INDEPENDENCE OF THE

JUDICIARY AND ARTICLE

20.
December 26, 2017

INDEPENDENCE OF JUDICIARY

Judicial Independence (also known as the independence of the judiciary) is

the idea that the judiciary needs to be kept away from the other branches

of government. That is, courts should not be subject to improper influence

from the other branches of government, or from private or partisan

interests.

Different nations deal with the idea of judicial independence through

different means of judicial selection, or choosing judges. One way to

promote judicial independence is by granting life tenure or long tenure for

judges, which ideally frees them to decide cases and make rulings

according to the rule of law and judicial discretion, even if those decisions

are politically unpopular or opposed by powerful interests.

In some countries, the ability of the judiciary to check the legislature is

enhanced by the power of judicial review. This power can be used, for

example, by mandating certain action when the judiciary perceives that a

branch of government is refusing to perform a constitutional duty, or by

declaring laws passed by the legislature unconstitutional.

The doctrine of independence of judiciary and its importance was

underscored in the well known case of MASALU MUSENE AND 3 ORS

V AG. Constitutional Petition N0. 5 of 2004, where Mpagi Bahigeine JA

noted that judicial officers are charged with the responsibility of

safeguarding the fundamental rights and freedoms of the citizenry. In the

performance of their duties they are entrusted with checking the excesses

of the Executive and the Legislature. These duties require insulation from

influence direct or indirect that will cause them to play into the hands of

corrupt elements. The judiciary is viewed as the weakest and most

vulnerable.

The Court cited this in the case of EVANS V GORE 253 US 245 (1920).

Independence of Judiciary was tested in recent times and it appears that

the government failed miserably to stand up to the test. This was illustrated

in the case of The U.G Law Society V A.G

FACETS OF THE DOCTRINE OF JUDICIAL INDEPENDENCE AND

THE SAFEGUARDS UNDER THE 1995 CONSTITUTION

These appear in the 1995 Constitution and include the following:

Constitutional disposition of judicial power in the people of Uganda.

Article 126(1) provides that judicial power is derived from the people (and

not the State or the government in power) and shall be exercised by courts

in the name of the people and in conformity with law and with values,

norms and aspirations of the people.

Similarly, Article 127 prescribes and enjoins parliament to make laws

providing for the participation of the people on the administration of

justice. Article 1(1) vest all power in the Ugandan people. These powers

include judicial power. The autonomy of the judiciary is further sought to

be re-enforced under clauses 5 and 6 on regard to the remuneration of

judicial officers and financial of the judiciary.

PILLARS 9

Article 128(2): No person or authority shall interfere with the courts or

judicial officers in the exercise of their judicial functions.

Case law: The Ugandan Law Society v A.G Constitutional Petition No.18

of 2005

The doctrine was held to have been blatantly violated. The 1st accused, Dr.

Besigye was separately charged with rape. They were later committed to

the High Court for a bail application. However because of certain acts of
the security personnel at the High Court premises, the bail papers could

not be processed. The security personnel who were dressed in dark clothes

were said to have entered into the court offices and interrupted the court

duties. The accused as a result had to be taken back to prison. A petition

was brought to challenge the acts of the army. It was Held that under

Article 128(3) of the Constitution, all organs and agencies of the state are

required to accord to the courts such assistance as may be required to

ensure effectiveness of the courts.

Article 128(4): “A person exercising judicial power shall not be liable to

any action or suit for any act or omission by that person in the exercise of

judicial power.”

Case Law: John Arutu V A.G; Egbe V Adefarisim and Anor

Judicature Act Section 46: Protection of judicial officers. (1) “A judge or

commission or other person acting judicially shall not be liable to be sued

in any civil court for any act done or ordered to be done by that person in

the discharge of his or her judicial functions whether or not within the

limits of his or her jurisdiction.”

Case Law: Evans v Gore

Article 128 (5): “The administrative expenses of the judiciary, including

all salaries, allowances, gratuities and pensions payable to or in respect of

persons serving in the judiciary, shall be charged on the Consolidated

Fund.

Article 128(6): The judiciary shall be self-accounting and may deal

directly with the Ministry responsible for finance in relation to its finances.

