A PAPER PRESENTED BY HON. JUSTICE J. W. N. TSEKOOKO JUSTICE OF THE SUPREME COURT AND CHAIRMAN, JUDICIAL TRAINING COMMITTEE, AT THE SEMINAR FOR

MAGISTRATES GRADE I ON 15TH JUNE, 2OO2 AT COLLINE HOTEL, MUKONO-UGANDA, ON THE TOPIC:

JUDICIAL INTEGRITY, ETHICS AND ACCOUNTABILITY:

In any institution or organisation in a democratic country, the issues of integrity, ethics

and accountability both in public affairs, and even in personal affairs, are very important

indeed. In point of fact issues of judicial integrity and ethics and judicial accountability

are pre-eminently so important in the life of a judicial officer so much so that a judicial

officer who does not pay heed to them does so at his or her peril. I know and believe that

during your short working life you have heard of and possibly you have been faced with

matters of judicial Integrity and Ethics as well as judicial accountability.

Problems arise, I think, in the practice and the respect accorded by individuals to

observance of judicial integrity, ethics and the exercise or rendering of judicial

accountability. In some instances you will find that judicial integrity, ethics and judicial

accountability overlap. Whatever the case, all of them must be faced and observed by

judicial officers of all grades and of all ages and at all times. You will later know why I

say "at all times".

The question of judicial integrity or luck of it is of worldwide concern and is topical now.

It goes together with corruption.

In recent years there have been claims and condemnation of the judiciary by individuals,

officials, the media, etc. because of perceived or actual corruption. Our image is a matter

of great public concern and therefore we must boldly discuss questions of our conduct

whether in the courts, in chambers, in our homes or in social places. In this paper I shall

make reference to the Constitution and other provisions of certain pieces of law that are

relevant to the topic. I will give general ideas about Judicial Integrity, Ethics and

Accountability. As you should know, ethics and accountability are aspects of the

integrity. Lack of integrity itself includes corruption and corrupt tendencies. Corruption

simpliciter is too well known. It is talked about frequently. But there are other forms of

corruption that you may innocently ordinarily not regard as harmful. These include such

matters as misuse of public property, deliberate failure to supervise or discipline

subordinates giving judicial decisions in obedience to instructions or requests from

influential people.

We shall go through some group exercises to see what your understanding of Judicial

Integrity, Ethics and Accountability is.

Let me first remind you about the sources of the Standards of Judicial Integrity, Ethics

and Judicial accountability. These sources include:

(i) The Judicial Service Commission Regulations, 1989.

(ii) The Code of conduct for Judges and Magistrates, 1989. Currently there is an exercise

to improve it.

(iii) The Constitution of the Republic of Uganda, 1995. You should note that the judicial

oath is part of the Constitution.

(iv) The Judicature Statute, 1996.

(v) The Magistrates Courts' Act, 1970 (its provisions regulate the actual conduct of

Magisterial work].

(vi) The Civil Procedure Act and Rules and the Evidence Act. These regulate the

conduct of judicial work by you in civil matters.

(vii) The Leadership Code 1992 (Statue No.8 of 1992).

(viii) The unwritten conventions or expectations.

In these Laws and the code of conduct you will find what you should do, what you may

do, and what you may not do and what you must not do. In the handouts you will see a

copy of our code of conduct and a copy of standards of performance from another

jurisdiction. These two contain standards of performance from another jurisdiction. The

two contain materials for thought. For practical purposes the standards of performance of

another jurisdiction sets out standards that are similar to our own standards. You must all

remember that written law or codes of conduct govern not every bit of the life of a

judicial officer. You must by now have known that society expects more from us than

what is written in these law and codes. That is why I said at the beginning that we must

show proper-judicial conduct at all times.

I will start with the Judicial Services Commission Regulations. Regulation 21 sets out by

implication acceptable and unacceptable Judicial Conduct. In a way it also sets out how

Judicial Officers should render an account of themselves. The regulation is formulated as

follows: •

21. A Judicial Officer commits an offence against discipline Offences in the Judicial

Services if he is guilty of,

(a) Conducting himself in any manner prejudicial to the good image and reputation

of the Judicial Service.

