Analysis: Why Uganda’s Court Rejected Museveni Appointee And Rebuked The General

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Jutsice Odoki -- he and Gen. Museveni were up to political and judicial mischief.

 

More commentary is warranted regarding the ruling a few weeks ago by Uganda’s Constitutional Court.

I'm not referring to the ruling that the Anti-Homosexuality law was unconstitutional since it was passed without quorum.

I'm referring to the 4 to 1 ruling on August 4 by the Court, with Justice Rubby Aweri Opio dissenting, that declared unconstitutional, Gen. Yoweri Museveni’s spirited attempt to appoint his friend, retired Chief Justice Benjamin Joseph Odoki, as a substantive Chief Justice, for a two-year contract, notwithstanding a contrary advice from the Judicial Service Commission (JSC) under the chairmanship of Justice James Munange Ogoola.

Given that recent presidential elections have been disputed, and Ugandans get to vote again in 2016, the position of Chief Justice is a critical choice.

The Constitutional Court judgment has generally been welcomed by a cross-section of Ugandans except the National Resistance Movement (NRM) fanatics who unreservedly believe in their visionary leader and perennial liar, Gen. Museveni.

In their euphoria, some Ugandans now believe, wrongly, that Uganda’s judiciary is independent and judges can now deliver justice without fear or favor. Ugandans should hold their collective breaths and not begin to celebrate just yet. This Judgment is not evidence that the Court has changed, or shifted from being Gen Museveni’s poodle to becoming an independent, self-respecting and responsible judiciary.  There are still many rotten eggs in the judiciary. The Judgment was simply an accident, a result of pleasant coincidences, unforeseen factors, luck and opportunity which may not be repeated for many years to come as long as Museveni is president of the country.

Through these coincidences and strokes of luck, four independent, distinguished and articulate judges found themselves members of a quorum of the Bench that heard the Constitutional petition challenging attempts by President Museveni to appoint, as substantive Chief Justice, a candidate who, by reason of age, was not eligible.

The original set of judges had included many NRM cadre judges, amongst them Justices Stephen Kavuma and Augustine Nshimyewere, both former junior ministers in the NRM government and party activists. The four justices that lady luck allowed them to replace NRM cadre judges and dispose of the Constitutional petition are Remmy Kasule, Eldad Mwangusya, Solomy Balungi Bossa and Lillian Ekirikubinza Tibatemwa.

The most senior of the four judges on the Bench was Justice Remmy Kasule, a University of Dar-es-Salaam graduate. He is an experienced advocate, respected judge and greatly admired for his integrity and honesty. People in Gulu loved him when he served there as a resident judge.  Justice Kasule ought to have been a member of the Supreme Court many years ago if meritocracy was a criterion for upward mobility in Uganda’s judiciary.

He has the experience, integrity and professional ethics to allow him to speak truth to power. It is his sense of respect for the law; rules of procedures and respect for the court that made him rebuke Professor George Wilson Kanyeihamba for professional misconduct when he walked out of Court because he did not like the ruling of the Court.

Justice Kasule could not allow that type of misconduct from a senior member of the Bar to pass without comment. Justice Kasule, took "exception to the conduct of a party and the lawyers representing that party to walk out of Court just because the party and his/her lawyer do not agree with the order made by that Court in the course of a trial of a cause,” as reported. 

Professor Kanyeihamba, who was denied his costs, is a retired Justice of the Supreme Court, a former Attorney General and Senior Counsel. He ought to know professional etiquette and not to be reminded of his responsibility by a judge.  As a long-time NRM member and activist, even falling out with the party, retired Supreme Court Judge, Justice Kanyiehamba still occasionally behaves like other NRM cadres.

Justice Eldad Muwangusya has a deep sense of justice and fairness; a dedicated and hardworking judge yet humble, ready and willing to offer an opinion whenever requested.

His logical legal reasoning makes his judgments, papers and other publications a pleasure to read. Justice Solomy Balungi Bossa, a former Judge at the International Criminal Tribunal for Rwanda, former judge of the East African Court, and a former Chairperson of the Uganda Law Society, has wide-ranging legal experience as an advocate, judge and law lecturer; she is objective, articulate, fair and just. She takes each of her cases seriously and devotes sufficient time to study and understand the facts which allows her to write excellent judgments without fear or favor. And, Justice Tibatemwa, an academic turned judge who is devoted to her work, reads broadly. She is reflective and hard working.

It is a combination of these four lawyers whose legal and judicial track records demonstrate their fidelity to law, respect for human rights and devotion to justice that brought light, in the generally dark judiciary.

That combination is rare to come by in Ugandan judiciary where integrity, honesty respect for the rule of law are rare to find as nepotism, sectarianism, political affiliation and bias have become the norm as a criteria for appointments to higher judicial offices rather than exceptions.

