On Tuesday, Nation Media Group-Uganda (NMG-U) caught up with the recently-appointed Chief Justice (CJ), Alfonse Owiny-Dollo, and interviewed him on a number of pertinent issues affecting the delivery of justice in the country and also about his six-year tenure that lies ahead of him as the head of the Judiciary. Our reporters Anthony Wesaka, Derrick Kiyonga & Raymond Mujuni bring you the excerpts below;
Your lordship, you have been in office for about three months now, what is that one thing you want to see and be proud of when you finally retire?
CJ: When I retire, I want to look back and say my contribution to the Ugandan Judiciary was improvement on enhancement of access to justice.
First, the physical like what the government has done with local governments, you find the government down up to the sub-county [level] with access to safe water. In 1994, when I stood for the Constituent Assembly, there are places in my area where in the dry season, women would go in the evening at 5pm and come back at the cock's crow. This was because the only 'safe water' [points] would have a convergence of so many women. When I retire, I will be happy if every district has a magistrate Grade One, if every two districts which are heavily populated, have two Chief Magistrates. If every region, and I will take my region of Acholi Sub-region, from one end of my sub-region to Gulu, where there is a High Court, it is like travelling from here (in Kampala) to beyond Tororo [about 202km] to get a High Court judge.
I will be happy if I reduce the distance of accessing a High Court.
Chief Justice, your predecessor had similar dreams, how will you achieve that?
CJ: The drive I am going to take is to pursue the Executive, Parliament with focus and persistent bargain from me and my colleagues from the Judiciary. For a long time, the Judiciary was a department in the Ministry of Justice. That was unfortunate and this was in contravention of the Constitution, which clearly states that the Judiciary, Executive and Parliament, are separate and at par arms of government.
It is only now that with the enactment of the Administration of the Judiciary Act that this is changing. My task is now easy, as I will pursue the Executive, Parliament that the Judiciary is not a consumer entity but a reproductive institution both socially and economically.
Socially, without the Judiciary, you can't have a decent country and a strong law enforcement if after five years, the people go back to the mases, and you can't go to court and justice is served because people take the law into their hands and you know what that means.
Two, the Judiciary contributes massively to the economic development. Like I have said before, Shs3 trillion is locked up in the Commercial Division of the High Court. The Commercial Division is here in Kampala, meaning if you include commercial cases in other areas including Jinja, Arua, Mbarara, Mbale, Masaka, Fort portal and Masindi, I don't know how much money it is. All this is locked up because the number of judges is not enough.
So my first battle is to open the minds of those who have the powers to act and make a difference that if you want to unlock this more than Shs3 trillion into the economy, recruit more judges.
The way you open a district and there is an RDC, district chairperson, give me judges for the High Court.
The other issue is land. Like economists say, land is the basis to economic development. If you go to the Land Division alone, you find one land dispute that has lasted for more than 10 years. In terms of money, a lot of money has been locked up because I don't have judges. If you free this land, it will be available for economic development. So if you give me 60 more judges tomorrow, come and interview me after 18 months because then, the Commercial Division will have 15 judges instead of the current six.
What if you don't get these number of judges?
CJ: We can only do so much. Adjudication is not like going to the market and say, I need this shirt, where you take less than 10 minutes to decide whether to take this or that.
Judges are not of statistics, they are judges of courts of judicature. We are officers of justice. Justice is not in the number of cases but, of course, that is not to say you can do only one case in a month, no. What I am saying is that the judge must weigh the evidence, understand the case like how the medical doctor must understand the ailment so that he may properly diagnose and offer the correct prescription. So you cannot say judges must do more. They only do what is humanly possible. That is why every judge who has retired, goes home sick because we don't have weekends [days off]. You can carry out a survey, you go on a weekend to these courts without informing them, you find judges writing judgments when you people are attending weddings.
Cases have been there, some for the last 13 years, what are you going to do to tackle this?
CJ: As part of the adjudicatory process, mediation is one of the steps we take. As a matter of fact, when you file your case, we promote mediation. We usually get a judicial officer who is not handling that matter to sit down with you and point out areas of contention without pulling out guns. There, it is a give and take. When I do mediation, I tell the parties that I have been an advocate, a representative of one side or the other but nobody wins in court.
