How will candidates handle rule of law? 

In 2011, Mr Eric Alema filed a civil case against Maybach Motors Ltd and others at the Commercial Court, seeking refund of Shs120 million that he paid to buy a Range Rover Sport that allegedly was a stolen one.

Nearly a decade later, the case now before Justice Richard Wejuli Wabwire of the Commercial Court has not been disposed of after the defendants failed to attend multiple scheduling conferences and, after an ex parte decision by the court registrar asked for a fresh scheduling conference to agree on issues for trial.  

The pre-trial session has been fixed for February 21, 2021.
Frustrated, Mr Alema on October 28 petitioned Justice Henry Adonyo, who described the delay as “regrettable”, but asked Mr Alema to address his concerns to the trial judge since administrative action cannot substitute trial issues and judicial decision. 

The litigant yesterday took his concerns to the Judicial Service Commission, which is responsible for recruiting and disciplining judicial officers, and asked the Commission to examine reasons for the delayed adjudication since “justice delayed is justice denied”.
 
Mr Alema predicament mirrors the tribulations of thousands other litigants struggling to get justice and the resulting material, emotional and financial costs.

According to the 2015 Judiciary file census report, nearly 38,000 cases in the court system had remained undecided for at least two or more years, a cumulation technically called case backlog.
The adjudication of a case in Uganda on average takes three years to complete.
It is upon this backdrop that at his swearing-in as the new head of the Judiciary in September, Chief Justice Alfonse Owiny-Dollo, made a clarion call to President Museveni, appointing authority, to name more judges for the country to achieve effective administration of justice.

“If I had 15 judges in the Commercial Court, in 18 months I should be able to report to your Excellency what we [would] have done, but we don’t have that manpower,” he said.

According to the Chief Justice, the value of claims in the cases before the Commercial Court gross Shs3 trillion and deciding on the disputes would unlock huge cash flows and business deals to spur economic growth.  
“Why are they (cases and money) tied there (in Commercial Court)? Because I have only two judges to untie the Shs3 trillion. That is the difficulty we have,” Justice Owiny-Dollo added.

The shortage of judicial officers is not only a drag and drain on the performance of the Commercial Court. Also affected are magistrates’ courts as well as High Court and other superior appellate courts. 

Understaffing in the justice sector has been a perennial challenge that the new president will inherit. For example, Mr Museveni, through Parliament, passed a resolution to have 82 judges employed in the High Court.

However, this resolution has not been implemented as the current High Court staffing, including the Principal Judge stands at only 54.
Uganda has a population of 41.6 million, according to Uganda Bureau of Statistics estimates, which theoretically means that one of out the 339 judicial officers (judges, registrars and magistrates) serves 122,713 citizens. 

Yet, Justice Owiny-Dollo said in September that cases would only take a year to adjudicate if the Judiciary was staffed to capacity.    
The backlog situation has improved, according to details contained in the manifesto of the ruling National Resistance Movement (NRM).
 
“The case backlog has reduced from 21 per cent in 2017 to 18 per cent in 2018/19 despite the 13 per cent growth in case registration. Over 56,000 backlogged cases were disposed,” the manifesto reads in part.
Increased case disposal has resulted in a percentage point reduction in pre-trial detainees in 2019 and for the first-time convicts outnumber prisoners on remand, NRM reported, citing in addition a 39 per cent increase in automation of case management systems.

Case backlog acts as a disincentive for aggrieved parties to use courts to resolve disputes and may lead to mob justice, stalls investment decision and enjoyment of rights, is a barrier to justice and generally undermines confidence in the Judiciary.

In addition, it leads to crowding in prisons which and, according to the Justice Law and Order Sector report of 2019/20, there were three times more prisoners and inmates incarcerated than the 19,826 capacity of prisons. 

The result: pressure on housing, sanitation, medi-care, feeding, uniforms, staff numbers and delivery of prisoners to courts.

Besides the operational and hygiene concerns, critics such as presidential contenders Patrick Oboi Amuriat of Forum for Democratic Change (FDC) and National Unity Platform’s Robert Kyagulanyi, alias Bobi Wine, allege that the JLOS is saddled with corrupt personnel while the police and courts are captive to the Executive. 

Marred by corruption 
“The justice system is largely partisan, corrupt and takes orders from the Executive, especially, if the case involves opponents of the regime,” the FDC manifesto reads in part.

The claim of graft has been validated in various integrity surveys, but Chief Justice Owiny-Dollo, while decrying the practice, said the blame should be shared by both the bribe giver and taker.  
 
Bobi Wine and Mr Amuriat, just like Alliance for National Transformation’s Maj Gen (Rtd) Muntu Mugisha and Independent Joseph Kabuleta, all promise to build an independent judiciary, although the details of implementing the governance agenda to engender the rule of law and justice remain unclear.

