Kampala, Uganda | THE INDEPENDENT | Uganda’s legal fraternity is sharply divided over a proposal to appoint “mission-based judges” to help clear mounting case backlog, a debate that now cuts to the heart of constitutional interpretation and judicial independence.
In a meeting with the Ministry of Finance officials this week, the Chief Justice, Dr. Flavian Zeija, reported that the Judiciary is handling thousands of pending cases, including 5,790 commercial cases involving UGX 5.981 trillion, 44,911 civil cases worth UGX 5.451 trillion, 33,496 land cases valued at UGX 1.718 trillion, and 12,624 family cases amounting to UGX 1.47 trillion.
This data was from the recently-launched of the Judiciary National Court Case Census Report by the case management committee of the judiciary.
What began as a reform discussion about efficiency has evolved into a larger constitutional question: Can Article 142(2) of the Constitution lawfully be used to appoint temporary judges drawn from private practice to clear pending cases?
At the heart of the debate is a clash between urgency and principle. On one hand are the crushing numbers: over 167,000 pending cases, with backlog making up more than a quarter, and some unresolved for over a decade.
The economic cost is also profound: unresolved civil matters alone are valued at UGX 14.2 trillion, roughly 7% of Uganda’s 2024 GDP, locking up capital and slowing investment decisions. On the other hand, the constitutional architecture is designed to safeguard judicial independence, procedural fairness, and public confidence.
Supporters of mission-based judges see the proposal as a practical, time-limited response to an exceptional bottleneck. Critics see it as a structural deviation with potentially lasting consequences. Advocate Elison Karuhanga has emerged as one of the most vocal proponents of the idea.
His case is built on urgency, saying Uganda’s backlog more than meets that threshold. “We are confronting a justice crisis.
Thousands of cases, many older than a decade, have been left to stall. Suspects await trial, victims wait years for closure, and judges are overburdened. The Constitution empowers us to respond when court business so demands.
This is that moment.” Uganda’s High Court still relies heavily on a session system, particularly for criminal matters. Accused persons are committed from magistrates’ courts and must wait for scheduled High Court sessions, sometimes for years. Karuhanga describes a judiciary under immense strain.
Some judges, he argues, are managing caseloads approaching 900 files each. “Long hours, back-to-back hearings, and the pressure to draft lengthy judgments have reportedly taken a toll on judicial officers’ health,” He said.
“The system, as it works, is punishing every single user,” he argues. “The suspects are suffering. The victims are tortured. The lawyers are frustrated. And the judges themselves are burning out.”
His proposal: retain existing judges to handle newly filed matters on a continuous, day-to-day basis, while appointing experienced advocates as temporary, mission-based judges for fixed terms, three to six months, to specifically clear older backlog cases.
Karuhanga points to Article 142(2), which provides that where there is a vacancy, where a judge is unable to perform, or where the state of the business of the courts so requires, the President may appoint a qualified person to act as a judge on the advice of the Judicial Service Commission.
He argues that the backlog crisis satisfies the constitutional threshold that “the state of the business of the courts so requires.” He also notes that similar mechanisms exist in jurisdictions such as South Africa, Namibia, Botswana, Australia, and the United Kingdom, where temporary judicial appointments have been used to reduce congestion. “Injustice is unsustainable,” he says.
“We cannot keep applying the same logic and expect a different result.”
But Robert Makay, an advocate and former prosecutor with the Directorate of Public Prosecution, urges restraint.
He argues that Article 142(2) sets specific triggers that must be strictly satisfied: a vacancy, inability to perform, or demonstrable necessity arising from the state of business.
“If we are to rely on the Constitution,” Makay insists, “you must prove all those elements.” He questions whether the recent appointment of 21 judges has already addressed the vacancy concern.
He also warns that temporary appointments risk creating public perception challenges. “Today I am a mission-based judge. Tomorrow I am back in private practice defending alleged offenders,” he observes.
“What message does that send?” Makay believes the solution lies in systematic reform, sustained recruitment, administrative efficiency, and institutional strengthening, rather than what he views as a stopgap intervention. Backlog, he argues, is not solely a function of the number of judges.
Defence lawyers sometimes seek repeated adjournments. Prosecutors may arrive unprepared. Investigations are occasionally incomplete. Funding shortfalls can interrupt court sessions midstream. “It takes all of us,” he suggests, calling for constructive engagement across the justice chain.
For Makay, the conversation must go beyond numbers and address operational culture and coordination.
Advocate Dennis Kusaasira, however, takes the opposition further, from policy skepticism to constitutional rejection. He argues that appointing mission-based judges drawn from private practice under Article 142(2) is unconstitutional.
Kusaasira relies heavily on the Constitutional Court’s decision in Dr. Kakumba & Another v Attorney General. In that case, the court held that Article 142(2), which allows acting judges, was not designed to create an alternative pathway for first-time judicial appointments.
Rather, it was intended for serving or retired judges stepping in temporarily. According to Kusaasira, this interpretation aligns with the framers’ intent when drafting the 1995 Constitution. Under Article 142(1), substantive judicial appointments require parliamentary approval, a safeguard meant to protect independence and public confidence.
Bypassing that process through short-term contractual appointments, he argues, undermines those protections. “The framers envisioned a judiciary insulated from undue influence,” he contends.
“Short-term contracts risk exposing judges to pressure, especially as contracts near expiration.” Kusaasira further points to records of the Constitutional Review Commission, where many Ugandans reportedly opposed contractual judicial appointments.
Citizens expressed concern that judges serving on contracts might feel beholden to the appointing authority. He also invokes Article 126 of the Constitution, which provides that judicial power is derived from the people and must be exercised in conformity with their values and aspirations.
For Kusaasira, the message is clear: judicial tenure must be secure and constitutionally protected, with removal only for incapacity or misconduct. He warns that in countries with weaker judicial systems, citing examples such as Sri Lanka and Pakistan, reliance on part-time or contract judges has sometimes eroded independence rather than strengthened it.
“The solution,” he argues, “is long-term investment, appointing full-time judges, strengthening infrastructure, and addressing systemic inefficiencies, not short-term fixes.”
At its core, the debate exposes a delicate constitutional balancing act. On one side is the urgency of delay: suspects held on remand for years, victims awaiting closure, judges stretched thin.
On the other hand is the principle of judicial independence, a cornerstone of constitutional democracy. Supporters of mission-based judges frame the issue as a practical response to an exceptional strain. Opponents see it as a structural deviation from constitutional design.
The Constitutional Court’s interpretation in the Kakumba case adds legal weight to the cautionary camp, raising the question of whether reform can proceed without constitutional amendment.
As Uganda continues to grapple with a backlog, one reality remains undeniable: justice delayed erodes public confidence. Yet justice delivered under questionable constitutional footing may carry its own risks.
The challenge for policymakers is not merely clearing files. It is ensuring that any reform strengthens, rather than compromises, the independence and legitimacy of the judiciary. In the end, the question is not simply whether Uganda needs more judges. It is what kind of judiciary the Constitution permits, and what kind of judiciary the country wants to build.
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