By Eriasa Mukiibi Sserunjogi
Constitutional Court ruling could bar Mulyagonja from taking office
Justice Irene Mulyagonja Kakooza may never take up her appointment as Inspector General of Government (IGG) because a Constitutional Court ruling that President Yoweri Museveni seems not to have been aware of at the time he appointed her stands in the way.
Mulyagonja was appointed and successfully vetted by Parliament on April 24 but until now she has not taken office. Not even Ali Munira, the spokesperson for the Inspectorate of Government, knows why her new boss has not reported for duty. “No she has not come,” Munira said, “I am not aware of the reason but we are waiting.”
But Attorney General Peter Nyombi may now know why Mulyagonja is taking long. Nyombi told The Independent that the government’s position on Mulyagonja’s appointment is “consistent” with the ruling. “We are fully aware that she cannot hold two positions without resigning one. She is fully aware and she is working on it,” said Nyombi.
Sources at the Commercial Division of the High Court told us that Mulyagonja still reports for duty at the court although we failed to talk to her. We could not reach her by telephone either. The Commercial Court source said Mulyagonja still has cases to conclude before she moves to her new appointment.
We have learnt that she has been told that should she take up the new appointment, a court petition could be filed that could throw the Inspectorate of Government in further chaos.
Mulyagonja’s appointment followed another Constitutional Court ruling in which the court said the Inspectorate of Government cannot carry out functions like prosecution since it was not fully constituted. For two years, the Inspectorate has had only Raphael Baku, a substantive deputy IGG who also doubled as acting IGG. The law requires that the Inspectorate is comprised of an IGG and two deputies.
A source told The Independent that Mulyagonja wants the two new deputies to first be appointed so that she takes over a functional Inspectorate. Our source also says that she does not want Baku to be one of the deputies.
But Mulyagonja Mulyagonja’s most pressing source of concern is a ruling by the Constitutional Court in Constitutional Petition No. 10 of 2008 filed by the former Ministers of Health Jim Muhwezi, his former deputies Mike Mukula and Alex Kamugisha and former President’s Private Secretary Alice Kabatsi. The group, who in 2007 were charged with stealing Global Alliance for Vaccines and Immunisation (GAVI) funds and were being prosecuted by IGG Faith Mwondha, challenged the constitutionality of their prosecution.
In one of the grounds for the petition, the petitioners told the Constitutional Court that the appointment of Justice Mwondha as IGG was contrary to the constitution, arguing that it contravened the principle of separation of powers between the executive and the judiciary, the independence of the judiciary and the functions and duties of the IGG.
Bob Kasongo, one of their lawyers, argued that Mwondha had taken oath of office as a member of the judiciary to administer justice to all independently, impartially and without fear or favour. But on her appointment as IGG, Kasango argued that Mwonda had joined the executive branch of government because she then had powers to investigate, cause investigation, arrest, cause arrest, prosecute or cause prosecution in respect of cases involving corruption, abuse of authority or public office.
The Justices, led by then deputy Chief Justice Leticia Mukasa Kikonyogo and including Mpagi-Bahigeine, Amos Twinomujuni, Constance Byamugisha and Steven Kavuma, were convinced that Mwondha could not possibly perform her role as an independent arbiter (the judge) and at the same time investigate, arrest and prosecute.
Mwonda’s acceptance to serve as IGG, the court ruled, violated the constitution because it turned a judge into a “litigator on behalf of the state, something that no judge should ever do”. The court therefore declared whatever Mwondha had done as IGG null and void.
Should Mulyagonja resign as a judge?
The Independent has learnt that a big debate within the legal fraternity followed Mulyagonja’s appointment as IGG, in light of the ruling, with some lawyers petitioning Uganda Law Society President James Ssebugenyi. Ssebugenyi reportedly contacted leaders in the judiciary including Chief Justice Benjamin Odoki and Mulyagonja over the matter.
But although the quagmire in which Mulyagonja finds herself has aroused explosive debate in the legal fraternity, the lawyers we talked to were uncomfortable with being quoted about the matter. They say it is sensitive since it concerns a member of the judiciary. Some of them say, however, that Mulyagonja should resign as a judge if she wants to be IGG.
If she resigns, she would have to be reappointed to the judiciary if she is to return at all after her tenure as IGG. When she was originally appointed IGG, the understanding was that she would take leave from the judiciary and return after serving as IGG like Mwondha did.
One lawyer said, however, that hoping for reappointment after serving out her term as IGG is a tough call for Mulyagonja because even if President Museveni assured her of reappointment, she cannot be sure that by the time she has done the four or eight years as IGG, Museveni will still be president, or even if he will still be president, he will be interested in reappointing her as judge.
But other lawyers say Mulyagonja’s appointment cannot be rescued because even if she were to resign before being sworn in as IGG, there is still a chance that someone would go to court and argue that by the time she was appointed she hadn’t resigned as a judge.
To illustrate the point, one lawyer used the example of determining an election petition. He said that since it is a requirement that a civil servant first resigns before being nominated for elective office, there have been cases where former civil servants who were nominated to stand for election before resigning but resigned soon afterwards eventually had their elections annulled on the argument that their nomination and election was null and void from the start.
Mulyagonja faces other tough choices. At 49, she still has 16 years left to serve as judge of the High Court until she retires at 65. As IGG, on the other hand, she can only serve two terms of four years each and therefore at the maximum retire at 57.
As judge, she is entitled to pension since she is considered to be a civil servant but she would lose out on the pension if she leaves the judiciary and becomes IGG. One lawyers summed up Mulyagonja’s quandary thus: “As IGG, she will have clout, but our turbulent politics and the sensitivity of the IGG’s job don’t guarantee her protection from the political class. As judge, she enjoys security of tenure but won’t be as influential as the IGG.”
Issue still under wraps
But as some lawyers mull over the matter, many other lawyers and members of the judiciary remain unaware of the ruling that has sparked the controversy. When the ruling was delivered on May 14, 2010, the controversy that engulfed Mwondha’s exit from the Inspectorate had long died down and she had returned to the judiciary.
In June 2009, Mwondha had refused to appear before the parliamentary appointments committee for vetting to get a second term in the office of IGG. When the Constitutional Court subsequently ruled that Mwondha had to be subjected to parliamentary vetting before getting a second term, her bid collapsed and she returned to the judiciary.
So the 2010 ruling, even if it declared her actions in the office of IGG null and void, lawyers say there were no real consequences in that regard. The person who is bound to be seriously affected by it is Mulyagonja.
But even Judiciary Spokesperson Erias Kisawuzi wasn’t aware of the ruling. “What does the Constitution say?” Kisawuzi responded on being asked whether Mulyagonja was resigning from the judiciary to take up her appointment as IGG. Kisawuzi said that all she needed was to take leave, after all “the constitution says that the president shall appoint a person qualified to be a High Court judge.”
But lawyers we talked to argue that being qualified to be a High Court judge is different from being a High Court judge. “I have been an advocate for ten years and I qualify to be a High Court judge and therefore IGG,” said one of the lawyers.
Article 143 sets the requirements for being appointed IGG as having been a “judge of a court having unlimited jurisdiction in civil and criminal matters, or a court having jurisdiction in appeals for any such court. A person who has been an advocate in any of those courts for a period not less than ten years also qualifies to be named IGG.