Sunday August 10 2014

Odoki’s long journey to retirement

Justice Benjamin Odoki

Justice Benjamin Odoki was denied the chance of extending his tenure as Chief Justice when the Constitutional Court last week ruled against President Museveni’s decision to re-appoint him. . PHOTOS BY GEOFFREY SSERUYANGE 

By Anthony Wesaka

Building the nation. In July 2013, President Museveni re-appointed Justice Benjamin Odoki as Chief Justice despite clocking the mandatory retirement age of 70 years. However, last week, four out of five justices of the Constitutional Court ruled that President Museveni had erred. The ruling followed a suit filed by Western Youth MP Gerald Karuhanga, who faulted the President for ignoring the advice of the Judicial Service Commission that Supreme Court Justice Bart Katureebe be given the job. Anthony Wesaka runs you through the life and career of Justice Odoki.

Family
Justice Benjamin Odoki is married to Veronica, a former civil servant with the Electoral Commission.
His children include; Peter Odoki, public relations officer of Makerere University Business School (MUBS), Phillip Odoki, works with Uganda Law Reform Commission, Dorah Odoki, once worked with Gender ministry and Joshua Odoki. Justice Odoki was born in Busia, eastern Uganda on March 23, 1943 in a peasant family.

His education
Justice Odoki was educated at Kings College Budo and at the University College Dar-es-Salaam, Tanzania, where he obtained a Bachelor of Laws degree in 1969. At Budo, he was joined by the current chairman of the Judicial Service Commission James Ogoola. While at Dar-es-Salaam University, he was a year a head of the late Eriya Kategaya and the late James Wapakabulo who were studying law and President Museveni who had enrolled for a degree in political science.

Career
He was enrolled as an Advocate of the High Court of Uganda in 1969. Thereafter, he was appointed a State Attorney in 1970 and Senior State Attorney a few years later. He also served as director of the Uganda Law Development Centre (LDC). His judicial career began at the age of 35, with his appointment in 1978 as a Judge of the High Court of Uganda.

From 1981 to 1984, he served as Director of Public Prosecutions on secondment from the Judiciary.
In 1986, he was appointed a Judge of the Supreme Court. And from 1996 to 2000, he served as chairman of the Judicial Service Commission. In 2001, he was appointed Chief Justice of Uganda till his mandatory retirement on March 23, 2013 before serving out his three months extension that ended on June 23, 2013.

Mr Odoki, who was at the helm of the judiciary for 12 years, makes him the second longest serving Chief Justice since independence. He was the 12th Chief Justice in the post-independence era. The longest serving Chief Justice in the post-Independence era is Samuel Wako Wambuzi. Mr Wambuzi held this position thrice under three different regimes of Idi Amin, Yusuf Lule and Yoweri Museveni.

Other responsibilities
-Justice Odoki was the chairperson of the Editorial Board of the Uganda Law Reports, and also a member of the honorary editorial board of the Commonwealth Law Bulletin.
-He has published several books and articles on subjects ranging from criminal justice and human rights to constitutional development.
-In 2005, he published The Search for A National Constitution: The Making of the 1995 Constitution of Uganda.
-He taught law at Makerere University where he later served as a member of the University council. For many years, he was chairman of the Uganda Law Council which is responsible for the regulation and disciplinary control of the legal profession.
-He also chaired a committee to review Legal Education, Training and Accreditation in Uganda.

Achievements
-In his 12-year regime, so many courts were built including different High Court Circuits. Several courts were also established under his regime like the Anti-Corruption Division of the High Court that started in 2009 and the International Crimes Division of the High Court.
-He also established the Court of Appeal up-country circuits, where justices of the Court of Appeal in Kampala can travel up-country and conduct court sessions there.
-Justice Odoki was behind the campaign for the salary increment for Judiciary sraff that materialised about a year ago. In 2012, Justice Odoki, then a Chief Justice, took the nation by surprise when he revealed that the Shs5 million he was earning as his monthly salary was equivalent to “pocket change” of a lawyer.
To that effect, he joined a growing line of government workers at the time who were pushing for a pay raise, saying his monthly pay should be fixed at Shs50 million from Shs5 million.
He defended his proposal, referring to himself as the “highest professional” in the country.
Mr Odoki cited the relatively higher pay of Shs43 million earned by Ms Jennifer Musisi, the Kampala Capital City Authority executive director, to further justify his proposal.
-He also introduced a number of innovations like the Small Claims Procedure where cases of commercial nature that are below Shs10 are settled within two weeks, initiated the Plea Bargain idea though still in pipe line,
-Justice Odoki will be remembered for having spearheaded the amalgamation of the 1995 Constitution. This was after he was appointed in 1989 as the chairman of the Uganda Constitutional Commission which collected the views of the public and prepared a draft Constitution for Uganda which was debated and adopted by an elected Constituent Assembly in 1995.
-He presided over two presidential petitions in which former Forum for Democratic Change president Kizza Besigye challenged the election of incumbent President.
- He also campaigned towards professionalising the Bench by phasing out Grade Two Magistrates who are judicial officers with diplomas.

