UJOA J o u r n a l
Uganda Judicial Officers’ Association November 2016
CHART OF UJOA EXECUTIVE MEMBERS 2016
HW KAWEESA GODFREY, PRESIDENT
HW AJIO HELLEN, VICE PRESIDENT
HW KABUGHO CAROL, TREASURER
HW KAITESI KISAKYE MARY, EDITOR
HW AKULLO ELIZABETH OGWAL, GENERAL SECRETARY
HW EDITH MARY MBABAZI, ASSISTANT TREASURER
HW NABENDE MOSES MUSHEBEBE, ASSISTANT EDITOR
HW NATUKUNDA JANEVA, ASSISTANT GENERAL SECRETARY
REPRESENTATIVES
Hon. Lady Justice Stella ArachAmoko, SUPREME COURT
Hon. Lady Justice Catherine Bamugemereire, COURT OF APPEAL
Hon. Lady Justice Jane Kiggundu, HIGH COURT
HW Acio Julia REGISTRARS
HW Munobe Samuel, CHIEF MAGISTRATES
HW Ocen Simon, MAGISTRATE GRADE ONE
HW Othieno Christopher, MAGISTRATE GRADE II
Editorial
EDITORIAL NOTE
Your Lordships, Your Worships and distinguished members, I welcome you to this 22nd Edition of UJOA Annual Journal. The Uganda Judicial Officers Association (UJOA) journal is intended to focus on the contemporary national and international affairs affecting administration of justice in Uganda. I would like to thank all Judicial Officers who sacrificed time to submit articles that have enriched this journal. I also thank in a special way the UJOA Executive members and most especially the editorial team for their devotion to editing the articles and ensure the journal is published. The theme for this year is “Promoting the Rule of Law in Uganda through Judicial Accountability and Excellence” thus the articles in this journal are in line with the said theme. The articles contained herein are from distinguished judicial officers holding various positions in Judiciary. Much Obliged. Her Worship Mary Kisakye Kaitesi CHIEF EDITOR
In this Issue... 2 | Opening of the New Law Year, 2016 9 | UJOA President’s speech at the opening of the 2016 New Law Year 13 | Assessment of Mid-term Review of Reforms in the Uganda Judiciary and the way forward 15 |Adressing Financial Stress in the Judiciary to Enhance Performance 17 | The Law and Practice on Execution Procedures in Uganda 20 | Life sentences in the aftermath of Susan Kigula
Special Contributors Solomon Muyita, Senior Communications Officer, Judiciary Sheila Wamboga, Communications Officer, Judiciary Deo Akugizibwe, Judiciary Photographer Peter Mugeni, Design/Layout
22 | Holding Child Soldiers Accountable For War Crimes And Crimes Against Humanity 24 | A case for the lower bench in Uganda 27 | Supreme Court recommends 10 reforms in Presidential Polls
Uganda Judiciary Officer’s Association P.O. Box 9357, Kampala-uganda Mob: +256 782 753 389 | Tel: +256 486 660 451 Email. ujoa@yahoo.com
UJOA JOURNAL | November, 2016
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New Law Year
New Law Year 2016:
Chief Justices’ promises The beginning of the New Year marks the end of the previous legal year and signals the beginning of another year for the wheels of justice to continue on their relentless journey of dispensing justice in fulfillment of the mission of the Judiciary, which is: to be an independent, competent, trusted and accountable Judiciary that administers justice to all.
Justice Bart M Katureebe, The Hon The Chief Justice Of Uganda.
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t is therefore with great joy that I join the previous speakers in wishing you a happy new year. It is my sincere wish that 2016 will be a great year for all of us in our personal and professional lives. For the courts, I hope it will be a year in which we shall see the fading back of case backlog. This Law Year is a special year for me because it is my first, since being appointed as Chief Justice of Uganda. I would like to use this occasion to assure the people of Uganda that I shall work with you to improve
administration of justice in Uganda through: ■■ Strengthening integrity in the Judiciary; ■■ Developing new products of justice to broaden and deepen access to justice especially for the vulnerable Institutionalizing a culture of performance and accountability amongst Judicial Officers; ■■ Improving the remuneration and working conditions of Judiciary staff ; ■■ Promoting public engagement in the administration of justice; and, ■■ Improving relations between the
A cross-section of judges at the opening of the New Law Year at the High Court in Kampala.
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UJOA JOURNAL | November, 2016
New Law Year organs of the State while protecting the independence of the Judiciary. I shall count on your support and team work to transform the Judiciary. Last year was a remarkable year for the Judiciary in many respects. The Judiciary scored several milestones. First, H.E The President appointed a Chief Justice and Deputy Chief Justice after more than eighteen months of waiting. Secondly, H.E the President appointed six Justices of the Supreme Court and six Justices of the Court of Appeal. I hope that H.E will soon appoint the remaining 2 Justices of the Supreme Court, 2 Justices of the Court of Appeal and 16 Judges of the High Court. I commend the Judicial Service Commission for appointing 23 Deputy Registrars, 21 Chief Magistrates, 2 Senior Principal Magistrates Grade I,4 Principal Magistrates Grade I, 1 Senior Magistrate Grade I and 56 Magistrates Grade 1. Thirdly, the Judiciary had cordial relations with Parliament and the Executive. The Judiciary had a very useful meeting with Members of Parliament, when Parliament, for the first time in our history, sat in Court Room Number 1 to discuss the Budget of the Judiciary. This important meeting, was followed by a cordial meeting between H.E The President, and Judges, at State House, Entebbe. Our meeting with the President underscored the oneness of Government without diminishing the trinity of separation of powers and the need for the three organs of the State to be adequately funded and facilitated so as to work for the common good of the Country. We considered the role of the Judiciary in national development and shared some of our challenges with the Executive, which culminated into promises for greater cooperation between the organs of the State, and better funding and facilitation of the Judiciary. It was agreed at this meeting that terms and conditions
UJOA JOURNAL | November, 2016
of service of judicial officers should be improved; that Judges should retire with their full salaries, and that a policy should be developed to retain retired Judges to assist the courts during emergencies. Government also, undertook in a phased manner, to construct staff houses for Judicial Officers at all the stations to ease their accommodation. Government also committed to finding resources to purchase suitable vehicles for Magistrates in a phased manner. This would go a long way in assisting Magistrates to visit locus in quo in land matters. The Executive committed to funding the computerization of the Judiciary spreading over a period of 5 years. Some work has been done on implementing the directives of the meeting. Suffice to mention that funds have been released to double the housing and medical allowances of Judges. A resolution to amend Schedule ‘A’ of the Salaries Allowances of Specified Officers Act will soon be processed to effect the changes. Here, I hope the Ministry of Public Service will move swiftly on this. Allowances of the Lower Bench were increased by 10% of their salaries. However, the increase is inadequate. We need to lobby Government for more resources to inter alia: ■■ Increase salaries of the Chief Registrar, Registrars, Chief Magistrates, Magistrates Grade I and Magistrates Grade II that have remained static for more than 5 years; ■■ Increase funds to cater for court operations to pay for sessions considering the high rate of crime and litigation.
Statement on the performance of the Judiciary in 2014/15 The mandate of the Judiciary is to administer justice through interpretation of the law and adjudication of cases. In the Financial Year 2014/15, the Courts completed 150,052 cases in comparison to 128,000 cases completed in 2013/14 and 109,000 cases completed in 2012/13 Financial Years.
I attribute this impressive performance to the hard work of Judicial Officers and reforms we are implementing to improve the face, soul and body of Justice. I would like therefore, to thank Magistrates Grades II, Magistrates Grade I, Chief Magistrates, Registrars, Judges of the High Court, Justices of the Court of Appeal and Justices of the Supreme Court together with the administration and the entire staff of the Judiciary, Members of the Uganda Law Society, the Directorate of Public Prosecutions, the Attorney General’s Chambers, the Police and the Public, for exercising your mandates that enabled this excellent performance. Thank you all for a job well done. We shall not ask for national medals but we only have to re-double our efforts so that the public get quick and effective justice. The satisfaction of the Public with our services is the ultimate medal we should seek to achieve. As we celebrate the huge increase in case disposal, we should not lose sight of 114,512 pending cases in the courts as well as the thousands, of unresolved disputes or unmet legal needs that never reached the courts. Some of these cases are more than ten years old and represent what others have called the dilemma of access to justice. The presence of too many pending cases is an embarrassment to the Judiciary, and a serious affront on the rule of law. I therefore, call upon the JLOS stakeholders especially the Judicial Officers, Members of the Bar – public and private, the Directorate of Public Prosecutions, the Police and members of the public to join hands with the Judiciary to clear the backlog. I am aware that besides the human resource constraint, the current Civil and Criminal laws, are inadequate. The law must therefore, be reformed to expand Alternative Dispute Resolution, electronic filing, discourage unnecessary adjournments, introduce filing of Skelton arguments, allow payment of court fees using mobile money platforms, among others. I have, therefore, set up a
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New Law Year committee chaired by Justice Tsekooko to, among others, study the proposals made by the Uganda Law Reform Commission to reform civil and criminal laws impacting on the administration of justice. I wish to thank the Chairperson of the Uganda Law Reform Commission and her team for having undertaken a study on these laws. The Resource envelope for the Judiciary comes from both Government of Uganda and Donors (bilateral and the Sector basket funding from JLOS). As reflected in the table above, the wage (Salaries) provision has grown from 23.3 billion in Financial Year 2013/14, to 24.876 billion in FY 2014/15 and to 25.876 billion for FY 2015/16. This projection has been maintained in FY 2016/17. The Non -wage Component which caters for the day to day running of the Courts stagnated at 50.9 billion in FY 2013/15 and FY 2014/15. There was a slight increase in FY 2015/16 to cater for Exgratia payments for retired Justices and Pensions. The stagnation of this very important budget component has led to slow implementation of activities. The Government made a supplementary provision of 5 billion in FY 2015/16 which we hope will alongside 3.76 billion for arrears, form part of the Medium Term Expenditure Framework (MTEF) allocation for the FY 2016/17. On the contrary however, the Development component which caters for among others, provision of vehicles, ICT and constructions; has been on a decline from 10.8 billion in FY 2013/14 then to 8.801 billion and to 5.949 billion in FY2015/16 and the projection for FY 2016/17 is 5.189 billion.
The Chief Justice interacts with members of the Bar at the New Law Year event.
to provide a robust ICT infrastructure, transport for Supervision and visiting locus in quo and court infrastructure which, has hitherto been a preserve of donor funding.
Support Services to the Judiciary Estates Department of The Judiciary In 2015, the Judiciary completed construction of Justice Centers at Ibanda, Mityana, Kiboga, Kibuku, Bulambuli and Judicial Studies Institute. Construction of the High Court at Kabale is almost complete except for installation of electricity and construction of an access road.
There has been targeted one off funding from UNICEF while support from DANIDA is winding up in June 2016. This may leave the Judiciary with only one source of Funding.
Construction of the Family Court at Makindye, is almost complete. This year, we shall complete the construction of Justice Centers at Kiruhura, Nwoya, Buyende, and Mitooma. We shall also construct a High Court at Masindi and ten ramps to make our courts accessible to the disabled.
There is need to provide more resources to cater for the non wage requirements such as reduction of case backlog of the Judiciary and the Development Component
The current High Court Building will get a facelift this year with a new roof. Tendering for re-roofing of the High Court Building is underway.
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The Justice Law and Order Sector is finalizing negotiations with the referred bidder under JLOS House Project to construct the Supreme Court, Court of Appeal,Headquarters of the Judiciary and the High Court in Kampala, under the public private partnership framework. I urge the Solicitor General and the Ministry of Finance to expedite the negotiations so that we can have these buildings.
Information, Communications And Technology (ICT) ICT holds the key for unlocking potential to increase performance and eliminate opportunistic corruption in the Judiciary. The Judiciary, therefore, is in the final stages of developing a 5-Year ICT Strategy estimated to cost UGX. 36 billion with an annual requirement of UShs.7.2 billion shillings. This strategy will position the Judiciary to 77% automation from the current 41%. H.E. the President promised to fund the ICT Strategy over a five years period. We shall follow up Government on this promise. In 2015, the Judiciary installed Information Communication Technology systems to expedite court processes and ease court
UJOA JOURNAL | November, 2016
New Law Year public access to the court. The Rules Committee has approved a Practice Direction on Audio Visual Evidence to provide for taking of evidence by audio and video link which we shall issue soon. This intervention will make it possible for courts to receive evidence by audio video link from witnesses who cannot physically appear in court due to infancy, old age, distance and cost among others. In the case of children, the Judiciary, with support from UNICEF, has commenced installation of closed circuit cameras that are connected to TV Monitors in the High Court - Kampala, Gulu, Mbale and Fort Portal to receive evidence from children. Children who are victims of sexual gender based violence shall appear in court by video link to save them secondary victimization which they suffer when they physically appear in court to testify in full view of their alleged molesters. I would like to thank UNICEF for this timely offer, which, again is going to improve access to justice for children in Uganda.
WI-FI System The Judiciary has installed WI-FI Systems in the Supreme Court and Court of Appeal/ Constitutional Court. Configuration of the System is ongoing in order to provide the infrastructure to support a paperless Court Room.
Closed Circuit Television (CCTV) System The Judiciary is installing CCTV Systems in seven High Court Registries: - Civil, Anti-Corruption, Criminal, Execution and Bailiffs, Land, Family and Commercial and seven Chief Magistrates Court Registries at Entebbe, Makindye, Nabweru, Nakawa, Buganda Road, Mengo, and Law Development Centre Court. The System will be used to monitor our Court Registry procedures with a view of identifying areas for improvement.
Payments of Court Fees like Bail Fees using Mobile Money In December 2015, the URA implemented the Mobile Money facility for payment of taxes in Uganda. The Judiciary is in consultation with URA to implement this service for payment of Court fees like Bail deposits.
On-Line Filing System The Judiciary has initiated the analysis and design of an on-line filing system (e-filing) of court documents and cases. When this is finally implemented, advocates will file cases from their chambers without coming to the Court. This intervention will save time and eliminate unnecessary human contact that may result into unprofessional conduct from the involved parties.
E-Judgment Tools Development Software is being developed to assist in writing Judgments. The template will have fields where evidence is inserted and the system generates related selected authorities via internet facility to analyze and evaluate evidence in accordance with the applicable legal principles. Our IT team and the developer have done about 30% of the work on the software.
