On the highway to Judiciary independence and efficiency in Uganda? The Administration of Judiciary Act, 2020
Atim Sheilla Gloria*
Introduction
It is an undisputable fact that independence of the Judiciary is a vital aspect of governance that determines the level of performance of judicial officers and the Judiciary as an arm of government. Thus, the Constitution of Uganda has a whole Chapter dedicated to the composition and inner workings of the Judiciary.
On the 2nd of June 2020, The Parliament of Uganda passed the Administration of Judiciary Bill (AJB) that had been pending for years. The Bill was meant to actualise the independence and to promote the efficient administration of the Judiciary as envisaged in Chapter eight of the 1995 Constitution of Uganda. The Bill was sent to His Excellency the President of Uganda who signed it into law as an Act of Parliament on the 19th day of June 2020.
This article focusses on examining the novel provisions in the Administration of the Judiciary Act, 2020 (AJA) and the administrative structure created in the Judiciary among others. It is aimed at assessing the potential effectiveness of the Act in plugging the weaknesses previously noted in the administration of the Judiciary and offers potential solutions on a way forward.
The article is also meant not only to raise awareness of citizens about the new law, it is also meant to inform stakeholders who are well placed to cause change, to make the appropriate amendments or improvements in the AJA and administration of the Judiciary as a whole. This article offers a snapshot into the contents of the AJA. Whereas it does not provide an in-depth analysis to all the new provisions, it is hoped that it can open up debate or space for other writers to provide an in-depth analysis of the specific provisions within the Act. It is also hoped that concerned Ugandans will be able to take steps to ensure that the AJA is panel-beaten to conform to the Constitution to further strengthen the Judiciary as an independent co-equal arm of state.
History of the Act
Centre for Public Interest Law (CEPIL) under the Executive Director Mr. Gimara Francis and Coordinator Mr. Okello David were behind the first draft of the Bill providing for the Administration of the Judiciary. They liaised with a Member of Parliament to present it on the floor of Parliament.
The Bill was first tabled in the August House as a Private Member’s Bill by Hon. Okot Ogong in 2014. The Government, noting that this Bill was very important, asked for time to allow it to take over, study and introduce it as a Governments Bill. This is allowed by the Constitution and Rules of Parliament. Thereafter the Bill was always mentioned in the State of the Nation Address but it was not until 2018 that the Bill was tabled in Parliament.
In a separate twist of events, in 2017, the Judicial officers under their umbrella association of Uganda Judicial Officers Association (UJOA) staged a sit down strike that saw the Minister of Justice & Constitutional Affairs present a Certificate of Financial Implications for the AJB in a promise that the ball would be set rolling for the Bill to be taken forward in Parliament in 2018.
This Bill that was finally tabled in 2018 and passed in 2020 was a culmination of several meetings involving several stakeholders including the Attorney General, Chief Justice, Deputy Chief Justice of Uganda and other actors in the Justice, Law and Order Sector among others.
Objectives of the Act
It is vital at the outset to understand the objectives of the Act because its provisions will be scrutinised to determine if the objectives were or are likely to be achieved and how they could be achieved. The Objectives of the Act can be gleaned from the long title and section 2 of the Act. Briefly, they are to give effect to Chapter eight of the Constitution that provides for the administration and independence of the Courts of Judicature; promote the efficient and effective administration of the Courts of Judicature; establish the Judiciary Council that advises the Chief Justice; establish the Judicial Service which embraces all judicial officers and staff of the Judiciary; strengthen the independence of the judiciary through the provision of and management of funds and also establishing necessary structures within the Judiciary; provide for retirement benefits of judicial officers; put in place measures for expedient resolution and determination of legal disputes; and establish a Judiciary Training Institute, among others.
Controversies
During its several readings in Parliament, certain areas of controversy arose one of which was the retirement package of Justices and Judges.[1] The Members of Parliament disagreed on the package some deeming it exorbitant and arguing that it would cost tax payers a lot. Further, Judicial Officers on the lower bench of the rank of Registrars and below felt that the Bill did not provide for them as well in terms of retirement.
In 2020, two judgments of Uganda Law Society V AG[2] and Krispus Ayena Odongo v A.G[3] were passed that provided for more adjustments necessary for the independence and efficient administration of the Judiciary. Unfortunately, some of these were not incorporated in the final Bill that was passed by Parliament and thus in the Act as well.
Substantive provisions of the Bill
1. Interpretation
It is important to understand from the outset the meaning of some definitions that feature throughout the Act.
A Judicial officer includes all judicial officers from the rank of Chief Justice to the lowest cadre of judicial officers i.e. Magistrate Grade two and any other person holding office in any Court as prescribed by law. This definition is consistent with the one offered in Art 151 of the Constitution.
Staff of the Judiciary is defined to include all judicial officers and all support staff. Support staff were hitherto excluded from the staff of the Judiciary because their supervision, disciplining and deployment remained with the mainstream Public Service. However, in the Act, they now form part of what is referred to in S.13, as the Judicial Service.
