Rating Katureebe on his promise to build strong, independent Judiciary

Sunday June 21 2020

Chief Justice Bart Katureebe. PHOTO | ERIC

Chief Justice Bart Katureebe. PHOTO | ERIC DOMINIC BUKENYA 

By Derrick Kiyonga

By early 2013, two names had been zeroed in on to replace Justice Benjamin Odoki who was retiring in June, having served as Chief Justice for 12 years yet in total had been in the Judiciary for 35 years.

His probable successors were Supreme Court judge Bart Katureebe and Fredrick Martin Egonda-Ntende who was returning from Seychelles where he had served as Chief Justice.

The Judicial Service Commission (JSC), the body that vets judicial officers under the stewardship of former Principal Judge James Ogoola, went ahead to forward Justice Katureebe’s name to President Museveni, expecting a smooth transfer of power. It never happened.

Though Odoki had said his goodbyes through various media interviews, Museveni, without engaging the JSC as the law dictates, purported to extend Odoki’s tenure as Chief Justice by awarding him a contract which would last two years.

This sparked off a crisis in the Judiciary, which had neither a substantive Chief Justice nor substantive Deputy Chief Justice, following the retirement of Justice Alice Mpagi Bahigeine in 2012.

Steven Kavuma, the most senior judge at the Court of Appeal, was the beneficiary of this mess as he stepped in and served both as acting Chief Justice and acting Deputy Chief Justice as Katureebe waited.

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Parliament refused to hold a sitting to look into Odoki’s appointment on an account it had been challenged at the Constitutional Court by Gerald Karuhanga who was at the time the Western Youth MP.

The Constitutional Court in August 2014 nullified Odoki’s appointment, but a rather obstinate Museveni waited until March 5, 2015, to appoint Katureebe as Chief Justice, ending an impasse that had forced lawyers under their umbrella Uganda Law Society (ULS) not to attend the new law year that was presided over by Kavuma and also threatened not to attend court sessions.

There is also a theory that Museveni to appoint Katureebe asked for a trade-off: If he appoints people’s favourite Katureebe as Chief Justice then JSC had to accept Kavuma as substantive Deputy Chief Justice.

“We got information from Judicial Service Commission that Museveni wanted Kavuma as Deputy Chief Justice though he hadn’t gone through a required process, while JSC badly wanted Katureebe as Chief Justice. So they struck a deal,” retired Supreme Court judge George Wilson Kanyeihamba, who was involved in a petition that challenged Kavuma’s appointment, later disclosed.

Katureebe had no honeymoon as he inherited an institution torn apart by the two years it had no leadership. The case backlog had gone through the ceiling yet the judges and magistrates were few.

All judicial officers were moaning the peanuts they were getting as salary, the budget was being trimmed every other year and the public, as usual, was accusing judicial officers of either being corrupt or being politically manipulated by the Executive, if not both.

In his first interview, Katureebe tried to strike a delicate balance between assuring the country that he is the man to do the job and calming down the high public expectations.

“You cannot do miracles. All I can say is that I will do my best in the administration of justice to the country, I will build a strong independent Judiciary, and I will try to do that through opening lines of communication with other branches of government. I can promise everyone that is achievable if they also pray for me...with the guidance of the Almighty, all is possible,” he said.

Though expectations were high, constitutional law expert Peter Walubiri believes such anticipation had ignored reality.

“Chief Justice works within a political, social and economic system,” said Walubiri. “Given the circumstances the Chief Justice operates in, Justice Katureebe wasn’t expected to do anything revolutionary or extraordinary. He was just expected to avoid scandal and further deterioration of the judicial system.”

The Chief Justice’s promise to warm up to other State arms was bound to be tested. Senior Principal State Attorney Joan Kagezi, the prosecutor who was leading the Director of Public Prosecution’s team in the trial against masterminds of the Kampala 2010 twin bomb attacks, was murdered shortly after Katureebe took over office.

Gen Kale Kayihura, then Inspector General of Police, had always taken exception to the constitutionally laid out rule that requires police to produce suspects before a court of law within 48 hours after effecting an arrest.

