Uganda Judicial Stacking: President Museveni’s War on Independent Court
Photo: The Daily Monitor
The judiciary in Uganda has been a respected institution since the country won its political independence from Britain in 1962.
Even during the dark days of Gen. Idi Amin, while a small minority of judges collaborated with the regime, overall, the Uganda judiciary continued to strive to deliver justice in the best way it could. Chief Justice Ben Kiwanuka and several judicial officers were murdered by the regime because they refused to compromise the independence of the judiciary (See Days of Judgement: A Judge in Idi Amin's Uganda by Peter A.P.J. Allen. Kimber Publishers, 1987).
To restore respect for the independence of the judiciary, the current vacant posts of the Chief Justice and the deputy requires that it be filled through an open, public and transparent process. For over 27 years, Ugandans have permitted President Yoweri Museveni to handle the judiciary as if it were his private property.
That situation must end.
Based on his promised "fundamental change" speech in January 1986, when he seized power, President Museveni undertook steps to restructure, not only all state institutions, but also the judiciary in the image of his National Resistance Movement. His strategy was, and still is, to create a judiciary loyal to the NRM political party and under his control as the NRM chairman.
Therefore, under the guise of a Commission of Inquiry into Corruption in the Judiciary ("the Committee"), the NRM leadership, on 26 July 1986, appointed a Committee to provide a legal basis for sacking judges not loyal to the regime and replacing them with judges that are. Some members of the Committee were unaware that their report would be used to undermine the Judiciary; the Committee took its work seriously.
The Minister of Justice and Attorney General, Mr. Joseph Mulenga, on 26 July 1986, signed a General Notice appointing the Committee. The members of the Committee were: Prof. Samwiri Karugire (Chairperson), Advocates Pius Kawere, Alex Obote Odora and Bart Katureebe (currently Supreme Court Judge). A non-practicing lawyer on the Committee was Sam Sengendo. In the course of its extensive work, the Committee interviewed several individuals from all walks of life. Sitting judges interviewed included Chief Justice S.W.W. Wambuzi, Vice President of the Court of Appeal Justice S.T. Manyindo, Justices of Appeal Lubogo and Ben Odoki (recently retired Chief Justice), Justice Karokora and Judge Ekirapa. Justice Arthur Oder and Justice David Lubogo also made written submissions.
Chief Magistrates interviewed included Ms. Kategaya Byamugisha and A.C.M. Liiga. A number of practicing advocates were also interviewed by the Committee. The Committee traveled throughout Uganda. It did not travel to the northern part of Uganda and Karamoja for security reasons at the time. Thereafter the Committee reviewed the material collected and made several recommendations including recommendation on recruitment, promotion and termination of services of judges; continued legal education for judges and other judicial officers, and on the role of the Judicial Services Commission.
The Committee submitted its Report to the Minister of Justice/Attorney General in January 1987. Like most subsequent reports, it was never made public -- I have a copy of the report. Attorney General Mulenga in less than coded words hinted on what he wanted the Committee to include in its final report.
Fortunately for me, before my appointment on the Committee was announced, the Solicitor General, Francis Ayume had come to my Law Office on Kampala Road and advised me not to reject the appointment for there would be serious consequences. He emphasized that as the only "outsider" on the Committee, it was important to be seen to support the NRA/NRM program. He smiled mischievously and stated that it is better to be inside the NRM tent rather than outside.
According to Ayume, the government needed a legal basis to “shake” the judiciary and to get rid of “undesirable elements” and “negative forces” from the bench. It did not take long before President Museveni began to "shake" the judiciary and bring in the NRM loyalists. Between 1987 and the time Chief Justice Odoki retired, in 2013, there were already many senior NRM cadres holding senior positions in the judiciary.
I will name two senior judges to illustrate the point. The first judge is Justice Steven Kavuma. He is a senior member of the NRM and a former Minister of State for Defense. Currently he is Acting Chief Justice as well as Acting Deputy Chief Justice. Justice Kavuma is notorious for his pro-government decisions. For all practical purposes, he sits on the bench as the guarantor of the NRM interests. The second judge is Justice Jonathan Tumesigye. He is a senior member of the NRM and former Director of Legal Affairs in the NRM Secretariat. He also served as Inspector General of Government. My concern about Justices Kavuma and Tumesigye has nothing to do with their professional qualifications or competence. Both judges are qualified, competent and respectable citizens. The problem is perceived bias due to their membership of the NRM.
Not having formally resigned from the NRM and distanced themselves from that political entity, it cannot be assumed that in the course of their duties, they do not receive instructions from, and implement the decisions made by, the NRM leadership against the interests of non-NRM members. Bias of judges in serving political party interests through opportunism is illustrated by actions of former Chief Justice Benjamin Odoki, whose vote in the Supreme Court was crucial in validating President Museveni’s rigged 2006 election.
Despite the Supreme Court’s finding that the presidential elections was rigged, and without justifiable grounds to the contrary, Chief Justice Odoki’s Supreme Court, with Justice Odoki’s approval, went on in a 4-3 vote to hold the Candidate Museveni was properly elected. Similarly, an NRM cadre, Attorney General Mulenga, in his new capacity as a Supreme Court Judge, was equally important in validating President Museveni’s rigged elections.
Dr. Kizza Besigye simply had no fighting chance in an NRM Supreme Court. There are already many NRM cadres working as judges in the judiciary whose primary task is to protect NRM interests. It is therefore logical to infer that the idea of amending the law to change age limit for justices of the Supreme Court from 70 to 75 is a temporary measure. It is intended to keep the pro-NRM regime judges in place while a more permanent solution for NRM cadres to take absolute control of the judiciary is being mooted. This approach is necessary because there are still a few independent judges on the bench. As more cases of abuse of office, corruption, torture and war crimes are likely to end up in court and ultimately before the Supreme Court, President Museveni needs a judiciary that he can count on. The proposed amendment to extend the retirement age of Supreme Court judges is a ruse and intended to buy time.
President Museveni seeks to kill two birds with one stone: extend retirement age of Supreme Court Judges to 75 and appoint a young Chief Justice and his deputy who can be relied on for many years to toe the NRM line. The NRM regime is conscious that the proposed extension of retirement age in the judiciary and the public service enjoy support from many Ugandans. In principle amending the law on the retirement age of judges is not necessarily bad. In many countries, including the United States, a Supreme Court Judge is appointed for life or when she or he decides to retire.
What is wrong is the NRM objective to use the amendment ploy to retain compromised judges. What Ugandans need is to focus on the modalities of recruitment, promotion and termination of services of judges, and not just retirement age. One of the many examples Uganda may choose to study is the Kenya model on how Chief Justice Dr. Willy Mutunga and members of his Supreme Court were vetted prior to their respective appointment.
Similarly, the transparent method used to appoint the Kenya Deputy Chief Justice is highly commendable. Ugandans must not allow their judges to be chosen from under the table and in the dark, regardless of the retirement age. Public scrutiny and vetting of judges is necessary.
Public participation in the process including fielding questions through the vetting Committee is vital in recruiting credible individuals and enhancing transparency. Instead of focusing on the law to amend age limit, Ugandans must focus on creating a judiciary that is independent, free, and fair and just; a judiciary that renders justice without fear or favor; ill-will or affection.
Dr. Obote Odora is a Consultant in International Criminal Law & Policy