These two provisions are meant to ensure that there is reasonable degree of

self accounting and control over judicial funds such that the welfare of

judicial officers is not placed at the whims and caprices or mercy of the

Executive or Legislature. It is no doubt however that you cannot separate

finance matters from the broad question of judiciary independence.

Article 128 (7) is to the effect that the salary , allowance, privileges, and

retirement benefits and other conditions of service of judicial officer or

other person exercising judicial power shall not be varied to his or her

disadvantage. In the case of A.G v Masalu Musene and others, the

Supreme Court held that majority in the Constitutional Court erred in law

and fact when they held that section 4(1) of the Income Tax Act was

inconsistent with and in contravention of Article 128(7) of the

Constitution. A fortiori, the decision that the respondents salaries cannot

be subject to tax whatsoever cannot stand.

Article 128 (8): states that: “ The office of the Chief Justice, Deputy Chief

Justice, Principal Judge, a justice of the Supreme Court, a justice of

Appeal or a judge of the High Court shall not be abolished when there is a

substantive holder of that office.” This Article is made stronger by Article

144.

Judicial Appointment as provided for under Article 148: “Subject to the

provisions of this Constitution, the Judicial Service Commission may

appoint persons to hold or act in any judicial office other than the offices

specified in article 147(3) of this Constitution and confirm appointments in

and exercise disciplinary control over persons holding or acting in such

offices and remove such persons from office.”

Amendment of Article 128(1) must be the subject a referendum.

Article 128(1) on independence of judiciary shall not be amended unless

as provided under Article 160 that sates that: except: “it has been referred

to a decision of the people and approved by them in a referendum.” This

was also stated in the same case of A.G v Masalu Musene and others.

The Judicial Code of Conduct, 2003

The code has 6 principles which include: the principle of independence,

impartiality, integrity, propriety, equality, and competence as well as

diligence. The principle of independence which is more pertinent requires

that a judicial officer shall not be influenced by any direct or indirect

extraneous influence, inducements, pressures, threats or interference from

any quarter or for any reason. He or she shall reject any attempt arising

from outside the proper judicial process to influence his decision.

The Code also gives independence on an individual level and adds that the

officer must base his decision, on the basis of his or her assessment of the

facts and in accordance with the conscious understanding of the law. This

requirement is laid down under Article 149. Judicial oath: “Every judicial

officer shall, before assuming the duties of his or her office take and

subscribe the oath of allegiance and the judicial oath specified in the

Fourth Schedule to this Constitution.”

Independence of judiciary also requires transparency of the process of

appointment judicial officers. This is to ensure that persons of good and

moral conduct are appointed to the courts as well as to shelter judicial

appointment from political from political and sectarian tendencies. There

have been questions about certain appointment or the timing of the

appointment with allegations of political patronage. This was particularly

the case in the appointment of Kanyeihamba as Justice of the Supreme

Court Of Appeal, shortly before the hearing of the Appeal by the

government in the case of Attorney General V Maj. Gen Tinyefuza made

an appeal on the grounds of likelihood of bias since prior to his

appointment he had been a Presidential Advisor. Kanyeihamba refused to

disqualify himself.

HOW TO ENSURE INDEPENDENCE OF JUDICIARY

Article 128 Independence of the Judiciary

(1) In the exercise of judicial power, the courts shall be dependent and

shall not be subject to the control or direction of person or authority.

(2) No person or authority shall interfere with the courts or judicial

officers in the exercise of their judicial functions.

(3) All organs and agencies of the State shall accord the courts such

assistance as may be required to ensure the effectiveness of the courts.

(4) A person exercising judicial power shall not be liable to any action or

suit for any act or omission by that person in the exercise of judicial

power.

(5) The administrative expenses of the Judiciary including all salaries,

allowances, gratuities and pensions payable to a in respect of persons

serving in the Judiciary, shall be charged a the Consolidated Fund.

(6) The Judiciary shall be self-accounting and may deal directly with the

Ministry, responsible for finance in relation to its finances.

(7) The salary, allowances, privileges and retirement benefits and other

conditions of service of a judicial officer or other person exercising

judicial power, shall not be varied to his or her disadvantage.

(8) The office of the Chief Justice, Deputy Chief Justice, Principal Judge, a

Justice of the Supreme Court, a Justice of Appeal or a Judge of the High

Court shall not be abolished when there is a substantive holder of that

office.

