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The Judiciary

We think of the judiciary here in two ways: first, the professional personnel involved in the work of the courts of law and, secondly, the legal machinery, collectively, the legal institutions, established for the administration of justice in cases of violation of law by criminal behaviour; and for adjudicating on civil disputes, as to legal rights and conflicts of interests and claims. It is with the latter sense of the word judiciary that I am particularly concerned here.

Basic Issues Involved

The idea of the judiciary, in the sense indicated above, in a federal constitution, carries with it in my assessment, the following five basic issues:-

1. The organisation of and the relationship between the federal and state courts.
2. The jurisdiction of the respective judicial streams.
3. The appointing authority which is also generally responsible for the organisation and working of the judiciary.
4. The terms and conditions of service.
5. Main incidental matters -
(a) Institution of criminal proceedings and citation of criminal cases;
(b) Nomenclature of courts and their professional personnel.

It is particularly the first three issues that are basic.

1. The Organisation of and the Relationship between the Federal and State Courts

Every internally self-governing state (which, to me, is the essential idea in federalism) must, by that very nature of government, have the three arms of government; namely: the executive, the legislature and the judiciary. At the same time, since that state is part of a larger international entity - the nation, that nation must also naturally have the same three arms of government. There arises then the need to have a system of organisation of this judicial arm and thereby determine the relationship between the arm of the federal (central) government and that of the states government. The nature and complications of this organisation and relationship vary from country to country. In some cases, it may be merely a matter of political convenience, as in the case of the High Court of Buganda, under the 1962 Constitution. In other cases, it is really material and functional; as it should be in a true federal system. It seems to me that what we want to direct our minds to in this regard is a judiciary in the true and meaningful sense in a federal system. A true and meaningful judicial system in a federal system should be seen not only from paper but also from its operation. As we say, justice must not only be administered but must be seen being administered federally. The following diagram will briefly indicate the proposed organisation of the working of the judiciary in a federal system. (Figure follows)

Explanation:
On the left, you have the hierarchy of courts, from primary courts (now RC [LC] Courts) to a State Court of Appeal for each State. On the right, you have the hierarchy of courts of the Federal Government (the National Courts). The point of relationship in the working of the judicial system is at the High Court and finally in the highest and final court in the land, the Supreme Court, both of which are thus exclusively federal institutions.

2. The Jurisdiction of the respective judicial streams

It is this element together with the first one we have just discussed which make the judicial system to be true and meaningful in a federal system. It is the division of labour between the state judiciary and the national judiciary. I propose here to adopt a method of enumerating categories of matters which would fall under the jurisdiction of the federal courts, that is, from the Federal District Courts to the Federal Regional Court of Appeal. Those matters not within these categories would fall under the State Courts.

(1) Disputes between two or more States.
(2) Disputes between one State and citizens of another State.
(3) Citizens of different States.
(4) Citizens of the same States but claiming land or other valuable property in a different State or States. This would also cover property which is not attached to a particular State e.g. property overseas or even in the Uganda Federal Territory.
(5) Disputes between a State or citizens thereof and a foreign State, a non-citizen or international organisation.
(6) Cases against the Federal Government or its agencies or its officers.
(7) All matters concerning the Federal Constitution depending on the particular provision of law as to the Federal Courts' competence.
(8) Matters of substantial national interest (brought by either a State, individual or group of individuals).

Explanation:

(i) The word citizen used here does not imply that each State will have its own citizens; it is used simply to refer to those with their permanent home or attachment to the particular given State or none at all as the case may be.
(ii) The categories cover particular civil but not criminal mattes. A person committing a crime would be tried, unless the law allows a different value, in the State in which he commits that offence.
(iii) Issues of substantial interest may be national or local. It is only the national ones that, I suggest, should go to the Federal Courts. A matter is of substantial interest if, generally, the welfare of the public is at stake, e.g. the right of a State as the matter of the country to intervene for the economic welfare of its citizens against some discriminatory rates set illegally by some carriers of an international or even national status; the right of a State to assert its quasi-sovereign rights over wild life in its territory; the right to protect its citizens against environmental hazards from an adjacent State.

3. The appointing authority which is also generally responsible for the organisation and working of the judiciary

I have suggested above that the very nature of a federal system implies a situation of internal self-government in which there is existence of the practice of give and take. Consequently, what the federating States do not give away, is within their competent authority to determine as to their organisation and functioning. This entails the appointment, and the appointment carries with it the disciplining, of those involved in the system. The 1962 Constitution provision for the High Court of Buganda, said, for example:

94. (1) ....................
(2) (a) The Chief Justice and the other judges of the High Court of Uganda shall be the judges of the High Court of Buganda.
(b) Whenever, after 9th October, 1962, any person is appointed to hold the office of Chief Justice or judge of the High Court of Uganda, the instrument appointing that person to that office shall state that the Kabaka has, by virtue of the provisions of this section, appointed him to be judge of the High Court of Buganda.

