THE INDEPENDENCE OF THE JUDICIARY:

AN ASSESSMENT OF THE REALITY OF THE CONSTITUTIONAL

DOCTRINE IN UGANDA

Alexander Ssensikombi1

INTRODUCTION

The Judiciary is the third arm of government and Article 129 (1) 2 establishes Courts
in their order of Precedence as (a) the Supreme Court; the Court of Appeal; (c) the
High Court; and (d) such other subordinate courts as Parliament may by law
establish including Qadhi Courts of Marriage, divorce, inheritance of property and
guardianship as may be prescribed by Parliament.

French jurist Montesquieu, following attempts by Aristotle3, John Locke 4 provided a

framework in the doctrine of separation of powers; 5 he was concerned with
preservation of personal liberty after recognising that those that hold power have a
tendency to abuse it and therefore as a matter of consequence, governments should
be checked internally by creating centres of power. He recognised three main organs
and their functions that is to say the executive to ensure security, legislature to enact
laws and judiciary to settle disputes.

AN INDEPENDENT JUDICIARY

‘‘It is beyond debate that an effective administration of justice requires an

independent judiciary. Independence of the Judiciary is intimately linked to the rule
of law. The Rule of Law demands that people and especially those in authority
should act according to established principles of law. And whoever deviates,
whatever his or her position must be punished by the appropriate authority’’6

The independence of the judiciary is a new concept for third world countries as
during the colonial era there was no respect or regard accorded to the judiciary. The
function of the judiciary is to dispense justice in accordance with the law. It is also
responsible for balancing interests of individuals and the state. In the 1995
Constitution the Judiciary is the organ which is entrusted with checking adherence
to the law within the state. Independence of the Judiciary mainly comprises two

1
LLB Undergraduate, 2017 [email protected] | [email protected]. This presentation was
first made at a symposium on Constitutional Law assessing how far off the paper the doctrine of Judicial
Independence is in Uganda.
2
The Constitution of the Republic of Uganda, 1995
3
Aristotle, politics xxx book iv.(B. Jowett trans,1995).Aristotle states functions of the state without which
bodies should administer them.
4
Locke, treaties by the government.pg 382.(p.laslett ed.1970)Locke recognises functions of the bodies..
5
Montesquieu, The Spirit of the law BK XI . CHAPTER SIX.
6
Tumwine-Mukubwa GP (2011) The Judiciary as the Guardian of the Constitution p 156 (extracted from
Okumu-Wengi, Founding the Constiution of Uganda, Essays and Materials)
1
major elements namely; Independence of the Judiciary as an independent organ
from the other organs of the state and Independence of the individual judge; thus
judicial independence simply means that the judicial arm of government and
individual judges are left free to operate without undue pressure or interference
from either the executive or legislature7.

AN IDEAL JUDICIARY8

Article 126 (1) of the Constitution of the Republic of Uganda 9 provides that Judicial
power is derived from the people and shall be exercised by the courts established
under the Constitution in the name of the people and in conformity with laws and
values, norms and aspirations of the people

Article 126 (2) directs Courts that when adjudicating cases of both civil and criminal
nature, they shall subject to the law, apply the following principles:

a) Justice shall be done to all irrespective of their social or economic status

b) Justice shall not be delayed
c) Adequate compensation shall be awarded to victims of wrongs
d) Reconciliation between parties shall be promoted and
e) Substantive justice shall be administered without undue regard to
technicalities

In Uganda the doctrine of the independence of the judiciary is enshrined under

Chapter Eight of the Constitution10 and it states

“Judicial officers in exercise of their functions, all organs to accord the courts assistance,
immunity of the courts shall be independent in exercise of judicial power, no person to
interfere with courts or judicial officers, finances of the judiciary to be charged on the
consolidated fund, self-accounting and offices that should not be abolished”.

This doctrine of the independence of the judiciary was stated in the case of Masalu
Musene & 3 Ors v. Attorney-General11 ; Mpagi-Bahigeine JA (as she was then);
“Judicial officers are charged with protecting the fundamental rights and freedoms
of citizens. In performance of their duties they are entrusted in checking the excess of
the executive and legislature. These duties require insulation from any influence
direct/indirect that may warp their judgment or cause them to play on hands of
corrupt elements”. The necessity for any court independent is a right to fair hearing12

7
David Harris, “the right to fair hearing - trial in criminal proceedings as a human right” (1967)intl 44$
comp.l.q.352,354.
8
G. W. Kanyeihamba (2010) Constitutional and Political History of Uganda; From 1894 to present
9
1995 (as amended)
10
Article 128, the 1995 Constitution of the Republic of Uganda.
11
Constitutional petition no.5 of 2004
12
Article 28; Constitution of the Republic of Uganda.
2
although article 128 does not address this. The independence aspect requires
decisions of court to be respected and upheld by other organs of government.