According to American law scholar Caroline Kennedy, the rule of law is a bedrock of any democracy, which suggests that judicial officers must be able to make decisions without capitulating to external influence.

The Judiciary is one of the three arms of government and, in theory, should be independent and equivalent to Parliament and the Executive. 
However, the framers of the Constitution, for unclear reasons, made the President who heads the Executive, as the appointing authority for senior judicial officers, including the Chief Justice. 

A thin insulation is that the appointment be based on the recommendation of the Judicial Service Commission, and only Mr Amuriat has indicated an intent to change the appointment procedure to wrestle the Judiciary from the cancer of cadre officer.  

“Recruitment into the Judiciary shall be independent of the Executive,” he notes in addition to a promise to recruit a judge for each of Uganda’s 135 districts. He, however, does not say how he will raise resources to support them. 

Looking outside the mainstream Judiciary to other related justice institutions, the ability of government to be effectively represented in the courts of law by the Attorney General’s chambers and office of the Director of Public Prosecutions (DPP) is not to the expectations due to understaffing and poor remuneration.

According to the 2019/20 annual JLOS report released last month, the understaffing and poor remuneration has weakened their presence in local and international cases and witness facilitation.

The reports added that this scenario has since led to some cases decided against government because there was no representative from their side (legally known as ex parte) to argue out the case and the courts have in such scenarios dismissed the cases against government and also condemn it to costs.

The government has since raised the pay for judicial officers by 100 per cent unlike their counterparts.

A couple of years ago, both the state prosecutors and judicial officers laid down their tools in protest of poor welfare.

 The issue of the partiality of the Judiciary has previously repeatedly been raised by especially four-time presidential candidate, Dr Kizza Besigye, who has been charged and tried multiple times for offences.

According to Opposition stalwart, majority of the judicial officers and prosecutors are NRM cadres and pursue cases that are politically motivated.

There are suggestions by some legal pundits that Uganda should adopt the Kenyan way of appointing and vetting judicial officers by an independent commission through a publicly scrutinised and televised interviews.

In their respective manifestos, candidates Bobi Wine, Mr Amuriat and Gen (Rtd) Henry Tumukunde (Independent) pledge that if elected they will restore the rule of law which, as Greek philosopher Plato wrote about around 350 BC, is imperative because “where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off.

“But if the law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that gods shower on a state,” Plato wrote.

This restoration of constitutionalism and the rule of law is what President Museveni, who is seeking to extend his rule to 40 years, is claiming credit for.

“Uganda now has an independent judiciary that decides various disputes basing on the principle that no one is above the law, not even those in the government. NRM government has passed several enabling legislations and policies aimed at creating a just and fair society focused on enabling Ugandans as individuals and as a nation to live in harmony,” the NRM  flag bearer says. 

Not all agree. And not those seeking to unseat him. 
Gen Tumukunde under his campaign message of ‘Renewed Uganda’, in his manifesto briefly pledges to have a country with effective and unbiased law enforcement.

He also pledges to have a judicial system for the protection and preservation of her citizens’ civil liberties, property and lives, regardless of gender, income, tribe, academic credentials, political leanings, or other discriminating parameters.

Independent candidate Nancy Kalembe has no mention about justice or the rule of law, raising questions about how she would government if elected. Other contestants such as Fred Mwesigye, Willy Mayambala, Muntu Mugisha, Mr Kabuleta and Mr John Katumba have not launched their manifestos, one month to voting day on January 14, 2021.

Bobi Wine in his 60-page manifesto highlights physical and financial barriers to access of justice mainly by the vulnerable and marginalised groups like children, women, persons with disabilities, the poor and those living in rural or hard-to-reach areas.

“NUP will establish a government that is deeply rooted in the rule of law. The NUP administration will ensure justice for all by cooperating with stakeholders in developing a roadmap for removing barriers to justice,” the NUP manifesto reads in part.

Stakeholders’ concerns
Whereas some of the candidates are brimming with ideas on improving justice, law and order sector, other critical players altogether have different thoughts. 

Ms Pheona Wall Nabasa, the president of the Uganda Law Society, proposes that the next president should ensure that the Judiciary is given the same attention like the other two arms of state (Executive and Legislature).

“In the new era, I want the next president to ensure that the Judiciary and the justice system at large get the same resources and attention like the other two arms,” Ms Nabasa said.

Similarly, the chief executive officer of Legal Aid Service Providers Network, Dr Sylvia Namubiru Mukasa, says the next president appoints more judges to tackle the existing huge case backlog.

She also wishes that the Court of Appeal is decentralised and also have the gazetted magistrate courts operationalization.

Former president of the Uganda Law Society, Mr Francis Gimara, said: “The next president should ensure that the justice sector is well funded and supported with measurable targets to promote the rule of law to the greatest extent possible.” 

He warns that the decline in the rule of law and the current rising impunity in the country is a recipe for disaster.