Kayihura also felt that the Judiciary was soft on lawbreakers because Ugandan judges strongly believe in Justice William Blackwell’s dictum: “It’s better 10 guilty persons go free than convict one innocent person.”

On April 2, 2015, at Kagezi’s funeral service held at St Luke’s church Ntinda, Kayihura derided Uganda’s criminal justice system, claiming it’s tilted in favour of hard-core criminals at the expense of law enforcement.

“The criminal justice system needs overhauling as it gives an advantage to criminals, including those who killed Joan. This means you have to get evidence within 48 hours, something that even the British who introduced it have since departed from,” the four-star- General told the grieving gathering.

“My law is a bit rusty now, but I know there is a provision in the Constitution that says technicalities should not subvert substantive justice. So how do you reconcile that my lord Chief Justice?” he asked, inviting Katureebe.

On the podium, Katureebe recognised in principle the need to reform the criminal justice system. Nevertheless, he was of the view that this should be done with caution, not to compromise the basic principles of justice.

“If I may also quote from A Man of all seasons,” Justice Katureebe started, referring to Robert Bolt’s play, “when Sir Thomas More was asked to amend the law to suit the king’s bidding, he was told to cut down all the forest of the law to get at the devil.”

He answered, ‘If I cut down all the forest, where will you hide when the devil turns against you?”

Katureebe added: “Let’s be very careful. The people who killed Joan didn’t believe in the rule of law. Those people wanted to frighten us, they wanted to make us panic. That is not necessary. Let’s not fall into their trap and pass laws which will run down the rule of law.”
While he was discouraging whimsical making of laws, some within the legal circles think Katureebe should have used the opportunity as a launch pad to reform Uganda’s obsolete criminal justice system.

“It was a missed opportunity,” Elison Karuhanga, a partner with Kampala Associated Advocates (KAA), opined.

“There is a need for police, DPP and Judiciary to come together and quicken the process of criminal justice. At things stand now, they are way apart which slows justice.”

Dilapidated infrastructure
As the head of the Judiciary, Katureebe had to familiarise with all courts across the country and he did this through impromptu visits. But if he was in doubt of how bad the situation was, his visit in the fall of 2015 to Kyegegwa Grade One Magistrate Court removed all the doubts.

When he arrived in the western district, his motorcade suddenly stopped at a shop-like structure which was partly hosting goats. The Chief Justice, who had not yet figured out what was going on, was told by staffers that the structure hosted the court. He couldn’t believe it.

When he had a walk around, Katureebe discovered that the court which hears criminal cases, was among a bar that played loud music all day long, a motor-garage emitting noise as mechanics banged mental, salons and shops selling groceries.

In 2017, the Katureebe administration completed
In 2017, the Katureebe administration completed renovations of the High Court Criminal Division. PHOTO | FILE

“Things were really bad. I couldn’t believe it and I said this must come to an end. But Kyegegwa has now a court. We have come a long way,” Justice Katureebe said at this years’ Magistrate’s conference hosted at Imperial Royale Hotel. The magistrate’s conference is also the brainchild of Katureebe.

In Kampala, things weren’t any better: The High Court criminal division – a building constructed in the 192Os during colonial times and also hosts the offices of the Chief Justice and Deputy Chief Justice – was leaking but the bad news was that the Judiciary was broke.

True to his word, in his first eight months in office, Katureebe had interfaced with the President, the Parliamentary Committee on Legal Affairs and Parliamentary Affairs and the ministry of Finance to get the much-needed funds to turn around the Judiciary.

This paid off when Finance gave the Judiciary a supplementary budget of Shs5 billion which Katureebe said had been withheld for about 10 years. The money, the Judiciary said, was used for criminal sessions in places like Tororo, Jinja, Soroti, Mbale and Arua and enhancing housing and medical allowances for judges and other judicial staff.

In 2017, the Katureebe administration completed renovations of the High Court Criminal Division, giving the Judiciary’s headquarters restoration for the first time in about 97 years, with a portrait of Ugandan’s first black Chief Justice Benedicto Kiwanuka hanging over it.