Lower bench is a new term which, even though it has been used before in speeches, was not provided for in the law. The lower bench is defined as the magistrates Courts or other Court lower than the High Court. The High Court, Court of Appeal and Supreme Court are undoubtedly the higher bench or what are referred to as the ‘Superior Courts’. An interesting question that remains is whether Registrars are part of the lower bench or Superior Courts as they are not expressly mentioned among both categories.
2. Administration of the Judiciary
The law places the administrative role of the Judiciary in the arms of the Chief Justice with a power to delegate some functions. Art 133 of the Constitution provides that the Chief Justice shall be the head of the judiciary and shall be responsible for the administration and supervision of all courts in Uganda.
In giving effect to Art 133 of the Constitution, S. 3 of the Act provides that the chief Justice can in effect delegate functions among others. S.3 states that the Chief Justice may;
(a) assign administrative duties of a higher status to a judicial officer for a specified period of time;
(b) establish performance and evaluation systems for the judiciary; and
(c) take any other action appropriate to the exercise of the powers conferred on the Chief Justice by Art 133 of the Constitution.
The ‘other action’ referred to in (c) is consistent with those actions provided for in Art 133 (1) (b) which is that the Chief Justice may issue orders and directions to the courts necessary for the proper and efficient administration of justice. It is important to note that the Constitution provides that the orders are to the ‘Courts’ and not to any person external to the Judiciary.
3. Judicial Council
The Judicial Council is a new component in the Judiciary administration established in S. 4 of the AJA. The Council is responsible for advising the Chief Justice on the administration of the Judiciary. It is made up of 17 members including the Chief Justice (Chairperson of the Council), Deputy Chief Justice, Principle Judge, Attorney General, DPP, Solicitor General, Chief Registrar, Secretary to the Judiciary, Secretary to the Treasury, Chairperson Law Council, President of the ULS, a representative of the Superior Courts, a representative of the Lower bench, a representative of the JLOS (excluding the Minister of Justice), two representatives of members of the Public (of whom one shall be a person with disabilities) and the Chief Inspector of Courts. It is recommended that the representative of the lower bench should not be one that is imposed by the Judiciary Administration. For instance this person can be elected by lower bench under UJOA or it could be the President of the UJOA himself/herself.
The advice of the Council shall touch on matters specified in S.5 which include;
(a) Policies for planning and development of the Judiciary;
(b) Ethics and integrity in the Judiciary;
(c) Securing financing of the judiciary
(d) Personnel and staff development and welfare;
(e) Improvement on the administration of Justice; and
(f) Policies for continuous monitoring and evaluation of the judiciary and any other matter relating to the operation of the Judiciary.
This is a welcome provision. It can be expected that with the coordination of all stakeholders who are abreast of the challenges faced in the administration of justice by the Courts, relevant advice and good will be available from the stakeholders who are best placed to provide solutions and effect change within the Judiciary, and in the other arms of government and Country at large.
4. Committees within the Judiciary
The Act in S.6 mandates the Chief Justice to establish committees within the Judiciary to perform functions the Chief Justice allocates them. The four expressly mentioned are the Planning, development and Finance committee, the Human capital development, gender and equity mainstreaming committee, the Information, communications technology and document committee, and the Audit Committee. The composition, procedure and terms of office of the members of committees are to be laid down by the Chief Justice with consultation and/or on the recommendation of the Council.[4]
It is clear is that more committees can be created as necessary for the better functioning of the Judiciary. Whereas the Planning, Development and Finance Committee was already in place, placing it within the law gives it more legal capacity.
The broad functions of some of the Committees are provided for in S.7. For instance, the Planning Committee has the responsibility to initiate, coordinate and implement strategic plans, programmes and projects including research, budgeting, allocation and utilisation of resources. This provision puts the management of different aspects including financial administration under the firm grip of the Chief Justice.
It is expected that these committees will be able to offer specialised services that will lead to the overall improvement of administration in the Judiciary and efficient adjudication of disputes in the Courts. What remains to be seen is how these can be harmonised with the functions of the different top managers in the Judiciary including the Secretary to the Judiciary who also has functions that could potentially overlap with the work of these committees.
Further, all existing committees should be included within the law. The Act omits to mention some of the already pre-existing committees. For instance, the omission of the Terms and Conditions of Service Committee and the Disciplinary Committee as one of the already existing and functioning Committees is glaring and places a task on the Chief Justice to provide for this Committee in the law unless they are to be dissolved. This is especially so because these are very active. The Disciplinary Committee is active in handling disciplinary matters concerning Judicial Officers and it will now have jurisdiction over the support staff as well. It is vital to provide how these committees fit within the Judiciary structure. For instance it should provide how these two committees will work with the JSC that is legally mandated to deal with the terms and conditions of service and discipline of Judicial Officers. Further discussion of the Disciplinary Committee is below.