Awards
Dr Odoki is a recipient of several awards like the Uganda Independence Medal, the Lucknow Peace Award, the Order of Merit of the old Budonians, the Distinguished Jurist Award of the Uganda Law Society, and the Distinguished Jurist Award by the Nigerian Association of Democratic Lawyers.

Low moments
-His regime was characterized with “perceived” and “real” corruption as a number of judicial officers were arrested ready handed taking small bribes.
-The salary pay that he campaigned for is little and the disparity between the lower Bench and the Higher Bench is huge. For example, a Grade One Magistrate is earning a monthly salary of Shs1.5 m while a High Court judge is earning a monthly salary of Shs9 million.
-He was also reportedly accused of having decided on who takes the day during the two Presidential election petitions between President Museveni and former FDC boss Dr Kizza Besigye by casting his deciding vote that always favored President Museveni. This could explain the allegation by run-away army General David Sejusa who said Besigye won the 2006 poll but was denied the same
- It was also in his regime that the Black Mambas besieged the High Court and rearrested Dr Besigye who had been granted bail. However, this was not entirely blamed on him as an individual.

On the 2006 elections

Odoki’s judgment on the election petition
- The main contention by the Petitioner (Dr Kizza Besigye) is that the Shs100,000 received by Bashir was a bribe given to him by the 2nd respondent (President Museveni) personally or by his agent, the Principal Private Secretary. There is no dispute that Shs100,000/= was given to Bashir by the Principal Private Secretary to the 2nd respondent on 24 December 2004 at State House. The bone of contention is for what purpose was the money given? what was the motive?

Indeed the second respondent gave them advice on how to fight poverty by forming associations through which they would access government funds for poverty eradication. No reason was given why the 2nd respondent picked on Bashir and his group in particular for bribing to join NRM, and the explanation by Najjemba as to how they came to go to State House is the more credible.
“I reject the claim of Bashir that he was given a bribe of Shs.100,000 to influence him to campaign for the 2nd respondent. I accept the evidence given by the 2nd respondent and Najjemba on this issue.” held Justice Odoki

- The second allegation of bribery against the 2nd respondent (President Museveni) was that he committed acts of bribery by his agents with either his knowledge and consent or approval, by attempting and interfering with the free exercise of the franchise of voters contrary to Section 26(c) of the Presidential Elections Act. Attempts were made to prove this allegation by evidence tending to show that names of voters were taken down in exercise books to indicate how they were to vote in the elections.
“This allegation was not proved and seems to have been abandoned. In any case, I do not see how such acts could amount to bribery.” held Justice Odoki

Thirdly, the Petitioner (Dr Besigye) alleged in paragraph 12(c) of the petition that the 2nd respondent (President Museveni) committed acts of bribery of the electorate by his agents with either his consent and or approval, by agents procuring the votes of individuals by giving out tarpaulins, saucepans, water containers, salt, sugar or other beverages and making promises of giving such beverages. In considering the allegation of bribery under the second issue, I found that most of the allegations were not proved.

The mere distribution of money to agents or their supporters did not amount to bribery unless corrupt motive and the status of the receiver of the money as a voter were established. In order to bring home the charges of bribery against the 2nd respondent, it must be proved that the bribe was given out by his agent with his knowledge, consent and or approval. Many people who were found distributing money were deemed to be agents of the 2nd respondent without necessary proof. Some of the people could have been agents of Parliamentary candidates.

“I find that it was not proved to my satisfaction that any agent of the 2nd respondent committed bribery with the knowledge, consent or approval of the 2nd Respondent (President Museveni).Accordingly, the Petitioner failed to prove the allegations of bribery against the 2nd respondent. It was for these reasons that I answered the fourth issue negative.” ruled Justice Odoki
“Having dismissed the petition, the reliefs of ordering a re-run or a recount were not available to the Petitioner (Dr Besigye)”.

Odoki’s remarks on the 2006 elections petition
-The inadequacy of voter education appears to have contributed to the disenfranchisement of voters who should be empowered through civic competence to better exercise their rights and meet their obligations during the electoral process.

-The Court also notes with dismay the failure of the 1st respondent (Electoral Commission) to avail to the court reports of returning officers on the ground that they were not available while it is mandatory for the returning officers to transmit them to the 1st respondent. I think that the reports should be submitted as soon as the elections are completed. The 1st respondent should determine the period having regard to the need to have the reports available in case results of the election are challenged in Court and the reports are required as evidence.