CHAPTER 4: PROTECTION AND PROMOTION OF FUNDAMENTAL

HUMAN RIGHTS AND FREEDOMS

Article 20 provides for Fundamental and other human rights and freedoms.

(1) Fundamental rights and freedoms of the individual are inherent and not

granted by the State.

(2) The rights and freedoms of the individual and groups enshrined in this

Chapter shall be respected, upheld and promoted by all organs and

agencies of Government and by all persons.

Case Law: REV CHRISTOPHER MTIKILA V A.G of Tanzania civil

Case NO.3 of 1993. It was espoused by Justice Lugakingira that:

“fundamental human rights are not gifts from the state. They are inherent
in a person on his birth and therefore prior to the state and the law.” This

means that these rights are merely re-stated but the Constitution does not

create them. To that extent they must be looked at in a different light from

other legal rights. The observance of human rights is not only on the part

of the state but also on the part of private individuals and stakeholders.

This was illustrated in the case of KALAWUDIO WAMALA V

UGANDA, where the High Court sitting in Masaka reflected on the

significance of article 20(2) and held that the police as an agency of the

government had failed in its duty as an organ of government to uphold

those rights if it turned a blind eye on theses unconstitutional acts.

THE RIGHT TO EQUALITY AND FREEDOM FROM

DISCRIMINATION (Article 21)

Case law: UNITY DOW V A.G; LONGWE V INTER CONTINENTAL

HOTELS; SHARON DIMANCHE AND 2 OTHERS V THE

MAKERERE UNIVERSITY

See also: Articles 32(1), 33(5), 78(1) (b) and (c), 180(2) (b) and (c). Also

refer to Section 10 of the Local Government Act Cap 243 as amended and

the persons with Disabilities Act

PROTECTION OF THE RIGHT TO LIFE (Article 22)

Article 22 protects the right to life in 2 situations.

The right of an existing living person

The right of the unborn child

In Uganda the death penalty and its Constitutionality has been brought to

the limelight by the Constitutional petition of SUSAN KIGULA AND 416

OTHERS V A.G

THE RIGHT TO PERSONAL LIBERTY (Article 23)

Case law: R V EXPARTE NASREEN, where court held that orders of

court to secure an obligation in law should in themselves not violate the

right to personal liberty; CHRISTOPHER SAJJABI NSEREKO V A.G,

where it was held that by refusing to tell the complainant the reasons for

his arrest at the time of the arrest they violated the provisions of Article

23(3) of the Constitution 2 million was accordingly given to the

complainant as general damages for the violation of the right to personal

liberty; R V FEENEY, where it was held in the Supreme Court that of

Canada that there had been a violation of Feeney’s Constitutional right

given that he was not informed of his right to consult a lawyer; THE

QUEEN V THERENES; ONYANGO OBBO AND ANOR V U.G;

KIGEMUZI V U.G, where it was held that the right to grant bail was a
Constitutional right secured under article 23(6) and the individual in

certain circumstances is entitled to automatic grant to bail where he/she

has spent either 120 days or 360 days on remand; JOSEPH LUSSE V U.G,

where the accused had been arrested and charged with treason and

subsequently spent 365 days on remand. Upon an application for grant of

bail, Justice Tabaro held that since the accused had spent more than 360

days in custody he was entitled to automatic grant of bail under the

provisions of Article 23 Clause (6)©.

THE RIGHT AGAINST SUBJECTION TO TORTURE,

DEGRADING OR INHUMAN TREATMENT (Article 24)

The Death penalty being considered inhuman and degrading punishment.

Case Law: Makwanyane’s Case (1998) 1 LRC 269

Corporal punishment is perceived as inhuman and degrading punishment.

In Uganda this got its first precedent not so long ago in the case of SIMON

KYAMANYWA V UGANDA CONSTITUTIONAL REFERENCE NO.

10/2000, the court held that the arguments of the state had no merit in

them especially given the fact that the right against such treatment is one

of the non-derogable rights preserved by Article 44. In relation to the

common phenomenon of corporal punishment meted out in schools, there

is the case of MPONDI EMMANUEL V NGANWA HIGH SCHOOL

UHRC COMPLAINANT NO. 210 OF 1998. This case was the first

precedent of a school being dragged before a judicial body for

administration of punishment to its students. The complainant a student at

the school had been punished for entering the staff room without

permission. The bone of contention was that the said punishment violated

Articles 24 and 44 (a) of the 1995 Constitution. During the hearing the

presiding commissioners concluded that the act of punishment had been

arbitrary, excessive and outside the ordinary and the normal or accepted

form of punishment normally meted out in school establishes and thus

having considered it cruel and inhuman awarded the complainant

2,000,000 shillings. It was therefore stated that corporal punishment in

itself is unconstitutional.