5. Inspector of Courts
The AJA establishes the office of the Inspectorate of Courts in S. 8. Under this section, the Inspectorate is to have a Registrar and such number of Deputy Registrars and administrative staff as shall be determined and designated by the Chief Justice.[5] The Registrar shall head the secretariat of the Inspectorate.
In practice, this office has also been in existence as well. The Act explains that the office shall be occupied by the Inspector of Courts who is a Supreme Court Justice and who reports to the Chief Justice on a three year contract. The Inspector shall produce quarterly reports to the Chief Justice and to any other persons or stakeholders as they may decide.
Section 9 provides that the specific functions of the Inspectorate are to;
(a) to receive and process internal and external complaints against any staff of the Judiciary;
(b) to investigate cases of maladministration of justice or any matter within its mandate;
(c) to examine and take custody of any judicial and administration records necessary for its investigations;
(d) to recommend remedial action as appropriate, during inspection, to correct cases of maladministration in the Judiciary;
(e) to interface with and sensitize stakeholders and the general public on the administration of justice; and
(f) to enforce the Judicial Code of Conduct and the Public Service Code of Conduct in the Judiciary.
The Act in S. 9(2) places a yardstick of performance for the Inspectorate by stressing that the officers in the Inspectorate must in the performance of their functions, shall observe the principles of equity, natural justice and impartiality.
Special recognition should be offered to these foregoing sections because it is clear that there will be a need to clarify on the intersection between the Inspectorate, Disciplinary Committee and Judicial Service Commission. Some of these include:
i. Does the Inspectorate recommend disciplinary action to the Disciplinary Committee (DC), the Chief Registrar (CR) or to the JSC? A reading of the provisions on the office of the CR show that it is the CR that links the Judiciary to the JSC for purposes of Disciplinary action.
ii. In the enforcement of the Judicial Code of Conduct, who decides which officer recommended by the Inspectorate for disciplinary action, is sent to the DC first and which one is sent direct to the JSC?
iii. What is the procedure adopted by the Inspectorate of processing a complaint against a Judicial Officer on the lower bench in a complaint that may trigger disciplinary proceedings before the DC or JSC?
iv. Does the Inspectorate initiate or process complaints against members of the Superior Courts as well albeit with the different provisions allowed under the law under Art 144 (4) for the Complaints be submitted to the JSC for further investigation before the President takes cognisance of the matter? In other words, is the Inspectorate only in charge of the lower bench, in its activities?
These are just a few of the questions that need to be clearly addressed.
6. Judicial Service
The Act provides for the establishment of the Judicial service. Section 13 provides that the Judicial Service shall be composed of Judicial officers and staff of the Judiciary. Staff have already been defined to include support staff of the Judiciary. The section further clarifies that all Judiciary staff shall be appointed by the Judicial Service Commission in accordance with the approved Judiciary structures with the exception of the staff appointed by the President of Uganda ( Judges and Justices of the High Court, Court of Appeal, Supreme Court and the Secretary to the Judiciary).
This provision is a novel and unique one and it is expected that it will bring all support staff previously under the Public Service under the Judiciary for purposes of management, quality assurance and efficient delivery of services. More so, it is relevant in handling disciplinary matters of all staff including the support staff over whom the Judicial Service Commission hitherto had no jurisdiction before the Act was passed.
Indeed under the AJA, the standard of service of the support staff could be similar to that of Judicial officers as provided in S. 14. It provides that ‘the service shall be bound by and uphold the judicial code of conduct and any other professional codes of conduct to which they belong and shall promote honesty, integrity and transparency in the discharge of their duties within the service’.
7. The Chief Registrar (S. 15) and Secretary to the judiciary (S. 17)
This section is divided into three parts discussing the office of the Chief Registrar (A), the office of the Secretary to the Judiciary (B) and the Constitutional Court Judgments touching on these two offices (C).
A. Chief Registrar (CR)
The Act provides for the Office of the Chief Registrar in S. 15 consistent with article 145 (2) of the Constitution.
The CR has several responsibilities[6] some of which are giving effect to policies and directions of the Chief Justice, Deputy Chief Justice and Principal Judge. This is indeed a wide role. The CR is responsible for effectively overseeing judicial operations of all the Courts of Judicature, monitoring and enhancing the quality of services and official procedures, communicating with the Government and the public on matters relating to the Judiciary or any other matters which Government may be concerned with, implementing the judicial activities in the Judiciary Strategic Plan, and assisting the Chief Justice, Deputy Chief Justice and the Principal Judge in the facilitation and supervision of the Courts.
Whereas the CR can also handle any other matter assigned by the Chief Justice, Deputy Chief Justice or Principal Judge, the Chief Registrar shall report to the Chief Justice except when performing actions under S. 15(2) (a). That section provides that the CR shall be responsible for ‘performing judicial functions vested in the Chief Registrar by law.’ This seems to mean that the CR may not necessarily be answerable to the Chief Justice where the CR is handling matters under any other law outside the AJA. These need to be clarified.
