the three branches of government, are separate in the persons who serve in them and their respective functions, but with appropriate mechanisms for mutual checks and balances amongst them. Hugh adds that in the contemporary democratic constitutional systems there is a shift to establish a fourth branch of government under the doctrine, w w w .j ud i c i a r y .g o .u g | 13
the integrity branch. The integrity branch encompasses institutional bodies such as the Auditor General, the Ombudsman/ Public Protector, Human Rights Commission, Commission for Gender Equality, Electoral Commission, and Media Commission. Basically, this branch is a monitoring and regulatory branch, overseeing the other three, in the public interest. Hugh concludes that in whatever the case, it is absolutely necessary that there be mutual equal respect between the branches of government. He illustrates this point with two South African Constitutional Court decisions as below: The ‘OUTA’ case. This case concerned the constitutional validity of levying a toll on the users of highways in the Gauteng province. In dismissing the attempt to stop government plans, Moseneke DCJ, on behalf of the Court, found that: an organ of State is not immune from judicial review on account of separation of powers. (…)The exercise of all public powers is subject to constitutional control … When it evaluates where the balance of convenience rests, the court must recognise that it is invited to restrain the exercise of statutory power within the exclusive terrain of the executive or legislative branch of the government … the collection and ordering of public resources inevitably calls for policy - laden and polycentric decision - making. Courts are not always well suited to make decisions of that order.1 Hugh argues that from the above dictum judges are most times ill-equipped to enter the field of policy determination, by virtue of their training and experience and the lack of the evidential basis to allow a sensible determination of such policy. The Helen Suzman Case. This case dealt with the validity of legislation regulating the establishment of an anti-corruption unit. The majority judgment articulated by Mogoeng CJ that: Separation of powers requires that the judiciary refrain from being unnecessarily prescriptive to both the Executive and Parliament on the kind of institutionally independent body which is required to stem the tide of corruption in this country. The constitutionally compliant policy choices that they make must be respected even if there are, in the opinion of the judiciary, better options available. Ours is to ensure that the constitutional requirements for a functional and efficient corruption busting unit have been met and nothing more or less.2 1 National Treasury and others v Opposition to Urban Tolling Alliance and others [2012] ZACC 18, 2012 (6) SA 2 See Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others [2014] ZACC 32, 2015 (2) SA 1 (CC) at para 75. 14 | The Ju di ci ar y
Hugh argues that above highlighted two extracts show that the South African Constitutional Court, although it has the well-founded and reputation for being willing to intervene with legislative and executive action which contravenes constitutional bounds, is nevertheless acutely aware of the limits of that authority to intervene. Its jurisprudence thus generally displays a good sense of the balance which needs to be struck so as to remain within the bounds of the doctrine of the separation of powers. Hugh concludes from the above that the doctrine requires and depends on the courts deference with respect, rather than the much-maligned deference as submission. This in essence is that the courts should hold the line and ensure strict compliance with constitutional arrangements, but refrain from imposing its own view as to the policy choices made by the executive or legislature. He notes that it is a difficult judicial task, to maintain this sensitive balance. Most reasons being the obstacles that are enhanced by an acute awareness of political forces often at play for broad in public sentiments. However he cautions that judges should not shy away from such questions: for justice is not a “cloistered virtue”. Hugh gives the court best practices on how to balance an executive/legislature issue legitimately but with authority as below: Judges must: a. Maintain a resolute adherence to the formal independence and impartiality of their office, not descending into the arena. b. Adhere at all times to the expressed or implied value system which underlies the Constitution. c. Develop an appropriate and relevant theory of interpretation of the legislation which comes before them, suitable both to the objectives of the Constitution but also to the proper demands of social justice. d. As far as is within their power, ensure a well-functioning judicial appointments system (usually through a Judicial Service or Appointments Commission) which results in sufficient quality, diversity (both demographic and in terms of skills and knowledge), integrity and incorruptibility across the judiciary as a whole. e. Be accountable. While this must be balanced with independence, it must be recognised that judges also exercise inherent public power, which is different from the legislative and executive powers. So the courts must account for their functions by sitting in open court, giving reasoned decisions, deciding matters expeditiously and efficiently,
acting with civility and fairness, working hard, functioning collegially, and leading exemplary public and private lives. It’s tough being a judge!, and, f. Must show courage to go against the flow, when the constitution or the law demand it. g. Hugh concludes that the leadership of the judiciary plays a critical role in ensuring adherence to this framework, both within the judiciary, but also in speaking up for the courts when others attack them, despite threats that still avail for the ROL.
vi. Threats to the Rule of Law Hugh contends that the sources of these threats are common across legal systems, and include populism, corruption, rank prejudice, and the notion of self-help. The impact of all such trends across the political spectrum is that the temptation to intervene may even arise within the Courts themselves. He cites a South African Constitutional Court to illustrate this point, below. In Kirland, the respondent (Kirland) had applied for permission to erect a private hospital in Port Elizabeth, which had been granted under suspicious circumstances which clearly indicated at least a degree of unwarranted political interference and corruption. The permission was subsequently apparently withdrawn by the provincial administration.3 Kirland applied to the High Court insisting on the validity of the initial grant of its application but the court set aside the purported approval, as well as its apparent withdrawal by the MEC.4 On appeal to the SCA, the provincial government sought an order declaring the refusal of the application valid, while Kirland cross-appealed against the order that the initial grant had been invalid. The SCA dismissed the appeal, but upheld the cross-appeal, effectively leaving the initial grant of the application, tainted as it was by manifest corruption, intact, on the basis that the validity of that initial approval had never been placed in issue before the High Court.5
disgraceful’ by Justice Jafta6, where the State had failed to apply for the setting aside of such administrative conduct? Was it to require the State to apply expressly like any other party for an order setting aside its own action, or could the court step in to invalidate such conduct without such procedural compliance, in pursuit of the Court’s clear obligation to uphold constitutional values? The majority decided that the State was so required to act; while the minority said State did not. Hugh in analysis of the decision contends that while the decision invoke in clarion terms the responsibility of the courts to uphold, indeed to promote, the foundational values of the Constitution, the dissenting judges appear to claim the jurisdiction to carve a clear path through the procedural thickets of the law in order to root out the abundantly unlawful exercise of public power. For the majority, on the other hand, the formal safeguards of the law and an insistence on the principle of equality before the law take precedence over the judicial zeal to see ‘justice’ done. In that, the majority sets greater store by the ROL as a condition precedent of the ROL. Hugh quotes in extension from A Man for All Seasons, by Robert Bolt (1960).The play depicts the epic battle between the autocratic monarch, Henry VIII, and his Lord Chancellor, Sir Thomas More. The king craved More’s approval for his scheme to divorce his first wife, Katharine of Aragon; More went along as far as he could, ultimately resigning rather than deny his conscience. He recalls the scene that illustrates a graphic depiction of the fate of a society without the law. Confronted by his hot-headed son-in-law, Will Roper, who would, ‘…cut down every law in England to [get after the Devil]’? More responds thus: Oh? And when the last law was down, and the Devil turned around on you--- where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast--- Man’s laws, not God’s--- and if you cut them down… d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.7
The SCA wondered, what was a court to do in the face of clear corruption and abuse of power, described as ‘unacceptable and
Hugh picks from the above a lesson to the Government that under law, the ROL is everyone’s safeguard. It provides procedurally fair limits to the exercise of all public power. Even autocrats can lose power, in which case they will need the procedural benefits afforded by the rule of law.
3 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd [2014] ZACC 6, 2014 (3) SA 481 (CC) (Kirland), para 6-16. 4 ibid at para 24. 5 ibid at para 25-26
6 ibid at para 41 7 A Man for All Seasons at 39. w w w .j ud i c i a r y .g o .ug | 15
Plenary (Question and Answers) Is there a rule of legitimacy as against the rule of the law? Is legitimacy the spirit of the law, while rule of law is the letter of the law? Legality is never subordinated by legitimacy. The ideal is to have the form of the law respected and the law to move towards the expectations of society How does poverty and development relate with the rule of law? The underlining factor is access to Justice for all. Is Separation of Powers alien in South African jurisprudence? There is need for free access to the law. For example, through SAFLII.
4.0 The Judiciary Show Case Skit A show case video was played as an interlude.
4.1 The Highlights of the Skit
a. The Constitution and the Courts’ interpretation of the rule of law using a pro-people approach, through pre-people initiatives such as: role playing of a court by schools, justice centers, and inspections. b. Demystifying processes. The application of the judiciary’s new reforms to demystify access to justice in reality cases was telecasted. These reforms include: Sentence guidelines, Small Claims Courts and its benefits to users such as KACITA; and Plea bargaining countrywide programmes. The skit brought out well the processes’ Challenges that are amass. These include: Case-backlog, and understaffing.
4.2 Way Forward
To increase equal access to Justice, demystify processes, subsidize or reduce court fees making justice accessible, improved laws. At the end of the day the chief justice echoed in the skit that the Judiciary should be the Judiciary that the Judiciary wants.
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Session Chair: Justice Stella Arach Amoko
SESSION TWO Panel Presentation on the Performance of the High Court 5.0 Performance of the High Court
The overview of the High Court Operations was presented by the Honorable the Principal Judge, Justice Yorokamu Bamwine. The Principal Judged presented the performance for the 8 High Court Divisions and 14 High Court Circuits. The Divisions as: the Anti-Corruption Division, Civil Division, Commercial Division, Criminal Division, Execution and Bailiffs Division, Family Division, International Crimes Division and Land Division. The 14 circuits included: the circuits of Arua, Fort Portal, Gulu, Jinja, Kabale, Lira, Masaka, Masindi, Mbale, Mbarara, Mpigi, Mubende, Mukono and Soroti.
Hon. Dr. Yorokamu Bamwine, Principal Judge
5.1 Performance of the High Court as by December 2016 On the whole, the High Court (Divisions and Circuits all inclusive) presented 46731 cases as brought forward to 2017, 31584 cases as registered in 2016, 19567 as completed cases in 2016, while 58755 cases were pending before the High Court by the end of December 2016. Figure 1 below shows the graphical performance of the High Court.
Figure 1: Performance of the High Court Divisions and Circuits for Year 2016 70,000
Number of Cases
60,000 50,000
58,755 46,731
40,000
31,584
30,000
19,567
20,000 10,000 0
Brought forward
Registered
Completed
Pending
Source: Presentation by the Hon. The Principal Judge, Hon. Dr. Justice Yorokamu Bamwine.
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The High Court Case registration shot up in 2016 from that of 2015, and had similarly inherited by way of brought forward from the previous year(2015) more cases than it had in 2015 from 2014. Hence while it almost completed around the same number of cases, many more remained pending as Figure 2 illustrates below.
Figure 2: Comparison between the Performance of the High Court Divisions and Circuits for the Year 2015 and the Year 2016.
Pending
44,070
Completed
19,567 19,619
Registered
20,072
58,755
31,587
2016 2015
46,731 43,616
Brought forward
0
10,000
20,000
30,000
40,000
50,000
60,000
70,000
Number of Cases Source: Presentation of the High Court Performance by the Hon. The Principal Judge, Hon. Dr. Justice Yorokamu Bamwine at the 19th Annual Judges Conference, January 2017, Speke Resort Hotel Munyonyo.
5.2 Performance of the High Court Divisions as by December 2016 The Divisions performed better on clearance than disposal of cases, with an average of 56.7% clearance rate compared to 27% disposal rate. Tables 1 and 4 illustrate.
Table 1: Performance per High Court Division 2016 HIGH COURT DIVISIONS
BF
Regd
Compltd
Pending
Clearance Rate (%)
Disposal Rate (%)
ANTI-CORRUPTION COURT
268
244
233
279
95 %
46 %
CIVIL DIVISION
2,207
2,057
875
3,389
43 %
21 %
COMMERCIAL COURT
3,726
3,090
2,141
4,675
69 %
31 %
CRIMINAL DIVISION
2,096
2,252
672
3,676
30 %
15 %
EXECUTIONS AND BAILIFFS DIVISION
5,286
2,922
1,347
6,861
46 %
16 %
FAMILY DIVISION
2,118
4,120
1,968
4,270
48 %
32 %
INTERNATIONAL CRIMES DIVISION
19
17
13
23
76 %
36 %
LAND DIVISION
5,267
5,525
2,565
8,227
46 %
24 %
Source: Presentation of the High Court Performance by the Hon. The Principal Judge, Hon. Dr. Justice Yorokamu Bamwine at the 19th Annual Judges Conference, January 2017, Speke Resort Hotel Munyonyo.
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Figure 3: Graphical representation of the summary of performance of High Court Divisions 2016
35,000
31,400
Number of Cases
30,000 25,000
20,987
20,227
20,000 15,000
9,814
10,000 5,000 0
Registered
Brought forward
Completed
Pending
Source: Presentation of the High Court Performance by the Hon. The Principal Judge, Hon. Dr. Justice Yorokamu Bamwine at the 19th Annual Judges Conference, January 2017, Speke Resort Hotel Munyonyo.
There was a decline in the number of cases completed by the divisions in 2016 compared to those earlier completed 2015 possibly because more cases were registered in 2016. Figure 5 illustrates below.
Figure 4: Comparison between the performance of High Court Divisions for the year 2015 and 2016
Pending
21,556
31,400
9,817 10,942
Completed
Registered
12,102
20,227
2016 2015
20,987 20,395
Brought forward
0
5,000
10,000
15,000
20,000
25,000
30,000
35,000
Number of Cases Source: Presentation of the High Court Performance by the Hon. The Principal Judge, Hon. Dr. Justice Yorokamu Bamwine at the 19th Annual Judges Conference, January 2017, Speke Resort Hotel Munyonyo.
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5.3 Achievements and Limitations of High Court Divisions for the year 2016 5.3.1 Anti-Corruption Division Achievements a. Successful Court open days held b. High profile cases were disposed
Limitations a. The division canvassed complex and sophisticated nature of economic crimes, with voluminous documentary evidence, multiplicity of counts and accused persons due to syndicated nature of corruption. Some cases attract multiplicity of advocates resulting in difficulty in fixing hearing dates.
5.3.2 Commercial Division Achievement a. The court has the best average time line for case disposal
Limitations a. Limited funding for sessions that affected their efforts to clear case backlog; b. The closure of the Austrian Development Cooperation Grant towards mediation c. Poor submission of returns on ADR by the various Divisions and Circuits.
5.3.3 Civil Division Achievements a. Timely and expeditious disposal of election petitions by 154 petitions completed within the time frame provided for in the Law, leaving only 4 petitions pending as at the Report time.
 5.3.4 Criminal Division Achievements a. Regular in house sessions b. Several plea bargain sessions c. Session case timeline for disposal of cases reduced from about 4 months to less than one month.
5.3.5 Execution and Bailiffs Division a. Common standards in execution were adopted b. Complaints reduced
Limitations a. b. c. d.
High backlog due to lack of timeline for return of warrants Few Registrars Non-return of warrants Temptation of taking evidence in execution cases.
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5.3.6 Family Division Achievements a. Installation of Court room technology, although unfortunately this has now been lost due to change of premises.
Limitations a. b. c. d.
Inadequate manpower-only one judge is available full time because the rest are working in other Divisions; Poor disposal of applications; a lot of fraud; bad state of archives resulting in difficulty in retrieving information
5.3.7 International Crimes DivisionÂ
Achievements a. The Division disposed of one of the difficult trial of the terrorism case HCT-00-ICD- SC-001-2010 Uganda v Hussein Hassan Agad & others.
Limitations a. complex and very long trials, b. numerous objections by defence lawyers especially in the case of Kwoyelo
5.3.8 Land Division
a. Case disposal improved b. Re-organization of the Land Registry that resulted in innovations vide Circular by the Head of Division dated 10th January 2017 that provides measures to deal with applications.
Limitation a. The influx of many cases into the Division following the closure of Nakawa High Court Circuit
5.4 Ongoing Best Practices (Innovations) by the High Court to Improve Performance The Hon. the Principal Judge highlighted some of the best practices as below.
5.4.1 Plea bargaining:
Case backlog reduced with a total number of 2614 concluded through plea bargaining as at the end of 31st December. Further, the Judicature (Plea Bargain) Rules, 2016 have been passed.
