By Fred Muwema
The judiciary of Uganda just like other public sectors is dogged by many challenges. From low pay, low morale, understaffing, case backlog to suffering the indignity of renting significant office space from Court users. This list makes for a depressing read but to its credit, the judiciary has soldiered on.
The situation may just have been made worse by the unmasking of judicial immunity which judicial officers have been enjoying as a matter of course in the discharge of their judicial duties. Unlike the other challenges mentioned above which are mainly caused by external factors like the underwhelming budget support they perennially receive from the government, this time the new challenge which is a threat to their judicial immunity has been caused by the judges themselves.
In a transitional country like Uganda where members of parliament use their legislative mandate to increase their pay and also illegally exempt that pay from taxation, it is surprising that we have judges living in the same country who love themselves less and take the lead in depriving themselves of their constitutional rights.
As a member of the time honoured legal profession whose apex is occupied by the members of the judiciary, I shudder at the devaluation of the judicial oath sworn by judicial officers of all rank if they start administering justice tempered by the fear of litigants who might report them to the Judicial Service Commission for the supposed wrong decisions they make.
The damage to the Ugandan judiciary and the country as a whole will cease to be numerate and measurable the day judicial officers will deliver judgments on the basis of which choice of decision is least likely to arouse questions of judicial discipline by a litigant rather than which choice of decision is best under the law as he or she understands it.
Unfortunately, this is the regime that the Supreme Court has re-enforced with its recent decision in Constitutional Appeal No. 2 of 2016; Attorney General vs. Gladys Nakibuule Kisekka. The full text of the majority decision of the Court and the dissenting decision of Lady Justice Dr. Esther Kitimbo Kisakye can be found at https://ulii.org/ug/judgement/supremecourt-uganda/2018/30.
In that decision, the Supreme Court ripped apart the judicial independence and judicial immunity guaranteed by the Constitution under Article 128 when it held that Her Worship Gladys Nakibuule Kisekka, who is a serving Registrar of the High Court should face personal liability for the judicial act of recalling a warrant, an act she had performed in exercise of her judicial power.
As a practicing lawyer for over two decades, I have been at the receiving end of both good and poor judicial decisions at all levels and I have channeled any dissatisfaction through the elaborate judicial appellate process provided by the law. It has always been my understanding and indeed the understanding of many lawyers that under the doctrine of mere legal error, making mistakes by judicial officers in the judicial decision making process was human and inevitable and that no serious judicial system was prepared to punish its members for routine judicial errors or imperfections.
The only disclaimer which would invite personal disciplinary sanction against a judicial officer was when he or she stepped out of the line of duty and engaged in injudicious, criminal or corrupt acts inimical to the mandate of the institution of the judiciary.
I have also always known judicial immunity to be an ironclad non-negotiable safeguard to the judicial independence of judicial officers which enables them to decide cases in accordance with the law as they understand it, free from extraneous considerations of punishment or reward. But now, I am being told by the Supreme Court that I was wrong because the judicial immunity of judicial officers when they perform their judicial duties is not absolute.
That any litigant or executive authority who is upset by the decision of a Magistrate, Registrar, Judge of the High Court, Justice of the Court of Appeal or Justice of the Supreme Court can hold that judicial officer personally liable for the wrong decision they have made and drag them to the Judicial Service Commission for abuse of judicial authority. Moreover the lifting of judicial immunity has not been limited by the Supreme Court to civil liability only as judicial officers may also be exposed to criminal liability for their decisions or actions.
I must confess that there was nothing which could have prepared me for this kind of decision even though I was Counsel who participated in the prosecution of this case on behalf of the learned Registrar. I mean, even if the majority decision of the Honourable Justices of the Supreme Court may not be agreeable, I find it simply imperceptible and outside any pretence of rationality for anyone to accuse the Honourable Justices of abuse of judicial authority just because they actuated a legal error in arriving at their decision.
In the same way I would find it to be a derogation of judicial immunity if the Honourable Chief Justice were to be sanctioned for recently responding to and refusing to heed the president’s call not to grant bail to some criminal suspects.
Immunity has been granted under the Constitution to the office of the president, the Institution of parliament and the judiciary, but in doing so, the Constitution has guaranteed that this immunity cannot be ensnared away from the office holders at any time in the lawful performance of their duties. However with the above Supreme Court decision, there is now a precedent set to lift the immunity not only of the judicial officers but also of the other constitutional offices if the office holders are deemed to have committed wrong acts or omissions in the course of their official duties. I doubt that the framers of the Constitution could have intended such an absurdity which would effectively paralyze the functioning of the various arms of Government.
In my view, the Supreme Court could have intended to strengthen the accountability of Judges to the public which is a good thing, but I don’t think they can achieve this objective by removing the guarantees of judicial immunity and independence at the same time. It is true that the Judicial Service Commission has a mandate to foster the discipline of judicial officers which duty it must do in observance of and not derogation of the Constitution.
In my view, allowing the Judicial Service Commission unfettered liberty to question the propriety of judicial decisions of judicial officers is like giving a child a hammer because then that child will think that everything it confronts is a nail. With the greatest respect, I don’t believe that this decision will advance the effectiveness of the Courts and improve the competence or morale of the judicial flock.
Fred Muwema
Managing Partner
Muwema & Co. Advocates
18th July, 2018