His pragmatic strategy of sweet-talking other arms of government in a bid to get money wasn’t successful all the time. In 2017, the Executive whose priority was “funding oil roads and bridges in order to achieve oil production by the year 2020,” slashed the Judiciary’s budget by Shs6.8 billion to Shs109.4 billion, rubbing Katureebe the wrong way.

While Museveni thought that investing in infrastructure was the only way the limping economy could be spurred, Katureebe maintained that investors couldn’t invest in a country like Uganda where commercial and land disputes take decades to be resolved because of the inadequate judicial officers, adding that trillions of shillings are held up at the Commercial Court which has only four judges.

The austerity measures preordained that plans such as automating courts, constructing more courts and institutional houses, had be shelved. For a while. As he leaves office, the annual Judiciary’ budget has stagnated at around Shs181.61 billion, which is a drop in an ocean, and Judiciary Administration Bill, which guarantees financial independence of the Judiciary, only recently passed by Parliament after a long time.

Corruption
One of Katureebe’s key pledges were to ensure the public trusts the Judiciary and he was going to do it through fighting corruption, real or perceived. He had a mountain to climb, reports by the Inspector General of Government, Transparency International and the media ranked the Judiciary as one of the most corrupt institutions in Uganda.

In 2015, Justice Kanyeihamba, senior lawyer Peter Mulira and Tamale Mirundi, then Museveni’s press secretary, publically accused judges of taking bribes.

In April 2015, Katureebe wrote to the trio asking them to give him in confidence the names of judicial officers who they know as corrupt such that he could deal with them in accordance with the law and the Constitution.

What is known is that of the three, only Kanyeihamba wrote back detailing several judges who he accused of being corrupt. But in response, Katureebe told the professor that his accusations never met the prerequisite threshold to warrant him to invite the JSC to carry out further investigations.

Kanyeihamba predictably was dismayed and he accused Katureebe of breaching the spirit of discretion when the Chief Justice disclosed to the impugned judges that it was him who had accused them of corruption. From that point, Kanyeihamba’s relationship with Katureebe, who he lectured at Makerere University in the 1970s, took a downturn curve.

According to Walubiri, under Katureebe’s administration, things haven’t worsened but nothing spectacular has happened.

“Corruption has remained the hallmark of the Judiciary. [There is] delay in delivering judgements in other courts, except for the Supreme Court,” he said.

During his five-year reign, several magistrates have lost their jobs because of corruption, but to many this not new. The feeling is that as always the judges have been insulated, a charge Katureebe has vehemently denied.

He instead blames the JSC for not acting in situations where the Judiciary has passed on complaints where judges are accused of graft and misconduct.

Justice Steven Kavuma, for example, had several accusations filed against him at the JSC but they were never heard until he retired in 2017, while those against High Court judge Joseph Murangira have been dismissed one after the other by the commission, citing insufficient evidence, among other things.

The Judiciary has also resorted to transferring Justice Murangira from one station to another whenever litigants raised queries. From the time Katureebe took over, Murangira has been at High Court Lands Division, Criminal Division, and now at the Family Division via Mubende High Court.

“That’s how the Judiciary has been working,” Walubiri offered. “You raise a complaint against a judge, they don’t punish him. They just transfer him.”

Census report
For the first time in Uganda’s history, there was national court case census conducted in December 2015. Initially, cases clogging Uganda’s judicial system were not known with many speculating that totalled to 400,000 cases.

But by the time the Katureebe-instituted national case census taskforce led by Justice Peter Henry Adonyo was done with its work, the cases that clogged court system over decades were 114,809.

They ranged from criminal, civil, family to land cases. Since they had got an actual figure they could with confidence go to government and donors and ask for money to sort out the logjam, Katureebe reasoned.

It seems the idea of knowing the number of cases in the system could be working with figures showing that convicts in prison now out-numbered the inmates on remand, for the first time.

In last part next week, we look at the political cases that will define Katureebe’s career.

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