5.4.2 Court Room Technology
The Judiciary has implemented ICT initiatives aimed at reducing delay and backlog; and improving communication between courts, litigants and the general public. These initiatives include:-
a) Taking Evidence by Audio-Visual Systems: The Judiciary with support from UNICEF launched the Audio-Visual System in 2016, currently installed in five High Court Stations of Kampala, Mbale, Fort Portal, Gulu and sets are planned for Mbarara. By 2017, the Judiciary is planning to install the same in the three High Courts of Arua and Masindi and Makindye Family and Children’s Court. The Audio-Visual System enables courts to take evidence by an audio-visual link. These Systems are utilized as Child Witness Protection Systems to get evidence from Child witnesses at a location away from the Court Room.
b) Court Recording and Transcription Systems: In an effort to minimize manual recording of evidence by Judges, Court Recording and Transcription Systems have been installed in all the Circuits and the trial High Court Divisions. A transcript of the Court Proceedings is available within 48 hours to enable the Judicial Officers take decision on the course of the case. During Appeals, the records both Audio and hardcopy transcripts are available for Court of Appeal purposes. w w w .j ud i c i a r y .g o .ug | 2 1
The Hon the Principal Judge promised that Plans are underway to install these systems in the newly operationalized High Court Circuits.
c) Video Conferencing Systems: The Hon the Principal Judge reported too that the Judiciary has secured a Video Conferencing Facility that enables evidence to be given by parties from remote sites and outside Uganda. The Family Division video conferenced some of its cases.
d) Screened Court Room Proceedings: The Hon the Principal Judge further reported that Court Sessions have been screened in other Court Rooms away from the Live Court Room. He gave an example of the HCT-00-ICD-SC-0004/2015 Uganda v Sheik Siraje Kawooya Kamoga & others. In this case, court proceedings are relayed from Court Room number 1 using giant screens to court room number 3 where the other court users sit to follow the court proceedings. This has reduced on the distractions in the main court room such as: the users’ freedom of movement in and out to attend to calls, and verbal comments on the party’s submission, which would have ordinarily resulted into contempt of the trial Court.
e) Installation of CCTV as a supervisory tool for Registrars: CCTV cameras were installed in the Registries of all Divisions. As a result, the Hon the Principal Judge reported that some Registrars have reported to him that the CCTV enables them to effectively supervise their staff, improve service delivery in their registries as they monitor the time it takes for court users to receive a service and reduced on the number of ‘bush’ lawyers who enjoy loitering around the courts looking for whom to devour.
5.4.3. Sentencing Guidelines
The Hon the Principal Judge reported that in 2013, the Judiciary Sentencing Guidelines Legal Notice 8/2013 were issued particularly for promoting uniformity, consistency and transparency in sentencing. Through these guidelines the disparity of sentences has declined. The Sentencing Guidelines committee is mandated to study Legal Notice No.8 and summit a draft before the Rules Committee before by March 2017.
5.4.4. Alternative Dispute Resolution 5.4.5. Court User Committees The Hon the Principal Judge reported that regular stakeholder engagements through User Committees have been one of the best practices for improving the performance of the High Court. During such meetings, he argues, many issues that are pertinent in the administration of justice are discussed. He cited some of the Divisions with functional and vibrant User Committees that include: the Anti-Corruption Division where the launch of plea bargain in May 2016 was a recommendation by members of the Court User Committee as the best strategy for asset recovery. Other Divisions include Land Division and the Commercial Division.
5.4.6.Other High Court Performance initiatives
The Hon the Principal Judge reported the establishment of a performance board in the office of the Principal Judge. This Board follows up on pending judgments by with an aim to reduce them. He also cited the establishment of an Advisory Board.
5.5.General Challenges Faced by the High Court The Hon the Principal Judge reported several High Court Challenges below:
5.5.1. Shortage of Judges
While the ideally each Circuit should have two judges and each Division 5 judges, currently there are only 49 Judges below the required 82. The circuits with two judges such as Masaka High Court Circuit has registered best performance because of adequate manpower against workload.
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5.5.2. Inadequate funds The High Court needs more session funds, and only 38 sessions have been conducted out of the 73 sessions planned to be concluded by June 2017.
5.5.3. Case backlog
The High Court Divisions and Circuits estimated case backlog was 24,065 cases, a 41% of the pending cases (case load) as at 31st December 2016.
5.5.4. Abuse of Court process
Some parties abuse court process through multiple applications and ‘forum’ shopping from one Division. There lacks an internal mechanism of dealing with this challenge.
5.5.5. Interim orders
Part of the backlog at some Divisions of the High Court result from exparte interim orders issued by superior courts and other Division staying lower court proceedings. The Anti-Corruption Division suffered most in this area with varied orders from the Constitutional Court, Civil Division and Jinja High Court Circuit. Example these stayed cases by the Constitutional Court over the past 4 years ago are: HCT-00-AC-SC-0141-2012 Uganda v John Paul Basabose & Another, HCT-00-AC-SC-0147-2012 Uganda v John Paul Basabose & Another, HCT-00-AC-SC-0147-2012 Uganda v Prof John Okedi & 7 others and HCT-00-AC-SC-0147-2012 Uganda v Hassan Basajjabalaba & Another.
5.5.6. Inefficient High Court’s Registry Management
5.6 Way Forward The Hon the Principal Judge made the following recommendations for the High Court 1. Ring fence session funds 2. Embrace innovations 3. In addition to the already existing initiatives, there should be a standby Judge and Registrar in the Divisions to deal with applications instantly to deal with their backlog that constitute 60% of the High Court backlog. 4. Institutionalize plea bargaining 5. Monitoring and evaluation mechanism for the session system 6. Improved case management 7. Performance meetings
5.7 Conclusion The Hon the Principal Judge thanked the Judges, the Judiciary Administration and support staff for the work done despite the challenges. He summed that the courts as the custodians of the justice system, in accountability to the community, courts owe the public a duty to ensure the timely disposal of cases within the financial and manpower resources allotted to them by the state. He underlined that reducing backlogs is a necessary means by which the courts can live up to King John’s promise: “to no one will we refuse or delay right or justice.”
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6.0 The Court of Appeal/ Constitutional Court’s Performance The Court of Appeal/ Constitutional court’s performance was presented by his lordship Hon. Justice Richard Buteera .
6.1.The Court Performance Hon Justice Richard Buteera , Court of Appeal/ Constitutional court
Justice Buteera informed the conference that by 2016, the court of appeal had a target of 600 cases, of which 200 were civil and 400 criminal, while the constitutional court had a target of 20 matters. It was reported that the court achieved its targets as Figures 6 and 7 below reflects.
Table 2. Registered and Completed Appeal Cases- 2016 CASE TYPE
B/FOWARD
REGISTERED
COMPLETED
PENDING
Criminal Appeals
2,444
553
279
2,718
Criminal Applications
128
115
172
71
Civil Appeals
1,148
292
80
1,360
Civil Applications
1,428
355
209
1,574
Election Petition Appeals
6
110
4
112
Election Petition Applications
20
89
32
77
TOTAL
5,174
1,514
776
5,912
Source: The Court of Appeal and Constitutional Court Report 2016 at the Annual Judges Conference 2017 Justice Buteera reported that 2,311 criminal case files were non-starters, in that they had filed Notices of Appeal but lacked memoranda of appeal and the lower court records. The Registrar reports that progressively 1000 of the 2,311 criminal case files have been traced at the High court, and 181 of these files were remitted to the Court of Appeal.
Table 3. Registered and Completed Constitutional Cases- 2016 CASE TYPE
B/FOWARD
REGISTERED
COMPLETED
PENDING
Constitutional Petitions
275
46
12
309
Constitutional Applications
207
48
14
241
TOTAL
482
94
26
550
Source: The Court of Appeal and Constitutional Court Report 2016 at the Annual Judges Conference 2017 The performance of the courts was explained that the two Courts surpassed the set targets by 165 and 6 cases respectively. The courts registered achievements and were beset by challenges.
6.2The Court of Appeal and Constitutional Court’s Achievements in 2016 a. The number of Justices and some of the Court staff increased. b. The Justices and staff of the courts received some training in Appellate Mediation. c. The Court established several functional committees that include: Finance and Welfare, Information Technology, Rules, Peer, Court Users, and Library and Training committees. 24 | The Ju di ci ar y
6.3 The Court of Appeal and Constitutional Court’s Challenges in 2016 a. Two of their Lordships did not have chambers up to December 2016. b. No induction course has been arranged for the promoted Justices. c. Some Justices serve in other Regional Courts, while others were required to undertake other assignments outside their judicial duties at the Courts. d. Inadequate funding of the Courts coupled with delayed release of funds to them have negatively impacted on their performance. The court of appeal is allocated only 20 million shillings per session compared to the 30 million shillings allocated for a High Court session. e. Between September and November 2016, the Court of Appeal could not handle Election Petition Appeals for there were no funds for the Court work which was scheduled to start in September 2016. f. In November 2016, the Court had to utilize the upcountry sessions’ funds to start handling Election Petition Appeals. By December 2016, the borrowed funds have not yet been refunded with the result that the originally planned upcountry sessions have not been held. g. Many of the Justices lacked the necessary tools to do their work. h. There is increased volume of work reflected in the number of the new cases filed in both Courts. i. There is delayed transmission of records by the lower courts to the Court of Appeal. j. Inadequate remuneration demotivate the judicial officers and support staff thereby negatively affecting their performance. k. The limited number of trained Research Assistants, Court transcribers and Secretaries pose a serious challenge to the effectiveness of the Courts.
6.4 The Court of Appeal and Constitutional Court’s Proposals for Reform a. The number of Justices be raised to at least 21 Justices. b. The Court to hold more up-country sessions, at least two in every one of its four circuits in 2017 for both Civil and Criminal cases subject to funding. c. The Court to use more appellate mediation beyond the registered success of its mediation pilot. d. The Court to continue holding in house sessions e. The Court to eradicate case backlog subject to availability of adequate funding. f. Despite the challenges the court beset, and in due regard of the registered achievements, the presenter appreciated the Justices of the two Courts, Senior management, the members of the Bar, the Director of Public Prosecutions, the Inspector General of Government, the Attorney General, all the other members of the JLOS family, and the staff of the courts at all levels
6.5 Conclusion In sum, it is imperative that the two courts are given adequate funds and facilities in a timely manner to enable them to fulfill their Constitutional mandates.
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7.0 The Supreme Court Performance 2016 The Supreme Court Performance report was made by Hon. Justice Jotham Tumwesigye. He noted that while the Supreme Court operates on the basis of a Yearly Calendar of Activities that stretches from January to December of the particular year, its 2016 calendar was affected by the Presidential Election Petition No.1 of 2016, in March that required concerted effort and long hours of work in order for the Court to meet the time-lines set out for its disposal.
Hon. Justice Jotham Tumwesigye, JSC
This had a heavy toll on the Justices and therefore affected the disposal of other matters of the court’s Calendar. At the time of the report, the court had no backlog. Figure 8 below depicts the court’s graphical performance illustration.
Table 4. The Supreme Court’s Session’s Performance of 2016 Session
Dates Held
No. Of Cases Heard
Constitutional Appeals/Applications
22nd February - 3rd March, 2016
10
Presidential Election Petition
7th - 31st March, 2016
1
Criminal Appeals
9th - 19th May, 2016
18
Civil Appeals/Applications
19th - 29th July, 2016
27
Constitutional Appeals/ Applications
12th - 13th October, 2016
2
Constitutional/Civil Appeals & Applications
22nd November - 9th December, 2016
25
TOTAL
83
Source: The Supreme Court Report 2016 at the Annual Judges Conference 2017
Justice Tumwesigye reported that 40 judgments have been delivered of the completed 83 matters, while Judgment writing is still progressing in others. The court has 76 pending matters in all case categories as indicated in Table 5 below.
Table 5. The Supreme Court’s Pending Workload as at December 2016 Constitutional Appeals
4
Constitutional Applications
2
Civil Appeals
23
Civil Applications
11
Criminal Appeals
32
Criminal Applications
4
TOTAL
76
Source: The Supreme Court Report 2016 at the Annual Judges Conference 2017
Justice Tumwesigye reported that the Court has designated a specific ICT officer to publish on-line its judgments and rulings. The Supreme Court conducts an online dispatch of its Judgments and Rulings to all the recipients registered under the following E-mail address - judgments@judicature.go.ug. The recipients there under include all the Justices, Judges and other Judicial Officers. Also captured are other interested stakeholders such as the Office of the DPP. The Law Reporting Officer is on the list of Recipients. The 26 | The Ju di ci ar y
role of the Law Reporting Officer is among others, to upload the decisions of the Supreme Court to the website www.ulii.go.ug and to feed the Law Reporting Committee with the information on Judgments delivered at the Supreme Court. This website is freely available.
7.1. The Supreme Court’s Challenges in 2016 7.1.1 Absence of Holding Cell for Prisoners at the Court The Court has no holding cells for prisoners during Court Sessions. This presents a serious security threat at the premises.
7.1.2 One Court Entrance and Exit
All the court users, staff and the Justices use one entrance and exit at the premises. This further compounds the issue of security.
7.1.3 One Court Hall
The Court has one Court Hall and this limits the number of Sessions which can be held concurrently.
7.1.4 The unfriendly structure
The Court has neither elevators for persons who may not be able to climb the stairs, nor special provision for persons with physical movement disabilities.
7.1.5 Limited Space in the Registry
The Court’s registry is severely limited in space and this makes storage and retrieval of files a problem.
7.1.6 No Archive
The Court lacks an archive for storage of completed and/or old files. Yet, an archive is of utmost importance as, by the nature of the court’s work to allow reference to past decisions.
7.1.7 Costly to access for Support Staff
The Court’s location at Kololo makes it hard for the support staff to access using the usual modes of transport. There are neither taxi nor “boda boda” means of transport near the Court. The implication of this is that the staff have to spend a good portion of their income on transport costs. Justice Tumwesigye hoped that the Judiciary administration addresses this problem in this year, 2017.
7.1.8 Court housed in rented Premises
The Court is housed in rented premises whose facilities constantly breakdown calling for continuous repairs that disrupt the Court programs. The Court looks forward for the Supreme Court to have its own court house.
7.2 The Supreme Court’s Proposed Way Forward It is proposed that the Supreme Court registers 100% success in hearing all matters currently registered as at December 2016.
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10.3 Plenary (Question and Answers) Why the Persistent Pending High Court records for the Court of Appeal? Basically its cause is historical since appeals lie when notices of appeal are filed. There is therefore: »» Need to verify the actual missing lower court records for the High Court to Court of Appeal, since the information is wanting given the false notices. »» Need to establish a qualified records officer in charge proper archiving system in courts for all completed files. »» Further, Registrars at all court levels should take charge of the registry affairs including archives and file tracking using inter registry file movement books, and session reports with actual files’ return. »» Judges who carried files with them should return them to the registries for accountabilities. Judges to expeditiously complete the cases in the system to address case backlog. Masaka High court was commended for having no backlog. »» Judiciary should improve on its monitoring and evaluation system of the records and archives systems.
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Presenter: Justice Carl Singh, Chancellor of the Judiciary - Guyana
DAY 3: SATURDAY 28TH JANUARY 2017 8.0 Prayer The day’s prayers were led by Pastor Mugere of the Seventh Day Adventist Church.
SESSION THREE 9.0The Role of an Independent Judiciary in Emerging Democracies Presenter: Justice Carl Singh, Chancellor of the Judiciary - Guyana
Greeted all the invited Guests. He referred to the Montesquieu theory of the separation of powers. He argued that this theory’s advocacy still prevails.
9.1 Plenary (Question and Answers) Would the Judge grant bail in the matters that the Executive deems sensitive in the eyes of the public, and should the judge be called to account? Judges should not explain their decisions that they have made under their legitimate judicial function. Are the juridical officers or the judiciary as a whole accountable to the public in their decisions In order to account to the public the judges should give reasons for their decisions. What strategies should the Judiciary adopt as a third arm of government to have equal say in governance? Q.8. How different is the Chancellor from the Chief Justice in the Guyana Justice Administration System? The Guyana High Court is presided over by the Chief Justice, while the Chancellor is the president of Court of Appeal (which is the highest court of Guyana) and the Chancellor heads the Guyana’s judiciary. Uganda’s Judiciary as the third arm of government is grappling with case backlog so much that this arm is also breaking down. What strategies has the Guyana government come up with to deal with the case backlog problem in Guyana? Under the Guyana Justice System, case backlog is redistributed. For Guyana, Case backlog constitutes the cases that were due for hearing but not heard and are not listed. Is it necessary for the Judiciary to be the third arm government? How can the Judge be independent in his discretion, despite the pretrial public criticism which may not be presented to the court in evidence? Judges in all their decisions must rely on the guiding principles within the law to make their decisions irrespective of public or media criticism. How does the sub judice rule principle affect judicial decisions? The intent of the principle in the jurisprudence is that there should not be a comment that is made to influence the final decision, even if parties have the freedom of expression on the fact of the matter before court. The Hon. the Chief Justice of Uganda presented the Chancellor of Guyana the copy of the Constitution that was embroidered with the Uganda’s backcloth.
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Session Chair: Justice Faith Mwondha
SESSION FOUR 10.0 Enhancing Cooperative Governance among the three Arms of Government to Foster the Rule of Law and National Development Presenters: Dr. Busingye Kabumba, Lecturer in Constitutional Law, School of Law Makerere University Kampala
From the onset, Dr. Kabumba observed that it is unique to apply cooperate terms to the rule of law phenomenon since corporations are premised in business or managerial administration. He explained that administratively corporate governance engineers company processes by balancing these process and their managers’ roles. He traces it in the colonialism British Company a company that was set out to secure colonies.
