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By W. B. Kyijomanyi

Contents

Introduction
The Supreme Court
Finance
Independence of the Judiciary
Recommendation

Introduction

It is proposed that in a future Federal System; there shall be four levels of the Courts system in Uganda as follows:

Level 1, the lowest Court shall be the Chief Magistrate/Grade 1 Magistrate Courts under both federal and state. The Federal court system shall restrict itself to federal matters, while the state court shall deal with local issues.

Level 2, shall be the High Court, and there shall be 15 High Court jurisdictions in the country; one within every State/Province and 3 additional Courts in Kampala; former Mukono and Bukedi districts. It shall handle appeals from level 1.

Level 3, shall be the Circuits Courts that shall serve as the Court of Appeal, where appeals from level 2 will be reviewed. Under this arrangement, the current Court of Appeal/Constitutional Court shall be abolished at the Federal level, and replaced with five Appeal court divisions under a circuits system, as outlined above.

Level 4, shall be the Supreme Court, whose seat shall be in Kampala. It shall be the Highest Court in the Land with jurisdictions over all Constitutional and other matters.

All appeals, involving federal issues shall be transferred to the Five Circuit Courts. Appeals emanating from each of the Five Federal Circuits courts shall be heard and determined by the Supreme Court.

Re-organizing the judiciary in a federal Uganda will not be a gigantic undertaking.  It may as well be decided for efficiency reasons to have courts in Uganda, mostly, though not exclusively under federal jurisdictions.  The existing chief magistrate's courts can be very effective in dispensing justice.  I understand the government is in the process of eliminating grade 3 and 2 magistrate courts, courts that are currently staffed by non-LLB holders.  That in itself is not necessarily a bad thing, as long as the government is ready to post grade one magistrates as low as County/Ssaza courts.  If that were to happen, these are the magistrates who would also hear cases at Sub County/Gombolola level, cases mostly related to petty theft, poll tax defaulters etc. Grade one courts would therefore serve as the lowest courts in Uganda, whose local jurisdictions shall make reasonable expenditures towards their maintenance.

The Chief Magistrate/Grade One Magistrate Courts should be the lowest court in the land.  This court could be set up as low as county/Ssaza level, with regular visits to Sub County/Gombolola levels to hear cases as need arises.  The Chief Magistrate within the same Court at the district level shall hear appeals from Grade one Magistrate Courts.

The next Level Shall be the High court circuit.  It is proposed that there shall be 15 High Courts locations in Uganda as follows:

 (a)    At each of every 12 State/Provincial capital  

(b) Three additional High Courts in  (1) Kampala, (2) Bukedi and (3) Mukono to serve Mukono and Mpigi districts

This will ensure that justice shall be served on a timely basis and at reasonable costs.  Moreover, the current court system in Uganda is too cumbersome.  Why are people who are charged with serious offenses such as murder, rape, treason etc. taken before Grade One-Magistrate/Chief Magistrate courts and then cautioned that their cases can only be tried by the High Court?  These reforms are intended to ensure that such suspects are arraigned before the relevant (high) court right away?  That way justice shall be properly dispensed.  It is therefore conceivable that the High court shall be the initial Court of entry for suspects facing serious federal offenses.

The Third Highest Court Level, replacing the current Court of Appeal court, and covering multiple States/Provinces, shall be the Circuits Court. There shall be 5 Circuit Courts as follows:

CIRCUITS COURT ONE based in Masaka to serve most of Buganda excluding former Mukono and Mpigi districts.

CIRCUITS COURT TWO, to serve the following States/Provinces, whose location shall be determined.

CIRCUITS COURT THREE, to serve the following states, whose seat shall be determined

CIRCUITS COURT FOUR, to serve the following states/provinces, whose seat shall be determined

CIRCUITS COURT FIVE, to serve Kampala City, Mukono and Mpigi districts, to be based at Kampala.

Currently, there is an Appeal Court in Kampala, which also serves as the Constitutional Court.  That Court shall be abolished under in Federal arrangement and replaced by a Five Circuits Court System.  Constitutional cases should ONLY be heard, and decided in the Supreme Court. That way the five circuits courts would be the second highest courts in the land, and cases from there would be appealed straight to the Supreme Court sitting in Kampala.

Obviously the prison system will all change.  As it is Uganda already has both central and local prisons.  Local prisons were usually located at both the Sub County and County levels, and may continue to house offenders tried and convicted in the lowest courts.  But in reality, many prisoners at the Sub County and County level should not be there in the first place.  Many are petty offenders who should not be incarcerated but should rather be involved in community projects such as repairing feeder roads etc. Nowadays prison can't even afford to feed, let alone dress prison inmates. So it would be far cheaper to find more innovative ways of dealing with petty offenders - people who do not pose much of a threat to their communities.  If poll tax were to be eliminated, many of the Sub County and County prisons would be minimally occupied.  Under a federal arrangement, local jurisdictions should be given autonomy to deal with petty crimes in a cost effective way.  Many jurisdictions may as well adopt more community related initiatives when it comes to petty offenders, while some may do away with poll tax altogether.

