We can annul presidential election here – Katureebe

Your counterpart Chief Justice David Maraga and the Supreme Court of Kenya have just made legal and political history, annulling a presidential election. What do you make of this historic development?
I think it is an important decision. It must be seen for what it is, in the context of Kenya, the law of Kenya, the facts and pleadings given to the court. I think it is an important decision and may act as a very persuasive authority for other countries not only in the region but Africa.

Ugandans drew comparisons with our presidential election petitions of 2001, 2006 and 2016. What is your take on this comparison?
You know people have also tended to forget that this is the second time the Kenya Supreme Court has made a decision and it is different from the first. May be they learnt from the previous petition and decided to depart from that or it may well be that the case was overwhelming and the court had no choice but make the decision they made.
I think it is simplistic to say in Uganda they decided this, they should have decided this and that way because the Kenya court has decided. One should look at the case that was before the two courts. What were the facts, evidence before the court, how was the case pleaded? So I wouldn’t go beyond saying it was an important decision which may form a very strong persuasive authority for other courts depending on the matter before them.

Some people have argued that it was a reckless decision whose ramifications the judges didn’t think through. Do you think so too?
This raises a question I believe people should be discussing; what happens after the decision of the court? We came up with recommendations which we think should be addressed because there are questions that people don’t address. In the Kenya constitution, if you annul an election you have 60 days to organise another, so depending on the reasons for the nullification, the country has 60 days to correct mistakes found to have been committed.
In Uganda if you nullify an election, you have 20 days within which you must correct whatever mistakes and hold another election. Isn’t that something that the country ought to be thinking about? Or are we going to be saying no matter the consequences the election should be nullified irrespective of whether what follows is a free and fair election.
People like you in the academia, press and so on should be looking at the Supreme Court of Uganda recommendation in this context. How best can we address mistakes discovered in the past instead of leaving them and saying we should have nullified. Kenyans can also say why didn’t Mutunga [former CJ] and his colleagues before nullify the election?

After that decision, your counterparts in Kenya walked home safe and tranquillity obtained in the city. Are you confident if such a decision was made here the same would happen?
There are decisions courts have made that the executive hasn’t liked and we were called names but life has gone on. I think it is a learning curve for everybody that a decision of the court will be made, you don’t like and life will go on. It is not peculiar to Uganda or Africa. When the British High Court made a decision on Brexit politicians said the judges were enemies of the people. The Lord Chancellor had to come out and issue a statement and they had to go to the Supreme Court which upheld the High Court decision and the matter ended up in parliament. In the USA you have seen judges being called names.

That is happening in Kenya with president Uhuru Kenyatta and his deputy labelling judges crooks
Exactly, but even in Uganda when you make a decision the government doesn’t like and other people like, then the Judiciary is independent but when you make what people like and government doesn’t then, the President and other ministers call you names. This goes on all the time. The courts world over suffer that, but that independence will come in when I give my decision, you aren’t happy with it, you appeal.

Has Uganda reached the level of political maturity we saw in Kenya where the president’s election is annulled and the skies don’t fall?
I think so. I have no reason not to think so. I made the decision (in Amama Mbabazi versus Yoweri Museveni and Electoral Commission) to have the proceedings of our court public. I could have refused cameras but I wanted the world to see the evidence we were receiving. If evidence had come out and everybody was saying this is a watertight case as was apparently happening in Nairobi, I would have no problem with my colleagues making a decision to annul the election and I am sure everyone would have seen that evidence and said the judges were correct.
But if after that period everyone, including the petitioners, are saying “we actually didn’t have evidence, the evidence wasn’t there”, you would look funny annulling the election.