The Act also makes the CR a link between the Judiciary and the Judicial Service Commission(JSC) on appointments, promotions and disciplinary matters relating to Registrars and Magistrates.[7] This particular provision is of particular significance in so far as it clarifies that the disciplinary mechanism of linking the Judiciary to the JSC fall under the CR and not the Secretary to the Judiciary (SJ). In the past, the SJ has forwarded some members to the JSC for disciplinary action as a ‘responsible officer’ stated in the JSC Regulations.
This provision therefore calls for amendment or an overhaul of several laws regarding discipline within the Judiciary including the JSC Act and its regulations. The Judiciary handbook and any Judiciary Policies and Manuals concerning discipline may also need to be updated to reflect these changes. It would be beneficial to compile all laws applicable to Judicial Officers concerning disciplinary matters that are spread out in the different laws including the Public Standing Orders because of the uniqueness of the Judiciary as an arm of government that has its own additional unique laws that apply to its staff.
In preparing the new laws or amendment, there is need for a participatory approach that takes into account the views of all stakeholders including the officers that will be subject to the disciplinary process. It would be advisable to include both the members of the higher bench (Superior Courts) and lower bench in the consultative process to promote a fair system of disciplinary action.
The importance of a Human Resource Manual and Policies cannot be overstated under the AJA in order to clarify on procedure and ensure certainty and fairness in all administrative processes within the Judiciary in matters not limited to discipline, promotion and transfer. Besides, such manuals and policies are the cornerstone of corporate governance in current times. Crafting these documents is long overdue.
A question that remains is, ‘what is the fate of cases in the JSC against Judicial Officers that have in that past been sent or referred by the SJ and not the CR? It would seem that the act of forwarding such disciplinary files was null and void as a result of the wrong interpretation of the law and confusion brought by the appointment of a Secretary to the Judiciary that was not provided for in the Constitution or any other law.
It is worth noting that the office of the CR and the SJ in the Act may spark controversy that has already been pointed out before because whereas the titles are different, it may not be hard to foresee that points of friction may arise in future due to the interwoven nature of their roles in practical terms.[8] For better appreciation of this issue, the office of the SJ and the role of the SJ is discussed below.
B. The Secretary to the Judiciary
This office is created by S. 17. It provides that ‘(T) here shall be a Secretary to the Judiciary who shall be appointed by the President under article 174 of the Constitution. This office has been in existence before the AJA was passed but only in fact and not in law, a position that has been a source of friction within the Judiciary.[9] It is the argument in this article that the office of the SJ is unconstitutional and should be challenged and declared so by the Courts of law.
Whereas the Constitution provides for the appointment of Permanent Secretaries in in Ministries, departments and sub-units of the Executive by the President under Art. 174, it does not mention anything about appointing the same in other arms of government i.e. Parliament or the Judiciary. This is excluding the fact that the President has the power in the Constitution to appoint the Clerk to Parliament or Chief Registrar who are both traditionally the accounting officers in the two arms of government institutions. After appointment, these are answerable to their own within the arm of government save for where there is accountability within the law under the exceptions to the principle of separation of powers. For instance, the Parliament can check on spending of the Executive and also queries suspect expenses of the other arms through reports by the Auditor General among others.
Art 174 (1) under which the SJ is appointed provides as follows;
(1) Subject to the provisions of this Constitution, a Ministry or department of the Government of Uganda shall be under the supervision of a Permanent Secretary whose office shall be a public office.
The functions of the Permanent Secretary (PS) are provided for in Art 174 (3) as including but are therefore not limited to;
(a) organisation and operation of the department or Ministry
(b) tendering advice to the responsible Minister in respect of the business of the department or Ministry
(c) implementation of the policies of the Government of Uganda
(d) subject to article 164 of this Constitution, responsibility for the proper expenditure of public funds by or in connection with the department or Ministry.
It is clear that the functions of the PS are in relation to Ministries or Departments under the Executive arm of Government only. Some of these Ministries or departments have unique names for their PSs, however, these are still substantially permanent Secretaries or accounting officers regardless of whatever names they are styled with. For instance in The Ministry of Defence, there is a Secretary of Defence, The State house has the State House Comptroller as the Permanent Secretary or Accounting Officer and the Solicitor General is the Accounting officer for the Ministry of Justice and Constitutional Affairs.
From the foregoing, it can be concluded that the title ‘Secretary to the Judiciary’ as distinct from ‘Permanent Secretary’ does not change the substantial nature of the office of the SJ as the defacto Permanent Secretary and Accounting Officer of the Judiciary, a function that had long been for the CR. Their roles are similar. It is the considered opinion of the author that even if it was not challenged early enough, the act of the Rtd. Chief Justice Wako Wambuzi of requesting for and having an SJ appointed cannot override the Constitution. That act and the AJA that creates the office of the SJ should be challenged in the Constitutional Court.
