Judges who have ruled against Museveni

Kampala- Deciding political court cases of the highest stakes is one of the toughest assignments for judges. Chief Justice Bart Katureebe, while officiating at the launch of a book titled, When Courts Do Politics, remarked that people on Facebook called for his assassination after the decision in the 2016 presidential election petition.

In 2016, all the nine Supreme Court judges threw out a petition that had been filed by Mr Amama Mbabazi challenging the re-election of President Museveni. On that occasion, the judges collectively took in the spite from those aggrieved by the judgment. That was the only occasion the judges unanimously ruled in favour of President Museveni in a do-or-die case.

On the other occasions, in 2001 and 2006, when four-time presidential candidate Dr Kizza Besigye challenged Mr Museveni’s re-election, and in 2018 and 2019 when the Constitutional Court and Supreme Court, respectively, had to decide the age limit case which clarified Mr Museveni’s eligibility to run in 2021, the decisions were split.

On three occasions – 2001, 2006 and 2019 – it was the Chief Justice to swing the decision in President Museveni’s favour. In 2001 and 2006, the retired Chief Justice Benjamin Odoki swung the 3-2 and 4-3 decisions, while Chief Justice Katureebe cast the decisive vote in the 4-3 decision handed down on Thursday, which confirmed that the 75-year cap on presidential candidates was passed legally in 2017.

Courts doing politics
At the occasion where Mr Katureebe spoke of the intricacies of being a judge in a political case, hinting that the judge tends to undergo several mental processes before they reach a decision in a case of serious political importance.

“It’s a very simple thing; to nullify the election is a simple thing. But the nullification of an election, in my view, cannot be an end in itself. It must be a process to lead to better election results than what has been done previously,” Justice Katureebe said.
The occasion he spoke at, the launch of the book titled, When Courts Do Politics, by Makerere University law scholar, Prof Joe Oloka-Onyango, took place as the Constitutional Court was stationed in the eastern town of Mbale considering the age limit case.
Shortly after the acrimonious process of pushing the age amendment through Parliament, President Museveni remarked that the 317 MPs who had voted to remove the age limits were heroes because they had saved the country from resorting to “other measures … to ensure stability”.

Mr Museveni did not elaborate on what “other measures” would be available under such circumstances and what exactly they would be saving the country from. But if you were a judge in this case, would you stop to think about this statement?

Dare-devil judges?
Justice Kenneth Kakuru of the Constitutional Court was in the end the only judge who ruled to nullify the removal of age limits.
Deputy Chief Justice Owiny-Dollo and Justices Remmy Kasule, Elizabeth Musoke and Cheborion Barishaki held that the Constitution had been amended legally, giving a verdict of 4-1.

But when the decision was appealed to the Supreme Court, the margin narrowed significantly. Justices Eldad Mwangusya, Lilian Tibatemwa and Paul Mugamba ruled to annul the amendment, while Chief Justice Katureebe was joined by Justices Jotham Tumwesigye, Stella Arach Amoko and Rubby Opio Aweri to clear the amendment.

Earlier, in 2001, Justices Arthur Oder (now deceased) and Wilson Tsekooko (retired), ruled to annul Mr Museveni’s election, whereas then Chief Justice Odoki and Justices Joseph Mulenga and Alfred Karokora upheld it in a 3-2 verdict.
In 2016, the two justices who had ruled to annul Mr Museveni’s election in 2001 maintained their positions and were joined by the retired justice, Prof George Kanyeihamba. Justices Odoki, Joseph Mulenga, Alfred Karokora were joined by Justice Katureebe to uphold Mr Museveni’s election.

Asked yesterday how hard it is for a judge to rule against President Museveni in a high stakes case, Prof Kanyeihamba said: “I don’t know what it would be, but I can tell you, all those judges, including those from the Constitutional Court, are frightened to rule against Museveni. But it is in their imagination. They are frightened to rule against the NRM, and especially Museveni. That is why their judgements are incredible, incomprehensible and not constitutional. It is simply blind support of the NRM and Museveni.”

Who should courts serve?

The Constitution (Article 128[1]) says: “In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.”

In the book we cited above, Prof Oloka-Onyango, quoting Prof John Griffith in the book, The Politics of the Judiciary, writes of courts: “Neither impartiality nor independence necessarily involves neutrality; Judges are part of the machinery of authority within the State and as such cannot avoid the making of political decisions. What is important is to know the bases on which these decisions are made.”

“The bases” upon which such decisions are made are subject to interpretation and may vary from place to place and time too, of course.
On the occasion of opening the Judges Conference for this year on January 28, President Museveni presented an interesting take on this subject. He told the judges that it is important for them to be aware of the times in which they serve.

