Judges will remain professional
Jan 28, 2003
Supreme Court Judge G. W. Kanyeihamba has lately been on foreign missions in Swaziland and Kenya as an expert on the Judiciary.
Supreme Court Judge G. W. Kanyeihamba has lately been on foreign missions in Swaziland and Kenya as an expert on the Judiciary. Okello Jabweli talked to him. Below are excerpts.
QUESTION: My lord you have just returned from Swaziland. What was your mission there?
Answer: There is a crisis in Swaziland because there is a conflict between the executive and the judiciary. Basically, there is a breakdown of the rule of law and a threat to the independence of the judiciary. This situation became a concern to the international community. Consequently, the International Commission for Jurists (ICJ) invited me to lead a fact-finding mission to establish if there was indeed a threat to the independence of the Judiciary and to make recommendations.
What did you find when you arrived there?
We found that there was indeed a crisis in the government system. The prime minister in the name of the government had issued a statement that government would not honour or enforce certain judgments passed by the judiciary. Following his statement, the whole of the bench resigned enmass saying they would not resume work until the PM withdrew his statement and offered his unconditional apology.
That is quite a serious situation. Would you like to tell the readers a little about the background to that crisis?
A number of factors have been at play. Traditionally, of course the king is an absolute monarchy and a number of things are done in his name. Sometimes he takes a decision, sometimes the PM takes the decision and says it is the king. So, really in Swaziland no body knows who has taken what decision. At the same time the Swazi have unconditional loyalty to their king. They love him and obey all laws perceived to be emanating from him. The Swazi society is now split between two: The traditionalists who will never question anything and the modernists who believe it is a group of traditionalists around the king who have usurped his powers and are issuing edicts tricking the population that it is the king’s orders.
That background is good but quite general. There surely must have been some court judgments that angered the Executive.
The first case involved interpretation of the constitution vis-à -vis the previous king’s edicts or decrees. The previous king had repealed most of the Constitution passed by Parliament by decree. The Court said the king had no powers to issue decrees when Parliament was in place. Case number two involved a village where the government in the name of the King seemingly appointed and imposed a chief whom the population did not want and gave him large tracts of communal land. The locals challenged him saying they wanted their own chief not an imposed one. They lodged a case which ended up in the Court of Appeal. Court ruled that government had no power to impose chiefs on the population.
The third problem was when the King took the 11th or 12th wife. According to Swazi culture of course the King can take as many wives as he wishes. Normally there is a ritual where girls come to dance for him and he chooses one. But this has to be done customarily. When he chooses a girl he has to go to her parents to seek their consent. In this case he just picked a girl who was about 18 from school and took her to his palace. The mother of the girl challenged the King’s move saying it was unconstitutional and against the Bill of rights for the king to marry a schoolgirl. The case went to the High Court and before it could be finalised, a crisis arose.
How did the entire thing unfold?
The Prime Minister issued a statement saying Government would not honour or enforce Court judgments. The Attorney General went to the Chief Justice and said the case of the woman should not be heard by the High Court saying it conflicted with Swazi culture. The Chief Justice said, you can’t stop us hearing any case. When the CJ said that the Ag said, if you insist on hearing the case I advise you to go to the king and if I were in your place I would go with my letter of resignation. The CJ retorted that this was contempt of Court. He promptly informed the DPP. The DPP then issued an arrest warrant for the AG for being in contempt of Court. The Police, according to the DPP refused to execute his warrant of arrest. However later the AG also issued a warrant of arrest for the DPP. The DPP had previously knocked a child dead in an accident. The AG grabbed this moment to issue an arrest warrant against the DPP for reckless driving. By the time I left the DPP had also indicated that he was going to resign. By the way the DPP is a Kenyan.
Did you have opportunity to meet the King?
No, we did not because he was on a traditional retreat. We were told that there is nobody who can see him when he is on retreat. He is almost a mystery.
When we got there by sheer coincidence, we found the International Bar Association (IBA) were also there. We joined hands and were interviewing all these people together though we shall be issuing different reports.
Is your report ready and will you publish it?
No, we are still working on it. Maybe in another month or so it should be ready.
But one thing I can say is that there is no way things are going to go on as usual and the country remains stable. You can be sure of that. The interesting thing is that government itself is divided.
There is increasing pressure on the Ugandan Judiciary to clean up its act. The President has repeatedly warned that he is going to institute an inquiry to probe the judiciary.
Certainly, it is clear that there may be some magistrates who are corrupt. We’ve also had rumours that one or two judges are corrupt. Our Constitution is very clear on the matter though. It states that when you have questions about a Judge you appoint a tribunal to look into that Judge. Government could do that if it has a grievance against any judge.