The judiciary is viewed as the weakest organ among the three organs as stated in the
case of Evans v. Gore13 the judiciary is the weakest and all possible care must be
taken to ensure it defends itself against other arms.

The issue in the Masalu Musene case (supra) was to address the question of taxation
of the salary of some judicial officers and as to whether any taxation thereto was
constitutional. The Petitioners (a Registrar of the Supreme Court, Chief Magistrate
and the other two being Magistrates, Grade One respectively) sought to challenge
certain provisions of the Income Tax Act, Cap 340 as being unconstitutional for
taxing salaries, allowances, privileges, retirement benefits and other conditions of
services of judicial officers. A brief history is that prior to the 1995 Constitution,
when the cabinet realised the erosive effect taxation was having on the poor pay of
the justices and judge, it decided to grant an exemption from taxation to relieve them
of their financial worries14. The privilege was extended for the period of 1990-97 but
was not extended to other judicial officers including the petitioners. The Income Tax
Act was silent on exemption but the Justices and Judges were protected under the
Constitution. The protection/exemption however did not extend to other judicial
officers including the new judges; hence the Petition challenging the application of s.
4 (1) of the Income Tax Act to Judicial officers and the interpretation accorded to
Articles 128 (7) and 254 (2) as being inconsistent with 128 (7) which is all embracing
of judicial officers.

There can be no doubt that Courts have the power and are constitutionally protected
to deal with disputes brought before them alleging violation of human rights. In a
number of decided cases, Courts have professionally and bravely done precisely
that15. Today the courts have tried to exercise their independence amidst pressure
from the two arms.

FACETS OF THE DOCTRINE OF THE INDEPENDENCE OF THE JUDICIARY.

 Constitutional deposition of judicial power in Uganda.

Article 126(1)16 states “judicial power is derived from people and shall be exercised
by courts in the name of people and in conformity with the law, with values and
norms of the people”. Article 12717 states that “parliament shall make laws for
participation of people in the administration of justice”. Thus judicial power does
not flow from the crown/ president as this provision is meant to ensure courts act in

13
253 US 245(1920)
14
This was done under S. 12 (2) of the Income Tax Decree, 1974
15
G. W Kanyeihamba (2010) Constitutional and Political History of Uganda
16
The Constitution of the Republic of Uganda, 1995 (as amended)
17
ibid
3
line with aspirations of people as Article 1(1)18places power in the people and this
power includes judicial power. Article 128 (5)(6) that provides for remuneration of
judicial officers and financing the judiciary shall all be from the consolidated fund.

 Constitutional provisions for independence of judiciary.

“I think that the independence of the Judiciary and the Rule of Law are very difficult
to sever; it is the role of the judiciary in practice to uphold the rule of law and to do
that they have to be independent of the outside influence”19

Article 128(1)20 states that “exercise of judicial power in courts shall not be subject to
control / direction of any person or authority” this sets principles on which the
doctrine lies as in Masalu Musene case; as stated by Twinomujuni JA; eight pillars
in Article 128 are a single package and are about the independence of the judiciary
.one cannot remove anyone without adversely affecting others.

These safeguards or pillars are;

1. Guaranteed Independence
“It is paramount to note that Judges have the ultimate responsibility for
decisions regarding freedoms, rights and duties of natural and legal persons
within their jurisdiction. The independence of each individual judge
safeguards every person’s right to have their case decided solely on the basis
of the law, the evidence and facts, without any improper influence”21.

Article 128(2) stipulates that no person shall interfere with judicial functions .Article
128(3) further states that all organs in the state are to accord such assistance to
ensure effectiveness of courts. In Wilson Masalu Musene & 3 ORS V Attorney-
General22: Mpagi-Bahigeine JA stated “Maintenance of judicial independence as
enshrined in Article 128 is upon the public support for judicial process to run
effectively and independently. It is the public respect for that respect for that
principle that sustains it. The government has to reinforce and facilitate the
effectiveness of the Judiciary. The system that expects its judicial officers to lead
decent lives and is often saying so at all public fora but at the same time fails to
enforce the constitutional protection applicable to them is bound to render the
independence of the judiciary unattainable as the corruption vermin would quickly
set in’’.

Twinomujuni JA stated “Judiciary to be effective needs assistance from all but

especially the executive and legislature. This assistance must be necessary and not

18
ibid
19
Lord Phillips (Lord Chief Justice) – the House of Lords Select Committee on the Constitution; 14th Report of
Session 2005-06, Meeting with the Lord Chief Justice HL 213 (2006) Q7.
20
1995 constitution
21
http://www.legislationline.org/topics/topic/9
22
Constitutional Petition no.5 of 2004.
4
that it violates the independence of the judiciary as in the case of Uganda Law
Society v. Attorney-General23.