Dr. Busingye Kabumba, Lecturer in Constitutional Law, School of Law Makerere University Kampala
He therefore stretches this analogy of corporate administration to the constitutionalism’s rule of law, relating to the three arms of the state government with a company’s administration hierarchical structures to wit: the Company’s Annual General Meeting (AGM) as the People/Parliament, the Company’s Board as the Judiciary, and the Company’s Management team as the Executive. Dr Kabumba argues that the Shareholders make governing rules, and the Board acting in their interest( i.e. the shareholders interest) as overseers of the management, keep management in tandem with the company’s charter( i.e the memorandum of Association/ Constitution).
10.1 The Memorandum and Articles of Association vis’ vis’ the Constitution Dr Kabumba relates the company’s charter, which is usually the Company’s Memorandum and Articles of Association with the State’s Constitution; such as the Uganda’s Constitution. In this case, Kabumba argues that the management only exercises delegated power to it to maintain the company’s shareholders’ advancement and interest. So in the context of a state, the management are the servants of the people. Kabumba further critiques that despite the ideal corporate frame, there is a clear disconnect with the ideal. Practically, the state governance defers from that of the corporate. He cites an example where the management can say they are not servants of the shareholders, or give themselves mandates outside the Charter/ Constitution. To augment this illustration he refers to Ondonga’s 1986 argument the Uganda the National Resistance Movement (NRM)’s revolutionary philosophy that entails dismantling the old social order. The elements of the order to be dismantled included the police, the prisons, and the Judiciary. The 1986 struggle for power only set the stage of this dismantling. It is from that background that this corporate governance springs.
10.2 What happens when the Board also runs amok? Dr Kabumba gave an example like if when one of the members sits with management? Or makes single decisions. Whatever the paradigm the organs must find an intricate balance to protect the shareholders interest. However, in the extreme, the company shareholders can lift the cooperate veil, e.g. inviting the sitting president to step aside like in Zambia. The estranged/ oppressed shareholders can petition for winding up or apply for insolvency proceedings. Examples are Venezuela, Ukraine, and Uganda might fall suit where the oppressed feel that they have to break away, that is forced to take radical action.
30 | The Ju di ci ar y
10.3 What the Board Can Do To Dr Kabumba , generally, the Board should remember its shareholders. Ultimately, that the judicial power belongs to the people and must be exercised in the interest of people’s values, norms, and aspiration under Article. 126(1) of the 1995 Uganda Constitution. The question that arises is, that notwithstanding the sub judice principle (irrespective of this being a common law rule), how can the Board know this people’s interests and how can one balance them? Especially when it does not hear what the people are saying? So, Article 126(1) puts the sub judice rule in doubt. The Board should therefore ensure a renewal of the management, by way of renewal of the democratic processes, even if it has the purse. Specifically, the board should consider to: 1. Be more liberal to its people, listening to them, kind to them, read out to them the common law rules including, the subjudice rule. For example. The Ostracco decision where Art 274 of the Constitution was applied. 2. Be inclined to the friends of the court, and also have more friends. Listening to them. 3. Being kind to the friends of the court. It should be done more often for the sake of building the court’s jurisprudence.. 4. Consider a little bit of a more activist position/ approach especially where the memorandum is abused, where the Management gets astray beyond the ordinary terms of the charter. This can include withdraw of services to protect the charter/constitution, especially where the amendment by the board seems to be radical. When we live in moments where the unlikely impossible things can be. For example, should court allow the removal of the age limit especially when the intent is so radical and the executive does it by amending the constitution?
10.2 Plenary (Question and Answers) What could be the solution where the board could not run many meetings as possible for lack of funding by the management? In the context of the court system, when the Executive or Parliament has not facilitated courts enough to handle case disposals by not funding all the necessary court sessions and all their functions in accordance with Article 126? If the board does not offer adequate funding there is real danger of anarchy. In abnormal times as now of transformation, the people must then be trusted and we become part of the people’s struggles, to entrench legality and legitimacy. This is true especially where there is overstayed single management for a very long time. So, it affects the instruments of the board/ Judiciary. The doctrine of necessity must be exercised in the circumstances. So there should be a willingness to exercise radical activism even where the result might not appear achievable. Judiciary must exercise their judicial duties in the interest of the people within the law to be accountable to the people when the people demand what they did when their rights were being abused. So the Board must find its answers or activism within the law. This also answers the second question. Supposing the Management declines that the charter terms are not singularly applicable to them? Say, it retracts the terms of the charter in regard to its obligations. Supposing the management argues in defiance proponing its priorities such as economic stability? How does the shareholder then handle the competition within the market? Does the role of the judiciary get deeper, depending on whether there are powers of an emerging democracy as opposed to something beyond emerging? Can you relate this to the board in our context, as to what our role is as to guarantee effective remedies? Courts have gone deeper descending on the executives’ excesses like in the Barasa case, the Ssemwogerere case where norms such as reading the constitution as a whole are invoked. Supposing management/Parliament runs amok? In regard to constitutionalism and the basic structural doctrine, in case parliament comes up with an unconstitutional law, can you give an example from a nation state case that did it with what consequences entailed, since as judicial officers we are interested in effective remedies? It is possible as in India, UNITAD case in Botswana, when courts come out clearly on constitutional matters when actively reasoning within the law, so that the law makes sense. w w w .j ud i c i a r y .g o .u g | 31
How can judicial activism be restrained or subjected within the rule of the law? Can you give specific examples since we cannot talk of judicial activism without appreciating the doctrine of separation of powers? The legal fraternity, and the academia should be active friends of the court, and courts, most importantly the constitutional court, should be more liberal to accept them, since the issues they raise bear on so many aspects of the country and affect the determination of the constitutional rights of the society. It is proposed that like in the East African Court of Justice there should be a provision of a standing counsel for it is good if concretized for the good of the jurisprudence of the country. How can the Speaker expect harmonious balance when there is no respect for court orders? What is the way forward when there is conflict and anger between the arms of government each stifling the powers of the other? How should court handle the sub judice effect from the perspective that courts should abstain from it since it can lead to anarchy on court decisions? It is the people in whose interest we are exercising justice we should be accountable to. See: Charles Onyango Obbo case where the Judiciary should not be deviated by the public opinion/ speech, but should balance what the people speak out but within the law. Briefly comment on cooperate governance and cooperative governance? Resignation to apathy is a more dangerous strategy. The more people withdraw from the processes e.g., by not turning up to vote, or refraining from the court decisions it’s the beginning of the storm. Hence, there is need therefore for engagement with them through activism. Supposing the shareholders are those only whose interest is to protect the management’s hidden interest? What would happen where the management keeps the interests of the board in abeyance? If, like for Uganda, when the lines between the arms of governance are not as distinct, what is your stake about their power balance/parity? How can it be achieved? Can the Judiciary as is under the euphemism, exercise due activism to remove or announce itself on the exit of the Executive director of the management who determines their pay and terms of office? There is limited activism. For example, Article 33 has been articulated by courts. What is ideal is that the court/board explains with reasons why it has decided the way it has in the way that the people can understand it; especially where the law is not legitimate. It is the people (the minority fence guards) who are important and can help the board resolve in their interest legitimately, especially when the decision is made to their understanding. What are your views where in emerging democracies’ performance in regard to the Rule of Law, corruption and fighting corruption is the norm? From the academic point of view, what then is the problem that causes the disruption? In Uganda, there is a failed transition in those concepts because of militarism. Dealing with problems the way the executive wants them to be dealt with. The Board/ Judiciary should refrain from acting like state of affairs is normal whereas not. Where the threshold of the people who have nothing to lose really express out that what the board has done is infeasible, then the Board (Judiciary) must exercise its duty to relive the Executive of its detrimental powers, when this threshold announces that they are tired of what the Executive is doing and say no especially in those extreme cases. Using the analogy the board is elected by different members with different interests. Assuming the decision of the majority of the board members always overrides the minority decisions? How do you help or assist the minority interests to be achieved? The decision must be legitimate. Hence that is why there is need for a defence side during adjudication, so that people can speak on what the management cannot speak. Is cooperate governance a myth or reality in the Uganda’s three arms of government, since for it to happen there ought to be a dismantling of the instruments of power or complete revolution? To an extent, one cannot speak of cooperate governance where the management/executive can do what it wants or decide the tenure of the board. 32 | The Ju di ci ar y
Moderator: Mr. Charles Mwangusya Mpagi of NTV’s Fourth Estate
SESSION FIVE 11.0 Combating Real and Perceived Corruption in the Ugandan Judiciary Presenters: IGG Hon. Lady Justice Irene Mulyagonja, the Chair JLOSIC Jotham Tumwisigye, JSC, Mr. Francis Gimara President ULS, and Ms. Cissy Kagaba ED Anti-Corruption Coalition, Uganda
11.1 The IGG remarks
The IGG remarked while it is argued by the Judiciary that the IGG is pointing fingers at the Judiciary, there are other pointers from other studies that focus strategically at corruption patterns of the judiciary.
Hon. Lady Justice Irene Mulyagonja, IGG
According to the UNODC, Centre for Crime Prevention, 2001 report, judicial corruption is a global problem that is not restricted to a specific country or region. However that manifestations of judicial corruption are at their worst in developing countries and countries in transition. In that regard, Uganda is one such countries, which are grappling with this problem and its judiciary is constantly accused of being one of the most corrupt institutions in the country. The studies that focus specifically on patterns of corruption within judicial systems and interactions between judicial professionals are rare. There is therefore lack of the approaches needed to sustain the development of evidence-based anti-corruption strategies for judiciaries. The IGG noted therefore that drawing an accurate picture of how corruption occurs in judicial systems defies simplistic analysis and requires significant nuance and a strong conceptual foundation. The JII of the IBA was launched in 2015 to combat judicial corruption where it exists, by attempting to understand the types of corruption that affect judicial systems. It focuses on the role of the various professionals who operate within judicial systems: lawyers, judicial officers at all levels, administrators and support staff in judiciaries. The JII seeks to: »»
contribute to countering corruption in judiciaries worldwide using the resources and experience of the IBA’s network of individuals and bar association members
»» identify means to counter corruption within judicial systems around the world. So JII carried out a study between 2015 and 2016 to identify the most prevalent patterns (typologies) in which corruption manifests in judiciaries, the corruption risks in the interactions among the actors in judicial systems, and the risks arising at different stages of the judicial process. She cautioned that this study was not designed as a comparative study of countries and their judicial systems, nor to seek to measure perceptions of the prevalence of corruption on the part of country’ experts or public opinion. Rather, the study represents an effort to develop a sound knowledge base of patterns of corruption, provide preliminary insights into areas of heightened corruption risks and systemic weaknesses in judiciaries, and to also establish key areas for subsequent research. The partial findings reveal as below:
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Table 6: Part of Results on selected Indicators of Corruption from Judicial Integrity Study (IBA) for 31 Countries Types of Corruption and respondents’ experiences and Perceptions
1st
2nd
3rd
4th
5th
1
Country’s general adherence to the rule of law
Nigeria; score 0.41, rank 92/102
Uganda; score - 0.41, rank 95/102
Turkey Score - 0.46, rank 80/102
Mexico score - 0.47, rank 79/102
Russia score - 0.47, rank 75/102
2
Reported direct firsthand experience or knowledge of incidence of judicial corruption
Uganda: 87%
Russia: 82%
Argentina: 81%
Turkey: 75%
Philippines: 70%
3
Incidences of bribery in Judicial system
Uganda: 87%
Mexico: 82%
Nigeria: 50%
Ukraine: 44%
India: 40%
4
Personal involvement of judges/ judicial officers in accepting bribes
Uganda: 40%
Russia: 28%
Mexico: 27%
Ukraine: 26%
Philippines: 22%
5
Incidence of other court personnel bribery in judiciary
Uganda: 53%
Turkey: 40%
Philippines: 30%
Brazil: 28%
Nigeria: 21%
6
Misuse or diversion of funds allocated to Judiciary
Uganda: 53%
Mexico: 45%
Brazil: 44%
Nigeria: 27%
India: 25%
7
Incidences of corrupt behavior judicial officers
Costa Rica: 100%
Turkey: 58%
Russia: 42%
Uganda: 33%
New Zealand 30%
8
Highest incidence initiated by Judges/JO
Uganda: 40%
Mexico: 36%
Brazil: 22%
Philippines: 22% Nigeria: 21%
Source: The IGG’s report to the 19th Judges’ Conference 2017
11.1.1 The Analysis Uganda is the only country where four forms of corruption (bribery, undue influence, extortion and misuse of funds) were perceived to be very high. 1. Bribery was considered the most prevalent in countries, where the rule of law is considered to be weak. 2. Undue political influence is believed to occur in countries known to have weak governance structures, as well as in those countries where the rule of law is considered to be strong. 3. Responses to the survey suggested that those judicial professionals who are reportedly most involved tend to be part of the system itself, that is, judicial officers, lawyers, court personnel and prosecutors. 4. Findings suggest that judges who purportedly engage in corrupt conduct do so most frequently in their interactions with lawyers and other judges. 5. Lawyers interact more frequently with third parties and thus were reported to serve frequently as intermediaries to influence cases. 6. Findings suggested that prosecutors frequently serve as intermediaries for actors inside and outside a judicial system, and they also have the discretion to “kill” cases. 7. There was only limited evidence of alleged corrupt conduct among court personnel. 8. In interactions where corrupt behavior was noted, court staff were more frequently reported to have been approached by external actors rather than actively seeking bribes themselves; motives were mixed but it was more for material benefit other than influencing result of a case. 34 | The Ju di ci ar y
11.1.2 Some Lessons Learned 9. Whereas strong accountability mechanisms would guard against bribery risks, robust provisions for independence guard against undue political influence. 10. The impact of public perception of corruption is highly contested because it is not always clear to what extent perceptions are substantiated by reality. 11. The media is sometimes perceived as exaggerating information on the prevalence of corruption within the judiciary or even as influencing public opinion in ongoing trials in a biased way. So, structural complexity and lack of transparency supposedly increase corruption risks and often enable or mask corrupt behaviors. 12. The manipulation of bureaucratic complexities and lack of clarity in procedures are a means for illegitimate purposes, in many ways, that span the spectrum from petty to grand corruption. 13. A lack of an institutional culture of integrity and accountability generates corruption risks. 14. In an environment where ‘no one cares’ and judicial professionals are ‘treated poorly’, the incentives to refrain from abusing entrusted authority are negatively affected. 15. Closed groups based on professional identification were noted as a possible risk for judicial systems. For example, reliance of judges and judicial officers on each other may influence each other’s decisions and isolate them from external criticism. It also generates risks for collusive behaviors, and “groupthink” can generate incentives for individuals to protect each other.
11.1.3 Conclusion The IGG concluded that solutions of the dealing with the perceived and real corruption in the Judiciary can only be devised by the judiciary itself from within.
11.2 President, Uganda Law Society: Mr. Francis Gimara’s Remarks
Mr. Francis Gimara, President Uganda Law Society
The President Uganda Law Society, Mr. Gimara pledged that in the year 2017, the ULS leadership would focus on; “Eradicating corruption in the Judiciary and Upholding the Rule of Law.” ULS was inter alia to resuscitate the ‘Bell the cat’ project and was to also enable lawyers review the strategies of combating judicial corruption. Gimara reported that meetings to that effect had been held in Gulu, Mbale and in Mbarara. He cited the ‘CEPIL Report 2016 on the State of the Judiciary and Corruption Index 2014’ by Transparency International where it was reported that: most common forms of corruption within the judiciary relate to; payments of bribes either sought after by clerks and magistrates or offered by the accused, the litigant or the lawyer as an inducement to make certain decisions, the swearing of false documents, soliciting and getting favorable treatment and forging of court documents, especially at the court registries.( CEPIL Report 2016) Gimara lamented that corruption is going to eat the entire legal fraternity. To Gimara, as far as real corruption in the judiciary is concerned most instances from several reports reveal that most of the corruption is in the magistrates’ courts, though there is also corruption at the higher level. The implication is that from the High Court to higher levels, the corruption is concealed because the key players are unwilling to expose the participants. Gimara confirmed that the truth of the matter is that real corruption exists but very few persons especially from the bar are willing to come out with evidence against the allegedly corrupt judicial officers because of the ostensible or real fear of victimization by the judicial officer(s). According to Gimara, there are stories of judicial officers who have partnered with some lawyers to promote unethical practice. He reported that in the legal practitioners’ circles it is now normal to hear of lawyers who are known never to lose cases before particular judges. There have w w w .j ud i c i a r y .g o .ug | 35
also been reports that advocates request for money from clients allegedly to give the judicial officers. However, the action lawyers being accomplices are not willing to come out. He cited the practice in Mbale where a Mbale Magistrate drafts pleadings, and in Mbarara where the magistrate is corrupt with impudence. He decried that there is a lot of disconnect and deviance in decisions in the election petitions at the High Court levels. This could be due to the limited resources that cause temptation. Further, the quality of judges has gone so low, whereby the judges fail to give reasons for their decisions despite valid legal submissions. Gimara commended that there is need for the judiciary and ULS to work together to identify those lawyers collecting money on behalf of the judicial officers by exposing them. This will help overcome the concealment of the corruption disease, as well as fight it. Gimara reflects that the highlight of this concealment happened during the hearing of one of the election petition appeals after the 2011 elections, when some justices of the Court of Appeal revealed that they had been approached during the hearing of an election petition by one of the litigants with a bribe which they rejected. Surprisingly, to date, none of the culprits who attempted to bribe the country’s second highest court of record have been prosecuted. Gimara argues that perceived corruption mainly encompasses how society understands the rules and what constitutes its deviation. The efficacy of the judiciary mainly depends on the credibility that it commands from the citizenry. As long as the Judiciary is perceived as corrupt, it will be treated as corrupt, whether justified or not. This perception maybe due to how registries are managed, how long cases take to be resolved by courts, and could also be read in inefficiency in handling cases before that court. Gimara further argues that corruption will always have more devastating effects on the judiciary, since it generates a culture of distrust for example the distrust caused by a common practice to schedule cases at 9:00am and the judicial officer reports to work at11:00am, without further notice or communication to the waiting other stakeholders. In some upcountry stations the courts operate between Tuesday and Thursday. Gimara cautions that this is unaccountability, and should be checked in our court system. He recommends that together we must fiercely deal with these perceptions because they contribute greatly to the image of the judiciary. Where there is evidence of real corruption, lawful means should be employed to address the vice. There is thus need to look inward the system and examine areas where this vice is thriving and use measures within the Judiciary to curb any unwanted perceptions.
