INDEPENDENCE OF JUDICIARY
Judicial Independence (also known as the independence of the judiciary) is the idea that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests.
Different nations deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain action when the judiciary perceives that a branch of government is refusing to perform a constitutional duty, or by declaring laws passed by the legislature unconstitutional.
The doctrine of independence of judiciary and its importance was underscored in the well known case of MASALU MUSENE AND 3 ORS V AG. Constitutional Petition N0. 5 of 2004, where Mpagi Bahigeine JA noted that judicial officers are charged with the responsibility of safeguarding the fundamental rights and freedoms of the citizenry. In the performance of their duties they are entrusted with checking the excesses of the Executive and the Legislature. These duties require insulation from influence direct or indirect that will cause them to play into the hands of corrupt elements. The judiciary is viewed as the weakest and most vulnerable.
The Court cited this in the case of EVANS V GORE 253 US 245 (1920). Independence of Judiciary was tested in recent times and it appears that the government failed miserably to stand up to the test. This was illustrated in the case of The U.G Law Society V A.G
FACETS OF THE DOCTRINE OF JUDICIAL INDEPENDENCE AND THE SAFEGUARDS UNDER THE 1995 CONSTITUTION
These appear in the 1995 Constitution and include the following: Constitutional disposition of judicial power in the people of Uganda.
Article 126(1) provides that judicial power is derived from the people (and not the State or the government in power) and shall be exercised by courts in the name of the people and in conformity with law and with values, norms and aspirations of the people.
Similarly, Article 127 prescribes and enjoins parliament to make laws providing for the participation of the people on the administration of justice. Article 1(1) vest all power in the Ugandan people. These powers include judicial power. The autonomy of the judiciary is further sought to be re-enforced under clauses 5 and 6 on regard to the remuneration of judicial officers and financial of the judiciary.
PILLARS 9
Article 128(2): No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.
Case law: The Ugandan Law Society v A.G Constitutional Petition No.18 of 2005
The doctrine was held to have been blatantly violated. The 1st accused, Dr. Besigye was separately charged with rape. They were later committed to the High Court for a bail application. However because of certain acts of the security personnel at the High Court premises, the bail papers could not be processed. The security personnel who were dressed in dark clothes were said to have entered into the court offices and interrupted the court duties. The accused as a result had to be taken back to prison. A petition was brought to challenge the acts of the army. It was Held that under Article 128(3) of the Constitution, all organs and agencies of the state are required to accord to the courts such assistance as may be required to ensure effectiveness of the courts.
Article 128(4): “A person exercising judicial power shall not be liable to any action or suit for any act or omission by that person in the exercise of judicial power.”
Case Law: John Arutu V A.G; Egbe V Adefarisim and Anor
Judicature Act Section 46: Protection of judicial officers. (1) “A judge or commission or other person acting judicially shall not be liable to be sued in any civil court for any act done or ordered to be done by that person in the discharge of his or her judicial functions whether or not within the limits of his or her jurisdiction.”
Case Law: Evans v Gore
Article 128 (5): “The administrative expenses of the judiciary, including all salaries, allowances, gratuities and pensions payable to or in respect of persons serving in the judiciary, shall be charged on the Consolidated Fund.
Article 128(6): The judiciary shall be self-accounting and may deal directly with the Ministry responsible for finance in relation to its finances. These two provisions are meant to ensure that there is reasonable degree of self accounting and control over judicial funds such that the welfare of judicial officers is not placed at the whims and caprices or mercy of the Executive or Legislature. It is no doubt however that you cannot separate finance matters from the broad question of judiciary independence.
Article 128 (7) is to the effect that the salary , allowance, privileges, and retirement benefits and other conditions of service of judicial officer or other person exercising judicial power shall not be varied to his or her disadvantage. In the case of A.G v Masalu Musene and others, the Supreme Court held that majority in the Constitutional Court erred in law and fact when they held that section 4(1) of the Income Tax Act was inconsistent with and in contravention of Article 128(7) of the Constitution. A fortiori, the decision that the respondents salaries cannot be subject to tax whatsoever cannot stand.
Article 128 (8): states that: “ The office of the Chief Justice, Deputy Chief Justice, Principal Judge, a justice of the Supreme Court, a justice of Appeal or a judge of the High Court shall not be abolished when there is a substantive holder of that office.” This Article is made stronger by Article 144.
Judicial Appointment as provided for under Article 148: “Subject to the provisions of this Constitution, the Judicial Service Commission may appoint persons to hold or act in any judicial office other than the offices specified in article 147(3) of this Constitution and confirm appointments in and exercise disciplinary control over persons holding or acting in such offices and remove such persons from office.”