Real-Time Court Recording and Transcription The Judiciary plans to introduce and convert the current Digital Court Recording and Transcription System to a Real-Time System to facilitate real time production of transcripts required for tasks like judgment writing. Real-Time Court Recording ensures a shorter case processing cycle throughout the court system thereby fighting case backlog. It is proposed to start with the Commercial Court and Appellate Courts before extending it to other Courts.
The Law Reporting Function Uganda Legal Information Institute (ULII) Website The Judiciary has continued to maintain
UJOA JOURNAL | November, 2016
an online web portal where it provides free legal information to the public. The information provided on this web portal includes inter alia, judgments/rulings from all courts of record of Uganda, Acts of Parliament, Statutory Instruments and bills. The website also provides decisions from CADER, the Tax Appeals Tribunal and the Industrial Court. I note that not many Judicial Officers and legal practitioners are using the website. I, therefore, urge you to actively use the site to enhance the quality of legal representation and judgments.
Uganda Legal Information Institute (ULII) Samsung App The Judiciary has developed a ULII App accessible by using Samsung phones and tablets. With the help of this facility appearing as an icon on ones’ Samsung mobile devices (phone, tablets), one can quickly access all judgments passed in the Uganda’ Courts of Record (Supreme Court, Court of Appeal and the High Court).
Uganda Legal Information Institute (ULII)Website e-News Letter Soon we shall be launching an online newsletter where we shall be highlighting precedential court decisions. This will be emailed to subscribing members free of charge.
National Court Case Census 2015 In December 2015, I commissioned a taskforce to carry out a National Court Case Count to establish the number of cases in the Judiciary. The preliminary report of the case census shows that there are 114,512 cases pending in all the courts. As of December, there were 97 cases in the Supreme Court; 5,844 cases in the Court of Appeal; 35,548 cases in the High Court and 68,115 cases in the Magistrates Courts. We now know the exact number of cases in the courts and where most of the cases are located. With this information, we shall review our case backlog reduction programme focusing more on stemming the growth of case
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New Law Year backlog as well as clearing the existing old cases. In the interim, I propose to issue a Practice Direction targeting the eradication of cases which are more than 2 years old.
Setting of Performance Targets The Judiciary has set targets for all Judicial Officers as part of an elaborate Performance Enhancement System to evaluate judicial officers including Judges by introducing modern methods of management. This system increases level of performance, monitors performance, and informs Best Performers’ Reward Committee for Meritocracy. The targets are:
■■ Supreme Court 80 cases ■■ Court of Appeal/Constitutional Court 600 cases ■■ High Court Judge 300 cases ■■ Registrars 400 cases ■■ Chief Magistrate 600 cases ■■ Magistrate Grade 1 of more than 3 years’ standing 400 cases ■■ New Magistrates Grade I of less than 3 years standing 300 cases ■■ Magistrate Grade II 300 cases Judicial officers are hitting their targets except in appellate courts thatdid not have adequate Justices.
Continuous professional training for judicial officers The Judiciary is promoting continuous training for judicial officers with mandatory Continuous legal education hours at the Judicial Studies Institute on areas that will better the administration of Justice. The Judicial Studies Institute will be strengthened to provide continuous professional training to Judicial Officers to sharpen their skills and keep them abreast with new developments in the law. Each Judicial Officer will be required to attend a minimum number of hours of training in a year to keep them competitive, informed and well disposed to deliver first class justice.
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Strengthening of the Inspectorate On the 24th December 2015, I issued a Practice Direction (Inspectorate of Courts) (Practice) Direction, 2015 to reorganize and strengthen the Inspectorate of Courts to promote good governance in the administration of justice. I have appointed Hon Justice Augustine Nshimye, JSC as Chief Inspector of Courts, to demonstrate the Judiciary’s seriousness to clean up all Courts and deal with complaints of misconduct or incompetency in a timely manner. The revamped Inspectorate of Courts will be responsible for promoting good governance, accountability and quality assurance in the Judiciary. It shall carry out its mandate mainly through inspections, investigations and outreach programmes. The new Inspectorate of Courts will inspect all Courts unlike in the past where only Magistrates were inspected.
Memorandum of Understanding between Pepperdine University and Justice Law and Order Sector (Jlos) As the Chair of the Leadership Committee of the Justice Law and Order Sector, I led a delegation last year in October to the USA to strengthen our relationships with Pepperdine University that will see JLOS institutions build capacity in various areas that will aid administration of Justice in Uganda. This relationship dates back from 2008 and provides for capacity building and information sharing in the areas of Plea Bargaining, Sentencing, mediation, short exchange programs and projects with prisons to support rehabilitation and reform of offenders.
THE NOTABLE CHALLENGES Case backlog and allegation of corruption are our two most notable challenges that must be addressed urgently.
Case backlog Huge backlogs continued to dent the image of the Courts despite remarkable efforts by the Judges to clear many cases. This was caused by shortage of funds and systematic failures in the courts. Funding to the Judiciary was inadequate to pay for court room technology and sessions for the High Court, Court of Appeal and Chief Magistrates. The presence of an average of 40,000 prisoners per day in prisons and the long pretrial remand for capital offenders was very challenging considering that we could only afford to hold sessions for 1,800 prisoners out of 8,500 capital offenders waiting for trial in the High Court. The World Bank notes that: “When Judiciaries carry a large backlog of cases (they) erode (e) individual property rights, stifle private sector growth, and, in some cases, even violate human rights. Delays affect both the fairness and efficiency of the judicial system; they impede the public’s access to the courts, which, in effect, weakens democracy, the rule of law and ability to enforce human rights.” Back home, I want to share with you the experience of one Nigerian litigant, who would be in the same position like a typical litigant in Uganda (emphasize). He had this to say about the courts: A common complaint against the Nigerian law courts is that justice is invariably expensive and tardy. Judges would be mistaken if they thought that this state of affairs was a good reflection of their work. The fault may not be theirs, but when the litigants see some judges and magistrates sit for very brief sessions before retiring …. It is difficult to blame them if they say that such judges and magistrates do not work hard enough. He goes on to say that: “If justice delayed is justice denied, all judges must show visible concern at the agony of litigants and in particular the inhuman treatment meted out to persons who are compelled to stay in prison for months on end even at time when the law presumes them to be innocent.”
UJOA JOURNAL | November, 2016
New Law Year We recognize that delay of cases hurt everybody and the country at large. As Chief Justice, I will prioritize elimination of case backlog during my tenure.
should, however, remain vested in the formal courts.
We shall fight case backlog using a multidisciplinary approach. It will involve change of attitude, reform of the law, greater use of technology, better training of Judges, Alternative Dispute Resolution and a paradigm change from the current system of justice steeped in bureaucracy, to a business oriented approach to resolving cases. Consequently, the Judiciary will adopt the following initiatives and reforms to improve the administration of justice in Uganda.
The Court of Appeal will hold sessions in Mbarara, Mbale, Gulu and Fort Portal to ease pressure on the court at Kampala. Resources, will be found to send Justices on regular upcountry sessions as the country moots the idea of building permanent premises for the Court of Appeal upcountry. I urge Government to increase Justices of Appeal from 15 to at least 32, to support the decentralization and circuiting of the Court of Appeal.
Increasing access points
Functional access to justice to be prioritized
From the available resources, the Judiciary will establish a High Court circuit at Mukono, Iganga, Mpigi, Rukungiri and Mubende to bring services to the people that have hitherto, endured long distances to access the High Court. The High Court circuit at Nakawa will be restructured and if need be, merged into existing Divisions of the High Court.
Increase of Magisterial Areas Magisterial Areas are to be increased from 39 to 81 in a phased manner after the Minister of Justice and Constitutional Affairs gazettes new magisterial areas. Pending the gazzeting, Magisterial Areas with a high case load such as Mengo, Nakawa, Lira, Gulu and Mpigi, will get a second Chief Magistrate. More Magistrates Grade I are to be recruited so that each County has a Magistrate. This intervention will address the phasing out of Magistrate Grade IIs, whose numbers have fallen from 403 to 49 as at 2015 and left most of the Sub County Courts and the countryside without justice services. The law should be amended to give Local Council Courts power to handle most of the cases that were handled by Magistrates Grade II Courts. In this regard, Local Council Courts should be given power to handle land cases, civil cases of less than one million shillings and all matters of a customary nature. Criminal jurisdiction
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Court of Appeal to hold up country sessions
We recognize that resources are inelastic and that courts may have to innovate to provide more judicial services with available limited number of financial, human and other resources. In this regards, the Judiciary shall invest resources and time in developing judicial products that deliver justice at the most competitive rates and stem the growth of case backlog. Some of these interventions will include the following:
Continuous sitting of the Supreme Court and Court of Appeal
The Supreme Court and Court of Appeal that have hitherto sat using the session systems are considering changing the system in favour of continuous hearing of cases now that we have more Justices in the Supreme Court and the Court of Appeal. Civil cases, which do not require funds for state brief and elaborate service of court process, are to be benefit from the new changes.
Limiting Oral Arguments in Appellate Courts The Supreme Court and Court of Appeal is considering a proposal to limit oral arguments in Court to save time and resources of the Court. If the proposal is implemented, counsel will be required to file appeals with written submissions
including responses. Counsel will be given limited time to provide clarifications to Court during hearing of appeals. A remedy will be found for unrepresented litigants to present their appeals within the constrained timelines.
Elimination of Delivering Judgments on Notice Delivery of judgments on notice encourages a culture of delayed judgments in the Courts. Consequently, the Judiciary is considering a proposal to severely curtail the practice. Court shall now be required to notify the date of the judgment to the parties immediately after the end of hearing a case. Delivery of judgment on notice should only be reserved in exceptional circumstances.
Summary determination of applications From the recent national court case census, we established that about 60% of the civil cases are applications. Most applications can be decided based on the evidence in the accompanying affidavits and skeleton legal arguments without hearing oral arguments from counsel. For example in Hong Kong, where Courts have been given power to hear applications in a summary manner a Judge, can dispose of hundreds of applications in a single day. We can also use this method to clear applications which are causing backlog. Consequently, the Civil Procedure Rules are to be amended to give courts power to expeditiously decide applications without oral arguments except if the Justice of the case so requires.
Alternative Dispute Resolution The Judiciary shall continue to roll out Alternative Dispute Resolution to expedite the resolution of cases. We amended the Rules to make Alternative Dispute Resolution mandatory in civil cases. Plans are underway to extend Alternative Dispute Resolution to the Court of Appeal, where it has the potential of assisting the Court to reduce the huge number of pending cases. In this regard, I call upon advocates who are not very receptive to
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New Law Year
Alternative Dispute Resolution to embrace it because of the immense advantages it offers over the adversarial system of justice and its ability to shift the decisional power from the Judge to the parties and their counsel. The rules of procedure are to be amended to provide for payment of costs in the most deserving cases of Alternative Dispute Resolution to fill an existing lacuna in the law.
Plea Bargaining In the last year,the Judiciary with support from Development Partners and the University of Pepperdine piloted plea bargaining in 11 Circuits of the High Court as a cost effective measure to reduce case backlog of capital cases in the High Court. In the pilot period, the High Court disposed of 1,500 cases in a very short time. Users and beneficiaries of plea bargaining hailed it for being cheap with a high clearance rate of 95% per session. In 2016, the Judiciary shall continue to expand plea bargaining to all the circuits of the High Court and Magistrates Court to provide timely justice to offenders and reduce on pretrial remand for capital offenders, who do not have adequate protection like suspects whose cases are not yet scheduled for hearing. The Rules Committee has approved a Practice Direction on Plea Bargaining, that I shall issue soon.
Expansion of Small Claims Procedure The Small claims procedure courts will be rolled out to all Magisterial Areas in 2016. The Small Claims Procedure is an innovation adopted by the Ugandan Judiciary to handle Civil Claims below ten million shillings. It was initially piloted in six Chief Magistrates’ Courts and has meanwhile been rolled out to twenty six Chief Magistrates’ Courts namely; Mengo, Makindye, Nabweru, Nakawa, Mbarara, Mbale, Masaka, Jinja,
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Lira, Kabale, Arua, Mukono, Nakasongola, Bushenyi, Entebbe, Luwero, Kitgum, Iganga, Fort Portal, Soroti, Masindi, Mpigi, Gulu, Busia, Kasese and Hoima.
Corruption in the judicial process
I am concerned about the persistent complaints of both real and perceived corruption in the courts. Complaints of corruption are rife in the lower courts. The High Court and appellate courts feature but with low frequencies. While most cases of corruption are unsubstantiated, I have said before that corruption has no place in the Judiciary because it short changes the vulnerable, perverts the cause of justice, perpetuates conflicts in society undermines civilized ways of resolving disputes and increases transaction costs for business. We in the Judiciary are determined to eradicate corruption in the chain of justice by opening up the judicial process and taking a zero tolerance policy towards the corrupt. I have since assuming office established hotlines on which the public can report cases of mal administration of justice. I have taken up complaints of corruption leveled against judges by investigating such complaints and taking action where necessary. I welcome any person who has a complaint of corruption against any judicial officer or court staff to report to me in confidence and investigations will start, first internally, and where necessary by the JSC. But at all times the officer accused must be given an opportunity to respond to allegations against him/her. Even in the pursuit of the corrupt, we must never lose sight of the basic principles of fairness. We shall continue to work with the Judicial Service Commission and the Inspectorate of Government with the active support
of the public to rid the Judiciary of both perceived and real corruption. I encourage members of the public to cut off the supply side of corruption by stopping or rejecting giving bribes for services. Likewise, judicial officers and staff, who provide the demand side of corruption, are warned and informed that stern action will be taken against them. Before I take leave of this matter, I wish to appeal to litigants, advocates and the public to refrain from making unsubstantiated and malicious complaints against judicial officers. Unfair complaints against judicial officers are a threat to judicial independence because some judicial officers may fear to make decisions against certain litigants or lawyers for fear of enlisting malicious complaints. Aggrieved parties should only make complaints where judicial officers have violated the Judicial Code of Conduct or abused office. Other complaints going to the merit of the decision, should be dealt with through appeals.
Appeal to Government I urge the Minister of Justice and Constitutional affairs and the Attorney General to fast track the tabling of the Administration of Justice Bill, which seeks to provide for the administration of the Judiciary, and the Legal Aid Bill, that makes provision for legal representation of the indigent. These two Bills should be fast tracked to improve efficiency in adjudication.
