TWO crucial judicial principles, independence and accountability, have clashed with each other in a landmark judgment by Uganda’s highest court. Unusually, the case produced seven separate decisions, one a dissenting judgment – and it has also sparked strong criticism from outside the court. The case concerned the right of the judicial disciplinary body to charge a registrar, someone who exercises judicial powers in Uganda, with misconduct in relation to an action she took in the course of her judicial duties.
The case begins in 2009 when deputy registrar Dr Gladys Kisekka issued a warrant for the attachment of certain property following a default judgment. A few months later she received a letter from a law firm, protesting that some of the land scheduled for attachment belonged to their client, and not to the judgment debtor in the case.
Kisekka immediately recalled the warrant in respect of the disputed property and copied her letter recalling the warrant to all the parties.
A few days later the original judgment creditor complained about the recall of the warrant, to which Kisekka replied that a formal application should be filed. A similar letter of complaint was then sent to a number of senior officials including the principal judge and to Kisekka herself. She did not respond, as she was never called on to do so by any of her superior judicial officers.
The judgment creditor also approached the judicial service commission, alleging that Kisekka had acted fraudulently. In June 2013, nearly four years after the initial warrant was issued, the commission notified Kisekka of the complaint and required her to respond within 14 days. She denied any wrong doing: she had recalled the warrant in the exercise of her judicial discretion and for good cause.
But that did not satisfy the commission and she was advised that she had been charged with offences including abusing judicial authority. She was to plead on 17 December 2013, but a few days before that she challenged the whole process at the constitutional court. The effect of her challenge was to put the commission’s proposed hearings on ice.
The constitutional court ruled in her favour, but the attorney-general appealed against the outcome in the supreme court where the judges have now taken a firm line: even though her decision to withdraw the warrant was a judicial action, the principle of judicial accountability requires that she submit to the commission, appear before it and answer the charges.
In her lead decision, judge Lillian Tibatemwa-Ekirikubinza said she was aware that judicial independence was now universally recognized as a hallmark of constitutional democracy and the rule of law.
“It is accepted that an independent judiciary is key to upholding the rule of law in a democratic society. Judicial independence requires that an individual judge be unconstrained by collegial and institutional pressures when deciding a question of fact and law.”
But in exercising their discretion to decide the outcome of a case, judges may not always make the right decision. They might misunderstand the law and make an unfair decision, and in such a case the appeals process will help maintain the integrity of the legal system. What, however, if a judicial officer “intentionally misuses this discretion to reach their own purposes”? Will that judicial officer be immune to questioning from the commission?
“(J)udicial independence and judicial accountability have long been viewed as in tension with each other. The assumption is that any effort to strengthen judicial independence makes it difficult to hold judges accountable, and any accountability initiative undermines judicial independence.”
She said the commission could not be prevented from doing its work “by a judicial officer citing judicial immunity.” While a judge was protected from “an action or suit” arising from a judicial decision, proceedings before the commission were neither an “action” nor a “suit” and so no judge was protected from the commission’s scrutiny.
Five other judges of the supreme court agreed with her decision, each of them adding their own concurring judgment.
Judge Stella Arach-Amoko, for example, stressed that the commission should be allowed to carry out its investigations “as far as possible” but that any decision made by the commission could then be referred to court.
Other judges also stressed that a judicial officer “had to comply” if called on to account for conduct in a matter. While judicial immunity protected a judge from law suits brought by aggrieved litigants, this did not apply to disciplinary action.
The notable exception to this line of thought came from judge Esther Kitimbo Kisaakye. In her sole dissent she warned of the “danger” of subjecting judicial errors of law to the commission to decide whether “misconduct existed”. “In my view, such action would inevitably lead to erosion of judicial independence …. Judicial officers will start treading carefully so as not to attract the wrath of the commission’s disciplinary committee.”
She said that from her perspective, the commission was reviewing Kisekka’s legal process in deciding to recall the warrant. Such a review process should have been undertaken by an appellate court and not the commission.
While the judgment has obviously caused a good deal of thought and some disagreement among the wider judiciary of Uganda, it has also sparked criticism off the bench.
Prominent lawyer and outspoken commentator on legal matters, Fred Muwema, who was part of the legal team representing Kisekka, slammed the decision, saying it was surprising that judges had taken the lead in depriving themselves of their constitutional rights.
Writing in the Ugandan daily, The New Vision, Muwema said that in his many years as a lawyer he has channeled any dissatisfaction he might have with the outcome of a case through the elaborate appellate system provided by the law. He predicted that in future, however, dissatisfied litigants would use the new decision to bypass the appeal system, and instead approach the commission with a demand that it should take disciplinary action against the judge concerned.
He said he saw chaos developing when judges began to administer justice “tempered by fear of litigants who might report them to the Judicial Service Commission” for decisions that litigants believe are wrong. The judiciary would be seriously damaged when judges delivered decision based on what was least likely to provoke complaints to the commission rather than what is “best under the law”.
In his view, through their decisions in the Kisekka case, the supreme court bench “ripped apart the judicial independence and judicial immunity guaranteed by the constitution”.
Read the full judgment of the Uganda Supreme Court on ULII: Attorney General v Nakibuule Gladys Kisekka (CONSTITUTIONAL APPEAL NO. 02 OF 2016.)  UGSC 30 (11 July 2018)
Read the appealed judgment from the Constitutional Court: Nakibuule v Attorney General (Constitutional Application No.90 of 2013)  UGCC 3 (5 February 2014);