In this landmark case the Uganda law society made an alarming claim: the country’s executive and legislature had failed to help the judicial arm of government take its rightful place under the constitution. In doing so, they undermined the independence of the judiciary.
The law society said that this subordination was seen particularly in the ‘budgetary processes’: the other arms of government ‘subjected’ the budget of the judiciary to the direct control of the Minister of Justice and Constitutional Affairs and to the secretary to the treasury in the Ministry of Financial Planning and Economic Development.
This resulted in ‘control’ of the judicial budget and underfunding. ‘Its budget is routinely reduced, thereby preventing the institution from executing its mandate.’
The law society’s experts said that under the constitution the judiciary was a self-accounting body whose estimates ‘should not be subject to revision by the executive’.
However, the present dispensation gave the secretary to the treasury power to ‘issue directives’ to the judiciary, and this undermined the independence of the judiciary and the doctrine of separation of powers.
As a result, the judiciary was hampered in its work. The ‘meager’ funds it received represented less than half of what it needed to function ‘meaningfully’, and for example, only 200 out of the 429 gazetted courts were operating.
Past attempts to approve a Bill that would give the judiciary powers to administer its own budget had failed.
Another expert for the law society said the independence and financial autonomy of the judiciary in administering justice and ensuring the rule of law was ‘a core essential’ in achieving the targets of the country’s national development plan.
At the moment the judiciary fell under the ‘justice, law and order sector’ (JLOS) which in turn fell under the ministry of justice and constitutional affairs. That ministry controlled the judicial budget allocation and treated the judiciary ‘as if it is a department in the civil service, under the ministry responsible for public service’.
The law society said that every financial year the budget of the judiciary was cut back so deeply that the judiciary was unable to develop the infrastructure it needed to carry out its constitutional mandate of administering justice for all. This resulted in significant backlogs because there were not enough judicial officers. The judiciary’s budget should be considered independently ‘and not as a mere sub-component under JLOS’.
Counsel for the law society argued that at present the judiciary was considered ‘as a small department in the ministry of justice’. If the judiciary were appropriately funded it should be allocated about four percent of the national budget – far from the case at the moment.
The judiciary was supposed to be one of three equal arms of government; however, it was ‘not considered on the same level as parliament or the executive but is instead taken as a department under the minister of justice’.
One of the many negative results was economic harm to the economy: long pending commercial cases meant that billions of shillings were kept on the court’s shelves ‘instead of out in the economy where they should be’.
The attorney general’s response to these arguments was, in some respects, a shock to read. Most alarming of all was this submission: the judicial mandate related to independence ‘in exercise of judicial functions’, not to its funding. Judicial independence ‘is confined to the adjudication process’.
Moreover, control had to be exerted to ensure that the judicial budget fitted with national development plans, said counsel for the AG. And in any case, funding decisions by the executive and legislature were not responsible for court backlogs: ‘there were other factors … like corruption by judicial officers, poor case management and lack of control of court processes among others.’
The judges hearing the matter said, however, that the constitution ‘fully recognizes and provides for judicial independence as well as a strict separation of powers’.
From a survey of international judicial findings on related matters, Judge Cheborion Barishaki, who wrote the decision for the unanimous court, said judicial independence included anything done to improve the way courts maintained the law and acted as custodians of justice. It also included reducing the judiciary’s dependence on persons external to it. In this regard, the executive was identified as the arm ‘with the potential to curtail (courts’) independence the most and efforts should be taken to address that.’
Both procedural independence and organizational independence were necessary to ensure the judiciary was an autonomous organ of state with minimal intrusion from other branches.
Judge Barishaki said that it was impossible for an arm of government ‘wholly dependent for its financial decisions and budgeting processes on another arm to be described as independent in any sense’.
He added, ‘It is very unfortunate that a situation in which the judiciary is reduced to a department under the ministry of justice during the budgeting processes, as described in this petition and defended by the Attorney General, has been allowed to persist for two decades since the enactment of the constitution.’
The Chief Justice was the head of an arm of government and the role of planning for, organising and running the judiciary was solely in the hands of the CJ. As things stood, however, a permanent secretary/secretary to the judiciary, appointed by the executive, assumed control of the judiciary’s expenditure and other administrative functions. The permanent secretary was not a delegate of the CJ, whose power had clearly, in practice, ‘been usurped’ by the secretary to the judiciary.
This was a clear indication that the judiciary was treated as a department under a ministry, rather than a separate arm of government.
The court found that the permanent secretary must operate under the supervision of the CJ and report to the CJ rather than to the executive.
Changes to the law and the budgetary process were required to reflect the constitutional demand for judicial autonomy, and the judges commented on the ‘laxity’ on the part of the other arms of state about ensuring proper judicial independence. It was, they said, ‘demeaning’ to the judiciary that funding of 0.59% of the national budget was considered enough for it, and ordered the executive to report every three months on what steps had been taken to ensure the necessary corrective laws were passed.
‘It follows that the impugned conduct of treating budgetary processes for the judiciary in a manner similar to that of other government departments must stop forthwith.’ All the administrative functions of the judiciary were also now to be handed over to the CJ.
All the judges who sat with Judge Barishaki to hear the matter indicated their agreement with the outcome. One of them, Judge Stephen Musota, added, in his statement of concurrence with the decision, that the orders made would ‘go a long way in strengthening the independence of the judiciary.’
The judgment is a major victory for real judicial independence in Uganda, where, as the court pointed out, the CJ has been reduced to begging for funds that would allow the courts and the justice system to function properly. Given the enormous power wielded by President Yoweri Museveni, it is often assumed that the judiciary is a mere rubber stamp for his decisions. This decision is an important step towards correcting or rehabilitating that public perception of the judiciary.
* 'A matter of justice', Legalbrief, 17 March 2020