Conclusion In conclusion, 2016, will be a great year for the Judiciary as it endeavors to deliver justice to all. It is a year that the Judiciary should apply: “Business concepts of efficiency and project management to case processing,” be reinforced by change of attitude and work methods for increased productivity in the Judiciary.
UJOA JOURNAL | November, 2016
New Law Year
Improve Judiacial Officers’ welfare By Godfrey Kaweesa, President, UJOA
On behalf of the Uganda Judicial Officers Association (UJOA), I warmly welcome you to this New Law Year Day which is under the Theme “Promoting the Rule of Law in Uganda through Judicial Accountability and Excellence”. This message is also motivated by Vision 2040 and Goal 16 of the Sustainable Development Goals 2015 which provides for peace, justice and strong institutions.
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he Late Martin Luther King Jr had this to say: “Our lives begin to end the day we become silent about things that matter.”
Permit me to wish you a Prosperous 2016 and God’s blessing in whatever you undertake. I also would like to congratulate the Honourable Chief Justice of Uganda, Bart M. Katureebe and Deputy Chief Justice Steven Kavuma for being appointed to those high offices.
■■ To promote legal studies and undertake the publication of the Uganda Journal of Judicial officers and other publications. ■■ To partner with the Judiciary Administration in the identification of the Judiciary’s priorities and ensuring productivity. The Association is led by an elected Executive and Representatives of strata of Judicial cadre with the Honourable Chief Justice as Patron.
Background and Mandate
Obituary
The Uganda Judicial Officers Association (UJOA) is an umbrella professional body that brings together Justices, Judges, Registrars and Magistrates. It was founded in 1970. According to her Constitution, the Association is mandated to among others:
On a sad note, 2015 was a very tough year for the Judiciary and the Association because we lost a number of Judicial officers and non Judicial officers. Permit me to request that we observe a moment of silence in theirmemory. May God Almighty rest them in eternal peace.
■■ Advocate for better welfare of judicial officers especially terms and conditions of service. ■■ To maintain and promote the independence of the Judiciary as enshrined in the Constitution of the Republic of Uganda. ■■ To promote better cooperation and understanding among judicial officers and to network with other sister judicial and legal associations in promoting the Rule of Law. UJOA JOURNAL | November, 2016
My Lord Chief Justice, UJOA congratulates you upon having taken the initiative to conduct field visits so as to identify with the people at that level and with the Judicial officers (Foot soldiers). We further congratulate you and your team on the initiative of the just concluded case census. There is no doubt that it will inform proper planning and frugality in the Judiciary. In a special way, permit me to salute the
Judicial Service Commission that has so far massively recruited Magistrates and promoted a number of officers. The majority have been serving officers (Sitting Tenants). Promoted to the Supreme Court are Justice Augustine Nshimye who has also been appointed Chief Inspector of Courts, Justice Faith Mwondha, Justice Opio Aweri, Justice Eldad Mwangusya and Prof. Lillian Ekirikubinza. The President also elevated 6 Justices from the High Court to the Court of Appeal and another from the Attorney General’s Chambers. These are: Justice Alfonse Owinyi Dollo, Justice Elizabeth Musoke, Justice Paul Mugamba, Justice Simon Byabakama, Justice Catherine Bamugemeirere, Justice Hellen Obura and Justice Cheborion Barishaki Congratulations. Also appointed were 21 Deputy Registrars, 6 Assistant Registrars, 22 Chief Magistrates and 58 Magistrates Grade I. congratulations once again. Please work hard to make the Judiciary vibrant. To those that did not make it, don’t lose heart, aim higher for the next opportunity. However, UJOA proposes that the Judicial Service Commission develops a tailored policy on Judicial promotions for purposes of transparency and certainty in career advancement, taking into consideration
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New Law Year Performance Efficiency Audits. Feed back sessions from the JSC are also recommended to ensure improvement. UJOA also in special way, would like to register her appreciation to the President of the Republic of Uganda and Government for the directive that all Judicial officers should retire with their benefits and the new policy to start constructing houses for Judicial officers and vehicles to all Registrars and Magistrates in the country. We cannot forget to thank the Donor community, JLOS stakeholders, Uganda Law Society and our Sister Associations, the National Association of Women Judges Uganda whose President is Hon. Lady Justice Dr. Esther Kisakye of the Supreme Court and the Denmark Alumin Association of Uganda whose President is Her Worship Lillian Mwondha, Deputy Registrar. UJOA would like in a special way welcome back our Secretary to Judiciary Mrs. Dorcus Okalany. My Lord, UJOA is cognizant of the fact that the people of Uganda are wary of the Judiciary due to slow disposal of cases at a rate of 22.7%. According to the Statistics from the National Development Authority. If we are to improve on the administration of justice in Uganda and restore public confidence in the Judiciary, the following interventions need to be implemented: The Judiciary as an equal Arm of the State. According to a French Philosopher Barron de Montesqueu in his tripartite arrangement of governance, in any modern democratic state, the Judiciary is one of the three coequal arms of the State together with the Executive and the Legislative. Article 126 of the 1995 Constitution provides that Judicial power is derived from the people and shall be exercised by the Courts established under the Constitution in conformity with the law, values, norms and aspirations of the people. The people desire and demand a strong and vibrant independent Judiciary. However, the Judiciary in its current state is incapable of effectively checking the excesses of the
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The new UJOA executive shortly after being elected as office bearers in November 2015.
Executive and Legislature due to the problem of chronic underfunding. For example, in the current Financial Year 2015/16, whereas the Judiciary had budgeted for about 286 Billion Uganda Shillings, only about 105 Billion was approved, meaning that there is a funding gap of about 180 Billion Uganda Shillings. It therefore means that the Judicial Service delivery will still be affected. For instance, elections in Uganda are just right by the corner and Judicial officers have not yet been refreshed in handling such matters through training. There is no doubt that the Administration of Justice is central to good governance and good governance is central to the development of any country. Other East African Judiciaries like Kenya and Tanzania which have adopted the practice of a Special Judiciary Fund of their National Budgets charged directly from their Consolidated Fund appear to be enjoying better financial allocation than the Uganda Judiciary. For instance, in FY 2014/2015, the Kenyan Judiciary Budgetary allocation short from 68.8 Billion Ugx to 584.3 Billion Ugx since the launch of its Judiciary Transformation Framework. In the United Republic of Tanzania, the Judiciary Budget increased from 92.48 Billion Ugx in FY 2012/2013 to 143.8 Billion Ugx in F/Y 20152016. We propose that Uganda adopts this model of a Special Judiciary Fund if its not to lag behind.
However, we thank the Government of Uganda for the supplementary Financial Support to the judiciary of Ugx 5 Billions and hope that it will be captured under the medium term expenditure framework as a recurrent item. UJOA further commends you my Lord Chief Justice and the Judiciary Administration for spearheading the judiciary fundraising strategy which saw you interacting with stakeholders like the Legal and Parliamentary Affairs Committee of Parliament, Officials from the Ministry of Finance, Planning and Economic Development, our Donor Partners and His Excellency the President of the Republic of Uganda. UJOA proposes that there should be a Chapter on the State of the Judiciary in the Annual State of the Nation Address by the President so that Parliament can be able to debate the same. The Chief Justice as Head of the Third Arm, should annually address the Nation on performance of the Judiciary.
Prioritization of scarce resources in the Judiciary My Lord, a recent survey by NTV Uganda showed that 86% of the respondents felt there was wastage of scarce resources in government Ministries, Departments and Agencies. We are grateful that you subscribe to the notion that the majority of the Judiciary budget should be expended on the Judiciary’s core activity of case adjudication.
UJOA JOURNAL | November, 2016
New Law Year We are grateful that you have issued a circular restricting unplanned foreign travel abroad in a bid to save resources. UJOA offers to partner with you in this regard. We propose that UJOA be incorporated into the planning, budgeting together with monitoring and evaluation framework of the Judiciary to ensure more judicial productivity. Administration of the Judiciary Bill 2013 UJOA requests Government to enact this Bill into Law without any further delay so that the Judiciary can be better administered. However, we propose that the President UJOA or his/her Representative be included on the proposed Judiciary Administration Council.
Strategic Management of Courts The different hierarchy of courts in Uganda have different inputs, outputsand challenges. Therefore each court level should develop its vision, missionstrategic objectives, work plans, budgets together with M&E frameworks which should feed into the Judiciary Overall Vision.
Performance Contracts UJOA appreciates that performance targets have been developed for individual Judicial officers. For instance Supreme Court to dispose of 80 cases per annum, Court of Appeal / Constitutional Court 600 cases, High Court Judges 300 cases, Registrar’s 400 cases, Chief Magistrate’s 600 cases and Grade I Magistrates 280 cases. However, there is guarantee that such targets will be met. There is need for Judicial officers to execute performance contracts with employer so that clear obligations are imposed on each party. For instance the employer will be under duty to provide the resources like adequate operational funds, transport etc. and the Judicial officers will be expected to deliver tangible outputs.
year in addition to their day to day work loads. There is no doubt that more cases will be cleared and the image of the Judiciary will improve due to public satisfaction. We should borrow best practices from the International Framework for Court Excellence to calculate the unit cost of any given case so that operational funds are based on empirical statistics.
Motivating Judicial and Non Judicial staff My Lord, in the Management studies we learn that the most important factor of production is the Human Resource. If this resource is not adequately motivated, then programs however good, may fail. The Late President of Singapore Lee Kuan Yew once said “You pay peanuts, you get monkeys”. The Minister in Charge of the Presidency, Honourable Frank Tumwebaze while justifying why K.C.C.A staff should be paid high salaries, reasoned that it was meant to motivate them and to shield them from the temptation of corruption. These reasons also apply to the Judiciary staff. Our staff seem to be earning the least compared to the Regional Judiciaries. We propose that the Judiciary staff be rewarded like their counterparts in the Executive and the Legislature being equal co-arms of the state. The Salaries and Allowances (specified officers) Act Cap 291 Section 2 of the aforementioned Act provides that Parliament may by resolution amend the first schedule to the Act. UJOA would like to purpose that this Act be amended in order to include members of the lower bench (Registrars and magistrates) among entitled officers to avoid discrimination in the area of resource allocation in the Judiciary.
Cascading Court Sessions at all levels
Policy development in the Judiciary
In order to increase Judicial output, we propose that every Judicial officer be afforded a Court session per quarter per
UJOA shall continue to partner with the Judiciary Administration through the office of the Chief Registrar to contribute to the
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development of policies in the Judiciary. Policies here include a deployment policy a policy on security for all Judiciary officers, counseling, mentorship, review of trainingpolicy, development of the Judiciary ten year transformation plan, the forth strategic investment plan etc.
Rebranding UJOA for relevance My Lord, another reason that is affecting Judiciary services delivery in Uganda is the fact that Judicial officers need empowered in a number of aspects including against financial stress. We appeal to government to fund the Judiciary SACCO as promised by the H.E. the President. UJOA is also to rebrand to become relevant to its members and stake holders. There are to profile the Association develop a strategic and business plan together with proposals to donors for addition funding. Contact has been made to the National Agricultural Advisory Development Services (NAADS) for supply of seedlings to members to enhance farming. The National Forest Authority has been contacted to supply tree seedlings to members in a bid to conserve the environment. We have plans to profile experiences of all Judiciary staff so that stakeholders can fully appreciate the third Arm of the State.
Health Insurance Schemes A number of Judicial Officers suffer from work related health matters. UJOA encourages members to routinely secure medical check up so that they can benefit from the provisions in the Public Standing Orders 2010 on health. We have also made contact with Health Insurance bodies like IAA, AAR etc. We appeal for government support in this regard. Regional Health Clubs for Judicial officers could also be considered.
Corporate Social responsibility In order to give back to the community and to improve on the image of the judiciary UJOA shall mobilize resources from her members and other stake holders at the end of every year to benefit the vulnerable and less privileged Integrity in the administration of justice UJOA undertakes to urge her
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New Law Year members to abide by the Judicial Code of Conduct corruption in any form is condemned. We undertake to contribute towards increasing public confidence in the courts.
Regional and International Conferences My Lord, Uganda is slated to host this year’s East Africa Judges and Magistrate Conference. The Annual Common Wealth Judges and Magistrates Conference is slated for the Caribbean from the 18th to 22nd September 2016. We shall appeal to your support. Lastly, Judicial officers through their representatives on the Executive Committee have expressed the following specific views:-
Supreme Court ■■ It should be adequately funded Court of Appeal /Constitutional Court ■■ Currently its quorum of 12 Justices is significant but the recent appointments have not been matched with resource mobilization ■■ The court lacks basic tools of trade like adequate reading materials, cabinets etc. ■■ There need to sensitise stake holders and general public about operation of collegial courts in order to dispel the perception of bias. ■■ The very issues which militate against good governance, such as poor public image, false perceptions of impartiality, lack of equal opportunity and mandates also conspire to defeat the constitutional court.
The High Court ■■ Currently the High Court has only 41 Judges. There is need to raise the number to at least 82 Judges. ■■ Provision of criminal sessions at least one in a quarter and regular allocation of operational funds. ■■ Priotise core activities of the Judiciary.
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■■ Reform the Estates and Transport Departments of the Judiciary to minimize wastage of scarce resources. ■■ Improve communication channels in the Judiciary. ■■ Make a radical transformation in the management of registries so that they are professionally run. This would curb corruption and management of backlog. ■■ Provide accommodation in upcountry circuits. ■■ Training of up-country support staff especially in up country courts/ circuits. Most are employed even before they are oriented and this affects the quality of service delivery.
Registrars ■■ There are 47 Registrar in Uganda ■■ Jurisdiction of Registrars should be enhanced so that they can substantively handle most interlocutory matters in both civil and criminal cases. ■■ Adequate funding should be provided.
Chief Magistrates ■■ There are 44 Chief Magistrates in Uganda. ■■ Chief Magistrates are at the level of Commissioners as per the Government Standing Orders 2010 entitled to certain benefits like vehicles but some don’t have. ■■ Chief Magistrates supervise large Magisterial Areas some with about 7 district and over 20 Members of Parliament. There is a huge disparity in resource allocation to Chief Magistrates compared with other political heads within their jurisdictions. ■■ There is urgent need to increase operation funds including State Brief Funds. ■■ There is urgent need to organize sessions to dispose of cases in C/M Courts.