Constitutionalism and good governance call for an independent Judiciary in every democratic government. It is a derogation on the independence of the Judiciary under the Constitution for a Permanent Secretary to implement government policies in the Judiciary just as they do in the other Ministries or Departments in the Executive arm. This is because the Constitution provides of the independence of the Judiciary with the Chief Justice as the top administrator even though he or she can delegate functions to other officers below him in rank. In fact, if the SJ position is to constitutionally exist, this would have to be as a delegate to the Chief Justice. However, as noted, this position is not provided for in Chapter 8 of the Constitution that deals with the Judiciary, but only within the departments, Ministries and sub units under the Executive.
Contrary to the Constitution, S. 17(3) of the AJA provides that in the performance of his or her duties, the Secretary to the Judiciary shall be answerable to Parliament. It is surprising that with the two recent Constitutional Court judgments of ULS VA.G and Ayena Odongo v A.G which explained that the SJ can only serve within the Judiciary as a delegate of the Chief Justice, and a letter urging them to consider these judgments[10], Parliament went ahead and passed a law in contravention of the two judgments. It was passed regardless of Art 92 of the Constitution which provides that Parliament shall not make a law in contravention of any judgment or law.[11] The implications are that the administration of the Judiciary under the Chief Justice is affected and its independence has been infringed.
The roles of the SJ in the AJA are stated in a broad manner which could breed future conflict of roles. They are a ‘mash-up’ between Constitutional functions of a Permanent Secretary under Art 174 and new provisions personalising the PS functions to the unique Judiciary. S. 17(2) of the AJA provides that the Secretary to the Judiciary shall be responsible for;
(a) the organisation of the Judiciary
(b) tendering advice to the Chief Justice in respect of the administrative business of the Judiciary
(c) implementing policies of the Government of Uganda;
(d) implementing the administrative activities in the Judiciary Strategic Plan
(e) subject to article 164 of the Constitution, the expenditure of public funds by or in connection with the Judiciary
(f) any other duty assigned by the Chief Justice(CJ), Deputy Chief Justice(DCJ) or Principal Judge(PJ).
Terms like ‘administrative business’ , ‘administrative activities’ or ‘organisation’ which have not been defined in the Act may bring about Conflict between the SJ and other top management especially in so far as he is answerable to Parliament and not to the Chief Justice who is the administrative head of the Judiciary. It is disturbing to note that whereas the CJ, DCJ and PJ can give roles to the SJ, he is not answerable to them but to Parliament.
C. The Constitutional Court Judgements
The two Constitutional Court Judgements explained the position of SJ vis avis the independence of the Judiciary.
(i) The Judiciary status as an organ of government and not a Ministry or Department
In the ULS V A.G Case,[12] Court also held that the Judiciary is an organ of government as opposed to a Ministry or department of Government. Justice Cheborion held that the independence of the Judiciary was fettered wherever the Judiciary was equated to a Ministry or Department of Government under the Executive. He stated:
I respectfully reject the notion advanced by the Respondent that independence is restricted to decision making and does not extend to the Judiciary… It is very unfortunate that a situation , in which the Judiciary is reduced to a department under the Ministry of Justice during the budgetary processes, described in this petition and defended by the Attorney General has been allowed to persist for two decades since enacting of the constitution.’
In essence, he held that Art 128 (1) and (2) and Art 155 (3) of the Constitution must be respected even if there was a vacuum of the lack of a law providing for the Administration of the Judiciary at that time.
(ii) Administration of the Judiciary (Chief Justice Vis a vis the Secretary to the Judiciary)
His Lordship Cheborion explained the administrative process of the Judiciary. Relying on Art 133, he explained that the Chief Justice is the head of the arm of government. For clarity, the exact words of His Lordship are provided below. He said:
The administrative head of the judiciary is the Chief Justice. The head of the Parliament is the Speaker and the President is the head of the Executive and is also the head of state… The framers of the Constitution were alive to the principles of Judiciary Independence. This explains why they proposed that in order to promote institutional independence of the Judiciary, it was ill advised to place the administration function of the judiciary in the hands of a person external to it.
Accordingly, the accounting expenditure process of the Judiciary, as well as other similar administrative funds should be carried out by the Chief Justice or anyone delegated accordingly by him or her and no one else.
I take Judicial notice of the fact that the Judiciary has a Permanent Secretary/ secretary to the Judiciary appointed by the Executive. Permanent Secretaries are appointed under Art 174 of the Constitution. There is no evidence that the PS/SJ in assuming control of the Judiciary’s expenditure and accounting roles and other administrative roles acts as a delegate of the Chief Justice. As such, I assume that the powers exercised by the PS /SJ are derived from Art. 174 which prescribes the role of the Permanent Secretary.
Clearly, there is no doubt in my mind that the powers of the Court under Art 133 of the Constitution have in practice, been usurped by the Secretary to the Judiciary. This is the clearest indication yet that the judiciary is treated as a department under a Ministry as opposed to an arm of Government. The absence of legislation clarifying the accounting function and personnel matters of the judiciary is partly responsible for the confusion. However, the legislative vacuum cannot be excused for compromising the independence of the Judiciary…
I am mindful of the fact that the status of the Secretary to the Judiciary is not part of this petition. However, the determination of this petition has a bearing on the office of the Secretary to the Judiciary as the heart of the dispute herein is the financial authority of the Judiciary.