He referenced the Kenyan anti-colonial fighter, Dedan Kimathi, who was executed by the colonial government for is role in the Mau Mau rebellion. Mr Museveni said to the judges that Kimathi was “legally killed; sentenced to death by you, the judges”. He said the judges who sentenced Kimathi to death understood their mission and the system that they had to serve. “What is your mission,” Mr Museveni asked the Ugandan judges.

The dissenting judges

Arthur Oder
On June, 28 2006, the casket carrying the body of Supreme Court judge Arthur Oder was blocked from being taken to lie in State in Parliament chambers. The embarrassing incident marked an end to the career of one of the two judges who said no to President Museveni more than two decades ago. Justice Oder ruled to annul the election of Mr Museveni in both 2001 and 2006.

He chaired the Commission of Inquiry into Human Rights Abuse, which was appointed by President Museveni in 1986. His 2006 judgment was a stinging indictment of the Electoral Commission, which he accused of breaching electoral laws and poorly organising the polls.

Kenneth Kakuru
He was the only one of the five member Constitutional Court bench that ruled that Parliament’s removal of the age limit of 75 years as maximum and 35 years as minimum for one to run for presidency did not contravened the Constitution. The ruling earned him an instant celebrity status. He is a known human rights activist as well. Prior to joining the bench in 2013, he was in private legal practice, as well as working with civil society organisations.

Wilson Tsekooko
He twice ruled, in 2001 and 2006, to annul the election of President Museveni. By the early 80s, Justice (rtd) Tsekooko was a Uganda People’s Congress politician.

He recounts that in 1980, during the campaigns, the late Milton Obote made some remarks when he was in the constituency where President Museveni was then contesting in Ankole, which Mr Museveni considered as defamatory and he filed a suit. Mr Tsekooko filed a defence for Obote, although the case was never concluded. President Museveni would appoint him to the bench in the early 90s.

Justice Tsekooko retired in 2013, but was re-appointed as a judge of the Supreme Court for two years. He consequently quit the Judiciary in October 2015.

Since leaving the bench, he has spoken out against corruption in the Judiciary, especially about judicial officers taking bribes to influence their decisions and appointment of cadre judges, which undermines the integrity and independence of the Judiciary.

Eldad Mwangusya
He was elevated to the Supreme Court in 2015 from the Court of Appeal/ Constitutional Court. He previously worked as High Court judge and head of the court’s Civil Division.

He started as a state attorney in 1976 and rose through the ranks to become principal state attorney.

In 1997, he joined private practice, only to be called to the bench the following year. He started as a resident judge in Fort Portal and Masaka circuits. Thereafter, he became the deputy head of the International Crimes Division of the High Court. He was promoted to head the Civil Division of the High Court.

In 2014, Justice Mwangusya was among the seven justices that ruled that it was unconstitutional to reappoint Benjamin Odoki to the post of Chief Justice upon retirement.

In 2013, he was appointed to the Court of Appeal/Constitutional Court. At the Constitutional Court, Mwangusya wrote the court’s judgment that struck out the Anti-homosexuality Act on grounds that it was passed by Parliament without quorum.

Prof George Kanyeihamba
Since 2006, he has remained the most outspoken of all the justices that have ruled against President Museveni. Since the 2006 ruling in which he ruled against Mr Museveni,

Prof Kanyeihamba has on separate occasions stated that the 2006 majority ruling that upheld President Museveni’s election was influenced by forces beyond the interpretation of the law and facts by the justices.

Ahead of the 2011 elections, he said two of the four Supreme Court justices who voted in favour of dismissing the 2006 presidential election petition brought by Opposition leader, Dr Kizza Besigye, had since changed their minds and believe the elections results should have been overturned.

Prof Kanyeihamba, who was by then retired, did not mention the specific names of his colleague justices.
He has since retired, but remains a strong critic of the establishment.

Lillian Tibatemwa Ekirikubinza
Prof Lillian Tibatemwa-Ekirikubinza holds a PhD from the University of Copenhagen, Denmark, a Master of Law in Commercial Law from Bristol, UK, and an Honours Degree in Law from Makerere University. She previously served as a faculty member and administrator at Makerere University.

The first Ugandan woman to qualify for an award of a PhD in Law, she also was the first woman to be appointed an associate professor and a full professor of law in East Africa. She was the first female deputy Dean of Makerere’s Faculty of Law and the first woman to be named deputy vice-chancellor at that university.

She is also a fellow of the Uganda National Academy of Sciences and an Alumnus of the International Women’s Leadership Forum. She also served as the Acting Vice Chancellor of Makerere University from April to October, 2009. Justice Ekirikubinza was last year elected to the International Commission of Jurists (ICJ) for a five-year term. The ICJ is composed of 60 eminent judges and lawyers from all regions of the world. The ICJ promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems.

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