(b) Practicing favoritism, nepotism or corruption whether for personal advantage or gain or that of any other person;

(c) Being late for or absent from duty without permission;

(d) Being insubordinate, rude or un co-operative;

(e) Being lazy or producing poor standard of work

(f) Being untrustworthy or lacking integrity in public or private financial

transactions;

(g) Engaging in private interests at the expense of his official duties;

(h) Divulging official information to unauthorized persons;

(i) Being convicted of a criminal offence by a court of law;

(j) In any way contravening any provisions of the laws, regulations, Public Service

Standing Orders or any other instructions relating to the discipline of Judicial

Officers.

Those of you who say that necessity can induce breach of these provisions should ready

the sermon on the mount and the cases of R. Vs. Dudley & Stephens (2884) 14 QDB 273

and Rice Vs Georgia (1989) 34 S. E. R 202. The standards set out by the code of conduct

and accountability in regulation 21 are very high. Breaking these standards has very severe

consequences, to the individual Judicial Officer and even the judiciary. Criticisms of the

judiciary, which appear frequently in the press, affect the image of the judiciary.

Consequences of indiscipline and breach of judicial good conduct are set

in the regulation 22 which reads as follows:

22. (1) Whenever the Chief Registrar considers that the public interest requires that a

Judicial Officer should cease to perform the functions of his office, he may interdict

the officer from the performance of those functions, if disciplinary proceedings are

being taken or are about to be taken or if criminal proceedings are being instituted

against him.

2. A Judicial Officer who is interdicted shall receive such salary, not being less

than half his salary, as the Chief Registrar shall think fit.

3. An Officer who is under interdiction shall not leave Uganda

without the permission of the Chief Registrar.

Consequences of these can and do disorganise the Officer and the whole of his family.

Perhaps I should quote regulation 23 as well. According to it -

"If criminal proceedings of a nature likely to warrant disciplinary

proceedings are instituted against a judicial officer in any court, the Chief

Registrar shall forthwith report the facts to the Secretary with a statement as

to whether the officer has or has not been interdicted from the performance

of his functions'9.

I would like you to seriously reflect on the provisions of Reg.21 in conjunction with our

own code of conduct and the performance standards. In my view, Reg. 21, our code of

conduct, the judicial oath, the leadership code and the constitution are very clear about

what should be our Integrity, Judicial Ethics and what constitutes judicial accountability.

It is appropriate for me to mention that Sections 8 to 14 of the Leadership Code bind all

Judicial Officers. We must therefore note these provisions.

These Sections read as follows:-

S.8: Failure to submit statement or correct Information to be Breach of Code:

If any leader: -

(a) Fails without reasonable cause to submit a statement; or

(b) Fails without reasonable cause to comply with any requirement under section 6 of this

Code; or

(c) Knowingly or recklessly submits a statement or gives account of any matter which is

false, misleading or insufficient in any material particular,

The leader shall be deemed to be in breach of this Code and the committee shall report the

breach to the authorised person under section 20 of this Code.

PART IV PROHIBITED CONDUCT:

9. (1) A leader shall not ask for or accept any property, or benefit

of any kind for himself or for any other person on a count of anything done

by him in the discharge of his duties or by virtue of his official position.

(2] A leader shall not solicit or accept any gift gratuity or favor from any person or a

body incorporated or unincorporated Government; or

has any interest that may be substantially affected by the performance or

non-performance of the official duties of that leader.

(3] A gift or donation to a leader any public or ceremonial occasion shall be treated

as a gift to the Government or other appropriate institution represented by the

leader that a leader may accept personal gifts or donations from relatives or

personal friends to such extent and on such occasions as are recognised by

custom.

(4] A leader is not prohibited from accepting a gift under this section if the gift is

in the nature of souvenir or ornament and does not exceed a value

prescribed by regulations made under section 37 of this Code.S. 10 (1) A leader shall not put himself in a position in which his

personal interest conflicts with his duties and responsibilities.

[2] Where a leader deals with a matter in the course of his duties in which he has

a personal interest, the leader shall inform the person or public body

concerned of the nature and extent of his interest before dealing with the

matter.

[3] "Personal Interest" in this section in relation to a leader, includes the

personal interest of a relation of friend or business associate of which the

leader has knowledge or would have had knowledge if he had exercised due

diligence having regard to all the circumstances.