It is impossible to determine the question of financial autonomy without addressing the existence of the Secretary to the Judiciary who performs the role in Art 174 of the Constitution in the Judiciary…. However, in my view, the role of the Permanent Secretary ought not to extend to the Judiciary which is an independent arm of government because Art 174 is subject to Art 133(1) which appoints the Chief Justice as the in-charge of the Judiciary.
The framers of the Constitution could not have intended that the Permanent Secretary who is a public officer and senior official of the Executive should handle the administrative functions of the Judiciary in light of the trite principle of institutional independence of the Judiciary. Accordingly, the PS is responsible for the Judiciary ought not to lawfully assume control of the Judiciary in the terms provided in Art 174.
In my view, the PS/SJ must operate under the supervision of the Chief Justice. He or she should report to the Chief Justice and not the Executive arm.
It is appropriate to conclude from the foregoing observations of the Constitutional Court that the position of Secretary to the Judiciary is one which continues to undermine the Constitution and thus the independence of the Judiciary especially in so far as he or she is not a delegate of the CJ and answers to the Parliament in the AJA.
8. Finances of the Judiciary (Part IV)
Finances are covered in Part IV of the Act. They state what the funds of the Judiciary include and where the expenses of the Judiciary shall be charged. They also create the Judiciary Fund and also provide for the financial year and books of accounts of the Judiciary.
It is provided therein that the funds of the Judiciary shall include money appropriated by Parliament for the purposes of the Judiciary, grants or donations approved by the Minister responsible for finance and all other moneys received by the Judiciary in the exercise of its functions. These funds are to be paid in the Judiciary Fund established under S. 35. This is a welcome provision that will see the separation of Judiciary funds from Justice Law and Order Sector (JLOS) funds to promote independent planning and adequate and timely and remission of funds for Judiciary activities.
The AJA is yet to be fully enforced through creation of the different Committees and alteration of the previously existing processes to conform to the AJA. The Act does not specify the budgetary process for the Judiciary. However, it is to be noted that a Constitutional Court judgement also changed certain areas of the law that need to be implemented under the AJA. The Court held that the Judiciary should be able to manage its own budgetary process without interference of the Executive except only as permitted under article 155 of the constitution.
The Constitutional Court case of Krispus Ayena Odongo v A.G & Parliamentary Commission concerned the manner of withdrawal of funds from the consolidated fund by the Judiciary. In that case, Justice Christopher Madrama JA/JCC’s lead judgment that was unanimously adopted by other Justices of the Court is considered quite informative. His Lordship stated that:
‘The Constitution encourages an independent Judiciary in relationship to administration and financial management… save for the requirement to present financial estimates which are not to be reviewed before laying before Parliament by the President and which shall be presented by the Parliament every financial year for purposes for the next financial year, the Executive is not involved in the preparation and review of a budget of parliament or the judiciary for approval by parliament…
The only time and only way the Executive gets involved is in making comments supporting the laying in Parliament of financial year estimates of revenue and expenditure of court by the President. Secondly, it is the president to lay financial year estimates of revenue and expenditure of Government before parliament.
Under Art 257 (1) of the Constitution, the term ‘Government’ means the Government of Uganda. This is inclusive of all organs of government which includes the Judiciary and Parliament. The said financial year estimates are presented by the President without revision to parliament every financial year.
It follows that the judiciary should be permitted and is entitled to present its budget to the President for laying before parliament without amendment an only with the comments of the President to accompany it. (sic) It is the Judicial Service Commission to make recommendations with regards to the administration expenses of the judiciary in terms of salaries, allowances, gratuities and pensions payable in respect of persons serving in the judiciary and which expenses are charged on the consolidated fund…
Unlike Parliament, such expenses have not been enacted in an Act of Administration of the Judiciary. This does not stop the Judiciary from dealing with the Ministry responsible for Finance in respect of its finances without interference.
Further regarding the budgetary process, the Court in Krispus Ayena case held that sections 9 and 11 the Public Finance Management Act 2015 are inapplicable to the Judiciary which is a self-accounting arm of government. Those impugned sections had always allowed the Secretary to the Treasury to issue instructions to the Accounting officers including the Permanent Secretary /Secretary to the Judiciary appointed under S. 174. Court held that this fetters the powers of the Chief Justice because the Judiciary is a self-accounting organ whose administrative head is the Chief Justice. Any attempt to apply these instructions and directives to the Secretary to the Judiciary is unconstitutional in so far as it fetters financial autonomy of the Judiciary and the independence of the Judiciary as a whole. The Judiciary does not require the PS to act as a go-between during the budgetary process because they can charge their expenditure directly onto the consolidated fund and their financial estimates do not need revision by the President.
