Wednesday August 6 2014

How Attorney General failed to defend Odoki’s reappointment

(L-R) Constitutional Court judges Remmy Kasule,

(L-R) Constitutional Court judges Remmy Kasule, Aweri Opio, and Lillian Tibatemwa-Ekirikubinza deliver their ruling on Monday. PHOTO BY FAISWAL KASIRYE 

This high profile petition was heard one- sided on June 16. This was after the petitioner, Western Youth MP Gerald Karuhanga, alongside his lawyers from Kanyeihamba and Co advocates walked out of court on grounds that the coram to which they had originally objected to over alleged bias, had mysteriously changed.

To that effect, court had the option to dismiss Karuhanga’s petition with costs since no one from his camp was present in court to argue the petition out.
However, court chose to hear the petition basing on the filed supporting affidavits of MP Karuhanga.
The respondent, the Attorney General, Mr Peter Nyombi, was represented in court by senior State attorney Kadoli Wanyama. Mr Nyombi, alongside the Secretary to the Judicial Service Commission, Mr Kagole Kivumbi, swore affidavits in support of Odoki’s reappointment.

What were the issues?
During the pre-trial legally known as scheduling conference, three issues were identified for determination of this petition as whether or not the decision of the President in reappointing retired Chief Justice Odoki as Chief Justice was inconsistent with articles 130, 133, 142 (1), 142 (3), 143 (1) , 144 (1) (a), 147 (1) (a), 147 (2) of the Constitution.

Issue one
Issue one was about the eligibility of retired Chief Justice Benjamin Odoki bouncing back as Chief Justice.

MP Karuhanga’s argument
In his affidavit, Mr Karuhanga argued that the Constitution does not provide for the reappointment of a retired Chief Justice to the post of a substantive Chief Justice and before asked court to declare Odoki’s reappointment as null and void

Attorney General’s arguments
Mr Kadoli, who represented the AG, argued that retired Chief Justice Odoki was constitutionally eligible to be reappointed as Chief Justice after vacating office upon attaining the age of 70 and that such appointment was catered for under article 253 (1).

Article 253 provides that where any person has vacated an office established by the Constitution, that person may, if qualified again be appointed or elected to hold that office in accordance with the provision of the Constitution.

Mr Kadoli further argued that it was in line with article 253 of the Constitution that the President used his powers to recommend the reappointment of Odoki and that the action was not illegal.
“As evidenced in the President’s opinion expressed in his letter to the chairperson Judicial Service Commission dated July 9, 2013, the appointment had been executed in line with articles 142, 143 and 253 of the Constitution,” argued Mr Kadoli.
He added: “There is no provision prohibiting the reappointment of the Chief Justice even though he/she has attained the retirement age spelt out in the Constitution.”

Court’s take
Justice Lillian Tibatemwa in her lead judgment, said she was inclined to believe the arguments of the Attorney General reasoning that article 142 explicitly refers to the posts of the justices of the Supreme Court, Court of Appeal and judges of the High Court as posts which can be held in an acting capacity after individuals have vacated office as a result of the mandatory age limit.
She reasoned that this provision is silent on the office of the Chief Justice, and that this silence sends a strong message that the office of the Chief Justice is not one which can be held by an individual who has vacated office as a result of mandatory age limit.

“In regard to vacancy in the office of the Chief Justice, the enactors of the Constitution specifically provided that the Deputy Chief Justice would take up the mantle until a person has been appointed to and has assumed the functions of that office, there is thus no need to resort to a general provision 253,” held Justice Tibatemwa in her lead judgment.

Prof Tibatemwa laboured to explain this issue by going back to the history of the Constitutions since independence which never had a provision for the reappointment of a retired Chief Justice back to the same position upon vacating office.
She explained that the 1962 Constitution provided that where the office of the Chief Justice was vacant, those functions would be performed by puisne judges as would be designated by the President, acting in accordance with the advice of the Prime Minister.

And under the current 1995 Constitution, its mandated that the Deputy Chief Justice performs the functions of the Chief Justice in his/her absence.
Under the 1967 Constitution, the judge explained that the vacancy in the office of the Chief Justice would be filled by a puisne judge designated by the President.

To that effect, Justice Tibatemwa concluded on this issue by saying the enactors of the Constitution have seen it fit to depart from the earlier Constitutions and to provide that a retired Chief Justice could be appointed to act as Chief Justice after vacation of office, they would have specifically provided for under article 144.

Second issue
The second issue was about the qualifications for the office of the Chief Justice.
MP Karuhanga in his petition had argued that since Justice Odoki had vacated office in June last upon clocking the retirement age of 70, he was no longer eligible to bounce back as Chief Justice as the Constitution does not provide for that.

Attorney General’s arguments
Mr Kadoli, representing the Attorney General, argued that under article 143 which is entitled “qualifications for the appointment of judicial officers” sets out the qualifications for the office of the Chief Justice but makes no mention of age.

Basing on the above article, Mr Kadole told the court that age is not a parameter to be considered in determining whether an individual is eligible for the appointment into that said office.
“The retirement age was just a term of service for judicial officers and attainment of 70 years does not culminate into disqualification for reappointment as Chief Justice,” Mr Kadoli argued

Court’s take
Court in its verdict disagreed with the reasoning of the Attorney General on grounds that one cannot read article 143 independent of article 144 (2), which sets out the tenure of the office of the judicial officers and specifically obliges a Chief Justice to vacate office at 70 years, is that an individual ceases to be qualified for that office.
The court further held that a judicial officer who can continue in office under the provision specifically set out in article 142 does not cover a Chief Justice and that reading the two articles in isolation would go against the cardinal rule of constitutional interpretation that demands that the Constitution must be looked at as a whole and not in isolation.

Third issue
The third issue was about the role of the Judicial Service Commission (JSC) in this saga
MP Karuhanga had argued that it was against the spirit of the Constitution that the President was the one who recommended to the JSC the name (s) of persons to be appointed judicial officers.
Mr Karuhanga further argued that the JSC had duly performed its function by advising the President by forwarding to him names of candidates deemed fit and competent for the office of the Chief Justice but he ignored the same and instead picked Odoki.

Attorney General’s arguments
The Attorney General argued that there is no constitutional provision that bars the President from recommending names of persons to be appointed judicial officers.

Mr Kadoli on behalf of the Attorney General further argued that the President’s letter to the chairman of the JSC merely expressed a view that Justice Odoki should continue to be Chief Justice and that this was not an appointment since he just expressed his opinion as a citizen.
Mr Kadoli further argued that the President did not ignore the advice of the JSC but considered the advice and gave reasons for recommending retired Chief Justice Odoki.

Court’s take
Court disagreed with the arguments of the Attorney General and held that the President can only appoint judicial officers from the list that the JSC provides.

“It’s therefore my considered opinion that the President cannot initiate the process of appointing any particular individual to the judicial office. To allow such a process, would be to undermine the independence of the Commission and in a way subject it to the direction of the control of Executive arm of government contrary to the article 147 (2) of the Constitution,” held Justice Tibatemwa.