Exclusion or banishment orders depriving a convict access to ancestral

land

Case Law: Salvatori Abuki V A.G

FREEDOM FROM SLAVERY, SERVITUDE OR PERFOMANCE OF

FORCED LABOUR (Article 25)

Case law: R V the Khadi of Kisumu Exparte Nasreen (1973) EA 153

The right of freedom against performance of forced labor in Uganda was

exemplified in the case of A.G V MAJOR GENERAL DAVID

TINYEFUZA. In this case, Tinyefuza who had been appointed senior

Presidential Advisor sought to resign from the army but his regulation

letter was refused by the Minister of State for Defense, Amama Mbabazi.

He in turn petitioned the Constitutional Court alleging that that act violated

his rights to freedom from being required to perform forced labor under

articles 25(2) and 25(3) © of the Constitutions. The Constitutional Court

upheld his claim. It held that Regulation 28 of the NRA Regulations, 1993

was not applicable to the petitioner as he was not a member of the Army.

In the opinion of the court of Appeal, army service required full time

attention and therefore by implication when the President appointed the

petitioner as Senior Presidential Advisor, he was in effect terminating his

employment in the military service. He appealed to the Supreme Court.

The appeal raised several issues of Constitutional importance as regards

this particular contention. However majority of the Supreme Court Justices

felt that he was still a member of the armed forces notwithstanding his

appointment as Senior Advisor and not withstanding his activity and non-

deployment in military operations. It was therefore held that the Minister’s

letter was just a piece of advice and di not violates any of his rights.

THE RIGHT TO PROPERTY (ARTICLE 26)

The acquisition of property is founded on the law, there must be an act of

parliament or mode under a ministerial order which calls for prompt

payment of a fair compensation and the right of access to the court of law.

The Land Act under section 5(4) provides for the right to compensation

and the right to appeal to the High Court is provided for under Section 13

of the Act. Compensation must be prior to the taking of possession or

acquisition of the property where done in public interest and not after. This

was illustrated in the case of JULUIS OKOT V A.G. The army had

occupied the complainant’s land in the Northern Uganda and established a

military detach on it. It was held that where as the occupation was in the

interest of public defense, safety and order under Article 16(2) (a) of the

Constitution, it still remained unlawful in so far as the conditions in the

Article 26(2) (b) (i) were not fulfilled. The government had refused to

promptly pay fair and adequate compensation or at all to the complainant’s

family for the acquisition of the land. The occupation continued to be an

act of trespass.

In SHAH V U.G and in SSEMPEBWA V A.G, the Courts

constructed a judgment debt as amounting to property in terms of

provisions of the 1967 Constitution with effect that the judgment holder

could not be validly deprived of the same unless the safeguards in the
Constitution were complied with to the letter. Subsequently in the case

A.G V SILVER SPRNGS HOTEL LTD AND ANOR SCCA NO.1 OF

1989, the Supreme Court here affirmed that an injunction whether

temporary or permanent, cannot lie against the government under the laws

of Uganda. The rational is that government machinery should not be

brought to a halt. If the position was otherwise, government would subject

to embarrassment and therefore that this provision was not meant to ensure

that the machinery of government goes on. It also appears that however

that the courts of law have been willing to abandon this position of the

law. The most notable attempt to scrap this immunity from the government

was seen in the case of OSOTRACO LIMITED V A.G; in the instant case,

having found the plaintiff to be the registered proprietor, the court

addressed the issue of whether the plaintiff was entitled to an order of

vacant possession or eviction of the Defendant from its property. The

Government Proceedings Act, Section 15 now 14 (1) (b) prohibited court

from making any order for the recovery of land or property but instead in

such case to make declaratory orders that such person was entitled to such

property. The case went on an appeal as A.G V OSOTRACO LTD CIVIL

APPEAL NO.32OF 2002 and the court of Appeal in revolutionary style

upheld the judge’s orders. The learned Principal State Attorney at that time
during the appeal, pressed Court with the argument that by doing what he