11.2.1 Recommendations by Mr Gimara (President ULS) 1. Organize Anti-corruption campaigns in the judicial sector and in the public to warn them against the negative consequences of corruption and to encourage them to reject it. 2. Consider practice directions to limit the judicial discretion. 3. Create an internal system for certifying judicial processes, practices, and sensitizing of membership to investigate corruption. Transparency around different types of transactions like filing of cases, allocation of cases to judges, should also be increased, since procedures that reduce the scope for individual discretion reduce the opportunities for judicial officials to levy fees or conveniently lose files. 4. Uphold the principle of Rule of Law, since its application guarantees legality of actions, equality before the law, and the rights of citizens to legal remedies. 5. Uphold the principle of zero tolerance for corruption by indiscriminatingly applying the law against all forms of corruption. 6. Uphold the principle of accountability and efficiency where all court users are obliged to conduct anticorruption measures within one’s powers. Training should be conducted for both legal officers and judicial officers to improve efficiency. 7. Practice transparency whereby all citizens of Uganda should be able to access information in accordance with the law, access to legislation, and access free intellectual sources of information on relevant laws to ensure that rights are effectively and predictably taken advantage of. 8. Reform and watch both the appointments and disciplinary processes. The Judicial Service Commission (JSC) is now duly constituted and should be allowed to do its constitutional mandate by provision of the necessary information/evidence. The ULS has engaged Parliament to open up the vetting process of Judicial officers to enable ULS participate in the process of appointment. ULS together with the leadership of the Judiciary should follow up cases before the JSC. 36 | The Ju di ci ar y
Gimara concluded that corruption is a vice that has been around for some time now and needs concerted effort to combat. Once an individual has participated in receiving bribes, it is quite difficult to change such individuals. So identified culprits should rather be let off judicial service. If these perceptions are created by a few individuals, every effort should be made to openly and transparently handle the individuals, just like the parable of the lost sheep where the shepherd left the 99 sheep in an open field and went to look for the one that had gone astray. When found, he put it on his shoulder and came back with it rejoicing. Thus, perceptions or real corruption should be dealt with by all actors holistically in a bolder way.
11.3 Views from the Chairperson, JLOS Integrity Committee, Hon. Justice Jotham Tumwesigye, JSC.
The judge observed that from the recent 2016 JLOSIC national tour the judiciary is not as bad as displayed though there are sporadic cases of corruption by some rotten apples. The specific concerns relating to corruption in the Judiciary found were as follows:-
Hon. Justice Jotham Tumwesigye, JSC
1. Delay in the hearing and disposal of cases due to perceived corruption. 2. Absenteeism of Judicial officers from their stations, or reporting late. 3. Refusal to avail court proceedings and judgments to the litigants for purposes of lodging appeals. It takes a lot of courage to get the court record of proceedings. 4. Disappearance of court files. 5. Active bribery for one to get court services, for example for securing bail, and production warrants. 6. Failure or delayed bail refund to accused persons on their release. 7. Lack of transparency in cause listing, especially for prison inmates, violating the principle of first in first out without any justifiable reasons, where alterations are made at a fee. 8. Colluding with money lenders to arrest people and detaining them as civil debtors. 9. Demanding money from relatives of accused persons on remand for production warrant and bail processing. 10. Stealing of exhibits by court staff, and also at the police by police officers. 11. Connivance of judicial officers with lawyers to give favorable decisions to the lawyers, at a fee/bribe. 12. Connivance of judicial staff to change hearing dates, at a fee/bribe. Thus, the JLOSIC observed that there was corruption both real and perceived which the JLOS Institutions must fight against. The Chair JLOSIC recommends that: 1. The corrupt judicial officers should be completely eradicated from the system. 2. For improved supervision, the inspectorate team of the judiciary be further strengthened. 3. More Court open days to demystify the court processes to the public as to limit on the perceptions, minimize overstay on remand and case backlog, be held. 4. Customer Care and Information desks be established. 5. Use of ICT to quicken the court processes. 6. JSC be strengthened to investigate, and Judiciary should avoid transfer of errant officers before they have been dealt with as a way of addressing corruption. 7. Law Council should discipline corrupt lawyers by dealing with cases of corruption among lawyers expeditiously 8. Judicial Officers should expeditiously handle court files.
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11.4 Views from Cissy Kagaba, ED, Anti-Corruption Coalition Uganda
Cissy N.Kagaba, Executive Director of Uganda’s AntiCorruption Coalition
From Kagaba’s point of view, corruption in Uganda is rife, whether real or perceived it does exist. The Judiciary has been mentioned as one of the institutions prone to corruption related tendencies. Kagaba cites the Transparency International Report (2015) that ranked Uganda as the 139th corrupt country out of 168 countries reviewed. Kagaba also cites the IGG report for the period January-June (2015) that referred to the judiciary and police among the most corrupt public institutions. Further, that corruption in the judiciary is real as evidenced by ACCU’s investigative reports that include the ‘Temples of Injustice and Chasing the Wind’. The ACCU’s findings revealed among others, issues relating to gross misconduct by court officials. These issues ranged from court clerks at some courts, entering into written agreements with litigants-with the former conceding to bribe them, non-refund of bail money, bribing court officials in order to be granted bail, unclear circumstances of promotion. Further still, 31-45% of the correspondents in Uganda claimed to have paid a bribe in court. According to Kagaba, by implication, the poorest Ugandan who cannot afford bribing the judicial system can hardly be served justice. Yet, the Afro barometer, dispatch 77, of 28th March 2016, “public perceptions of corruption in the judiciary continue to worsen as 45% stated that most judges and magistrates were corrupt.” While the aforementioned statistical findings evidence real corruption in the judiciary, it also arouses peoples’ perception that judicial officers are corrupt. Additionally, the attitude of some judges where they harshly treat some parties over others makes one think that the favored one has given something to the magistrate or judge. So Kagaba argues that public opinion or perception is largely influenced by media and public relations. The mass media uses various advertising techniques to convey their message and influence the thoughts of the people on important issues. People’s opinions depend on various factors such as their immediate situations, their social factors, and their already existing knowledge and system of beliefs and values. Opinion leaders who voice their opinions on popular issues have a major role in influencing public perception about them. Therefore, the social phenomenon known as public perception can be seen as the difference between an absolute truth based on facts and a virtual truth shaped by popular opinion, media coverage and/or reputation. For instance, having certain court orders being passed by a particular judge creates a trend in reputation and will unfortunately form public perception against the entire judiciary. Questions arise in political related cases such as the rebel MPs case, IGP, Mayor, Parliament cases, like: why that judge? Why do certain cases of a particular caliber end up before that judge? Aren’t there any other judges that can handle such cases? Kagaba wonders that if you are a member of the public and such a trend or reputation has been created how would you genuinely think? She contends that there could be a need to put the legalese aside and fit in the shoes of the public to understand why certain perceptions are arrived at. However, on the other hand Kagaba also argues that fighting corruption in the judiciary doesn’t rest in isolation. The Chief Justice in May 2015 pledged to strengthen the Inspectorate of Courts as a step towards fighting the vice. Compelling statistics form a crux of this discussion. The Auditor General’s report, June 2015, highlighted a case backlog at the Judicial Service Commission (JSC), standing at 780 with only 106 cases concluded by the end of the financial year 2014/15. Intriguing to note, 2.78% were corruption related cases, ranking high after delay of justice (5.56%) and misconduct (59.26). Further, the IGG report, January-June (2015) registered 384 corruption cases against the judiciary. Thus, fighting corruption in the Uganda Judiciary through a CSO perspective would entail below:
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1. The practice of transferring implicated judicial officers as a form of punishment while investigations are being conducted should be avoided. Transfers can never be used as a form of punishment since it is the poor that are affected especially if the transferred officers are indeed corrupt, it is merely transferring the vice from one area to another. 2. Clerks should frequently be rotated because if they overstay in one place they become untouchable and ask for money freely. However, some judges don’t want to move their clerks who they are used to. 3. Expeditious handling of corruption related cases before the JSC will go a long way in sending a message of zero tolerance to corruption in the judiciary, but also reducing the case backlog in the ordinary courts. 4. To instil credibility and integrity among the judges, promotions and/or appraisals should be based on merit and transparency. 5. Better remuneration of judicial officers may also help combat the corruption in Uganda’s judiciary. 6. The godfather/mother syndrome in the judiciary should be avoided since it breeds corruption and unfairness in the administration of justice. 7. JSC ought to conduct more public events and outreaches so that people know where to report complaints. 8. Need to be sensitive at times to certain issues in the public domain. It does not have to be this one judge that gets to hear matters that would form public perceptions, if some of these orders are given by different justices, may be it would be a different story. 9. Need for the judiciary to improve on its public relations. 10. Stakeholders need to synergize and put up a spirited fight against corruption in the judiciary underpinned by commitment, partnerships and actions. Kagaba concluded that as of date, the operationalization of the judiciary is under wave currents, due to a number of issues the sector is grappling with. This has culminated into the impairment of efficient and timely delivery of justice. Corruption in the judiciary leads to loss of public trust and confidence in the judicial system which is not healthy for any growing democracy for a country like Uganda. “Fighting corruption in the judiciary shouldn’t entirely be left to the institution but be resident in every individual judicial officer.”
11.5 Moderator (Mr. Charles Mwangusya)’s Question and Answer interlude A judiciary whose reputation is undermined or whose judges, magistrates ,and other judicial officers are corrupt, cannot be recognized as a function of the rule of law or democracy in any given state’ Mr. Charles Mwangusya citing a judicial officer. 25: When does one draw the line between real and perceived? IGG: Many complaints are non-verified for fear of repercussions. There are also complaints about judicial officers asking for a bribe to make decisions, such as release on bail. When the traps are laid, some judicial officers are secured. Like one judicial officer after arrest, confessed and in concession we agreed that he leaves the job without prosecution. Unfortunately, the judiciary allowed him to retire with benefits than to compulsorily resign. Secondly, to the IGG, the court is used as a conduit for money laundering through representative actions. The public perception is that large amounts of money are paid out by the government and are shared, in connivance with government’ officials in the Ministries of Justice, Finance, and the Courts. The IGG gave examples of, the National Enterprises Corporations case, the former ISO employees case, the UEB Case, the Railway case, URA case, among others. While it is difficult to establish whether the judicial w w w .j ud i c i a r y .g o .ug | 39
officers share the money with the lawyers, the perception is that they do and this negatively affects the jurisprudence, and in years to come government could find itself forced to refund large sums of the money laundered funds. So the Judiciary ought to be aware. How do you draw the real/perceived corruption divide giving specific examples, particularly, between the lower and the Higher Bench? JLOSIC. The perception from the public has improved, according to the JLOSIC survey, and deserving officers have been recommended for promotion. From the JSC point of view there is need for emphasis on the investigation of the higher bench complained against in order to avoid perceptions that it is only the small fish than the big fish that are trapped. Is the opportunity cost of becoming a judge to a lawyer based on the expected income higher than not to become a judge? Many lawyers have to negotiate their way irrespective of the law to get good judgments. What has the ULS done about it? ULS. Law Council should be made autonomous to fast track disciplinary matters for lawyers. The ULC needs to be further funded, upgraded to increasingly deal with issues of corruption. ULS has also requested the judiciary to alert the ULC about the errant corrupt lawyers, as a collective responsibility. ULS also calls for legal reforms to upgrade the ULC, since there are many new lawyers on board who join the profession with the attitude that the profession is a lucrative business. Hence, there are mafias infiltrating the profession. Courts should also step up their coercive abilities to discipline lawyers in that they should do not stand the non-nonsense conduct of court business, given the judiciary effective leadership role. Unfortunately, government lawyers are not subject to the ULC, yet some of the connivance have been done by these government lawyers who are civil servants and are equally errant and in cause great financial loss and also secure inordinate orders, putting the ULS at loggerheads with the judiciary.
11.6 Plenary (Question and Answers) What criteria informs the corruption ranking? Is it because the judiciary and the police only deal with or are at the center of the public, yet trillions and trillions are stolen by other government officers in government ministries indirectly who do not directly practice in the public? The basis of the ranking are the indicators indicated in the report by the IGG, who include the respondents from the public. Judiciary should deal with how to reconstruct these perceptions to the highest standards of impeccability. Do the studies make a distinction between judicial officers and clerks? The IGG reports and other institutional reports such as the auditor general’s report are the ones CSO assessments consider. The public does not make a distinction. How should the rotten apples be gotten out of the system whatever the level of the judicial officer in the system? The standard required of the judiciary and Police should be impeccable to address the perceptions. JSC should handle disciplinary matters, for example, expeditiously in line with the legal burden of proof that the culprit is innocent until when proved guilty. Is Judiciary ready to set standards and deal with the God- fathering syndrome, in order to fight corruption from within the judiciary? Is there a way the CSO’s can hype media public sensitization? Transfers should not be the norm and judicial disciplinary mechanism should take course, without fear or favor. How is the ULS ready to deal with lawyers who bag money from their clients in the name of judges? It has the negative effect on the legal services market. Lawyers are as a result shunned by the litigants, and the bribers now access the magistrates and judges directly to give them the bribes. Litigants now feel not showing up with lawyers is benefitial to the detriment of the legal professional. There is also silence of mutual guilty and there is need to break it. Further, judicial officers should give due notice when they are to be absent from the stations to cut on the legal costs and litigants’ transport costs. Why does not the IGG investigate how the Judicial officer who confessed corruption was allowed to retire with benefits? The ULS should come out with factual information about the Judge accused of corruption, at least by name using the bag the 40 | The Ju di ci ar y
cat project or before the Bar-Bench Committee. The ULS should also inform their clients that justice is not bought. Corruption at whatever level is intolerable within the Judiciary and should be condemned. Ultimately it is the judicial officers should consciously deter from it in whatever form. According to ‘Watching the Watch Dog Report’ the JSC has been largely dysfunctional with a wider constitutional mandate yet with a poor vote, and non- permanent operations. Cases were also not being handled on a first come firth serve basis, and this also begets negative perceptions. Past JSC lacked investigatory capacity and also had a bias towards investigating magistracy than the higher bench in the handling of the cases. The Judicial watchdog should not only bark but ought to have capacity to bite too. How do you deal with the challenge of cleaning the image of the judiciary, real or perceived corruption? The Public perception is that Justice is bought. The Public should be sensitized out of the perception. Cases should be handled entirely by chance and not by design through the automated case allocation system. Are there internal disciplinary mechanisms or peer committees to address the problem of errant judges or judicial officers, who make hair rising decisions? It was suggested that such internal disciplinary mechanisms ought to be put in place to give judicial officer’s chance to be counseled and given chance to reform. It was observed that generally the quantitative output due to pressure of the case loads has compromised qualitative justice. This is worsened by limited human resource especially on the bench. Further that real and perceived corruption are all true and real due to the complicated processes and bureaucracies and delays, such as in refund of bail money. Why does not the accused on acquittal or conviction, be refunded with his /her bail money immediately? Other reasons are caused by internal indiscipline such as habitual late coming, refusing to hear cases. All this contributes greatly to perceived corruption. Then for real corruption the court users in the village tell how they took money to judicial officer so and so. It is therefore, recommended that the judiciary should streamline its methods of work to deal with the perceived corruption. Where judicial officers have been found or detected corrupt they should be reported and handled viciously with harshness and expeditiously with the seriousness that dealing with the corruption deserves without any cover up towards that person. Factual court case returns for tried judicial officers and lawyers in legal practice should be shared with the disciplinary bodies and committees charged with the disciplinary duty or mandate of these officers. Apparently, there are two divides among the court users that is: the rich (them), and the local poor (we). The perception is that the court justice and processes are for the rich and it is the rich who exploit the rigorous court processes against the poor. They evict the poor, they file injunction applications, and they seek security for costs from the poor, among other processes. Courts must be wary of this divide and abuse by the have against the have nots. Peer Committees should also be encouraged. The Judiciary should consider stopping the trials by sessions.