The President repeatedly voiced his frustration with the judiciary. Government feels that the judiciary is favouring the opposition.
That is not true. judges really (and I have been there six years now) are not concerned about institutions or personalities. They act according to the law as passed by parliament and accepted by Government. Take the present bench. Most of us were appointed by the Movement Government. Some of us were even ministers, and in my case, movement sympathisers. Yes, I was, but once I was appointed a Judge, I had to act impartially. In every judicial system government wins some cases and loses some. It would not be proper to say that either the government or ordinary citizens should lose all the time. It all depends on the facts and circumstances of the cases.
So, there is no policy that government should win all cases or citizens should lose all cases. We administer our job according to our oaths and the laws.
So what do you make of allegations that the judiciary is biased and that some of you play politics on the bench?
No, I don’t think there is much substance in those claims. I can cite a few examples. In the Tinyefuza case the government won and hailed us as progressive judges. In the Ssemogerere case government lost and castigated us as anti-movement, pro-opposition and so on.
Conversely, in the Tinyefuza case, the opposition said ‘what did you expect of Museveni judges’ while after winning, Ssemogerere said he had regained confidence in the judiciary. So really, it is not possible to satisfy everybody all the time. The Constitution and the different laws are our guide. We are not playing politics. Of course our decisions have political consequences, like someone losing a seat.
Our work is to interpret the law and the Constitution.
What do you say to those who are concerned that the constant Executive bashing is likely to scare the judiciary into giving compromised judgments. Do you sense some fear among your colleagues?
No, not at all. The mood is one of professionalism. Well, I don’t know about the High Court because as you know it is vast. But at the Court of Appeal and the Supreme Court where I am a member, we’ve never wavered. We were appointed to serve without fear or favour and we’ll continue to do so. We have on the bench very courageous and very dedicated Judges who won’t succumb to threats. So we have no fear at all.
Your lordship there is an on-going concern that Judges are dodging PAYE tax. Why don’t you people want to pay tax like all the other Ugandans?
Yes, the impression has been created that judges are evading taxes. What people don’t know is that there is a constitutional provision which says judges’ benefits and emoluments shall not be altered to their disadvantage. That is a constitutional provision.
If that is the case, why is the Auditor General and the Public Accounts committee still following up this matter.
You see even before the constitution, the NRM government through a Cabinet decision had exempted judges from paying taxes. The Attorney General has written to the ministry of Finance stating that judges are not liable to paying taxes. That document is well known to PAC which I gather is still clamouring that judges should pay taxes. Personally I have no problem with paying taxes. The issue is that whoever wants judges to pay taxes should first amend the Constitution. Now do you think that would be wise?
Maybe the public would like to know why judges are exempt from paying taxes while ordinary people are paying.
A number of things. Currently, ministers and Mps can do business, lawyers have chambers etc while judges cannot do business. That is not to say one cannot be a silent shareholder. The fact of the matter as things stand now is that we are prohibited from running companies and so on.
The purpose is to safeguard the independence of the Judiciary. The second thing is that Judges should be satisfied with their remuneration so that they are not tempted to accept bribes. To ensure this you give them reasonable remuneration and you don’t tax it.
The third one relates to the numbers involved. How many Judges do you have in Uganda compared to say civil servants and so on. I guess less than 100. I earn sh2.8m. How much PAYE can you get from that? Is it substantial enough to warrant jeopardising the independence of the Judiciary? So why don’t we emphasise the independence of the judiciary even if that should mean exempting judges from paying taxes.
But some people, for instance doctors, would also call for similar treatment. Where would you stop?
My friend, judges fulfill a very special responsibility in society. It is not very easy to sentence Okello to death. It is not very easy to rule in a dispute of sh16b impartially. Really, what is the state prepared to forego?
Do you foresee the Swazi kind of situation developing here between the Executive and the Judiciary.
Probably what I didn’t tell you is that I am chairman of the Judicial Review Committee and we shall be making our recommendations to the Ssempebwa Constitutional Review Commission. What happens if there is a conflict between the people and the government?
What happens in a situation where the people through Parliament say this and the president says the other. The proposal being floated is that the President should dissolve parliament. Our proposal is that you have fresh elections called by the Speaker of parliament. The other thing that intrigues and on which my committee will make a recommendation is on the fate of an Mp who breaks the law.
