Saturday July 12 2014

Judiciary wants Chief Justice to retire at 75

Maj Gen Kahinda Otafiire, Minister of Justice

Maj Gen Kahinda Otafiire, Minister of Justice and Constitutional Affairs. The new proposed amendments, which are to be incorporated in the Constitutional Amendment Bill, were submitted to him. PHOTOS BY FAISWAL KASIRYE 

By Anthony Wesaka

Kampala.
The Judiciary has made a list of proposed amendments to the Constitution which will seek to raise the retirement age for judges.
The new proposed amendments, which are to be incorporated in the Constitutional Amendment Bill, were submitted to the Minister of Justice and Constitutional Affairs, Maj Gen Kahinda Otafiire, on May 16 for Cabinet consideration.

The Judiciary recommends that the retirement age of the Supreme Court, Court of Appeal and Constitutional Court judges be raised from the current 70 to 75. The Judiciary also proposes that a High Court judge retires at 70 years, contrary to the current retirement age of 65.

The proposed amendments are likely to draw mixed reactions from the public, coming at a time when the current stand-off following President Museveni’s reappointment of former Chief Justice Benjamin Odoki back to the bench and as head of the Judiciary, has not been resolved. The reappointment has been challenged in court by Western Youth MP Gerald Karuhanga, who says Mr Odoki’s reappointment is unconstitutional since he clocked the mandatory retirement age of 70.

The Judiciary, however, insists the move to raise the retirement age of judges is to enhance delivery of justice.

“Judges retiring at the age of 65 and 70 as the case may be, are still capable of performing their duties with distinction. Besides, the quality of a judge increases with age and experience, which may be lacking in much younger people. In addition, Ugandan judges, who have retired from service, are normally hired by other countries to serve as judges who benefit from judges they never trained, mentored or coached,” reads the draft of the proposed amendments sent to cabinet.

The Judiciary further reasons that the retirement of judges at the current age limits, leaves the country with a burden of recruiting and training new judges who hardly serve for 10 years before hitting the retirement age.

Appointment of Deputy Chief Justice
Under the current Constitution, particularly Chapter 8, the Deputy Chief Justice is not a member of the Supreme Court but of the Court of Appeal which also constitutes itself into a Constitutional Court when hearing a constitutional case. The Deputy Chief Justice is head of the same court, which is the second highest court to the Supreme Court.

Under the proposed amendments, the Judiciary wants this hierarchy to be revised and make the Deputy Chief Justice a member of the Supreme Court. The Judiciary contends that this will help the Deputy Chief Justice to deputise the Chief Justice effectively, guide the entire Judiciary and that this will “augur” well with the hierarchy in the judiciary.

The Judiciary further recommends that the Court of Appeal/Constitutional Court be headed by a justice to be conferred upon the title of “President of the Court of Appeal” and not the Deputy Chief Justice as is the case now.

Appointment of administrative staff
Currently, the administrative staff of the judiciary is appointed by the Judicial Service Commission (JSC) and the Public Service Commission.
The Judiciary says this creates double allegiance and distorts the delivery of justice. For that reason, the Judiciary proposes an amendment to the Constitution that with exception of the Secretary to Judiciary who is appointed by the President to manage funds, all the administrative staff of the judiciary be recruited by the JSC.

Appointment of acting justices
Currently there is no provision to cater for the appointment of “acting judges” on a short-term tenure to deal with case backlog and emergencies. It says that in other jurisdictions, acting justices can be appointed from serving judicial officers on a short term basis to assist courts in handling case backlog. The Judiciary recommends that the President be given powers to appoint acting judges but upon the advice of the Chief Justice and JSC.

Appointment of justices of Supreme Court and Court of Appeal/Constitutional Court
The number of justices of the Supreme Court and Court of Appeal/Constitutional Court was recently raised from 7 to 11 and 9 to 15 respectively. However, the proposal is that the number be again increased further to 15 for the Supreme Court and 28 for the Court of Appeal/Constitutional Court to manage the increasing litigation and case backlog in courts.
Representation on JSC
The other proposed amendments include; having a lower judicial officer such as a magistrate or registrar to represent views of the lower courts on the Judicial Service Commission. Currently, one Supreme Court justice represents the views of the whole Judiciary on the JSC.

Removal of judge from office
Currently, a judge can be removed from office for inability to perform the functions of his/her office arising from the infirmity of the body or mind.

The decision of the tribunal on health matters affects the timely removal of a judge from the office because their recommendations are not informed by the medical board.

But in the proposed amendment draft, the Judiciary recommended that the affected judge should be referred to the Medical Board by the Tribunal appointed under Article144 of the Constitution which shall act on the report to decide whether or not to remove a judge from office.

Special courts for terrorism
The other proposals include creation of special courts to handle terrorism and minimum years of legal experience for a person to qualify for High Court judge.

The Judiciary has recommended that the International Crimes Division of the High Court (ICD) that was set up to try terrorism cases, be empowered to try these cases. So far, only five cases have been handled in this court ever since its inception about three years ago.

chief justice to head jsc
Currently, the Judicial Service Commission (JSC) is being chaired by a person who is qualified to be appointed a justice of the Supreme Court other than the Chief Justice, Deputy Chief Justice and Principal Judge.

However, during brain storming, a section of those involved in coming up with views suggested that the Chief Justice be made the head of the JSC too so that he may have meaningful control of the affairs and management of the Judiciary.

They also suggest that Uganda should pick a leaf from the Judicial Service Commissions in the East African member states and other African countries that are chaired by the Chief Justice.
The other reason they gave in support of having the Chief Justice as the head of JSC was to have him/her have a say and control of disciplinary matters in the Judiciary.

They also suggest that the Chief Justice should be at par with other arms of government that have full control of their arms like how the Speaker of Parliament who also heads the Parliamentary Commission.

But on the Contrary, another section of those collecting views for the proposed constitutional amendments opposed the amendment to have the Chief Justice as the head of JSC.

They argued that such a scenario could see the Chief Justice favouring a section of certain people and deny some appointment to the bench.
They also suggest that the absence of the Chief Justice from the JSC safeguards internal Judiciary staff against the excesses and whims of the Chief Justice.

Considering the pros and cons of having the Chief Justice as the head of JSC, the Judiciary decided to answer the same in the negative by agreeing not to have the Chief Justice as the head of the JSC.

other proposals
Attorney General consulting Supreme Court: There is no provision in the Constitution that requires the Attorney General (AG) to seek legal advice from the Supreme Court on issues of law and constitutional interpretation except through a constitutional petition.

The Judiciary says this limits the chief government legal advisor from seeking the opinion of the Supreme Court on constitutional matters, which may not be under dispute but require clarity and if that clarity is sought by way of opinion, the process would be lengthy.

The Judiciary now recommends in its amendment draft that a lesson be drawn from the sister regional states and provide for the AG to seek an opinion from the Supreme Court.

awesaka@ug.nationmedia.com

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