In Summary
  • Earlier this year he drew attention to the plight of women in the family courts who are subjected to direct questioning by men who had abused them violently, and called on the government to ban the practice.
  • There is ample evidence that there are judges in Uganda who feel very strongly about the way we administer justice in our country and who would be happy to express themselves on their judicial work and how it affects the public.

On my current trip to Britain, I am happy to report that only the judiciary and opposition parties retain integrity and zeal to respect, uphold and protect the British constitution, but also to remind, if not force, the other organs and institutions of state to act in the interests of the people.

In an earlier contribution to this column, I narrated the compelling advice of a senior English judge advocating openness, frankness, transparency and commitment to communicate with and explain judges’ methods of work to the public. He criticised the outmoded adage that prohibits judges from speaking other than through their judgments, rulings and orders.

Sir James Munby, the head of the family division, was criticising the British and the Common Law judiciaries of the world for their fear to express opinions on political and social disputes that are subject of determination by the courts.
The case before him concerned the abysmal failure of the British government and other medical authorities to give adequate service to patients. Furthermore, the judge, having found the work of those authorities extremely lacking in commitment or urgency, ordered them to do the necessary. In other words, the judge’s ruling was not only mandatory but directory.
The learned judge was reported in the London Guardian of August 4 saying:

“What this demonstrates, as if further demonstration is required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties.
The lack of proper provision is an outrage. I repeat with all the emphasis at my command the considered view of the staff that to send the patient back to any community setting is a suicide mission to a catastrophic level.

The lack of proper provision is an outrage. We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.

As long ago as 1910, a home secretary [Winston Churchill], speaking in the House of Commons, asserted that ‘The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.’
In modern times the principle has expanded, so that, as is often said, ‘One of the measures of a civilised society is how well it looks after the most vulnerable members of its society.’ If this is the best we can do in a similar crisis, what right do we have to call ourselves civilised? The honest answer to this question should make us all feel ashamed.

For my own part, acutely conscious of my powerlessness – of my inability to do more – I feel shame and embarrassment; as a human being, as a citizen and as an agent of the state. Then I can only say, with bleak emphasis: we will have blood on our hands.
My judicial duty, as with every other judge in this country, is ‘to do right to all manner of people after the laws and usages of this realm’. There are occasions, and this is one, where doing ‘right’ includes speaking truth to power.”

Sir James Munby is one of the most outspoken judges of his generation. He distils into his judgments more direct challenges to the government and care authorities than any member of the bench.
Munby has repeatedly highlighted failures and shortcomings in the justice and care system. Three years ago he directly challenged the government over legal aid, suggesting that courts should spend money to provide representation in defiance of ministry of justice cuts.

Earlier this year he drew attention to the plight of women in the family courts who are subjected to direct questioning by men who had abused them violently, and called on the government to ban the practice.
Part of his professional frustration is a response to deep cuts in legal aid for social welfare, custody and divorce cases, which have resulted in the family courts being inundated with unrepresented claimants.

There is ample evidence that there are judges in Uganda who feel very strongly about the way we administer justice in our country and who would be happy to express themselves on their judicial work and how it affects the public.
However, it would appear that many of them fear to do so even though Uganda inherited the British system of justice and continues to pretend that we follow the same system and its methods of work.

These judges should, therefore, be encouraged to come out into the open and speak courageously in the defence of justice and of enlightening the population which after all is the beneficiary as well as the source of inspiration and judicial power.

Prof Kanyeihamba is a retired Supreme Court judge. gwkany@yahoo.com