Amendment of Article 128(1) must be the subject a referendum.
Article 128(1) on independence of judiciary shall not be amended unless as provided under Article 160 that sates that: except: “it has been referred to a decision of the people and approved by them in a referendum.” This was also stated in the same case of A.G v Masalu Musene and others.
The Judicial Code of Conduct, 2003
The code has 6 principles which include: the principle of independence, impartiality, integrity, propriety, equality, and competence as well as diligence. The principle of independence which is more pertinent requires that a judicial officer shall not be influenced by any direct or indirect extraneous influence, inducements, pressures, threats or interference from any quarter or for any reason. He or she shall reject any attempt arising from outside the proper judicial process to influence his decision.
The Code also gives independence on an individual level and adds that the officer must base his decision, on the basis of his or her assessment of the facts and in accordance with the conscious understanding of the law. This requirement is laid down under Article 149. Judicial oath: “Every judicial officer shall, before assuming the duties of his or her office take and subscribe the oath of allegiance and the judicial oath specified in the Fourth Schedule to this Constitution.”
Independence of judiciary also requires transparency of the process of appointment judicial officers. This is to ensure that persons of good and moral conduct are appointed to the courts as well as to shelter judicial appointment from political from political and sectarian tendencies. There have been questions about certain appointment or the timing of the appointment with allegations of political patronage. This was particularly the case in the appointment of Kanyeihamba as Justice of the Supreme Court Of Appeal, shortly before the hearing of the Appeal by the government in the case of Attorney General V Maj. Gen Tinyefuza made an appeal on the grounds of likelihood of bias since prior to his appointment he had been a Presidential Advisor. Kanyeihamba refused to disqualify himself.
HOW TO ENSURE INDEPENDENCE OF JUDICIARY
Article 128 Independence of the Judiciary
(1) In the exercise of judicial power, the courts shall be dependent and shall not be subject to the control or direction of person or authority.
(2) No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.
(3) All organs and agencies of the State shall accord the courts such assistance as may be required to ensure the effectiveness of the courts.
(4) A person exercising judicial power shall not be liable to any action or suit for any act or omission by that person in the exercise of judicial power.
(5) The administrative expenses of the Judiciary including all salaries, allowances, gratuities and pensions payable to a in respect of persons serving in the Judiciary, shall be charged a the Consolidated Fund.
(6) The Judiciary shall be self-accounting and may deal directly with the Ministry, responsible for finance in relation to its finances.
(7) The salary, allowances, privileges and retirement benefits and other conditions of service of a judicial officer or other person exercising judicial power, shall not be varied to his or her disadvantage.
(8) The office of the Chief Justice, Deputy Chief Justice, Principal Judge, a Justice of the Supreme Court, a Justice of Appeal or a Judge of the High Court shall not be abolished when there is a substantive holder of that office.
CHAPTER 4: PROTECTION AND PROMOTION OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS
Article 20 provides for Fundamental and other human rights and freedoms.
(1) Fundamental rights and freedoms of the individual are inherent and not granted by the State.
(2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.
Case Law: REV CHRISTOPHER MTIKILA V A.G of Tanzania civil Case NO.3 of 1993. It was espoused by Justice Lugakingira that: “fundamental human rights are not gifts from the state. They are inherent in a person on his birth and therefore prior to the state and the law.” This means that these rights are merely re-stated but the Constitution does not create them. To that extent they must be looked at in a different light from other legal rights. The observance of human rights is not only on the part of the state but also on the part of private individuals and stakeholders. This was illustrated in the case of KALAWUDIO WAMALA V UGANDA, where the High Court sitting in Masaka reflected on the significance of article 20(2) and held that the police as an agency of the government had failed in its duty as an organ of government to uphold those rights if it turned a blind eye on theses unconstitutional acts.
THE RIGHT TO EQUALITY AND FREEDOM FROM DISCRIMINATION (Article 21)
Case law: UNITY DOW V A.G; LONGWE V INTER CONTINENTAL HOTELS; SHARON DIMANCHE AND 2 OTHERS V THE MAKERERE UNIVERSITY
See also: Articles 32(1), 33(5), 78(1) (b) and (c), 180(2) (b) and (c). Also refer to Section 10 of the Local Government Act Cap 243 as amended and the persons with Disabilities Act
PROTECTION OF THE RIGHT TO LIFE (Article 22)
Article 22 protects the right to life in 2 situations.
