Thursday January 23 2014

This is a difficult time for Uganda’s Judiciary

By Karoli Ssemogerere

The courts are open, dispensing justice to those that appear before them. In January, the courts have been open for one week without the customary opening of the Law Year now belatedly scheduled for January 30. For the first time in memory, the courts have neither a Chief Justice nor a deputy Chief Justice.

The immediate past Chief Justice, Benjamin Odoki, turned 70 last year as did two of his former colleagues: Christine Nakaseta Kayitiro Binayisa and Wilson Natibu Tsekooko. Their other colleague Galdino Moro Okello attained retirement age one year earlier.

Chief Justice Benjamin Odoki who had a long career of firsts - High Court Judge at 35, Appeals Justice four years later, chairman of the Constitutional Commission before becoming Chief Justice in 2001. Departures of Chief Justices are a silent hill of disharmonious departures.

Sir Udo Udoma, the first black Chief Justice, left early after the Obote I administration. Ben Mugumba Kiwanuka, the first Ugandan Chief Justice and former Prime Minister was murdered during Idi Amin’s regime in 1972. There were a number of other short termers who filled out the Amin years before the elevation of Samuel Wako Wambuzi by the UNLF administration in 1979.

Wambuzi was forced to leave early in 1981 and his replacement, George Japheth Masika installed by Milton Obote, left in 1985 immediately after the coup. Justice Peter Allen who administered the Museveni oath of office 28 years ago served until 1988 when the government refused to renew his contract.

The first reorganisation of the appellate branches in 1988 renamed the Court of Appeal, the Supreme Court of Uganda and for the first time the Chief Justice headed both the Judicial branch and the Supreme Court. Until 1988, the Chief Justice resided in the High Court and the Court of Appeal had a president and senior Justices assisting him.

Wambuzi was the first Chief Justice to serve under the 1995 Constitution. In an era of firsts, he is the only Ugandan to serve non-consecutive terms as Chief Justice and was one of the first four Ugandan Judges named to the High Court in 1969.

Wambuzi (and Odoki) were the first Justices to rule removal of a government unlawful in 1980 shortly before the 1980 elections, and it was a Wambuzi-led court that in a number of rulings set an important commonwealth precedent of harmonising disparate constitutional provisions.

It was little surprise that 13 years ago, Wambuzi’s departure did have some acrimony that went with it. Towards the end of his tenure, Wambuzi clashed repeatedly with Mr Herbert Ntabgoba, then a Principal Judge or administrative head of the High Court.

The Constitution had prescribed two retirement ages, 65 for a High Court Justice, which Ntabgoba was, and 70 for appellate Justices. This provision was inserted by now deceased Joseph Nyamihana Mulenga who went on to serve on the Supreme Court.

Government, faced with an embarrassing spectacle of two senior figures in the Judiciary warring publicly, asked both to leave early. Mr Wambuzi politely declined and served out his term. It will never be known if some of this mischief was orchestrated by the same forces behind the inconclusive term of his successor.

Today, one year after Chief Justice Odoki bid farewell to the nation signaling the end of his year, he is a candidate to replace himself as Chief Justice. Odoki’s nomination has stalled in Parliament and is currently tied in the courts. A few of his former colleagues have returned to their Kololo chambers as acting Justices. Mr Tsekooko never left his chambers. A new Justice of the Supreme Court, Amos Twinomujuni, died without hearing a single case.
The next in command, acting deputy Chief Justice Steven Besweri Kavuma, is in the unfortunate position of assuming part of the reins of the position without a formal appointment instrument. President Museveni has never issued Mr Kavuma a formal instrument as acting deputy Chief Justice in the manner that his predecessor, Constance Kategaya Byamugisha, served.

The Judicial Service Commission has not been pressured to comment publicly on his appointment status. The Judiciary website lists Mr Kavuma as head of the Supreme Court, in itself a problem as technically, even though the Court of Appeal in the past was headed by former Supreme Court Justices Seth Manyindo and Leticia Mukasa Kikonyogo, both served on this panel, Kavuma has never taken the oath of office of a Supreme Court Justice.

The public is holding its breath at a difficult time for the Judiciary. The Executive branch has routinely been reprimanded for flouting court orders. High Court Justice Joseph Murangira this week reprimanded KCCA for refusing to abide by a court order directing them to process a land title for vendors in Owino Market. Ministers and officers of government have been quoted a few times describing court orders “advisory”.
While the courts are open, some parts of the Judiciary seem to be on strike, struck by absenteeism, and so on. In one principled stance, at least one former Deputy Chief Justice, Alice Nansikombi Bahigeine, refused to re-join her former colleagues as an acting Justice.

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