Magistrate Grade One ■■ Currently there are 285 Grade One Magistrates in Uganda. ■■ Allowances and operational funds should be enhanced and paid on time. ■■ The proposed deployment policy should categorise hardship areas and hardship allowance paid. ■■ Information and communication technology should be embraced to boost productivity through provision of Laptops to all Magistrates. ■■ Need for court recording equipment to reduce on time taken to listen and record evidence by hand. ■■ Security to all Judicial Officers ■■ Provide decorum (Judicial dressing) for Magistrates. ■■ Provide adequate office equipment in the courts. ■■ Erect adequate court structures and housing for Judicial staff. ■■ Revive performance evaluation workshops. ■■ Enhance jurisdiction of local council courts, magistrate courts and make higher courts have only appellate jurisdiction this will tackle the problem of case backlog and lack of job satisfaction. ■■ Transfer and promotion of judicial officers should be certain based on experience hard work expertise and fairness. ■■ Operational funds should be disbursed to the courts on quarterly basis to facilitate proper planning and budgeting. Magistrates Grade Two ■■ There are 58 Grade Two Magistrates in Uganda. ■■ Positions of Senior and Principal in this rank should be filled even though there is a policy to systematically phase this cadre out. ■■ Adequate funding should be provided. I submit for God and my country.
UJOA JOURNAL | November, 2016
Review
Judiciary Reforms:
Assessment of Mid-term Review By The Hon. The Principal Judge Dr. Yorokamu Bamwine
Hard times call for hard decisions. Extra ordinary situations call for extreme measures. Like other Institutions, Judiciary has faced a number of challenges. These range from delayed justice, backlog and workload, underfunding, understaffing and congestion in prison to mention but a few. Some of these challenges cut across all Justice Law and Order Sector Institutions.
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rticle 126(2) of Uganda Constitution (1995) as Amended provides for adjudication principles as follows;-
■■ Justice shall be done to all irrespective of their social or economic status; ■■ Justice shall not be delayed; ■■ Adequate compensation shall be awarded to victims of wrongs; ■■ Reconciliation between parties shall be promoted and ■■ Substantive justice shall be administered without undue regard to technicalities. The government of Uganda ratified and continues to ratify major international instruments regarding Administration of Justice and Human Rights, including the right to speedy and fair trial. All Government agencies are required to provide Courts with all the needed assistance in execution of their duties in adjudication of all cases. The laws are made by Parliament for Courts to implement.
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Notwithstanding the good legal framework, challenges have persisted. Implementation remains limited and the population resists some of the laws and prosecution of some cases. The Crime rate is still high and we continue to register increased cases of recidivism which was not the case in the past. It is therefore imperative for Judiciary to think outside the proverbial box through introduction of a number of reforms and innovations. These reforms include;
■■ ■■ ■■ ■■
Sentencing guidelines. Small claims procedure. Alternative Dispute Resolution. Mediation and
■■ Plea bargaining. Sentencing guidelines are intended to harmonise sentencing and they apply in Criminal cases only.
Small claims procedure applies only in civil cases whose subject matter does not exceed 10 million. Lawyers are excluded from representation of litigants in these cases. It is intended to speed up the procedure by making it simple for ordinary people to understand. Alternative Dispute Resolution is a mechanism of settling the case through scheduling without going into full hearing. It applies in civil cases only. Mediation is where parties in a case mutually agree to settle the case through a third person called mediator. It applies only in civil cases. Plea bargaining is where the accused admits the offence in exchange of a lesser sentence. It is also known as a negotiated sentence and it applies only in criminal cases. My assessment of these reforms is that they have done wonders not only for Judiciary but the State as a whole. Without these
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Review so as not to remain lagging behind. We have toured different Countries while benchmarking, such as USA, Rwanda, Singapore, and Denmark among others. As a result, we are adopting a number of reforms including Video link teleconferencing. This innovation allows a witness to testify without necessarily coming to Court. It gives a witness protection especially a child witness or a victim from being exposed. It also makes trial less costly.
Deputy Chief justice Steven Kavuma hands over a certificate to Justice David K. Wangutusi the head of Commercial Court during the meditation training.
reforms Judiciary would be a dead horse.
■■ Economically, a plea bargained case costs only 300,000/= as opposed to 1,000,000/= for ordinary hearing of a case. This means 700,000/= is saved whenever each case is plea bargained. Unlike ordinary trials, it is rare to have appeals in plea bargaining because the sentence is agreed upon by all parties. This brings the case to an end instead of dragging on as a backlog in appellate Courts. The disposal rate in plea bargaining is therefore high since many cases can be completed by Court on a single day. ■■ Socially, Mediation gives parties an opportunity to control the outcome of a dispute and settlement terms which is not the case in traditional litigation. Mediation improves relationship between the parties and hence reconciliation as provided in our constitution. ■■ ADR service providers indicate that 80% of cases mediated are resolved on the day of mediation unlike ordinary litigation where endless adjournments are made due to various reasons. ■■ Sentencing guidelines were introduced by Judiciary so that the disparity in sentences is addressed. Uniformity in sentencing gives certainty, hope and confidence to those who come into conflict with the law. There used
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to be a challenge of lack of uniformity in the sentences imposed to the offenders by our Courts even when circumstances and the offences were similar. It is true that Courts have discretion but it should be exercised judiciously so that in related cases we give sentences within same range.
■■ It should be noted that sentencing guidelines improve the image of Judiciary and do not at all take away the discretion of Courts. It is outrageous for people to study the same law but give very different sentences in offences with similar facts. All these reforms save time and costs because there is no formal presentation of witnesses or experts. They are informal and flexible processes. Our current Judiciary has deployed all the legal means possible to reduce backlog, congestion in prison, delays in administration of justice and corruption. Along these reforms, more Courts have been built. New High Court Circuits, Divisions and Magisterial areas have been created. All those are to bring services nearer to the people as by law established.
However, these reforms should not in any way be looked at as an escape route from our traditional practice of hearing cases thinking that the State is too broke to facilitate the trials. Breaches of the law ought to be consistently and impartially condemned by Courts. We should always stand for justice as Sir Thomas More said “....who ever hunts for me, Roper, God or Devil, will find me in the thickets of the law....” As a way forward, judicial power is derived from the people and shall be exercised by Courts in the name of the people in conformity with the law and with the values, norms and the aspirations of the people (Article 126). The ultimate goal of all these reforms is to bring happiness to the people. The reforms should therefore be cherished, embraced and practiced by all of us. In conclusion, a society grows great when old people plant trees whose shade they know they shall never sit in. It is gratifying to build strong systems for posterity. I am happy that I have been part of the team introducing these reforms. Those who will be there long after we have departed will have something to tell. It will be a challenge for those who will be there to keep the candle burning or extinguish it. For God and my Country.
We have had to come to terms with reality
UJOA JOURNAL | November, 2016
Finance
Adressing Financial Stress in the Judiciary to Enhance Performance By Hon. Justice John Eudes Keitirima, Senior Resident Judge Masaka.
Financial stress is defined as the difficulty that an individual or institution may have in meeting basic financial commitments due to shortage of money. On individual level this comes due to low pay and hence being in debt all the time or being unable to provide for the basic needs of your immediate family. On the institutional level this comes in form of the institution being unable to provide the basic financial requirements for the Judicial Officer to carry out his or her work. This could be in form of lack of operational funds. So financial stress could be both at personal and institutional level.
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erformance is the action or process of carrying out or accomplishing an action, task or function. It is the accomplishment of a given task measured against preset known standards of accuracy, completeness, cost and speed.
Effects of Financial Stress When Judicial Officers are financially stressed, their health and productivity can both suffer. This is because financial wellness is related to work productivity. A financially stressed Judicial Officer will bring his or her concerns to the workplace. This could be in form of delayed hearing of cases as well as delayed writing of Judgments. Their attitude to work will be grossly affected and you may find a Judicial Officer shouting at litigants on the slightest provocation. The work place becomes hell for everyone. Mental distraction, moralissues (corruption) and lackluster efforts can all be results of financial stress. Judicial officers preoccupied by financial stress can be physically present but mentally absent. They may
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spend an exorbitant amount of their work in their workplace dealing with financial issues by spending a lot of time on phone looking for money or as it is commonly known “chasing deals”. Financial stress also causes workplace fatigue and burn out leading Judicial Officers to exhibit listlessness. In addition loss of sleep over money issues can significantly lower a Judicial Officer’s ability to think critically and problem solve effectively in effect affecting even the quality of Judgments. This is a recipe for disaster for the general public who are affected by these decisions. Without proper management of financial obligations, Judicial Officers and indeed all other Judicial Staff can suffer from distractedness, physical and mental impairments, lack of attentiveness and a drop in morale and commitment.
Role of Management My belief is that plain good management can reduce work related financial stress where it is already occurring. This can be
done in the following way: ■■ Dealing with staff in a sensitive and caring fashion for example by negotiating with the government for better pay, ensuring they have enough resources to carry out their work and treating them when they fall sick. ■■ Regularly monitoring staff satisfaction and wellbeing. It is imperative for the managers to know what staff thinks about the institution and what they think should be done better. A know it all attitude by management is definitely a poor management style. ■■ Fostering a team approach and good relationships between members of staff. ■■ Ensuring that whatever financial resources allocated to the Institution are put to good use by allocating the resources to the core activities of the institution. In the case of the Judiciary this would be ensuring disposal of cases. There should be financial
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Finance
transparency by having a strong finance committee composed of all stakeholders in the Judiciary.
■■ Loan services at a cost allowing the society to cover its costs. We charge 2% per month for any amount borrowed.
■■ Having a bottom up approach. The voice of everyone in the Institution should be heard and not ignored.
■■ Encourage members to save for the future. Savings earn an interest of 10% per annum.
■■ Leading by example. Walking the talk. If financial frugality is called for, the top management should be seen to walk the talk. It should not be “do as I say not as I do”.
■■ Educational programs on savings, loans and other financial services hence increasing the financial literacy of members.
Management is therefore critical is mitigating the financial stress experienced by employees in any organization as it is their cardinal role to set the priorities of the Institution and ensuring that resources are directed to the identified priorities.
Uganda Judicial Officers CoOperative And Savings and Credit Society Limited The said SACCO was formed to partly address the financial stress faced by Judicial Officers.The SACCOwas registered on the 8th May 2013. Under the general principal of financial safety and soundness the purpose of the Savings and Credit Co-operative Society is to provide its members with:
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For one to join, he or she requires to pay 50,000/= as membership fees, annual subscription of 50,000/= and 50,000/= for one share. One can save with the SACCO with any amount of money but for one to qualify to access a loan you should have at least saved 300,000/=. The maximum amount of shares one can have is 100. The society is democratically governed and is run by elected members from among themselves. Every member has equal rights through their vote and take active part in the formulation of the SACCO policies. The government has promised to capitalize the SACCO. We have already started lending money to members and hence solving their financial stress. The offices of the SACCO are based at Buganda Road Court. The
SACCO has an administrator who is based at Buganda Road Court. We hope the formation of the said SACCO will go a long way in alleviating the financial stress of its members. We intend to make it very easy for members to access loans from the SACCO and we have made provisions to ensure the safety of members’ deposits. Our accounts are annually audited by a certified auditor. I would therefore encourage all Judicial Officers to join the said SACCO so as to improve on their financial independence.
Conclusion Workplace financial stress is primarily an organization issue although it is shaped and influenced by personal characteristics and behavior. It affects performance and it is therefore imperative that management takes keen interest in addressing this problem. The formation of the SACCO is one intervention but there is more that could be done in this area. Improved financial management both at personal and Institutional level will improve the performance of the judicial officers and hence realize both the vision and mission of the Judiciary.
UJOA JOURNAL | November, 2016
Law and Practice
The Law and Practice on Execution Procedures By Hon. Lady Justice Flavia Senoga Anglin, Deputy Head of the Execution and Bailiffs Division, High Court
The term “execution” means enforcement or implementation or giving effect to an order or judgment passed by a court of justice so as to enable the Judgment Creditor/Decree holder to realize the fruits of the judgment and decree.
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he execution process is complete when the judgment-creditor/ decree-holder gets money or other thing awarded to him/her by the judgment, decree or order. It is the last crucial process in the chain of justice when the successful party supported by either a Court Bailiff or Advocates realizes the remedies awarded by the court.
The Bailiffs and Execution Division of the High Court The Execution and Bailiffs Division of the High Court of Uganda was created under Administrative Circular No. 4 of 2011 to handle execution of all decrees and orders made by all the High Court Divisions (namely: Civil Division, Commercial Division, Criminal, Family, Land, Anti-Corruption and International War Crimes Divisions); as well as the High Court Nakawa Circuit, the Nakawa and Makindye Chief Magisterial Area, the Kampala Chief Magisterial areas (Buganda Road and Mengo Chief Magistrate’s courts), and Nabweru Chief Magisterial Area. In due course after a pilot study, the operational benefits of the division could be rolled out to the rest of the country. The Execution Division supervises the operations of Court Bailiffs in such matters, and exercises such other functions including but not limited to :-
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■■ Issuing Warrants of Execution including warrants of attachment, warrants of arrest, warrants to give vacant possession / eviction under Order 22 of the Civil Procedure Rules, and garnishee orders under Order 23 of the Civil Procedure Rules. ■■ Issuing of other execution orders as may be required by any court. ■■ Issuing distress under the Distress for Rent (Bailiffs) Act. ■■ Taxation of bills of costs. ■■ Carrying out quality assurance audits of Bailiffs offices and stores to ensure compliance with industry and institutional standards. ■■ Formulation and review of guidance on execution of Court decisions in consultation with the Management structures of the Judiciary as well as stakeholders. ■■ Monitoring and coordinating executions with other stakeholders. ■■ Keeping and monitoring inventory of executions. ■■ Conducting regular meetings with Bailiffs and other stakeholders to review the performance of executions and making recommendations to guide policy reforms. ■■ Preparing and filing monthly returns and reports. ■■ Ensuring the safety in movement and storage of files for execution and returning them to their respective Divisions/Courts after execution. ■■ Coordinating with the Judicial Studies
Institute and Development Partners to provide training and other capacity building assistance to the Division staff in best practices in execution of Court orders. ■■ Overseeing the discipline of Court Bailiffs and referring of errant Court Bailiffs to the Disciplinary Committee for Bailiffs for punitive action.
