In Part I, we observed that there is a mess in the Judiciary because the provisions of the 1995 Constitution made by the people of Uganda and approved by their delegates in the Constituent Assembly have either been ignored or violated altogether.
The Constitution provides that anyone can lodge a complaint against any judge or judicial officer for the violation of the same Constitution and other offences in his or her duty arising from infirmity of body or mind or for misbehaviour or incompetence. The procedure for investigating and removing such suspect from the Judiciary are clearly set out in the Constitution.
There is the question whether the removal of a judge or a judicial officer shall initially be lodged with the Judicial Service Commission. In the case of a judge, the Judicial Service Commission, if satisfied that there is a case to answer, shall submit its report to Cabinet and the Cabinet shall advise the President to set up a tribunal to investigate further.
It is only when the tribunal is satisfied that the case is made out that they recommend to Cabinet that, that particular judge should be removed from office. The President is bound to act in accordance with tribunal’s recommendation.
With regard to any other judicial officer, the Judicial Service Commission investigates and disciplines the officer concerned. The membership of the tribunal and of the Judicial Service Commission are predetermined and prescribed by the Constitution itself.
When a question of removing a judge or a judicial officer has been referred to the relevant body, the President shall suspend the judge or judicial officers from performing the functions of their respective offices. If they are cleared then the suspension ceases to operate. These requirements are strictly binding.
The problem we are facing is that we have totally abandoned them. Several years ago, I was commissioned, together with a senior counsel, to investigate corruption and other offences that where commonly talked about against Ugandan judges and judicial officers.
We submitted our separate reports that separately found that there was rampant corruption in the Judiciary and we named culprits and suspects.
Our reports were prepared and submitted on condition that we would be protected from exposure, particularly from the judges and judicial officers named in our reports.
Unfortunately, our findings and recommendations were circulated to the judges and judicial officers we had named. We were branded enemies of the Judiciary. The result was that judges and lawyers decided to boycott us or give biased judgment in any matter we were involved in as lawyers.
Subsequently, the case files I had compiled together with written evidence on each judge and judicial officer named were returned to me with written comments on each by the named suspects and their judicial colleagues summarily dismissing the report as biased and trash.
Ironically, shortly thereafter, the Judiciary itself published a list of items in which it named several judges and judicial officers who were under investigation over corruption and abuse of office. In either case, nothing has happened.
I had the opportunity to forward the copy of my report to the Judicial Service Commission, urging it to investigate what was contained in my report and the other senior counsel. I was summoned by the Judicial Service Commission that interviewed me at length, making note of my responses. That was early in 2018 and I have not heard any more from everyone concerned.
Prof Kanyeihamba is a retired Supreme Court judge.