Justice Odoki saga did not have to happen-Ogoola

By Joan Akello

Justice James Munange Ogoola, former Principal Judge and Chairman of Judicial Service Commission (JSC) talked to The Independent’s Joan Akello about his tenure and recruitment of judicial officers

While opening this year’s Annual Judges Conference, President Yoweri Museveni talked about bail. What do you think?

I wish I had been privy to the speech. But he has always talked about bail and it is something we can address. There is philosophy of our judicial inheritance about bail; it is a very strong tool in the armory of the citizenry to be assured of their freedom and liberty and the concern of how to exercise the discretion that judges have over bail. Over and above that, there are also concerns that we could go the way the President has suggested.

But we have to be careful. If we stopped bail for most of these crimes we have to do something about the prisons. All our prisons are overcrowded. This is a budgetary matter. How about the constitutional philosophies and liberty of being innocent until you are proved guilty?  It needs fundamental thinking.

The President also said the judiciary is not addressing commercial justice which will leave investors bankrupt.

Addressing commercial justice is under control. I started off as a commercial judge and played a role in the establishment of the Commercial Court.  Case backlog arises from the number of judges vis-à-vis the numbers of case that come before them.  In the Land Division there were only two judges and 4,000 cases. There is no mortal way that you will complete these cases in one year without changing the tools with which the judges address dispute resolution. Already we have Alternative Dispute Resolution which can address our kind of disputes rather than the traditional adversarial method of litigation in our courts which is tailor-made for delay, expense, and frustration.  The court room is a war zone for legal gladiators who come to throw weapons at each other at the expense of efficiency of the system.

How has your tenure been? What highlights?

In the last two years, we had some ground breaking historic challenges. In a function which was intended to be simple – bring your knowledge and tools, bring candidates, rearrange, and give names to the appointing authority – proved there are more challenges than the fore fathers thought it would be. So it is a very challenging position but also satisfying in that you contribute to recruiting personnel for certain fundamental positions in the country.

From day one, we decided not to use the old time honoured means of deriving candidates and sending names to the appointing authority; we opted for a more transparent system and therefore advertising of every position that falls vacant including CJ and DCJ. We believe in this method; it offers equal opportunity and accountability and chance for people who for a long time under the old system could never have seen the inside of interview room and can compete on the open market.

What has been the response since you started advertising?

We have been inundated by applications including from Ugandans in the Diaspora like Australia, Canada. We have about ten oppositions in the High Court to fill but received 70 applications, 300 applicants for about 20 vacancies for magistrates; there were about five applications for CJ and about ten for DCJ.

How did we get in a situation where there was neither a substantive Chief Justice nor a Deputy Chief Justice for that long?

Both incumbents retired at about the same time therefore vacancies fell within the year. The Commission sent in our recommendation to the appointing authority. He, I believe, had also to do his own homework, vetting, consultations and after a long process made appointment which he sent to parliament and problems arose and it was taken to court.  At the end of it, we had to go back to the drawing board and start the process all over again. One prays that is water under the bridge and that this country never again goes through what pain these two years have been.

To never have a repeat of that, there are proposals that the JSC is given more powers to recruit and appoint all judicial officers including CJ.

I am an interested party. I will let the proposals do their rounds and let those in authority address them.

There are still many vacancies in the various courts at all levels; which has led to the piling up of case backlog.  What makes it hard appoint judicial officers?

The Supreme Court needs 11 judges and therefore is short by three but there are four who are in acting positions and in a few months their contracts will be expiring, the Court of Appeal needs about three to four but the High Court is the most affected with less than 50; we should be having more than 80 judges. But numbers do not mean much; backlog is bound to bedevil the institution unless we take a rigorous and fundamental reform of how business is done in those courts.

What is the JSC doing to bring the errant ‘Priests of the Realm’ back into line?

The temple and its priests need cleansing and if that is not done, the temple very rapidly deteriorates into a museum.  We have applied professional capital punishment to those we have caught.  We have a system of doing that which is close to a trial but it takes too long and is cumbersome.