12. [1] A leader shall ensure that any state property entrusted to his care is adequately

protected and used reasonably and without abuse.

In this section "state property" includes any building, plant, equipment,

vehicle, supplies and any other property belonging to the Government of a

public body.

13. (1) Without derogating from any other written law, a leader shall not

directly or indirectly use or allow any person under his control

to use for furthering any private interest, whether financial or

otherwise, any information obtained through or in connection

with the office of the leader and not yet made available to the

public.

[2] Subsection (1) of this section does not apply to the use of the

information referred to in that subsection for the purpose of

educational, research, literary, scientific or other like purpose not

prohibited by law.

14. [1] without derogating from any other written law, a leader shall not: -

[a] Misappropriate or allow any person under his control to misappropriate

any money belonging to the Government or to any public body under

his control;

[b] Improperly use his official position to obtain any property

including land and business premises, for himself or his spouse or

child or relation or friend.

[c] Use his official time to engage in private business to the detriment of

his official duties.

[d] Engage in high-handed, outrageous, infamous or disgraceful conduct or

other conduct pre-judicial to his status in Government or a public body;

[e] Act to the detriment of Government or any person by evading taxes or

refusing or neglecting to settle his lawful financial obligations to

Government or to a public body or any other person;

(f) Be an agent of or allow himself to be used to further the interest of

any foreign Government; organisation or individual in a manner

detrimental to the interests of Uganda;

(g) Practice favoritism or nepotism by giving preferential treatment to any

person for personal advantage or gain of himself or that of his

relation or friend.

(h) Do any of the acts relating to sectarianism specified in section 42A

of the Penal Code.

(i) Impede the efficient running of the Government or any public body

through neglect of his duty;

(j) Do or direct to be done in abuse of his office any act prejudicial to the

rights of any person or obtain an unfair advantage over his

subordinates including abuse of the rights of members of the

opposite sex, through, among other acts, the use of coercion, threat

or harassment;

(k) Engage in any violation of the fundamental rights and freedoms of

the individual as specified in the Constitution; or;

(1) Participate in any activity designed to undermine the integrity of the

Government.

(2) A leader of his no nominee shall not hold any shares or any other

proprietary interest in any business or organisation, corporate or

unincorporated which places the leader in a position of conflict of

interest in relation to the duties and responsibilities of his office.

(3) A leader referred to in the Second Schedule to this Code or his

nominee shall not, unless expressly authorised by the committee: -

(a) Hold any shares or franchise or other proprietary interest in any foreign

business organisation or hold office in any such organisation.

(b) Operate a business as a commission agent.

[4] In paragraph [b] of subsection [3] of his section. "Commission agent"

means a person employed to sell goods or services delivered to him, for his

principal for a commission.

This by the way though important.

15. [1] A leader shall not participate in the deliberations of a public body of

which he is a member at any meeting at which any matter in which he has

a personal interest is to be discussed unless he disclose to that body or

any committee of that body designated for that purpose, the nature if his

interest in the matter and submits sufficient particulars of that interest.

[2] Upon being informed by a leader of his interest under subsection

[1] of this section, the body referred in that subsection shall immediately

take a decision whether or not to permit the leader to participate in or

disallow him from participating in its deliberations on the matter

concerned.

I want to suggest that for you the first authority that sets out statements of

Judicial Integrity, Ethics and Accountability is the judicial oath of office. As

set out in our Constitution, it reads as follows:

L......XY, Swear in the name of the Almighty God/Solemnly

affirm that I will well and truly exercise the judicial functions

entrusted to me and will do right to all manner of people in

accordance with the Republic of Uganda as by law established and in

accordance with the laws and usage of the Republic of Uganda

without fear or favour affection or ill-will So help me God".

In my opinion the inclusion in the Constitution of the Judicial Oath

highlights the great importance attached to Judicial work and the integrity

expected of a judicial officer.

