{UAH} Wambuzi speaks about life as three-time chief justice

http://www.observer.ug/viewpoint/interview/37643-wambuzi-speaks-about-life-as-three-time-chief-justice

Wambuzi speaks about life as three-time chief justice

Last Updated: 03 May 2015

Former chief Justice Wako Wambuzi

If a lawyer helps a client win a case which he should have lost, I call that a miscarriage of justice – Wambuzi
April was quite a busy month for former Chief Justice Samuel William Wako Wambuzi. He published and later launched a book; The Odyssey of a Judicial career in precarious times, which chronicles his life as a three-time chief justice of Uganda.

The launch at Kampala Serena Hotel was a well attended event. In an interview with Pius Muteekani Katunzi shortly before the launch, the former CJ spoke about his inspiration for the book, his life story and career on the bench. Below are excerpts.  
Honourable Chief Justice, thank you for writing such an inspirational book. Why did you choose this title for your book?

The title took a bit of deciding. If you want a title, you want a title which will suit what you are doing. In my case I have been chief justice three times. I was also president of the court of appeal for East Africa.

I am writing about my life as a person and also what I have done in my life. I was a judicial officer in precarious times. Very, very difficult times! I don't know whether you recollect, the first time [of Milton] Obote's era, soon after independence was not so bad. But after that, things turned a bit difficult.

We witnessed a number of coups starting with the 1966 change of constitution by the same government. Then the 1971 coup by [Idi] Amin, then the 1979 UNLF war against Amin (Uganda National Liberation Front backed by Tanzania).

Then [Yusuf] Lule's government was also changed in a coup. [Godfrey] Binaisa was also removed from power and replaced by the Military Commission. Then Obote II was overthrown by the Tito Okellos. I have had a bit of something in all those times. For example, I first became a judge in the Obote I regime.

After Amin's coup, I became chief justice…[as a result of Amin failing to pronounce the word 'Acting.. laughter]. And in those days the power to appoint a chief justice was entirely in the hands of the president. And there was no advice from the Judicial Service Commission (JSC). So he would appoint anybody who was qualified. So when he failed to pronounce my title, he must have said "why bother after all he is the chief justice [laughter]."

It was a military government and as you see in the book we operated two systems of courts - military tribunal and the normal courts. We had the High Court, Magistrates Courts and what have you…And all operated in the same area. As chief justice I had control over the other courts, but I had no jurisdiction over the military courts.

There was no system where the litigants were to be taken. So they appeared in this court or the other court according to the accuser. So that made matters very difficult for us. In some instances we could act, in others, our hands were tied.

I refer to one case in the book where a White man appeared before a magistrate's court; it was a seditious case and he was eventually acquitted. He said something about Amin either in writing or something like that and it affected him.

So Amin said, he will be taken to the military tribunal, he will be tried over the same charges and will be sentenced to death. Now, as the chief justice there is nothing you can do. Orders were being issued this way and that way. It was difficult.

That is why I said being a judicial officer in precarious times; these were difficult times. It had trials and difficult decisions to make. That explains my title. The odyssey is the journey of the judicial officer in precarious times. It had trials and it had triumphs. So that is the gist.
Between the military tribunals and the ordinary courts, which one took precedence over the other?

They had virtually the same jurisdiction. They operated in the same area. My difficulty was, I was the chief justice, in other words the head of judiciary but my hands were tied because I didn't control military tribunals.
These days the judiciary is being characterized as corrupt. Was this the case in your time?

First of all, I have noticed that sometimes either the public or the litigants are too quick to accuse courts of corruption. Very often someone loses the case and he thinks he should win and when he loses he says, "Ah… that one has been bought off."

But I am not saying that there is no corruption, nor am I saying that there was no corruption at that stage. As you saw in my book I refer to a case where after I returned from Tanzania, Law Society complained about some judges and I had to investigate. This has been our problem for some time.
But privately have you heard from your colleagues about judges who take bribes?

Oh what a difficult question! I am not here to pass judgment against anybody. But I can give you my experience. At one stage, and I think I refer to that case in my book where the public raised a concern about the behaviour of judicial officers.

In one particular instance, a senior servant complained that he had paid or was made to pay money to a magistrate to help him against a case. When he made the complaint, as a matter of fact we had received the same complaints about the same magistrate. So I asked him, would you be prepared to give me evidence. He said yes. 

