As Uganda fumbles with the process of selecting judges to its High Court, Court of Appeal and the Supreme Court — and the chief justice, the legal fraternity is undecided over the extent the country should emulate Kenya, which heralded a sea change in judicial reform in the region last year when it publicly vetted its eventual Chief Justice, Dr Willy Mutunga, and judges of the Supreme and Constitutional Courts.
The image of Uganda’s judiciary is in tatters after several reports issued last year by different groups, including the Inspectorate of Government, ranked it among the most corrupt institutions in the country — to say nothing of its own internal struggles such as discouraging remuneration, which has stirred the indignation of no less a person than the Chief Justice Benjamin Odoki himself, understaffing and ridiculous case backlogs.
According to the 2011 Judicial Statistical Report, the judiciary registered 109,430 cases besides 156,705 cases it had carried from 2010. Some 105,065 of these cases were completed while 161,071 were carried forward to 2012.
With such situations, the need for reform has never been more pressing. Yet even then, the country’s eastern neighbour looks unlikely to supply a way forward anytime soon.
“What Kenya adopted… is for me the extreme end of the pendulum in advocating transparency,” noted Dr Pamela Tibihikirra-Kalyegira, the Dean, Faculty of Law at Uganda Christian University, Mukono.
“It tends to allow for a rather emotive exchange that could lack objectivity where some members of the public may harbour personal vendettas against particular nominees and could seek to discredit their candidacy maliciously,” Dr Tibihikirra-Kalyegira explained to The EastAfrican.
“I think a happy middle ground would be to make members of the public aware of the short list of candidates with an invitation for them to write in confidence to the Judicial Service Commission on any matter that they think should be brought to its attention regarding particular candidates.”
The Uganda Law Society is also opposed to an all-out public scrutiny of judicial applicants and suggests effective public input is feasible at the short-listing stage in respect to the candidates’ suitability to exercise judicial power.
“Employing the Kenyan method would not be necessary as Uganda has not reached the extent which requires such drastic means and changes,” notes a position paper by the law society to the Judicial Service Commission on the selection, recruitment or appointment of judges.
“Besides, the Kenyan experience has been found not to be fool-proof.”
The paper adds how public screening such as happened in Kenya has the downside of ending up being more of an inquisition than a selection process it is intended for to identify the best judicial minds.
“The same system almost failed one of the most cultured legal minds in East Africa to become chief justice over issues such as why he had changed his religion three times, why he divorced his wife, why he wears a ring in his ear and allegations of rebellious conduct in his youth,” notes the position paper.
Outspoken retired supreme court justice Prof Dr G.W. Kanyeihamba, who, in many ways, has fashioned himself as an embodiment of greater transparency in Uganda’s judiciary, has asked the Judicial Service Commission, which oversees the process, to widen the pool of people it consults to scrutinise its candidates.
“The Judicial Service Commission, eminently as it is qualified, cannot by any stretch of imagination know everyone who is nominated or has applied to be considered and recommended for judicial office,” Justice Kanyeihamba told The EastAfrican.
“So, when names [are] shortlisted… let those names be circulated discreetly and confidentially among stakeholders in the judiciary, namely; the Chief Justice, Justices of the Supreme Court, Court of Appeal and selected senior judges of the High Court, including the Principal Judge, and senior lawyers whose integrity is proven or is known,” Justice Kanyeihamba added.