In addition to setting integrity, ethical behaviour and accountability, this

oath is an embodiment of judicial independence of every judicial officer. The

principle of judicial independence requires a judicial officer, whether a

Judge, Registrar, or Magistrate, to decide a case before him without fear, or

ill-will, but in accordance with the facts of the case. In so far as the facts are

concerned, these are facts in respect of which evidence is adduced in the

course of the proceedings in court or facts that by law the judge or magistrate

may take judicial notice of. Facts, which may come to the knowledge of the

judicial officer by other means, cannot normally be used to decide a case. For

example a judge or a Magistrate must not base his decision on information

he gets from friends in social places.

By taking a judicial oath you solemnly undertake to do the following,

among others -

(i] You undertake to execute judicial functions well and truly especially as

laid down in our laws such as the MCA, 1970, the Civil Procedure Act

and Cr.P. Rules and the Evidence Act.

[ii) Do right to all manner of people. The highly placed and the peasantry, the

very rich and the beggars of alms, the healthy and the sick are all equal

before a court of law in the land.

(iii) Follows the Constitution of Uganda;

(iv) Enforce the laws and usage of the Republic of Uganda.

(v) Must not fear nor favour, show affection or ill-will to any one.

The Constitution begins with standards of major National Objectives and

Directive Principles of State Policy. For every Public Office, the accountability

objective is set out in Directive No.26 that reads as Follows: -

[i] All public offices shall be held in trust for the people.

[ii] All persons placed in positions of leadership and responsibility shall, in

their work, be answerable to the people.

[iii] All lawful measures shall be taken to expose, combat and eradicate

corruption and abuse or misuse of power by those holding political and other

public offices.

These statements are very important in the working life of a judicial officer.

We are accountable to the people and must behave in the performance of our

work in such manner as to show that we are in deed and in word accountable

to the people. Jesus Christ told his disciples that

"Let your light shine before men, that they may see your good deeds and

praise your father in heaven”.

Need I add anything?

Article 126 of the Constitution sets out standards according to which judicial

officers will exercise judicial power. It reads as follows:

"126 (1) Judicial Power is derived from the people and shall be exercised by

the Courts established under this Constitution in the name of the people and

in conformity with law and with the values, norms and aspirations of the

people.

(2) In adjudicating cases of both a Civil and Criminal nature, the courts

shall, subject to the law, apply the following principles: -

(a) Justices shall be done to all irrespective of their social or economic

status.

(b) Justice shall not be delayed.

(c) Adequate compensation shall be awarded to victims of wrongs;

(d) Reconciliation between parties shall be promoted; and

(e) Substantive justice shall be administered without undue regard to

technicalities.

If judicial officers exercised their functions while properly observing these

guiding principles, I am sure there would be less public complaints. In order to

ensure that judicial officers may fearlessly adhere to observance of judicial

ethics by following the judicial oath, Article 128(1) of the constitution

contains the following assurance: -

"In the exercise of Judicial Power, the courts shall be independent and

shall not be subject to the control of any person or authority".

This provision ensures that you carry out judicial work of whatever

description honestly and transparently and you make decisions in all

cases on the basis of actual evidence or facts given and in accordance

with the law. You must never decide a case because some minister, a

colleague or a friend wants it decided that way. You must never tax a bill of

costs for purposes of punishing a party.

To reinforce the independence of the judiciary so that judicial officers

perform duties without fear, S.48 (l) of the Judicature Statute, 1996, also

states:

"A judge or commission or other person acting judicially shall not be

liable to be sued in any civil court for any act done or ordered to be

done by that person in the discharge of his or her judicial functions

whether or not within the limits of his or her jurisdiction".

This provision guarantees that in the exercise of civil jurisdiction you perform

your judicial duties impartially and independently wi thout fear of bad

consequences. Similarly the Penal code Act has a provision to the same effect.

Thus by S. 15 of the Penal Code Act: -

Except as expressly provided by this code, a judicial officer is not

criminally responsible for anything done or omitted to be done by him

in the exercise of his judicial functions, although the act done is in

excess of his judicial authority or although he is bound to the act

omitted to be done".

By this Section it is intended to guarantee that in the trial of criminal cases, you exercise

judicial powers impartially, honestly and fairly without regard to any consequences. To

crown it all, I will refer you to Article 28[1] of the constitution. This article is very

important because it is the corner stone of the principle of fair haring of cases. Fair

hearing of a case is a good account of judicial work. The Article reads as follows: -

"28[1] In the determination of Civil Rights and obligations or any

Criminal charge, a person shall be entitled to a fair, speedy and public

hearing before an independent and impartial court or tribunal established

by law".

