Tuesday September 12 2017

Kavuma back at Supreme Court

Justice Steven Kavuma is set to bounce ba

Justice Steven Kavuma is set to bounce back at the Supreme Court. PHOTO BY DOMINIC BUKENYA 

By Ivan Okuda

Kampala- Retiring Deputy Chief Justice Steven Kavuma is slated to be appointed a Justice of the Supreme Court on extended contract, Daily Monitor can reveal.
The development comes after the Justice and Constitutional Affairs minister, Maj Gen Kahinda Otafiire, wrote to the Judicial Service Commission (JSC) two weeks ago advising it to consider retaining the judge on contract at Supreme Court for an unspecified period.
Justice Kavuma was set to retire at the end of this month after hitting the 70-year retirement age for Court of Appeal and Supreme Court judges.

The Constitution does not specify the length of time a judge appointed in acting capacity upon attaining retirement age can serve on the bench, leaving the JSC with the discretion but the practice has been that such judicial officers serve for two years.
In an interview yesterday, Gen Otafiire confirmed he had authored the letter giving Justice Kavuma a lease of life as a judicial officer at the Supreme Court, but threatened to jail our reporter for reporting on the sensitive matter which has been kept a top secret.
“Where did you get that letter? Do you even know what that letter means?
It is stamped ‘Secret’ so you are not supposed to read or talk about it anywhere. I am warning you! You will go to jail! Have you heard of the [Official] Secrets Act? Go ahead and write about it, you will go to jail. I have warned you,” Gen Otafiire said.
He does not specify why his ministry is vouching for the judge whose tenure was marked by rulings criticised by civil society and the Opposition as leaning towards protecting the interests of the ruling NRM party and in deviance with the basic tenets of natural justice.

One such decision was an injunction the judge issued barring Parliament from debating the ‘presidential handshake’, a tag used to describe cash rewards in the excess of Shs6b dished out to government officials after Uganda successfully battled a multi-million dollar tax case in London against oil giant Tullow.

Judge’s troubles
The Speaker of Parliament, Ms Rebecca Kadaga, referred to Justice Kavuma’s order then as ‘stupid’, adjourned the House indefinitely and protested to the President and Chief Justice against what she called an assault on the independence of the legislature.
Four-time presidential candidate Kizza Besigye too petitioned the Judicial Service Commission while detained in Luzira Prison after the February 2016 general election demanding that Justice Kavuma be investigated for acting outside the ambit of decorum expected of judicial officers and perverting the course of justice for President Museveni’s opponents.
The secretary to the Judicial Service Commission, Dr Rose Nassali Lukwago, yesterday said: “I wasn’t copied in that letter. Have you seen that I was copied in? So I cannot comment about it.”

A source in the JSC, the body charged under Article 147 of the Constitution with reviewing and making recommendations on the terms and conditions of service of judges and other judicial officers told this newspaper there was meant to be a meeting that didn’t happen last week in which Justice Kavuma’s fate was to be discussed.
That meeting, which will deliberate on Maj Gen Otafiire’s letter and thresh out modalities of the judge’s transition to the Supreme Court after a contentious tenure as head of the Constitutional Court and Court of Appeal, is likely to happen this week.
Dr Nassali was non-committal on Justice Kavuma’s reappointment featuring in the meeting’s agenda, saying: “I was asked to draft the agenda but that issue didn’t come up, at least I wasn’t told to include it there.”
On his part, Justice Kavuma yesterday said: “Ask the author of the letter. Goodbye,” before cutting short our phone call.

Senior presidential press secretary Don Wanyama when contacted to establish if minister Otafiire was exercising delegated duties from the President and what informed the action, said: “I have not seen that letter myself so I cannot comment.”
“However, it wouldn’t be surprising because judges can be appointed even after they retire. Justice Odoki as you recall was also appointed after he retired so it wouldn’t be surprising.”

In July, the Judiciary recalled senior judges and chief magistrates who had either retired or were about to retire to help government avert a crisis at the Supreme Court.
Justice Augustine Nshimye, who left in March, was recalled, and Justice Jotham Tumwesigye, who was slated to retire in November, was asked to serve for two more years in order to establish a full bench at the Supreme Court.
Others who have since benefited from the same arrangement include: Justice John Wilson Nattubu Tsekooko, Justice Christine Kitumba, Justice Galdino Okello and former Chief

What constitution says
Article144: Tenure
(1) A judicial officer may retire at any time after attaining the age of sixty-five years, and shall vacate his or her office— (a) in the case of the Chief Justice, the Deputy Chief Justice, a justice of the Supreme Court and a justice of Appeal, on attaining the age of seventy years.
142. Appointment
(2) Where— (a) the office of a justice of the Supreme Court or a justice of Appeal or a judge of the High Court is vacant; (b) a justice of the Supreme Court or a justice of Appeal or a judge of the High Court is for any reason unable to perform the functions of his or her office; or (c) the Chief Justice advises the Judicial Service Commission that the state of business in the Supreme Court, Court of Appeal or the High Court so requires, the President may, acting on the advice of the Judicial Service Commission, appoint a person qualified for appointment as a justice of the Supreme Court or a Justice of Appeal or a judge of the High Court to act as such a justice or judge even though that person has attained the age prescribed for retirement in respect of that office.
(3) A person appointed under clause (2) of this article to act as a justice of the Supreme Court, a justice of Appeal or a judge of the High Court shall continue to act for the period of the appointment or, if no period is specified, until the appointment is revoked by the President acting on the advice of the Judicial Service Commission, whichever is the earlier.