What are you doing about the low level of public confidence in the Judiciary as the Temple of Justice?

The temple needs trust that is why congregations go to the temple; they trust its sanctity but if those who run it fall short of that trust; then it is undone.  We are disciplining officers though we have been told we are a bit soft on judges and harsh on magistrates. For a judge who is found to have a prima facie case as errant, the JSC recommends to the President who sets up a tribunal of senior judges from outside and within and if found errant, they are dismissed.  Magistrates they can be reprimanded, demoted from one grade to another and the ultimate one being dismissal.  A judge should be able to work without looking over his or her shoulder. If we make it very easy for judges to be impeached, that will be the end of independence and with the end of this independence then we can say farewell to the institution. At the same time we must ensure that one who abuses that independence finds the door open and exits at once.

It has been argued that autonomy and complete administrative and financial independence of the JSC and the Judiciary from the Ministry of Justice and Constitutional Affairs is crucial and is the only remedy for the political pressure the Judiciary is under.

What is your take on this view?

There are three tenets of independence; that a judge should work in an atmosphere where they do not have to worry that somebody is looking over their shoulder to influence or give instructions, that the administrative system ensures that people are not worried about promotions, and that the running; right from the budget, cannot be tampered with, or sway things to their face and say that if you do this and this we are going to increase your budget. The terms and conditions of service for a judge should be commensurate to their station and the expectation. There are magistrates who have no motor vehicles and go to their work stations on a boda-boda, on foot, in a taxi. As they are waiting at the taxi park, one of the litigants appears from nowhere with a Pajero or Mercedes Benz and offers the poor person a lift and it is just about to rain and the magistrate enters and that can be the beginning of compromise. Jurisdictions next door to us have tried. Kenya has some of the best terms for their judicial officers.  As long as the judiciary is seen to be attached to any administrative agency, at least the appearance of it will not be that evident. But the example of the ministry of Justice is little bit overdone. I’ve never felt any such problems. It is the totality of the political establishment rather than a particular ministry.  The judiciary has been fighting for what parliament fought for, and indeed won; and that is this administrative independence; to recruit its own personnel and manage its budget.  But that discussion has stalled. One hopes and prays that effort yields something.

Observers say that the Justice Benjamin Odoki saga will remain a black spot in your stellar record as JSC chair. How do you feel about this?

It is a very painful experience, something that one would have wished with all ones heart and, might, and ability to not have occurred. This saga did not have to happen.  It could have been avoided. It was not. It did not leave a dark spot on the JSC alone, it left spots everywhere and this is what makes it more sad that everybody who was anybody in that saga has been left with guilt of being  a participant because it could have been avoided, rectified right from day one. The courts have spoken of it but are not the end of it. History will, in a more sober mood, put the saga in its proper perspective.

How would you assess the Judiciary in Uganda currently compared to what it was before you were appointed?

The judiciary I joined was a very different outfit in terms of age. Today’s judiciary is much younger on the average and more educated.  As we do our interviews here, we see people who bring not just the first degree but they have a second degree, third degree and every other postgraduate diploma between. They are exposed internationally, desirous of self-improvement in terms of study and writing – something we did not have.  In fact when I joined, it was almost taboo to say you are going for judicial training; most of our judges felt that to ascend to the bench, you had finished all the training that there was.  You had arrived. Above all, today’s judiciary is technologically savvy and it is a tremendous improvement from the judiciary that I joined 15 -20 years ago and it is all for the better.

Going forward, where do you see the Judiciary in the next few years?

There is a lot of promise and by way of recruitment; JSC is doing a stellar job. We are really assembling an army of good, knowledgeable, informed, skilled, educated and young, people. Once they go on the frontline, I think we will win the battle with the professional armory that they can muster. My only big prayer is that the cancer of integrity deficit is somehow filled. It is not any one particular element of one institution to be reformed. It is the entire overhaul of our legal fraternity.