The Judicial arm of the Constitution must be independent, because as they ensure
that the state bodies act under the law (thereby enforcing the rule of law), inevitably,
they will come into constitutional conflict with the executive. The Independence and
impartiality of the Judiciary is also linked inextricably to the administration of
justice24

2. Judicial Immunity
“It is essential in all courts that the judges who are appointed to administer
the law should be permitted to administer it under the protection of the law
independently and freely, without favour and without fear. This provision of
the law is not for the protection or benefit of a malicious or corrupt judge,
but for the benefit of the public, whose interest it is that the judges should be
at liberty to exercise their functions with independence and without fear of
consequences”25

Just as the public interest in free debate in parliament justifies the rule of absolute
privilege for things said in the course of parliamentary debates, so the public interest
in the administration of justice justifies similar protection for judicial proceedings.
No action will lie against a judge for any acts done or words spoken in his or her
judicial capacity in the court of justice26

Article128 (4) provides that a person exercising judicial powers shall not be liable to
any action /suit for any act/ omission in exercise of judicial power. The Judicature
Act27 S.46(1) provides for immunity too and states that a judge , commission or other
person acting in the judiciary shall not be liable to be sued in any civil court for any
act/omission in discharge of his /her judicial functions whether in or out their
jurisdiction. Thus judges shall not decide cases in fear of civil or criminal action
against him. In Evans v. Gore28.The US Supreme Court cited the last degree
important for a judicial officer to completely be remembered independently with
nothing to influence or control after him except his God and conscience.

In Maliam Adekur & Anor v. Joshua & Attorney General29 the petitioners sought to
make Attorney General liable for actions of a Magistrate who had tried them
following their arrest30. The petitioners alleged inter alia that the magistrate failed to
protect their constitutional right to marry each other to the exclusion of any custom.

23
Constitutional Petition no.18 OF 2005
24
Mark Ryan (2014) Unlocking Constitutional and Administrative Law, p. 330
25
Scott v. Stansfield (1868) LR 3 Ex. 220, 223 (Kelly CB)
26
A W Bradley & K D Ewing (2011) Constitutional & Administrative Law p. 369
27
Cap 13
28
253 US 245(1920)
29
Constitutional Petition no. 1 of 1997
30
the first petitioner refused to be inherited by her brother in law pursuant to the itesot local customs and
instead eloped with the second petitioner and were arrested and charged before the magistrate’s court.
5
Counsel for the petitioners argued that the second respondent was liable for the acts
of the judicial office (the magistrate) under Article 250 of the 1995 Ugandan
Constitution. The constitutional court held that a person exercising judicial power
shall not be liable to any action or omission by that person in the exercise of judicial
power; the Magistrate was therefore not guilty of any omission or wrongdoing.
Similarly in Serapio Rukundo v. Attorney-General31 the Constitutional Court held
inter alia that no action can lie against government in respect of any act done in
discharge of judicial functions of the Attorney General.

3. Self-Accounting

ARTICLE 128(5)32; is to effect the administration expenses of the judiciary including

salaries, allowances, gratuities and pensions payable to persons serving in the
judiciary. Article 128(6) states that the judiciary shall be self-accounting and deal
with minister responsible for finance. This is to ensure self-accounting and control
over judicial funds such that welfare of judicial officers is not placed at the mercy of
the judicial officers instead at mercy of the legislature and executive.

4. Remuneration

Article 128(7)33; this is to effect salary, allowances privileges and retirement benefits
and other conditions of service as a judicial officer or person exercising judicial
power not be varied to his/her disadvantage. In Masalu Musene’s case34, Mpagi-
Bahigeine, JA stated that ‘judicial officers cannot engage on other business so as to
bridge the financial vacuum besetting them, corruption will be nurtured by the
system that fails to pay judicial officers well. The principle of independence of the
judiciary will become nugatory and mere mockery as lawyers will be less willing to
join the bench in preference for lucrative chambers. Corruption will therefore be
nurtured by a system that fails to pay its judicial officers well and insulate them
from the corrupting public’.

