Meet Justice Odoki, who served Amin and saved the country

Bumpy road to the summit. “You see, you had two alternatives, run out of the country or stay and accept to serve. And I stayed.” These were some of the words retiring Justice Benjamin Odoki used in an exhilarating interview with the Sunday Monitor’s Emmanuel Gyezaho over a wide-range of issues, including respect for Judiciary, incursion of the High Court by the Black Mambas and the crises he has handled while at the helm of Judiciary:-

How did it all start for you to ascend to the very top of the Judiciary?
Anybody to become a judge, you have to be a prominent lawyer; you had to be experienced, somebody recognised within the profession. During those days there was a system we called ‘tap on the shoulder’ or ‘secretive consultations.’ If you are fit, we tap you on the shoulder, ‘can you come and help us, we want you to be a judge, or secretly they consult, whom do you think is fit to be a judge among the lawyers. That is the old system and that is how we were identified.

Before I became director of LDC, I was a senior lecturer and before that, I had been a senior state attorney in the ministry of Justice, resident in Mbarara. That is where I was identified in 1972 to come and help set up that bar course at LDC. We taught the first students. Some of them were Omara Atubo, Justice Amos Twinobujuni. They were 24 students in total. And so I had grown up through the practice, through teaching practical skills, through administration of the institution but in my view I was not ready.
I was director of LDC at age 31. I was requested to become a judge of the high court at 35, and I thought that was too early for me.

Ideally, what age should you have been?
At least above 40. When I was asked, I declined until I was told, yes, you have declined, you will just hear the announcement.

Who told you that?
My friends in the Judiciary, Justice (Joseph) Mulenga and James Obol Ochola. Those were the lawyers on the Judicial Service Commission. The Chief Justice at the time was Justice Mohammed Said. The Attorney General was Matias Matovu. As we were here inaugurating the court of appeal for Uganda, I was dressed like a lawyer, with a gown, seated at the bar, and the judges were sitting at the bench, the Attorney General and Minister of Justice, MB Matovu announced that His Excellency the President has been pleased to appoint the following judges as judges of the High Court: Justice Benjamin Odoki, Justice Jeremiah Ntabgoba and Justice George Engwau. I was from the LDC, Justice Ntabgoba was the administer general and registrar general and Justice Engwau was chief magistrate in Tororo.

What was it like serving during Idi Amin’s reign?
It was a big challenge. I was on the other side. LDC was a legal development centre. We did research, studied judgements, wrote commentaries and so on, and published Uganda law records. We also were able to study decrees and were able to advise on how to reform the law. Our main concern was to ensure that we protect the rule of law and we ensure that at least a semblance of protection of human rights is recognised within the laws which were made for Idi Amin. Idi Amin never made the laws himself, they were made by lawyers.
Idi Amin was not a stupid man. At one time there was rampant robbery. His order was robbers should be shot on the spot. We said there is no such law which authorises a policeman to shoot on sight. So he said, “Make decree for me.” So a decree was made; the armed robbery suspect’s decree which allowed the security people on reasonable suspicion that a robbery has been committed, to shoot. So there was some sort of regulation of force.
And now we have the issue of miniskirts. Idi Amin said all people who wear miniskirts should be arrested where upon we said, there is no such law. Someone was arrested and charged at Buganda Road Court, in fact the magistrate said, for as long as there is no law, these announcements by Idi Amin will remain idle talk. Amin said what? You called my decisions idle talk? Who is that judge? He was the chief magistrate of Buganda Road, Wilson Kityo. To save that magistrate, we advised that a law should be made to regulate. It is under the penal code. A provision was made under a provision like idle and disorderly; you are idle and disorderly if you wear a dress of certain inches below the knee.

What day-to-day challenges did you face as a judge under Amin?
You know I was appointed a judge in 1978. So early in 1979, I went to Masaka to do my criminal session. When I was there, at Tropical Inn, I found the hotel full of soldiers, the whole hotel was surrounded. So I asked them, why are you surrounding the hotel, am I a criminal? They said, no we have nothing to do with the judge, the guerrillas have arrived they are near Mutukula. So I said can we leave the hotel and I have freedom and peace to try the people here? They said no we are not leaving the hotel. I cancelled the session and returned to Kampala.
I could not hold a session under tension and fear. These are true stories. But you can see that without defying anybody, we were able to retain the credibility, the independence and integrity of the Judiciary. You cannot try people in a war-like situation where soldiers are moving around with guns and people are not free.
Of course there were other challenges of people being kidnapped and killed. My predecessor Bendicto Kiwanuka was kidnapped and killed. I remember some American pressmen came and visited Mbarara barracks and I think they were killed. A judge, Geoffrey Jones, was appointed to head a commission of inquiry. He investigated and I think he first left the country and then posted the report outside the country thereby almost implicating the military.

