Museveni has never attacked me for ruling against him - Tsekooko

To begin with, what is your reading of the political situation in the country?
Well, first of all I welcome you to this home and I am happy that you came; unfortunately I have been busy on a variety of things. I have to sort out how I am going to live in my retirement. I know the problems of Uganda alright, but there are limitations on how far I can go in talking about Uganda even as a retired judge.

What are those limitations?
As a judge you don’t just go talking anything anyhow. I think there are things which are really relevant at a particular time which you can talk about.

Your friend and also retired justice of the Supreme Court George Kanyeihamba runs a column in the Sunday Monitor and is vocal on matters of national interest
Well, I admire him. I was with him up to 2009 when he retired. He has been a professor for many years and a politician. So there are many factors that contribute to his talking about anything. I must confess I was in politics from 1980 to 1985 as an MP for one of the Bugisu constituencies, but that in itself is not a licence for me to talk about anything. I believe there is a limit to what you should say, particularly when you are a retired judge.

I thought retirement frees you. Gen David Sejusa is fighting hard to retire from the army so he loses that badge of property of the state. Surely you should be able to speak freely in this interview now that you are retired
You may be retired alright, but it is not a licence for you to talk about everything. It must be relevant to what you are supposed to do or how you are living. For instance, I can complain we are not getting reasonable pension and other benefits we are entitled to as retired judges. Those are things I can talk about, but there is a limit. I can just mention that. I think the responsible authorities are working on them and I need to talk to them if they have reached a decision and if they haven’t, then I can openly complain.

How long have you chased for your pension?
I retired in 2013, but then the President re-appointed me as a judge of the Supreme Court for two years. So I worked till October 2015.

Are you still available for other placements?
Yes, I can do what I can manage in the Judiciary and other aspects, depending on how relevant it is.

I am intrigued the President, whose election in 2001 and 2006 petitions you ruled should be annulled, re-appointed you. Were you surprised he kept you around after you ruled his election was a fraud?
(Laughs) Well, that question raises interesting aspects I have always avoided talking about. But now that you raise it, let me tell you. In 1980 during the campaigns the late Dr [Milton] Obote made some remarks when he was in the constituency where the current President was contesting in Ankole and he considered those remarks as defamatory and he filed a suit.
Then I was on the UPC ticket and Obote called me and instructed me to defend him. I filed a defence against the plaint filed by Museveni who is now our dear President. Because he went to the bush and Obote had now become president, we couldn’t have that case heard.
The former Chief Justice [George] Masika told me since Museveni is away and Obote by operation of the law cannot come to court, we couldn’t proceed. So I left it at that and Museveni’s lawyers too left the case.

Who were Museveni’s lawyers?
It was Kateera, they used to operate under a bazungu firm.

What did Obote say that made Museveni angry enough to launch a suit?
I think Obote was reported to have implied that Museveni is not a Ugandan, which offended Museveni. Museveni didn’t like the remark that he is not Ugandan. Then after that you can see in 1990 Museveni appointed me a judge after that experience. Other people wouldn’t have appointed me even though I didn’t apply for judgeship. It was actually the former principal judge [Jeremiah Herbert] Ntagoba and Justice [Alfred] Karokora who persuaded me to join the Bench but I told them what I have just told you but they said we find you suitable, we don’t know if the President will accept. This was very nationalistic of them, instead of being sectarian and going to kith and kin, they went to an easterner they thought was competent and indeed he appointed me, and for that I credit him. Definitely most other people wouldn’t.
Then in 1994 there was a vacancy at the Supreme Court. Judicial Service Commission recommended me and he appointed me, so it shows he has good qualities as well.
Someone would ask if that would happen today. Museveni’s critics assert that the Museveni of the 1990s was a transformative leader, tolerant to criticism but the one of today is a sharp contrast
I don’t know. Of course there are human failings but as I told you in 2013 he reappointed me on contract for two years. It depends on the individuals involved. Like you have said in the ice breaker, the academicians like Prof Oloka-Onyango respect my work and I think many lawyers liked how I used to do my work expeditiously and meticulously.

The gist of the interview is on the Amama Mbabazi vs Museveni and others petition but first, did you take part in this election?
I missed out. I was here (in Kampala) and had problems travelling up country because this time round you had to vote from where you registered. My village is in Manafwa District close to the border with Kenya, but I had transport problems.

What do you make of the last election that has come under scathing attack from many fronts?
I don’t want to go too far on this, though I heard complaints that organisation was a problem. I got the impression that politics has been commercialised, money mattered more than anything else.

What do you make of the judgment of the Supreme Court in the presidential election petition?
I find nothing strange about the decision because it is like any other petition, except that this one concerns a presidential election. I didn’t find anything particularly strange.

What do you mean?
Tell me what you expected from me.