■■ Evaluating and recommending applicants for appointment as Bailiffs, and for renewal of licenses of bailiffs already in service. The last three years indicate an increasing number of cases in the Execution Division, with an average of about 1,400 cases handled annually.
Innovations and good practices It has enabled the other Divisions of the High Court to concentrate on substantive hearing of the cases while the Execution Division devotes its energy to the execution process and procedures.
Challenges However, the execution process is not as smooth as envisaged under the law and practice. There are various challenges which include the following:-
Centralization resulting in huge cases backlog for cases The centralization of the execution process
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Law and Practice in Kampala has resulted in a huge number of cases pending execution. There is need to spread the execution process to other divisions and other parts of the country and this will support fast tracking and appreciation of issues emerging such as appeals, stay of execution etc.
Increasing lack of ethical standards There are increasing cases where Advocates and Bailiffs have exhibited unprofessional behavior and un-ethical standards. In some instances bailiffs, have acted in excess of the powers granted to them by out rightly defying the directives from the issuing court and even in instances where court recalls the warrant issued to them, they have instead gone ahead to execute the warrant regardless. Advocates are in a habit of applying legal gymnastics to delay executions especially where their clients are the judgment debtors, they will unnecessarily apply for stay of execution, appeal, resort to complaints and many more undesirable approaches to defeat justice. All these have invariably resulted in protracted litigation challenging the actions.
Malpractices by bailiffs Bailiffs are also debt collectors. Many times bailiffs are driven by the desire to make as much money as possible out of the execution process. Furthermore some bailiffs have no clear offices and are housed by law firms. There is need for guidelines/ rules governing their remuneration as debt collectors. Dishonesty in dealing with the proceeds of the execution by the bailiffs remains a challenge. Bailiffs, though officers of court and therefore expected to be persons of reputable and exemplary character, are, in many cases ruthless when carrying out execution. They engage in corruption to the extent of conniving and or colluding with judgment debtors not to execute warrants to the detriment of the judgment creditors;
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extort money from judgment debtors or both parties at times, misuse property attached during execution or deliberately misinterpret court orders to frustrate the process.
Delay in Submission of returns There are bailiffs who fail to submit returns in time after execution, or do not file any returns at all. This causes falsification of the records mainly by understating the number of cases that have been fully executed. At times, consents are entered into by the parties and bailiffs as to how the decree should be satisfied but without involving the court in the process so as to close the file, hence resulting into false statistics of backlog of cases. It is also a breeding ground for abuse of the execution process especially when bailiffs shield judgment debtors and return warrants of arrest without executing them and keep applying for extensions hence increasing delays and backlog. Bailiffs are also very reluctant to file bills of costs to claim their due payments preferring to pay themselves from the proceeds of the sales or from money demanded from both parties. Their misconduct goes unabated due to lack of adequate laws governing their actions.
Elusive Judgment Debtors Some of the judgment debtors escape from the court’s area of jurisdiction or have no known property to their names. For example, some companies, which I will refer to as “sham”, do not register any assets/properties used for running of the business in company names.
Poor Movement of court files In cases where the judgment debtor files an application for stay of execution, the file keeps moving between the two courts making execution very hard to accomplish. There is an unacceptable practice where it is left to litigants to facilitate movement of
files from courts that issue the decree to the Execution and Bailiffs Division or the files are picked by the Bailiffs themselves. This has always been a recipe for corruption, misplacement of important documents in the files, and other forms of malpractices and abuse; thus leading to obstruction and inordinate delay of matters, resulting in endless litigation.
Limited resources for the Division There is need for more funding to the division to facilitate the execution process. The Division has increasing costs related to transportation of files from trial courts to the Division Registry at the High Court as well as return of the files to the relevant courts. It is a back and forth process which needs to be provided for. Otherwise, as earlier mentioned the process breeds corruption and enhances manipulation of court users by court staff, bailiffs or advocates. More resources are also needed to enable the Division support the office of the Chief Registrar in inspection of Court Bailiff’s offices before licenses are issued, to reduce on fraudsters. There is also need to install lockable cabinets for safe storage of files to ensure safe custody of documents.
Requirement to clear warrants with police Bailiffs face numerous challenges with the requirement to clear warrants with the police. The clearance of the warrant must come from the Commandant of Police Land Protection Unit, Regional Police Commander, Resident District Commissioner (RDC), District Internal Security Officer, District Police Commander and finally, Officer in Charge of Police Station of the area. Of late, the bailiffs have to clear the warrants through the State Minister for Lands. All these procedures that prolong execution are expensive and also facilitate corruption at various levels,
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Law and Practice to the detriment of litigants. The poor and vulnerable litigants are more exploited in this regard resulting into more destitution. However, the involvement of police is necessary for security purposes.
Abuse of the Notice to show cause Often judgment debtors are not served with the notice to show cause issued by court; and yet Counsel for judgment creditors falsely claim service of such process, and then apply for warrant of arrest. It is this type of unprincipled practices that result in further litigation in response, thus leading to case backlog and waste of court’s valuable time.
Contempt of Execution orders by Police and Security Agencies
Opportunities and Recommendations Currently a Bailiff Herbert Zirahuka has petitioned the Constitutional Court to scrap the Execution and Bailiffs Division on grounds that it is an unconstitutional. This case like others before courts probably arise out of frustration with the current execution process but also offer opportunities to have interpretation and guidance on how to effectively and efficiently execute court orders. The fact that we are having a dialogue today as stakeholders is in itself an opportunity as we are going to share and discuss the lessons learnt; identify the existing gaps and make appropriate recommendations to move us forward if we are to have meaningful justice for the court users.
A number of times, the police have failed to appreciate their role in the execution process. They have allocated unto themselves the role of interpreters of the lawfulness or otherwise of warrants duly issued by court and have on many occasions refused to clear them (especially vacant possession and attachment) without consulting the courts issuing the warrants. In such instances they have refused to offer protection to Court Bailiffs as they execute court orders. This leaves no option to the bailiffs but to suspend the execution hence considerably slowing down the process and denying the successful party access to justice.
The challenges and experiences in execution of court orders provide various opportunities to improve and ensure effective justice for all. As a Division charged with execution, we would like to offer the following recommendations among others:-
Political interference in execution
■■ Ensuring timely execution and return of warrants to Court to enable certification to inform cases returns and also gauge the successful executions.
The political high and mighty of our society such as MPs, Ministers, Resident District Commissioners, and others have most unfortunately increasingly interfered with the execution process by wrongfully getting involved in issues of execution of warrants for vacant possession, and attachment of property. Some RDCs at times, even go against the court orders to the extent of providing judgment debtors with armed guards.
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■■ All of us stakeholders should act professionally. Lawyers and bailiffs are officers of court, while you are pursuing your clients’ interests and your personal interest which is to earn a living, remember to do so in accordance with the established laws and in the interest of justice for all parties.
■■ Encouraging parties to pursue out of court settlements instead of engaging in endless litigation such as applications for stay, setting aside execution or judgment and decree, or filing appeals with no merit.
lawful execution orders from court and allow the courts and bailiffs to act independently of coercion or manipulation. ■■ The police role should be to read and act on court orders as they appear, if not satisfied they should consult, otherwise they should offer protection to execution process. ■■ Creation of a body/an authority by law or practice direction to regulate the court bailiffs to ensure professionalism and accountability. ■■ The bailiffs should be reasonable and avoid exorbitant costs especially in cases of warrant of arrest. Among the litigants are the poor and vulnerable that despite lack of resources need to be supported to realize remedies from courts. Bailiffs’ Bills of costs should be filed in each case for taxation.
Conclusion There is an urgent need to address the challenges faced in execution of judgments and court orders to enable successful litigants to enjoy the fruits of their judgments. Issues such as inadequate training for bailiffs, low remuneration, weak regulatory framework, unfair distribution of warrants by Judicial Officers, and interference in the execution process by Government Agencies and Politicians must be addressed in consideration of the domestic, regional and global trends. We all have a contribution to make in making access to justice for all a reality and it is through continuous engagement of the various stakeholders that will make the court users and the public appreciate that litigation should always be the last option or has to be firmly brought to an end as soon as possible; and that advisably, as the best practice, execution can be carried out satisfactorily but with a humane face.
■■ Politicians should keep hands off
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Law and Practice
Life sentences in the aftermath of Susan Kigula By Hon. Lady Justice Catherine Bamugemereire, Court of Appeal
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his paper seeks to inquire into and to understand to create understanding towards the meaning of life imprisonment. It is presumed that a person who is sentenced to imprisonment has committed an offence of such gravity that the offender forfeits, for the rest of his human life, his right to be set free. A life sentence in Uganda is not the maximum penalty an offender would get for committing very serious crimes. The recent trend in the High Court of Uganda appears to reveal that Judges are willing to give far-reaching and determinate sentences in cases which could otherwise attract a maximum penalty of death.In December 2010 a Kenyan national, Duke Mabeya, 27, was sentenced to forty five years of imprisonment for the murder of his girlfriend who was also a university student. She had questioned him over a fraudulent transaction. While she had sent him to pay shs one million two hundred thousand as school fees in the bank, he brought a bank slip that read 12,000. Suspicious that she would soon discover his fraud, he lured her into a hotel room, which he had booked under false names. She was found dead in a pool of blood. Her blood stained belongings were found on him. In February 2011 a Rwandese national, John Habyarimana, was found guilty of the murder of a university student and sentenced to thirty years’ years imprisonment. Habyarimana, a herdsman, mur-
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Judges of the High Court of Uganda appear to be increasingly less willing to pass the death penalty. In addition the executive is even more reluctant to execute the convicts on death row. In view of the emerging themes around life imprisonment, proponents against long life sentences feel that prison cells are nothing more than cold coffins. On the other hand those for long life sentences say ‘lock them up and throw away the key’. dered the son of his employer and stole his mobile phone, money and shoes. The most recent long-term sentence is that passed on a traditional witch doctor. George Kabi was sentenced to fifty years imprisonment. He kidnapped a seven year old boy and cut off the genitalia of this child. Commonly these human parts are sold for use in shrines, to allegedly help people get rich, both here in Uganda and abroad. These look like a trend to a determinate life sentence. This leads to the question, what is a life sentence?
Meaning of a Life Sentence A life sentence is also commonly referred to as Life Imprisonment or imprisonment for life. Simply put, a person is sentenced to a life in prison when he is sentenced to a term pf imprisonment which ensures that he spends the rest of his earthly life in jail. This sentence is reserved for perpetrators of violent or serious crime. In some jurisdictions, a life sentence is the maximum penalty for the most serious offences such as murder. Uganda still upholds the death Penalty and maximum sentences as prescribed under the law. The real question for discussion is how long a life sentence ought to be? Indeed although the laws stipulated here below prescribe life imprisonment as the maximum for certain offences, no one can say with certainty how long life imprisonment is. Indeed whenever the court does not say
otherwise, the prison authorities are quick automatically deduct years of remission off any sentence as soon as a convict steps into prison. This had prompted Judges to put a determinate number top the years a person will spend on remand rather than leave it to the whims of a prison warder. The argument by some as was the case in England is that even a life sentence is too severe. Having said that, complainants in two of the cases earlier quoted, namely that of KintuMapeera and that of the Witch Doctor publicly denounced the 70 and 50 years, respectively, as too lenient. This is because life imprisonment can mean anything from spending five or so years in jail to serving one’s whole life behind bars. The public’s trust in the courts could wane if they learnt that life in prison does not necessarily mean life in prison. It would be an insult to a family if a convict of child sacrifice was found walking the streets within two to five years. Although it is a shocking and difficult thing to contemplate, keeping people in prison for the rest of their lives is the fairer option to sentencing them to death. A look at the various laws justifies the legal existence of life imprisonment sentences. ■■ Laws Which Impose a Sentence of Life Imprisonment ■■ The Constitution of the Republic of Uganda 1995
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Law and Practice ■■ The Judicature Act Cap13 ■■ The Penal Code Act Cap 120 ■■ The Prisons Act ■■ The Trial on Indictment Act Cap 23 ■■ Magistrate’s Court Act Cap 16 ■■ The Prisons Act ■■ The Criminal Procedure Code Act Cap 116 A long list of offences under the Penal Code Act carry with them a life term. Sentences which will clearly attract a term of life imprisonment include but are not limited to the following: ■■ Murder contrary to s.188 and 189 of the Penal Code ■■ Aggravated Robbery contrary to s.285 of the PCA ■■ Attempted Robbery contrary to s. 287 of the PCA. ■■ Manslaughter contrary to section 187 of the Penal Code Act (otherwise referred to as PCA). ■■ Attempted Murder contrary to s. 204 of the PCA ■■ Defilement contrary to s. 129 PCA ■■ Attempted implied under Aggravated Defilement contrary to s. 129(3) and s.129(4) ■■ Stupefying in order to commit a felony or misdemeanour contrary to s. 215 of the PCA. ■■ Infanticide contrary to s.213 of the PCA.
The list of offences could be longer. The main point here is that there is no doubt that life imprisonment is a lawful sentence in Uganda. kind. It is has an irreversible effect and thus cannot be revoked, there is no opportunity for the miscreant to be reformed and thus negating the rehabilitative goal to sentencing. Those against death penalty believe that it goes against our very nature, that it is cruel and inhuman. That death penalty is viewed as brutal, vengeful and a form of retribution which
Rational Behind Sentences According to Bentham, the father of Utilitarianism, general deterrence was the primary good consequence of punishment. He saw an unpunished crime as one that leaves the offender a delinquent. Deterrence however is to him a source of security for that society as it is a warning to all may have the same motives and opportunities for committing similar crimes. In his cost and benefit notion, punishment is a benefit to society. Utilitarians are also of the view that collective relief that results from a publicly pronounced verdict adds to happiness, leads to closure and security in a given society. Despite these utilitarian notions current thinking is that punishment should be restorative.
L-R: Commissioner of Prisons Johnson Byabashaija and Principal Judge Yorokamu Bamwine join graduates Moses Lwanga Ekwam, Susan Kigula, and Pascal Kakuru to cut a cake at their graduation ceremony in Luzira prison in 2014.