SESSION SIX Judges’ Closed meeting
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Session Chair: Hon. Justice Lillian Tibatemwa Ekirikubinza
DAY 4: SUNDAY 29TH JANUARY 2017
SESSION SEVEN 12.0 Panel Presentation on Enhancing the Rule of Law through Land and Family Justice for All Presenters: Hon. Justice Moses Mukibi, Head High Court Land Division; the Ag. Administrator General, Mr Charles Kasibayo; the Permanent Secretary MOGLSD, Mr. Pius Bigirimana.
12.1 Justice Mukiibi’s Presentation (Family Justice for All)
Hon. Justice Moses Mukibi, Head High Court Land Division
The judge saluted all members present in their respective dignitaries. He started on the note that while family justice may not be so important or be prioritized as some school of thought prescribes, family injustice can arise whenever it does or will through family cases , so they are close to his heart. So family justices and land justice is at the core of grand doctrine of the rule of law If a bird leaves its small birds in the nest it will come back for them, however human nature is hypocritical. When they fly out of their homes or nests they may down play family justice until when trouble strikes humanity. So that is when they would know that family justice is so important. He gave three scenario for the plenary to think about.
Scenario 1: The Losing family
The family comprised five women and four men to a deceased father who died in 1983. The last funeral rites were held and the customary heir was shown to the congregation. The deceased had left a will that was not witnessed. The first issue that arose was which law was to govern the distribution of the deceased’s estate? Was it the Sharia law or Succession law under the Succession Act? The family held a meeting supervised by the Islam Sheik. The meeting agreed that the men would take six acres of land while the women would take three acres each. This remained the position for over 25 years. The customary heir and some siblings started aging, and they feared they were about to die. The second issue arose as to how their descendants inherit their interests. The process of securing a letters of administration commenced. The Administrator General issued four siblings with a certificate of no objection. A formal distribution of the estate was made .While the male siblings were arguing that the position had long been settled, the female siblings argued the division had been exercised unfairly and discriminatory. To the surprise of the whole family, the female siblings filed a matter in the family court seeking the court’s lawful fair equal distribution of the family estate taking into consideration the constitutional protective provisions of the rights of the girl child during distribution. The male siblings vehemently argued and felt that the family being a Muslim family, its properties’ distribution under the sharia law will give the deceased the eternal peace and rest in his grave.
Scenario 2:
A growing up man beginning to earn some income got involved with the lady. They cohabitated and bore children. Using some centralized materials he built a small homestead which he roofed with poor gauged iron sheets. The sheets later corroded. This family had 9 children. Later the man got richer, remarried in church to another lady, built a modern double stored house in Entebbe and other quarters along the Entebbe highway. This marriage was blessed with only one girl child. In the thinking of the 42 | The Ju di ci ar y
wider family, including the other 9 children, this home was believed to be the principal family residence home. The official legal wife died in May of a certain year. She was buried at her residence. The husband started aging with diabetes and hypertension. He allegedly in October of the same year signed a transferred giving away the principal residence and other related property to his only single daughter. She kept the certificate of title. The father died in November and was buried next to his dear legal wife. In December, his last funeral ties were celebrated, but no Will was found. In March the following year, the daughter secured the certificate of the principal residence including the other related properties, The family wrangle ensued when the daughter insisted when the rest of the siblings were trying to identify the property of the deceased and secure letters of administration, that the principal home was her property given to her by her late father in life and did not constitute part of the family property. Unfortunately this is where even the family head, the father had been buried, and was the bigger more valuable property.
Scenario 3:
A polygamous man had several women with children and built several tenant homes. Later one young lady lured the man to Catholic Church marriage. She begot 4 children. They cohabitated, while she was cultivating yams in a mash land next to Namboole stadium. As a cultivator on a kibanja holding, she was compensated to provide land to the Namboole stadium with 15m/=, which she banked. She convinced her Husband to become the lessee to the mailo owner of the mash land. She used her money to construct a traveler’s lodge and the business became lucrative because of the frequent long distance lorry drivers. In the meantime she went behind the husband and secured the diversionary mailo interest. The husband died and a Will was found which confirmed that the wife was the owner of the land and sole executrix. The wife secured letters of administration using the Will that had been prepared by advocates. She secured the letters as the legal executrix. The application to revoke the letters was filed by the rest of the family members. Court granted an injunction order pending the hearing of the main suit. Court also ordered that the estate revenue go to the family accounts. The court bailiffs misconstrued the order and carried out an eviction execution. They found the lady in the bathroom, evicted her, as she was, only wrapped in Ekikoyi. As court proceedings continued the lady she mauled from friends’ homes and later died out of gross frustration and stress. The judge observed that these are some of the family justice realities as obstacles in the administration of family/ land justice. Further, officials in the land disputes are really corrupt, especially in the land Ministry and courts, including middlemen, who solicit for bribes. Some surveyors in Mappings and Survey Department are grossly corrupt. They collude with land officials to steal land and distort land marks. This has gone to a great extent unresolved. To wind up, the judge observed that the 1900 Buganda Agreement distorted land settlements where land was given to individual owners and commercialized. The structure of land ownership of land owner and tenants came into existence. The Busulu and Envujjo law was enacted to regulate co- tenancy between land lords and tenancy. Since 1967 there has been distortions in the settlements and land ownership, and some land conscripted by the government from land owners have not been compensated. The land reform Decree 1975 left the relationship between land owners and tenants unsettled and distorted which has led to insecurity of land tenancy. Economic transformation has led to the levels of the haves and have nots, through purchase of land. These have manipulated the system leading to various evictions negatively affecting economic growth, yet courts have not acted timely in observance of the rule of law, and in worst scenarios death. People have cried out loud to the government agencies such as Inspector General of Police to help but to no avail. Noteworthy, not many have run to the courts or the chief justice for intervention.
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12.2 The Ag. Administrator General, Mr. Kasibayo Presentation Mr Kasibayo walked the participants through the origins of the office of the Administrator General. By way of background he explained that the Office of Administrator General is created by the law under Section 2 of the Administrator General’s Act Cap 157. Thereunder, the Administrator General is given the mandate to administer estates, issue Certificates of No Objections and to verify beneficiaries, among other matters. The office is a body corporate. The law applicable to execute these duties by the Administrator General are: the Constitution of Uganda 1995, the Administrator General’s Act Cap 157, the Succession Act Cap 162, the Public Trustee Act Cap 161, Administration of Estates (Small Estates) Special Provisions Act Cap 156, Trustee Act Cap 164, the Missing Persons (Management) Act Cap 159, and the Administration of Estates of Persons of Unsound Mind Act Cap 155. Kasibayo briefly expounded the mandate of Administrator General as below: The mission of the Administrator General’s department as “to ensure that all estates of deceased persons in Uganda are properly managed and administered in accordance with the Laws of Uganda governing succession matters.” The Administrator General functions, include, the administration of both testate and intestate estates of deceased persons, as public trustee; protection and management of the shares of minors; and instituting legal proceedings in courts of law against inter-meddlers, fraudulent administrators of deceased’s estates, fraudulent relatives and others for the recovery of estates of deceased persons. Kasibayo explained that the Administrator General’s functions are quasi-judicial, including the authority to dispose of some disputes over estates of deceased persons. This renders therefore this office crucial in ensuring access to justice for the most vulnerable, mainly the widows and orphans. Its observance and protection of the rule of law is very cardinal. Kasibayo underlined that the Succession (Amendment) Decree, 1972 consolidated the administration of estates in Uganda. And this was a significant hallmark in land and family justice matters because: it recognized women’s rights to inherit property, and recognized the rights of all children whether male or female, legitimate or illegitimate, to inherit from parents in equal shares. It streamlined the application of numerous customary laws by codifying various norms and practices related to inheritance common to most indigenous communities in Uganda, and also preserved the rights of a widow to remain in the principal matrimonial holding of the deceased (in trust for the legal heir) until she remarried, died or voluntarily left the home. Most importantly, it increased the duties of the Administrator General which previously only involved the administration of estates of the expatriate community (the majority of other estates having been dealt with under customary law). Further, to ensure uniformity, the law would apply to all persons in Uganda regardless of religion and gender or sex. Kasibayo observed that land is one of the most significant parts of estates of deceased persons in Uganda. Therefore, all land under different land tenure systems like the customary land tenure, mailo, freehold, and leasehold, including land held by lawful and bonafide occupants is subject to succession as a major asset to the livelihood of the beneficiaries. This must be handled in accordance with the established laws and procedures to ensure harmony and confidence in the rule of law. By virtue of the volume of such cases, the administrator General’s office is a sister institution to the Judiciary to sieve for the Courts the processes of obtaining Letters of Administration. Its regional offices bring services closer to the people. The office also administers estates where the courts deem it fit, when the family members cannot or are not fit for the purpose. Kasibayo highlighted the administrator general’s office challenges as below: 44 | The Ju di ci ar y
1. Succession Registers Succession registers and succession certificates are a challenge in ensuring the rule of law because of fraud. The difficulty lies in identifying great grandchildren as the rightful beneficiaries and also the transfer of succession certificates by the first recipients who are now dead to several people without registering them with the lands office. Succession registers are records containing details of the Buganda deceased people’s estates including details of their property, distribution of the property and the beneficiaries of the estates. Upon the death of a person from the Buganda Kingdom, his or her Will was proved before the Clan that the deceased belonged to. If the deceased died intestate, his property would be distributed by the Clan. Proceedings from the Clan would be forwarded to the Lukiiko for debate and approval. After approval, the reports of the proceeding from the Lukiiko were forwarded to the Kabaka for his assent. Upon the Kabaka’s assent, the records would constitute the final distribution of an estate of a deceased Muganda. The distributions assented to by the Kabaka would constitute a succession record referred to as a Succession Register. In order to implement the details in a Succession Register, a beneficiary was issued a Certificate of Succession by the Lukiiko. The Certificate of Succession operated in the same way as a transfer of land. The Certificate of Succession also had the same effect as a limited grant of Letters of Administration concerning that specific beneficial share of the deceased’s estate. Following the abolition of the Buganda Kingdom in 1966, the Administrator General was given power to manage the Succession Registers containing estates of deceased Baganda that were formally administered by the Kabaka’s Government. The estate of any Muganda who died in the early 1900s to1966 and owned land was almost always registered with the Kabaka’s government. The properties, children, widows, and how the property was distributed are indicated. Even copies of the Will were usually attached, including an indication whether the Will was disregarded for lack of attestation. The department of Administrator General facilitates beneficiaries to access this land and the properties registered in this succession Register books. However, because these estates relate back as far as the 1920s, some land has been the subject of hundreds of transfers, many of them fraudulent, some legitimate; yet we still have it in the Succession Registers that the property has never been transferred from the deceased’s names. The Registers have been overtaken by events as it were. The beneficiaries approach the office seeking Certificate of No Objection/Letters of Administration yet it is a fact that some of their predecessors sold the land but both the sellers and buyers never bothered to cause a transfer of the land to the purchaser. Once the new administrator is appointed, he or she in most instances does not want to follow the distributions in these Registers, yet that distribution cannot legally be changed. This has led to multiple suits, including the many suits in Courts in which great-grandchildren are suing the Land Office or investors like Madhvani alleging that their land was “stolen”; when records may exist that the first line of beneficiaries took Certificates of Succession in the early 1920s to 1966 and may have sold them off. In the case of Paulo Kaweesa vs. Administrator General and 2 others - Civil Suit No. 918/ 1993, the administration of these estates by the Administrator General was challenged and the gist of judgment in this case is that the Administrator General has no power to administer estates that were previously administered by the Kabaka government. The administrator General’s office is currently issuing certificates of no objection to the beneficiaries who did not obtain a Succession Certificate in regard to their share from Buganda or Administrator General, and whose land or share is still available according to the search statements issued by the land’s office. The consultation with the lands office is ongoing and other stake holders.
2. Lacuna in the law
In the case of Law & Advocacy for Women in Uganda vs. Attorney General (Constitutional Petitions No. 5 of 2005 and 12 of 2006, the court declared s.27 of the Succession Act, amongst others, as unconstitutional, since it only provided for division of the estates of the male deceseased. This section provided that children get 75%, widows/widowers receive 15 %; while the heir and dependent relatives would get w w w .j ud i c i a r y .g o .u g | 4 5
1 % and 9%, respectively. This decision had an impact on other sections in the Act, such as, s.202 of the Succession Act, where administration of estate could be granted to the person who is entitled to the greatest proportion of the estate. This usually translated into a preference for the widow (see for instance the decision of Nyendwoha vs. Nyendwoha Robert, Civil Suit No. 1068 H.C. 1983). Now that s. 27 is illegitimate, the question that arise is what happens to such decisions since one cannot tell who has the biggest share? Kasibayo opines that the courts should have invoked Article 274 of the 1995 Constitution to have the section modified to include females because the same section had always applied to the female intestate succession, other than creating a lacuna in the law. As a result of this legal impasse, during family meetings, the office informs the beneficiaries that there are no provisions as to how to distribute an intestate estate because we are in the process of amending the old law. The old Section 27 is only proposed to them for adoption if they find it fair, particular in estates where there are no disputes and where the bargaining power of the beneficiaries is fairly equal. Otherwise, those in control of the estate before Letters of Administration are obtained have the capacity to drag out the dispute for unreasonably lengthy periods. Kasibayo implored the Hon. Justices to inform the office how it would handle an administrator who says he or she cannot distribute the estate because there is no formula in the law, or who fails to distribute because there is no agreement as to the shares of the different beneficiaries. Should court force a scheme onto the family seeing that in some families, you may hold even 20 meetings and half end in fighting? Secondly, to counter this legal lacuna, the office has undertaken massive sensitization including printing pamphlets, flyers, brochures and using broadcast media to encourage people to write Wills to have some level of control on distribution of their estates. Admittedly, this is a very hard fight. Since most people die intestate, for lack of courage to write Wills. Culturally writing a Will inculcates the fear that one is requesting the Angel of Death to hurry up one’s death despite repetitive sensitization the community has remained reluctant. The office has partnered with the Uganda Law Reform Commission and successfully prepared Amendment Bills for the Succession Act, the Administrator General’s Act; amongst other related laws, which Bills are with the Secretary to the Cabinet, pending being tabled before the parliament. Further, the office is faced with an eminent threats from the beneficiaries to the estates it administers, or whose money it holds as public trustee, losing confidence in the rule of law because of attempts by court to garnishee the office’s accounts holding their pension, death gratuity and other benefits contrary to s. 35 of the Administrator General’s Act. This is to the effect that the revenues of the Government shall be liable to make good all sums required to discharge any liability against Administrator General. According to case law such as, Civil Appeal No. 12/ 1977 Administrator General v. Uganda Commercial Bank & Moonlight Sengooba Ssalongo, Miscellaneous Appeal No. 05/ 2008 (Arising out of Misc Application No. 441/2008) Administrator General v. Loy Mirembe and Stanbic Bank Uganda Limited and others., the office holds the money in trust for the beneficiaries whose deceased parents/spouses estates it administers in accordance with the law. Therefore, this is not Government money but for private person(s) payable on demand, such as, paying school fees for orphans, providing for maintenance etc. This will result in increased litigation and lack of confidence in the rule of law.