did, the trial judge had ventured into territory which was exclusively to the

constitutional Court. However Justice Mpagi bahigeine leading judgment

said the trial judge was right in his contention that he was not in fact

interpreting the Constitution but simply reading the Government

Proceedings Act to bring it in conformity with the Constitution which

power he had by virtue of Articles 273. In PYRALI ABDUL KASULE

ISMAIL V ADRAIN SIBO, the constitutional Court considered the

payment of compensation for expropriated properties under the

Expropriated Properties Act, 1982 as not satisfying the constitutional

conditions of prompt and Active payment under Article 26 of the

Constitution.

RIGHT TO PRIVACY (ARTICLES 27)

Case law: KING V THERENS, the Canadian Supreme court held that the

entry and search of the accused house without a search warrant was a

violation of his constitutional right to privacy.

RIGHT TO A FAIR TRIAL (ARTICLE 28)

CLAUSE 1: “ In the determination of civil rights and obligations or any

criminal charge, a person shall be entitled to a fair, speedy and public

hearing before an independent and impartial court or tribunal established

by law.”

What Amounts to a Speedy trial?

It must be emphasized that Article 28 must be seen as a whole such

that it is not enough for a trial to be speedy if it is not fair. The Kotido

Field Court Martial executions brought this to limelight. The accused were

tried in less than 3 hours sentenced to death and shortly after executed.

The trial was speedy as provided under the Constitution brought in

contravention of that part of Article 28 that the trial must be fair. The

question then will be: “was a fair trial conducted?”

The requirement of a “public hearing” is intended to ensure that the

public can overseer the dispensation of justice after all it is dispensed in

their name under Article 126. This however does not prejudice court the

right to hold any trial in camera where matters at stake involve national

security, the protection of morals or the protection of the litigants. This

provided for under Article 28(2). An example is in the TINYEFUZA case

of 1997 where the right to information in the hands of the State and the

testimony before a parliament committee and its use in judicial

proceedings before a court was subjected to a hearing in camera.

Similarly, trials in the Family and Children Court are usually heard in
camera where the concerns of a child may be adversely affected by a

public hearing.

An independent tribunal or court implies that the officers of the

court or tribunal should not be the subject of any direction of external

influence of another person or organ. It also means that the judges or

tribunal members must not be biased. Judges as a rule of courtesy should

stand down, each time they realize there would be a likely possibility that

they will be biased. An example was in the trial of the former Chilean

dictator Augustino Pinochet in 1999 wherein a Lord of the House of Lords

in the U.K was pressed to withdraw from the trial because his wife worked

for Amnesty International an Organization that was a forefront of having

dictator tried for his massive crimes against Humanity. In Ugandan court

of Appeal Justice, Stephen Kavuma has always been the victim of this. He

has always been requested to stand down in cases involving contested

political issues against the government. This is because he was a former

minister in the NRM government and many allege that his appointment to

the Bench was a political appointment. In PROFESSOR ISAAC

NEWTON OJOK V U.G, the accused was charged with attempting to

overthrow by arms, however the trial was held not to have been impartial.

CLAUSE 3: Every person charged with a criminal offence shall-

be presumed to be innocent until proved guilty or until that person has

pleaded guilty;”

There is no doubt that the presumption of innocence is the very

core of the right to a fair hearing in criminal proceedings. The point has

been succinctly put be Dickson CJ in Her Majesty the Queen V Oakes

where he stated that ‘the presumption of innocence protects the

fundamental liberty and human dignity of any and every person accused

by the State of a criminal offence. In the instant case the accused was

convicted of possession of a narcotic. Section 8 of the Act stated that

where the court finds an individual in the possession of a narcotic, then it

must be presumed that it was in possession for the purpose of trafficking.

