CJ Katureebe was all packed and ready to go, and for good reason

Thursday July 2 2020

 

By Daniel K. Kalinaki

In a round of exit interviews just before his retirement, Chief Justice Bart Katureebe sounded like a man in a hurry to leave.

No, not in a hurry the way someone walks into the wrong meeting room before hastily and apologetically retreating while taking great care not to slam the door; hurry, in the way a man steps off a ship that is in stormy seas, and into a lifeboat headed for the shore.

In many ways, this is a credit to CJ Katureebe. His predecessor, Benjamin Odoki, soiled his reputation at the death by appearing to want to hang onto the office when it was clear to all and sundry, that his hourglass had emptied.
There are no such fears for the outgoing CJ. A long and lucrative career in private practice should have paid the mortgage and a generous retirement package announced just before his departure should smooth out any post-retirement pains.

Gone are the days when retiring judges, even from the Supreme Court, would face the ignominy of appearing before the bench as counsel, and arguing before their former students and charges.

Katureebe can claim, with merit, that it is his lobbying that has contributed to better remuneration for judicial officers, after decades of lobbying. He can also claim credit for bringing private-sector nous to the Judiciary in trying to digitise the management of cases, and breaking ground for what should become the new home of the Supreme Court and Court of Appeal.

But these are the correct answers to the wrong question. The key issues – the independence of the Judiciary, the administration of justice, and the health of the state of democracy, in as far as one arm of government is able to check and restrain the actions of the other, remain unresolved.

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Consider, for instance, that Katureebe has retired at the age of 70 only a few years after his court effectively argued that the head of the Executive arm of the government should be allowed to continue in office or seek it for the first time after the age of 75.

Courts, of course, only hear cases that are brought before them, and that of the retirement age of the Chief Justice has not thus been argued, but this contradiction merely reflects the sheer imbalance of power between the Executive and the Judiciary, and by extension, Parliament.

When a new CJ is named, it will be the fourth head of the Judiciary under the current Executive. In fact, since its creation by the 1995 Constitution, the incumbent and current President has appointed all the judges on that bench.

Judicial historians might need to check but my guess is that we probably now have more judges appointed by the President than those who were on the bench before he took power.
Now, many of the judges are men and women of good standing and fit for purpose, but what tone and flavour does the bench take on after four decades in which many appointments were decidedly of cadre judges, including some who had served in the Executive? What is the long-term effect of stacking the deck in this manner to ideological causes such as political and individual freedoms?

And when the Executive is similarly able to handpick winning candidates in a large number of legislative constituencies, or actively manage them, by hook, or crook or uppercut as we saw in the Age limit fiasco, what is the long-term impact on democracy, the separation of powers and the rule of law?

The problem is both the entrenchment of executive incumbency and the simultaneous weakening of the two other arms of government. The lifting of presidential term and age limits could have had merit in the eyes of proponents. However, without, for instance, allowing Supreme Court judges lifetime tenure, or insulating the selection process in the Judicial Service Commission from political interference, it strengthens one while weakening the other.

The sum total of it all is that the Judiciary has thus been reduced to bread-and-butter issues, like salaries and retirement perks, and removed from fundamental questions of justice and the rule of law. Thus while courts in Kenya and Malawi overturned dubious elections, our highest court has, on more than one occasion, ruled that elections were conducted outside the law, but then allowed their results to stand.

With the Electoral Commission laying on dubious campaign rules and another potentially controversial election around the corner, it is not surprising that CJ Katureebe couldn’t wait to hop into the lifeboat of retirement. Benches are not known to be very comfortable seats.

Mr Kalinaki is a journalist and poor man’s freedom fighter.
write2kalinaki@gmail.com
@Kalinaki

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