I said please put it in writing and send it to me. I was upcountry and I asked him to come and see me. He brought the letter. In the letter he had complained about the delay in deciding his case but did not say anything about the money. I think it was Shs 10,000 he had paid to the magistrate.

I said but you haven't mentioned the main complaint. He said yes, I couldn't. I said why? He said he didn't give the money directly to the magistrate. But he gave it to his counsel so that his counsel could pass it on. So I said you have created a difficult situation for me. First of all, you said you had paid; now you say you gave it to counsel.

But I said I don't blame you on that, the fact is you are complaining about someone accepting a bribe. So I said is counsel prepared to back you up? And he said oh, no. What about his job?

Then I said, whereas I can accept your word that you paid money, there is no way I can ascertain or anybody can ascertain that money was paid to the magistrate unless either the magistrate admits that he received the money or somebody says that he gave it to him. Now you say you can't and counsel can't, who is going to do it? Because any allegation must be proved, and hearsay will not do.

Wambuzi gives Pius Katunzi ( the interviewer) his latest book

Why do you think this perception is persistent about the judiciary?

As I said, in some instances it is justified. And in those cases I would say report to the authorities. For example, now there is a judicial service commission, it is not only charged with appointing or recommending judicial officers but also charged with maintaining discipline in the judiciary. So it is the body which should receive the complaints directly rather than us (judges).

If you know judges are corrupt, why don't you take steps to curb that corruption? And taking steps is not by publishing things in the newspapers. For me the thing is to approach the authorities who are concerned and raise these issues.

As a judge you cannot condemn a person untried. So if you say so and so has done this, it has got to be established. If it is found correct, or incorrect it would have been investigated. But we avoid the investigative machinery and utter allegations. And I don't think that is fair to the judiciary or individual judges.
Do you think today the judiciary plays its role as it is supposed to do?

(Prolonged laughter) Really, again you are asking me to pass judgment. I have heard cases of judicial officers being disciplined. They have been suspended. Some, being dismissed because of improper conduct.

Well, judging by that, steps are certainly being taken to curb the situation. But also in the judiciary there are complaints about insufficient funding, lack of manpower, or things like that which very often hinder jobs which could be done.

For example, if you are trying a case or investigating, you would want to pay for certain things, investigators, witnesses; they have got to travel and you can't just say you come and testify in court or tribunal. You have to see to it that they are there.

Sometimes you carry them; sometimes you enable them to come. Now if you don't have resources as I hear is the problem, you are hindering the job of the judiciary. And in that case you are contributing to the perpetuation of the situation (perception). 
Our constitution and the practice in democratic societies requires that the judiciary must be independent; do you think that is the situation today in Uganda?

It depends on what you are looking at. Independence of the judiciary means quite a number of things. First of all, it means the ability of the judicial officers to act as they should without pressure of any kind. I am not aware of instances where judicial officers are directed that you come to this or that decision.

But there can be other ways of affecting the independence of the judiciary or independence of judicial officers. For example, there has been quite a lot in the newspapers about the appointments of certain officers. If the appointment of judicial officers is not all that transparent that may jeopardize the independence of the judiciary because that way you may introduce an officer who perhaps should not be there.

You see there is a selection process. There are qualities, which are required. And these are things which are supposed to be looked at, and that is why the appointing authority does so on the advice of the judicial service commission. If the JSC's advice is not followed, then (laughter) …but you can see that it can create problems.

And you can say it might affect how judicial officers exercise their judicial functions. You have been talking about corruption for example, the judges are always complaining about insufficient salaries, insufficient remuneration.

I don't think it is justified that because you are poor you should be corrupt, but we are also human beings. And if you place an officer in such a vulnerable position and you are not persistent to resist that temptation… you see what I mean.

Look at other government departments, you hear of an officer earning high, why because they want to put them outside the temptation. Well, it should be the same argument with judicial officers. So their independence is compromised through terms. Or let me say poor terms (laughter).
Would you have preferred a situation where the constitution is amended so that the appointment of judicial officers is entirely the business of the judicial service commission?

I am saying this because of the two-year impasse we had with the appointment of the chief justice and the deputy?