This article [128 (7)] is however limited to only those allowances and privileges
attained in the exercise of judicial power or function by a judicial officer. This was
clearly illustrated in the case of Julia Sebutinde v. Attorney-General35 where the
appellant36 was seeking reference from the Constitutional Court on whether the
appellant’s remuneration as the chairperson of the Commission of Inquiry into the
allegations of corruption in the Uganda Revenue Authority (URA) is exempted from
taxation by virtue of 128 (7). The appellant was at the time a Judge of the High Court
of Uganda who was appointed in March 2002 by the Minister of Finance to chair a

31
Constitutional Petition no. 3 of 1997
32
The Constitution of the Republic of Uganda, 1995
33
Ibid
34
Musalu musene and 3 ors v Attorney-General Constitutional Petition no.5 of 2004
35
Constitutional Reference no. 05 of 2005
36
The reference was arising from High Court Tax Appeal no. 007 of 2003
6
commission of inquiry into allegations of corruption in URA. She was paid a
honorarium of Ug Shs. 9 million per month; however from October, 2002, URA
started deducting Pay As You Earn (PAYE) from her honorarium. The appellant
protested against the taxation pointing out that as a sitting judge, her income was
not liable to taxation as it was protected by Article 128 (7) of the Constitution. The
Commissioner-General refused to lift the tax or refund what had already been
deducted. The Constitutional Court found that the income derived from other
activities outside the judicial officer’s terms and conditions of service is not
protected. Therefore her remuneration as chairperson of the commission of inquiry
was not exempted from taxation. The Court further held that a Commission of
Inquiry is not a Court and nor does it exercise judicial power within the meaning of
Article 126 (1) and 128 (7) of the Constitution of Uganda.

5. Security of Tenure

At the apex of the principle of judicial independence is the security of tenure; judges
cannot be dismissed because they are unpopular with the government. The historic
tenure on which judges hold office is ad vitam aut culpam, which means that they
cannot be removed except on grounds of misconduct37.

Article 128(8)38 states, that the office of the chief justice, deputy chief justice, justice
of the Supreme Court, justice of Appeal or judge of the high court shall not be
abolished when there is a substantive holder of that office. This provision is made
stronger by Article 144(1) which adds tenure and security. Article 144(2) a judicial
officer can be removed from office only for inability to perform office functions
arising from infirmity of body/mind, misbehaviour, in competence even this
removal must strictly comply with procedure in Article 144(4-7) the net
requirements under this Article is that the security of tenure of judicial officers
should not be under threat.

In the case of Fox Odoi & Anor v. Attorney-General39 the Constitutional Court held
that the procedure for the removal from office of a judicial office under Article 144
(2) of the Constitution is that a tribunal must be appointed to investigate the
question of removal of a judicial officer from office. The question of appointment
must be referred to the president by a specific body. It is only when the tribunal
recommends a removal that the President can proceed to effect the removal of the
judicial officer. This is the only procedure to be followed and no other procedure is
permissible40. The Court therefore noted that the effect of ss. 19 (1) and 20 (1) of the

37
A W Bradley & K D Ewing (2011) Constitutional & Administrative Law (15th edition)
38
The Constitution of the Republic of Uganda, 1995
39
Constitutional Petition no. 8 of 2003
40
The Petitioner sought to challenge various sections [(ss. 19 (1), 20 (1), 35 (B) and (D)]of the Leadership Code
Act, 2002 ( Act no 17 of 2002) as being inconsistent with certain articles [(ART 60(8) AND 169 (9)] of the
Constitution
7
Leadership Code Act41 which enjoin the President to implement the decision of the
Inspectorate of Government to remove an officer from office is to fetter the discretion
accorded to the President under the Constitution in the question of removal of
officers contrary to Articles 60 (8) and 169 (9) of the Constitution.

6. Judicial Appointment

UNDER Article 147(1) (a), the judicial service commission advises the president in
the appointment of top judicial officers. And the justice of the Supreme Court under
Article 147(2) is independent and shall not be subject to direction or control of any
person/authority. The mode for appointment seeks to discourage judicial officers
from seeing themselves beneficiaries of presidential prerogatives so they can at all
times administer justice without fear that who appointed will without assigning any
reason disappoint when he deems fit.

7. Amendment of Article 128(1) must be subject of a referendum.

Under Article 260(2)(g), Article 128(1) the pillars above on independence of the
judiciary shall not be amended unless;-its supported by 2nd and 3rd readings in
parliament by not less than two thirds of all members of parliament ,-has been
referred to a decision of the people and approved by them in a referendum. In
the Masalu Musene case, Twinomujini, JA noted that the constituency who
framed the constitution were apprehensive that other two (2) strong arms of
government might one day seek to destroy the 8 pillars of an independent
judiciary.to him Article 260(2)(g) goes on to show that the court of appeal were
prepared to establish and retain the independence of the judiciary.

8. Judicial Discipline (Judicial Code of conduct)

The code has six (6) principles that encourage determination of the judiciary. They
include; independence, propriety, integrity, equality, competence and diligence. The
principle of independence requires that a judicial officer shall not be influenced
either directly or indirectly extraneous influence, inducements, pressures, threats,
interference from any quarter for any reason and they will attempt arising from
outside the judicial process. Thus this code gives independence at individual level
too thus Article 149 which requires judicial officers to take oath in the 4th schedule42
before assuming office is to ensure judicial power is exercised in accordance with the
constitution and dispense justice without fear or favour.

