What you need to know:
- In three years, Justice Fredrick Martin Egonda-Ntende – who is one of the most globally acclaimed jurists Uganda has ever produced – will call time on his judicial career, having clocked mandatory retirement ag of 70 years. However, Derrick Kiyonga writes that having spent 11 years at the Court of Appeal without promotion, his career could be a case of ‘could have been’.
Justice Fredrick Martin Egonda-Ntende‘s judicial career has been punctuated by near-misses. For instance, when in 2012 he returned from Seychelles Islands where he had served as chief justice for three years, the Uganda Law Society (ULS) fronted his name to fill the position of Chief Justice since Justice Benjamin Odoki was retiring.
However, it did not materialise after President Museveni decided to extend Odoki’s tenure as Chief Justice for two more years, sparking off a Constitutional Court judgment that rendered the move unconstitutional.
In the end, it was Justice Bart Katureebe who was appointed as Chief Justice with Steven Kavuma, who had been serving both as acting Chief Justice and acting Deputy Chief Justice, taking the slot of Deputy Chief Justice permanently.
When Kavuma retired in 2017, Egonda-Ntende gave it another shot only for Museveni to pick Justice Alfonse Owiny-Dollo.
But when Makerere University announced last year that it was awarding Egonda-Ntende an honorary doctorate of laws degree as a way of celebrating his significant contributions to the legal fraternity in Uganda, there was no way of stopping him.
“Lawyers rarely agree on something, but on Dr FMS Egonda-Ntende’s honorary doctorate, all have said this was the best pick that anyone could make. You just have to read his judgements or attend his court. Congratulations, Dr, we are proud of your achievements,” Mr Julius Galisonga, a lawyer, said.
In his acceptance speech last week, Egonda-Ntende gave an idea of what compelled Makerere University to give him the doctorate of laws when he said his intention has always been to breathe life into the Constitution.
“Starting to serve in the Judiciary, I thought I knew much of what needed to be tackled from the outside. Once inside, I understood that legal acumen and zeal, obviously essential attributes of any judge, were insufficient to breathe life into the otherwise lifeless words of our Constitution and other laws,” Egonda-Ntende said.
“One had to double as a development practitioner, a change agent, to contribute to the transformation of the Judiciary into an effective and efficient body that renders justice to all without fear or favour, ill will or affection. I have dedicated the last 33 years to these ideals,” he added.
But how has Justice Egonda-Ntende, 67, tried to breathe life into Uganda’s Constitution, which to some, has lost meaning following some regressive amendments?
“Justice Egonda-Ntende has a lifetime track record of turning everyday cases into transformative judicial experiences, not only for parties before court, but all court users and society at large, stretching as far back as the early 1990s,” Mr Isaac Ssemakadde, the Chief Executive Officer for Legal Brains Trust, says.
The most talked about case in which Egonda-Ntende got involved was the first constitutional petition the newly formed Constitutional Court heard in which Gen David Tinyefuza (now Sejusa) insisted that he had retired.
In his resignation from the army, which was rejected by then State minister for Defence John Patrick Amama Mbabazi, Sejusa said: “There are several reasons, but the most important among those is that I feel I am unjustly being harassed over my testimony before that parliamentary Committee on Defence and Internal Affairs. To require me to appear before the High Command so that action is taken against me is rather too high-handed.”
In their judgement, justices Seth Manyindo, Galdino Okello, Alice Mpagi Bahigeine, Patrick Tabaro, and Egonda-Ntende agreed that Sejusa stopped being an army officer when he was appointed by Museveni as his presidential advisor.
“Similarly, under the Public Service Standing Orders, a public servant is engaged on a full-time basis. It follows that an army officer cannot be a public servant at the same time. And so, when, in 1993, the President appointed the petitioner [Sejusa] to a public service job as presidential advisor on contract terms, he thereby took him out of the army. There is no doubt that the President’s power to appoint army officers includes the power to remove them from the army,” the judgement read.
The justices also said there was mounting evidence to prove the Army Council allows officers to accept assignments in the public service while remaining army officers.