A senior judge I spoke to recently thinks the judgment is empty on the law and passes for a resolution of a local council meeting...
With a case, any case including a presidential petition, it essentially depends on the evidence adduced. In the case of a presidential election petition, according to the rules that regulate the inquiry, witnesses give evidence by affidavits so the judges have to decide based on those affidavits.
In this case, I have been reading in the papers that some of the affidavits were missing. Normally it is on the available evidence that the trial judge decides the case and that is what the court did. Under section 59 of the Presidential Elections Act after due inquiry (which really means a trial) you either dismiss the petition, declare who has won or order for a fresh election. That is also stipulated in article 104 of the Constitution.

Is it strange that the entire Bench agreed on all the more than 40 grounds in the petition?
It is not strange. Unfortunately, we have not received the reasons from the court. The promise was that detailed reasons will be given so you may make comments now but when the detailed judgment comes you may be persuaded otherwise.
As a matter of fact, it looks like this was the same thing we did in 2001 and 2006. In the 2011 election, the loser was disgusted with the Supreme Court and didn’t file a petition. In this particular one there were many justices of the court, actually all the other eight were new, save the Chief Justice.

Prof Kanyeihamba has criticised the court for falling short of conducting a due inquiry which in his view would necessitate it extending its scope to calling in experts, witnesses et al. What is your view on this?
The court has limitations. You cannot go digging everywhere to find evidence. To carry out an inquiry, you investigate what is available before you as a court. You cannot go out for purposes of looking for evidence to justify what is being alleged in the petition or affidavits.
As a court, you have to be independent and rely on evidence adduced by either side and if it doesn’t satisfy you, make an appropriate decision.

So you don’t concur with comrade Kanyeihamba that the words inquiry in the law mean the court must conduct the petition not as an ordinary matter?
You look up the meaning of the word inquiry. Yes, you inquire but when you look at the rules regulating the petition, I think rule 14 or 15 says the inquiry of the petition will be conducted like a civil suit and in a civil suit, the magistrate or judge doesn’t go out to look for evidence to destroy or support one side. It depends on evidence adduced by either side. The only problem is this question of substantial effect.

Can you comment on the controversial debate on the ‘substantial effect’ test on the election outcome? Is it time we depart from the strict legal sense espoused in section 59 of the Presidential Elections Act?
It is good you are a law student; in criminal law you know that we say you have to prove the case beyond reasonable doubt. Occasionally, I have been thinking that this makes either the single judge or in this case individuals of the Bench to more or less toss a mental coin as it were.
You consider all the evidence available and decide whether on the basis of that evidence the case will go this way or that way.

Section 59 of the act requires the court be satisfied the outcome was substantially affected by the malpractices. Is it fair to argue that in sticking to the positivist school of legal thought the judges are only reading the law as it is and not as it ought to be?
No! They have to think. They have to give thought. Whatever is presented before them, for instance, if there is substantial evidence to show the candidate went around cutting people, doing this and the other and because of that conduct this is how people voted and the evidence supports that, then you probably say it substantially affected the results.

With the status quo in terms of how the court interprets the test, what and where is the problem with the test and how do we fix it?
As I mentioned to you, for me it is similar to criminal procedure where you have to prove the case beyond reasonable doubt. What is reasonable doubt? Then that becomes a question of the individual or the judges trying the case. Does that raise reasonable doubt in your mind? What is reasonable? As you are sitting as a Bench, this complaint raised by the petitioner and his witness, does it affect the dispute substantially so you decide in the petitioner’s favour? I don’t want to say much about this petition because most of the affidavits were not available.
Apparently the petitioner had prepared a lot of affidavits and many were stolen so this really affects this case. Would that be justification for allowing the petition? It is a tricky question. Personally my biggest worry at the moment is this commercialisation of politics.

If you were a member of the Bench hearing this petition, would you dismiss or allow the petition?
Well, I haven’t read the affidavits and even the record of proceedings. I got two hours before you came; it is a huge sea of documents. This again is a question of tossing the mental coin.

What is your take on critics of the court who assert that the substantiality test is all but a cloak for cowardly or even partisan judges to take refugee when they don’t want to harm the incumbent’s feelings? Is it time we departed from the test?
But that means you have to ask Parliament to do it and amend the law. For judges, what they can do is keep developing jurisprudence touching this area. What should judges in Uganda consider to be substantial that can turn the election one way or the other?

What is your assessment of our progress in regard to shaping that line of jurisprudence?
You better have time to read the reasons we gave in 2001 and 2006. In 2001, two of us said the evidence substantially affected the results and the petition be allowed but three were of the contrary view.
In 2006, I was among the three; we thought what had been proved should have allowed the petition, the four disagreed with us, they have their reasons.

Prof Kanyeihamba explains how that mental coin kept swinging in the pendulum bob of political pressure. You saw it in either petition. Tell us what happened
I never got pressure. I don’t know how the approach is, I was never pressured by anyone and I made my decision based on the submissions. In 2006 Kanyeihamba was with me for allowing the petition.