This provision that deals with an aspect of fundamental rights requires that a court, e.g.

of a magistrate, which hears any case: -

[i] Must be fair to all parties;

[ii] Must hear the case with due speed;

[iii] Must conduct the hearing publicly;

[iv] Must be independent; and

[v] Must be impartial

I think that Article 28[1] refers to judicial ethics and at the same time requires a judicial

officer to account to the public in the way he conducts his work. In my view the above

five attributes, which a litigant expects of a court or tribunal to possesses also mean, that

the court must not only be fair but it must not be biased. Here again I may refer to the

biblical statement of light which you must let shine.

In the next part of the paper I will re-emphasize on accountability. I have deliberately

made some headings in bold print.

RESPONSIBILITY TO DECIDE CASES WITHOUT DELAY:

See Article 126[2][b] of the Constitution that forbids delayed justice. You now know

what case management implies. The advantages of case management are inter alia,

reduction of delays and speed disposal of cases.

Everyone in the judiciary is well aware of the maxim that Justice Delayed is

Justice Denied. It is on the basis of this well-known maxim that every judge or

magistrate is enjoined to decide or determine a case before him or her without delay.

Obviously the length a case takes depends on many factors including its complexity

and the number of witnesses and quantity of documents, if any, involved. It is always

possible before the commencement of hearing, for the parties and the magistrate to

estimate the period the case is likely to take for its determination. Because of

case management practices, a move has been made to introduce time standards which

civil cases are expected to be completed (Platt Report). The purpose of these standards

is to make time a crucial factor in the movement of civil cases without delay. This is

equally true of criminal cases. (I think that appeals are also subject to case

management many rules set standards within which notice of appeal must be filed;

when the appeal must be filed. Registrars are required to ensure the flow of

appeals]. The Children Statute, 1996 contains standards by way of time within

which children must be tried. As Magistrates, you are likely to enforce that Statute. You

should ensure that courts comply with the statute. You bear great responsibility. You

account to the public by doing your part to speed up conclusion of cases.

RESPONSIBILITY TO STUDY CAS BEFORE HEARING:

Judicial officers are required to study files and ensure that pleadings are properly filed.

An individual Magistrate assigned to determine a case has a personal responsibility to

study and understand the case before hearing begins. I cannot say how much or far the

requirements introduced by amendment of Civil Procedure Rules, 1998, apply to you in

cases where preliminary case material is submitted before the hearing. I say this because

of Order 6 Rule 26 of CP Rules. It says that in magistrate’s court trial can

commence after filing plaint without further pleadings. The new rules require parties to

include in their pleadings a summary of the evidence to be adduced, list of witnesses,

and list of documents. The pre-hearing study is of crucial importance for the proper

determination of cases, by enabling the magistrate to be aware of the case and the

respective position of the contending parties and thus be able to be fully in-charge of the

hearing especially where advocates appear. Where the court is not conversant with the

case of the respective positions of the parties, there is great danger of such judicial

officer being misled by one or both of the parties, especially when represented by

an unscrupulous advocate. Besides, in such a situation the judicial officer is unable to

ensure that each side properly presents its case or facilitates a proper decision or the real

issues involved. Therefore in civil cases you must find time and read through your

court file before you commence a trail or before you continue the trial of a

pending case. In the later case, this applies to both civil and criminal cases.

RESPONSIBILITY TO ENSURE, COMPLIANCE WITH JUDICIAL DECISION:

I believe every registrar and every magistrate who makes a judicial decision does so not as

a matter of course, but with a firm and settled intention to have such decision executed or

implemented. For qu i t e sometime in the superior courts it was thought that once a

judge announced his or her decision, she or he was finished with the case, and

thereafter, it became the sole responsibility of the registrar or our administrator to ensure

execution or compliance with such decision. It is increasingly being realized that this

view is misconceived. Firstly, in jurisdictions without a well trained cadre of court

administrators and which depends on un-trained court brokers, court decision may

take too long to be implemented or may never be implemented, unless there is a

followed up by the interested party or the magistrate who made the decision. This

should now be in line with the practice of case management, I think.