The Court in the Ayena case also held that it is unlawful for the funding of the judiciary to be processed through an Appropriation Act. It is a considered opinion that it would thus be beneficial for the budgetary process for the Judiciary to be clearly laid out. Even though the Planning Committee can make its own procedure, the issues of budgeting would require clear provisions that would be suitably prescribed in the AJA or Regulations made thereunder and not just as mere procedures of a Committee.
With regards to the expenses of the Judiciary and in line with the Constitution, the AJA provides that all moneys approved by Parliament to defray the expenses incurred in the discharge of the functions of the Judiciary or in carrying out the purposes of this Act shall be a direct charge on the Consolidated Fund.
9. Retirement benefits
The AJA provides for retirement benefits from sections 21 to 32 of the Act under Part III of the Act. S.32 of the AJA repealed S. 46 (3) of the Judicature Act that provided that where a Justice of the Supreme Court or a justice of the Court of Appeal or a judge of the High Court is appointed on pensionable terms, he or she shall become eligible for pension on completion of one year of service or in accordance with the Pensions Act, whichever is the sooner. The retirement benefits of all Judicial Officers from the Chief Justice down to the Magistrate Grade 2 are now provided for under Part III which takes them outside the Pension scheme existing in the mainstream Public Service.
The major development under the AJA is that with the exception of the Chief Justice and Deputy Chief Justice who retire with their full salary, all Judicial Officers are entitled to retire with their eighty percent of their salary. All Judicial officers shall receive a gratuity equivalent to 2.4% of their annual salary multiplied by 5 and further multiplied by the number of years of service. All Judicial Officers shall receive their monthly retirement benefit for life.
The specific retirement packages among the different ranks of Judicial Officers vary and are covered in Schedules 2 to 6 of the AJA. The Higher bench has additional benefits provided for under the schedules 2 to 5 of the Act. In the course of their work, all Judicial Officers are required to commit a hundred percent of their productive time to Judiciary work unlike other civil servants who can remain gainfully employed within the service while carrying on other business for extra income. They are also prohibited from carrying on certain businesses that other civil servants are free to engage in.
This limitation could be the explanation for some of the provisions that allow these judicial officers to retire with their full salary. It is the considered opinion that the opportunity to provide more benefits for the lower bench was missed by providing less benefits for these officers as can be seen when schedules 2 to 5 (superior courts) are compared with schedule 6 (lower bench). All Judicial Officers, face similar challenges after retirement. The provision appears to be discriminatory contrary to the Constitution.
It can be observed that this is the only section that concerns terms and conditions of work of judicial officers. It would have been expected to incorporate the salary and allowances of Judicial officers under this Act since the Judiciary will now be able to improve the remuneration of its members. This is especially so for the lower bench that does not have a special Act or law providing for allowances and benefits such as accommodation allowances, medical allowances among others, as compared with the upper bench. This is recommended because the lower bench has previously been lumped together with other legal officers in the departments under the Executive arm of government yet there is a Judicial Service Commission that is concerned with issues regarding their remuneration. The Administration of Parliament Act provides that ‘Officers and employees in the service may be paid such allowances in such cases and subject to such conditions as are determined by the Commission.’[13] A similar provision regarding salary and allowances of the judicial officers would enable the Judiciary to better facilitate its members.
10. Other provisions
Some provisions cater for situations or offices that were already in existence in practice but need to be placed within the law. Some are below.
(A) Registrars
The Act provides for Registrars under section 16. Registrars were already in existence with their appointment done by the President. There are Registrars heading the Supreme Court, Court of Appeal and High Court Registries and other Registries already existing such as the Registry of Magistrate Affairs and the Planning, Research and Development Registry. Under S.12 the Inspectorate also has Registrars and Deputy Registrars explicitly provided for. Whereas this section is not novel it opens the door to creation of more such registries for better management of the Judiciary.
(B) Performance Management system
S. 17 provides that the Chief Justice shall put in place a performance management system in the Judiciary. The performance management system is meant to improve service delivery. This is a new area that is expected to open doors for better monitoring of performance of the judicial service so as to improve performance and service delivery. It is a welcome provision.
(C) Judicial Training Institute (JTI)
S. 19 creates a Judicial Training Institute that is responsible for providing specialized and continuous education to the Judiciary Service or any other person or institution approved by the Director of the Institute who shall be a Judge of the high Court appointed by the Chief Justice. It is important to stipulate how the JTI, CR and SJ roles intersect in order to promote smooth running of the training of Judicial Officers especially with regards to Judicial Officers that seek to undertake further studies within and outside Uganda sponsorship by the Judiciary.
(D) Service in other institutions
The Act provides for the situation where a judicial officer or a person in the Judiciary Service is appointed to an institution outside the Judiciary. That officer or person shall apply to the Judicial Service Commission for leave of absence without pay from the Judiciary. If that person is seconded to an institution outside the Judiciary, that officer or person shall apply to the Judicial Service Commission for leave of absence from the Judiciary. The Judicial Service Commission may grant to an applicant leave applied for in each case for a period not exceeding three years. It goes ahead to provide for other similar scenarios where an officer needs to leave their work to work elsewhere and how and under what conditions the vacuum left can be filled.