The right of an existing living person
The right of the unborn child
In Uganda the death penalty and its Constitutionality has been brought to the limelight by the Constitutional petition of SUSAN KIGULA AND 416 OTHERS V A.G
THE RIGHT TO PERSONAL LIBERTY (Article 23)
Case law: R V EXPARTE NASREEN, where court held that orders of court to secure an obligation in law should in themselves not violate the right to personal liberty; CHRISTOPHER SAJJABI NSEREKO V A.G, where it was held that by refusing to tell the complainant the reasons for his arrest at the time of the arrest they violated the provisions of Article 23(3) of the Constitution 2 million was accordingly given to the complainant as general damages for the violation of the right to personal liberty; R V FEENEY, where it was held in the Supreme Court that of Canada that there had been a violation of Feeney’s Constitutional right given that he was not informed of his right to consult a lawyer; THE QUEEN V THERENES; ONYANGO OBBO AND ANOR V U.G; KIGEMUZI V U.G, where it was held that the right to grant bail was a Constitutional right secured under article 23(6) and the individual in certain circumstances is entitled to automatic grant to bail where he/she has spent either 120 days or 360 days on remand; JOSEPH LUSSE V U.G, where the accused had been arrested and charged with treason and subsequently spent 365 days on remand. Upon an application for grant of bail, Justice Tabaro held that since the accused had spent more than 360 days in custody he was entitled to automatic grant of bail under the provisions of Article 23 Clause (6)©.
THE RIGHT AGAINST SUBJECTION TO TORTURE, DEGRADING OR INHUMAN TREATMENT (Article 24)
The Death penalty being considered inhuman and degrading punishment.
Case Law: Makwanyane’s Case (1998) 1 LRC 269
Corporal punishment is perceived as inhuman and degrading punishment. In Uganda this got its first precedent not so long ago in the case of SIMON KYAMANYWA V UGANDA CONSTITUTIONAL REFERENCE NO. 10/2000, the court held that the arguments of the state had no merit in them especially given the fact that the right against such treatment is one of the non-derogable rights preserved by Article 44. In relation to the common phenomenon of corporal punishment meted out in schools, there is the case of MPONDI EMMANUEL V NGANWA HIGH SCHOOL UHRC COMPLAINANT NO. 210 OF 1998. This case was the first precedent of a school being dragged before a judicial body for administration of punishment to its students. The complainant a student at the school had been punished for entering the staff room without permission. The bone of contention was that the said punishment violated Articles 24 and 44 (a) of the 1995 Constitution. During the hearing the presiding commissioners concluded that the act of punishment had been arbitrary, excessive and outside the ordinary and the normal or accepted form of punishment normally meted out in school establishes and thus having considered it cruel and inhuman awarded the complainant 2,000,000 shillings. It was therefore stated that corporal punishment in itself is unconstitutional.
Exclusion or banishment orders depriving a convict access to ancestral land
Case Law: Salvatori Abuki V A.G
FREEDOM FROM SLAVERY, SERVITUDE OR PERFOMANCE OF FORCED LABOUR (Article 25)
Case law: R V the Khadi of Kisumu Exparte Nasreen (1973) EA 153
The right of freedom against performance of forced labor in Uganda was exemplified in the case of A.G V MAJOR GENERAL DAVID TINYEFUZA. In this case, Tinyefuza who had been appointed senior Presidential Advisor sought to resign from the army but his regulation letter was refused by the Minister of State for Defense, Amama Mbabazi. He in turn petitioned the Constitutional Court alleging that that act violated his rights to freedom from being required to perform forced labor under articles 25(2) and 25(3) © of the Constitutions. The Constitutional Court upheld his claim. It held that Regulation 28 of the NRA Regulations, 1993 was not applicable to the petitioner as he was not a member of the Army. In the opinion of the court of Appeal, army service required full time attention and therefore by implication when the President appointed the petitioner as Senior Presidential Advisor, he was in effect terminating his employment in the military service. He appealed to the Supreme Court. The appeal raised several issues of Constitutional importance as regards this particular contention. However majority of the Supreme Court Justices felt that he was still a member of the armed forces notwithstanding his appointment as Senior Advisor and not withstanding his activity and non-deployment in military operations. It was therefore held that the Minister’s letter was just a piece of advice and di not violates any of his rights.
