Thursday August 7 2014

On Monday, Ugandans went to sleep knowing they hired a competent court

By Karoli Ssemogerere

After years of complaints, the bench, bar, press and public are going to take time to get used to the new assertiveness of the Court of Appeal that functions as Uganda’s Constitutional Court. There has been fear that this intermediate appellate court, the last rung before arriving at the Supreme Court, would melt into a bastion of relative comfort - caution overriding prudence.
It’s longest serving members are all former politicians. Justice Steven Besweri Kavuma is a former minister of State for Defence, minister of State for Constitutional Affairs and elected MP. Augustine Nshimye Sebutulo is a former minister of State for Foreign Affairs and MP. Justice Faith Mwondha is a former MP and Constituent Assembly delegate. Justice Remmy Kyonooneka Kasule is a former candidate for election to the Constituent Assembly.
The court also counts among its membership a former Director of Public Prosecutions, Richard Buteera. Also members of the court are tenured members of the Judiciary: Justices Eldad Mwangusya, Rubby Aweri Opio, F. Egonda Ntende, Geoffrey Kiryabwire and Solomy Balungi Bossa. There are two single item appointments - Justice Kakuru, a former Advocate, and Justice Tibatemwa Ekirikubinza, a former Law professor and deputy chancellor (Provost) at Makerere University.
This is the largest panel ever assembled at this level and clearly, the new appointments last year have begun taking shape. An informal practice fostered by the current head of the court empanels, a senior Justice from the pre-existing membership with newer members of the court. This direction is starting to bear fruits. An intermediate court is not supposed to be onerously cautious and restrained in its approach to matters of the law. It will always be possible that different panels of the same court will arrive at conflicting decisions. The diversity of intermediate appellate courts allow that much more diversity in views that have at least one more level to be distilled and dispensed in final binding decisions by the Supreme Court.
Members of the bar are clearly going to take some time adjusting. It is on record that this hearing was nearly torpedoed by a walk-out by the Advocates for the Petitioner(s) but that the walk-out had no bearing on the final result where they prevailed. This conduct is a matter of intense debate, especially as Judges and Justices continue being pillaged with attacks and labels by both sides of the political divide, depending on how they rule. Some instances of judicial misconduct have emboldened some lawyers into hardliners willing to tussle it court verbatim with members of the bench - an alarming development that does not augur well for the Judiciary.
On occasions like this week’s historic ruling, Ugandans went to sleep well knowing they have hired a good and competent court. The court’s newest Justice, Tibatemwa, a 54-year old trailblazer of her own, in her lead judgment wrote with clarity: “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.” This settled the notion of so-called nonbinding advice that has nearly rendered constitutional commissions redundant. Her colleague, Solomy Bossa, added her own incisive findings of fact: “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)”. On Monday, the court served Ugandans a big judicial breakfast!

Mr Ssemogerere is an Attorney-at-Law and an Advocate.