The Judiciary’s weakness should be a concern of everyone in Uganda
Posted by Prof. George Kanyeihamba
on Sunday, March 25 2012 at 00:00
Recent developments affecting the Judiciary in Uganda are disturbing. A former Minister of Justice said that she personally rejected a candidate recommended by the Judicial Service Commission to be a judge because in her opinion, he was not suitable. I believe that she also revealed that she had suggested a substitute who was acceptable to her and presumably to the Executive. I expected an outburst of protests from all sections of the legal fraternity in Uganda. If they were, they must have been muted or expressed privately. This episode constitutes the crudest and unconstitutional way of appointing judicial officers. It is strictly prohibited by the Constitution and laws of the country.
There was another disturbing episode. Several years ago, the Judicial Service Commission rejected candidate “A” who had applied to be a judge of the High Court. It highly recommended the appointment of candidate “B” to be a judge of the Court of Appeal which in Uganda doubles as a Constitutional Court of first instance. Incredible as it may appear to admirers of an independent, fearless and principled Judiciary, in this particular instance, the Executive rejected both recommendations. The story became more intriguing and bizarre. The same minister informed the Commission that government would not accept candidate “B” to be a judge of the Court of Appeal because they mistrusted his political beliefs. The President was recommending that “B” be appointed to the High Court, and that “A” should not be rejected but appointed as a judge of the Court of Appeal. An intimidated and unprofessional Commission succumbed to the will of the Executive. Again, there were neither apparent objections nor protests. Both the legal profession and the management of the Judiciary appear to have swallowed their pride and accepted the directives from the Executive.
Thus the Judicial Service Commission, through intimidation or expectations of favours from the Executive failed to defend professional ethics and integrity or to curb the prevailing Executive tendencies to have nominated and appointed to judicial posts candidates it prefers. The results have been the lowering of standards and poor performance in the Judiciary.
The practice of pleasing the Executive in the process of appointment of judicial officers is not only dangerous but is unacceptable in modern Uganda. Perhaps the worst development that has persistently undermined the reputation of the Judiciary is the taming of the Judicial Service Commission to become a tool of the Executive to the extent that in practice it is the Executive now that nominates, vets, approves and appoints judges. Before and during Justice Odoki’s tenure as he then was, whenever a vacancy occurred, the Commission complied with the constitutional mandatory requirement that the most suitable candidate, and not several alternatives, would be sent to the President for screening and sending to Parliament for approval before appointment. The President had no choice but to appoint according to the recommendation of the Judicial Service Commission.
The incumbent President seized the opportunity to remove the concept of the independence and impartiality of the Commission by persuading it to accept the method by which the President requires that whenever a vacancy occurs in the Judiciary, the Commission should forward to him, not one candidate they assess to be the best, but two more other candidates. Usually the President will have been informed or found out himself that a judicial officer by the name of say ‘X’ is a fanatical supporter of the President or of the NRM party. Such candidate may not necessarily be competent or suitable, let alone the best. Three names sent to him enables the President a free choice.
If the names do not include “X”, another set of three names will be demanded and forwarded to the President. If “X” is among them, he will be appointed. If he or she is not on the list, the President will reject all the three and send for yet another set of three. It is only when “X’s name is in the group forwarded to him, that the President will appoint. In practice therefore today it is the Executive which searches for, nominates, vets, approves and appoints candidates for posts in the Judiciary. This is a most regrettable development. Even though one or two members of the Ogoola Commission were weaklings who easily succumbed to this unconstitutional practice, it is hoped that the Ogoola Commission will reject this most regrettable tendency. People who unquestionably bow to the will and choice of the Executive should not be appointed to high offices in the Judiciary or the Judicial Service Commission.
Justice Kanyeihamba is a retired Supreme Court Judge.
gwkany@yahoo.com
Posted by Prof. George Kanyeihamba
on Sunday, March 25 2012 at 00:00
Recent developments affecting the Judiciary in Uganda are disturbing. A former Minister of Justice said that she personally rejected a candidate recommended by the Judicial Service Commission to be a judge because in her opinion, he was not suitable. I believe that she also revealed that she had suggested a substitute who was acceptable to her and presumably to the Executive. I expected an outburst of protests from all sections of the legal fraternity in Uganda. If they were, they must have been muted or expressed privately. This episode constitutes the crudest and unconstitutional way of appointing judicial officers. It is strictly prohibited by the Constitution and laws of the country.
There was another disturbing episode. Several years ago, the Judicial Service Commission rejected candidate “A” who had applied to be a judge of the High Court. It highly recommended the appointment of candidate “B” to be a judge of the Court of Appeal which in Uganda doubles as a Constitutional Court of first instance. Incredible as it may appear to admirers of an independent, fearless and principled Judiciary, in this particular instance, the Executive rejected both recommendations. The story became more intriguing and bizarre. The same minister informed the Commission that government would not accept candidate “B” to be a judge of the Court of Appeal because they mistrusted his political beliefs. The President was recommending that “B” be appointed to the High Court, and that “A” should not be rejected but appointed as a judge of the Court of Appeal. An intimidated and unprofessional Commission succumbed to the will of the Executive. Again, there were neither apparent objections nor protests. Both the legal profession and the management of the Judiciary appear to have swallowed their pride and accepted the directives from the Executive.
Thus the Judicial Service Commission, through intimidation or expectations of favours from the Executive failed to defend professional ethics and integrity or to curb the prevailing Executive tendencies to have nominated and appointed to judicial posts candidates it prefers. The results have been the lowering of standards and poor performance in the Judiciary.
The practice of pleasing the Executive in the process of appointment of judicial officers is not only dangerous but is unacceptable in modern Uganda. Perhaps the worst development that has persistently undermined the reputation of the Judiciary is the taming of the Judicial Service Commission to become a tool of the Executive to the extent that in practice it is the Executive now that nominates, vets, approves and appoints judges. Before and during Justice Odoki’s tenure as he then was, whenever a vacancy occurred, the Commission complied with the constitutional mandatory requirement that the most suitable candidate, and not several alternatives, would be sent to the President for screening and sending to Parliament for approval before appointment. The President had no choice but to appoint according to the recommendation of the Judicial Service Commission.
The incumbent President seized the opportunity to remove the concept of the independence and impartiality of the Commission by persuading it to accept the method by which the President requires that whenever a vacancy occurs in the Judiciary, the Commission should forward to him, not one candidate they assess to be the best, but two more other candidates. Usually the President will have been informed or found out himself that a judicial officer by the name of say ‘X’ is a fanatical supporter of the President or of the NRM party. Such candidate may not necessarily be competent or suitable, let alone the best. Three names sent to him enables the President a free choice.
If the names do not include “X”, another set of three names will be demanded and forwarded to the President. If “X” is among them, he will be appointed. If he or she is not on the list, the President will reject all the three and send for yet another set of three. It is only when “X’s name is in the group forwarded to him, that the President will appoint. In practice therefore today it is the Executive which searches for, nominates, vets, approves and appoints candidates for posts in the Judiciary. This is a most regrettable development. Even though one or two members of the Ogoola Commission were weaklings who easily succumbed to this unconstitutional practice, it is hoped that the Ogoola Commission will reject this most regrettable tendency. People who unquestionably bow to the will and choice of the Executive should not be appointed to high offices in the Judiciary or the Judicial Service Commission.
Justice Kanyeihamba is a retired Supreme Court Judge.
gwkany@yahoo.com
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