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12.3 Mr. Pius Bigirimana’s Presentation
Mr. Bigirimana explained that he is the chief executing officer of the ministry that is responsible for children, disabled, women, elderly and workers, who basically comprises the most vulnerable people in society. As a way of background, he underlined that the Children Act Cap.59 (2000) provides for: the care, protection and maintenance of children, the Local authority’s support to children, the establishment of the Family and children court for child offenders and, it also defines a child as a person below 18 years. Mr Pius Bigirimana, Permanent Secretary - Ministry of Gender, Labour and Social Development
However, he emphasized that since enactment, this law has had challenges in enforcement of some of its provisions, which have negatively impacted on the realization of some fundamental rights that calls for the amendments. There are also other emerging issues that include increased violence against children, child sacrifice, child trafficking, and child marriages. These issues create gaps that had to be closed and hence the amendment of the Act. These gaps include: lack of strong provisions to address emerging forms of child abuse including child sacrifice, pornography and sex tourism, lack of clear guidelines/procedures under which legal guardianship could be pursued, lack of sanctions for contravening provisions such as the operation of children homes without approval and employment of children in harmful labor conditions, and lack of sanctions against increasing corporal punishment in schools and other places of learning. Mr Bigirimana explained that the purpose therefore for the Children (Amendment) Act, 2016 are to: 1. Strengthen the provision for guardianship of children, 2. Strengthen the conditions of inter-country adoption, 3. Prohibit corporal punishment, 4. Provide for the National Children Authority and to provide for other related matters, 5. Establish the Uganda National Children Authority and repealing the National Council for Children Act, CAP 60 6. Set procedures for Legal Guardianship and restricting Legal Guardianship to Ugandan citizens only. 7. Amend procedures, such as, reducing the time which an applicant will foster a child before adoption orders are granted from 36 months to 12 months 8. Prohibit sexual exploitation of children and establish strong sanctions for those who do it, that includes a fine of 100 currency points or imprisonment not exceeding five years, 9. Provide special provisions for not discriminating against a child in service delivery on account of disability, 10. 10.customary practices that are harmful to their health, education or mental, physical or moral development, which includes prohibition against child marriages 11. Ban corporal punishment for children in schools and legislate strong sanctions for those who do it have been included, 12. The Minister responsible for children to be responsible for supervision and recruitment of Probation Social Welfare Officers. Mr Bigirimana also explained that there is a selected committee that has come up with the draft ‘Children w w w .j ud i c i a r y .g o .ug | 4 7
Regulations, 2016’ which do require their lordships’ input. He expounded that the regulations cover both the Children Act Cap 59 and the Children (Amendment) Act, 2016. They consolidate all the rules hitherto referred to as the Children (Adoption of Children) Rules, Statutory Instrument 1, the Children (Family and Children Court) Rules, Statutory Instrument-2, and the new ones being proposed for amendments as advised by the PAC during the 9th Parliament. There regulations have three key areas of concern which require the justices’ attention. These are: legal guardianship, adoption and, inter-country adoption. He proposed that the rest of the regulations will be looked at by the High Court- Family Division for a more thorough analysis and informed in- put into all the proposed regulations. On the regulations being proposed for legal guardianship and adoption especially inter-country adoption, Mr Bigirimana underlined that: 1. The Ministry responsible for children affairs has established a National Alternative Care Panel through its National Alternative care Framework which is in charge of clearing all Social Welfare Reports concerning Legal Guardianship, Adoption and Inter- Country Adoption. 2. The National Alternative care panel will be represented at District level by a District Alternative Care panel to which the Senior Probation Social welfare officer is a secretary. 3. The panel at district will first check if the placement of the child in any other form of alternative care was in the child’s best interest. 4. Depending on which form of placement is being approved by the panel in 3 above , the Probation Social Welfare Officer will write a social welfare report to court that bears the Panels opinion. 5. The courts shall not make any order to place a child in any form of alternative care without taking due consideration of the social welfare report endorsed by the District Panel. 6. If the recommended placement is inter- country adoption, the report shall be endorsed by the National Alternative Care Panel. 7. The Panels shall be guided by the National Alternative Care Frame Work and the children act CAP 59 (as amended). Mr Bigirimana proposed that the draft regulations will be distributed to the justices for their input before finalizing them. Judges raised some of their concerns, which included unnecessary ministerial order interventions, street kid mothers, the copy and paste western modules that restrain child disciplining with a rod, among others, were captured as recommendations. The JSI Executive Director explained that in the JSI training calendar there are captured juvenile and land justice related trainings. He called for support from all related partners towards their achievements.
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Session Chair: Justice Fredrick Egonda Ntende
SESSION EIGHT 13. Investing in the Rule of Law through Sustainable Resourcing of the Judiciary Presenters: The Principal Judge High Court, The Secretary to the Judiciary- Mr Kagole Kivumbi, Hon Minister Dr. Kisamba Mugerwa, Chairperson Uganda National Planning Authority.
13.1. Remarks by Hon. Dr. Yorokamu Bamwine
Hon. Dr. Yorokamu Bamwine, Principal Judge
The principal judge highlighted that under the Constitution of the Republic of Uganda, the Judiciary is enjoined to administer justice in the name of the people of Uganda. Judicial power is derived from the people who are therefore at the centre of all our operations. He suggested that therefore the Rule of law requires that: courts of law be both accessible and affordable, matters that come before the courts be heard without excessive delay, and means be provided for resolving, without prohibitive cost or inordinate delay, disputes which the parties themselves are unable to resolve. So the, rule of law presupposes that the legal process is fair and efficient, and that the Courts operate with independence and integrity. He underlined the importance of access to justice, without which the Rule of Law becomes nothing beyond a concept, legal rights cannot be exercised and legal obligations cannot be enforced, and public or private bodies cannot be challenged through the courts or individuals brought to account. The judicial mandate to deliver timely justice notwithstanding, there is massive backlog and workload of cases waiting to be disposed of in thousands of numbers. To avert this unsatisfactory this state of affairs, the Principal Judge proposed that: 1. More judges should be appointed whenever we see a rise in the backlog of cases. 2. Rules of procedure should be changed to empower the courts to be more pro-active in the management of cases. 3. Appointment of our bright law graduates to serve as research assistants to the Judiciary. 4. More Chief Magistrates and Magistrates Grade one should be appointed, their jurisdiction expanded, and pending cases transferred to them, such a chief magistrates’ pecuniary jurisdiction to reach Shs.500 million and to empower them hear the bulk of murder and robbery cases. 5. Adopt best practices (pro-people innovations) to improve performance and speed up judicial decision making and drastically increase the rate of case disposal. These include: plea bargaining since there are pending agreements but few Judges in place cannot be facilitated to complete the cases; mediation, despite its many good attributes of this innovation, and it being a mandatory requirement, we still rely on volunteers, after the Austria and DANIDA’s, pull-out. Then there is also the court room technology in the court rooms, without people to manage them on permanent and pensionable terms. So is also the Small Claims Procedure that can unlocking locked up incomes especially for the poor and vulnerable but cannot be rolled out to all courts due to lack of funding. The Principal Judge lamented that it is unfortunate, most of these measures are not budget neutral. And the Judiciary is expected to perform miracles with the less than 1% of the national budget allocation. He proposed the way forward as:
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1. The case for establishing the economic cost of delay in the judicial system Justice Bamwine referred to a study done by the London School of Economics on the consequences of a slow judiciary on contracting parties that shows that a slower judiciary could result in more breaches of contract and reduced access to credit. He also cited the World Bank’s “Doing Business” annual surveys that indicate a link between judicial efficiency and the competitiveness of the economy. In relation to the indicator to measure efficiency of contract enforcement, the World Bank measures it according to the time in calendar days the court takes to resolve a dispute. So, the longer the time it takes to enforce contracts, the less competitive the economy becomes. There is need to realise the potential of having timelines and benchmarks which are in line with international norms.
2. Accountability
Courts are accountable to the people for the public funds and resources provided to them to discharge functions. Reducing backlogs is therefore synonymous with judicial accountability. The waiting for a hearing date at all levels of courts should be measurable and monitored.
3. Improvement in the global perception
The Judiciary has had a 25% increment on the budget and this has enabled to ring fence funds budgeted for sessions. This measure has so far enabled High Court alone to complete close to 40 sessions out of 73 sessions planned for the financial year 2016/17. In comparison to other jurisdictions despite the less than 1% the Judiciary gets out of the National Budget, Uganda has risen in the index of judicial independence from 2.8 in 2014/15 to 3.41 in 2015/16. According to the Global Competitiveness Report of 2016, Uganda’s overall ranking has improved from position 128 out of 144 countries in 2014/15 to 91 in 2015/16. The World Bank Doing Business Report notes too an improvement in the Doing Business Index from position 135 in 2014/15 to 122 in 2015/16. This improvement in the global perception of Uganda means that our potential for excellent performance is unquestionable. He called for more investment in JLOS initiatives as a real game changer in as far as transforming the judiciary case management system is concerned. Justice Bamwine concluded that, for access to justice to be a reality in Uganda, there is need for the powers that be to re-orient national priorities so as to place the Judiciary where it truly belongs. The Judiciary’s continuous begging for more judges, magistrates, resources, and telling people at the same time, despite their trial delays, that judicial power is derived from them and that we exercise it on their behalf is a serious contradiction and untenable. The State (the people) should invest more in Rule of Law through meaningful and sustainable resourcing of the Judiciary.
13.2. Presentation by Hon. Minister Dr. Kisamba Mugerwa Dr. Mugerwa first identified the twelve crucial issues pertaining to the topic in his view that:
Dr. Wilberforce Kisamba- Mugerwa (PhD), Chairperson of the National Planning Authority
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1. Attaining a sound and independent Judiciary calls for sustainable funding. 2. Courts should be sustained through increased budgetary allocations from the Consolidated Fund. 3. It is important that in the administration of justice, the Judiciary appreciates its centric role in the performance of the economy. 4. There is need to consider that same portions of money generated at the source (by the Courts) should be retained for immediate investment in the Judiciary. 5. In this hi-tech era it is crucial that the Judiciary invests in ICT to promote efficiency. 6. There is need to appreciate that the Judiciary’s economic implications while addressing the issue of court awards. 7. There is need not to be lenient to tax evaders. 8. There is also need to expedite the execution of judgments in commercial cases to build confidence in
the economy. 9. There is need to be innovative in disposing off of labor disputes in the Industrial Court. 10. There is need to ensure that the Judiciary develops strategic partnerships with development partners so that a fully fledged unit is established to develop and oversee all required partnerships to generate grants. 11. There is need to explore Public private partnerships (PPPs) without compromising justice to capture Corporate Social Responsibility contributions. 12. It is high time that the Government together with the Judiciary operationalized the Local Council (LC) Courts with a view of reducing petty cases at magistrate level. After identifying the above topical issues, Dr. Kisamba Mugerwa made the deliberations below:
Introduction He argued that the paper is in response to a call by the Judicial Services institute to expound upon contribution of sustainable resourcing of the Judiciary towards attainment of the rule of law. The paper was itemized under introduction, background, notions of rule of law and strategies for sustainable resourcing which entails partnerships, ICT Skills, empowering Judiciary, sensitization of the public promoting strategic partners. The other items are framework for sustainable resourcing for the judiciary, justification for sustainable resourcing for the judiciary, bottlenecks to sustainable resourcing, and strategic interventions towards sustainable resourcing for the Judiciary.
Background He cites that the NRM Government is committed as envisaged in the NRM Manifesto 2016-2021 to improving access to justice by bringing justice nearer to the people. In its undertaking, the government intends to invest in technology to improve the efficiency of judicial officers and to increase funding to the Judiciary to expedite provision of justice services. The government further recognizes that under this system rule of law, all aspects of public life riding upon will of the people has been codified into Uganda’s Constitution of 1995. The Judiciary spelt out in Article 126 of the Constitution of Uganda is obliged to work to satisfaction of the people of Uganda: Judicial power is derived from the people and shall be exercised by courts established under this Constitution in the name of the people and in conformity with law and with the values, norms, and aspirations of the people. Therefore that the NDPII strategic focus envisages a Judiciary, Law and Order Sector (JLOS) that catalyzes improvement in the legal, policy and regulatory environment, promotes rights; and enhances access to JLOS Services especially for vulnerable persons. The Judiciary feeds into the development framework of Uganda because the judiciary is governed by ideal core values of independence and impartiality, transparency, professionalism, integrity, accountability, and Equality as well as respect. Kisamba further argues that the NDP II recognizes that assurance of justice to the public by the Judiciary has issues such as increasing case disposal from 42.7% to 60% by 2020. This requires increased resourcing of the Judiciary in terms of harnessing partnerships with development partners, reducing tax evasion by the Commercial court, increasing funding share from the Consolidated Fund, engaging in public private partnerships (PPPs) but with caution, realizing the Judiciary’s centric position in resolution of court cases.
Notion of Sustainable Resourcing Kisamba contends that ‘sustainable resourcing’ is about finding or providing materials, money or people needed for a particular project. Resourcing for Judiciary therefore, is a factor of many State Actors; notably, the Judicial Service Commission (JSC) which deals with Human Resource Management including recruitment and training, and Ministry for Finance, Planning and Economic Development (MoFPED) which provides the funding from which materials and other inputs are obtained. Human Resources are the most important assets of any organization. Raising efficacy of the Human Resources entails a variety of monetary and non-monetary interventions. The interventions to explore in improving performance of the Human Resources include recruitment planning, benchmarking, motivating, communication, performance reviews and performance management, as well as facilitation and remuneration.
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Framework for Sustainable Resourcing for the Judiciary in Uganda To Kisamba, the effort of sustainable resourcing for the Judiciary in Uganda derives from a range of instruments. Access to justice has been recognized as a linchpin of the sustainable development goals (SDGs) which define the post-2015 global development agenda. It is, as recognized in SDG 16, both an end and prerequisite for sustainable development as it is the means by which rights and development gains are enforced and protected. As a barrier to the access to justice, Uganda’s clogged court system has not only implications for the achievement of SDG 16 but can also undermine achievement of other sustainable development goals. Kisamba refers to the Second National Development Plan (NDPII) 2015/16-2019/20 that notes absence of effective Human Capital among major handicaps to Uganda’s Social and Economic Transformation (NDPII 2015/16-2019/20) that: There is urgent need for concerted and strategic investment in the Country’s Human Resource to turn into the much needed Human Capital to drive the planned growth and transformation. The Human Resource must be healthy, educated, properly skilled, well facilitated and remunerated. The Uganda Vision 2040 identified Human Capital Development as one of the fundamentals that needed to be strengthened to accelerate the Country’s transformation and harness the Demographic Dividend. GoU, NDPII (2015), p.125.Thus, Kisamba argues that the availability of appropriate and adequate Human Capital facilitates increase in production, productivity and technological growth, making Human Capital one of the Key Endogenous Drivers of economic growth. He commends that the Government of Uganda is constitutionally obliged to facilitate Judiciary owing to the critical role Judiciary plays in fostering human rights. He refers to the Constitution of Uganda under National Objectives and Directive Principles of State Policy V (i), which stipulates that: ‘[t]he State shall guarantee and respect Institutions charged with responsibility of protecting and promoting human rights by providing them with adequate resources to function effectively.’ He also refers to the Judiciary Strategic Investment Plan 2016/17 - 2019/20 that mandates Judiciary to explore different avenues, resourcing inclusive, towards promotion of the rule of law as well as development of the Judiciary Staff (Judiciary Strategic Plan 2016/17- 2019/20).
Dr. Kisamba Mugerwa recommends; 1. Harnessing Strategic Partners such as DANIDA The Judiciary has traditionally been a proud beneficiary of some insightful Development Partners such as DANINDA and others that helped in building of the Court Infrastructure around the Country. Such Partners need to be identified and sustained through abiding by Memoranda of Understanding signed. A unit ought to be put in place to identify the required areas for funding, develop technical concept notes/papers that meet the desired standards for funding by development partners.
2. Public Private Sector Partnerships
The Judiciary could explore the avenue of PPPs to overcome logistical limitations that it encounters. The NDPII lists PPPs among the strategic interventions through which the perennial handicap of limited resources may be navigated. The private sector could be engaged in corporate social responsibility programmes such as constructing court buildings. However such PPPs should be engaged in with caution so that justice to all parties is not compromised in favor of some parties.
3. Efficiency through Adoption and Use of ICT Skills
Efficiency in court operations can easily be achieved through use of ICT. ICT saves and ensures that a lot of work is done quickly and with reasonable effort. The world has gone hi-tech; e-governance is among the prominent reforms that Public Administrations are adopting universally to reduce the cost of offering services and doing business. As a facet of sustainable resourcing, the Judiciary ought to explore the concept of offering a range of its services on-line. For instance, developing a web-based platform through which litigants may file cases or fix dates for hearing cases could save all concerned time and money. Judicial officers should make of use ICT gadgets such as recording equipment so as to dispose of cases expeditiously.
4. Curbing Tax Evasions by Courts
Courts should endeavor to ensure that tax evaders are expeditiously brought to justice so that the Government saves money that is vital to funding judicial services provisions. Judges should ensure that cases involving tax evasion are handled with care so that 52 | The Ju di ci ar y
culprits or offenders are made to pay the evaded taxes together with penalties as quickly and in time. This will increase efficiency in administration of taxation in the country where resources for funding government services are obtained. The Judiciary should help government make money to finance its service provision.
5. Empower Judiciary to retain some funds it generates at Source
It is no secret that that Judiciary generates considerable revenue for the Treasury through fines that are meted out and money paid as bail. However, the practice apparently is that all such money goes to the treasury. If the law could be amended to the effect that some of the funds are retained and used at source, then the Judiciary would be more effective in its work.
6. Expeditious Resolution of Labor Cases
It is realizable that the Industrial Court promotes industrial harmony, social justice and dignified employment which in turn contribute to tackling inequality, reduction of poverty and stimulating economic growth. The Industrial Court has over unresolved 600 labor disputes. Therefore paying special attention to the methods of disposal of labor cases becomes paramount. A judge should be allowed and enabled to preside over labor disputes independently as opposed to the current practice of having the judges sit as a panel. This will increase the rate of resolving labor cases, save the Judiciary the scarce resources and release needed resources to the circulation.
7. Judicial Awards
It is well recognized that courts are awarding exorbitant awards to complainants/ plaintiffs in cases against the State. Currently over Ug. Shs 800 billion has been awarded to petitioners. Though it is fair that plaintiffs are awarded accordingly as their right to compensation, we need to know big awards drain the Government resource envelope of funds to finance service delivery in the same awarding courts. We ought to recognize that Uganda is a resource-constrained country. So judges and magistrates must exercise caution in awards given.
