Saturday August 24 2013

Odoki should be above reproach

By David F. K. Mpanga

The news of retired Justice Benjamin Joseph Odoki’s alleged appointment to the office of Chief Justice of the Republic of Uganda on a two year contract has stirred up controversy. Born in Dhaka village in Busia District on the March 2 1943, retired Justice Odoki is an eminent and widely respected jurist who oversaw the drafting of the 1995 Constitution, a document that was hailed as an international benchmark for constitutions for states that are emerging from conflict and failure. Justice Odoki, now a serving justice of the Supreme Court of the Kingdom of Swaziland, vacated the office of Chief Justice when he attained the grand age of 70, as is the requirement of the Constitution that he fathered.

Several other senior judges before him had also bowed to the dictates of the Constitution, which is the supreme law of the land, and vacated office when the stated age for vacation, that is compulsory retirement, came. The names of retired Justices Samuel Wako Wambuzi, Letiticia Eulalia Mary Mukasa Kikonyogo, Seth Manyindo, George William Kanyeihamba, Herbert Jeremiah Ntabgoba, James Munange Ogoola, Joseph Nyamihana Mulenga (RIP), Alfred Karokora, George Stephen Engwau, John Bosco Katutsi and Gideon Tinyinondi, immediately spring to mind although the list is expansive. The judges, at all levels of the judiciary, who have been leaving office without a fuss upon hitting the age for compulsory retirement have been entrenching the culture of constitutionalism.

They have given us an opportunity to see the provisions of the Constitution being brought to life and working smoothly. They have also strengthened the working of the judiciary by enabling the officers in the ranks below them to rise and take up the mantle of responsibility. Some of them have returned to engage in legal practice. Others have taken up useful quasi-judicial roles as arbitrators and mediators, easing the work of their colleagues who are still in office. Others engage in various post-retirement pursuits like farming, academia, serving on corporate boards, writing or playing golf and spending time with the grandchildren.

Constitutionally, the Judiciary exercises judicial power derived from the people in the name of the people. The Judiciary is the place we run to when we have disputes. It is the place that we turn to when there is a controversy about the interpretation of the provisions of any legislation, including the Constitution itself. Judges are the guardians of the Constitution. They have the sole privilege of interpreting and enforcing it and they are the ones who have to ensure that the Constitution is free from controversy. In his epic poem, Rape of the Temple, retired Justice Ogoola called the High Court the Temple of Justice and called the judges, priests. He was not far off the mark because the role of peaceful resolution of disputes is sacred. Without judges, disputes would be settled by the law of the jungle, on a dog-eat-dog basis.

A lesson can be drawn from Julius Caesar’s divorce in the 1st Century BC. In 67 BC Julius Caesar married Pompeia, daughter of Quintius Pompeius, a year or so after his first wife, Cornelia, died in child birth. Four years later Julius Caesar was elected to hold the office of Pontifex Maximus, the Chief Priest of the Roman state religion. As the wife of the Chief Priest, Pompeia was expected to perform certain religious rituals.

In 62 BC she was the lead worshipper at a festival of a popular goddess, Bona Dea. Attendance at the festival was restricted to women but a young man who was alleged to be Pompeia’s lover disguised himself as a woman and snuck in with the worshippers. The young man was caught and he was charged in court with sacrilege but he was acquitted for lack of evidence of any illicit relations between him and Pompeia. However, despite the acquittal, Caesar divorced Pompeia, declaring, according to Plutarch, the famous Roman historian, that “Caesar’s wife must be above suspicion.” Thus was born a popular idiom that is in use up to this day.

Because they deal in the resolution of the controversies of others, judges themselves must be above controversy. As the Chief Priest in the Temple of Justice, retired Justice Benjamin Odoki must not himself become the centre of controversy about the interpretation of the Constitution. Like Caesar’s wife, he must be above reproach so that those who are mired in controversy and dispute may go to court and get the dispensation of justice untainted by any controversy emanating from the position of the Chief Priest himself.

Retired Justice Odoki was called to the Bar in 1970, the year that I was born. I must, therefore, stress that I come in humility and bear no ill will. I write this piece to urge retired Justice Bejnamin Odoki not to humiliate himself and bring the high office of the Chief Justice and the entire Judiciary into controversy. However, the greater risk is not just loss of reputation by Justice Odoki it is the complete breakdown of constitutional order in Uganda.
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