Ideally judicial and prison reforms should be undertaken concurrently.  I understand nowadays prisoners have to provide their own uniforms or else they move naked in government prisons.  If you can't feed/dress them, then don't incarcerate them. Moreover, reforms will free resources - both human and financial and allow courts and prisons to deal with serious crimes.  

In my view, judges/magistrates should not be elected, but rather the best should be appointed to serve.  I understand the rationale behind having elected judges: because some claim - especially here in the US - that un-elected judges have too much power and legislate from the bench.  There is a lot of truth to that, but judges should be able to render their judgments without fear of retribution at the polls.

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The Supreme Court

This shall be the highest Court in the land.  Currently the Supreme Court consists of 9 Justices and should remain that way.  To ensure regional balance, Uganda should be divided into 5 regional judicial areas (in the US, there are several circuit areas covering several states).  For judicial purposes, 2 Justices each shall come from each of the Circuits Courts One to Four, or under the old dichotomy Buganda, Eastern, Northern, and Western Regions.  The 9^th position would be filled by a Justice from Circuits Courts Five.

This arrangement shall be constitutionally fixed, and guaranteed in the federal constitution to ensure that strict rules shall guide the appointing authority, following input from the regional professional bodies such as the Federal and State law societies.  This arrangement is superior for Uganda’s purposes to the philosophical model that governs the appointment of supreme Court Justices in the US, where geographical consideration are secondary to ideological fit.  Justices appointed to all federal Courts shall retire at 75 years old.

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Finance

It is true that poor pay in the Judiciary could compromise its independence. Based on Press reports that each presidential candidate in the 2001 presidential elections received 2 new cars and 15-armed policemen, I am convinced; sufficient funding to the judiciary should not be hard to meet.  I would want to see a remuneration scheme along the lines of URA, who are paid an efficient wage supposedly to discourage them from corruption. The generous pay is supposed to inject fear in the minds of URA personnel against corruption, more so because if they were to engage in corrupt tendencies, they risk losing their higher paying jobs, whose pay cannot be replicated elsewhere.  That reality is supposed to discourage them from any acts that could lead to dismissal. I understand justices in Uganda are now fairly compensated, but not high enough compared to their worthy in society.

I realize that this is controversial, but courts handle cases with enormous financial consequences.  May be time has come for courts to retain most of the revenues they generate through court fines, etc. I am sure the money is much, but it could make a small difference in court funding. Of course under our unitary system, the poor taxpayers, who are short changed in the process have no way to demand accountability. Take a look at the campaign manifestos/promises of the candidates and you won't find any ideas on reforming the judiciary to serve the weak and oppressed. With more accountability under federalism, courts are likely to receive adequate funding for their services. We must minimize any temptations in the court system and one way to do that is ensure adequate funding, reforms in other areas - too many people are incarcerated when they shouldn't be, which clogs up the system, creating opportunities for corruption.

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Independence of the Judiciary

The independence of the judiciary is a matter of degree and model dependent, that is, it is greatly influenced by the way justices are nominated/appointed.  Even under the best of circumstances, and with the relevant checks and balances in place, there is no absolute independence after all, members of the judiciary in most jurisdictions are nominated by the executive and approved by the legislature.  Moreover, members of the judiciary have a history, so they carry over some biases to the bar.  I would however, say that in most developed countries, the independence of the judiciary means that NO sane member of the executive or legislature will dare contact a member of the judiciary to influence the outcome of a pending matter. It also means that members of the judiciary will NOT be victimized for rendering judgment on any matter, however unfair that judgment may be.  That would apply to the Supreme decision in Bush vs. Gore.

If I were to rank the independence of the judiciary within the 3 mature Anglo/common law traditions, the least partisan (political), and therefore, most independent Supreme Court would be the Canadian one, followed by the UK and the US.  But in terms of separation of powers between the three branches, I would rank the US model first, Canada next and the UK last-justices of the highest court are also members of the House of Lords. In Canada, the Supreme Court Chief Justice also doubles as the Deputy-Governor General, making the holder a member of both the judiciary and executive.

I happen to think that the partisan nomination process, coupled with an adversarial vetting, and confirmation process of Justices of the Supreme and Circuit Courts in the US is responsible for the partisan nature of the US courts.  Moreover, in most cases, those nominated to the highest federal and state courts are known partisans-democrats or republicans.  Again, it is the process that to a great degree determines how independent and partisan the judiciary will be.  The lesson for us is this: how do we ensure input in the nomination process; having citizen input, open hearings, without necessarily politicizing the process?

During my search, I learned that in Canada, members of the Supreme Court are nominated by the Prime Minister in consultation with the relevant bar associations, but there is no public input from citizens, and no confirmation hearings by either parliament or senate.  Is this a good thing? Is this the tradeoff between public input and partisanship/independence?  Could it be that the Canadian Supreme Court is less partisan because of the way its members are nominated?  Is this the price that Uganda should pay?  As I type, the Ugandan Press continues to report more fallout following the recent appointment of the Chief and Deputy-Chief Justice.