8. Boost Local Council Courts
The LC Courts are important elements of Uganda’s Justice System because they are sizeable in number and those at the grassroots such as LC I and LC II Courts do not represent any cost to government in their operations. These courts, if fully functional, could go a long way into decongesting the Magistrates Courts by handling many simple cases that end up there. These courts mostly require capacity building to understand procedural matters and learn the limits of their powers. Dr. Kisamba Mugerwa identified some bottlenecks to Sustainable Resourcing for the Judiciary in Uganda to include: a. b. c. d. e. f. g. h.
The big inform sector, Evasion of taxes, Slow Industrialization, Low exports, Weak enforcement capacity of legislations, Inadequate logistical support including underfunding, Human errors and corruption within the judiciary, and Establishment of preventive mechanisms rather than emplacing punitive measures.
Dr. Kisamba Mugerwa’s concluded that: While the judicial system in Uganda has undertaken laudable measures in administration of justice, more interventions need to be applied to reduce upon case backlog, reduce the time it takes to determine cases, and avail more personnel in the administration of justice. This should be done through increased resourcing of the Judiciary in a way that budgetary allocations to the Judiciary is increased, strategic partnerships with development partners are explored, judges taking caution in granting awards, expeditious resolution of labor cases by the Industrial Court, more funds retained where it is generated and judges helping the Government make more funds through expediting of court cases of tax evasions in the Commercial Court and improving efficiency through adoption and use of ICT by judicial officers.
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13.3 Presentation by the PS/ Secretary to the Judiciary (Mr. Kagole Kivumbi) Mr. Kagole noted that the subject of discussion on resourcing was very timely given the fact that Uganda had just concluded the preparation of Budget Framework Paper (BFP) for FY 2017/18, which forms a basis for resource projections and indicative expenditure allocations.
Mr. Kagole Expedito Kivumbi, Permanent Secretary/Sec. to the Judiciary
He argues that the courts of law, being custodians of law play a lead role in ensuring rule of law which guaranties peace, boosts investor confidence necessary for transformation of Uganda into a middle income country by 2020. Further, that the role of the Judiciary in attainment of the NDPII Objectives is premised on resolution of disputes through enhanced adjudication of cases in a judicious, impartial, expeditious and timely manner. Equally, the very existence of the rule of law provides every citizen with an expectation of fairness that potentially fuels his/her belief in lasting self-betterment through education, work, wealth and liberty that cannot unfairly be taken away. This is because a successful economy, depends on a trusted and effective legal system. Kagole contends therefore that the issue of resourcing and investment is pertinent to the survival of the Judiciary.
13.3.1 The Problem
Looking at the Judiciary by glance, Kagole argues that the major indictment against the Courts of Law in Uganda is the delay in or slow disposal of cases in the system that lead to increased case backlog and a workload that is not humanly possible. This scenario has bred corruption, erosion of public confidence in the justice system, negative image and the low investors’ confidence. This problem has persisted because the Judiciary faces a number of performance impediments that include among others; inadequate courts infrastructure (court houses and staff accommodation especially in hard to reach areas) with over 64% of the courts including the Supreme Court in rented premises. There is limited transport equipment for visiting locus in quo and for process service where only 13% of the Magistrates Grade I have official means of transport. The judicial processes are largely manual with limited use of information and communication technology at only 11% of the courts with second generation court recording and transcription facilities. Record keeping is manual without automation, and yet judicial work is premised on proper or reliable storage and retrieval of records. The growth in the critical judiciary’s human resource does not match Uganda’s population growth and yet there is increased litigation evidenced by the case filing rates. Notwithstanding, the public is not knowledgeable on the basic court procedures which requires more public engagement by the judiciary. These gaps do not foster economic growth for a country with a target of being in the middle income bracket 2020.
13.3.2 The Current Judiciary Resourcing
Kagole argues that while there has been an increased level of funding to the Judiciary, its share of the National Budget has been reducing over time. The Situation has not been helped by the recent 10 percent cut on vital areas such as travel inland, which caters for visits to locus in quo, and books and periodicals that cater for purchase of legal reference materials, among others. He indicates the summary of funding to the Judiciary over the last five years as below:
Table 7: The Summary of Funding to the Judiciary over the last five years S/No
Item
Approved resources (Ushs. Bn.) 2013/14
2014/15
2015/16
2016/17
2017/18
1
Wage
24.51
24.51
25.88
27.178
27.18
2
Non- wage
49.77
49.77
60.73
83.423
78.466
3
Development
10.213
8.78
6.71
5.949
4.07
4
Total - for Judiciary
84.493
83.06
93.32
116.55
109.716
5
National resource
10,785.34
12,205.4
18,311.37
20,430.61
21,319.62
6
% of Judiciary share
0.783
0.681
0.510
0.446
0.515
Source: Kagole Kivumbi Report to 19th Judges Conference 2017. 54 | The Ju di ci ar y
Kagole underlines the attained Resourcing Milestones by the Judiciary as: 1. 53.7% of the population could access a court within less than a 5km radius of their residence while 95% can access court within 20 Kms. 2. There has been a general increase in human resource across the board. 3. 69 % of the criminal cases in the appellate courts were disposed of within the timeline of 6 months. 4. 77 % of civil cases filed with the appellate courts disposed of with the one year timeline. 5. The judiciary has rolled out Small Claims Procedure courts to 26 Chief Magisterial areas and Plea Bargaining to 40 prisons. 6. A model family and children court was opened at Makindye. 7. The Judiciary now currently has 80 owned buildings out of 212 Courts. 8. 13% of the Magistrates Grade Ones have official transport for administering land Justice 9. Mediation has been adopted for all matters except in criminal matters, despite the limited infrastructure, where only 5% of the cases are adequately covered.
13.3.3 Roadmap for Future Resourcing and Funding of the Judiciary
Kagole reports that the Judiciary has developed a Strategic Plan in line with the second National Development Plan (NDP II), Vision 2040 and the other national and international policy frameworks. This will guide in navigating bottlenecks as highlighted earlier so as to propel Uganda to a Middle Income Status by 2020. The estimated cost of the plan is UGX.948.89 billion shillings over the four year period as indicated below:
Table 8. Summary of annual SIP funding per output over the Medium Term S/No
Outputs
2016/17 (UGX. Bn)
2017/18 (UGX. Bn)
2018/19 (UGX.Bn)
2019/20 (UGX. Bn)
Total (UGX. Bn)
1
Judicial Infrastructure developed and rehabilitated
58.6
58.6
58.38
58.41
233.99
2
Judiciary business processes and use of ICT enhanced
101.05
104.25
104.45
104.65
414.4
3
Legal and Regulatory framework processes for the Judiciary strengthened
0.25
2.28
3.03
3.78
9.34
4
Institutional and human resource capacity of the Judiciary Enhanced
68.89
74.83
74.08
74.33
292.11
Total
228.79
239.96
239.94
241.17
949.84
Source: Kagole Kivumbi Report to 19th Judges Conference 2017.
Table 9. Overall secured and non-secured financing for the plan by source Classification
2016/17
2017/18
2018/19
2019/20
Total
Total Donor
196
Total MTEF
Wage Recurrent (planned) o/w GoU MTEF o/w Donor o/w gap Non-wage Recurrent (planned)
49
49
49
49
27.178 0 21.822 105.34
27.178 0 21.822 116.51
28.537 0 20.463 116.71
29.964 0 19.036 117.91
0 83.143 456.47
112.857
0 0 0 0
o/w GoU MTEF o/w Donor o/w gap
83.423 0 21.917
78.471 0 38.039
86.318 0 30.392
94.95 0 22.96
0 113.308
343.162
0 0 0
Classification Wage Recurrent (planned) o/w GoU MTEF o/w Donor o/w gap Non-wage Recurrent (planned) o/w GoU MTEF o/w Donor o/w gap
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Classification
2016/17
2017/18
2018/19
2019/20
Total
Total Recurrent Development (planned) o/w GoU MTEF o/w Donor o/w gap Total Developm’t Overall Total
154.34 74.45
165.51 74.45
165.71 74.26
166.91 74.26
652.47 297.42
Total MTEF
5.949 0 68.501 74.45 228.79
4.07 0 70.38 74.45 239.96
4.68 0 69.58 74.26 239.97
5.616 0 68.644 74.26 241.17
20.315 0 277.105 297.42 949.89
20.315 476.334
Total Donor
Classification Total Recurrent Development (planned) o/w GoU MTEF o/w Donor o/w gap
0
Overall Total
Source: Kagole Kivumbi Report to 19th Judges Conference 2017.
Conclusion Kagole concludes that the principle that the legislature makes the laws, the executive carries them into effect and the courts interpret them and resolve disputes relating to them, provides an important check and balance between different and powerful institutions in any society. So, if Judiciary is well resourced, domestic and international investors can be confident that the rule of law will be applied impartially in disputes however powerful the other party may be and whether or not the government is part of the dispute. The judiciary in today’s world is a critical part of the economic and social infrastructure. The need for sustainable investment and funding to the Judiciary is therefore not only equitable but a key pillar in Uganda’s quest for a middle income status, yet, the current level of resourcing to the Judiciary threatens the very gist of the National Development Plan II. Kagole recommends that: 1. 2. 3. 4. 5. 6.
The strategic investment plan for the Judiciary be fully funded. The Judiciary’s share of the National Budget be reviewed for parity with the other arms of Government. The Judiciary Administration Bill is expeditiously passed. The current legal regime be reviewed to quicken the process of case disposal. There should be more stake holder engagements to improve the image of the Judiciary. Alternative sources of funding the Judiciary be sought.
13.4 Plenary Discussion The Hon. the Chief Justice observed that the Judiciary should do what it has to do with what it has been provided with as a starting point. For instance, judicial officers do not need money to finish writing their judgments on time. However, he noted that not duly funding the courts leads to a trickle down negative effect to the court users such as the prisoner in cells and incarceration without trials for lack of funds for criminal trial sessions, There is need for the conceptualization of the judiciary’s financial pleas from a wider perspective beyond commercial justice. In order to delve into the land and family justice and related matters that impact on the livelihoods of the ordinary people. The Hon. Minister of planning observed that there is also need for collective action for all the arms of government to emphasize infrastructure, human resource, but mostly how to improve within the resources that are granted to us. The Principle Judge observed that ‘okutegura’ or service of the people should be done fully not just in bits. Judiciary needs to rethink its approach tactfully as to get the right responses from the right people, or offices.
56 | The Ju di ci ar y
Session Chair: Hon. Justice Richard Buteera
SESSION NINE 14.0 Strengthening Partnerships between the Judiciary and the Media to Enhance Access to Justice for All Panelists: Dr. Peter Mwesigye, ED - African Center for Media Excellence, and Robert Kabushenga, CEO - Vision Group
14.1 Robert Kabushenga’s Views Mr. Kabushenga emphasized that judicial officers should be cautious in all they do given the boom of the social media. They should also avoid washing their dirty linen or fights to the media house, since to the media this makes good news, yet it is quite embarrassing to the judiciary.
Mr. Robert Kabushenga, CEO, Vision Group
He emphasized too the need fo r journalist trainings and recommended that a training tailored curriculum should be developed , particularly for the reporters attached to the courts, and their training programs be part of the Judiciary Training calendar. He offered to fund some of these training activities.
14.2 Dr. Peter Mwesigye’s Views Dr. Peter Mwesigye focused on “harnessing access to justice by way of exploring the media and ICT channels available,” with particular emphasis on responsible reporting and accessibility of information online, and the media demystifying the court processes to enhance the rule of law.
Dr. Peter Mwesigye, Executive Director, African Centre for Media Excellence (ACME)
He explained that the African Centre for Media Excellence (ACME), which he co-founded about eight years ago, is a non-profit media support organization that strategically occupies the space between the media indu stry and academic institutions that train journalists. This Centre is committed to excellence in journalism and mass communication in Africa, starting at home in Uganda. Its main goal is to make the media a more effective platform for the provision of information on public affairs, a tool for monitoring official power, and a forum for vibrant public debate. It’s work revolves around: mid-career training for journalists; media relations training and communication support (for benefit of civil society organizations, businesses, government entities);media literacy training for the youth; media monitoring and research; excellence awards and grants; convening of public dialogues, workshops and symposia; running an active online operation (website, online resource centre, social media) to share information and debate media performance; and freedom of expression advocacy. ACME is driven by the conviction that the media have a critical role to play in fostering accountability and transparency in national affairs as well as active citizenship. Media can be an effective channel for the voice of the people in demanding accountability from agencies whose decisions affect their lives, the government, civil society and the private sector. Mwesigye argues that a more informed and engaged citizenry is more likely to demand transparency and to hold those in positions of power accountable. The expression “responsible reporting” in many parts of the world has been used to emasculate the critical and bold journalism that democracy demands of the media. So the expressions “quality journalism” or “good journalism” are desirable.
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Mwesigye further argues that good journalism, imbued with public interest values, provides information that is significant and relevant. It offers context and perspective, explains issues and helps to educate and enlighten audiences, offers analysis and depth, provides a civic forum that both informs and engages, drives public debate on the issues of the day, including rarely discussed subjects that affect people’s lives, asks the right questions and provides a forum through which they can be answered; it is credible and authoritative, upholds the value of diversity, is truthful and accurate, is fair and impartial, is independent (from vested interests, be they political or commercial), is enterprising, and is interesting. Mwesigye contends that at any rate, it is very important for us to remember even as we champion excellence in journalism that for the most part “irresponsible reporting” or “poor journalism” is also part of protected speech. In that regard, the Supreme Court Justice Joseph Mulenga (RIP), 2004 decision on the Penal Code provision on “false news” is memorable. Particularly, that the right to freedom of expression extends to holding, receiving and imparting all forms of opinions, ideas and information. It is not confined to categories, such as correct opinions, sound ideas or truthful information. Subject to the limitation under Article 43, a person’s expression or statement is not precluded from the constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or unpleasant. Everyone is free to express his or her views. Indeed, the protection is most relevant and required where a person’s views are opposed or objected to by society or any part thereof, as “false” or “wrong”. Mwesigye further contends that one cannot talk about access to justice without talking about access to information, another fundamental right guaranteed by our Constitution. The media, especially social media, plays a key role in promoting both the right to freedom of expression as well as access to information. It plays the key roles below as: 1. 2. 3. 4. 5. 6. 7. 8. 9.
Providing information; Facilitating public dialogue and debate; Monitoring the use and abuse of power; Serving as guardians of political norms/values and agents of political socialization; Building and setting the public agenda; Gauging and reflecting public opinion; Mobilizing citizens to participation and action; Facilitating citizen feedback to the political system; Providing a platform for self-expression.