THE RIGHT TO PROPERTY (ARTICLE 26)
The acquisition of property is founded on the law, there must be an act of parliament or mode under a ministerial order which calls for prompt payment of a fair compensation and the right of access to the court of law. The Land Act under section 5(4) provides for the right to compensation and the right to appeal to the High Court is provided for under Section 13 of the Act. Compensation must be prior to the taking of possession or acquisition of the property where done in public interest and not after. This was illustrated in the case of JULUIS OKOT V A.G. The army had occupied the complainant’s land in the Northern Uganda and established a military detach on it. It was held that where as the occupation was in the interest of public defense, safety and order under Article 16(2) (a) of the Constitution, it still remained unlawful in so far as the conditions in the Article 26(2) (b) (i) were not fulfilled. The government had refused to promptly pay fair and adequate compensation or at all to the complainant’s family for the acquisition of the land. The occupation continued to be an act of trespass.
In SHAH V U.G and in SSEMPEBWA V A.G, the Courts constructed a judgment debt as amounting to property in terms of provisions of the 1967 Constitution with effect that the judgment holder could not be validly deprived of the same unless the safeguards in the Constitution were complied with to the letter. Subsequently in the case A.G V SILVER SPRNGS HOTEL LTD AND ANOR SCCA NO.1 OF 1989, the Supreme Court here affirmed that an injunction whether temporary or permanent, cannot lie against the government under the laws of Uganda. The rational is that government machinery should not be brought to a halt. If the position was otherwise, government would subject to embarrassment and therefore that this provision was not meant to ensure that the machinery of government goes on. It also appears that however that the courts of law have been willing to abandon this position of the law. The most notable attempt to scrap this immunity from the government was seen in the case of OSOTRACO LIMITED V A.G; in the instant case, having found the plaintiff to be the registered proprietor, the court addressed the issue of whether the plaintiff was entitled to an order of vacant possession or eviction of the Defendant from its property. The Government Proceedings Act, Section 15 now 14 (1) (b) prohibited court from making any order for the recovery of land or property but instead in such case to make declaratory orders that such person was entitled to such property. The case went on an appeal as A.G V OSOTRACO LTD CIVIL APPEAL NO.32OF 2002 and the court of Appeal in revolutionary style upheld the judge’s orders. The learned Principal State Attorney at that time during the appeal, pressed Court with the argument that by doing what he did, the trial judge had ventured into territory which was exclusively to the constitutional Court. However Justice Mpagi bahigeine leading judgment said the trial judge was right in his contention that he was not in fact interpreting the Constitution but simply reading the Government Proceedings Act to bring it in conformity with the Constitution which power he had by virtue of Articles 273. In PYRALI ABDUL KASULE ISMAIL V ADRAIN SIBO, the constitutional Court considered the payment of compensation for expropriated properties under the Expropriated Properties Act, 1982 as not satisfying the constitutional conditions of prompt and Active payment under Article 26 of the Constitution.
RIGHT TO PRIVACY (ARTICLES 27)
Case law: KING V THERENS, the Canadian Supreme court held that the entry and search of the accused house without a search warrant was a violation of his constitutional right to privacy.
RIGHT TO A FAIR TRIAL (ARTICLE 28)
CLAUSE 1: “ In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.”
What Amounts to a Speedy trial?
It must be emphasized that Article 28 must be seen as a whole such that it is not enough for a trial to be speedy if it is not fair. The Kotido Field Court Martial executions brought this to limelight. The accused were tried in less than 3 hours sentenced to death and shortly after executed. The trial was speedy as provided under the Constitution brought in contravention of that part of Article 28 that the trial must be fair. The question then will be: “was a fair trial conducted?”
The requirement of a “public hearing” is intended to ensure that the public can overseer the dispensation of justice after all it is dispensed in their name under Article 126. This however does not prejudice court the right to hold any trial in camera where matters at stake involve national security, the protection of morals or the protection of the litigants. This provided for under Article 28(2). An example is in the TINYEFUZA case of 1997 where the right to information in the hands of the State and the testimony before a parliament committee and its use in judicial proceedings before a court was subjected to a hearing in camera. Similarly, trials in the Family and Children Court are usually heard in camera where the concerns of a child may be adversely affected by a public hearing.
An independent tribunal or court implies that the officers of the court or tribunal should not be the subject of any direction of external influence of another person or organ. It also means that the judges or tribunal members must not be biased. Judges as a rule of courtesy should stand down, each time they realize there would be a likely possibility that they will be biased. An example was in the trial of the former Chilean dictator Augustino Pinochet in 1999 wherein a Lord of the House of Lords in the U.K was pressed to withdraw from the trial because his wife worked for Amnesty International an Organization that was a forefront of having dictator tried for his massive crimes against Humanity. In Ugandan court of Appeal Justice, Stephen Kavuma has always been the victim of this. He has always been requested to stand down in cases involving contested political issues against the government. This is because he was a former minister in the NRM government and many allege that his appointment to the Bench was a political appointment. In PROFESSOR ISAAC NEWTON OJOK V U.G, the accused was charged with attempting to overthrow by arms, however the trial was held not to have been impartial.
