Thursday July 17 2014

Politics of retirement age will strangle the Judiciary

By Karoli Ssemogerere

It comes as an afterthought to many Ugandans that the official name of our beloved country is the Republic of Uganda. Article 1 of the Constitution, among others, provides that the people of Uganda shall be governed through their will and consent. Article 5 of the Constitution states Uganda is a sovereign state and a republic. The state of our Republic is not perfect. Countless disputes between citizens, and the State and vice versa have to be settled through the courts. The exercise of judicial power under Article 126 is derived from the people and is only exercised by the courts.

One decade after Parliament voted to delete the two consecutive term limit on the holder of the Office Of President of the Republic of Uganda, the Judiciary has “called in sick”, asking for a review of retirement age of Judges of the High Court, Justices of the Court of Appeal and the Supreme Court. By adding five years to their current retirement age prescribed by Article 144 of the Constitution providing that Judges of the High Court shall retire at 65 years; and Justices of the Court of Appeal and Supreme Court shall retire at 70.

This topic, along with term limits for the presidency, were extensively debated in Committee No. 2 of the Constituent Assembly chaired by DP CA delegate and later Supreme Court Justice Joseph Nyamihana Mulenga. Committee No. 2 decided on 65 as the retirement age at the High Court for the reason that the workload of Judges of the High Court was heavier than that of the appellate Justices whose retirement age was pegged at 70. Then, as now, the civil service retirement age was 60 years – itself an upward revision from 55 on recommendation of the Public Service Restructuring Committee that trimmed the traditional civil service between 1990 and 1995.

In the Judiciary the debate on retirement age could not have come at a more opportune time. It is an open secret that a new wave of mandatory retirement is about to hit the Judiciary again. In the next five years, the Court of Appeal will lose more than half of its membership. Only two members of the Supreme Court will still be in their 60s at the end of 2019. The High Court is on course with a heavy round of retirements of the Law Classes of 1975, 1976, 1977, 1978 and 1979 for those who have not been lucky to be elevated to the higher courts.

It goes without saying that the ongoing debate on the leadership vacuum in the Judiciary, which has gone without a substantive Chief Justice or Deputy Chief Justice for more than a year, is unprecedented. The current vacancies were occasioned by the retirement of Chief Justice Benjamin Odoki and Alice Mpagi Bahigeine in 2013 and 2012 respectively. This state of affairs could not have been one contemplated even once by the framers of the Constitution. Of all three arms of the government, fewer checks were devised for the Judiciary which won more entrenched powers than the Legislature in the mistaken belief that judicial prerogatives could not be abused.

If Parliament approves this change, it will impede the ranks of junior Judges and magistrates working hard to be considered for promotion. At the helm, it will be very difficult for judicial officers to consider without bias long overdue legal challenges to the continuation of a limitless term presidency. It most likely will result in unequal treatment for many good Judges, starting with Chief Justice Samuel Wako Wambuzi and others who as men and women of honour, played by the rules and went into retirement without spending even an extra day in office. This darkness and selfishness of character is killing public institutions and public life in Uganda and the hallowed Judiciary will neither be the first nor the last!

Mr Ssemogerere is an Attorney-at-Law and an Advocate.