If in the Sejusa case he was a member of a panel, then he had to do it all alone in 2002 when he annulled the election of Mbabazi, at the time seen to be Museveni’s closest ally, as the Kinkiizi West Member of Parliament (MP). Egonda-Ntende threw Mbabazi out of Parliament after Garuga Musinguzi, who belonged to Reform Agenda, an Opposition pressure group, proved that Mbabazi’s victory was tainted with not only fraud but mass violence and intimidation.
The examples were numerous, but on the polling form that came from Nshaka 11/Samaria, the presiding officer stated: “Musinguzi’s agents didn’t sign because by the time we finished they had been put under arrest and also at Kinyangwe Polling Station the presiding officer noted that agents for Musinguzi disappeared mysteriously.”
“The arrest of the petitioner’s agents from polling stations, the confiscation of their registers, all of which were unjustified, did result in the denial of the petitioner representation at those polling stations from which the agents were arrested,” Justice Egonda-Ntende ruled.
In conclusion, he didn’t mince his words about the use of security forces to swing the vote in Mbabazi’s favour.
“It is convenient to take the following three items together: Violence and force were unleashed on the petitioner’s [Musinguzi] supporters by the Uganda People’s Defence Force (UPDF), Presidential Protection Unit (PPU) and other security and governmental agencies to intimidate and stop them from voting for the petitioner, and instead vote for the respondent. Armed Uganda People’s Defence Forces were positioned at polling stations to continue with their previous intimidation of voters carried out during the campaign period to stop and prevent the electorate from voting for the petitioner and instead vote for the respondent,” Egonda-Ntende ruled.
It seems Justice Egonda-Ntende, who has a Master of Laws degree and Information Technology and Telecommunications from the University of Strathclyde, Glasgow, United Kingdom, has been appreciated more outside Uganda than he has been appreciated at home.
In the early 1990s and 2000s, he was involved in setting up an independent judiciary in East Timor, where he served as a judge of the Court of Appeal.
His curriculum vitae also shows that he has wide-ranging experience in dealing with matters of drug trafficking, which he amassed while working as a judge in the United Nations Mission in Kosovo.
When President Museveni appointed him to the Court of Appeal in 2013, there was an outcry among MPs, saying he should have been elevated to the Supreme Court.
Violation of the human rights
When he took his seat at the Court of Appeal that doubles as the Constitutional Court, Egonda-Ntende joined with four other justices in a constitutional petition and ruled that police officers and other State agents implicated in the violation of the human rights of suspects will be held liable as individuals, and not as institutions.
Following abuse of interim applications by litigants and advocates, Egonda-Ntende together with justices Kenneth Kakuru and Elizabeth Musoke ruled that it is unconstitutional for a single judge to hear interim applications, which arise out of constitutional petitions. They ruled that such applications should be heard by five justices of the Constitutional Court, sending shock waves in the Judiciary.
It is very clear that political activists from the Opposition have a liking for Justice Egonda-Ntende, but they were disappointed when the judge had an opportunity to kick the military out of Parliament, which they deem to be a civilian institution, and he didn’t take it.
Activists had always argued that Parliament is a partisan institution and thus the army, which at least, in theory, is non-partisan, should stay out of it. But in 2019 the Constitutional Court okayed the presence of the military in Parliament.
Ellady Muyambi, a private citizen, who filed the petition insisted that the army can’t be in Parliament since Uganda has moved away from the single-party system which was termed the Movement system to the multiparty dispensation, but the five justices had different ideas.
“From the foregoing, it’s clear that the Constituent Assembly was alive to the contentions raised by the petitioner. However, it recommended that it was important to have army representation in Parliament. The majority were of the view that having the army represented in Parliament would aid in the execution of its duties and functions,” Egonda-Ntende who wrote the lead judgment explained.
“It is also clear that the Constituent Assembly intended for the army to be represented in Parliament during both systems of government [Movement and multiparty]. It was never intended by the framers of the Constitution for the army representation in Parliament to be in abeyance during the multiparty system,” Egonda-Ntende wrote.
It’s now 11 years since Egonda-Ntende, who doubles as the chairperson of the Law Council, took his position at the Court of Appeal. But he has seen judges who arrived years later being promoted to the Supreme Court, thus giving up on applying for a promotion.
“He told me he got tired of being rejected. That’s why he no longer applies for anything in the Judiciary,” a judge who is close to Justice Egonda-Ntende said on condition of anonymity.