Why MPs rejected move to increase Supreme Court justices

Parliament has passed the Judicature (Amendment) Bill, 2023 and rejected the Government’s proposal to increase the number of Supreme Court justices from 11 to 21. 

The House also rejected the amendment to increase the justices of the Court of Appeal from 15 to 56, providing for only 35 Judges. 

The Government’s justification for the increase was to cure the backlog at the two courts so as to improve service delivery at those levels.

Parliament’s decision follows the findings of the Committee on Legal and Parliamentary Affairs, which argued that the increase in the number of judges is not necessarily the cure for delivering effective justice.

Parliament has passed the Judicature (Amendment) Bill, 2023 and rejected the Government’s proposal to increase the number of Supreme Court justices from 11 to 21. (Credit: Parliament)

“Increasing the number of justices of the Supreme Court will not solve case backlog since case backlog is not caused by lack of justices of the Supreme Court, but by other matters including inefficiency, poor case management and the Jurisdiction of the Supreme Court which allows every matter to be referred to the Supreme Court,” Robina Rwakoojo (Gomba West County, NRM) the committee chairperson said on Wednesday, November 29, 2023.

Rwakoojo said her committee considered that the legal and financial implication of the proposed amendment was not well conceptualised by the drafters of the Bill.

“The committee is concerned that increasing the number of justices of the Supreme Court will increase government expenditure.

Whereas the Government issued a certificate of financial implications, the certificate does not take into account the additional costs required to make the additional justices effective in executing their mandates,” Rwakoojo said.

“We are aware that a justice of the Supreme Court is entitled to certain facilities, including bodyguards, research officers, house helps and other persons who facilitate the justices to deliver on his or her mandate. These people are paid from the Consolidated Fund and the costs associated with their employment were not considered yet they will burden the taxpayer,” she added.

Recommendations

The committee examined other means of managing backlog in court, which they recommended to government, other than simply increasing the number of judges. It proposed that the Chief Justice invoke Article 41 of the Constitution to appoint justices temporarily to deal with case backlog in the Supreme Court.

Justice and constitutional affairs minister Nobert Mao reacting to the report during plenary. (Credit: Parliament)

“This is cheaper and more effective since the acting justices are not entitled to retirement benefits and once case backlog is cleared, then the appointment of such persons is revoked,” Rwakoojo said.

“The Judicial Service Commission shares a similar view," she added citing previous cases where the President appointed judicial officers temporarily to deal with a specific need in the judiciary.

She proposed a review of the jurisdiction of the Supreme Court so that it handles only matters of law, thereby reducing the matters that the Supreme Court can file.  The committee was cognizant that currently all matters can be appealed to the Supreme Court including those which lower courts should ordinarily handle.

To further manage the backlog, the committee recommended the expansion of the mandate of the magistrate's courts to ease the workload of higher courts.

Ndorwa County East MP Wilfred Niwagaba expressed concern that the Government is seeking more judges. However, since 2008 it failed to appoint the 11 judges prescribed for the Supreme Court and the 15 judges for the Court of Appeal under the Judicature Act.

“We did pass the Judicature Amendment Act in 2008 and increased the number of justices of the Supreme Court to 11, but up to now there are nine judges; why can’t you first appoint the 11?” Niwagaba said adding: “The current law provides for 15 judges in the court of appeal, but only 12 have been appointed. So, will you appoint the 35 when you failed to appoint the 15?”

Justice and constitutional affairs minister Nobert Mao reiterated that the appointments were delayed by the operations of the Judicial Service Commission which, according to him, is now well-constituted and functional.

“Now that the Judicial Services Commission is fully functional and constituted, we promise to make these appointments. We have agreed to foster access to justice to deal with the practical matters. We are dealing with people waiting for their appeal cases to be heard. I'm dealing with the health of court of appeal judges and the backlog which ties them down,” Mao said.