You mentioned the Executive, the Legislature and the Judiciary, do you think you have as much power as the other two arms of government?
CJ: Yes, my power in the Judiciary is to adjudicate. You bring your matter to me, nobody will direct me about, it will be decided on its strength. That is where my power is. My strength is not political, the Executive decides something that is unconstitutional, the matter comes before me with something unconstitutional, I say no, we can't do this. That is what I call power.
What do you say to legal scholars who suggest that the appointment of judges by the President, gives the Executive arm more powers over the Judiciary?
CJ: I don't think so. The key question is, how is a Ugandan judge appointed? There are two ways; in the past, there used to be shoulder tapping. One would be approached and told how they should be become a judge but that was all about what you had done in life, people would have seen it and say, you must become a judge, that was okay, I had no problem with it.
Then the second way is through the Judicial Service Commission (JSC), you have to apply and be invited for an interview and you will have to impress the panel.
So the JSC will pick the best candidates and forward the names to the President for selection and eventual appointment.
But that appointment is not complete until Parliament approves you, so if Parliament says no, Owiny-Dollo cannot be a judge. So how can you say the president is so powerful because there are power centres where you cannot pick a judge without their advice? So the president is not as powerful as people would want us to believe.
Secondly, why would a judge be intimidated because they were appointed by the president? The president, for the fact, cannot wake up tomorrow and sack me. The procedure to sack a judge, first of all, is so demanding, intricate, because if I am suspected to have done wrong, the JSC must be persuaded with the accusation made against me and will recommend that the President sets up a tribunal, whose chair will be from another country other than Uganda for fairness.
What do you say about people who claim the Judiciary has cadre judges?
CJ: I studied law at Makerere University, then I studied the practical aspect of the law at the Law Development Centre (LDC). I was never taught to be a cadre judge, so why would somebody be considered a cadre just because somebody was in politics?
There are many people who have been in politics and acted differently, examples include Justice Joseph Mulenga, who served in the NRM government as Attorney General and minister of Justice. He was appointed to the Supreme Court. Others are [former Supreme Court judge] Justice George Kanyeihamba and my immediate predecessor Bart Katureebe. For me, I argue that having worked in all the three arms of government, it is a bonus. If someone confuses judicial responsibility with political belief, that person is not fit to be a judge.
What do you say to those who say you shouldn't be on the Bench if there is a presidential election to handle?
CJ: I would want to know why I shouldn't be on the Bench and I would ask them why the likes of Kanyeihamba, Katureebe and John Wilson Tsekooko, who was an MP in the Obote II government, were on the panel and why not me.
It is now 25 years ever since the Constitution was promulgated, do you think it has lived to its intended purposes?
CJ: I will take you to the age limit petition, which I took to Mbale. I think there is a whole section devoted to my views, where I castigated everybody who amended the Constitution. In about 10 to 15 years, we have had five amendments of the Constitution. All the Constitutions we have had right from the Independence Constitution, the Pigeon Constitution, the 1967 Constitution and this one, none of them can compare to this one in regard to the involvement of the people of Uganda in its making.
So I ask a question, what is it that has happened? What is new? What is different that people depart from what was entrenched in the Constitution for us to amend?
We made a mistake in the Constituent Assembly not to secure some of those articles and the most painful, at a personal level, was the removal of the [presidential] term limits. I think that is where we lost it. The mistake we made in the Constituent Assembly was not to entrench, not to secure, not to make it difficult for anyone to amend the provisions of the presidential term limits.
The lifting of the term limit and age limit, do not give the president more power. We made a mistake to think that it benefits the incumbent. The incumbent is a human being. He may leave office tomorrow, and you may be the next president and you may be the beneficiary of the lifting of the age limit and term limits.
Many people told me and my other judge colleagues that we were the only people in whom the people of Uganda had hope to block Museveni from [pursuing] life presidency, so I asked a question, how shall we block Museveni from [pursuing] life presidency? By rejecting the lifting of the age limit clause from the Constitution by Parliament.
This was a fallacy because if you don't bring evidence, I will never as a judicial officer, come up with a judgement to please you. If I do that, then I stop being a judicial officer. The work of the Judiciary is to state the law as it is, to interpret it. We should be asking, what does the law say, does it permit Parliament to amend the Constitution or not?
