The deployment of cadre judges is eroding the judiciary’s cardinal role of dispensing justice without fear or favour, according to Prof Fredrick Ssempebwa.
A senior and respected member of the law fraternity, Prof Ssempebwa warned that the tendency is unlikely to build a strong judiciary.
The phenomenon of cadre judges refers to President Museveni’s appointment of politically like-minded individuals to the bench in a practice seen to further the partisan interests of his ruling NRM regime.
“We really need to have a strong judiciary…when you have cadre judges; you are unlikely to have justice,” Ssempebwa told a symposium of public-interest lawyers.
The meeting, which was held at Kampala Sheraton hotel on October 20 was organised by Coalition for the Independence of the Judiciary in Uganda (CISTIJ) and Centre for Public Interest Law.
The lawyers were discussing lessons that Uganda can draw from the 2017 Kenyan Supreme court election petition decision.
“It takes an independent mind to interpret the Constitution and the law to come up with a just judgement,” Ssempebwa said.
“I agree there is the law, and justices implement the law but implement it in a way that upholds justice,” he added, drawing reference to Justice Njoki Susanna Ndung’s dissenting judgement in the 2017 Kenya presidential election petition that led to the nullification of Uhuru Kenyatta’s re-election.
Ssempebwa worked with Njoki in the writing of the current Kenyan constitution, and because of her conduct during that process, the constitutional law expert said, he was not surprised when she disagreed with the other judges who annulled the election.
Ssempebwa, who chaired the Constitutional Review Commission that led to the 2005 constitutional amendments, poked holes in the Ugandan Supreme Court’s ruling in the 2016 Amama Mbabazi presidential election petition.
He argued that the Ugandan court’s reliance on the ground of whether given evidence of rigging substantially affected a poll outcome, somehow rationalises serious electoral malpractices such as cheating.
“An independent mind can judge and pay attention to substantial cheating and substantial non-compliance to the law. In Uganda, Justice George Kanyeihamba is the only judge who in all his judgements paid attention to cheating and substantial non-compliance with the law,” Ssempebwa said.
“If people are disenfranchised like I was in the previous election because election materials didn’t arrive on time. By the time the materials came at 3pm in the afternoon, I and many others had given up. So, how can we show court where the votes of those who were disenfranchised would have gone?” Ssempebwa wondered, further making an argument for the need for independent- minded judges.
But Elison Karuhanga of Kampala Associated Advocates, one of the firms, which defended President Museveni in the Mbabazi election petition, disagreed.
“The fundamental issue on [substantial] effect can’t be underestimated. The question is; can you have a perfect election? Can’t the actors make genuine mistakes? Once you have an election, there must be a standard at which you annul it but that standard cannot be the standard of perfection,” Karuhanga argued.
“Fundamentally, the issue is not the question of substantiality, because that is a misunderstanding of the issue. The real issue is; does the result of the election reflect the will of the people who turned up to vote? If the result reflects the will of the people and it is those who have the power to choose who to govern them and how they should be governed, on what basis then can you overturn that will?” Karuhanga wondered.