The Judicial Service Commissioner, Norah Matovu Winyi, is frustrated because she cannot get rid of bad apples on the bench. Matovu expressed this while addressing the newly appointed High court judges at the Judicial Training Institute.
She attributes this difficulty to constitutional rigors, particularly Article 144 (3) (4) which gives powers to discipline a judicial officer ( judges to chief justice) to the president, who appoints a tribunal.
When the president refers a particular judicial officer to the tribunal, that officer will be suspended until recommendations are made.
There might be a problem in composing the tribunal because the law requires, for instance, if the person investigated is a chief justice, the tribunal would comprise five persons who are or have been justices of the Supreme court or advocates of at least twenty years’ standing.
We have several retired justices, many of whom I doubt would be willing to try their colleagues. But this hurdle can be sorted with appointment of judges from the Commonwealth member states or the East African region.
Once, High court judge Okumu Wengi was accused of professional misconduct by a senior lawyer, Peter Mulira. On the advice of the Judicial Service Commission (JSC), the president suspended Wengi and appointed a tribunal to investigate him.
The panel comprised Tanzania’s retired judge Josephat Kanywanyi, Kenyan judge Lee Gacuiga Muthoga and Uganda’s Peter Mulira and Moses Adriko.
As the accuser, Mulira recused himself from the panel because conflict of interest would arise. Later, however, Mulira withdrew the accusations and apologized to the judge. The president accordingly cancelled the tribunal, and the judge was advised to take an early retirement.
Matovu wants the constitution amended so powers of punishing the misconducted judicial officers are transferred to where there are no political favours. Reformative as it sounds, Matovu needs to tell us whether the need to amend that provision has been occasioned by the president’s reluctance to appoint a tribunal.
Matovu did not indicate how many cases of professional misconduct and incompetence referred to the president that he had not acted on. In his proposal, what Matovu is trying to address is at the tail end of the problem.
Let us look at how judges are appointed. To date, JSC has not answered the question whether former deputy chief justice, Steven Kavuma, had really been recommended for that position as required by law.
Efforts to have this matter cleared in court were frustrated by the judiciary when officers at the registry disappeared and could not receive documents from Prof George Kanyeihamba to stop Kavuma’s vetting by parliament.
In JSC’s wisdom, the secrecy with which this matter was handled outweighed public interest to know what happened. This failure of duty by JSC will remain indelible in the minds of many Ugandans. It also gave sneak peep into what JSC can bite and what it can’t.
So, JSC also has a problem in how they approve judicial officers. Since they contribute in appointing such undignified officers to the bench, they cannot turn around and question the rigorous process of removing or punishing them.
Truth be told; we need to revamp the way judicial officers are appointed. The process of making appointments to the bench has sometimes been seen as an opportunity to hand out plum jobs to political friends.
Once a lady judge told mourners at her husband’s funeral that she was grateful to President Museveni because he gave her a job when she was in financial difficulties.
This is not to doubt the judge’s competence, but that revelation inevitably poisons the public perception of her independence, and whether some of the judicial jobs are not rewards to political friends who are expected to return a favour when need arises.
Another senior judicial officer also once declared she was only accountable to God and Museveni.
True, judicial officers take a judicial oath, pledging to do right to all manner of people without fear or favour, affection or ill-will.
However, when judicial officers make such statements, the public is inclined to perceive them not as fair, but biased persons who are likely to make favourable decisions to the appointing authority, to whom their first allegiance is.
Prof Joe Oloka Onyango, in his recently launched book: When Courts do Politics: Public Interest Litigation in East Africa, teases out some of the things that ought to be done to restore and maintain integrity of courts.
The author is the business development director at The Observer Media Limited.