AN ASSESSMENT OF THE PRINCIPLE OF INDEPENDENCE OF THE

JUDICIARY IN UGANDA

(Is the principle of Judicial Independence present in Uganda?)

41
2002
42
The Constitution of the Republic of Uganda, 1995
8
According to Prof. G. W Kanyeihamba in his paper at the 5th Annual Judges
conferences43 stated that “....By independence is meant that the courts and judges are
free to function without fear from or favor to any individual or authority.
Independence or lack of it must not be confused with limitation of jurisdiction. The
fact that Parliament has the power and often exercises it, to limit the jurisdiction of
courts, does not mean that judicial independence is affected thereby. The limitation
of judicial powers may be politically unjust and could lead to arbitrary actions
being taken by persons other than judges, but it does not involve an encroachment
on the independence of the Judiciary”.

In light of the above there is considerable evidence to show that the principle of
independence of the judiciary is a more of a sweet ideal than a reality and hardly the
position in Uganda, below is a discussion to show that:-

Referendum (Political systems) Act 2000

In June 2004, in the case of Paul K. Ssemwogerere v. Attorney-General44 the

constitutional court handed down a judgment ruling that the Referendum (Political
Systems) Act 2000 was unconstitutional this provoked harsh criticism from the
President directed specifically at the court and judiciary. In his speech he was quoted
to have said that ‘’the major work for the Judges is to settle chicken and goat theft
cases but not determining the country’s destiny’’. This was because he was not
happy with the way they had decided the case that was not decided in his favour45,
as head of state his comments as per his speech that was reprinted in The Monitor46,.
Clearly the judiciary’s decision was not respected as laid out in art. 128(2) where no
person or authority is expected to interfere with the courts.

“ ...In June 2004 the judiciary was forcefully reminded of this [that power is vested in
the President not the people] when, after the Court of Appeal forgot its place in this
‘democracy’ and declared invalid the Referendum (Political Systems) Act of 2000, an
angry Museveni informed them and the nation at large that the ‘major work for the
judges is to settle chicken and goat theft cases but not determining the country’s
destiny (sic)’’ - Dr. Busingye Kabumba47

The principle of judicial independence was also tested in recent times and it appears
that the “government” – the executive in this case failed miserably to stand up to the

43
at Imperial Botanical beach Hotel, Entebbe (2001)
44
Constitutional Appeal no. 3 of 2000
45
In a televised speech delivered on Sunday 27 June 2004, President Museveni stated:
“A closer look at the implications of this judgment […] shows that what these judges are saying is absurd,
doesn’t make sense, reveals an absurdity so gross as to shock the general moral of common sense. […]In effect
what this means, is that this court has usurped the power of the people […]. This court has also usurped the
power of parliament, to amend the constitution. Government will not allow any institution even the court to
usurp the power of the constitution in any way”
46
The Monitor, 30 June 2004 titled ‘Museveni mad with Judges over nullifying 2000 referendum act’
47
The illusion of the Ugandan Constitution; https://africlaw.com/2012/09/27/the-illusion-of-the-ugandan-
constitution/
9
test. In the case of Uganda Law Society v. Attorney-General48 In this Petition, Dr.
Kiiza Besigye was accused with 22 others and jointly charged for treason under the
Penal Code Act. Dr Besigye was in addition charged with rape alleged to have taken
place in 1997, the accused persons were committed to the High Court for bail
application and 14 of them were granted the same but because of certain alleged acts
of security personnel at court premises bail papers could not be processed. The said
security personnel entered some offices and interrupted the court’s normal duty of
processing bail, as a result the accused had to be taken to prison. Court held that the
above acts contravened the independence of the judiciary. It is important to note that
Justice Engwau JA, noted in his judgment that under art.128(3) of the constitution,
all organs and agencies of state are required to accord to the courts such assistance as
may be required to ensure effectiveness of the courts. The independence of the
judiciary was yet again abused49.

Withdrawal of Judges

The treason case of Dr. Besigye was heard by Justice Edmond Ssempa Lugayizi who
was the sitting judge withdrew from the case as a result of the military interference.
He gave no reason as to his withdraw but it was evident that he felt his life was in
danger.

On 2 December 2005, High Court Judge Remmy Kasule found that Besigye had
raised ‘serious issues as to whether the military court has powers to try him’ and
ordered the army to stop the Court Martial proceedings. He refrained, however,
from ordering Dr Besigye‘s release.

On 3 February 2006, Judge John Bosco Katutsi withdrew from hearing the treason
case citing pressure and allegations being put about that he was politically biased. In
his place, Justice Vincent Kagaba was assigned the treason case. Shortly after, the
treason trial was postponed until after the presidential elections of 23 February 2006.
The above points exhibit abuses the principles of judicial independence; and with
insecurity, judges and other judicial officers cannot exercise their duties comfortably.

