Mr President, freezing hiring of judges likely to collapse rule of law

Thursday February 7 2019

By Karoli Ssemogerere

In November last year as I waited on the pews in the Court of Appeal at Tweed Plaza, a lady burst out screaming as she suffered a breakdown.

The Registrar of the Court had broken news to her that her appeal, which had been pending since 2014 against the National Forestry Authority (NFA), was a “fresh appeal” that could not be considered for disposal as the Court of Appeal battled the worst backlog in years that have grounded the court and rendered the administration of justice in jeopardy.

In 2019, official backlog in the intermediate appellate court meant that an average case which takes between three and five years to be argued, adjudged in the High Court reached a record six to seven years in the Court of Appeal and much quicker (under five years) in the Supreme Court.

In 2018, the Supreme Court disposed of a real estate dispute in plush Nyonyi Gardens in Kololo that had been pending since 2004, record time. In the same year, the Court of Appeal finally convened to hear cases, including that of the late Annebrit Aslund, former Commissioner General of URA, years after she died.

Yes the Court has been hearing “priority cases” - an amphibious term referring to cases where litigants have special antecedents.

The BS Kavuma Court, for example, attended to and disposed of many constitutional matters, including some where the DCJ, the head of the Court, heard substantive applications as a single judge.

The AC Owiny Dollo Court is actually just getting started to work after a year dominated by the age limit petition, which has commandeered all the government legal resources to argue two consecutive petitions in the highest courts.

It appears the Court system is afflicted by three diseases: First are the constitutional provisions themselves that affect administration of justice.
The notion of lifetime appointments is outdated. A good judge requires 10 years to season in a particular specialty, and should be given a single opportunity to renew his or her contract for 10 years before going on pension.

Judges are hanging onto office on contract because government is slow to cater for their physical needs, medical, etc, creating an anomaly where senior status judges sit with their juniors as “Acting Justices” on contract affecting their independence.

Just two Justices can swing an important case and this category of judicial officers has not performed to expectation alongside those nearing retirement age, 65 years in the High Court and 70 in the higher courts.

The challenges of the court system require more, much younger and energetic judges. Kenya has nearly 100 High Court Judges. Uganda with three quarters Kenya population is making do with about 50 judges even though the President recently seemed to say he will not fill the 82 Judge slots approved by Parliament three years ago.

The President has diluted independence of the judiciary through selective patronage. Some hard working judges in the lower courts have been passed over for promotion many times working them into irrelevance. A short list of promotion blues in no particular order is led by Vincent Kibuuka Musoke, Elizabeth Nahamya, Edmund Sempa Lugayizi, Margaret Oguli Oumo, Gideon Tinyinondi (the late).

Another group mostly connected has risen very fast without getting time to understand the intricacies of the law.

There is the funny case of a justice who made it to the Supreme Court by mostly adjourning cases, then going on sick leave and failing to hear them. When he struck with his pen, though, he struck hard with very pro-government rulings.

There is an old man who lives nearby who sips his beer while awaiting one of his cases where the judgment got lost in a cupboard at the Court of Appeal to be disposed of. Lastly the practice of deputising Justices in the executive branch must end.

Mr Ssemogerere is an Attorney-at-Law
and an Advocate. [email protected]