To begin with, at the philosophical level, we don’t have a judicially in Uganda that is contemplated under Article 126(1). What we have is a trespasser masquerading as a people’s arm of government.
Before I delve into the merits of this issue, I would like to highlight the commentary of Mokgoro J on Ubuntu Philosophy in his judgment vide S V. Makwanyane & Anor 1995 (3) SA 391 (CC) 484
“…generally, Ubuntu translates as humanness in its most fundamental sense, it translates as personhood and morality. Metaphorically, it expresses itself in Ubuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities while it envelops the key values of group solidarity, compassion, respect, human dignity, and conformity to basic norms and collective unity. In its fundamental sense, it denotes humanity and morality. In South Africa, Ubuntu has become a notion with particular resonance in building a democracy…”
Article 146(2)(c) of the constitution provides that the Judicial Service Commission shall subject to clause (3) of this article consist of two Advocates of not less than fifteen years standing nominated by the Uganda Law Society. The same is reflected in Section 15 of the Uganda Law Society Act Cap. 305 and Regulation 13 of the Uganda Law Society (Elections) Regulations, 2016. This position was affirmed in Kalali Steven V. Uganda Law Society Misc. Cause No. 129 of 2023.
To this end, members of the Uganda Law Society will head to the polls on the 17th day of December 2024 to elect their representatives in the judicial service commission and Prof. Mukiibi an ardent supporter of the Radical New Bar (RNB) is one of the contestants.
Among others, the functions of the Judicial Service Commission under Article 147 of the constitution include; 1. To review and make recommendations on terms and conditions of judges and other judicial officers 2. To prepare and implement programs for the education of and for dissemination of information to judicial officers and the public on law and the administration of justice. This provision ought to be read together with Article 126(1) and (2).
Article 126(1) provides that judicial power is derived from the people and shall be exercised by the courts established under this constitution in the name of the people and in conformity with law and the values and norms and aspirations of the people. This provision introduces us to the concept of decolonization as put by Ssemakadde and his student Prof. Mukiibi.
In interrogating this provision, we must ask ourselves the following; Who are the people that are referred to in the said provision? Does the judicial system recognize Ugandans as people in the process of adjudicating cases? Does the judicially exist? If so whose philosophy does it reflect in its decisions? I humbly opine that the judicially does not yet exist as contemplated in the above provision. It is Ssemakadde and his students like Prof. Mukiibi who are trying to emancipate this provision in a bid to establish it.
What we have is a trespasser and young lawyers ought to take this seriously. As long as the judicially we have does not reflect Ubuntu jurisprudence, it retains the status of a trespasser in so far as it does not reflect the judicially contemplated under the constitution.
Article 126(2) provides that in adjudicating cases of both civil and criminal nature, the courts shall, subject to the law, apply the following principles;
- Justice shall be done to all irrespective of their social or economic status;
- Justice shall not be delayed;
- Adequate compensation shall be awarded to victims of wrongs;
- Reconciliation between parties shall be promoted;
- Substantive justice shall be administered without undue regard to technicalities.
This provision enjoins the judicially to contemplate Ubuntu rationality in adjudicating cases but let us face it. How many judicial officers and lawyers have the stamina to face this provision? Lawyers who pass LDC by cheating, judicial officers who access the said positions through GAMBA NOGU theory, and now the normalized theory of connection is better than hard work. Do they have the charisma to administer justice? Do we still appreciate the intimacy reflected in this noble word called justice? How can a judicial officer who accessed a position by default administer justice? I humbly opine that a judicially that has not canvassed Ubuntu philosophy will easily stumble in the face of corruption. Education is the introduction to the totality of reality and that is why Ubuntu rationality dictates that before judicial officers are taught how to make decisions they ought to be taught why they make the said decisions and who they make them for. We insist that the said decisions must reflect a people’s jurisprudence vide Ubuntu Jurisprudence in so far as this is a constitutional command.
The constitution whispers to us that judicial officers must be conscious and Ubuntu elements such as love, justice, freedom, knowledge, and truth must be the immediate implications of this self-consciousness. The foregoing connotes that Ubuntu rationality ought to guide judicial officers in the process of decision making otherwise we shall have a judicially that sets a useless jurisprudence. Ubuntu philosophy contemplates that the problem that the judicial officer faces today is not limited knowledge of the law but how to adhere to justice and how to become aware of justice. A gamba nogu judicial officer does not know justice and cannot adhere to the same because the process of his being is faulty. This is the fundamental revolution that Ssemakadde and Prof. Mukiibi are whispering to us. Hence “Appointment of judicial officers should be premised on merit and consciousness of the aforementioned constitutional calling”. The philosophical malady that the judicially suffers has denied society a taste of justice hence the necessity of a revolution.
Article 126(2)(d) provides that the judicially shall while adjudicating cases apply principles of reconciliation between parties but as we speak we have a member of the Supreme Court bench that recently freed the country on grounds of harassment from fellow members on the bench. Isn’t it surely fascinating to expect such a bench to promote reconciliation between litigants? As long as we have what Prof. Mukiibi calls sitting tenants in the “judicially” then we should forget talking about judicial independence under Article 128.
We have lawyers who have concentrated on the statement of Ssemakadde about the Director of Public Prosecutions instead of the object of the same. We all know that even the DPP herself knows that Ssemakadde has nothing personal against her and his statement meets her only in the realm of a public officer and to this end the said speech is protected under Articles 29 and 38 of the constitution. We have senior lawyers concentrating on the peripheries instead of objectively interrogating what Ssemakadde is addressing such as the trial of civilians in military courts whereas there is a subsisting constitutional court order against the same.
It is only by voting students of Ssemakadde like Prof. Mukiibi to represent the mandate of the people to wit; decolonization, timely adjudication of cases by judicial officers and meritocracy in the appointment and promotion of judicial officers that the judicially contemplated under Article 126(1) shall be established.
BREAKING THE CHAINS!!!!!
By Kamurinde John
Author and Student of Ubuntu Jurisprudence.
LBB (Hons) Dip L.P (LDC)
@RwentoboKing
Tel-0706027043(WhatsApp)