Is it true, as he tells the world, that hours to the ruling the majority voted for an annulment but that changed miraculously?
I don’t recall, but you know these court hearings, or any case heard by a panel; you have time, you go and discuss, one or two of you say I have to research on this and give it more thought, the matter is adjourned, you don’t know what happened in between. No one has told me they were pressured.

Any repercussions that came your way for holding that Museveni’s election be annulled?
No.

That was a bold move. Didn’t you fear to hold that Museveni’s election was fraudulent and order for a fresh election?
No. I took the oath to administer justice without fear or favour and that has been my stand all through. So I didn’t fear anyone. There has not been follow up on me despite these decisions but I have heard rumours that some circles said I am anti-Museveni. Museveni has never told me directly or openly and in any case I took oath before him to be independent, administer justice per the law, he has not contacted me to say “why are you doing this to me?”

Some say the Supreme Court has been diluted
I don’t want to indulge in that because we have a procedure. The JSC is to make recommendations, the President has to act according to those recommendations. Of course I have heard rumours that a number of competent judges in the High Court or Court of Appeal were recommended to come to the Supreme Court but they weren’t eventually appointed. But that is speculation I have not followed up to find out what happened.

How would you rate the independence of Uganda’s Judiciary?
Even before I became a judge, Uganda’s Judiciary in Commonwealth Africa was regarded as one of the most independent. The way we have been doing things of late may raise suspicion but on the whole we have been independent, at least many of us. But the new generation of Uganda; the way they do things sometimes you can only shake your head.

Besigye has twice campaigned and told the electorate he will not waste time challenging the election outcome in ‘Museveni’s courts’. What do you make of his writing off the courts?
He is an individual. Obviously having a petition dismissed two times, the third time he refuses, as a human being you can say those are weaknesses of a human to say “I am always not getting success, why continue?”

He has been subjected to house arrest after the elections and his movements monitored under what police claims is preventive arrest. What do you make of this law and state restriction of Besigye’s movements?
To be honest it is not fair to keep someone under house arrest arising from political activities. It is not democratic.

Let’s turn to the legal profession in this country. From the ethical pedestal some people say it has gone to the dogs. Do you agree?
That is a strong expression though it is closer to the reality. I keep saying the behaviour of the young generation is different from the old generation. Some are too reckless. Many lawyers as in other professions are out to make money and end up doing injustice and promoting injustice.

Where and when did we go wrong as a people?
The sense of values! People want to have possessions even when they don’t have enough money. Someone employed as a judge or magistrate sees others drive posh cars and live in beautiful residences and wants to imitate and in the process indulge in corruption. I don’t know if it is the education system because in my days at primary school teachers taught us how to behave well, in church, secondary school the same happened. Virtue was preached right from school.

May be it speaks to something fundamentally wrong in the super-structure of our politics. For example, some people argue that corruption is how some governments in Africa thrive so it becomes part of life for the citizenry as leaders shape society

I think that is true, that is what I mentioned earlier, this commercialisation of politics; giving someone sitting under a tree money to go and vote. It is a terrible thing. That shows how low we have gone. The idea of believing everyone must be bribed to carry out his duty is a terrible thing. I go to the village and find sick people at home and when you ask why they haven’t gone to the dispensary they tell you without money you can’t get a service. That is how low we have sunk.

Which areas do you propose for Constitutional reform?
Maybe the Electoral Commission because the EC is involved in interpreting the law sometimes instantly. There was a suggestion that the chairperson should be a lawyer, maybe a retired judge or senior lawyer so he makes a decision based on the law without waiting for lawyers to advise him. I also think the EC should allow each party to be part of the leadership.

How many commissioners will you have with 29 registered political parties?
Well, those represented in Parliament but even then you can’t have 29 parties, even 10 parties is illogical. Those parties are just imaginations.

Gen Sejusa says even if you allowed the Opposition to man the EC the election would still not be free and fair, thanks to a clogged system that favours the incumbent
That is a big challenge. Why don’t we set up a commission of inquiry to investigate all these things and come up with a solution? Get an independent judge to investigate and make recommendations to Parliament or even a referendum to be held about it.

The issue of cadre judges keeps coming up. That some judges are there to serve the interests of the ruling party and President
Yes, that thing is there. It seems to be increasing because occasionally you get some of the judgments and you can’t understand they are from judges who are supposed to be independent. There are rumours some judges consult some politicians when they have cases with political implications to get a shape of the ruling. This is terrible! It is not proper.

Two or three things we need to cure as a country as a matter of urgency in our politics?
I think that will be for another occasion.

On cadre judges
Yes that thing is there. It seems to be increasing because occasionally you get some of the judgments and you can’t understand they are from judges who are supposed to be independent. There are rumours some judges consult some politicians when they have cases with political implications to get a shape of the ruling. This is terrible! It is not proper.