In both 2001 and 2006, we came close to having President Museveni’s election annulled with one justice making a difference. Paint a picture of the dynamics at play then, especially in 2006 when you heard Kizza Besigye’s petition
I think the problem or the issue in Uganda is the law recognises that you have malpractices but to annul the election the malpractices must have substantially affected the results. In Kenya the law is not spelt that way but looking at the decision that has come out, there is something that moves towards that when they say the irregularities affected the integrity of the election.
What is the integrity of the election and how do you judge it? This is when you get to the argument of substantive, quantitative, numbers and so on but it still remains – reading that judgment – that it is not just that a malpractice has occurred; it has to have affected the integrity of the poll. So the debate is what amounts to a substantial effect?
Parliament could tomorrow make a different provision may be along the Kenya line or something entirely different. If you breach any part of the law, the election is annulled. So in Kenya they have 40,000 polling stations while in Uganda we have about 20,000. If you had malpractices at 100 polling stations out of 20,000 that amounts to a breach of the law and constitution at 100 stations, would you annual a presidential election because the law was breached at 100 stations? There are those who say yes, as long as there was any breach, annul.

Constitutional law experts like Dr Busingye Kabumba, your colleague at the Supreme Court, Justice Lillian Tibatemwa, have authored a book on election petitions and argue that if you have breaches that offend the Constitution, then there is good reason to annul the election regardless of what the Presidential Elections Act states on substantiality given the Constitution’s supremacy and its dictate on free and fair elections stands taller than the substantiality test
First of all, you have to establish what is free and fair. Let’s use an analogy; when someone sits an exam and scores 75 per cent you give first grade, 60 per cent you give him a lower, 50 per cent a pass. Have they passed? Is it free and fair when it is 50 per cent or 60 per cent or 70 per cent? Does free and fair mean 100 per cent? Would you say every aspect of the Constitution must be observed for you to have a free and fair election? If not then you go to the argument of what may not be observed. So you say okay, these people were meant to open the polling stations at 10am but they started at midday but still that produces a free and fair election if everyone votes.
So what is the breach there? If people didn’t open at 10am as the law provides but the law also says you can extend and at the end, everyone voted even after midnight? What would be the breach fundamentally there?
The Constitution gives a broad provision but the detail is found in the operative law so to read the Constitution minus the law may not be the answer because you are dealing with a human situation.

Were you surprised by the Kenyan decision to annul the election?
It didn’t actually surprise me because I tried to follow the petition. The allegations made and the depth with which they went to show what they said was wrong, you don’t simply say these people announced wrong results. You say form this, at this station is not there, this server was done like this and you bring computer evidence to back it up. That was something that would have anyone thinking and when I saw James Orengo and Prof Lumumba submitting you could see the quality and depth of arguments of the evidence submitted. I wasn’t surprised that the judges found the way they did.

Critics of the decision, especially those close to Kenyatta, say this was a civilian coup by the court and an affront on the ‘will of the people’. What do you make of this assertion?
I think they are wrong. The questions is, has it been done in accordance with the constitution of Kenya? That is the issue. They participated, put in arguments, their argument didn’t win, a decision was made by a competent court in accordance with the constitution and the decision must be respected.

There are claims that in 2006, President Museveni had telephone contact with some of you of the seven judges and that influenced how the court upheld the election. What happened? Can we set the record straight?
I saw that in your (Monitor) newspaper articles. I have heard of it when I was at the court. The truth is that it didn’t happen to me. I never got a call from the President or anyone else. The only time I heard that someone said he got a call was a judge who was referring to a call made to him by another judge. So all this is speculation. Even in the recent (2016) petition people said President Museveni called me. Absolute rubbish! Nothing like that happened. I decided that petition on the basis of my understanding of the law and facts as pleaded and proved in court.

Your colleagues Justice Wilson Tsekooko and the late Justice Arthur Oder made a compelling case for the election to be annulled in 2006. Their arguments didn’t move you?
I wasn’t persuaded by them and they didn’t persuade me. That is what the law is. You dissent and give your reasons. Sadly Justice Oder passed away before he wrote the reasons but I read the reasons of my friend Justice Tsekooko. We don’t agree, he respects my decision and I respect his.

An argument has been advanced that Kenya’s Supreme Court could arrive at the decision it did because in part, the justices of that court are transparently hired. What is your view?
I have heard that argument but isn’t it rather self-defeating? Are you saying Justice Maraga and his team went through any more transparent vetting than Justice Willy Mutunga (former CJ of Kenya) did? It is the same court and I think the first one went through a stronger sieve as the thing was new and people asked all sorts of things but why didn’t they nullify the election in 2013?
At the end of the day, it is the self-esteem, integrity, knowledge and expertise of the judge and not really how he was appointed.

