Promotions in judiciary: has Uganda lived up to standards?

As Ugandans continue to measure performance of our judicial officers in Uganda; merit, ability, integrity experience, timely hearing of cases and timely delivery of judgments should be some of the critical criteria.

However, in spite of some judicial officers meeting these criteria, they still serve at the same level since appointment. As legal expert PAUL MUKIIBI writes, it is a strange situation of inconsistency.

It is generally agreed at international level that judicial appointments should be made on merit, based on objective criteria pre-established by law or by competent authorities, and that political considerations should be inadmissible.

Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications. The same principles apply to judicial promotions, which should be based on objective factors, in particular: merit, ability, integrity and experience.

Some international standards also promote diversity in the composition of the members of the judiciary, including by taking into account a gender perspective. States, for example, should undertake an assessment of the structure of their judicial branch and its composition to ensure that women are properly represented and to create the conditions necessary for the realisation of gender equality within the judiciary.

Participation in judicial appointments and promotions by the executive or legislature is not inconsistent with judicial independence provided that appointments and promotions of judges are vested in a judicial body in which members of the judiciary and the legal profession form a majority.

KEY CONSIDERATIONS

Judges should be appointed through an open process on the basis of prescribed criteria based on merit and integrity, and without discrimination. Only “individuals of integrity and ability with appropriate training of qualifications in law” should be eligible for appointment.

Steps should be taken to ensure the appointment of qualified women and members of minority communities. An appropriate clearly-prescribed method of appointment of judges is a prerequisite for the independence of the judiciary.

In other words, election and appointment should be based on an objective assessment and determination of the applicant’s professional knowledge, merits and suitability. Appointments and promotions should be decided by bodies that are independent the executive.

Promotions within the judiciary must also be based on objective factors, particularly ability, integrity and experience. To guard against pressure from those who could otherwise influence or make decisions about the renewal of their terms of office, judges’ tenure must be guaranteed until a mandatory retirement age or expiry of the term of office.

Judges may be removed from office only in exceptional, strictly limited and well-defined circumstances provided for by law, involving incapacity or behaviour that renders them unfit to carry out the duties of their office, and following a fair procedure.

UGANDA AS A CASE STUDY

It is critical to examine whether such factors are followed in Uganda specifically in promotion of judicial officers. The critical concern here is; if the above criteria have been followed in Uganda, then a question arises why Justice Stephen Mubiru, among others is still a judge of the High court despite his excellent and undoubtable performance.

I delve into this by examining some of the decisions rendered by Mubiru and have persuaded superior courts on land. It is on record that some of the decisions of Justice Mubiru have been cited by the apex courts in Uganda. This includes the Supreme court, the Constitutional court and the Court of Appeal.

However, for the record, this article is not intended to reflect the views, opinions, or positions of Justice Mubiru, as no consultation, advice, or input was sought from or provided by Hon. Justice during the preparation or drafting of this piece.

SUPREME COURT OF UGANDA

Decision 1

In the 2019 decision of Betty Kizito vs David Kizito Kanonya & 7 Others, the Supreme court held with approval a 2017 decision of Stephen Mubiru. That was the High court decision of Gwolo Jackson vs Uganda, where Mubiru, in addressing the argument whether representations involved in the case demonstrated a simple breach of contract rather than fraud, held as follows:

The lead judgment of Prof Tibatemwa-Ekirikubinza noted that it is the preconceived design of the accused, formed at or before the contract, not to perform his or her side of the bargain, that constitutes the fraudulent concealment which renders the representation fraudulent, and not an intent formed after the contract is executed.

If the accused forms the intent not to perform his or her side of the bargain after he or she has received the goods and the title has passed, it is a mere intended breach of contract, and not such a fraud as to give rise to a false pretense.

This intent never to perform his or her side of the bargain has sometimes been treated as fraudulent misrepresentation, and sometimes as a fraudulent concealment, but in either event it must be preceded by or be contemporaneous with execution of the contract.

Decision 2

In the 2023 decision of Bank of Uganda vs Sudhir Ruparelia & Another, the Supreme court yet again held with approval a 2019 decision of Justice Mubiru in Electoral Commission vs Kidega Nabinson James.

Justice Mike Chibita cited that where the responsibility entrusted to counsel in the proceedings is quite ordinary and calls for nothing but normal diligence such as a must to attend the work of a professional in any field; where there is nothing novel in the proceedings on such a level as would justify any special allowance in costs; where there is nothing to indicate any time- consuming, research-involving or skill-engaging activities or where there is also no great volume of crucial documents which counsel has to refer to, there is no need for a boosted quantum of instruction fees.

CONSTITUTIONAL COURT

Decision 3

In a 2023 case between Ferdsult Engineering Services Ltd & Another vs The Attorney General & Another, the Constitutional court made its decision with approval from a 2021 decision of Justice Mubiru in Housing Finance Bank Limited vs Silk Events and Another.

Justice Cheborion Barishaki stated that Regulation 13 strikes a balance between the competing desire of the mortgagee to realise the security following default and that of the mortgagor to have his or her day in court on questions regarding the legality or propriety of events triggering that process whilst the mortgagor pursues his or her various remedies.

COURT OF APPEAL

Decision 4

In the 2023 ruling of Nyonjo Seraje vs Uganda, the Court of Appeal held with persuasion a 2019 decision of Justice Mubiru in Kamwize Kassim vs Uganda.

Justice Mubiru stated: “Section 156 of the Evidence Act envisages two categories of statements of witnesses which can be used for corroboration. First is the statement made by a witness to any person at or about the time when the fact took place. The second is the statement made by him to any authority legally bound to investigate the fact. It is clear that there are only two things which are essential for this section to apply.

“The first is that the witness should have made a statement with respect to some fact. The second is that he should have made a statement earlier with respect to the same fact or about the time when the fact took place. The former statement may be in writing or may be made orally to some person at or about the time when the fact took place, that person would be competent to depose the former statement and corroborate the testimony of the witness in court.”

So, as we continue to measure performance of our judicial officers in Uganda; merit, ability, integrity experience, timely hearing of cases and timely delivery of judgments should be some of the critical criteria.

It is absurd to see that some judicial officers have painfully met these criteria but still serve at the same level since appointment. From the observations above, it will be hard to find any serious practitioner in this country not surprised by this strange situation.

The author is a member of the Uganda Law Society