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A Move away from the Death Penalty Just like retribution is increasing seen as a primitive way to satisfy public anger, there is a general trend away from the death penalty. A penalty of death differs from all other forms of criminal punishment, not only in degree but in is not all together useful. The death penalty is a human rights and constitutional issue. In Uganda in particular, although the Penal Code prescribes death as a mandatory
Proportionality Claims There is a prevalent notion that a life sentence is too severe. It is also true that a sentence should not be grossly disproportionate to the severity of the crime. From the point of view of human rights activist, a life sentence is as severe as a death penalty. It is for such reasons that countries in Latin America have abolished penalties. They consider life sentence morally unacceptable and incompatible with their legal system. Under the European Convention on Human Rights Life sentence is not incompatible with the convention. A life sentence was found to be neither inhuman nor degrading. Considering the circumstances of the offender or the offence, it may be regarded as neither arbitrary nor disproportionate. In conclusion it is pertinent to ask if indeed Life in Prison was meant to be life in prison. In reaching decisions to release prisoners on remission or parole, more emphasis should be laid on their bad behaviour prior to coming into contact with criminal justice organs rather than their good behaviour in prison. There is a chance that such offenders remain a danger to their victims and the public when released. Obviously no two offences are the same, neither are they committed in the same manner. Hence a Judges’ unfettered discretion ought to be maintained. Whittling down of life sentences to a few years may be one reason the death penalty still exists.
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Human Rights
War Crimes: Holding Child Soldiers Accountable An insight in the Dominic Ongwen’s trial at the Hague. By Juliet Harty Hatanga, Principal Magistrate Grade One
In the world of international justice, it has often been said that states and societies must confront the past in order to move forward. This saying holds true for the International Criminal Court (ICC). Past record indeed shows that the ICC has enjoyed great support to become an entrenched feature of global polities. In deed the ICC altered humanities response to mass atrocities and political violence of a collective nature.
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hat said the ICC has not been absolved of strings of institutional ineptitude, political interference and contrivances. Many trials narrowly missed being thrown out by the pretrial chambers because of clumsy investigations, while others collapsed because of week evidence. The court has also been accused of bias towards western powers. It’s about time that the institution learns from its previous cavalier strategy. The conformation of charges against Dominic Ongwen under the new prosecutor FatouBensouda provides just that opportunity. Ongwen, a senior Commander in the LRA leadership, was on January14, 2015 transferred to the International Criminal Court to face charges of crimes against humanity and war crimes. The ICC indicted Ongwen and five other top Commanders of the Lords Resistance Army (LRA) after a referral of the “situation” in Northern Uganda by the government. A warrant of arrest was issued in 2005. At his first appearance Ongwen told the pre trial chambers Judge that he was abducted by the LRA at the age
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of fourteen and lived in captivity until the time when he surrendered in Central African Republic. In a separate interview with NTV, a local Broadcasting network in Uganda, Ongwen said that all he has ever known in his entire life is war; he thinks and dreams of it all the time. While in captivity, Ongwen rose in rank and is believed to have participated in abduction, massacres, willful killing, murder, rape, and sexual enslavement, mutilation, and maiming and child recruitment. The irony in Ongwen’s situation stems from the fact that he was abducted, indoctrinated and shaped into a killing machine against his will just like other children still in LRA captivity. Some of the former child solders have returned and they have been reintegrated into the community. It is not likely that they shall be tried for the kind of crimes that Ongwen now stands charged at The Hague. The bigger question then is at what point does the victim of mass atrocity cross the line of international crimes and ought to be held accountable for the crimes that he/she committed? Surely, just as domestic courts set age limits for criminal responsibility
of juvenile offenders. The international courts must, set a threshold when a child solider can be held criminally liable for war crime and crimes against humanity to stop impunity. An unprecedented 70 counts of war crimes and crimes against humanity and seven modes of liability must be tested at Ongwen’s trial, of which 19 are SGBV. Dominic Ongwen’s arrest has brought a lot of tension between human rights and conflict resolution activists. One scholar has asked, does a moral, legal and political obligation to the victims and survivors who demand accountability trump the possibility that justice may complicate conflict resolution?Retired Bishop Baker Ochola, a member’s of Acholi Religious Peace initiative, suggested that it was wrong, and inappropriate to take Ongwen to the ICC. He argued that, such an action would only jeopardize the lives of children and women still in captivity of the LRA. But how about the victims of the atrocities don’t they also deserve some form of justice?
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Human Rights come as no surprise when the defense team made a similar argument before the PTC, in support for a submission for exoneration from criminal responsibility, and in the event of a conviction I foresee similar submissions for a lenient sentence.
Titus Obali who claims to have spent a year under Ongwen presented an optimistic view. He claims to have witnessed Ongwen hack to death a captive while in South Sudan for attempting to escape with a gun. This was a demonstration of what would befall anyone who tried to escape. He wants justice to take its course. Winnie Laker, a war victim in Kitgum, northern Uganda, questions why the same standard is not applied to other former LRA commanders in her own wards,“It’s a double standards by government. Why didn’t they prosecute Kenneth Banya, OnenKamundulu and Sam Kolo [senior LRA commanders who received amnesties following their capture or surrender] who too committed atrocities in the region? Ongwen should be forgiven and pardoned. We want him to undergo Mato Oput.” To appreciate the tension between peace versus justice discourse in Ongwen’s trial one must first appreciate the underlying root cause of the tension. Many peoples in northern Uganda, including victims of the atrocities, feel that just like the LRA, the government should also be held accountable, for forcing them into the “protected villages” and failing to provide adequate protection. The UPDF is alleged to have participated in
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and exacerbated the suffering of the people in northern through, rape, murder and pillaging of property. The majority of the victims craves for acknowledgement for the wrongful acts and sees this as a form of as justice and accountability for the suffering they went through. Indeed, many people in the region see the LRA as their brothers, sisters, children and/or close relation and as such look to a conflict-centered approach. Ongwen is a victim of state failure to afford adequate protection to the civilian population. In view of the above, Ongwen’s “victimize as a child soldier” shall have a great bearing on the proceeding at the Hague, going by the precedent set in the trail of Thomas LubangaDyilo that centered on recruitment of child soldiers. The prosecutor Louis Moreno Ocampo made a persuasive argument to demonstrate the fragile and vulnerable state of child soldiers and stated that “the environment of terror” to which youth were subjected when forced to become soldiers and where “the oppressive environment deprived [them] freedom of choice”. This argument persuaded the court to reach a decision in favor of prosecutor that ultimately secured a conviction. It thus
ScholaslikeZivBohrer have argued that a brain washing or coercive-indoctrination defense should be recognized within the realm of international criminal law to excuse the conduct of individuals, “ When harsh coercive means such as abduction and indoctrination into military service at a young age have been used as a systemic approach on a person,” such a defense would excuse criminal actions committed even after the physical threat of harm has lifted. On the other hand, Lucia Seyfarth has argued that the extreme violence experienced by former child soldiers and their consequent disrupted development and failure to cultivate a functioning sense of morality should only be considered as mitigating factor. My personal view is that while, there exist protection for child soldiers in international Law and the Rome Statute, it is concomitant to age and demise on attainment of majority age. The time is now ripe for new jurisprudence to develop and the ICC should send out a clear massage. In any case many research has shown that those who commit violence in society have been victims themselves. While children by their very nature are vulnerable, there ought to be a point when such protection can be waived. In fact the PTC rightly observed that many faced with similar situations such as Dominic Ongwen choose a different path, opting to escape from LRA rather than rising up to its hierarchy. To borrow from the late Antonio Cassese “ Law is based on what society can reasonably expect of its members”. Thus vicious criminals who learn the art of killing at a tender age should not be allowed to hide under the auspice of vulnerability list it breeds’ impunity.
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The Bench
A case for Uganda’s lower bench By Hon Lady Justice Henrietta Wolayo, High Court Judge
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he Judiciary was therefore perceived as having laws that enabled it to operate and deliver its mandate without being troubled with management concepts that were seen to belong to other organizations with a business and profit making focus. Hence the Judicature Act currently Cap 13 provided for hierarchy of courts, their structure and their functions, read jurisdictions. The Magistrates Court Act Cap 16provided for jurisdiction of magistrates and procedures for executing their mandates. While these laws facilitate justice delivery, they are by no means a replacement for modern management practices as known today.
Operational Management Developed within the framework of supply chain management during World War II, the concept of operational management has spread to business organizations and the service industry. The key aspects of operational management are that inputs are transformed into outputs by a series of processes. It is these processes that are the subject of operational management. Weinrich et al (2003:4) define management as ‘the process of designing and maintaining an environment in which individuals, working together in groups, efficiently accomplish selected aim…As managers, people carry out the activity of planning, organizing, staffing, leading and controlling’
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The Judiciary is constitutionally mandated to determine disputes between the state and persons (both natural and legal) and as between persons per se. In the 1990s, if the subject of modern management of the Judiciary was raised, there would have been surprise from the insiders principally because law is seen as an end in itself, with the ability to operate through its structures. Going by the above definition, inputs are transformed into outputs through the managerial function of planning, organizing, staffing, leading and controlling. Operational management in justice delivery is apparent from the inputs (laws, people, financial resources) which are then transformed into outputs through induction, deployment, supervision and other variables. It is these processes(induction, supervision, talent management and coaching) that are the focus of the study and how their management impacts on public confidence. Since 1986 when there was increased public awareness of the duty of public servants to act in the best interests of the public, there have been as few as ten arrests of judicial officers for corruption related offences and only two of these have translated into successful criminal prosecutions. Yet every time the Inspector General of Government conducts surveys, Judiciary is ranked second as the most corrupt institution in the country. The few prosecutions and the negative image may be an indication of behavior that is perceived by the public as corruption but which does not attract criminal liability. This is a pointer to the preposition that there are challenges in tracking individual judicial behavior. What weaknesses in the system give room for this behavior?
My study explored the variables within management practice and made proposals for reform.
Talent management In an article ‘How to hang on to High Potential’, the authors explore what different multi-national companies have done to identify their high performing employees, develop and retain them in leadership roles. Fernandez –Araoz et al (2011:79) define ‘potential’ as the ability to grow and to handle responsibilities of greater scale and scope.’ According to the authors, their research shows that ‘Effective management of the next generation of leaders always encompasses three sets of activities. The first involves the establishment of clear strategic priorities,which shape the way companies groom high potential leaders. The second involves the careful selection of high potential candidates –and communicating who they are to others in the organization. The third comprises the management of talent itself-how high potentials are developed, rewarded, and retained.’(emphasis mine) A high potential employee is therefore a talented employee with the ability to deliver. The delivery of this employee is at three levels, according to Fernandez et al(supra),these include: (1) deriving
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The Bench Hence the way forward is the development of a supervision framework to provide for guidelines that are publicized to all.
Performance management Currently, performance management is governed by Public Service Regulations which provide for appraisal forms as a tool for evaluating performance of public servants including magistrates, drivers and office attendants.
insights from a vast range of information and discover and apply new ideas; (2) engaging others through emotions, logic, communicating a persuasive vision and connecting individually;(3) demonstrating resolve and drive towards the goal despite challenges. The high potential employee seeks understanding,constantly looking for new experiences, ideas, knowledge, asks for feedback and adjusts behaviour accordingly. JIC got it right when it recommended a rewards and recognition system to motivate, and retain employees. If implemented, this will be only a fraction of the concept of talent management as practiced in business enterprises. The entire process of establishing a strategy or policy, selection of high potential candidates, and developing that potential needs to be thought through prior to implementation. Once implemented, the strategy has the potential to move the Judiciary towards a corrupt free institution as judicial officers, the key drivers, will have a structural basis to choose ethical behaviour as they render judicial services to the people. In an in depth interview with a key informant on the variable of talent management, he revealed that the practice is to identify high performers through a number of mechanisms. The requirement for each magistrate to submit to the chief registrar monthly reports of work handled is a mechanism for identifying managers
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and officers with different skills. Other mechanisms used include participation in meetings, inspection reports, performance at training workshops, commendations by actors in the justice system, among others. The key informant admitted that magistrates are not aware that these mechanisms were applied in identification of talent. Indeed, nowhere is it recorded that there is a policy on identification of talent. Yet one of the requirements in a talent management strategy is communication. What is lacking is a documented policy known to all that systems on talent management exist.
Supervision From a broader perspective, supervision is a management function. The judicial function is a unique one where the holder of this function is expected to exercise independence in arriving at a decision. Indeed the Constitution of Uganda 1995, in Article 128, empowers courts to exercise judicial independence without control or direction of any person or authority. That said, supervisors in performing a management function, are focused on management aspects of effective justice delivery. They are in fact rendering management support to the officer, hence the need to track progress of cases allocated, tracking customer care issues, ethics, coaching and mentoring.
When asked whether they regularly fill appraisal forms, two magistrates said although they fill these forms, they were not an accurate tool for evaluating performance. Two supervisors said the forms did not have a question on ethical conduct yet this was a key attribute of every magistrate.
Induction All respondents agreed that induction training is relevant and useful for every magistrate who joins the bench. As an officer who has participated in induction courses as a trainer, I am in a position to evaluate the usefulness of induction. The rationale for induction is that the practice of the law and theory are two different things. Secondly, many of the appointees come with different experiences as practicing advocates, corporate lawyers or researchers and as such, they need exposure to what actually happens in practice.
Corruption Absenteeism by magistrates; delay in disposal of cases; missing court files; long stay on remand; lack of knowledge on court procedures; demand for payment by a clerk; demand by magistrate for money to grant bail; biased magistrate; frequent adjournment of cases; poor time keeping by magistrates, slow process of filing cases; clerks demanding money to serve court users; corrupt magistrates. Other respondents said magistrates keep time; deliver rulings in time; and dispose of cases speedily.
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The Bench
Effectiveness of internal controls While the internal controls (Code of conduct, Peer Committees, Complaints mechanisms, prosecutions, Judicial Integrity Committee, Judiciary Disciplinary Committee) are appropriate management tools for preventing corruption, the fact that unethical behaviour persists shows that there are other intervening variables at work.
Integrity a personal choice While internal controls are effective in addressing corruption and unethical behaviour, the challenge remains the persistent perception that judicial officers are corrupt. The explanation for this variance is that Integrity and ethical conduct are a personal choice. Bob Czimbal and Michele Brooks define ethics and integrity in the following terms: ‘Ethics: is an external system of rules and laws. Usually there are rewards when we follow the rules and punishments when we break them. A professional board or committee often monitors compliance. Many organizations have developed a Code of ethics that employees are expected to obey.’ ‘Integrity: is an internal system of principles which guides our behavior. The rewards are intrinsic. Integrity is a choice rather than an obligation. Even though influenced by upbringing and exposure, integrity cannot be forced by outside sources. Integrity conveys a sense of wholeness and strength. When we are acting with integrity we do what is right- even when no one is watching.’ It provided for in the Code of Conduct and Ethics for the Uganda Public Service. Rule 7 of the Code provides that ‘An appropriate reward and recognition shall be accorded to a public officer who exhibits good conduct’.