Had the original Coram ruled, comprising National Resistance Movement (NRM) cadres; Justices  Stephen BK Kavuma and Augustine Nshimyewere, alongside Justice Opio, the result of the Constitutional petition would have been very different and retired Justice Odoki would probably now be the substantive Chief Justice of Uganda.

President Museveni had such high confidence in Justice Benjamin Odoki to the extent that he permitted Justice Odoki, a few days after his retirement, to appoint Justice Stephen Kavuma, the favorite NRM cadre on the Bench, as acting Chief Justice as well as acting Deputy Chief Justice over other more senior judges.

Former Justice Odoki knew he had no authority in law to appoint Justice Kavuma either as acting Chief Justice or as acting Deputy Chief Justice.

President Museveni knew, or ought to have known, that Justice Odoki had no legal authority to make such appointment, so did Attorney General Peter Nyombi, yet they all allowed NRM cadre Judge Stephen Kavuma to act, and is still acting, in both positions. Such an abuse of law had become the norm and that is the reason President Museveni could appoint an ineligible retired Chief Justice when he had no legal authority to do so.

It was in order for the Constitutional Court to give President Museveni some lectures on basic principles of separation of powers. Justice Tibatemwa, an academic and judge, in the lead opinion of the judgment, correctly came to the conclusions that advice of the JSC is a pre-requisite for appointment of a Chief Justice.

Any appointment done without advice from the JSC is unconstitutional, null and void. She also concluded that a Chief Justice who has vacated office by reason of having attained the mandatory age of retirement is not eligible for re-appointment as a substantive Chief Justice of Uganda.

After these two key conclusions, Justice Tibatemwa took time to explain her legal reasoning in arriving at the decision. She pointed out that the principle of Separation of Powers ensures that the different “powers” are given different roles. It is through separation of powers that society holds State institutions accountable.

Museveni needs to reflect on this point for, since 1986, like Idi Amin before him, he has continued, as the Executive, to usurp functions of the Legislature through manipulation of the NRM Parliamentary caucus, and the Judiciary through appointment of NRM cadre judges.

Addressing the role and independence of the JSC, Prof Tibatemwa stated “the role of the JSC is critical and must be protected. Short of this, we open the body [JSC] to the danger of ‘incremental encroachment’”.

This warning unfortunately has come too late. For many years now, new and old judges are periodically sent to Kyankwazi NRM Political School for indoctrination. This partly explains dissenting opinion of Justice Rubby Aweri Opio which reads like a statement issued by Ofowono Opondo, the NRM apologist and spokesperson:

“I would have queried the re-appointment of Justice Odoki if it was done under suspicious circumstances like promoting self-interest of the President.” It is publicly known that President Museveni is selfish, promotes his personal and family interests and, that is the reason he has stayed in power for nearly 30 years. However, even if Justice Opio was right, which he is not, appointment to judicial office is regulated by the constitution and other relevant laws and not conducted through guess-work, suspicion or motives for the appointment. This type of NRM cadre reasoning is pedestrian.

In emphasizing the importance of the office of the Chief Justice, Justice Tibatemwa opined that the appointment of a Chief Justice “is a matter of great importance in any Constitutional Democracy.” This short and simple statement effectively clipped Museveni’s overgrown wings because “the duty/authority to initiate appointment of a judicial officer lies exclusively with the JSC and should not be interfered with by either the Executive or the Legislature”.

Attorney General Peter Nyombi may find some comfort in reading this free legal advice. 

Museveni’s hubris may not allow him respect the Court’s judgment. He will try and tweak it. His Attorney General has already appealed the decision, which is his right.

However, President Museveni’s favorite Chief Justice, Odoki, now says he will not accept an appointment as Chief Justice even if the appeal succeeds.

In all fairness, if retired CJ Benjamin Odoki now does not want the job, why did he have to drag the whole country through all these nonsense? On the other hand, we should be grateful to retired Justice Benjamin Odoki for he gave the Constitutional Court a great opportunity to clarify the law for the benefit of Gen.  Museveni.

Unfortunately, one of the unintended consequences of the judgment will be that in replacing the current four acting Supreme Court Justices Christine Kitumba, Galdino Okello, John Wilson Tsekoko, and Benjamin Joseph Odoki himself, Museveni is more likely to appoint NRM cadres, one of whom will probably be NRM Cadre Judge Stephen Kavuma.

Perhaps the more immediate move Museveni will make is to reconstitute membership of the JSC, remove Chairman Justice James Munange Ogoola, bring in a few more NRM cadres and Museveni shall be happy receiving recommendations from the JSC for the new judges, including the new Chief Justice.

Overall, the Constitutional Court Judgment has only given resolve to Museveni to appoint more NRM cadres in the judiciary.

 

The author is a lawyer and international consultant.

 

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