As we know from the brief legal history when this Constitution operated, this was only on paper. The High Court was not what a High Court would be in the real sense of a federal constitution. The point here is that the individual States in the Federation would have complete and independent constitutional powers of appointing and disciplining of judges and other professional personnel in their State Courts as indicated in the diagram above. This would be provided for in their State Constitutions which should, understandably, not conflict with the national Constitution. We have examples, for instance, from the former USSR, the judges in the People's Courts (lowest) were elected by secret ballot by the citizens of the district and on the top, the judges of Supreme Soviets of the Republics. Then the Supreme Court of the whole Soviet Union consisted of judges elected by the Supreme Courts of the Republics. We may consider whether we should introduce the public in the election or appointment of judges at the lower levels as in some of the States of former USSR as we have just seen. Popular direct election of magistrates or lower courts judges seems to be based on the view that it would make the judiciary more responsible and ensure the watchful and co-operative eye of the public in the working of the judiciary. But the public is not always right. At the Federal High Court and Supreme Court levels, a national authority takes over. This is either the President, as in USA, practically alone a body of the people, as in USSR and Yugoslavia (the Socialist Federal Republic of Yugoslavia Assembly) or an individual authority on the recommendation of or in consultation with another body, as in France (the President of the Republic assisted by the High Council of the Judiciary), and in former West Germany (Federal Minister of Justice and a committee for the selection of judges). Generally, judges, like all other public servants, can be subjected to public scrutiny. In USA only very recently in 1989 a judge could not be appointed by the President because of the strong adverse screening he was subjected to by the Judicial Committee and the public generally. All these considerations should be taken into account in seeking the best method of getting the best people for the judicial job and at the same time preserving the need for the independence of the judiciary from either the public in general or individual political authorities. I personally would propose that a distinct body of men and women of professional standing and integrity, whose recommendations would also be open to public scrutiny, with no overt influence from the President, should be used for the appointment of judges. They would be different bodies at the State and Federal levels.

4. The composition of the membership of the Supreme Court

The fact that those appointed as judges of the highest court of the nation, namely the Supreme Court, have to be men and women of the best legal qualifications and experiences and of unquestionable professional competence for this highest office, is beyond dispute.

A number of questions arise, however, in addition:

(a) agreed that such a court in its existence and operation can either contribute more to the concept of national unity in diversity or, on the other hand, if it became unpopular, to the alienation of the State judicial system from the national one;
(b) agreed that the best provisions possible in the national Constitution should be made to make this highest court to be seen as really national in both law and fact;
(c) agreed that the constitutional position of this court should be such that it facilitates the promotion and maintenance of respect for it among and from all States and thereby making its work more effective throughout the nation.

The following questions come up:

In order to achieve these above three objectives, what should be the composition of the Supreme Court? Would the States be happy with its composition if it consisted of the best men and women? Would they not be happier if the composition had an element of States' representation; that is, in the appointment of the judges, the ethnic roots or origin of the appointees were considered as much as possible so that there is assured a national wide presence in their membership? Assuming that the answer of the last question is yes, what then should we recommend for the Constitution to provide so as to achieve this?

First of all, the more States we have in the Federation, the harder it would be to have each and every State represented. But we should not tie the number of States to the achievement of this goal only. Let us say, the Supreme Court has 7 members and the States are more than double that number; it would appear to me that an arrangement could be made whereby regional rather than State representation would be the way out. If Uganda were divided into four regions for this purpose, it would thus be possible to have four judges one from each region, leaving three vacancies or the judges to be appointed irrespective of their ethnic origin. The maximum possible would be to divide Uganda into as many regions as there are judges. This regional representation is not without example in federal judicial systems. In the Constitutional Court of the Socialist Federal Republic of Yugoslavia, consisting of the President and 13 judges, there is an equal number of judges from each republic of the Federation. Even in other countries, it may not be expressly provided for but an effort is made to achieve it.

5. The terms and conditions of service

As in the case of the appointment issue, terms and conditions of service of the judges would vary with the level of the courts. State courts would have the different terms from those of the Federal court judges. What we may consider here is whether we would like judges or even magistrates appointed for a fixed period, say 5 years as in USSR or 8 years as in Yugoslavia and in the Federal Supreme Court, whether judges should be there for life (tenure of good behaviour) as in the USA or up to a certain age as in our case now or in Britain in practice. The main issue here, in my opinion, is again how do we ensure that we get the best people and retain them on the job? Are renewable contracts better than long periods up to a certain age or tenure as long as one is capable of discharging the responsibilities of the office and behaving himself? Should we have an option open to one among these various tenures, always aware that the State has a right under legally stipulated conditions to terminate one's service? As long as the appointing authority and procedures for appointment are the best we could have, as suggested above, I would propose the tenure of good behaviour, for the highest courts and for a fixed term of service for the lower courts with an opening for going up the court hierarchy. Such an arrangement promotes job satisfaction and thus efficiency at work.

6. Main incidental matters
(a) Institution of criminal proceedings and citation of criminal cases

Criminal offences are against the people as a whole even if the victim is one or a few people. They are offences against public welfare and conscience. It is the people therefore to bring a case against the offender. But the people are referred to either as the country, the State, or in monarchies, by the king or queen, in whose name justice is administered. At the State level, the question will then arise. Supposing we have the Omukama of Bunyoro, the Omukama of Toro, the Omugabe of Ankole, the Kabaka of Buganda and these, among others, are the federal states, shall we say, The Omukama v. Byaruhanga; The Omugabe v. Byarugaba; The Kabaka v. Mukasa or the People v. Byaruhanga etc? On the top at the national level and for all federal criminal cases, the issue would be easier: Uganda v. Okello. My view at the State level is that the authority in whose name justice would be administered and the citation of criminal cases should be a matter for the individual States; there is no illegality about using the above traditional titles, there being the cultural institutions of those people. Furthermore it would help in identifying the cases.

(b) Nomenclature of Courts and their professional personnel

What is in a name? There can be mush. I see no reason why, in order to minimise confusion, States cannot adopt titles for their own courts and their professional personnel. Such a situation would identify the courts and their personnel with the community.