Judicial corridors, discipline and greasing of palms in the eyes of Justice Wangutusi

When it comes to Justice David Kutosi Wangutusi, his judicial career will always be riddled with what-ifs or what could have been: a sense of unfulfilled potential which he actually had no control over.

Could he have headed all High Court judges as Principal Judge? Would he have made a good Court of Appeal justice? Or could he have gone all the way and made an impression at the highest court in the land, the Supreme Court?

In 2010, sources say, he was tipped to become the Principal Judge, taking over from Justice James Ogoola. The powers that be, however, decided that Justice Yorokamu Bamwine, now retired, would lead the High Court.

In 2015, a member of the Judicial Service Commission (JSC), the body that is mandated to improve the efficiency and effectiveness of justice administration in Uganda and also nominates and vets judicial officers before forwarding them to the President for an appointment, told this writer how Justice Wangutusi had been overlooked for promotion a number of times.

“The JSC has been submitting his name [Wangutusi] for at least three times so that he can be promoted to the Court of Appeal, but the appointing authority kept on ignoring him,” a member of the JSC, who preferred anonymity, said.

High Court judges, as per the Constitution, retire the day they clock 65 years, and not being promoted to the Court of Appeal or Supreme Court meant that Justice Wangutusi had to hang up his wig on July 10, 2021, calling time on a career that has seen him not only being at the centre of several divisive cases, but also at the forefront of the Judiciary’s efforts to revolutionise the Ugandan justice system through mediation, a component of the alternative dispute resolution.

For instance, when a magistrate at the Anti-Corruption Court sentenced former junior minister of Health Mike Mukula to four years in jail in 2013 for embezzling Shs210m from the Global Alliance for Vaccines and Immunisation (GAVI) project, it was Justice Wangutusi who freed him, upon appeal.

Once he cleared his desk at the International Crimes Division of the High Court, the judge just wanted to retire to his home in the border district of Namisindwa, approximately 40kms south-east of Mbale, the focal city in Bugisu sub-region. 
“I did my part and now I have left your Kampala because I have a home this side,” he told this reporter.

Corruption in Judiciary
Towering around 6 fit 4 inches, Justice Wangutusi says in contemporary times, many wannabes choose to study Law because of the perception they will become rich in an instant.
But Wangutusi says when he decided to study Law at Makerere University in the 1970s, money was the last thing on his mind.

“I admired lawyers: the discipline. You would never find that a lawyer ‘ate’ money in the name of judicial officers. No! Now once in a while, you hear a lawyer has received money on your [judicial officer’s] behalf. It’s not small money. We are discussing [Shs]300 million, [Shs]150 million. A person comes to you saying you ‘ate’ money and when you tell him that you haven’t received anything and that he should go and collect the money from the lawyer, he says there are many mafia,” Wangutusi says.

“So, people fear to report because of the mafia. Probably he or she thinks they will kill him or her. We have lawyers who do that kind of thing in society. They claim, ‘we are doing this matter, but don’t look at me as the lawyer. The big man [judge] decides - for me I just present’. We have them. 

“When you deliver the judgment and it’s going in a different direction, that’s when the fella says, ‘eh didn’t it arrive?’ If he is lucky and you deliver it as he wants then the other party which got the money says, ‘you see, it worked.’  
“Many times, this money never reaches the judicial officers. I’m not saying the Judiciary is clean. I’m saying many times these big monies you hear so and so has received never reaches,” Wangutusi says.

Election petitions
High Court judges have concluded determining both parliamentary and Local Government petitions and having been in charge of parliamentary petitions, Wangutusi can’t help but laugh off the corruption that goes on during such hearings.    

“Electoral petitions….,” he ponders and follows up with a laughter. “There all these hangers-on. One gets the thing [bribes]; even the former campaign managers get it. Saying, ‘that one [the judge], it’s me who knows him.’ So, they go to the judge without arriving. We know of people who say, ‘let me be the one to go and see him.’ He enters the building, enters the judges’ chambers, says hello to the secretary and goes away. He goes back and reports, ‘I have finished him.”
With perceived and real corruption within the Judiciary, the normal talk in society is that it’s hard to convince anybody that there was a time when the legal sector was driven by values, but Justice Wangutusi insists that when he was starting his career, riches were never the persuader.

“The lawyers then were much disciplined. They respected the law. They respected the judicial office: the court. Now we have some [who respect court], but we have people who now run to read the law to make money. You are not reading the law to enjoy the profession, you are reading the law to make money. He is maybe a teacher. He is maybe an engineer and there are no contractors coming and he says, ‘if I become lawyer, maybe I will make money.’ They go to the university, read law and they finish. They go to Law Development Centre and finish.
“They come for interviews to become judicial officers. You ask the basics, the man doesn’t know the basics but he has a second-upper degree honours and it’s in his name. And you unleash those to the public officers.”

Journey
Justice Wangutusi’s career progressed from being a Grade One Magistrate, Chief Magistrate, Assistant Registrar, to being a Deputy Registrar, Chief Registrar, and finally being a High Court judge. But he says it’s not top-notch lawyers that inspired him to do law.
Rather, it was his late uncle, Peter Watuwa, who served as a magistrate, but intriguing he had never done a degree in Law. 

