By Joan Akello
Candidates must be willing to work long hours for low pay
Since Chief Justice Benjamin Odoki clocked 70 years on March 23, a day after the death of his acting deputy Constance KategayaByamugisha, reshaping the leadership of the judiciary in Uganda has become urgent.
Although still in office, Justice Odoki is effectively retired. For a start therefore, his position, and many others in the judiciary, will have to be filled. Already there have been jitters about the incompleteness of the highest judicial position in the land, the Supreme Court, and the Constitutional Court which is also the Court of Appeal.
The Supreme Court has five justices including outgoing Odoki instead of eleven, the court of appeal that also sits as Constitutional Court has five judges instead of 15 judges following the death of Byamugisha. Although Steven Kavuma is now the Acting Deputy Chief Justice, the court he presides over cannot conduct any business.
One of the Judges, Stella Arach Amoko, also sits on the East African Court of Justice. According to the Spokesperson of the judiciary, Eriasa Kisawuzi, there are only three reliable judges in the court of appeal.
The High Court has 42 judges instead of the required 50. This means all the courts have more vacancies than filled positions.Some of the High Court judges have other assignments such as Justice Stephen EgondaNtende who is also Odoki’s personal assistant and Justice Peter Kermit Keronega Onega who also sits in the Amnesty Commission.
Ideally, it should be that as a judge retires or is appointed to a different task, another judge steps in, so that court business continues. However, Uganda‘s judiciary has appeared flatfooted in such situations.
Kisawuzi told The Independent that “this arm of government is in a critical situation now”.
“The volume of work is humanely impossible even if they were six judges and they sat day and night they would not finish these cases,” Kisawuzi says, “There is a backlog of about 4,000 appeals and yet it is difficult to make the judges sit the entire week.”
He said there are over 70 constitutional appeals but because there is lack of Coram, the judges can only hear applications.
Asuman Basalirwa, a city lawyer says that if the situation is not arrested the country will face a constitutional crisis.
“One pillar of the state is incomplete, its incompleteness unfortunately seems deliberate by those in charge of appointing the judges,” Asuman says.
Prof. George William Kasozi, an associate law lecturer at Bishop Stuart University Faculty of Law, says without judges to preside over cases, justice becomes elusive, if not a mirage, which citizens may never realise.
“It is therefore incumbent upon the appointing authority; the President, acting upon the advice of the Judicial Service Commission to appoint men and women to be judges. The Government will be commended for taking this as a priority for good governance,” he says.
Speculation has been rife that the incompleteness of the judiciary serves certain interested parties. But two men are charged with filling the vacancies: James Ogoola, who is the head of the Judicial Service Commission, and President YoweriMuseveni.
When James Ogoola, a former principal judge became chairman Judicial Service Commission (JSC) there was hope that he would tackle the ills of vacancies and indiscipline. One year later, his board has filled certain positions in the magistrate’s court, but that is not enough.
Ogoolasays his commission has managed to fill over 70 vacancies including over 53 positions of Grade 1 magistrates but, he adds, the Supreme Court having no Coram for a very long time is a “serious matter”. He says he has made recommendations for all the positions that are vacant in the Supreme Court, the court of appeal and the High Court.
Although there is no official word on who he has recommended, it is Ogoola’s recruitment method that is attracting commentary. Poetic and ever creative, Ogoola has broken with the head-hunting tradition of the judiciary; he has called for interested candidates to apply.
Previously, nominations were received from the traditional institutions like the Director Public Prosecutions and the Judiciary.
When The Independent prodded him about whether his novel approach will produce the desired candidates, Ogoola declined to comment.
He could only say that it will “ensure transparency and give an equal opportunity to qualified Ugandans”.
The Independent asked him whether he considered the recruitment pool too small, or the DPP and the Judiciary unqualified to recruit, or that there are qualities he is looking for in the candidates that he and his team cannot get through head hunting.
There is no doubt that advertising instead of head hunting will expand the recruitment pool. But some critics say it may put the top jobs, say that of Chief Justice, in disrepute if as happens over other top jobs in Uganda, the process is marked by scandals. It may also promote discipline and a non-collegial judiciary.
Kahungu Tibayeita, a representative of the Western region in the Uganda Law Society Council says Ogoola’s system will promote merit. He says the old recruitment system was based on personal perception by members of the JSC or political influence.
But Prof. George William Kasozi disagrees.
“The members of the Law Society know themselves,” he says, “They know who among them are lazy, indulge in unbecoming conduct, those who are likely not to perform well as judges, and those prone to corruption and bribery. Advertisement does not per see guarantee that we will get the best candidate.”
A city lawyer says Ogoola was a principal judge for about ten years, a position where he interacted with lawyers, legal academia and the judiciary.
“So does it mean that he did not meet any Ugandan fit to become chief justice? Even if he says he does not know who can, how can nobody in his team have a candidate?” the lawyer asked.
Perhaps Ogoola has seen the flaws with head hunting and decided to look next door and try out what his neighbour has done.
Kenyan judges, including the Chief Justice, apply for the jobs. The Judicial Commission then shortlists and interviews are broadcast live. Names of those who pass are forwarded to the appropriate parliamentary committee which also grills them on live TV. The names are then seconded to the President to formally appoint.
In Uganda, the reverse is done. The Judicial Service Commission receives nominations from Directorate of Public Prosecutions (DPP). The JSC shortlists and interviews behind closed doors. Recommended candidates are passed to the President who also vets before he sends his candidates to Parliament’s Appointments Committee.
The committee can second or reject the President’s nominee. If the nominee is rejected, the committee makes recommendations to the President. If the nominee is accepted, then they are appointed by the President formally.
Problems of politics
Tibayeita says the old recruitment method is politically problematic.He says although the JSC recommends a candidate, the President has sometimes refused to sign appointing documents.
“There are enough lawyers and judges qualified to fill all the vacant posts,” he says, “(But) those acceptable to the powers that be are perhaps not yet spotted.”
Apparently the President cannot predict how unknown judges will rule and takes time to understand their biases.
But the poor pay of judges and lack of decent terms of service have been cited in reports analysing the backlog of cases. The challenge is how to get a lawyer in private practice, who in one case can earn billions of shillings, to accept to be appointed a judge, where his monthly salary may not exceed 8 or 10 Million shillings.
A lawyer said judges are not appointed because there is no money to pay them but Justice Ogoola told The Independent on phone that all the recommended names are “replacements of those who are already catered for in the budget.”
“The question to be asked, “he said, “Is how much; will salaries be increased in the next budget?”
Prof. Kasozi says that many countriesin Africa view the Judiciary as not developmental, and refuse to give it priority when budgeting. That needs to change.
“The current crop of judges has sacrificed a lot, to accept appointment even with a very modest pay. I believe we can boost their morale by paying them well.” Justice Odoki has up to June 23 to clear his desk. Will the President have found a successor or will he rule the country without a chief judge?