(E) Annual report of the Judiciary
The Chief Justice is mandated under S.39 to publish a report on the annual performance of the Judiciary. It shall indicate the state of the Judiciary and shall be disseminated to the President and any other stakeholder.
Conclusion
The article has reviewed some of the provisions of the Administration of the Judiciary Act, 2020. It has explained what the new developments are, areas requiring amendment and how the Act can be implemented in accordance with the Constitution. Whereas it can be said with certainty that the AJA is a great achievement and milestone in the independence of the Judiciary that was long overdue, there are still areas for improvement that can lead to a more independent and efficient Judiciary as has been discussed. The Constitution urges all stakeholders to offer the Judiciary all the assistance it needs to enable judicial officers and the institution as a whole achieve peak performance in the administration of Justice.[14] With this spirit, all stakeholders can join together to plug the weaknesses observed in the AJA.
*LLM (UCD, Ireland), LLB (MAK) Diploma in Legal Practice (LDC) ., Diploma in Tax and Revenue Administration (East African School of Taxation) The writer is a Magistrate Grade One, a former Vice President of the Uganda Judicial Officers’ association Executive (UJOA) 2018/2020 and 2020/2021 and a former Legal Officer of Centre for Public Interest Law (CEPIL).
REFERENCES
The Constitution of Uganda 1995 as amended
‘The Administration of Judiciary Act 2020
The Administration of Parliament Act Cap 257
Krispus Ayena Odongo Versus The Attorney General & The Parliamentary Commission Constitutional Petition No 30 of 2017
Uganda Law Society (ULS) Versus Attorney General Constitutional Petition No 52 OF 2017
Wambuzi SWW, The Odyssey of a Judicial Career in Precarious Times: My Trials and Triumphs as a Three Time Chief Justice of Uganda (1st edn, Cross House Books 2014)
The Ministry of Public Service, ‘Post Constitutional Restructuring of the Judiciary: Final Report. May 1998’
His Lordship, Hon Justice Dr. Bamwine TPJHJDY, ‘Annual Judges Conference’, Enhancing Public Confidence in the Judiciary (2014)
Parliament of Uganda, ‘House Passes the Administration of Judiciary Bill’ (2020) <https://www.parliament.go.ug/news/4637/house-passes-administration-judiciary-bill> accessed 4 August 2020
[1] Parliament of Uganda, ‘House Passes the Administration of Judiciary Bill’ (2020) <https://www.parliament.go.ug/news/4637/house-passes-administration-judiciary-bill> accessed 4 August 2020.
[2] Uganda Law Society (ULS) Versus Attorney General Constitutional Petition No 52 OF 2017.
[3] Krispus Ayena Odongo Versus The Attorney General & The Parliamentary Commission Constitutional Petition No 30 of 2017.
[4] ‘The Administration of Judiciary Act 2020’ s 6(3).
[5] ibid s.12.
[6] ibid s 15(2).
[7] ibid s. 15(2)(h).
[8] The Ministry of Public Service, ‘Post Constitutional Restructuring of the Judiciary: Final Report. May 1998’ 28 The Report noted that the ‘two positions are at the same managerial level in the organisation...When there are two top managers, problems of conflict of authority and/or control could arise to the detriment of the Organisation’.
[9] Samuel William Wako Wambuzi, The Odyssey of a Judicial Career in Precarious Times: My Trials and Triumphs as a Three Time Chief Justice of Uganda (1st edn, Cross House Books 2014) 155 &156 The author explains how the Chief Registrar was the Parmanent Secretary of the Judiciary traditionally. The appointment of the SJ brought friction whereby the first SJ appointed in 1998 was rejected by Judges who sent him back when the author, a Chief Justice by then was out of the country. ; See also The Principle Judge Hon Justice Dr Yokoramu Bamwine, ‘Annual Judges Conference’, Enhancing Public Confidence in the Judiciary (2014) The Principle Judge then also noted the difficulties that had arised form the existence of the position of SJ. He explained that ‘ I am of the view that without prejudice to the incumbents, continued ambivalence over the two offices is unhealthy… In Kenya, the Chief Registrar is responsible for the overall administration and management of the Judiciary and the accounting officer. In that regard, he/she monitors and enhances administration and office procedures to maximise on efficiency and the quality of service… Either way continued ambivalence as to who is accountable to the other appears in any view, not to enhance judicial performance a necessary precursor for public confidence in the Judiciary.’
[10] The Uganda Judicial Officers Association wrote to the Speaker of Parliament calling her attention to the decision of the Court in March 2020.
[11] The Constitution of Uganda 1995 art. 92. Restriction on retrospective legislation. It provides. 'Parliament shall not pass any law to alter the decision or judgment of any court as between the parties to the decision or judgment.’
[12] Uganda Law Society (ULS) Versus Attorney General Constitutional Petition No. 52 OF 2017 (n 2).
[13] The Administration of Parliament Act Cap 257 s 28.
[14] The Constitution of Uganda (n 11).
