By Joan Akello and Haggai Matsiko
Incompetence or Strategy?
Reports that the Uganda Law Society (ULS) has failed to shake President Yoweri Museveni into appointing a chief justice have led to questions about his motives. The ULS is the latest group to meet President Museveni `reminding’ him to appoint a chief justice and formalise the position of the deputy chief justice.
The ULS leadership, which had threatened to call a strike that would paralyse all court operations in the country, was excited when President Museveni summoned them to State House on April14. For some, a breakthrough appeared to be on the horizon.
The meeting, sources tell The Independent, turned out to be a platform for President Museveni to ‘lecture’ the ULS President, Ruth Sebatindira and her team on the finesses of the law. In the end, the President said, his hands were tied by the case at the Constitutional Court regarding his attempt to appoint former Chief Justice Benjamin Odoki in an acting capacity.
The Independent could not reach Sebatindira but in an e-mail to her ULS members, she communicated President Museveni’s position thus: “On the issue of the CJ [Chief Justice] and DCJ [Deputy Chief Justice], our position and the implications of the current situation were duly noted and after significant debate [the President] advised that since there is a court case seeking to deal with the controversy generated when Justice Odoki was proposed as Acting CJ, he would await the decision and abide by it.”
Museveni appears to be holding legal aces but, analysts say, the Constitutional Case might be a perfect cover for the President’s fears and indecision over the CJ affair.
In an unprecedented lacuna, the third arm of the State; the Judiciary has gone without a leader for about a year since Odoki left office in June 2013.
Justice James Ogoola, who chairs the Judicial Service Commission (JSC) – the body constitutionally mandated to recruit the CJ, has said the absence of a CJ has maimed the Judiciary.
“We are disabled,” Ogoola said on April 16 as the ULS was warning of a strike, “the Judiciary is disabled, and is walking not on its feet but on crutches. That is not the situation we want to be in if we can avoid it and there is no reason not to avoid it.”
Another top judge, Principal Judge Yorokam Bamwine, has spoken of a deliberate attempt by the Executive to undermine the Judiciary.
“High Court makes orders,” Bamwine noted in a letter to a local media outlet, “they are either rubbished by the Executive or reversed immediately.”
The absence of a CJ threatens to become a full-blown crisis. The Legal and Parliamentary Affairs Committee is also seeking a meeting with Museveni over the issue.
Meanwhile, seasoned human rights lawyer, Laudislaus Rwakafuzi in December 2013 filed a petition to the East African Court of Justice over a general case of Museveni’s failure to appoint judges. At the time, the ULS, declined to be part of Rwakafuzi’s suit.
Now, a section of ULS membership feels that the ULS leadership has only paid lip to the matter of the crisis in the Judiciary.
Museveni appears to have deliberately desired the CJ crisis to simmer. When Odoki clocked the retirement age of 70 years in March 2013, he was asked to stay on for a constitutionally- mandated three-month period as a successor was sought.
When the three months neared expiry, President Museveni was slapped with a law suit in the Constitutional Court when he sought to cling on to Odoki as chief justice.
According to the Constitution, the Chief Justice is the head of the Judiciary and is responsible for the administration, supervision of all courts in Uganda, giving orders and directions to the courts necessary for the proper and efficient administration of justice.
More specifically, the Chief Justice heads the Supreme Court—the highest court in the country.
Today, there are several high-stakes cases before the Supreme Court that cannot proceed for lack of a substantive CJ.
Critics say Museveni has intended for this crisis to go on unresolved because, they claim, it works for him.
Museveni would rather have a Judiciary in disarray than a properly-functioning one with a proper and independent leader, they claim, the reason he wanted to re-instate Odoki even when he had exceeded the constitutional age limit for a Chief Justice.
Apart from Odoki’s attempted appointment, Museveni had Justice Steven Kavuma, who has been dubbed a ‘cadre judge’ because of his closeness to the ruling party, become Deputy Chief Justice and acting Chief Justice at the same time. The Constitution does not provide for an acting CJ.
Odoki will not have any of that. He told The Independent that the source of all trouble was the ULS.
“The President nominated me and ULS rejected the decision, so let them choose a CJ.” Odoki said, “Don’t they (ULS) need a CJ now?”
He added that by blocking him, the ULS is only postponing the problem.
“The choice of a CJ is not a simple matter,” Odoki added.