The above events clearly show that the independence of the Judiciary was
undermined and many judicial officers cannot comfortably exercise their judicial

48
Constitutional Petition no. 18 of 2005.
49
After the above events of the abuse of court Chief Justice Benjamin Odoki and Inspector General of
Government (IGG) Faith Mwondha condemned the deployment of the Joint Anti Terrorism Team (JATT).
Justice James Ogoola who was the Principal Judge then to pen a poem about the High Court siege which he
stated was ‘the most naked and grotesque violation of the twin doctrines of the rule of law and the
independence of the Judiciary’, the extent and content of which was simply ‘unprecedented’. He said the
armed commandos had unleashed ‘terror’ and that ‘[n]ot since the abduction of Chief Justice Ben Kiwanuka
from the premises of Court during the diabolical days of Idi Amin had the High Court been subjected to such
horrendous onslaught as witnessed last Wednesday’. He said this ‘most reprehensible affront to the
independence of the judiciary’ had had a chilling effect on the administration of justice in the country
10
function that the makers of our constitution fought to safe guard under Articles 126
and 128.

Corruption and Abuse of office (Judicial misconduct)

“When I walk into a court room I see the judge for who he is----an ordinary man
with extraordinary power. But he is my judge and he belongs to me-----to serve my
case, my cause, with sound and just rulings. I give him the presumption of decency
but should he stray from this role and become one of those tyrants, who sits up there
like a maddened emperor, I may disrobe him, without his clothing he is a disgusting
sort. His skin is usually too white, bleached like a daisy that has been smothered
under the manure pile. He will wear funny little pink pajamas tonight at bedtime,
with patterns of little jumping teddy bears, and he’ll make some excuse to his wife
for his bedtime failure who if truth were known is only pleased that he has
consigned himself to his own bedside. I don’t create such a vision of the man out of
disrespect for his office but I have no intention of respecting an office held by a man
who disrespects justice, seeing him as he most likely is permits me to know my
power. It belongs to me and I don’t intend to deliver it to him---- which doesn’t
mean I shall disobey his orders, display my contempt or otherwise misconduct
myself. There is a profound difference between respecting a judge’s rulings and
enduing the unjust ones.”50

Some judicial officers have been the very culprits of undermining judicial
independence. Many judges are corrupt and delay cases intentionally. Others are
simply lazy and take years writing judgments which in the end lead to delaying of
justice for people who in confidence entrust their cases to be solved by the judiciary.
This has caused public scorn of the institution and individual judicial officers.

Any judges who are corrupt can never administer the law or render justice to all
impartially or without fear or favour of anyone. Secondly, any judiciary which has
been consistently undermined by members of other organs of the state or of the
public with general accusations which are unsubstantiated will lack the courage and
the credibility to do justice and a judiciary which is conceived as tainted by
corruption, abuse of office or incompetence is not a judiciary that is likely to perform
its duties happily or efficiently51

Hindrances to the Proper Functioning of the Judiciary

Emphasis should be put on majorly two aspects – Lack of Funding and Appointment
of Judges52.

50
Gerry Spense (2006) Win Your Case: How to Present, Persuade, and Prevail--Every Place, Every Time (St.
Martin's Press) ISBN 0-312-36067-3
51
Advisory Panel of Eminent Commonwealth Judicial Experts - Report of Mission; Nairobi, Kenya, May 2002
52
It is important to note that the IBARHA also made these observations as obstacles to the proper functioning
of the Judiciary.
11
 “We must remind ourselves that for peace and stability of a country, the observance
of the rule of law, the protection of human rights and security of our constitutional
democracy, there is need for an independent, effective and efficient judiciary.
Furthermore, weaknesses in the judiciary pose a threat to any constitutional
democracy, the rule of law, the capacity to stem the tide of corruption and the
creation of a peaceful, stable and legal friendly climate”.
Irene Ivujo – Association of Female Lawyers in Uganda- FIDA Uganda

Lack of Funding (Absence of Financial Independence)

There is a severe lack of funds available to the Judiciary in Uganda. According to

Justice James Ogoola, PJ (as he was then), the Judiciary’s budget was subject to
severe cuts53. This cut in funding has consequences both for court facilities, such as
the library, and for the administration of justice. This in turn has led to a backlog of
cases at all levels of the Judiciary. In December 2006, the Deputy Registrar of the
Criminal Division, Roy Byaruhanga, warned that it could take up to 300 years to
clear the backlog of cases should the current conditions prevail54. This has serious
implications for Uganda’s prisoners, many of whom are on remand awaiting trial.
The rosy safeguards envisaged in the constitution are simply provisions that are
embedded in the same and are not enforced; thus human rights of persons are
equally abused in the process.