How much influence does Mr Museveni actually wield on the Judiciary?
In what terms?

How judges arrive at their decisions, especially in cases where he has an interest
I don’t think so. I have been here for 12 and half years and he has never talked to me about how a particular case should go and I have no reason to think others have. As I said it depends on the integrity of the individual.

Where is the place of that assertion in a context such as ours where talk of the Judiciary being infested and infected with cadres is ripe?
It depends on who is saying that because sometimes what he is saying is that there is absence of his own cadre. When you are a judge, you are a national person!
In my understanding when dealing with a case, it is my reputation that is at stake. It is not Museveni or a minister; it is me who is at stake. You write that decision; it is on the Internet the same day it is delivered, this decision is not only read by law students in Uganda but also worldwide.
I was pleasantly surprised to get an email from a professor in California telling me she had read my decision in the Kwoyelo case and was happy with it. That is the value you make. The other day I was travelling to New York and met former Tanzania president Jakaya Kikwete in Dubai on the same flight. He introduced me to the president of Malawi who was in the first class section and the president, also a professor of law, instantly recognised me and said he had read some of my decisions. That is what you aim for as a judge. If you write a decision that is so patently wrong, someone will write and say your decision in this case was stupid. How does Museveni save you from such?

Your outgoing deputy CJ Steven Kavuma’s attempt to join the Supreme Court as acting judge suffered a stillbirth as this newspaper reported but how would you describe his tenure?
(Laughs) I think I leave that to you!
My Lord the question is put to you
But he has tried! I think it was difficult, I believe if you try to do your job under so much negativity, some of which may be justified and some not justified, other people may even say if this is what they think let me do this and that; anyway it is all bound to impact on you, your self-esteem and the way you look at things. It is difficult to make a proper analysis of his tenure.

One would argue that the fact that we had Mr Kavuma at the apex of the Judiciary is evidence of how punctured independence of this institution is…he was a scar on the conscience of the Judiciary
But you see there is institutional independence and independence of individual judges. Take the four rebel MPs case. The Constitutional Court presided by Justice Kavuma decided and people said the Judiciary isn’t independent. They appealed to the Supreme Court and we over turned the decision and people said the court is independent. When does the court become independent? We have to distinguish between institutional independence within the context of the Constitution and law and individual judges.
There is no doubt all over the world there may be corrupt judges; sometime it is politics and individual bias.

Your appointment as CJ came against the backdrop of a two-year stalemate and some people say because you emerged from this process after striking one or two compromises with the President
Let’s go with the facts as we know them. The President, Prime Minister [Amama Mbabazi at the time] and Attorney General decided the former CJ should continue. He wanted to continue. The JSC [Judicial Service Commission] took a different view from that of the AG that even if you reached 70, you could still serve as CJ. People were stuck in their positions and JSC went ahead with recruitment. I didn’t apply for this job. We were nominated by different stakeholders like the Faculty of Law, Uganda Law Society, etc.

Who were the others?
Justice Jotham Tumwesigye, Justice Kisakye and Justice Yorokamu Bamwine. I later learnt my name came up top. So the four of us met the JSC and I asked them if the exercise was not in futility but they said they would do their work as the Constitution mandates, make recommendations and let the President decide what he wants to decide. There was a stalemate that ended in court after which I was appointed.

As all this happened were you in contact with the President?
No. Not during that time.

And no compromise was reached? Knowing how things work in this town surely some cards must have been on the table my lord
But what compromise could he make with me? I didn’t recommend myself or apply for this job. They talked about me and he said that one can wait. Around that time I had the occasion of meeting the President and gave him my view; that his position was wrong and he would be challenged. He said let me call the PM [Mbabazi], he consulted and they decided their position was correct. I didn’t talk to him again, there was no need to, till after my appointment to formally meet him.