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With regard to discipline of judicial officers, the Judiciary Disciplinary Committee was established in early 2012 to inquire into complaints against judicial officers. Consequently, a case is made out for the establishment of a Rewards Committee to supplement the Judiciary Disciplinary Committee as part of a broad strategy on performance management.
Conclusion and Recommendations
The major research questions were thus:
■■ What are the existing management practices, systems, and policies in the service value chain? ■■ What challenges are faced by court users in accessing services from the courts? The study found that there is an absence of a documented policy on identifying high potential and talent management in general. While it is acknowledged that systems are in place to indentify high performers, this has not been communicated clearly to them. Therefore, it is recommended that management develops a policy in this area in order to motivate high performers and develop and reward them. On the variable of supervision by chief magistrates, the study found that while there is an existing best practice on supervision with each supervisor adopting his or her own style, there is need to develop guidelines to guide both supervisors and supervisees. On performance management, the study found the existing system has a focus on appraisal forms only. There is need to develop an integrated performance management system that pegs performance to effective justice delivery. The study found that the existing management system for induction of newly appointed magistrates is effective. Continuous improvement of the induction course is recommended.
With regard to effectiveness of internal controls to prevent, and deter unethical behavior, the study found that these internal controls are effective and that they moderate unethical behavior. The variations of persistent perceptions of corruption were explained in terms of integrity being a personal choice. Some magistrates or court staff choose to behave ethically while others choose unethical conduct. Continuous sensitization and administrative interventions to promote judicial integrity is recommended. With regard to corruption and lack of public confidence in the Judiciary, a large proportion of court users (58%) expressed dissatisfaction with service delivery at court premises, while 24% had been asked to pay for services. The study found a positive correlation between unstructured supervision, undocumented talent management policy,and undocumented coaching and mentoring policy with the lack of public confidence in the courts that were studied. The study therefore recommends a structured system of supervision by chief magistrates,a documented policy on talent management and coaching and mentoring policy. These interventions will bring out good behavior among magistrates which will in turn enhance public confidence in the Judiciary. The study also found that there are other factors that contribute to poor public confidence apart from management weaknesses. In light of this finding, it is recommended that further studies be carried out to ascertain other factors e.g. registry management, that contribute to poor public confidence in the courts studied.
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Election Petitions
The scene from the March 31, 2016 Amama Mbabazi Presidential Election Petition judgement at the Supreme Court.
Supreme Court recommendations: 10 reforms in Presidential Polls The Supreme Court has come out strongly to make ten recommendations aimed at creating reforms to have free and fair presidential elections in the subsequent election years.
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n order to see that these recommendations are this time round put into action unlike in the previous two presidential elections, the same court directed the Attorney General (AG), who is the chief government legal advisor to follow up these recommendations and report back to court within two years on the progress. The move by the nine justices of the court led by Chief Justice Bart Katureebe to hard press the government on these electoral reforms this time, followed the push by a group of Makerere lecturers for the same recommendations arguing that the previous ones had been brushed aside. The lecturers had joined Mr Amama Mbabazi’s presidential petition in which he was challenging President Museveni’s February 18 victory with the court giving its full and reasoned judgment on Friday.
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“We note that most of the recommendations for reform made by this Court in the previous presidential election petitions, have remained largely unimplemented. It may well be that no authority was identified to follow up. We have further noted that the Attorney General may object to withdrawal of proceedings. Therefore the Attorney General is the authority that must be served with the recommendations of this Court for necessary follow up.” the justices of the court ordered the AG This full and reasoned judgment of the court was read out but justice Jotham Tumwesigye on behalf of Chief Justice Bart Katureebe who was out of the country. Core to these recommendations was that the ten-day period within which to file a presidential election petition and also gather evidence to support it and the 30-days period within which the Supreme Court is to determine the same petition, is unrealistic.
To that effect, the justices recommended that the law should be amended to extend the filing and determination period to 60 days to enable the concerned parties and court to adequately prepare and present their case. “The 10 day period within which to file a presidential election petition and to gather evidence and the 30 days within which the Court must analyze the evidence and make a decision as provided under Article 104(2) and (3) of the Constitution and section 59(2) and (3) of the Presidential Elections Act (PEA) is inadequate.” observed the justices. “We recommend that the period be reviewed and necessary amendments be made to the law to increase it to at least 60 days to give the parties and the Court sufficient time to prepare, present, hear and determine the petition, while at the same time being mindful of the time
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Election Petitions within which the new President must be sworn in.” they recommended. The new recommendations of the court if put into practice, will also see a law enacted to bar the involvement of public servants from meddling in elections. In the March presidential election filed by Mr Mbabazi, one of the grounds that he raised before court to annul President Museveni’s victory was that public officers like the Executive Director of KCCA, Ms Jenifer Musisi and the Ms Allen Kagina, the UNRA boss, had campaigned for President Museveni. “The law should make it explicit that public servants are prohibited from involvement in political campaigns.” ruled the justices. The highest court also recommended that there should be no more fundraising or giving out of donations by presidential candidates including the president during the presidential campaigns. In the recent past presidential election petition, Mr Mbabazi had raised the bribery allegation against President Museveni when he alleged that the incumbent had bribed the electorate of West Nile with hand hoes in exchange of voting him and not his competitors. But the court didn’t hold President Museveni culpable of these bribery allegation on ground that evidence was laid before the court to show that the dishing out of the hand hoes to the electorate of West Nile was a government program that had started way long before the campaigns and that it was just an ongoing “Section 64 of the PEA deals with bribery. We note that Section 64(7) forbids candidates or their agents from carrying out fundraising or giving donations during the period of campaigns. Under Section 64(8), it is an offence to violate section 64 (7). However, we note that under Section 64 (9) a candidate may solicit for funds to organize for elections
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during the campaign period. Furthermore, a President may in the ordinary course of his/ her duties give donations even during the campaign period.” observed the justices Adding: “this section in the law should be amended to prohibit the giving of donations by all candidates including a President who is also a candidate, in order to create a level playing field for all.” The justices further in their recommendations to government, observed that while technology in election process should be encouraged like how the EC introduced the use of the Biometric Voter Machines in the February 18 general elections, the justices said the same should be backed by law. On the issue of state media outlets not giving equal air time to the opposition candidates to market themelves to the electorate during the campaigns, the justices were of the view that a law should be amended and punish those media managers and houses who refuse to grant equal air time to all presidential candidates. In the previous presidential election petition, Mr Mbabazi accused Uganda Broadcasting Corporation (UBC) of having only aired out President Museveni’s campaign messages and also given him air time to carry out his campaigns and yet other candidates were denied the same opportunity. The difference in this recommendation is that it’s the errant state owned media managers who will be punished. “Both the Constitution in Article 67(3) and the PEA in section 24 (1), provide that all presidential candidates shall be given equal time and space on State owned media to present their programs to the people. We found that UBC had failed in this duty. We recommend that the electoral law should be amended to provide for sanctions against any State organ or officer who violates this Constitutional duty.” the justices recommended
The other sticky issue that the court addressed itself upon was the amendments that were made just a few weeks to the start of the presidential campaigns. The justices recommended that incase there is need to amend electoral laws, the same should be done two years prior to the campaigns. During the cross examination of the EC boss Eng Badru Kiggundu in the Supreme Court, he confessed to have extended the period for nomination of presidential candidates because of the late amendment in the electoral laws that somehow disrupted their planning and flow. The amendments saw the presidential candidates who were previously given money and cars to help them in campaigns, the same logistics were withdrawn. The presidential nomination fee was also increased from Shs8m to Shs20m. We observed that the ECA and the PEA were amended as late as November, 2015. Indeed the Chairman of the Commission gave the late amendment of the law as the reason for extending the nomination date. We recommend that any election related law reform be undertaken within two years of the establishment of the new Parliament in order to avoid last minute hastily enacted legislation on elections. The justices also recommended that the law should be amended to make it permissible for the Attorney General to be one of the respondents in the presidential election on grounds that that there certain issues that need the response of the AG. As it is now, the electoral laws don’t provide for the inclusion of the AG as one of the respondents in the election petitions. The former premier had in his poll petition, included the AG as one of the respondents, the first of its own kind in the history of the presidential election petitions.
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Election Petitions
Amicus curiae application: Supreme Court ruling [CORAM: KATUREEBE,C.J; TUMWESIGYE; KISAAKYE; ARACH-AMOKO, NSHIMYE, MWANGUSYA, OPIO-AWERI, MWONDHA, TIBATEMWA-EKIRIKUBINZA, J JSC] CIVIL APPLICATION NO 02 OF 2016 [Arising from Election Petition No. 01 of 2016] BETWEEN 1. PROF. J. OLOKA-ONYANGO 2. PROF. SYLVIA TAMALE 3. ASSOC. PROF. CHRISTOPHER MBAZIRA 4. DR. RONALD NALUWAIRO 5. DR. ROSE NAKAYI (APPLICANTS) 6. DR. BUSINGYE KABUMBA 7. MR. DANIEL RUWHEZA 8. DR. KAKUNGULU MAYAMBALA 9. MR. DANIEL NGABIRANO IN THE MATTER OF AN APPLICATION FOR LEAVE TO INTERVENE AS AMICUS CURIAE BY THE APPLICANTS HEREIN ARISING FROM ELECTION PETITION NO. O1 OF 2016. AND AMAMA MBABAZI (PETITIONER) 1. YOWERI KAGUTA MUSEVENI 2. ELECTORAL COMMISSION 3. ATTORNEY GENERAL ( RESPONDENTS) RULING OF THE COURT The above named 9 applicants who are lecturers of law at Makerere University School of Law, jointly applied to this Court seeking leave of this Court to intervene in Election Petition No. 01 of 2016 as Amicus Curiae as well as leave to address the Court by way of oral and written submissions at the hearing of the Petition on a joint Amicus Curiae Brief. The Application was brought by Notice of Motion under Articles 1, 3(4), 17, 54, 104(5), 126 (1), 127 and 128 (3) of the Constitution, Objective XXIX of the Constitution, Section 59(3) of the Presidential Election Act, Rules 2(2) of the Judicature (Supreme Court) Rules S.I. 13-11, Regulation 15 of the Presidential Elections (Election Petitions) Rules, S.I. No. 13 of 2001, Sections 14, 33 & 39(2) of
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the Judicature Act, Section 98 of the Civil Procedure Act, and Order 52 of the Civil Procedure Rules. It was supported by the following 11 grounds spelt out in the Notice of Motion. 1. That the Applicants are Ugandan citizens and all are prominent scholars and distinguished lecturers of Law at the Makerere University School of Law, with a keen serving interest in and commitment to promoting respect for and observance of Constitutionalism, the rule of law, democratic governance and the effective regulation and conduct of the electoral process in Uganda. 2. That the applicants have a vested interest and sufficient interest in the determination of the head petition as is set out in the statement of the Amicus curiae’s interest in the result of the Petition. 3. That the applicants, who are all independent of the dispute between the Parties in the head Petition, have carefully studied and paid keen interest to all Uganda’s elections and are ardent believers in the need for the continuous improvement in the manner of regulation and conduct of the electoral process in Uganda. 4. That the applicants have studied the previous decisions of this Honourable Court in past Presidential Petitions in Uganda of 2001 and 2006, and are intent on making a cogent submission that will not only assist the Court in arriving at a just decision in the present Presidential Petition, but will ultimately constitute an improvement to Constitutionalism, the rule of law, democratic governance and electoral reform in Uganda. 5. That the applicants have perused the Amended Presidential Petition filed by the Petitioner in the head Petition and all the responses thereto, and find that there are matters that are central to its determination and the general regulation and conduct of the electoral process in Uganda that have not been canvassed by either party, but which are pertinent for the Court’s consideration in determining this petition and in helping the process
of streamlining the electoral process in Uganda. 6. That the applicants, who are not partisan and do not intend in any way to support either party to the Presidential Petition, or descend into the arena of the dispute between the parties. 7. That the applicants will be able to make a unique and astounding submission/ contribution to the Petition without taking away the litigation from the parties to the Petition. 8. That the applicants’ brief is intended to be restricted to expression of view that represent the concerns of a wide crosssection of the Ugandan citizenry that have an interest in a harmonious electoral process and a commitment to upholding the Constitution of the Republic of Uganda, the rule of law, democratic governance and electoral reform in this country, which is pertinent in benefitting this honourable Court in performing its Constitutional duty for the benefit of other stakeholders in the electoral process, who are not party to the head Petition but have a keen interest in its result. 9. That the adequate representation of the citizenry in Uganda, the Civil Society and advocates and proponents of electoral reform and democratic governance will be missing in the petition if the applicants are not granted leave to intervene and make a contribution/ submission as Amicus curiae. 10. That the intervention by the Applicants as Amicus curiae outweighs and potential opposition from the parties to the Petition. 11. That in the interests of justice and promotion of electoral democracy and reform in Uganda that the Orders sought herein be granted. The application was supported by affidavits sworn by Professor J.Oloka Onyango and Dr. Christopher Mbazira, Associate Professor of Law. The rest of the applicants swore affidavits authorizing Professor Oloka Onyango to depone on their behalf in support of the joint application.
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Election Petitions Representation
Grounds of Objection
At the hearing of the application, the applicants were represented by Mr. Mulema Mukasa, Mr. David Sempala and Mr. Robert Kirunda.
(i) That the applicants’ brief is broad and general based on precedents of past Presidential Election Petitions and thus nothing novel was being brought to the court.
The 1st respondent was represented by Mr. Didas Nkurunziza, Mr. Peter Kabatsi, Mr. Herbert Byenkya and Mr. Bruce Musinguzi.
(ii) That the applicants do not demonstrate special or unique expertise in the areas of Constitutional Law, Human Rights, Democratic Governance and electoral reforms in presidential election disputes.