Ogoola in a report55 warned that the lack of financial independence he ‘whittle[s]

down the independence of the Judiciary as an institution’. He said that the financial situation
of the Judiciary had reduced it to a position akin to that ‘of a beggar going cup in hand to the
Executive and the Legislative arms of the State in order to be able to perform its
constitutional duty’. This is very unfortunate because Article 128 (5)56 stipulates that
the administrative expenses of the Judiciary, including all salaries, gratuities and
pensions payable to or in respect of persons serving in the judiciary, shall be charged
on the consolidated fund. The judiciary collects a lot of monies in forms of court fees,
fines and more, however, the judiciary still receives low funding from the
government; the judiciary is the arm characterized by under staffing and this has
been raised by many persons in the judiciary including former Chief Justice Odoki
who noted that the judiciary is marred with challenges such as failure by the
executive to provide an adequate working environment for judicial staff, poor pay
and relegating the judiciary among the second or third best priorities of government,
suffice to mention the meager resources that are allocated to the judiciary compared

53
The years in question are 2003, 2004
54
I Mufumba/ E Gyezaho, ‘300 Years to Clear Case Backlog – Judiciary’, The Monitor, 16 December 2006.
55
Judicial independence undermined, 2007
56
The Constitution of the Republic of Uganda, 1995
12
to other organs of government57. This is proof that there is still a long journey ahead
to judicial independence.

Appointing Judges

The lack of judges is to be distinguished from a failure to appoint. The budget for
judicial appointments is passed by Parliament, whereas appointments are made by
the Judicial Services Commission whose members are appointed by the President.
The process of appointing judges is politicized58. Where the government is perceived
to appoint deferential judges – or friends – to the bench, it damages trust in the
judiciary, regardless of whether the judges are in fact biased in their rulings. In many
countries the executive (is widely perceived to) decisively influence who are
appointed as judges – even when there are rules and institutions in place to prevent
this from happening59. The Chairperson of the Uganda Judicial Officers Association
(UJOA) stated that because of the judges’ political affiliations, the public could
sometimes predict the judgment of each judge on a panel before the actual ruling
was made60.Another issue which was raised with the delegation is that if political
appointments are vetoed there is a failure to appoint any judges. The consequence
of such inaction can be seen in the Ugandan Supreme Court. Following the death of
one Supreme Court Justice and the retirement of another, the quorum of seven
Judges to handle constitutional appeals is not met. It is understood that the
appointment process has stalled at the Presidential level and that there are a number
of appeals are pending61. This undermines the independence of the judiciary and
negates public confidence in the public who use the Courts as temples of justice.

In Conclusion

The threats and actual breaches of the concepts of independence of the judiciary in
Africa litter thousands of pages of the Continent’s legal history. At the same time,
every constitution of most of the African states (including Uganda) provides for the
role of impartiality and Independence of its judiciary as well as sanctity and respect
for judicial pronouncements62; however this concept in Uganda is still more
prominent on paper than in reality as the judiciary has been undermined on several
occasions as has already been discussed. Its independence has been undermined and
this has led to a deterioration of public confidence in the Courts. The Country’s
history offers a vivid illustration that interference with the Judiciary is not so alien a

57
Chief Justice Benjamin Odoki deplored that the Judiciary was funded ‘like a small department’ and warned
that the ‘alarming shortage of judges’ had undermined the proper administration of justice in the country.109
Deputy Chief Justice Laetitia Mukasa-Kikonyogo spoke of a ‘crisis in the judiciary’ created by the shortage of
judges
58
According to the Uganda Judicial Officers Association (UJOA), 98 percent of judges’ appointments since 1997
have been political
59
Gloppen (2014) Courts, Corruption and Judicial Independence, p.71
60
A Mubiru, ‘Judges’ Appointments Annoy Judicial Officers’, New Vision, 17 August 2006.
61
Judicial Independence undermined, 2007
62
Kanyeihamba, G.W (2010) Constitutional and Political History of Uganda: from 1894 to present
13
concept after all. The period of tension and lawlessness of the late 1960’s led the
Judiciary to make decisions that have had far reaching implications to date – they
created “Ghosts” as Prof. Oloka-Onyango63 calls them that have haunted the
Country’s constitutional jurisprudence for decades.

Despite the total abuse of the Rule of Law, Human Rights and Democracy; it is only
prudent to commend the judicial officers who have defied the norm of “business as
usual” and have stayed ‘thirsty’ for the very principles enshrined in the Constitution
despite the over increasing pressure from executive and legislature. Some of the
judicial officers have come out to condemn the interference with the judiciary by
other organs of state.

Recommendations

The government should ensure that the Judiciary is accorded with the monetary and
human resources which will enable it to function without the risk of having its
independence curtailed, and which will allow it to clear the backlog of cases.