“He was a celebrated leader,” Wangutusi remembers his uncle. “He did most of his work in Bugwere, Pallisa. He was not only my uncle, but he was a friend to his cousin, my father.”
He reminisces the 60s during his infancy when Watuwa would put him in his Ford Zephyr car and drive him in the villages.
“Do you know Zephyr?” he asks in his distinctive husky voice and explains, “Zephyr was a car for the well-to-do. That’s what my uncle had.”
In 1983, it was Watuwa who enticed Wangutusi to kick-start his career as a magistrate, starting from the eastern town of Tororo as a Grade One. 
“That’s why I told you I worked for 38 years and seven months, because I began in May 1983 in Tororo,” he says.   
After being promoted to senior magistrate in 1989, he was transferred to Iganga District where he worked for just one week.   

Wangutusi says the late Justice Hensley Ephraim Okalebo, who at the time was Chief Magistrate at the Buganda Road in Kampala, called him.  
“I ended up in Buganda Road to work with Okalebo,” he explains. “Of course, very soon I annoyed people because I would begin my court at 9am. That was the time when that place was full of conmen. They would con Bank of Uganda and so on. Big men are used to coming to court at 11am. So many times I was required to explain why I made big men come to court early. But I said ‘on this one I would disobey you.’ I have been going to court at 9am until recently when I stopped going to court. So, for 38 years I have been going to court at 9am.”
The men of means had the last laugh. They kept complaining until Wangutusi was transferred to the chambers of Uganda’s pioneer Principal Judge, the late Justice Jeremiah Herbert Ntabgoba, as an assistant registrar.

“Whoever was told to work under Ntabgoba would die literally. Justice Ntabgoba told me that Justice [Peter] Onega who had been running the registry was away for two months, ‘so you will be doing it.’ I said that’s okay.”
When the two months elapsed, the youthful Wangutusi knocked on Ntabgoba’s door. He had gone to say goodbye as he thought he had to return to his old workstation at Buganda Road. But much to his shock, the Principal Judge ordered him not to move. 
“He told me: ‘who told you when you come here you just go back? You will go when I say so,” Wangutusi recalls. “Then I discovered he had grown dependent on me because we would be the only ones in the building by 7.30am.”  

Wangutusi was under the tutelage of Ntabgoba for six years in which he moved from being an Assistant Registrar, Deputy Registrar, Registrar, Chief Registrar, and in 2000 he was appointed as a High Court judge with Masaka being his first station.  
From Masaka, Wangutusi was taken to Jinja and while he was there, the Judiciary decided to institute a training centre for judicial officers, with Wangutusi becoming its pioneer executive director in 2004. 
 
In 2009, he decided to get study leave such that he could go out of the country. Unlike many lawyers who do their master’s degree in criminal law, or in Human rights, Wangutusi says he didn’t go for such because they wouldn’t have added anything on him. 
He instead opted to do a Master’s degree in Social Science Research in Law, which he says is a rare course, which according to his estimates has been done by only 10 people in the world. The course, from Wangutusi’s explanation, introduces a human touch to law.  

“It teaches you to handle cases in a socio-legal manner. You don’t simply say the law says this: you are also looking at where the law operates. It operates among human beings. So socially what do human beings expect from court? How should they be treated even when they are accused,” the retired judge asks.
Because many legal practitioners have not blended Social Sciences with the law, he says he has been amused by how judges handle litigants. 

“How they treat accused persons or how they treat plaintiffs and defendants is something that’s lacking in our training at the Law [Development] Centre and, of course, at Makerere [University]. For if you use a socio-legal approach you get to factor in how people leave in society because you must know there are poor people, that there are rich people, and that there are people who are cruel.”
When he returned to Uganda in 2011, Wangutusi was dispatched to the Anti-Corruption Court, a special division of the High Court ostensibly set up to adjudge corruption and corruption-related cases.

The three years he spent hearing cases related to theft made him invoke the skills he got from his Social Sciences Research in Law course. 
“You must know that some people steal because they enjoy stealing. You must know that some people steal because they either steal or they die,” he says.
Two years into his stay at the Anti-Corruption Court Justice Wangutusi became the first judge to sentence Geoffrey Kazinda, the former Principal Accountant in the Office of the Prime Minister (OPM), having found him guilty of 29 counts of abuse of office, making documents without authority, forgery and unlawful possession of government stores. 
Though the Court of Appeal overturned the judgment, albeit after Kazinda had served the five-year prison sentence, Wangutusi insists he set a precedent.  
“In the Kazinda case we discussed what we call being in constructive possession,” he says. 

“I have never seen a judgment anywhere else that explains constructive possession. Look at this: There is an item and it’s in your mother’s house, you would say you are not the one in possession. When you read you will find that’s one of the things we brought out into the picture and those who believe in progress will use it and those who don’t believe in progress don’t use it.” 

Wangutusi doesn’t rate it the most complex case he has handled, but in 2017 when Bank of Uganda, through Crane Bank in receivership, dashed to the Commercial Court and sought to recover in the main suit Shs397 billion from property mogul Sudhir Ruparelia, its former owner whom it had just ousted from ownership of the bank, shut it and sold it to Dfcu, the legal fraternity anticipated a protracted legal battle.

Two years after mediation efforts failed to deliver any tangible results, Justice Wangutusi, without going into the nitty-gritty of the multi-billion case, summarily dismissed it on grounds that Crane Bank in receivership at the time of instituting the suit was non-existent, hence never had powers to sue, a judgment confirmed by both the Court of Appeal and the Supreme Court.  

“There was nothing in that case,” he says. “Maybe the only problem is that you don’t look at the parties as equals. In as far as I was concerned, Bank of Uganda was like any other litigant before me. People didn’t expect me to decide in a way that annoys Bank of Uganda. No! For me, the moment you come… and I had warned them [Bank of Uganda and Sudhir]. That you are coming before me, but why don’t you settle because some of you will get hurt. Having said that, I couldn’t go to court and say this is a big client. This is a small client.”