No, no, no. I would certainly not amend the constitution because it is not being followed. I would first suggest that we follow the constitution. Because a law has a reason for its enactment. And when someone flouts the law, and then you say we change the law, I don't agree with that. 
Well, the mischief now has changed. The president is the problem and he doesn't want to follow the law?
Well, there is a possibility that sometimes when the law doesn't work, it should perhaps be changed. But very often you don't change for the sake of changing. You change for the better.

Now, is it better for the judicial service commission to have sole power to appoint or is it better to give advice and follow the law? In this case I insist the president follows that law. Nobody is above the law. So here you are going to change the law because you are conceding that some people are above the law? (laughter).
The law has to be followed, but what happens when it is not followed?

Well, I don't think there is nothing that can be done. I think the thing to look at is whether we are following our constitution or not. 
The problem then was that of politics not the law; do you think much has changed since?

Well, at that time we had a military government. Now…we are supposed to be living in a democracy with a constitution. That is what you have been asking me about, about the provisions of the constitution and the problems of operating our constitution.

I was the chairman when they swore in the Constituent Assembly members before they chose their chairman and their deputy chairman. I presided over that, and I also presided over parliament when they first chose the first speaker after the promulgation of the 1995 Constitution.

I addressed both the Constituent Assembly and parliament on this matter. And I said, I think we are making this constitution ourselves. There was a collection of people from all over. You remember how the Constituent Assembly was constituted; it represented youth, old people, women, people with disabilities, men, army, everybody.

And I told them, now look, whereas it our duty to promulgate a constitution for ourselves, it is also our duty after we have promulgated the constitution to obey the law. Because we made it for ourselves, what excuse do we have for not following it?
Prof, Okoth Ogendo once said that in Africa there is a problem of constitutions without constitutionalism. Why do you think leaders don't want to obey the law?

Why don't you ask me an easier question (prolonged laughter).  But on a serious note that is the very point that I was alluding to in the Constituent Assembly. I said we have assembled here to make a law.

And we had complained that this law (1962/1966 constitution) was made elsewhere (1962, was debated in Lancaster in UK and 1966 was partly imposed on the legislators after the coup) by other people. Now we have sat here in Uganda and enacted this law, what excuse do we have for not following it?
People these days say lawyers are no longer practising the law, but chasing deals; some have fleeced their clients, they are supposed to help!

I will be very slow to make a general statement. I was in the judicial system, and it was common to say oh judges are corrupt. And I was in a way infuriated and I said that can't be true! If one apple is bad, it does that mean the entire basket is bad? That is why I said I will be slow to make a general statement.

Of course human beings being what they are, they are not perfect. So where you find good, sometimes you find bad. This question of wholesale condemnation I think is wrong. There could be some bad lawyers who do not help their clients. I used to complain and advise the practitioners that they should do their best to help the individuals who come to them.

The people who go to them do not know the law, and they say their rights have been violated. It is the lawyer who knows or is supposed to know the law. It is not the duty of the lawyer because someone has come to him to complain to rush immediately to court and file an action. Which very often does happen.

I think that's wrong. You should listen, interview your clients very carefully, and ascertain in which way his rights have been violated. Assist him to make it correct. Whereas clients complain that someone borrowed money and is not paying back or he is trespassing on my land; ask your client, have you talked to him [accused], what was his reaction?

If you lent him money, have you asked for it? What was his reply? I know there is a common letter, blah, blah if you don't do this within so many days, we shall follow without further action… Well, that may come but not immediately. Not before trying to settle this matter. Because some of these things are just personal misunderstandings.

People have failed to come together. A person has an issue with his neighbor, they just rush to court. And the lawyer instead of bringing the two together, they just rush to court. And that causes filed cases to be so many. And in certain instances they are not necessary. There could be a solution.

So I would advise the lawyers that the first thing to do is to advise their clients correctly. Some lawyers have been accused of making up cases for their clients, and that is very wrong. It is improper. A lawyer is not meant to win a case for his client.

But rather to ensure that his client gets justice in the case. If a lawyer helps a client win a case which he should have lost, I call that a miscarriage of justice. They have been accused of hiding and manufacturing evidence. These are improper. But I wouldn't make a general statement that all lawyers are like that. 
Interview continues in our next issue

Wambuzi speaks about life as three-time chief justice

http://www.observer.ug/viewpoint/interview/37643-wambuzi-speaks-about-life-as-three-time-chief-justice

‎

Sent from my BlackBerry 10 smartphone.