-Finally, the Court found that certain provisions in the electoral law were contradictory and inadequate, such as Sections 24(5 and 59(6)(a) of the Presidential Elections Act, and Section 25 of the Electoral Commission Act, and recommended that they should be reviewed. The Court was of the considered opinion that all institutions should urgently address the above concerns in order to improve electoral democracy in the country.

-In my view, there is also a need to review and increase the period of 10 days within which to file the petition and the period of thirty days within which the Court is to declare its findings, as provided for in Article 104 of the Constitution and Sections 59 of the Presidential Elections Act.

The period within which the petition should be determined should be increased to at least sixty days to give the parties and the Court sufficient time to prepare, present, hear and determine the petition.
The Presidential Elections (Electoral Petitions) Rules 2001 which require evidence at the hearing of the petition to be presented by affidavit should be reviewed to provide for the calling and examination of witnesses instead of relying on affidavits, many of which may be false or are made under suspicious circumstances and therefore not safe to be relied upon, without cross examination of the deponents.

Chronology of events

July 26 2013: Western Youth MP Gerald Karuhanga runs to the Constitutional Court to challenge the decision of President Museveni in re-appointing retired Chief Justice Benjamin Odoki as Chief Justice of Uganda for being inconsistent with or is in contravention of Articles 130, 133, 142 (1) (2) (3), 143 (1), 144 (1) (a), 147 (1) (a) (2) of the Constitution of the Republic of Uganda 1995 as amended.

July 31, 2013: News comes through that President Museveni has formalised the re-appointed Justice Benjamin Odoki as Uganda’s Chief Justice for the next two years after signing his instrument of appointment to that effect.

August 20, 2013: Lawyers under their umbrella association of Uganda Law Society (ULS), write to the Speaker of Parliament Rebecca Kadaga, protesting the re-appointment of Justice Benjamin Odoki as Chief Justice.

Nov 11, 2013: Lawyers on both sides meet in court before a single judge Geoffrey Kiryabwire in a bid to narrow down the contentious issues in the petition, legally known as scheduling conferencing.

Nov 18, 2013: The Constitutional Court rejects the request to have Justice James Ogoola, the Chairman of Judicial Service Commission; to appear in court in person and testify in support of the petition challenging the controversial re-appointment of retired Chief Justice Benjamin Odoki as Chief Justice.

January 4, 2014: Prof George Kanyeihamba, the lead lawyer representing the petitioner in this matter; rejects the inclusion of Acting Chief Justice Steven Kavuma and justice Augustine Nshimye on the panel to hear the petition; citing alleged bias.

January 9, 2014: Justices Steven Kavuma and Augustine Nshimye make a ruling and refuse to disqualify themselves from hearing Odoki’s case despite pleas to do so.

April 19, 2014: News comes through that President Museveni’s hands were tired in as far as appointing a new substantive Chief Justice (CJ) unless the pending Constitutional Court case challenging the re-appointment of ‘his nominee’ retired Chief Justice Benjamin Odoki back to the same position is determined.

June 4, 2014: Acting Deputy Chief Justice Steven Kavuma and Justice Augustine Nshimye are mysteriously dropped from the new panel set to hear the petition challenging the re-appointment of Justice Benjamin Odoki as Chief Justice.

June 16, 2014: The Constitutional Court concludes the hearing of the Odoki case. The case is heard one-sided as the lawyers who represented the petitioner MP Karuhanga walked out of court in protest over reconstituting a new panel.

July 25 2014: The Constitutional Court sets Monday July 28, to deliver its judgment that would determine the fate of retired Chief Justice Benjamin Odoki on whether he bounces back as Chief Justice or not.

July 29, 2014: Justice Remmy Kasule the lead judge on the panel defers the judgment to August 4, after the earlier date of July 28 fell on public holiday.

August 4 2014: Courts rules that President Museveni erred in re-appointing retired Chief Justice Odoki after he had vacated office upon clocking the mandatory retirement age of 70 on grounds that there is no single provision in the constitution that supports this re-appointment.

Uganda’s chief justices since 1962
1961-1962 Sir Andley Mckisak
1962-1963 KG Bennet (Ag Chief Justice)
1963-1969 Sir Udo Udoma
1969-1971 Sir Dermont Sheridan
1971-1972 Benedicto Kiwanuka
1972-1975 Samuel Wako Wambuzi
1975-1979 Mohamed Saied
1979-1980 Samuel Wako Wambuzi
1980-1985 George Masika
1985-1986 Peter Allen (He was the Chief Justice of British origin who administered the Presidential oath to President Museveni soon after he came from the bush war)
1986-2001 Samuel Wako Wambuzi
2001-2013 Benjamin Odoki
From June 23 2013-todate Steven Kavuma (Ag Chief Justice)

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