Currently an Mp who is disqualified for committing electoral offenses is free to contest and most actually win again. That is cheating. I think Courts should have power to say you’ve breached the law you should be barred for five years or even 10 depending on the nature of the offence. It is absurd to say somebody cheated but is allowed to go back to stand in the by-election. We should allow the Courts to disqualify somebody for a period of time.
QUESTION: My lord you have just returned from Swaziland. What was your mission there?
Answer: There is a crisis in Swaziland because there is a conflict between the executive and the judiciary. Basically, there is a breakdown of the rule of law and a threat to the independence of the judiciary. This situation became a concern to the international community. Consequently, the International Commission for Jurists (ICJ) invited me to lead a fact-finding mission to establish if there was indeed a threat to the independence of the Judiciary and to make recommendations.
What did you find when you arrived there?
We found that there was indeed a crisis in the government system. The prime minister in the name of the government had issued a statement that government would not honour or enforce certain judgments passed by the judiciary. Following his statement, the whole of the bench resigned enmass saying they would not resume work until the PM withdrew his statement and offered his unconditional apology.
That is quite a serious situation. Would you like to tell the readers a little about the background to that crisis?
A number of factors have been at play. Traditionally, of course the king is an absolute monarchy and a number of things are done in his name. Sometimes he takes a decision, sometimes the PM takes the decision and says it is the king. So, really in Swaziland no body knows who has taken what decision. At the same time the Swazi have unconditional loyalty to their king. They love him and obey all laws perceived to be emanating from him. The Swazi society is now split between two: The traditionalists who will never question anything and the modernists who believe it is a group of traditionalists around the king who have usurped his powers and are issuing edicts tricking the population that it is the king’s orders.
That background is good but quite general. There surely must have been some court judgments that angered the Executive.
The first case involved interpretation of the constitution vis-à -vis the previous king’s edicts or decrees. The previous king had repealed most of the Constitution passed by Parliament by decree. The Court said the king had no powers to issue decrees when Parliament was in place. Case number two involved a village where the government in the name of the King seemingly appointed and imposed a chief whom the population did not want and gave him large tracts of communal land. The locals challenged him saying they wanted their own chief not an imposed one. They lodged a case which ended up in the Court of Appeal. Court ruled that government had no power to impose chiefs on the population.
The third problem was when the King took the 11th or 12th wife. According to Swazi culture of course the King can take as many wives as he wishes. Normally there is a ritual where girls come to dance for him and he chooses one. But this has to be done customarily. When he chooses a girl he has to go to her parents to seek their consent. In this case he just picked a girl who was about 18 from school and took her to his palace. The mother of the girl challenged the King’s move saying it was unconstitutional and against the Bill of rights for the king to marry a schoolgirl. The case went to the High Court and before it could be finalised, a crisis arose.
How did the entire thing unfold?
The Prime Minister issued a statement saying Government would not honour or enforce Court judgments. The Attorney General went to the Chief Justice and said the case of the woman should not be heard by the High Court saying it conflicted with Swazi culture. The Chief Justice said, you can’t stop us hearing any case. When the CJ said that the Ag said, if you insist on hearing the case I advise you to go to the king and if I were in your place I would go with my letter of resignation. The CJ retorted that this was contempt of Court. He promptly informed the DPP. The DPP then issued an arrest warrant for the AG for being in contempt of Court. The Police, according to the DPP refused to execute his warrant of arrest. However later the AG also issued a warrant of arrest for the DPP. The DPP had previously knocked a child dead in an accident. The AG grabbed this moment to issue an arrest warrant against the DPP for reckless driving. By the time I left the DPP had also indicated that he was going to resign. By the way the DPP is a Kenyan.
Did you have opportunity to meet the King?
No, we did not because he was on a traditional retreat. We were told that there is nobody who can see him when he is on retreat. He is almost a mystery.
When we got there by sheer coincidence, we found the International Bar Association (IBA) were also there. We joined hands and were interviewing all these people together though we shall be issuing different reports.
Is your report ready and will you publish it?
No, we are still working on it. Maybe in another month or so it should be ready.
But one thing I can say is that there is no way things are going to go on as usual and the country remains stable. You can be sure of that. The interesting thing is that government itself is divided.
There is increasing pressure on the Ugandan Judiciary to clean up its act. The President has repeatedly warned that he is going to institute an inquiry to probe the judiciary.
Certainly, it is clear that there may be some magistrates who are corrupt. We’ve also had rumours that one or two judges are corrupt. Our Constitution is very clear on the matter though. It states that when you have questions about a Judge you appoint a tribunal to look into that Judge. Government could do that if it has a grievance against any judge.
The President repeatedly voiced his frustration with the judiciary. Government feels that the judiciary is favouring the opposition.
