Friday April 4 2014

Judiciary: A look at the career of Justice Kavuma

Justice Kavuma (L) talks to  Justice Yorokam

Justice Kavuma (L) talks to Justice Yorokam Bamwine at a recent function at High Court in Kampala. PHOTO BY Rachel Mabala 

By Isaac Imaka

Kampala.
It is about a decade since Steven Kavuma last served as state minister for Defence.

One of the highlights of his tenure was his constant insistence, while appearing on the then Light House TV, that Col Jet Mwebaze and his colleagues were alive and safe after the 1998 helicopter crash in the Rwenzori Mountains during the ADF insurgence—government later announced the colonel’s death saying his body had been found atop the snowy mountain.

Appointment to the bench.
Justice Kavuma was in the headlines again when he, while on a panel that delivered judgment on the Black Mamba petition on January 31, 2006 he differed with his other four colleagues on the five points of law raised.

The Uganda Law Society had filed a public interest petition challenging the double trial of Dr Kizza Besigye and 23 of his colleagues before the military court and the High Court.

They were accused of belonging to the shadowy rebel group, the Peoples Redemption Army (PRA), they were at the same time facing charges of terrorism and unlawful possession of firearms before the General Court Martial (GCM) chaired by Gen Elly Tumwine.

They were also facing charges of treason and concealment of treason in the High Court.

In the ruling, the Constitutional Court held that it was unconstitutional to subject the group to criminal proceedings in two courts on charges based on the same facts.

“In principle, there is nothing illegal about charging people with different criminal cases in different courts, but concurrent proceedings in the High Court and the GCM arising out of the same facts is not proper,” said Lady Justice Constance Byamugisha.

However, Justice Kavuma dismissed the entire petition saying it lacked merit.

Since then, if the assessment by his senior colleagues, within and outside the Judiciary, is to go by; his journey so far has been a mixed bag of ‘legapolitical’ challenges— a tight rope of striving to stick to the legal lane and at the same time do a ‘good’ job for the appointing authority and the ruling party.

Ntenjeru South Legislator Patrick Nsanja, also a practicing lawyer in the city, says whereas it is important to scrutinise the conduct of Justice Kavuma by the virtue of his position in the Judiciary, it is incumbent upon him to consider introspection.

Currently, Justice Kavuma is the acting deputy chief justice and in the absence of a substantive Chief Justice—as is the case, he takes on the role and can make decisions with full blessings as the chief justice.
“He is a senior judicial officer who swore an oath to ensure that justice is served to all,” Mr Nsanja said.

He added: “If there is a public outcry about his conduct and his judgments, it is upon him to look into his conduct and reform.”
Of all the appointments to the Judiciary from the NRM political side, Justice Kavuma has stood out with several controversial moments in his year tenure as a judge of the Court of Appeal, with his latest action – bringing to a halt, Kampala Lord Mayor Erias Lukwago’s celebrations after the High Court cancelled his removal from office.

Justice Kavuma, did freeze the High Court orders the very day Mr Lukwago returned to work, and did so exparte (listening to only one side)
A retired bench member-on condition of anonymity- says he sees him as “messing” up the Judiciary.

That it would be fine if Kavuma’s actions reflected badly only on himself but, he argues, Kavuma is at this point, “demeaning the Court.”

Another, former judge in the Supreme Court describes him as “hugely partisan” and always “leans on the side he supports” and doesn’t give a semblance of impartiality yet it is the core ingredient of judicial independence.

The two retired judges, who worked with Mr Kavuma for a long time, were particularly not impressed by his ruling to throw out the Lord Mayor from office a day after High Court Judge Lydia Mugambe had ruled that he gets back to work.

“A judge cannot install someone in office and you single handedly throw him out,” one quipped. “You will be creating a rift in the Judiciary yet you are the chief justice.”

However, not all lawyers agree with the retiredjustices. Lawyer Severino Twinobusingye is full of praises for Justice Kavuma.
“I have appeared before him and he comes out as a well educated lawyer of high calibre and has the composure of an experienced lawyer and I find him judicious in the way he conducts his work, Mr Twinobusingye says.
He adds “I don’t believe those castigating him are right because he has given some of the land mark judgments in our jurisprudence,” said lawyer Severino Twinobusingye.