Odoki, The Independent has learnt, was referring to what has become apparent. The promoters of the suit appear to have tied themselves up in legal tinsel in a case mired by ambition, self-interest, and politics.
Even Gerald Karahunga; the Youth MP who took the case to the Constitutional Court, is starting to feel the public frustration with the legal shenanigans he unleashed.
“People are saying I am the reason there is no CJ,” Karuhanga told The Independent, “That is not true. “My petition is not about Odoki. The President can appoint anybody he wants but laws are about to be flouted; they intend to water down the Judiciary.”
Karuhanga’s colleague, MP Medard Lubega Ssegoona, (Busiiro East) blames Museveni for the crisis.
“Whether deliberate or not,” Ssegoona says, “appointing an acting Deputy CJ as acting CJ was brewed in mischief. I blame the appointing authority.”
He adds: “Recycling the retired CJ was not done in error but illegally. I think Museveni is doing this because of impunity and Ugandans are tolerant. The only solution is to throw out Museveni.”
Former ULS Secretary General, Nicholas Opiyo, says the government’s attempt to re-appoint Odoki is an abuse of judicial process “for pure convenience.”
Since the disputed elections in 2001 and 2006, President Museveni is highly aware of the critical role of top judges to his political survival. He, therefore, appears to be treading cautiously on the CJ job. Unfortunately, Museveni’s caution appears to have degenerated into inertia.
Among those who Museveni would name as CJ is the distinguished Justice of the Supreme Court, Bart Magunda Katureebe. Known for his integrity, Katureebe is a predictable judge – a trait that controlling politicians fear. He was, apparently the favoured choice of a panel of the Judicial Service Commission, which is constitutionally mandated to select CJ candidates and forward three names to the President to pick one.
On June18, five days to the end of Odoki’s three-month period to his retirement, the JSC led by Justice Ogoola forwarded Katureebe’s name to Museveni together with the other top contenders he had outperformed; Principal Judge Bamwine and Supreme Court Judge Esther Kisaakye.
As required by law, Museveni should have named one of them CJ pending approval of the Parliamentary Appointments Committee chaired by Speaker Rebecca Kadaga. The process stalled at Museveni’s table.
Museveni wrote back to JSC acknowledging that the Justice Katureebe proposal was a good choice. But he never appointed him.
Instead he wrote: “It is my decision that for these two years, His Lordship Justice Benjamin Odoki should continue to be Chief Justice so that we maximize the services of our human resource. Therefore, send the appropriate instruments for my signature.”
Apparently, the President had pounced on a letter written on June 26, 2013 by the JSC implying that retiring senior judges could be retained in acting capacity.
Apparently, some members of the JSC who are retirees had written the opinion as a way of protecting their own positions.
Ironically, The Independent has learnt, the JSC sat thrice to oppose Odoki’s reappointment. They met on July 16 and 29, and August 1, 2013.
Details show that in the July 29 meeting, eight members of JSC sat from 2:05 pm up to 3:50pm at the commission’s boardroom at Farmers House.
The members present included; Ogoola, his deputy Esther Kisaakye, Peter Nyombi, Prof. Fredrick Ssempebwa, Henry Kyemba, Charles Okoth Owor, Grace Oburu and JSC Secretary Kagoole Kivumbi.
Katureebe, who is a member of the body, did not attend this meeting and neither did he attend the one of July 15.
Ogoola in a letter dated July.16 told Museveni that the commission had sent the instruments of appointment of Odoki, John Tsekooko, Galdino Okello and Christine Kitumba as acting justices of the Supreme Court but maintained that the reservations regarding Odoki’s appointment as substantive CJ remain as expressed in JSC’s letters dated November 20, 2012 and March 21, 2013, remained.
“I trust the Attorney General will guide you further on this,” Ogoola concluded.
But on July 30, the Attorney General Peter Nyombi wrote to the President saying; “I did also state in my view that the Commission whose meetings I attend had no substantial reason that would make it impossible for it to advise you to appoint Justice Benjamin Odoki Chief Justice – as is required by Clause (1) of Article 142 of the Constitution.”
The clause provides that the CJ shall be appointed by the President acting on the advice of the JSC and with the approval of Parliament.
Nyombi argued that it is clear from Clause (1) of Article 142 that the appointment of the CJ is the preserve of the President and the President can only consider the JSC’s position as advice.
Nyombi noted that he had tried to persuade the Commission to give such advice but the Commission refused.
