Why we need an independent Judiciary

Barely 30 years old, independence of the Judiciary was declared a national value on October 8, 1995, in the first Constitution that was designed by the people themselves, following lengthy mass consultation by Justice Benjamin Odoki’s committee of experts and intense deliberations by an assembly of Uganda’s finest intellectuals.

The 1995 Constitution states, in Article 128(1), that in the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority. 

In Article 128(2), it prohibits any person or authority from interfering with the courts or judicial officers in the exercise of their judicial functions. These imperatives are absolute and cannot be amended without a referendum.

Why we need an independent Judiciary
To avoid the outrageously low public approval ratings of the colonial courts and immediate post-independence judges, we must jealously safeguard the independence of the modern Judiciary as established under the 1995 Constitution.

During official colonialism (1894-1962), all courts and judges, including our home-grown justice institutions, worked inside and under the British administration headquartered in London.

Just like an askari or shamba boy was to the mzungu, the “judiciary” of that era was merely a spoke in the colonial machinery for enforcing law and order. It is was not required to respect, uphold or promote the cherished values, rights and aspirations of our people who were appallingly treated as subjects of imported law. 

Majority of its members lacked legal training and obviously relished the dictatorial power that came with simultaneously wielding judicial and executive powers. This is the structure we inherited on Independence Day and have tried to reform to suit the demands of constitutional democracy, but the reforms for long lacked credibility without enabling laws, adequate resources and charismatic champions. 

The second clarification is that the principles of independence of the Judiciary are universal, and are constantly enhanced by the experience of the judges themselves.

They are not liable to the supposed good intentions of the government of the day. 
Accordingly, the foundational principle is that modern judges are arbiters of disputes, not servants or agents or lobbyists of politicians or special interests.

The Uganda Code of Conduct of Judicial Officers and the Judicial Service Regulations 2005 reinforce the constitutional principle on independence of the Judiciary and impartiality of a judicial officer. 

As was said in a recent decision of the Kenyan Supreme Court, “Judges are entrusted with a significant responsibility to uphold the principles of justice and maintain the integrity of the judicial and legal system. In their everyday lives, public or private, judges are expected to exhibit the highest standards of impartiality, fairness, and ethical behaviour. They must remain unbiased and refrain from any actions or expressions that may compromise their objectivity.…. Maintaining independence from external influences is crucial to ensuring the credibility of the Judiciary, and judges are obligated to resist any attempts at undue influence or interference.” 

Now let us move on to debunking toxic distortions by some luminaries. Is judicial independence only required where the judicial officer is exercising a judicial function?  

Both the Attorney General and Chief Justice have sparked controversy by asserting that judicial independence exists only in relation to the exercise of a judicial function.

Their views are a literal interpretation of a slim portion of articles 128(1) and 128(2) which refer to “the exercise of the judicial function”. However, the interpretation of a constitution requires more than a literal reading. 

As was said recently by Justice Fredrick Egonda-Ntende in his acceptance speech on being awarded the honorary Doctor of Laws degree of Makerere University, the words of the Constitution cannot be left lifeless.

“We must breathe life into the words of the Constitution to provide full enjoyment and protection of the law in those that seek redress in the courts,” the former chief justice of Seychelles humbly submitted to the senate and convocation.

The Attorney General and Chief Justice have decidedly shut both eyes to the fact the norms of judicial propriety, including judicial independence, have been defined by judges themselves since the advent of democracy, and are constantly refined through transnational dialogue among judiciaries, for instance, the model codes of conduct based on Bangalore Principles and Commonwealth (Latimer House) Principles.  

In a recent case from the Court of Appeal of Seychelles, where Ugandan Supreme Court judge Prof Lilian Tibatemwa-Ekirikubinza was a member of the decision panel, it was held that “the word independent is of a wider import than merely the state of mind of the judge in the actual exercise of judicial power. It includes the status or relationship of the judiciary with regard to the other two branches of government, the executive and the legislature”.

What was at stake in that case was a challenge to a controversial constitutional amendment that had been prepared by the executive and concluded with advice of the Judiciary. 

Judges in the court of the first instance declined to recuse themselves when they were impeached for lack of independence, hence leading to the appeal.

The obligation of independence clearly includes a judicial officer keeping a healthy distance from any external influences, even outside the court. 

The Judiciary has neither the sword to enforce its decisions nor the purse to finance its activities. It must, therefore, interact with both the Executive and Parliament to be effective. However, circumspection is required in the day-to-day exercise of administrative powers of the Judiciary during these interactions. 

Is Judiciary client of the Attorney General?
For the reasons given above, the short answer is no. The Attorney General is a lawyer serving in Cabinet. He is also a litigant (court user) on behalf of the government, like any other litigant.
The independent Judiciary cannot secretly entertain the Attorney General’s advice in its left ear, then hear the Attorney General in open court with its right ear. 

Is the involvement of the Chief Justice in the Balaalo question justifiable? 
The Chief Justice claims his role in the matter to be peace building, to avert an uprising in northern Uganda. This may well be the case.

Unfortunately, the damage to the impartiality of the Judiciary in handling any litigation that may arise from the eviction of the Balaalo and the legality of Executive Order No. 3, cannot be gainsaid.
The duty of impartiality is found in our Code of Judicial Conduct. Rule 2.2 of the Uganda Code states, “A judicial officer shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the legal profession, the litigants and the public, in the impartiality of the judicial officer and of the Judiciary”.

On this subject, the Council of Europe guidelines on freedom of expression for judges state that: “A judge [may] engage in expression, association or assemblies that touch on issues or parties that could come before the courts at some future point. Total isolation from the community and society is neither realistic nor required of judges. In particular a judge should avoid political controversy. It is important to avoid using judicial office to promote personal views and to avoid the appearance of capture by particular organisations or causes. Judges should avoid expressing opinions on matters which may arise in litigation, and which may lead to concern about the impartiality of the judge.”

The Chief Justice’s reading of the President’s speech at the 47th Bishop Janani Luwum memorial congregation in Kitgum District and the very public statements he made in relation to the Balaalo question and the President’s Executive Order No. 3, fall in the category of matters that a judicial officer is required to stay away from. 

The caricatures that these events have spawned in the media, leave the image of the Chief Justice badly battered and the credibility of the Judiciary he leads dented. 

The Balaalo issue is now before the High Court in Gulu in Leonard Otee vs Attorney General.

*This article was co-authored by Phillip Karugaba, Isaac Ssemakadde, Sarah Kasande, Mohmed Mbabazi, Anthony Odur, Daniel Walyemera, Ivan Bwowe, Peter Walubiri and Lillian Drabo