The process of amending the Constitution to lift the presidential age limit saw some MPs being thumped by security forces. Was this something you are proud of in a democracy?
CJ: As a matter of fact, if you read my judgment, I was very harsh on the security forces but soon thereafter, Parliament converged and there was a considered bigger number of MPs than before the security forces came in.
For me, if it had sufficed that the MPs had dropped down from 300 to 200 in numbers due to the presence of the security forces, it would have been a different matter. The security intervened because of what was happening in Parliament. The problem did not come from outside but from inside.
The election is around the corner and the courts are by no means going to adjudicate many electoral disputes, how prepared are you?
CJ: I am preparing myself and the people of Uganda have so much faith in the courts. I am happy they run to court. They don't sort it out primitively in the villages. When people run to the Judiciary or quasi tribunals, that is a good thing.
Do we have the capacity to resolve the election petitions that will come to the High Court? I don't have enough judges and almost every petition handled is appealed to the Court of Appeal so that within three or four months, the matters are resolved so that we know who should be in Parliament.
We have a legal system that is rather soft but my view would be if it is proved by the trial court and we go to appeal, (the Court of Appeal), which is the final court in matters of parliamentary and local council elections, as a punitive action for a candidate who has used forged academic papers and other electoral malpractices, why should such a person be allowed to contest again? That person should be in jail instead.
This is because much tax payers' money had been spent on him/her and how more tax payers' money is set to be spent on conducting a by-election.
What do you do in your free time?
CJ: I play with my grandchildren. I walk and read extensively. I am so interested in African culture.
Corruption in the Judiciary
Let's talk about corruption in the Judiciary. The Inspectorate of Government (IGG), in its reports, ranks the Judiciary as one of the most corrupt government institutions. Do you share the same thoughts that you are presiding over a completely corrupt institution?
CJ: Completely corrupt? I have not found any report saying the Judiciary is completely corrupt. By the way, the IGG ranks the Judiciary as number two or three but also qualifies and says, the problem lies with the clerical officers, which is the centre of corruption. Clerical officers are not judges. These are the people who link the litigants with us the judicial officers.
The IGG further says as you go up, the corruption vanishes. I have always blamed the IGG for such a simplicity categorisation. It is not that I condone corruption or deny that there is no corruption in the Judiciary, it is there but tell me any institution which is not corrupt, including non-governmental institutions. The problem is bigger than the Judiciary.
How many judicial officers have come to you and said 'this case of yours, I can make you win if you did something'? Probably none. It is you people who come to the Judiciary and approach the judicial officers and say, 'I can do something'. It comes from the people, so who is corrupt?
Most Ugandans do not have the high moral ground to say the Judiciary is corrupt because it takes two to tangle. Corruption is something that you cannot do alone. Even in the Lord's Prayer, we were taught by Jesus to ask God not to lead us into temptation. So I want to ask you who come to courts of Judicature, please, do not lead us into temptation because it comes from the other side to the Judiciary. But if the issue of corruption is proved, the [implicated] judicial officer would just leave the Judiciary. But the point I want to make is that it is abominable to buy justice. I have my quarrel with the IGG's report that say the police is the most corrupt. Did you know it is a few traffic officers who take little bribes of about Shs5,000. How much money do these powerful people steal in civil service?
One person steals billions. Which police officer steals even Shs100,000? So if you talk about corruption, we should be thematic. If we talk about corruption, we should talk about that type of money that cripples our economy.
Corruption is an enterprise you go into as an individual. Don't ask me what I will do to stop corruption in Uganda. I would throw it back to you and I ask, what will you do to stop people from tempting judicial officers? If we are going to fight corruption, we must all stand up, it is not only the Chief Justice. Try to get the evidence and bring it to me.
What do you think about former members of the Bench being sanctioned by the US over corruption?
CJ: Two things, of course, it is not a nice thing but I ask the question, were they afforded the opportunity to be heard? That is a fundamental and cardinal rule of justice. Was there a due process? Were they tried, given an opportunity to defend themselves? Even God, before punishing Adam and Eve, asked them where they were and whether they had eaten the forbidden fruit. This is because the principal rule is that I don't condemn you unheard. I don't know whether the justice system operates there (US) like that, I don't know.