A very well known judge stated a few years ago that since the effectiveness of a court

depends mainly on the manner court decisions are implemented or fail to be

implemented as intended, judges and magistrates need a feedback on the execution of

their decisions so that they may be able to improve on their decision making in future

cases. For instance cases of administration of estates of deceased persons, a judge,

registrar or magistrate who appoints the administrator of the deceased's estate, needs to

be informed whether the administrator completes his responsibilities of administering

the estate within the period prescribed by law or court's order. I know that failure by

judges, registrars or magistrates to make a follow up has often resulted in misuse of

deceased's estate by administrators, particularly where the heirs are either ignorant of

their legal rights or are minors. Your have heard of stories where advocates obtain say

shs.lOOm as damages for a plaintiff. Yet the plaintiff gets only 10m/! What should be

done? Shouldn't the courts be concerned about such matters?

Because of the need to ensure that justice is done you should, where there is no

appeal against your decisions, ensure that the execution to implement your decisions

is carried out properly within the limits of the law. However, you must act with absolute

reasonableness and impartiality. Do not personally carry out execution. Magistrates must

not carry execution warrants and deliver them to homes or offices of court brokers. Do

not employ court brokers as your agents or as your partners in the evil practice of

undervaluing property of judgment-debtors for purposes of execution.

JUDICIAL ETHICS:

I conclude on this by also re-emphasizing that Judicial Ethics, however expressed, are

ultimately based upon the following principles, values, rules and procedures. I have

circulated to you a document concerning Ethical Principles for Canadian Judges. Please

read.

The Principles: The basic principles of Judicial Ethics are principle of independence

of the judiciary, the principle of impartiality of court, the principle of fairness of

the trial and the principle of reasonableness.

Let us refer to views from beyond Uganda. A commentary to CANNON I of the American

Code of Judicial Conduct of 1990 says that:-

"Deference to the Judgment and ruling of courts depends upon public

confidence in the integrity and independence of Judges. Independence of

Judges depends in turn upon their acting without fear or favour.

Although judges should be independent, they must comply with the law,

including provisions of this Code. Public confidence in the impartiality of

the judiciary is maintained by the adherence of each Judge to this

responsibility..."

Another commentary on CANNON 3 of the same Code states, inter-alia: A judge must

perform judicial duties impartially and fairly.

A judge who manifests bias in proceedings impairs the fairness of the

proceedings and brings the judicial process into disrepute. Facial expression and

body language, in addition to oral communication, can give to parties or lawyers in

the proceedings and to (assessors), the media and others an appearance of

judicial bias. A Judge must be alert to avoid behaviour that may be perceived as

prejudicial".

AS to the basic values which underlie judicial ethics, these can be stated(i) Judicial courage which reflects the principle of independence of the judiciary,

(ii) Judicial dignity which reflects the principle of impartiality,

(iii) Judicial integrity which corresponds to the principle of fairness and

(iv) Judicial sobriety which corresponds to the principle of reasonableness.

I have quoted Article 28[1] of the Constitution and the Oath. Both show

that one of the examples of judicial accountability is JUDICIAL

"TRANSPARENCY. This is the approach which requires judges and

magistrates not only to sit, hear and decide cases in the open, but also prohibits

judges and magistrates from basing their decision on facts not presented in the

presence of the parties. The same approach (and our procedure rules) now requires

the parties to disclose to each other and to the court all matters upon which the parties

rely to support their respective cases. It is the same approach which requires court

records to be public documents and thus available for inspection by the parties and

embers of the public.

Another aspect of Accountability of the Judiciary, already indicated, is judicial

discipline. Judicial discipline requires that there should be formulated and

disseminated code of judicial ethics. That formulation would invariably cover or reflect

the basic areas already known.

It is a requirement of judicial discipline that there should be a credible mechanism for

enforcement of the code of ethics, with powers to remove judges or magistrates from

office where necessary. As already shown, in Uganda, our code of conduct is partly in

the Judicial Service Regulations and the Leadership Code and partly in the document

which I have given you. It is enforced by Judicial Service Commission, an independent

body which guarantees that the judiciary is not endangered by say interference.

Thank you for listening to me.