The Constitutional Court has ruled that the re-appointment of Benjamin Odoki as Chief Justice after he clocked the retirement age of 70 is unconstitutional.
In a majority judgment of 4-1, the court observed that there is no single provision in the 1995 Constitution that provides for the re-appointment of a retired Chief Justice to the same position.
The justices in their judgment also faulted President Museveni for reappointing Justice Odoki without having sought the advice of the Judicial Service Commission (JSC) as mandated by the Constitution.
Prof Lillian Tibatemwa wrote the lead judgment which was supported by Justices Remmy Kasule, Solomy Bbosa and Eldad Mwangusya.
Justice Rubby Aweri Opio, however, dissented, arguing that like other civil servants who can be reappointed upon retirement basing on Article 253 of the Constitution, Justice Odoki was no exception.
Justice Aweri said he would have queried the reappointment of Justice Odoki if it was done under suspicious circumstances like promoting selfish interests of the President.
In the lead ruling, Justice Tibatemwa said: “In my view, the petition succeeds. Under the 1995 Constitution, a Chief Justice who has vacated office by reason of having attained the mandatory age of retirement is not eligible for reappointment as Chief Justice of the Republic of Uganda.”
She added: “The reappointment of Hon Benjamin Odoki as Chief Justice of the Republic of Uganda after vacation of office by virtue of having attained the mandatory retirement age is inconsistent with articles 133 (2), 142 (1), 144 (1)(a), 147 (1) (a) 147 (2) (3) and 253 of the Constitution. The advice of the JSC is a prerequisite for the appointment of a Chief Justice and an appointment done without the advice from Judicial Service Commission is in contravention of articles; 142 (1), 147 (1) (a) 147 (2) (3) (a) and 253.”
All the five justices declined to award legal costs to any party, reasoning that the petition, which was filed by Western Youth MP Gerald Karuhanga, was a public interest case.
Mr Karuhanga petitioned the Constitutional Court in August last year, a month after President Museveni had written to the chairman of the Judicial Service Commission, Justice James Ogoola, directing him to offer Justice Odoki a two-year contract as Chief Justice. Justice Odoki had held the position for 12 years.
President Museveni said the extension would allow the Judiciary “maximise the services of our human resource”.
Besides the argument that Justice Odoki had clocked the retirement age, Mr Karuhanga also said the Constitution does not provide for the re-appointment of a retired Chief Justice to the post of a substantive Chief Justice of Uganda.
Mr Karuhanga also faulted President Museveni for ignoring the recommendation of the JSC that Supreme Court Justice Bart Katureebe be appointed Odoki’s successor.
What the panel said
Lillian Tibatemwa (Lead judgement): “...The advice of the JSC is a prerequisite for the appointment of a Chief Justice and an appointment done without the advice from Judicial Service Commission is in contravention of articles; 142 (1), 147 (1) (a) 147 (2) (3) (a) and 253.”
Solomy Balungi Bossa: “It becomes crystal clear that one of the conditions that a nominee for the appointment of re-appointment of the Chief Justice must fulfill is that he/she should not be above 70 years, a mandatory age for retirement stipulated under Article 144 (1) (a). Therefore, there would be no legal basis for which to make the re-appointment and doing so would violate the spirit of the Constitution [embedded in]Articles 143, 144 and 253.”
Eldad Mwangusya: “It’s also my view that the framers of the constitution would not have intended that all the appointments of judicial officers including the acting appointments would be made under Article 142 and that of the Chief Justice would be made outside this provision. My conclusion would be that a retired Chief Justice is not eligible for the reappointment under article 253… The advice of the judicial service commission is a prerequisite. There is no doubt that the final authority in appointment of Chief Justice is the President. The President and even Parliament may not be bound by the advice of the JSC on the suitability of a particular candidate. But where like in this case the JSC [Judicial Service Commission] advised against the appointment of a particular candidate, that advice should have been heeded to.”
Remmy Kasule: “In the case before us, the facts are such that the Judicial Service Commission rendered advice to the President that the Hon Retired Chief Justice Benjamin Odoki having attained the retirement age of 70 years was no longer eligible for appointment as Chief Justice. The Judicial Service Commission never rendered any other different advice to His Excellency the President on this issue. Therefore, that being the issue, there was no requisite constitutional advice from the Judicial Service Commission upon which His Excellency the President could proceed to appoint Acting Hon Justice Benjamin Odoki to be the Chief Justice of Uganda. The advice of the Hon Attorney General to His Excellency the President which advise was contrary to the stand and advise of the Judicial Service Commission.”
Rubby Opio-Aweri: (Dissenting judgment): “In conclusion therefore, I find that Article 142 and 144 were intended to safeguard terms and tenure of justices. Article 253 was intended to maximise the services of the officers. Under that Article, we have seen retired officers being recalled into service. We have seen permanent secretaries who retired being re-called. In the instant case, the legality of the appointment in my view did not create any alarms. The only challenge I would see was if the re-appointment was done under suspicious circumstances by the President for his selfish interests.”