Mr Kiryowa Kiwanuka, another lawyer, says there will always be a disappointed party in a judgment and that people should stop making judgments of Justice Kavuma an issue.

Kazini’s case
In April 2009, Justice Kavuma suspended the Court Martial cases against the late former army commander James Kazini, pending the disposal of his petition challenging the constitutionality of his trial by the army court.
Kazini was being accused of disobeying orders of the Commander-in-Chief on deployment of troops.

In the proceedings, Justice Kavuma, through a judgment he delivered at 9pm, overruled the Attorney General on the issue of a lone judge handling the application.

The Attorney General had argued that the proceedings against the late Kazini were to continue in the Court Martial and that the ruling to halt the same proceedings by Justice Kavuma should have been made by a quorum of three justices but not him alone.

Recently, Justice Kavuma ruled against government in his dissenting judgment regarding the composition of the Anti-Corruption Court, in a minority judgment of 4:1, he ruled otherwise that the Anti-Corruption Court is not a competent court by reason of structure and composition.
Justice Kavuma also noted that corruption is a global problem but should be fought following the rule of law.

Shadow Minister of justice and constitutional affairs Medard Ssegona says personalising Kavuma’s method of work is missing the point.

“I disagree with him on principle on what I consider to be wrong in the law like his judgment in the Lukwago case,” he said. “I disagreed with him in the Henry Tumukunde ruling when he said that the decisions of the President cannot be challenged, and indeed that ruling was over turned on appeal.”

Ruled against Tumukunde
In 2006, Brig Tumukunde through his lawyer, Mr Emmanuel Twarebireho, filed a petition at the Supreme Court Civil Registry on March 17 contending that he was dissatisfied with the decision of the five Constitutional Court Judges, who quashed his petition challenging his dismissal from Parliament.

The Justices included the Deputy Chief Justice, Ms Laetitia Kikonyogo, Mr Mpagi Bahigeine, Mr Amos Twinomujuni, Ms Christine Kitumba and Mr Steven Kavuma.

Tumukunde argued that the judges erred in law when they ruled that his letter to the Speaker of Parliament, Mr Edward Sekandi, dated May 28, 2005 amounted to a resignation of his seat in Parliament.

Rebel MPs ask him to step down
During the hearing of their case, the NRM expelled MPs, through their lawyer and former Supreme Court judge, Prof George Kanyeihamba, asked Justice Kavuma to excuse himself from the bench citing political bias.

The rebel MPs accused him of being a promoter of the ruling NRM party and flashed a copy of the NRM constitution which showed Kavuma as Party promoter 163.

At one time, one lawyer Peter Walubiri, cited documents that showed that Justice Kavuma signed the registration book for the ruling NRM party in 2005, and was still an active member.

Justice Kavuma declined to yield to calls that he leaves the bench.
In another case, former DP spokesman Jude Mbabali also asked justice Kavuma to disqualify himself from the three-man panel of justices to hear his election petition case against Vice President Edward Ssekandi.
The prayer was also not allowed.

Lukwago will have to wait longer
By last evening, the Supreme Court had not yet fixed a date to hear the urgent interim application filed by embattled Kampala City Lord Mayor Erias Lukwago.

The urgency to get a hearing date follows the filing of an interim application by Mr Lukwago on Tuesday morning. He is seeking to reverse Monday’s decision issued by the Court of Appeal that among others ordered him out of City Hall moments after he had resumed duty.
When the Daily Monitor contacted the Acting in-charge of Supreme Court, Justice John Wilson Tsekooko about fixing a date to hear Lukwago’s injunctive application last evening, he confirmed having seen Lukwago’s file but could not tell exactly when a date would be fixed to have the application heard.

Justice Tsekooko explained that out of the eight justices of the court, three are not available as some are out of the country.
However, he was quick to say that they will find a way of fixing a date to hear the application as soon as possible given its urgent nature.

Mr Lukwago’s lawyer Medard Sseggona alongside Deputy Lord Mayor Suleiman Kidandala had pitch-camped at the Supreme Court the whole day in a bid to get a hearing date from court.

Briefly, Mr Sseggona told this newspaper that his prayer is for court to quickly get a hearing date since his client’s case is of urgency.
Compiled by Anthony Wesaka

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