Did you have any personal interaction with Idi Amin?
Yes, I did. I was the head of LDC, I invited him for graduation and that is how he came to know me. We had many interactions in many places. It was mandatory when Idi Amin calls a meeting, all heads of institutions, commanding officers, because there were no members of parliament. There was the cabinet, the military council, heads of departments, permanent secretaries, all those had to attend. That is how I went to Nile Mansions to attend this so-called trial by OD of Archbishop (Janan) Luwumu.
They laid guns there and said these are the guns you are having, then read a statement and said this is the statement you have written. I had to go there. But after I had seen the trial, we were told to go inside the conference centre that Amin was going to address us. I went away. I was so sick because what trial was that?
I can tell you another incident. I used to cut my hair at that Pentecostal building at the corner there. I went there to sit and as I was cutting my hair, Idi Amin came driving a jeep. I knew him and he knew me of course. So I said, “Your excellency, please let them cut your hair, I can wait.” He said, “No it is your turn” and he drove off. I tell you from that day, I never visited that saloon lest he found me again and is forced to drive away without getting his haircut.

How did it feel being appointed to the bench by him at a time when political tension and unrest was rife?
You see, you had two alternatives, run out of the country or stay and accept to serve. And I stayed. I was appointed when Idi Amin was getting out of the country. His regime was actually almost falling. I came here [Judiciary] in September 1978 and it was already a gone case because he had already invaded Kagera. I could say I served Idi Amin for six months; September to April.

What about the liberators? Did they not accuse you of being an Idi Amin judge?
Yes they did but we told them, please can you give us a chance to prove that we are actually well deserved judges, we are experienced, we are intellectually alert and we can compete with anybody who has been in the diaspora. So we didn’t go away and we are still here. Those challenges sharpened our intellect and not only survival, you had to be extremely vibrant, innovative, and you had to know how to handle difficult situations, to deal with those military people. We were teaching military people military law, to teach the soldiers to respect human rights. It was a challenge but we thought we needed to build institutions despite the challenges.

As you bow out of the Judiciary, do you feel you leave the institution better than you found it?
Oh, much better. This judiciary here in Africa is highly respected. In Uganda here, nobody knows how it is respected but if you go to Kenya and listen to submissions during the petition, how many times they quote Ugandan cases we have decided here; our jurisprudence is robust, is solid. We have very good lawyers here, intellectually and in terms of experience. Yes, we have judges who are chief justices of other countries. Many judges have wanted to go out but we cannot allow everybody to go. Ssebutinde has gone and that shows quality and credibility of the institution.

How many commissions have we done for the people of Uganda?

You’ve done many but we don’t see the reports.
Don’t ask me about what has happened about the commissions but we have held credible and very sensitive commissions.

Where are the reports, why haven’t they been made public?
Well, don’t worry, for us we do our jobs as judges because of our skills.

But don’t you think your jobs are rendered futile when you write a report, submit it and that becomes the end of the matter?
Futile? History will tell you whether it was futile (laughs out loud). You see, this is not the end of this country. It is an era. Eras come and go. So if this government does not attend to a report, the report is there. It is evidence. It will inform future readers on what went wrong and how its problems can be solved. It is documentation and an analysis of a problem. I am sure it will inform reformers; social reformers, political reformers and legal reformers.

A lot of public anxiety remains over the way the Judiciary has handled certain cases especially with regards to court awards some of which are stupendous.
You need to distinguish between criminal and civil cases. Awards of compensation can be given especially in corruption cases; recovery of property, money and so on. But a lot of compensation is given in civil cases. These are usually disputes between individuals or between individuals and organisations. They are not necessarily between individuals and the state. But you can have those disputes where the state is involved. Now if you are asking me whether it is connivance, I don’t think it is connivance. I think sometimes it is an error of judgment. Because why would a lawyer demand Shs30 billion for standing in court for one day? On what ground? Has he connived with the judge or with anybody?
And if that person comes to court and the registrar says oh, sorry I have made taxes and think this is too much and it comes to Shs10 billion, Shs1 billion, he has been misled by the lawyer because the lawyer has put his expertise at a very, very high rate and it requires a very experienced judge to bring that award down. I remember there was a reward given to Uganda Blankets when I was at the Supreme Court, I think the registrar had awarded Shs500 million or Shs5 billion. We reduced the fees to Shs50 million only. I said this is sufficient for you to work.

There is this case of Shs13 billion that has got Ugandans pretty angry.
There is no problem. The judges will handle it. You see the registrar is the taxing officer. He does the first preliminary assessment. If you are not satisfied with the registrar, you make a reference to a judge or in the Supreme Court it will be a reference to three judges; you’ve got a reference to one judge, if you are not satisfied, you get a reference to three judges. There is a system of correction for those errors.