“The Commission insisted on having reservations,” Nyombi wrote, “which reservations have never been clearly spelled out. So although the Solicitor General has prepared the Instrument, I thought I should bring the position of the Commission to your attention.”
On Aug.1, Ogoola rebutted with a three page letter to the President spelling out the Commission’s reservations as being the ‘absence of Constitutional authority to re-appoint, let alone appoint, a Chief Justice who has attained the age of 70 years.”
“The commission’s reservations are grounded in the letter and spirit of the fundamental provisions of the Constitution,” Ogoola wrote. “For the Commission to advise otherwise would be to advise an illegality and to transgress the solemn oath, which the Commissioners took to uphold, protect and defend the Constitution.”
Ogoola maintained that the Constitution is clear to the effect that a temporary vacancy in the office of the CJ is filled by the deputy CJ and permanently by a substantive appointment through a tripartite formula; advice by JSC, appointment by the President, and approval by Parliament.
“Nowhere in that Article (142) is the question of recalling a retired CJ or DCJ or PJ raised. That is because temporary absences of the CJ, DCJ and PJ are addressed elsewhere in the Constitution, in provisions that are specific…”
He added that the matter was before the Constitutional Court.
“We will await the authoritative interpretation of that court to put finality to this issue of judicial appointments,” Ogoola added.
But Ogoola may have to wait a little longer as Museveni appears to be in no hurry to resolve the impasse and the Constitutional Court, which is led by Justice Stephen Kavuma, is criticised for kowtowing to Museveni and not acting.
Retired Supreme Court Judge Prof. George William Kanyeihamba, the lead counsel in the case against the reappointment of Odoki, says two of the judges of the Constitutional Court; Augustine Nshimye and Steven Kavuma had been asked to excuse themselves from hearing the petition over bias to no avail. He said Kavuma is a direct beneficiary in this case.
Apart from the Chief Justice crisis, shortage of judges also plagues the Judiciary.
At the Jan. 26 Annual Judges Conference in Entebbe, Principal Judge Bamwine, hinted on the matter.
He pitched the idea where the law can be reformed to give the Chief Justice the powers to appoint “contract justices” and “contract judges” on the advice of the JSC wherever need arises as is done in other jurisdictions. At the moment, even this is impossible since there is no CJ.
Consequently, Bamwine said vital time of the Court of Appeal is lost in Constitutional litigation, which partly accounts for the case backlog in that court and other courts, which have to wait for outcomes of references before they can proceed with the substantive cases that gave rise to them.
Karuhanga’s case is among those Yorokamu was speaking of since he is among those seeking constitutional interpretation of Odoki’s reappointment. And as the waiting goes on, President Museveni claims, it is this case that is standing in his way to appoint a CJ.
The Court of Appeal that is supposed to have 15 judges has only eleven including Kavuma, Nshimye, Remmy Kasule, Fredrick Martin Stephen Ngonda Ntende, Solome Balungi Bossa, Eldad Mwangusya, Rubby Opio Aweri, Faith Mwondha, Geoffrey Kirabwire, Richard Butera, Lillian Tibatemwa Ekirikubinza, and Kenneth Kakuru.
At the end of 2013, the court is reported to have had a workload of 4,280 cases – 2,149 of them civil and 2,131criminal.
These judges are also expected to sit and constitute the Constitutional Court. The latter, according to official documents, had a total of 492 pending cases comprising election appeals, applications, and petitions by the end of 2013.
The Supreme Court has eight judges instead of eleven as stipulated in the Constitution.
They include Katureebe, Jotham Tumwesigye, Esther Kisakye Mayambala, Stella Arach Amoko, Odoki, Christine Nakaseta Binaisa Kitumba, John Tsekooko and Galdino Okello.
The three judges Katureebe, Tumwesigye and Kisakye are members of the JSC, an interested party in the Odoki case. This effectively leaves the court with five justices. Some in the legal fraternity got concerned when Kisakye failed to excuse herself from the meetings discussing the CJ issue.
However, analysts say the remaining five are all interested in this case because they qualify to be appointed CJ. Odoki also sits on the bench. As it is, the longer it takes for the Constitutional Court to provide Karuhanga the court proceedings to appeal to the Supreme Court; the longer Kavuma will act as CJ and Deputy CJ. Museveni, meanwhile, can continue using the legal rigmarole to abdicate his executive duty of naming a CJ and the crisis will go on.