Wednesday, March 28, 2012

This is how the Executive outfoxes the Judiciary

Posted by prof. George Kanyeihamba

on Sunday, January 22 2012 at 00:00
Ask Ugandan lawyers about the state, independence, impartiality, quality and performance of judges and judicial officers. The majority of the answers on most of these characteristics will be discouraging and negative. Lawyers who care and who do not benefit through unethical behaviour and lack of integrity in the profession will, if they are candid enough, reveal that the methods of vetting new recruits into the Judiciary are either very poor or non-existent.

They will name the incompetent, the corrupt and the biased. They will narrate stories of how they or their clients were compromised or blackmailed by corrupt judicial officials. The system of nominating, appointing and disciplining judges and other judicial officers have become political and personalised. Allegations of corruption, abuse of judicial office and evidence amply justifying those allegations is freely available, but it seems no one wishes to do anything about these ghastly failures in our judicial service.

The existence of this kind of behaviour and reactions or, to be exact, non-reactions, inevitably means that Uganda grossly lacks what may be termed in other jurisdictions ideal or acceptable standards of justice.

The practice of nominating and approving the least desirable and qualified judges and judicial officers has been perfected under the National Resistance Movement party. Many lawyers know and regret the major reason why Uganda has sank below the level line of countries which are recognised as champions of independent, impartial and respected Judiciaries.

These are Judiciaries designed, protected and respected to interpret the law correctly and administer justice impartially. The trick used by the ruling party leadership to achieve this feat has been to ensure the absence of an independent and courageous Judiciary by establishing and sustaining weak and intimidated leaderships of the Judicial Service Commission, the Chambers of the Attorney-General and of the Judiciary in preference to fearless and principled ones that would represent and constantly fight for an independent, impartial and fearless Judicial institution.

The institutions and personnel of the bodies set up under the NRM party to service the Judiciary have been deliberately or otherwise rendered toothless. The consequences of undermining or belittling the Judiciary have been disastrous for the country and litigants alike.

The Judiciary has become a laughing stork of its critics. The quest for proper interpretation of the law and proper administration of Justice have yielded no or few responses. Corruption and incompetence have increased citizens’ dissatisfaction and cries for justice. Cases of disappointed litigants have increased as reports of incompetent and corrupt judicial officers have increased. Allegations of wrong-doing and improper conduct have become rampant in all sectors involving law and justice.
According to the Constitution, Judicial power is derived from the people and shall be exercised by the courts in the name of the people and in conformity with the law and with the values, norms and aspirations of the people.
Considering what Parliament, the press and the President have between them testified about the alleged offences of Hassan Basajjabalaba and other suspects, how can a Judge of the High Court, oblivious to all credible evidence regarding the same, block attempts by the government to recover Shs169 billion “irregularly” awarded to him?

If a journalist of a daily newspaper is correct that a judge of the High Court who happens to be hearing land cases issued a temporary injunction blocking the Auditor General, the minister of Finance and Uganda Revenue Authority and other government agencies from investigating or taking any steps to recover part or the whole sum, then this country is in crisis.

I have seen and read several such injunctions and applications intended solely to delay or defeat justice. It is high time that the law relating to injunctions was reviewed by the Chief Justice’s initiative.

The Executive arm of government has through directives and in defiance of the advice of the Judicial Service Commission, manipulated Articles 142 and 147(2), and imposed its own interpretation of the same with no effective protest or opposition from the Judiciary or the Uganda Law Society or, indeed, the entire national legal fraternity.

In practice, the Executive today nominates or rejects any candidate for any office regardless of the position the candidate is nominated for in the hierarchy of the Judiciary.
Justice Kanyeihamba is a retired Supreme Court Judge.

Ugandans would rather put down messengers than bad news makers

Posted by Prof. George Kanyeihamba

on Sunday, February 5 2012 at 00:00
In one version of the “Cleopatra” film, there is a scene where the Senate of Rome debates Rome’s deteriorating relationship with Egypt and resolves that war should be declared on Egypt. Meanwhile, Egypt had sent a special envoy to attempt and negotiate a peace agreement between the two belligerent states.
The Senate having passed the war resolution, the Roman emperor, Octavia rushed out of the Senate building waving a spear of war to inform the jubilant crowds outside about the imminent war with Egypt. The Egyptian envoy happened to be standing in the crowds that were milling around the Senate house. The emperor having recognised the envoy, worked the crowd into a murderous mob and asked them the whereabouts of Egypt while pinpointing the spear at him. He then took a deliberate aim and speared the envoy to death.
This act of murder is the antithesis of the culture of the Bakiga of Uganda which prohibits the killing of the bearer of bad news. Entumwa teitwa.

Unfortunately, here in Uganda we assassinate such bearers but invariably spare the causers of bad news. In the worst of scenarios, we actually condemn citizens who courageously discover and report wrongs but praise, admire and promote the doers of wrongs.
From the Sebutinde Commission of Inquiry into Police mismanagement and Corruption to the swindling of gorilla permits money by pocketing the national wealth into private pockets of diverse officials and operators, to the disappearance of billions of shillings reported by the World Bank and the Commission of Inquiry into the mismanagement of the UWA-Pamsu project and many others, the innocent finders and reporters of wrong-doing have been scathingly castigated, shunned and sometimes threatened while those reported as the wrong-doers, the culprits and the criminally minded have been spared, retained in their positions or occasionally promoted.
Ugandans know of police officers who were found by the Sebutinde Commission to have been responsible for crimes committed in the country and whose discipline and removal from the Police Force were strongly recommended. Apparently, some were nevertheless retained while others were promoted, presumably in recognition of their wrong-doing.
In the recent report of the Commission of Inquiry into the Mismanagement of the UWA-PAMSU Project, culprits were specifically named. The appropriate disciplining organs have chosen to maintain a conspicuous silence about them. In some cases, the culprit and the suspects have been promoted or retained in their various positions. A political leader who had persistently claimed that he was innocent of the charges against him because he had not been around when the alleged funds were dispatched was found to have been lying because at the time those funds were received and some of them lost, he was the Chairman of the Board of Directors of UWEC. He successfully and in writing blocked the Commission of Inquiry from entering the UWEC premises.
He recently addressed his Ministry where as I write is still in charge and said that the Commission’s report had interfered with his ambitions to improve the Ministry and claimed that he had never received it anyway when the Commission has his letter, signed by him acknowledging its receipt.
In one notorious judicial complaint of serious dimensions a grade I magistrate who was caught red-handed indulging in corruption and extortion was recently promoted to the post of Chief Magistrate to adjudicate in a region that he had served before in a junior post. His glaring and injudicious acts and behaviour were brought to the attention of the office of the Attorney-General, the Chief Justice and the Judicial Service Commission, all of which appear to have done nothing transparent or worth their respective offices that could be described in any manner or shape as remedial.
A culprit who was equally condemned by His Excellency the President of Uganda, Yoweri Kaguta Museveni himself, remains free and at large notwithstanding the knowledge and adverse comments on the fellow by the Head of State, the media and others.

What can we do?
Justice Kanyeihamba is a retired Supreme Court Judge.

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