The 2nd respondent was represented by Mr. Mac Dusman Kabega, Mr. Enos Tumusiime, Mr. Erison Karuhanga and Mr. Oryem Okello. The 3rd respondent was represented by the Deputy Attorney General- Mr. Mwesigwa Rukutana, Mr. Francis Atoke-Solicitor General and Ms. Patricia Muteesi- Principal State Attorney. The petitioner was represented by Mr. Mohammed Mbabazi, Mr. Asuman Basalirwa, Mr. Michael Akampurira, Mr. Elvis Twenda and Mr. Twinobusingye Severino. Submission of Applicants The grounds justifying the intervention of the applicants as amicus were canvassed in their Notice of Motion, which we have reproduced above, supporting affidavits and oral submissions. The essence of the application was that the applicants intend to help this court by making cogent submissions which would not only enable the court in arriving at a just decision in the present petition but also improve constitutionalism, the rule of law, democratic governance and electoral democracy in Uganda. It was the submission of the applicants that they were professional experts in matters of constitutionalism, good governance and human rights which expertise would benefit the court in reaching a just decision in the Election Petition if admitted as amicus curiae. Counsel for the petitioner in the main petition raised no objection to the application. In reply to the applicants’ Notice of Motion, Justine Kasule Lumumba, Secretary General of the National Resistance Movement (NRM), the party that sponsored the 1st Respondent swore an affidavit in reply opposing the application. Jude Mwassa and Fredrick Ruhindi, the Attorney General, also swore affidavits in reply opposing the application on behalf of the 2nd and 3rd respondents, respectively.
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(iii) That the applicants are neither independent of the dispute between the parties nor are they neutral, having solely and or collectively expressed biased statements against the 1strespondent as evidenced by various articles authored by the 1st ,2nd ,3rd and 6th applicants attached to the affidavits in reply to the motion. (iv) That the applicants’ intention is to expand the scope of the dispute beyond the issues agreed upon by the parties. That this expansion also seeks to import alleged concerns of a wide cross section of the Ugandan citizenry, civil society, and advocates which defeats the status of the applicants as amicus curiae. (v) That because of the limited time within which to determine the presidential election petition, the admission of the applicants would prejudice the parties. Submissions in rejoinder In rejoinder, the applicants’ counsel essentially contended that the admission of the applicants as amicus was important for two reasons; 1. to determine if the non-action by state agencies on the observations of the court in the last two elections in any way had a bearing on whether or not the Presidential election in dispute was free and fair. And 2. to aid court in making rightful steps and recommendations to avoid the re-occurrence of the same election disputes thereby improving democratic governance and the electoral practices of this beautiful nation. The applicants further submitted that the above had not been canvassed by the parties in the petition and thus justified their contribution to the proceedings in the court as amicus. In regard to the objection of the neutrality and bias of the applicants, it was contended
that there was no bias whatsoever in the intended amicus brief and that none of the parties in their affidavits in reply to the motion had pointed to bias in the brief. In this regard, Counsel for the applicant submitted that bias must be determined on the basis of the intended submission before the court and not on extraneous facts. Consideration of the Application Black’s Law Dictionary 9th Edition at Page 98 defines amicus curiae as follows: “[Latin “friend of the Court”] A person who is not a party to a law suit but who petitions the Court or is requested by the Court to file a brief in the action because that person has a strong interest in the subject matter” We are alive to the fact that there are no specific provisions governing this Court in determining which person or organization qualifies to be amicus curiae in Presidential Election Petitions or in any other proceedings before Court. We note that prior to this application, there have been a few instances when this Court has been moved by applicants seeking to be amicus curiae. In Attorney General v. Silver Springs Hotel Ltd & Others, Supreme Court Civil Appeal No. 1 of 1989, this Court held that an appearance by amicus curiae had to be at the invitation of Court, and not by application of a party seeking that status. The Court also further held that the friend of Court must be a person without interest in the suit. In Edward Fredrick Sempebwa v. Attorney General, Misc Application No. 90/86, court rejected an amicus curiae application on ground that the applicant had failed to point out what point of law was overlooked and that the parties were ably represented We note that this Court’s holding in Attorney General v. Silver Springs Hotel Ltd & Others, (Supra) is no longer good law. This is evidenced by the Court’s subsequent acceptance of amicus applications brought before it. In NSSF & Another v. ALCON International Ltd, Supreme Court Civil Appeal No. 15 of 2009, the Court considered an application for amicus curiae and only rejected it on grounds that the applicant had not shown his expertise in the matter and had not demonstrated that he would be of assistance to the Court in resolving the dispute before it. Furthermore, an application for amicus curiae was made in Uganda v. Thomas Kowyelo, Constitutional Appeal No. 01 of UJOA JOURNAL | November, 2016
Election Petitions 2012 subsequent to Court’s hearing of the appeal. However, Court declined to hear the application on grounds that the hearing had already been closed and Judgment in the appeal reserved. In line with Article 132(4) of the Constitution which permits this Court to depart from its previous decisions where it deems it right to do so, we find and hold that the decision of Attorney General v. Silver Springs Hotel Ltd (supra) on the law governing amicus curiae is no longer good law. Further still, we observe that the participation of amicus curiae in litigation is a practice which is increasingly being entrenched not only across common law and civil law jurisdictions but also in domestic and international legal tribunals. We must also note that the said practice has found place in the East African Court of Justice Rules of Procedure, which allow participation of amicus curiae in court proceedings. We specifically also note that Kenya provides for amicus procedure in its 2010 Constitution whereas in South Africa, legislative provision was first made through the Constitutional Court Rules in 1995. We are also aware that Uganda is a member of the East African Community and that in more recent times, the East African Court of Justice which was established under the East African Community Treaty has rendered several decisions on amicus curiae arising from disputes involving Uganda as a party. These include Secretariat of the Joint UNAIDS Programme on HIV/AIDS v. Human Rights Awareness Promotion Forum (HRAPF) & Attorney General of Uganda, Application No. 03 of 2015; Uhai Eashri, Health Development Initiative-Rwanda v. Human Rights Awareness Promotion Forum (HRAPF) & Attorney General of Uganda, Applications No. 20 & 21 of 2015; and Dr. Ally Possi, Centre for Human Rights, University of Pretoria v. Human Rights Awareness Promotion Forum (HRAPF) & Attorney General of Uganda, Application No. 01 of 2015. In the UNAIDS Application (supra), which was cited by counsel for the 3rd respondent, the East African Court of Justice granted the application of the Joint UNAIDS Programme to be joined as amicus curiae. This decision is important and relevant to the present application in two aspects. The first is that Uganda was a party to this dispute. Secondly, UNAIDS was admitted, in spite of objections made by the respondents that due to UJOA JOURNAL | November, 2016
prejudicial statements it had issued in its ordinary course of business against some of the respondents, UNAIDS could not be impartial In arriving at this decision, we are also mindful of the fact that under Article 126 (1) of the Constitution judicial power is derived from the people and is exercised by the Courts on behalf of the people. In the absence of legislative provisions on Uganda’s statute books, we will be guided by Section 39 (2) of the Judicature Act as well as by principles developed by courts in various jurisdictions in determining the admission of amicus curiae. The following are some of the accepted principles. 1. Participation of amici is purely at the discretion of the court. 2. Amicus curiae can be important and relevant in matters where Court is of the opinion that the matter before it requires some kind of expertise which is in the possession of a specific individual 3. The ultimate control over what the amicus can do lies exclusively with the Court. 4. The amicus must be neutral and impartial. 5. The submissions must be intended to give assistance to the court it would not otherwise enjoy. 6. Limited to engagement with matters of the law. 7. Submissions draw attention to relevant matters of law- useful, focused and principled legal submissions not favouring any of the parties. 8. The amici must have valuable expertise in the relevant area of law and general expertise in law does not suffice. 9. The points of law to be canvassed should be novel to aid development of jurisprudence 10. The participation must be in the wider interest of public justice. 11. The interest of the amicus is its ‘fidelity’ to the law. 12. An amicus should address court on points of law not raised by the parties but is of concern to the court.
13. Remind the court of legal matters which have escaped the court that may cause a wrong interpretation of law. 14. An amicus shall not introduce new/ fresh evidence. 15. .Where in adversarial proceedings, parties allege that a proposed amicus is biased or hostile towards one or more of the parties, or where the applicant through previous conduct, appears to be partisan on an issue before the court the court will consider such an objection by allowing the respective part to be heard on the issue. 16. The court will regulate the extent of amicus participation in the proceeding to forestall the degeneration of amicus role to partisan role. 17. Whereas consent of the parties to the proposed amicus role is a factor to be taken into consideration, it is not the determining factor. Furthermore, objections raised by the parties is a factor to be taken into consideration but is not the determining factor. Issues The issues for determination in this application are: 1. Whether the applicants have expertise in the relevant area of the law 2. Whether the amicus are neutral 3. Whether the intervention would expand issues already agreed upon by the parties 4. Whether the points of law which the applicants intend to canvass are novel and would aid development of jurisprudence. 1. Expertise We are satisfied that the applicants have proven record in the area of Human Rights, Constitutionalism and Good Governance. They are highly experienced and widely researched legal scholars in these and related matters as evidenced by the attached curricula vitae. 2. Impartiality and Neutrality. It is a settled rule of practice of courts in various jurisdictions that for a person to be admitted as amicus, they ought to possess a status of neutrality and impartiality. Dispute resolution in common law
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Election Petitions jurisdictions is essentially adversarial in nature and we do not accept the blanket submission of counsel for the applicant that the principle of impartiality and neutrality has long been outdated. In this, we are guided by the principle that justice must not only be done but also seen to be done. The 1st respondent in refuting the impartiality and neutrality of the applicants referred this Court to written articles by the 1st, 2nd, 3rd and 6th applicants which revealed bias against the 1st respondent. The respondents submitted that court should not entertain such partisan people to come under the guise of being friends of the court. However, although objections to the admission of an application as amicus curiae are a factor to be taken into consideration, it is not the only determining factor. See Secretariat of the Joint UNAIDS Programme on HIV/AIDS v. Human Rights Awareness Promotion Forum (HRAPF) & Attorney General of Uganda, (Supra). What Court is called upon to do is balancing the wider interest of justice and the benefit of the participation of the intended amicus to court against the risk of the amicus descending into the litigation between the parties. An amicus is the friend of the court and the court can only take what it considers relevant and nonpartisan from the amicus and the ultimate control over what the amicus can do is the court itself. Aware of the concern of the respondents, Court will be vigilant in ensuring that the applicants will not overstep their amicus brief and the directives given herein so as not to prejudice any of the parties to the proceedings. Court will ensure that the intervention will not serve to widen the case between the parties or introduce a new cause of action. In arriving at our decision to allow this application, we have also taken into account the role envisaged of this Court under the Constitution, when it is seized with a Petition arising out of a Presidential Election. We have considered two possible approaches the Court can adopt in this matter in the course of its inquiry. The first being to limit our role only to the Petition as presented by the Petitioner as an aggrieved candidate under Article 104(1) of the Constitution and also under Article 104(3) of the Constitution to inquire into the Petition and make our findings. The other approach is to view the Court’s role within the wider context of the Orders it is
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empowered to make under Article 104(1) and Article 104(5) which include
2. Aiding court to exercise its residual power in emphasizing structural interdicts.
1. That a candidate declared by the Electoral Commission elected as President was not validly elected;
We do accept the submissions of the applicant that structural interdicts/ supervisory injunctions is a remedy which is yet to take root in our jurisdiction and more specifically in electoral disputes. The matter has not been canvassed by any of the parties in the petition.
2. To declare that another candidate was validly elected; and 3. (c) To annul the entire Presidential election. We are aware that by virtue of the powers vested in this Court under Article 104 (3) and 104 (5), our decision in an Election Petition is likely to affect many Ugandans who participated in the election, as well as those who did not participate. It therefore follows, in our view, that the Court should at all times be mindful of its role in this broader context, because it is seized with a matter of great public importance. If Court were to prefer the narrow interpretation, or restrict itself to considering only those Presidential candidates who feel aggrieved, the Court would be excluding or making an interpretation that is inconsistent with the spirit of the Constitution which vested in it wider powers to hear, determine and make pronouncements on Presidential Elections as a whole. Given this responsibility vested in the Court by the Constitution, the Court has concluded that this great public interest and importance outweighs the concerns or objections raised by the respondents to the applicants as amicii curiae in the Presidential Election Petition No. 1 of 2016. We are further convinced that the potential prejudice to the respondents (if any) will be curtailed by the principle of regulation of the extent of amicus participation in the proceeding to forestall the degeneration of amicus role into partisan role. The Court retains the power to determine what use it will make of the brief (if any). Novelty We have examined the intended brief of the applicants and also examined the scope of the assistance the amicus intends to give court. 1. To appraise the persistent flaws with the electoral process in Uganda and offer practical/ effective recommendations in electoral law reforms which will go great lengths in determining the electoral disputes before the court .
The other point on which the applicants seek to address the Court rotates around the legal implications of non-action by state actors in regard to recommendations made by this Court in previous electoral disputes. The recommendations intend to improve electoral democracy. We find that a submission on the crafting of effective remedies and recommendations is a novel point that would essentially benefit the Court. We are thus satisfied that the applicants’ brief in essence raises points of law and the participation of the applicants as amicus curiae would benefit the court in arriving at an informed decision. Order Having considered the pleadings and submissions of the parties, and carefully analyzed the law, Court finds that the applicants satisfy the criteria for admission as amicus curiae. We therefore order as follows: 1. The applicants be allowed to file a written brief to the court as amicus. 2. The brief shall be strictly limited to points of law and specifically: ■■ Proposing reforms relating to Presidential Elections. ■■ Proposing judicial remedies related thereto. 3. The brief shall not go into matters of evidence or raise new issues not before the Court. In exercising our discretion to allow the application, we charge the amicus to abide by its limited role described herein. The brief shall be filed in this Court and served on the other parties by the 17th of March 2016.
UJOA JOURNAL | November, 2016
UJOA President, Godfrey Kaweesa getting a handshake from the Hon. Prime Minister, Ruhakana Rugunda during the 2016 EAMJA Conference at Speke Resort Munyonyo
A crosssection of delegates from different countries in East Africa at the EAMJA Conference in Kampala.
The Chief Justice with part of the local organising committee of the East African Magistrates and Judges Association at his chambers at Supreme Court.
Seedlings at Masindi Court that have beendistributed to all High Court circuits as part of the NAADS wealth creation.
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UJOA JOURNAL | November, 2016