Sunday March 2 2014

Unbecoming judicial behaviour in the Constitutional Court

By Prof George W. Kanyeihamba

Finally on Friday, February 21, 2014, Justice Steven Kavuma’s Constitutional Court delivered what it called its judgment against the four Members of Parliament who were controversially expelled from the NRMO party, and whose challenge against that expulsion is still pending in the Uganda High Court.
This judgment day will go into legal history as the day justice ran away from Uganda in fear of a mighty ruling political party. Not only did the court refuse to hear counsel for the four Members of Parliament, but most lawyers quickly ran away from court as if this columnist, who had been permitted by court to address it, did so. It was first members of the court who ran away from the court hall.

There can be no doubt that the orders Justice Kavuma read out were contrary to the law, and a refusal to abide by the binding decisions of the Supreme Court which prohibited the Constitutional Court from making any adverse orders affecting the status and membership of the respondents until the Supreme Court has pronounced itself on the matter.

Having witnessed the daily politicisation of legal proceedings, the four Members of Parliament appealed to the Supreme Court for protection. On October 10, 2013, the Supreme Court delivered its ruling in Application No. 06. 08. 2013.

The panel composed of justices Bart Katureebe, Jotham Tumwesigye, Esther Kisaakye, Benjamin Odoki, John Tsekoko and Galdino Okello (with Justice Kisaakye dissenting) prohibited the Constitutional Court from making any orders that would adversely affect the status of the four Members of Parliament before the Supreme Court pronounced itself on the intended appeal, that is against the judgment delivered on February 21.

A copy of the Supreme Court ruling was available in court in case the Constitutional Court justices intended to make any adverse orders against the Members of Parliament.

As Justice Faith Mwondha read from a political manifesto, apparently in support of Justice Richard Butera’s political judgment, Mr Severino Twinobusingye snatched the ruling from this columnist and after reading it, he panicked and showed it to Mr John Mary Mugisha, who read it and decided to have this columnist silenced and stripped from addressing court.

Immediately after Justice Remmy Kasule had delivered what many lawyers believe is one of the best constitutional judgments in our courts, Justice Kavuma pronounced that the court would now give its orders and directions.

As an officer of court, I rose to protest and guide the court. The court ignored me. After the justice had completed his declarations and orders in defiance of the judgment of the Supreme Court, I rose and addressed court on the ruling. Mr Mugisha shot up and in a loud drowning voice said something I did not understand. It turned out to be a signal to Justice Kavuma and Nshimye to prematurely close the proceedings.

As I was still on the floor addressing court with the permission of the presiding justice, Justice Nshimye shouted at the Court Clerk in such a way as to mean, “Call the court to rise, we are running away from Kanyeihamba.”
I continued to address court; the clerk announced that all should arise as the proceeding had come to a close. To everyone’s disbelief, we saw justices Kavuma, Nshimye, Mwondha and Butera turn their backs on this columnist and ran out of court as if it was on fire. Some of the lawyers also ran out of court. Only the press, this columnist, several lawyers and members of the public remained behind. Someone whispered, “This court ought to be disbanded.”

Most lawyers will disagree with Justice Butera’s judgment, but agree with Justice Kasule’s classic judgment. Justice Kavuma’s remarks were mainly political jargon. Justice Mwondha’s narrative was not a judgment, but a voyage in the unmapped territory of political rhetoric derived mainly from the petitioners’ affidavits. Justice Nshimye did not deliver his judgment.
There was a general feeling that four of the justices had only come to exonerate the Attorney General and condemn the Speaker of Parliament.

This columnist is lead counsel for the respondents and will be leading the team to argue the case filed Application No.2 of 2014, and the prevailing law is that the MPs affected will remain members and in Parliament until the Supreme Court determines and disposes of the appeal.

Prof Kanyeihamba is a retired Supreme Court judge.