This was in violation of the right to the presumption of innocence. An

individual charged with a criminal offence faces grave social and personal

consequences including potential loss of physical liberty, subjection to

social stigma and ostracism from the community, as well as other social,

psychological and economic harms. In light of the gravity of these

consequences, the presumption of innocence is crucial. The presumption

of innocence confirms our faith in Human kind, fairness and social justice

reflecting the assumption that people are decent and law abiding members

of the community until proved otherwise. In the famous case of

WOOLMIGTON V DPP, were Lord Sankey held that: “....throughout the

wave of the English Criminal law, one golden thread is always to be seen

that is the duty of the prosecution to prove the person’s guilt” Uganda

witnessed a number of laws where the onus was reversed and placed on

the accused. By way of example the following statutes can be mentioned:

The Fire Arms Act, 1970, Section 39(1)

The Penal Code amended in 1984, section 28 on terrorism

CLAUSE 3 (b): “Every person charged with a criminal offence shall be

informed immediately, in a language that the person understands, of the

nature of the offence;”

This right is often interrelated with that in paragraph (f) of being

accorded an interpreter where the individual does not understand the

language used at the trial. This was illustrated in the case of ANDREA V

R (1970) EA 26; the accused was a Mozambican who only understood

Portuguese and his native Mozambican Language. This trial was

conducted in English on Appeal the EACA, held that there had been a

violation of the accuse right to an interpreter during his trial

CLAUSE 3(C): “be given adequate time and facilities for the preparation

of his or her defense;”

Case Law: STATE V VERMAAS; where the South African Constitutional

Court held that the right to be afforded adequate time and facilities for the

preparation of defense includes the right to be granted an adjournment for

the purposes of security the services of a lawyer or the attendance of one’s

advocate.

CLAUSE 3 (d): “be permitted to appear before the court in person or, at

that person’s own expense, by a lawyer of his or her choice;” This goes

hand in hand with paragraph (e). Also in MUYIMBA AND OTHERS V

UGANDA, The hearing of the trial was in Masaka and the accused lawyer

who was in Kampala was informed in the morning of the day of the trial

and could not make it to Court in time. The trial Magistrate refused to

adjourn the case when Muyimba asked for an adjournment. This was held

to be a violation of the accused right to legal representation.

The right to adequate time and facilities for preparation of one’s

legal defense has been considered to include the right to seek for an

adjournment as illustrated in the case of KATARYEBA ZACKARY V

UGANDA, where the lawyer of the accused abandon the case and they

applied for an adjournment to obtain the services of another lawyer which

was refused by the trial Magistrate. The High Court however held that the

refusal to grant adjournment amounted to a violation of the right to legal

representation as stated in Article 28 3 (c).

 The provision of clause 3(d) was tested in the case of ESAU

NAMANDA & ORS V UG. The 5 accused were charged with

intermediary with the property of the deceased person. On the first day of

the trial only one of the accused was produced in court and when the

charge was read to him, he pleaded guilty. This was taken as the plea of

guilt for the rest who were absent. The 4 appealed on their conviction. The

high court held that in convicting the 4 appellant was a violation of the

right of the individual to be tried in his presence.

CLAUSE (5): “except with his or her consent, the trial of any person shall

not take place in the absence of that person unless the person so conducts

himself or herself as to render the continuance of the proceedings in the

presence of that person impracticable and the court makes an order for the

person to be removed and the trial to proceed in the absence of that

person.”

CALUSE (6): A person tried for any criminal offence, or any person

authorized by him or her, shall, after the judgment in respect of that

offence, be entitled to a copy of the proceedings upon payment of a fee

prescribed by law.

CLAUSE (7) No person shall be charged with or convicted of a criminal

offence which is founded on an act or omission that did not at the time it
took place constitute a criminal offence.

CLAUSE (8) No penalty shall be imposed for a criminal offence that is

severer in degree or description than the maximum penalty that could have

been imposed for that offence at the time when it was committed.

CLAUSE (9) A person who shows that he or she has been tried by a

competent court for a criminal offence and convicted or acquitted of that

offence shall not again be tried for the offence or for any other criminal

offence of which he or she could have been convicted at the trial for that

offence, except upon the order of a superior court in the course of appeal

or review proceedings relating to the conviction or acquittal.

CLAUSE (10) No person shall be tried for a criminal offence if the person

shows that he or she has been pardoned in respect of that offence.

CLAUSE (11): Where a person is being tried for a criminal offence,

neither the person nor the spouse of that person shall be compelled to give

evidence against that person.

CLAUSE (12) Except for contempt of court, no person shall be convicted

of a criminal offence unless the offence is defined and the penalty for it

prescribed by law