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By Moses Sserwanga
Government should be
saluted for being steadfast in increasing the number of judicial officers to meet the high demand
for justice within the population .
However, as number
of judicial officers increases at all levels -there has also been a marked
rise in cases of conflicts between Magistrates / judges and Advocates- who
are also (officers of court) –in the management and determination of cases.
In this two part series,
about this intricate relationship between judicial officers (the bench) and
Advocates (the bar)- its prudent to remind us about the legal responsibilities
and professional conduct expected of either party in the dispensation of
justice and upholding the rule of law in Uganda.
And we shall in this
particular article deal with the case of judicial officers at all levels.
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Chief Justice emeritus,
Benjamin Odoki, in his book Judicial Conduct and Practice, has stated that
the most important single quality required of a judge is that he must be a
personal of unquestionable probity. For a judge or any other judicial officer
a reputation for honesty is as important as honesty itself.
Therefore, the assumption of a judicial office casts upon the incumbent
certain obligations in respect of his personal conduct which concern his
relations with the State and its inhabitants; the litigants, the
practitioners of law in his court, the witnesses and the officers and
attendants who assist him in the administration of justice.
That’s why the old legal maxim (principle) that man shall not be a judge in
his own cause is one of the heralded tenets of judicial conduct and practice.
This is because there cannot be a fair trial where the magistrate or judge
has an interest in a case, which is due for his determination.
The spirit of these
English legal principles are also captured by our constitution which
expressly provides in Article 15(1) that a person accused of an offence must
be afforded a fair hearing by an independent and impartial court.
These principles are very strictly applied and the smallest legal or
pecuniary interest will disqualify a judicial officer (judge or magistrate)
from adjudicating in matter or case before the court. If there is such an
interest then it’s incumbent upon such a judicial officer to declare such
interest and decline jurisdiction.
A judge should also disqualify himself if he has any substantial pecuniary
relation with a party, even if that relation is not directly at issue in the
case. This is the reason why courts of law have stated that where there is a
real likelihood that a judge would, from kindred or any other cause have a
bias in favour of one of the parties, it would be very wrong for him to act.
The other important
matter which has to be known when issues of bias come afore is where the
possible interest or bias is not pecuniary. At what stage should a judge or
magistrate disqualify himself?
The courts have held that it is a question of degree that is, whether the
position or relationship between a judge and party involved in the case is
such that it gives rise to a reasonable suspicion of bias in reasonable
minds.
Although its not
possible say, for a magistrate to disqualify himself from trying all members
of his clan, it would at the same time be very unwise of him/her to try a
case involving a friend.
Justice Odoki has further stated that a judge or magistrate should not accept
gifts and or favours from litigants and advocates appearing before him. He
must discourage corruption and bribery as practices, which compromise the
fair and proper administration of justice.
Of course, there are
arguments that the paltry pay offered to judges, magistrates, and prosecutors
is one of the factors that has led to the increasing cases of alleged
corruption in the judiciary.
This imbalance in the salary structures, which are far below those offered in
donor -funded jobs, for instance, needs the urgent attention of government.
However, this does not vacate the need for independence and impartiality of a
magistrate or judge, which requires him to observe a strict code of conduct
in private and public life.
He should not be swayed by partisan demands, public clamour or considerations
of personal popularity or gain. And because of the high office they hold,
judges are also expected to be choosy when they are out for social
intercourse.
They (judges) are expected to avoid such relations or contacts which might be
taken or tend to raise suspicion that their social or business relations or
friends influence their judicial conduct or lower their image before the
public.
And the sacred nature of judicial conduct could not have been captured any
better than the words of Lord Devlin; “ there is another factor to be
considered and that is the courts’ duty to conduct their proceedings so as to
command the respect and confidence of the public.
The court of law is a temple of justice; and the advocate at the bar as well
as the judge at the bench is equally a minister in the temple. The object of
all equally should be the attainment of justice. So, how are errant judges or
magistrates dealt with under our justice system?
The provisions of Article 144 of the constitution of Uganda come in handy. A
judicial officer who are, the Chief Justice, deputy Chief Justice, the
Principal judge, a justice of the supreme court, a justice of Appeal or a
judge of the High Court can only be removed by the president if the question
of his or her removal has been referred to a tribunal for either misbehavior
or misconduct, incompetence or inability to perform duties due to infirmity
of body or mind.
The removal however has to be in accordance with the provisions of articles
28 and 42 among others, which provide for a right to a fair hearing and a
right to just and fair treatment in administrative decisions.
It should also be noted that other than removing errant judges and
magistrates from office, the judiciary has instituted a couple of
administrative measures to guard against professional misconduct and out
right corruption.
According to the Chief Registrar of Courts of Judicature, in one of the
interactions between members of the
bar and the bench has articulated that one of such measures are the peer
committees, which have been set up at all, levels in the judiciary to be on a
look-out for the wrongdoers.
The Judicial Service
Commission and the Office of the Chief
Registrar have also been equally empowered by various legal instruments to
deal with errant judicial officers.
The writer is a journalist and advocate
msserwanga@gmail.com
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