That is not true. judges really (and I have been there six years now) are not concerned about institutions or personalities. They act according to the law as passed by parliament and accepted by Government. Take the present bench. Most of us were appointed by the Movement Government. Some of us were even ministers, and in my case, movement sympathisers. Yes, I was, but once I was appointed a Judge, I had to act impartially. In every judicial system government wins some cases and loses some. It would not be proper to say that either the government or ordinary citizens should lose all the time. It all depends on the facts and circumstances of the cases.
So, there is no policy that government should win all cases or citizens should lose all cases. We administer our job according to our oaths and the laws.
So what do you make of allegations that the judiciary is biased and that some of you play politics on the bench?
No, I don’t think there is much substance in those claims. I can cite a few examples. In the Tinyefuza case the government won and hailed us as progressive judges. In the Ssemogerere case government lost and castigated us as anti-movement, pro-opposition and so on.
Conversely, in the Tinyefuza case, the opposition said ‘what did you expect of Museveni judges’ while after winning, Ssemogerere said he had regained confidence in the judiciary. So really, it is not possible to satisfy everybody all the time. The Constitution and the different laws are our guide. We are not playing politics. Of course our decisions have political consequences, like someone losing a seat.
Our work is to interpret the law and the Constitution.
What do you say to those who are concerned that the constant Executive bashing is likely to scare the judiciary into giving compromised judgments. Do you sense some fear among your colleagues?
No, not at all. The mood is one of professionalism. Well, I don’t know about the High Court because as you know it is vast. But at the Court of Appeal and the Supreme Court where I am a member, we’ve never wavered. We were appointed to serve without fear or favour and we’ll continue to do so. We have on the bench very courageous and very dedicated Judges who won’t succumb to threats. So we have no fear at all.
Your lordship there is an on-going concern that Judges are dodging PAYE tax. Why don’t you people want to pay tax like all the other Ugandans?
Yes, the impression has been created that judges are evading taxes. What people don’t know is that there is a constitutional provision which says judges’ benefits and emoluments shall not be altered to their disadvantage. That is a constitutional provision.
If that is the case, why is the Auditor General and the Public Accounts committee still following up this matter.
You see even before the constitution, the NRM government through a Cabinet decision had exempted judges from paying taxes. The Attorney General has written to the ministry of Finance stating that judges are not liable to paying taxes. That document is well known to PAC which I gather is still clamouring that judges should pay taxes. Personally I have no problem with paying taxes. The issue is that whoever wants judges to pay taxes should first amend the Constitution. Now do you think that would be wise?
Maybe the public would like to know why judges are exempt from paying taxes while ordinary people are paying.
A number of things. Currently, ministers and Mps can do business, lawyers have chambers etc while judges cannot do business. That is not to say one cannot be a silent shareholder. The fact of the matter as things stand now is that we are prohibited from running companies and so on.
The purpose is to safeguard the independence of the Judiciary. The second thing is that Judges should be satisfied with their remuneration so that they are not tempted to accept bribes. To ensure this you give them reasonable remuneration and you don’t tax it.
The third one relates to the numbers involved. How many Judges do you have in Uganda compared to say civil servants and so on. I guess less than 100. I earn sh2.8m. How much PAYE can you get from that? Is it substantial enough to warrant jeopardising the independence of the Judiciary? So why don’t we emphasise the independence of the judiciary even if that should mean exempting judges from paying taxes.
But some people, for instance doctors, would also call for similar treatment. Where would you stop?
My friend, judges fulfill a very special responsibility in society. It is not very easy to sentence Okello to death. It is not very easy to rule in a dispute of sh16b impartially. Really, what is the state prepared to forego?
Do you foresee the Swazi kind of situation developing here between the Executive and the Judiciary.
Probably what I didn’t tell you is that I am chairman of the Judicial Review Committee and we shall be making our recommendations to the Ssempebwa Constitutional Review Commission. What happens if there is a conflict between the people and the government?
What happens in a situation where the people through Parliament say this and the president says the other. The proposal being floated is that the President should dissolve parliament. Our proposal is that you have fresh elections called by the Speaker of parliament. The other thing that intrigues and on which my committee will make a recommendation is on the fate of an Mp who breaks the law.
Currently an Mp who is disqualified for committing electoral offenses is free to contest and most actually win again. That is cheating. I think Courts should have power to say you’ve breached the law you should be barred for five years or even 10 depending on the nature of the offence. It is absurd to say somebody cheated but is allowed to go back to stand in the by-election. We should allow the Courts to disqualify somebody for a period of time.