A learned friend With a historical perspective
Speaking recently at a function to commission an HIV/Aids resource centre at Lomino village in Busia District, Justice James Ogoola went ballistic about the moral condition of our country and pricked the conscience of many when he declared that the country is â€œdrifting along blissfully but aimlessly and dangerously in uncharted watersâ€.
Although it remains to be seen whether the country is heading to our inevitable shipwreck as claimed by the judge, Ogoolaâ€™s remarks should serve as a clarion call to us to change course from the lumpen ways we acquired during the long years of banana when peopleâ€™s behaviour had no borders.
This change of morals can be achieved if a few people could come forward and expose the corruption which Ogoola was talking about especially when it occurs in their field of work. In his role as principal judge heading the High Court, Ogoola should start turning things round in his own judiciary where he is more likely to be effective.
Unfortunately, the impression has been created that there is no desire to rock the boat on the part of the people who are supposed to put it in action disciplinary measures in the judiciary.
Generally, though the higher echelons of the judiciary has been free of corruption. During its long history, only five judges have resigned from the bench and only one did so on account of corruption.
This judge took â€˜envelopesâ€™ from both the plaintiff and the defendant and to save himself he gave a judgement which was noncommittal and resigned after his crime became known.
To reassure the public, a system should be put in place for detecting such conduct and to punish the culprit once caught. The spate of commissions of inquiry into various malpractices by public officials is testimony to the debauchery in our society but quite unfortunately the introduction of the TV cameras to record proceedings of these commissions has added a new dimension in our administration of justice.
On many occasions witnesses have been made to appear on TV as criminals before they are officially found guilty. This does not happen in our ordinary courts of law.
In the administration of justice there is a principle known as procedural justice which means that there must be fairness in the way information is gathered from witnesses and decisions made.
Watching the proceedings of these commissions on TV one gets the idea that procedural justice has been thrown to the wind and that these commissions are becoming more and more inquisitorial where people are condemned before the eyes of the public in a summary manner.
This is made worse because the TV cameras encourage the public to take part in this premature condemnation. Under our system of law, a person is presumed innocent until proved guilty.
A commission of inquiry is not a court of law but a fact-finding body with its power limited to making recommendations to the appointing authority. But even the appointing authority does not have the power to condemn and punish.
The suspect under any recommendation is referred to a court of law. This is how the rule of law works in a democracy.
It is against this background that the request by the chairman of the Global Fund Commission to Maj. Gen. Jim Muhwezi to look in the camera and apologise for his misdeeds was highly irregular.
Muhwezi was not on trial before the commission and there is no evidence that the commission as a whole had already found him guilty of any misdeed. Above all, there was no direct evidence to show that the minister had put his fingers in the till of the Global Fund.
This is not the way to skin a cat. When the public starts to judge a man guilty because of what they saw on TV it becomes the law of the jungle and this is exactly what was meted out on to Captain Michael Mukula who is now perceived by all and sundry to have acquired his wealth from the Global Fund.
I recall being instructed by a certain European embassy to draw up a tenancy agreement for Mukulaâ€™s house at Bugolobi which they were renting at a price which would blind his detractors and this was way back in the late 80s.
Need I say more? One dictionary meaning of the word â€œcorruptâ€ is â€œdeteriorated from the normal or standard; â€¦â€¦â€¦â€¦â€¦.â€ which means that to be corrupt one does not necessarily have to take bribes so long as there is a deviation from the set standard.
Since one of the standards set for judges by the constitution is not to delay justice, any judge who is tardy in delivering his judgements unwittingly gets caught up within the loop of the corrupt, not in the sense of taking bribes but because he deviates from the set standard expected of him.
The standard of conduct of judges is laid down in the constitution where it is provided that â€œIn adjudicating cases of both civil and criminal nature the courts shall, subject to the law, apply the following principles:
lJustice shall be done to all irrespective of their social or economic status;
lJustice shall not be delayed;
lAdequate compensation shall be awarded to victims of wrongs;
lSubstantive justice shall be administered without undue regard to technicalitiesâ€.
The case involving the estate of the late Mackay Albert Kalula Mukasa illustrates the injury which results when justice is delayed. Mukasa died in September 2004 in poor mental health. At the time of his death, unscrupulous people from the Presidentâ€™s Office had taken hold of his 54 title deeds and were selling off his land using forged signatures at great profit to themselves.
The case file in court by members of Mukasaâ€™s family to redeem the situation is still meandering in court six months after the hearing of the case was concluded and there is no end in sight!
Meanwhile, the fraudsters are continuing to transfer the land using forged signatures of the deceased and important people, including a wife of a judge, have become the beneficiaries of the estate.
These people are likely to lose their investments when the case is finally concluded because only administrators or executors appointed by court can transfer the deceasedâ€™s property after his death.
By the time judgement is delivered, there will not be any estate to administer. It is the incidence of such cases that have contributed to the poor image of the judiciary because the injured litigants end up by wrongly concluding that the other party took an upperhand over the judge.
It is for this reason that Justice Ogoola must work hard to ensure timely delivery of judgements in order to restore the dignity of our judiciary and the good image of our judges.
A commission of inquiry does