The procedure for the identification of candidates for judicial office should be
conducted in a transparent manner from outset to completion. The criteria for
[potential candidates should be in-line with the UN Basic Principles on the
Independence of the Judiciary64.

The government of Uganda ought to abide by judicial decisions which is

fundamental to the maintenance of the rule of law. Any disagreement over court
decisions should be settled within the channels provided for by law65. When court
decisions are not respected the Judiciary loses its independence as the judicial
officers cannot be in position to properly carry out their duties.

The Executive should respect the boundaries of the separation of powers and the
independence of the judiciary. Any criticism of judicial decisions should not amount
to pressure, influence or harassment of the judiciary. The executive should refrain
from attacking judges personally.

“Just as the Courts must apply Acts of Parliament whether they approve of
them or not, and give effect to lawful official decisions whether they agree of
them or not; so Parliament and the Executive must respect Judicial decisions
whether they approve of them or not, unless or until they are set aside”66

63
See generally Oloka-Onyango, J (2015): Ghosts and the Law
64
http://www.ohchr.org/EN/ProfessionalInterest/pages/IndependenceJudiciary.aspx

65
Judicial Independence undermined, A Report on Uganda, 2007
66
Lord Bingham, Re.McFarland [2004] UKHL 17
14
 BIBLIOGRAPHY

STATUTES
The Constitution of the Republic of Uganda, 1995 (as amended)
The Penal Code Act Cap 120 (as amended)
The Judicature Act, Cap 13
The Leadership Code Act, 2002 (Act no. 17 of 2002)
REPORTS
International Bar Association Human Rights Institute (IBAHRI): Uganda Judicial
Independence Undermined: A Report of Uganda, London, September, 2007 [accessed at
http://www.ibanet.org/Document/Default.aspx?DocumentUid=0ABBECB...

Advisory Panel of Eminent Commonwealth Judicial Experts - Report of Mission;

Nairobi, Kenya, May 2002 (accessed at
http://www.commonlii.org/ke/other/KECKRC/2002/8.html) [accessed on 21
March 2017]

CONVENTIONS AND TREATIES

International Convention on Civil and Political Rights (ICCPR)

Basic Principles on the Independence of the Judiciary; Adopted by the seventh

United Nations Congress on the Prevention of Crime and the Treatment of
Offenders held at Milan from 26th August to 6th September 1985 and endorsed by the
General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13
December,1985
<http://www.ohchr.org/EN/ProfessionalInterest/pages/IndependenceJudiciary.as
px>

BOOKS, ESSAYS AND JOURNAL ARTICLES

Bradley, A. W & Ewing, K. D (2011) Constitutional & Administrative Law, London,
Pearson Education Ltd.

Kanyeihamba, G. W.(2010). Constitutional and Political History of Uganda: From 1894 to

present, Kampala, LawAfrica.

15
Kanyeihamba, G. W: The Independence of the Judiciary, Separation of Powers and the Rule
of Law In A Democracy; The 5th Annual Judges’ Conference 16th-20th December, 2001
at Imperial Botanical beach Hotel, Entebbe (2001).

Okumu-Wengi, R (ed) (2011) Founding the Constitution of Uganda: Essays & Materials,
Kampala, LawAfrica.
Oloka-Onyango, J (2015). Ghosts and the Law: An Inaugural Lecture, Kampala,
Makerere University.

Ryan, M (2014) Unlocking Constitutional and Administrative Law, New York:

Routledge.

ONLINE ARTICLES, WEBSITES AND NEWSPAPERS

Busingye Kabumba, The Illusion of the Ugandan Constitution; AfricLaw.com accessed
at: https://africlaw.com/2012/09/27/the-illusion-of-the-ugandan-
constitution/[Accessed on 11th March, 2017]

A Wekesa, ‘Judiciary Not Free’ says Odoki, Daily Monitor, 21 September, 2001 accessed
at http://www.monitor.co.ug/News/National/-/688334/1233650/-/bjam4yz/-
/index.html [accessed on 11th March, 2017]

Gloppen, S (2014) Courts, Corruption and Judicial Independence, accessed at:

https://www.cmi.no/publications/file/5091-courts-corruption-and-judicial-
independence.pdf

The Daily Monitor, ‘Museveni mad with Judges over nullifying 2000 referendum act’,
30 June 2004 [An edited version of the speech is reprinted]

Uganda Judicial Staking: President Museveni’s War on Independent Court, July 26, 2013.

A Mubiru, ‘Judges’ Appointments Annoy Judicial Officers’, New Vision, 17 August 2006

I Mufumba/ E Gyezaho, ‘300 Years to Clear Case Backlog – Judiciary’, The Monitor, 16
December 2006.

E Mukyala, “Poor Facilitation Blocking Justice’’, New Vision, 14 December 2006.

16