ACME realized that one of the biggest challenges that stood in the way of journalistic excellence in Uganda was journalists’ lack of sufficient knowledge of the institutions and issues they covered. The more complex a sector, the harder it is for news coverage to make sense of what is going on. He cites Thomas Patterson that “the surest way to improve the accuracy of news” and “heighten its contribution to the public understanding of public affairs” is “for journalists to make fuller use of knowledge”. Indeed, knowledge is a key to strengthening story context. “For almost any development of even modest complexity, journalists cannot be counted upon to construct ‘a comprehensive and intelligent account’ unless they are knowledgeable of the underlying factors.” Mwesigye proposes that Judiciary explores the possibility of more partnerships with media support organizations such as ACME, and in some cases direct partnerships with media houses, to pass on knowledge about the judiciary and the whole justice law and order sector. He suggests that the Judicial Studies Institute is well positioned to take a lead on this. Possibilities include: short courses for practicing journalists, facilitating the employment of judicial officers as guest lectures at newsroom and offsite training workshops for journalists, and publication of easy-to-use handbooks that demystify court processes. For while many good journalists will seek knowledge on their own, experience has taught us that a good number need to be pushed by friendly forces. Mwesigye relates to knowledge with access to data arguing that the judiciary, like other government branches, has invested lots of resources in acquiring data on access to justice, as evidenced by the recent National Court Case Census. However, he critiques that the data generated from such exercises very often suffer a short and obscure shelf life. Once condensed into research reports the data are easily forgotten, yet the media could use the information more routinely to continue the conversation on service delivery (or access to justice in the case of the judiciary) and accountability. Through partnerships with media support organizations or with credible media houses, Mwesiggye contends that the judiciary can share the raw data (datasets) from some of this major research so that journalists can use it (analyze it independently) to produce more in-depth and analytical stories at all levels without necessarily doing expensive primary research themselves. This emerging journalistic genre has come to be called data journalism.Mwesigye elucidates that sharing the raw data 58 | The Ju di ci ar y
with the journalists makes it much easier for the media to report good news (e.g. positive outcomes from a judicial intervention such as plea bargaining) if journalists were involved in the analysis that established the good results. Yet, on the other hand, if the judiciary decides to do its own analysis and simply share a final report with journalists, they could easily dismiss it as PR (Public Relations) or self-promotion. Mwesigye proposes that data collection need not be a major one-off activity every year. Lots of data can be collected and entered on appropriate systems in real time. He gives as example, at the adjournment or close of every court case every day a relevant judicial officer could be required to enter whatever decision was reached, reason for adjournment, among others. Mwesigye argues that if this happened in every court, one would not have to wait for the National Court Case Census report to establish, the main causes of adjournment of court cases. He recommends therefore that the Judicial Information Management System should be exploited more, as to be in position to answer basic and interesting questions. Questions, like what courts’ divisions perform best in timely completion of cases? On average, how many cases do they complete a year? What offence categories attract the highest number of cases? On average, how long does it take to complete cases under these different offences? Which judges appear to be doing a decent job disposing off cases? So, more independent analysis of the raw data by the media and civil society would help the Judiciary in the administration of justice by, among other things, shining the torchlight on lines of inquiry that could easily have been ignored. On harnessing ICT channels available, Mwesigye recommends that the Judiciary should fully exploit the opportunities offered by social media such as Twitter, Facebook and YouTube as well as the now more traditional platforms such as websites and portals for instance like trending a hashtag related to this 19th Annual Judges Conference on Twitter on Friday when the conference was opened. This is because many Ugandans who don’t read newspapers or listen to public affairs programming on radio are getting their news from these social media platforms to access information. The Judiciary website needs improvement to help journalists and citizens access information, and for the latter, ultimately justice. In today’s ICT age, as much information as possible should be available on a mouse click. Mwesigye suggests the Judiciary ICT way forward as below: 1. Cause Lists should be exhaustive listing all the judges and the cases. 2. FAQs should be populated to demystify court processes. 3. Judgments should be uploaded in a timely manner. Major judgments ought to be accompanied with Press summaries as it is done in other jurisdictions, “provided to assist in understanding the Court’s decision” especially to ordinary people and the journalists. 4. Graphs on Court performance needs to be enhanced since the information provided under each year that currently includes, cases brought forward, cases registered, cases completed, and cases pending is not sufficient to help a citizen make sense of it. The way it is presented is not very meaningful, as one cannot easily figure out whether there is progress, stagnation, or retrogression. Mwesigye shares out that what lies inside the mind of a journalist, despite other people’s interest is that in deciding what to cover, journalists usually look out for new developments and/or change. Unlike courts that rely on evidence, journalists are trained and socialized to evaluate newsworthiness based on factors that are sometimes called news values. These include: 1. Impact or consequence: Is the event or issue likely to have a major impact on a great number in the community or country? 2. Relevance: This is in some ways related to consequence, but has more to do with significance. The key question that journalists will (or should) ask is “so what?” So what if you have completed a census of court cases? Why should the media care? Why should the public care? How does the topic concern or touch them? 3. Proximity: Does the event relate to a development that is close to the audience geographically? Additionally, or alternatively, is it about people that the audience can identify with in some way? Issues that are closer to the community’s concerns or issues that the community is grappling with are more likely to attract coverage than those that appear peripheral or distant. 4. Prominence: Does the event or issue revolve around well-known personalities or groups? Prominent people or those who work with well-known and organizations are more likely to attract coverage than “lesser souls.” 5. Conflict: Does the event or issue involve controversy? Does it pit one or more sides against another or others? Is it likely to generate heated arguments for and against? 6. Timeliness: Is the event or issue recent? 7. The Unusual/bizarre: Does the event or issue involve something bizarre or out-of-the- ordinary? Does it involve a disruption to the norm? Oddities such as the now hackneyed example of a man biting a dog attract media coverage. 8. Drama: Does the event or issue contain elements of excitement, spectacle or crisis? 9. Human Interest: Does the event or issue have elements that will touch people’s emotions?
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Therefore, judicial officers, especially those involved in projects and outreach, need to appreciate these values and learn how to make pitches for stories about the Judiciary or JLOS that the media should cover. Mwesigye concludes that there is a widespread feeling among journalists, especially upcountry, that judicial officers are hostile to them. Some judges throw out journalists from courtrooms without bothering to explain their decisions. Sometimes this hostility appears to be informed by the lack of trust in the ability of local reporters to cover issues accurately. In a few other cases, however, the hostility and resulting darkness that it generates is calculated to benefit certain parties involved in cases. Either way, he pleaded that judicial officers should treat journalists with respect, regardless of the media’s shortcomings. They should rather take advantage of these shortcomings to educate journalists, as a preliminary dissemination role.
14.3 Plenary (Questions and Answers) Does not the journalist or press bodies have a legal department to avoid misrepresented reporting especially as to the mix of cadres, for instance calling judges as magistrates, and the inverse? Why in your view do the upcountry magistrates shun journalists? Who are these freelance journalists and do they have the requisite aptitude for them to correctly report, since they flood courts especially in the ‘high profile’ or ‘sensitive’ cases, and make misrepresentations on the wide media forum? There is a need for a balance to ensure that even the freelancers or media bodies also have a right to access of information like the rest of the court users, and even to share this information. Why does journalism exaggerate the negatives rather than the positives of the judicial works? Is judiciary a face of roundels? It is not true that the media only reports the negatives but also reports the positives too, like in the case that involved Justice Keitirima. However, the media have their weaknesses and inadequacies too. However, it is human nature that negatives make more news/ events and carry much value. Nevertheless the responsible media ought to draw a balance. Judges should be handled by their seniors in disputes where they are involved. Appellate Judges must be scrutinized by regional judges. Even where judges file defamation cases. The justices unanimously noted that all judicial officers took the oath and postulated to uphold the law. Even Judges are as human and demanded justice where they are offended. The Judges implored that let a list be generated of the unlisted/un-causelisted matters that concern judges impropriety as to have their trials fast tracked. Further, it was underlined that jurisdiction is a creature of the statute, and this ought to be appreciated by the press/ media houses. Why should journalists forecast decisions? Why should cases be discussed before their actual trial defying the sub judice rule and biasing the public against the basic facts and the law? True the vice exists, where even some reporters in a bid to save transport, do not attend court but get second hand versions from their colleagues, clerks, etcetera. Even the training faculties are expanse and give out various products. Has the social media overtaken the role of the traditional media houses? Can there be policy guidelines to regulate the media conduct during the real timing recording of court proceedings? Internally there should be guidelines so that all parties know their roles. Is it not dangerous for the Judiciary to partner with the media, or is it an issue of identifying the actual roles of each other? While there is freedom of expression especially for the journalism, do not the journalists have a code of ethics that guarantees un false reporting? Do journalists have categories? The media has a disciplinary council that regulates responsible media/reporting. 6 0 | The Ju di ci ar y
Session Chair: Lady Justice Dr. Esther Kisaakye Kitimbo
SESSION TEN 15.0 Recommendations and Resolutions of the 19th Annual Judges Conference Rapporteur: Dr. Nakibuule Gladys Kisekka
The Chair person congratulated the Judicial Training Committee’s efforts to tirelessly coordinate the conference. She asked them to stand up for recognition. She thanked in the special way the ED JSI’s tireless conduct of business and the team of the JSI members. The Rapporteuring team was reported to have come up with the recommendations and resolutions. The lead Rapporteur was called upon to present the recommendations and resolutions.
Recommendations No.
Action
Responsible Center/ Person/ Office
Resolutions 1
The Chief Justice should follow up on the President’s undertaking to convene a meeting between the three arms of Government over the budgetary processes and how to apportion the available resources, taking into account national priorities.
The Chief Justice
2
Chapter 8 of the Ugandan Constitution should be fully operationalized to ensure proper administration of justice and guarantee the rule of law.
The Chief Justice MOJ Parliament
3
The Law of Judicial Review should be amended to stop the individual subversion of MOJ the trial courts hearings. Parliament
4
The Law should be amended to review the right of appeals against interlocutory rulings.
MOJ Parliament
5
The Judiciary should have adequate and sustainable Funding to maintain its independence as a guarantor of the rule of law.
Judiciary Administration Parliament MOF
6
The Government should provide adequate funding for the Judiciary’s ICT and infrastructure needs.
Judiciary Administration Parliament MOF
7
The Government should increase the Budgetary share of the Judiciary to be commensurate with the Judiciary mandate and the available national resources.
Judiciary Administration Parliament MOF
8
The Judiciary must continuously lobby the Minister of Justice to table the Administration of Justice Bill to further entrench the rule of law.
Judiciary Administration MOJ
9
The Judiciary’s Administration should follow up with the Executive on salary increments for the judiciary for all cadres, to strengthen the institutional capacity of the Judiciary to guarantee the law.
Judiciary Administration MOJ Parliament
10
The Judiciary’s Administration should follow up on the state’s provision of a Health Club for the Judiciary.
Judiciary Administration MOJ
11
Judiciary should train all JLOS agencies (including the army and the police) on the principles of the rule of law and democratic governance, and the role of the Judiciary through on job trainings, and reference handbooks.
JSI
w w w .j ud i c i a r y .g o .ug | 61
No.
Action
Responsible Center/ Person/ Office
12
Corruption in the Judiciary at all levels must be fought. All alleged corruption cases by Judicial officers must be reported to the appropriate authority for proper investigation and action.
All Judges All Public
13
The Uganda Judiciary should adopt the best practice in Guyana and ensure that the cases that constitute case backlog are redistributed among the judges to clean the system.
All Judges
14
Judicial Officers at all levels must exhibit high levels of integrity.
Judiciary
15
Judges should use Judicial interventions to cure state dysfunctions, and protect the All Judges minorities’ rights, as a bedrock for the Rule of law in Uganda.
16
Judiciary should demystify court processes by embracing innovations such as ADR, subsidize or reduce court fees to improve access justice, and foster economic growth.
Key Note Address: The Role of the Judiciary as the Guarantor of the Rule of Law in the Contemporary World 17
Judges as guarantors of the rule of law should develop relevant jurisprudence of interpreting the Constitution without descending into the arena.
All Judges
18
Courts of law must work in cognizance of the powers of the other arms of Government, each arm respecting each other in order to foster the rule of law.
All Judges
19
Judges must be accountable for their decisions, lead exemplary private lives and must refrain from populism, corruption, and decisions that can lead to disrespect of the law, in order to uphold of the rule of law.
All Judges
Panel Presentation on the Performance of the Higher Courts 20
The Judiciary should ring fence session funds.
Chief Justice
21
The Judiciary should consider to institutionalize plea bargaining.
Chief Justice
22
The Judiciary should review the session system.
Chief Justice
23
All Judicial officers should improve their case management and utilize available resources optimally.
All Courts
24
The Judiciary’s established court committees should be fully operationalized.
Parliament Chief Justice
25
The number of Constitutional court’s justices should be raised to 21, and the High Court and other lower court levels commensurate to the new approved Judiciary Court Structure, to enable judiciary exercise its full mandate.
Chief Justice MOJ
26
The Court of Appeal/ Constitutional Court should hold more in-house and upcountry sessions, and roll out the appellate mediation.
-Deputy Chief Justice -Chief Justice -PS Judiciary
27
The Chief Registrar should expedite the tracing of the missing High Court records by Registrars to enable pending appeals to be disposed.
Chief Registrar
28
All Court Registrars at all court levels should take charge of their registry affairs including archives and file tracking inter-registry file movement books, and session reports, which they must always tally with actual files’ return.
Chief Registrar
29
All Judges who carried files with them after sessions should return them to the registries for accountability and records tallying.
The Principal Judge
30
The Judiciary should improve on its monitoring and evaluation system of the records and archives systems.
Chief Justice
31
All Judges should expeditiously complete the cases in the system to address case backlog.
Chief Justice The Principal Judge
The Role of an Independent Judiciary in Emerging Democracies: Presented by Justice Carl Singh
6 2 | The Ju di ci ar y
No.
Action
Responsible Center/ Person/ Office
32
Judges should give reasons for their decisions in order to account to the public. However, beyond their judgments, they should not explain their decisions they have made under their legitimate judicial function.
All Judges
Enhancing Cooperate Governance among the three Arms of Government to Foster the Rule of Law and National Development 33
In order to realize corporate governance, the Judiciary should consider a more activist approach, such as withdraw of services, when the Executive (as Management) gets astray beyond the ordinary terms of the charter (the Constitution).
Chief Justice
34
Judiciary must exercise their judicial duties in the interest of the people within the law in order to be accountable to them.
All Judges
35
Courts should be more liberal to and accept the ‘friends of the court’- (particularly, All Judges the legal fraternity, and the academia), since the issues they raise affect the determination of the constitutional rights of the society.
36
Judiciary should not be deviated from exercising justice because of the public opinion and criticism, but it should balance the people’s views within the law in accountability to them, sensitive of the decisions’ impact to the public domain.
All Judges
Combating Real and Perceived Corruption in the Ugandan Judiciary 37
Judiciary should critically study the Judicial Integrity Initiative of the IBA report, among other reports on real and perceived corruption in the Judiciary to identify areas and strategies for reform.
JSI Research
38
The Judiciary should condemn and not tolerate corruption at any detectable level and judicial officers should consciously deter from corruption of whatever form.
Chief Justice All Judges
39
Where there are more than one judge in a court, or where the statutorily hearings are by way of panel sitting, cases should be handled entirely by chance and not by design through a random allocation system.
Chief Justice
40
The public should be sensitized out of the perception that justice is for sale.
Inspectorate
41
Judicial Officers should endeavor to write well-reasoned judgments to minimize perceptions of corruption.
All Judges
42
Judiciary should examine its processes to enhance transparency and minimize perceptions of corruption.
Chief Justice
43
The solutions to the perceived and real corruption in the Judiciary can be devised by the Judiciary itself, in synergy with all justice delivery actors, the CSOs, and the public through a holistic approach. In that regard, Judiciary should consider: • streamlining its methods of work, • the bar-bench campaigns, issuance of practice directions to limit the judicial discretion, • in-house cleaning to cause the eradication of proven corrupt officials, • strengthening the Inspectorate, more court open days to demystify the court processes and enlist feedback, • stopping the High Court trials by sessions and • establishment of customer care desks.
Chief Justice
44
Judiciary should put in place some mechanism for expeditious refund of bail money.
Chief Justice
45
The Judiciary should revamp/ reconstitute Peer committees to help fight corruption in the Judiciary.
Chief Justice
46
Judiciary should not just transfer errant judicial officers as is the norm, but should subject them to disciplinary mechanisms in order to check against recycling vices in the system. Factual court case returns for tried officers should also be shared with the Disciplinary Bodies charged with the duty.
Chief Justice Principal Judge Chief Registrar
w w w .j ud i c i a r y .g o .ug | 63
No.
Action
Responsible Center/ Person/ Office
47
There should be regular transfers of court clerks in all courts without fear or favor, to address overstay in stations and the persistent godfather syndrome in the Judiciary.
Commissioner Human Resource
48
Judiciary should report the corrupt lawyers to the Uganda Law Council to institute disciplinary proceedings against them.
All Judges Chief Registrar
Enhancing the Rule of Law through Land and Family Justice for All 49
The Judiciary should develop a Training Curriculum on Children Justice, and include the trainings in the annual JSI Calendars.
JSI(in conjunction with Stake holders)
50
The Judiciary working with the Ministry of Gender, Labor and Social Development, and other stakeholders, should resource for the immediate and continuous trainings for Children Justice for all Judicial Officers and other related JLOS officers.
PS Judiciary PS MGLSD JLOS
51
The Judiciary should develop a Training Curriculum on Land and Family Justice, and JSI(in conjunction with include the trainings in the annual JSI Calendars. Stake holders)
52
The Judiciary working with the Ministry of Lands, the Administrator Generals’ Office other stakeholders, should resource for the immediate and continuous trainings for Land and Family Justice for all Judicial Officers and other related JLOS officers.
PS Judiciary PS MGLSD PS Ministry of Lands JLOS
Investing in the Rule of Law through sustainable Resourcing of the Judiciary 53
The Judiciary should develop strategic Partnerships with Development Partners to generate funds.
Chief Justice PS Judiciary JSI
54
The Judiciary should explore the private/public partnerships without prejudicing their independence.
Chief Justice PS Judiciary
55
The Judiciary should have a proper accounting system.
PS Judiciary
56
The Government should review all laws providing for fees and fines with a view to revising them upwards to make them realistic and meaningful.
Chief Justice MOJ
57
The Judiciary should propose an amendment of the Law to enable it to retain such income internally generated which should be ploughed back into judicial work.
Chief Justice PS Judiciary
Strengthening Partnerships between the Judiciary and the Media to Enhance Access to Justice For All 58
The Media should responsibly exercise their freedom by true reporting of court proceedings.
Chief Justice Minister of Information
59
The Judiciary through its Judicial Training Institute should develop a training curriculum for the media court reporters and include their trainings in the JSI Calendar.
PS Judiciary JSI
60
The Judicial Studies Institute should forge Partnership with the media houses to fund their trainings.
PS Judiciary JSI
In the interest of time the recommendations and resolutions were disseminated to all the judges and justices for their final input. They were finally considered approved after a month of their dissemination. The Hon the Chief Justice formally closed the conference, and invited the participants to the commemoration of the new law year, the following day.
6 4 | The Ju di ci ar y
w w w .j ud i c i a r y .g o .ug | A
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