Judiciary: Allowing ‘kids’ on the Bench is messing up the Temple of Justice

Can’t say I recall every detail of that case; but the basics were that it was a small matter in criminal court and the accused was 85 years old. When I applied for bail, the State prosecutor agreed that the old man should go home. Under normal circumstances, when the prosecution (the ‘owner’ of the case) readily agrees to a bail application, the court really has no business declining or delaying a decision – unless, otherwise. But the [very] young lady on the Bench said she needed time to make a ruling. Must have been rushing to pick ice cream…or buy a teddy bear. She remanded the old man to prison, pending her decision. Any lawyer reading this will immediately see a problem. What was there to make a decision about? And why would one remand an 85-year old, all factors equal? 

Recently the Deputy Chief Justice, Mr  Richard Buteera admonished magistrates for turning the courts of law into personal kingdoms, and perverting the course of justice. Timely clarion call! There is a very big problem with Uganda’s lower Bench! Too many cases of strange decisions that leave lawyers and litigants alike properly bamboozled. Even the way court is conducted is strange and very disturbing. There are, of course, very many good magistrates whose methods of work you quickly respect. But then again, too many cases that make your eyes roll in their sockets.

Part of the causation here is a failure of policy: picking kids fresh from the Bar Course at Law Development Centre and appointing them as judicial officers. This country has a very high bar for the recruitment of judges: you must have tucked 10 years of legal practice in the High Court under the belt before you bother applying. Ten years may be nothing in the life of a nation, but it is a very long time in the life of a person. In 10 years, a lawyer will have, ideally, been exposed to all kinds of situations in and outside the courtroom. In 10 years, a lawyer will have learnt a lot about life and matured into a responsible adult who appreciates a legal problem from a very broad frame of reference. But when it comes to magistrates, the Judiciary readily appoints fresh graduates.

Most of them have no idea what life is all about. They have never stayed alone; they don’t even know what rent is. Mama’s little boy who still has his mom pack break tea for him and has never even dated; and can hardly tell the difference between a man and a woman, will be found presiding over a divorce case. Daddy’s little girl who still sits on her father’s lap and leaves his house every morning to come to work might even be caught issuing an order for enforcement of conjugal rights! The nerve!
In many cases that come to court, what the law is, you soon find out, is only half the story and that dispensing justice in a matter may require going beyond mere quoting of the law to appreciate the circumstances surrounding the case. Young people who have never even made a prison visit will be quick to remand accused persons without a thought or care in the world – as though prison is a luxury hotel. Half the people in prison shouldn’t be in prison at all; most of the time it is a failure of these young magistrates to make rational decisions.

Young magistrates who have never practiced law will be found determining a matter argued by experienced advocates. And for many of them, there is a tendency to avoid complex legal arguments, simply waving them away like one swatting an irritating wasp wagging its bum in their faces. As a diligent lawyer you are put in a situation where you have to be patient with a judicial officer who is, quite clearly, lowering known legal standards. This is part of the reason you find senior lawyers who deliberately avoid lower courts.
Justice in Uganda demands that appointment of anyone to the lower Bench be premised, inter alia, on a minimum of five years of serious legal practice; so that judicial power is exercised judiciously and responsibly. Raising the bar will show that this country values justice and will earn the lower Bench – and the Judiciary - more respect.

Mr Tegulle is an advocate of the High Court of Uganda     [email protected]