Alternatively, how do we ensure balance?  A more open and inclusive process (from the US model), and non-partisanship and more harmonious (from the Canadian model)-I think the British model with its Lord system is beyond our needs.  Is it possible to borrow the best from each model and still have a non-partisan court system in Uganda?

I am totally against electing judges or magistrates, be it in state or federal courts, as suggested by one of the commentators in a posted publication.  Here in the US, elected judges are under enormous pressure to render "politically and morally correct", rather than judgments according and within the law, since they have to keep an eye on the next election.  In the process, the rights of the weak and poor are routinely violated, because they usually do not vote.

One other suggestion I would like to see more diversity.  The way we nominate Judges in Uganda is too restrictive; it is mostly done from the ranks of Chief Magistrates and High Court Registrars.  We should have more justices coming from private practice and academia, if we expect to have the best and brightest of Uganda's lawyers on the bench.  Under federal, diversity is more likely because with a parallel court system, Uganda will no longer afford to rely mostly on serving magistrates.  In fact, the Ugandan model is so predictable that anyone who rises to the rank of Chief Magistrate is more likely than not to be appointed a high court.  An element of surprise would make the bench more innovative and perhaps more independent.

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Recommendation

Under a Federal system, we shall have a parallel court system - federal and state. There shall be 3 levels of court hierarchy:

Level 1 the lowest Court shall be the Chief Magistrate/Grade 1 Magistrate Courts under both federal and state. The Federal court system shall restrict itself to federal matters, while the state court shall deal with local issues.

Level 2 shall be the High Court, and there shall be 15 High Court jurisdictions in the country; one within every State/Province and 3 additional Courts in Kampala; former Mukono and Bukedi districts. It shall handle appeals from level 1.

Level 3 shall be the Circuits Courts that shall serve as the Court of Appeal, where appeals from level 2 will be reviewed. Under this arrangement, the current Court of Appeal/Constitutional Court shall be abolished at the Federal level, and replaced with five Appeal court divisions under a circuits system, as outlined above.

Two Supreme Court Justices shall handle emergency appeal cases to the Supreme Court from Circuit courts One to four; while the Chief Justice of the Supreme Court shall handle emergency appeals from Circuit Court Five.

Level 4, shall be the Supreme Court, whose seat shall be in Kampala. It shall be the Highest Court in the Land with jurisdictions over all Constitutional and other matters.

All appeals, involving federal issues shall be transferred to the Five Circuit Courts. Appeals emanating from each of the Five Federal Circuits courts shall be heard and determined by the Supreme Court.

A similar arrangement shall apply to the State courts-states may divide their jurisdictions into several appeal circuits to better serve the people. Likewise, different justices of the State’s highest court shall handle emergency appeals from the state circuit courts to the State Supreme Court.

The Supreme Court shall have nine justices, who shall serve until 75 upon nomination by the executive and confirmation by members of the federal senate, following open public hearings (not MPs in the lower house).

The highest state Court shall be the State Supreme Court.  It shall be the final court in interpreting state laws.  Individual states shall decide how members of their respective courts will be nominated.

Although the Supreme Court shall be the final court, its jurisdiction in matters of national elections shall not be final.  In the likely event that matters related to presidential elections (I am assuming that we shall retain direct presidential elections) end up before its jurisdiction, the Supreme Court shall render its opinion and refer the matter back to the relevant organs for the appropriate remedy [organise fresh elections].  While the Supreme Court may invalidate the results of a national election, it shall not decide an election outcome-the appropriate remedy shall be invested with the voters of Uganda, who shall be called upon to decide the matter in a fresh national vote.

How the nine positions of the Supreme Court shall be filled is a matter to be decided in a national constitutional conference.  My preference would be two Supreme Court Justices from Federal Circuits Courts, One to Four, and one Supreme Court Justice from Circuits court Five.

I am hopeful that a parallel court system discussed here will make it possible for suspects to be arraigned in the appropriate courts, rather than the current system where suspects are taken to courts only to be cautioned that such courts have no jurisdiction to hear/handle their cases.  A parallel system under a federal arrangement will minimize congestion in prisons, create efficiency in the court system, and facilitate the rule of law.

Reforms in the judiciary will not yield much unless accompanied by attendant reforms in the police and prison services.  Therefore, there shall be parallel systems in these services: federal and state police, federal and state prison, to process and handle suspects/convicts from the corresponding courts.  It is important to ensure that ONLY qualified lawyers handle prosecutions in all courts-federal and state. Under federalism, we would demand this, and police officers shall no longer serve as Court prosecutors.

The police shall investigate criminal activities, but not prosecute cases, unless they are fully qualified lawyers.  I am positive that such reforms along with higher recruitment standards among members of the police force (at least diploma holders above) will create an environment where people's rights are respected. I hope it is not elitist to demand that no more ‘O’ level failures shall be eligible for recruitment into police and prisons services.

While these suggestions are not final, they should serve as building blocks towards the judiciary, and the rule of law we want under a federal arrangement.

On the independence of the judiciary, it is critical to balance non-partisanship with openness and public scrutiny.  I will leave it to the national constitutional conference to address (I favor some aspects of the US model, and some from the Canadian model-none of which independently being adequate for Uganda's needs).

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