Some Ugandans feel you haven’t done enough to exert the independence and influence of the Judiciary. In fact some accuse you of not standing up to the Executive. How do you respond to that criticism?
Yeah, I agree. I agree. I agree that I have not done what they wanted me to do. I am for achieving results. I don’t speak to the gallery. My style of administration doesn’t speak to the gallery. When I was director at LDC there was no strike, there was no acrimonious failure. When I was chairman of disciplinary committee at Makerere, I dismissed two guild presidents. I don’t think you have had anybody who has done that. There was a lot of order. We changed Makerere’sNorthcote Hall to Nsibirwa. We restored discipline at that university. I was member of council. So you see me looking very humble, hmmm…laughs out loud…but in terms of discipline…
When I want to talk to the President, I don’t have to tell the press. No. When I went to the President when there was a strike, I didn’t call the press but the President wrote a letter regretting the incident. Where has the President written a letter to the Chief Justice regretting the incident of what he has done? Where? And how was that obtained? By talking to the press? No. I just went to State House and said Your Excellency let us resolve this issue once and for all but the Judiciary should be allowed to work without interference and he said yes, he agreed.
How have I been able to achieve all these things? Where has the Executive interfered? We have made decisions here, sometimes which are actually against government. Where has it interfered?

Well, in 2005, security operatives besieged the precincts of the High Court and re-arrested freed suspects in what later came to be known as the Black Mamba fiasco.
Well, yeah, that happened but you wanted me to do what? Resign? I think some people said you resign because Black Mamba had come here. But let me tell you, if I had been here, the situation would have been different. If I had been in the country, the situation would have been different.
You cannot come and play around here when am here. Have you heard any fujo [chaos] when am around here? When I am here, I am in charge. And you cannot command my judges. No. You can write to me yes but have you seen any judge who has been commanded to pass a different decision? They are passing decisions as they like, like the one you are complaining about. But most people when they see a decision against an opposition leader, they think the government has interfered. But which government, and who? Would the President talk to a magistrate in Nabweru or in Jinja? That is below his dignity.

What would you have done to prevent this brazen act?
I would have told them get off. If I tell the commander of the armed forces or the Inspector General of Police to remove these people from my chambers you think they can refuse the order? Let me tell you this, the Judiciary doesn’t stop anybody being arrested after he has been released. But you cannot do so on the premises of the Judiciary. Go to the market; go to the road, whatever. The precincts of the courts are sanctified, they are sacred. It’s like an embassy; you don’t go to the American embassy and arrest somebody.

But they did.
I came back the following day, met the judges and then went to see the President. Of course if I hadn’t come immediately, the situation would have been different. It’s the handling, the way you handle a situation is different. I am not just a professional lawyer, I am a manager. I have run many institutions, so I know how to handle crisis situations.

What crises have you handled?
There was a situation here, the referendum case where the judges at the Court of Appeal said there was no government here; that the Referendum Act was unconstitutional and there was a riot. I made a statement immediately and said there is no constitutional crisis, the Judiciary will handle it.

I guess there’d be a vacuum?
The military would just come in. It is as simple as that.

So you averted that situation?
Many situations I have averted but I cannot tell you. (Laughs out loud)

You can tell, surely, can’t you?
I will tell when I have left. But there are many situations and we use common sense. The law is not as ass, as people say. The law should be used to advance the interests of the people at a given time. If you don’t harmonise, you don’t create peace and instead you cause disharmony. That is where there’s a problem with the law about demonstrations. There is nothing against demonstrations but to what extent do you allow it to become violent and destructive. That is the issue; the balance. There is nothing wrong with demonstrations and so on, even riots, sometimes, as a form of protest. The law says you may peacefully assemble. You have to emphasise peaceful assembly.

In the last part of the interview that will run tomorrow - Monday 22 - in the Daily Monitor, Justice Odoki talks about the kind of person he would like to succeed him as chief justice and also advises Dr Kizza Besigye to emulate other politicians in Africa. He for instance says Raila Odinga of Kenya came much closer than him while others like the President of Zambia, Michael Sata, tried many times. “There was Abdoulaye Wade; he had been in the opposition for a very long time. So who knows?”

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Odoki’s judicial journey from 1969
Odoki began his career in 1969 as state attorney attached to public prosecutions. He will be remembered for having spearheaded the amalgamation of the 1995 constitution. He is mostly referred to as the father of the 1995 constitution. He presided over two presidential petitions in which former Forum for Democratic Change president Kizza Besigye challenged the election of incumbent President Yoweri Museveni in 2001 and 2006. Born in Busia, eastern Uganda on March 23, 1943, Mr Odoki went to Kings College Budo for secondary education. He enrolled at Dar es Salaam University where he studied law. He was a year ahead of the late Eriya Kategaya, the late James Wapakabulo who were studying law and President Museveni who had enrolled for a degree in political science. A father of four children, Mr Odoki is the 10th chief justice since independence.