CLAUSE 3: Every person charged with a criminal offence shall-
be presumed to be innocent until proved guilty or until that person has pleaded guilty;”
There is no doubt that the presumption of innocence is the very core of the right to a fair hearing in criminal proceedings. The point has been succinctly put be Dickson CJ in Her Majesty the Queen V Oakes where he stated that ‘the presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of a criminal offence. In the instant case the accused was convicted of possession of a narcotic. Section 8 of the Act stated that where the court finds an individual in the possession of a narcotic, then it must be presumed that it was in possession for the purpose of trafficking. This was in violation of the right to the presumption of innocence. An individual charged with a criminal offence faces grave social and personal consequences including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. The presumption of innocence confirms our faith in Human kind, fairness and social justice reflecting the assumption that people are decent and law abiding members of the community until proved otherwise. In the famous case of WOOLMIGTON V DPP, were Lord Sankey held that: “....throughout the wave of the English Criminal law, one golden thread is always to be seen that is the duty of the prosecution to prove the person’s guilt” Uganda witnessed a number of laws where the onus was reversed and placed on the accused. By way of example the following statutes can be mentioned:
The Fire Arms Act, 1970, Section 39(1)
The Penal Code amended in 1984, section 28 on terrorism
CLAUSE 3 (b): “Every person charged with a criminal offence shall be informed immediately, in a language that the person understands, of the nature of the offence;”
This right is often interrelated with that in paragraph (f) of being accorded an interpreter where the individual does not understand the language used at the trial. This was illustrated in the case of ANDREA V R (1970) EA 26; the accused was a Mozambican who only understood Portuguese and his native Mozambican Language. This trial was conducted in English on Appeal the EACA, held that there had been a violation of the accuse right to an interpreter during his trial
CLAUSE 3(C): “be given adequate time and facilities for the preparation of his or her defense;”
Case Law: STATE V VERMAAS; where the South African Constitutional Court held that the right to be afforded adequate time and facilities for the preparation of defense includes the right to be granted an adjournment for the purposes of security the services of a lawyer or the attendance of one’s advocate.
CLAUSE 3 (d): “be permitted to appear before the court in person or, at that person’s own expense, by a lawyer of his or her choice;” This goes hand in hand with paragraph (e). Also in MUYIMBA AND OTHERS V UGANDA, The hearing of the trial was in Masaka and the accused lawyer who was in Kampala was informed in the morning of the day of the trial and could not make it to Court in time. The trial Magistrate refused to adjourn the case when Muyimba asked for an adjournment. This was held to be a violation of the accused right to legal representation.
The right to adequate time and facilities for preparation of one’s legal defense has been considered to include the right to seek for an adjournment as illustrated in the case of KATARYEBA ZACKARY V UGANDA, where the lawyer of the accused abandon the case and they applied for an adjournment to obtain the services of another lawyer which was refused by the trial Magistrate. The High Court however held that the refusal to grant adjournment amounted to a violation of the right to legal representation as stated in Article 28 3 (c).
The provision of clause 3(d) was tested in the case of ESAU NAMANDA & ORS V UG. The 5 accused were charged with intermediary with the property of the deceased person. On the first day of the trial only one of the accused was produced in court and when the charge was read to him, he pleaded guilty. This was taken as the plea of guilt for the rest who were absent. The 4 appealed on their conviction. The high court held that in convicting the 4 appellant was a violation of the right of the individual to be tried in his presence.
CLAUSE (5): “except with his or her consent, the trial of any person shall not take place in the absence of that person unless the person so conducts himself or herself as to render the continuance of the proceedings in the presence of that person impracticable and the court makes an order for the person to be removed and the trial to proceed in the absence of that person.”
CALUSE (6): A person tried for any criminal offence, or any person authorized by him or her, shall, after the judgment in respect of that offence, be entitled to a copy of the proceedings upon payment of a fee prescribed by law.
CLAUSE (7) No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence.
CLAUSE (8) No penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was committed.
CLAUSE (9) A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
CLAUSE (10) No person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence.
CLAUSE (11): Where a person is being tried for a criminal offence, neither the person nor the spouse of that person shall be compelled to give evidence against that person.
CLAUSE (12) Except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law.
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