ANALYSIS: What made Kenya’s Supreme Court ruling possible. Why it cannot happen in Uganda
Kampala, Uganda | IAN KATUSIIME | Minutes after the historic Supreme Court ruling in Kenya that nullified the Aug. 8 presidential election, someone tweeted a quick thought, “It is not an understatement to say that Kenya’s Supreme Court has taught other African courts a lesson.” The first take away of the ruling is that it had thrown the substantiality test out of the window, the basis on which Kizza Besigye’s presidential election petitions in 2001 and 2006 were quashed by the Supreme Court in Uganda.
The subsequent discussions delved into comparisons between Uganda and Kenya’s judicial systems. The two countries inherited their judicial systems from the colonial set up but overtime the two systems have evolved and there are salient differences.
Peter Walubiri, a constitutional lawyer told The Independent that Uganda needs more legal and judicial activism for it to match the level Kenya has reached. “The legal system in Kenya has been very activist in the democratic struggle right from the days of KANU in Daniel Arap Moi’s era. These are the products of a more vibrant system,” he adds “ULS is not as active, not on political matters”.
He adds that Kenya’s current political system insulates the country’s courts from undue pressure unlike the situation in Uganda. “Of course the political setting in Kenya is composed of various coalitions, alliances and shifting power bases which makes it impossible to have an entrenched strongman to whom everybody pays allegiance,” he said.
A point worth noting because, the current Ugandan Chief Justice Bart Katureebe, his outgoing deputy Steven Kavuma, the incoming one Justice Alphonse Owiny-Dollo and several other justices of the Supreme Court have all served in Museveni’s cabinet in the past. Not to say it compromises their independence but Kavuma earned notoriety and the moniker ‘cadre judge’ for his controversial rulings seen to be in favour of the ruling NRM party.
Selection of judges
In Uganda, the appointment of judges is done by way of recommendation from the Judicial Service Commission (JSC) to the President. This is also the same for Kenya. However, there are key differences in the set-up of the JSC and how the names of selected judges finally end up on the President’s desk.
In Uganda, the chairman of the JSC is appointed by the President while in Kenya, the Chief Justice is the chairperson of the JSC, according to Article 171 of the Constitution of Kenya.
This is a key difference between the composition of the JSC in the two countries. Earlier this year, the Uganda Law Society in its proposed reforms, suggested that the head of the JSC should be the Chief Justice as a way of making the judiciary more autonomous.
In Uganda, the office of the chairperson of the JSC is fulltime and the holder cannot engage in private legal practice while holding that office. Both the chairperson and the deputy are persons qualified to be appointed as justices of the Supreme Court according to Article 146 of the Constitution of Uganda.
The other members are; one person nominated by the Public Service Commission, two advocates of not less than fifteen years’ standing nominated by the Ugandan Law Society, one judge of the Supreme Court nominated by the President in consultation with judges of the Supreme Court, justices of Appeal and judges of the High Court. Also included are two members of the public, non-lawyers, nominated by the President. The Attorney General is an ex-officio member of the Commission.
In Kenya, the president does not have the same authority when it comes to constituting the JSC. Other than the Chief Justice who is the head, the JSC in Kenya is composed of one Supreme Court judge elected by the judges of the Supreme Court, one Court of Appeal judge elected by the judges of the Court of Appeal, one High Court judge and one magistrate.
Article 171 (2) (d) of the Constitution of Kenya stipulates that of the High Court judge and magistrate, there must be a man and a woman elected by the association of judges and magistrates. Other members are the Attorney General, two advocates, one man and one woman with at least fifteen years’ experience elected by the Law Society of Kenya.
The JSC in Kenya also has one person nominated by the Public Service Commission and one woman and man to represent the public, non-lawyers, appointed by the President with the approval of the National Assembly.