Mr. Muwema

 

 

By Fred Muwema

 

The Uganda Judicial Officers Association (UJOA) has three months to vacate its offices at Buganda Road Court and the Supreme Court or face eviction. This is the directive issued ironically by the Secretary to the Judiciary Mr. Pius Bigirimana according to a story published by the Monitor Newspaper of 20th February, 2020 at page 3 under the title “Judicial Association told to vacate office”.

In the story, it is reported that the reason for the impending eviction is that UJOA is not an entity of the judiciary and that their use of the Court premises contravenes treasury accounting instructions. It is not clear whether UJOA has always been or it has just become a non entity of the judiciary. It is also not clear whether the so called treasury accounting instructions have just recently been put in place or they pre-exist the directive. What is clear though is that this directive is very intentional and intense. This then begs the question, is the directive right and lawful? I will argue here that it is not right and lawful.

Consistent with its lack of clarity, the directive does not explain what an entity of the judiciary means nor does it explain whether there are different entities of the judiciary which are entitled or not entitled to use the Court premises. If this explanation had been given, it would have been easy to find the legal grounding behind the directive. However, since no explanation was given, its legal grounding (if any) will be subject to a lot of speculation. The purpose of this opinion is to contribute to the erasure of any speculation about the legal propriety of this directive because it has none.

For starters, it is important for us to define what an entity is. The Oxford Advanced Learners Dictionary defines an entity to mean a thing with distinct and independent existence. From the above definition, I would like to understand the judiciary to be one entity of distinct and independent existence. It is comprised of the Justices of the Superior Courts, Judges of the High Court, Registrars and Magistrates. This is the view which informs the provisions of chapter 8 of the Constitution which establishes the institution of the judiciary. All the different structures and offices of the judiciary are part and parcel of the same entity called the judiciary. According to the Constitution once any officer is part of the judiciary, he or she remains part of the judiciary unless removed in accordance with the law.

You therefore cannot talk about the judiciary without the constituent judicial officers who man it individually and collectively. So when judicial officers congregate under UJOA, their umbrella professional body which advocates for their welfare, they don’t become another entity with distinct and independent existence from that of the judiciary. They still remain a constituent part of the judiciary. To put it in another way, UJOA is the judiciary and the judiciary is UJOA.

Consequently, UJOA cannot be evicted from the Court premises at Buganda Road Court and the Supreme Court because they are in lawful occupation and use of the Court premises. With respect, the Secretary of the judiciary acted under a misdirection to ask UJOA to vacate the Court premises since by law, its members are required to occupy and work at the very premises. Their right to form or join professional associations which is guaranteed under Article 29 of the Constitution is enjoyed contemporaneously with their right to work at the Court premises. Therefore UJOA is an expression of these fused constitutional rights which can best be enjoyed at the work place of its membership.

Indeed in the public service like the Uganda Police, Parliament, Mulago Hospital etc, similar associations are not prohibited from operating within the precincts of the institution itself. In this case, what is not prohibited is permitted. This is re-enforced by the provisions of Order 7 of the Uganda Public Service Standing Orders, which mandates the Government to recognize such associations as an engagement platform with the concerned public officers. Therefore by attempting to throw UJOA out of its work premises, the Secretary to the judiciary is trying not to recognize the Association. This is contrary to established public policy.

Lastly, the directive alleged that UJOA’s presence at the Court premises would contravene treasury accounting instructions. I want to believe that this was a reference to the need for the judiciary to uphold the principles of public sector accountability to avoid misuse and abuse of judiciary assets. I also want to believe that this was a veiled suggestion that perhaps by sitting at the Court premises, UJOA was misusing or abusing public property.

Again my understanding here is that any talk of accountability for judiciary assets must be premised on the legal and organizational structure of the institution which is required to account. As I have already explained above, UJOA is the foundation of the legal and organizational structure of the judiciary and so it is not only required but expected to use the judiciary premises and other assets. I don’t see how UJOA through its members, can be guilty of misusing or abusing public property which is entrusted to it for discharge of its public duties. On the contrary, I would find that it is an act of public misfeasance for any public officer to prevent another public officer from doing their public duty individually or in association with others. I think this is what the Secretary to the judiciary was trying to do with his eviction notice. It is time for the judiciary to put its act together and address the more pressing issues which affect delivery of justice to the public. The public is not interested in such fractional fights which only serve to undermine its performance.

Fred Muwema
Managing Partner
Muwema & Co. Advocates
21st February, 2020