Maverick Justice Kakuru who  both wowed and upset litigants

Sunday August 29 2021
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Justice Kenneth Kakuru. PHOTO | FILE

By Derrick Kiyonga
By Joel Mukisa

When he arrived at the Court of Appeal in 2013, Justice Kenneth Kakuru seemed like a man in a hurry who didn’t do anything else but hear cases before he quickly calls it a day. 

In 2016, having spent three years at the court, he was increasingly getting frustrated by the slow pace of matters in court and he decided to lay bare his frustrations during that year’s judges’ conference. 
“Instead of coming here, why don’t we put this money into hearing cases?” Justice Kakuru asked.   

The frank judge also wondered why higher courts such as the High Court, Court of Appeal and the Supreme Court were not inspected like the lowly magistrate courts are. He also took a swipe at judges who he accused of taking longer to deliver judgments with no justifiable explanation.
 
There was always a feeling that Justice Kakuru wouldn’t stay long in Uganda‘s Judiciary, but yet no one would have predicted that a terminal ailment would force him into retirement as it was first reported by Daily Monitor on August 4. 
  
“I find myself unable to continue performing my function as a Justice of the Court of Appeal… I have taken the decision in the interest of the Judiciary, my health and my family,” Justice Kakuru, 63, wrote a letter to Chief Justice Alfonse Owiny-Dollo, copied to Deputy Chief Justice Richard Buteera and Justice Benjamin Kabiito, the chairperson of the Judicial Service Commission (JSC). 

Both Court of Appeal and Supreme Court justices are mandated to retire once they clock 70 years, but Justice Kakuru is taking advantage of the provision in the law that allows a judge who has clocked 65 to ask for early retirement, which is procedurally granted by President Museveni.  
“The only person who can accept early retirement under the Constitution is the appointing authority – the President,” Justice Kabiito explains when asked about Justice Kakuru’s situation. “And you know the President is sometimes extremely busy, so it might take some time.”  
  
If the President gives Justice Kakuru a green light to hang up his wig, it would mark the end of a personality that has in a short time dominated the Court of Appeal. “His judgments are there for everybody to see,” Justice Kabiito says. “[He’s] a maverick and you need such people to shake up the system.”    
 
Even when working in panels as is the norm at the Court of Appeal which doubles as the Constitutional Court, Justice Kakuru’s personality as a rabble-rouser, inquisitive and always posing challenging questions stood out, and thanks to this approach, lawyers have had terrible days in his court.  

Kyambogo University Council in 2013 tested his patience and he indeed delivered. They went to Justice Kakuru’s court seeking to prohibit Prof Isaiah Ndiege from taking office as the university’s vice chancellor.  
Justice Kakuru not only ruled that Ndiege was lawfully in office, but also rejected the council’s argument that “hell would break loose at Kyambogo” if the professor was allowed back in office, stressing that court would not be “bound by threats”.
 
“This is absolutely unacceptable. This court must make orders that are legal, just and equitable irrespective of what happens outside the courtroom,” he ruled. 
If there is a senior lawyer who could attest to Justice Kakuru’s no-holds-barred style, it has to be David Mpanga. 
Mpanga rubbed Justice Kakuru the wrong way in 2018 when he tried to stop him from delivering a judgment in which the former director of the National Social Security Fund, David Jamwa’s 12-year sentence was upheld. 

As Kakuru was preparing to read the judgment, Mpanga was up on his feet; he wanted to “arrest the judgment”.  
The grounds Mpanga cited were the judgment, which was later confirmed by the Supreme Court, was irregular because it was written by only two Justices: Kakuru and Ruby Opio-Aweri with the third judge Steven Kavuma retiring without writing that he had agreed with the duo or writing a dissenting judgement.

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“Can you just sit down,” Justice Kakuru said with authority as Mpanga retreated. “I don’t know how a lawyer [Mpanga] was able to know the judgment before it’s read. I don’t know how you came to know that it’s only two judges who wrote the judgment.”
  
Since Justice Kakuru appeared to insinuate that Mpanga had behaved unethically, the lawyer was upon his feet, again.
“Please, sit down,” Kakuru, who has two master’s degrees in Law and Educational Policy Planning and Development, shouted. “If you have any problem with this judgment you will appeal.” 

Before he was appointed as a judge, Justice Kakuru under the auspices of his law firm, Kakuru& Company Advocates, had spent years in private practice moving from one court to another, advancing of both environment and human rights and his appointment to the bench was welcomed by both activists and lawyers who major in public interest litigation and believed Kakuru would expand Uganda’s jurisprudence.  

This year, for instance, Kakuru led a panel of four other justices who adjudged that the long-held practice of President Museveni appointing justices to others duties such as Justice Jane Frances Abodo, who is now serving as the Director of Public Prosecutions, and Justice Simon Byabakama, the chairperson of the Electoral Commission, without first resigning, was simply unconstitutional.   

“The relevant authorities, especially the Judicial Service Commission, must ensure that before a judge or justice takes up another appointment, he or she first resigns,” Justice Kakuru wrote a lead judgment which has since been stayed by the Supreme Court following an appeal by the Attorney General. 
 
Still this year, Justice Kakuru endeared himself to the progressives in the legal fraternity when he once again led a panel of the Constitutional Court to outlaw the controversial trial of citizens in military court following a challenge filed by Forum for Democratic Change’s (FDC) Michael Kabaziguruka. 

Justice Kakuru’s moment of truth came in 2018 in the eastern city of Mbale when he gave a dissenting judgment nullifying editing of age limits out of the Constitution. If he had his way President Museveni wouldn’t be enjoying his sixth term of office as Justice Kakuru held that there was no public participation in the processes that led to the amendment of the Constitution.

Justice Kakuru didn’t just lose in Mbale when Justices Alfonse Owiny- Dollo, Remmy Kasule, Cheborion Barishaki, Elizabeth Musoke upheld the amendment but also at the Supreme Court agreed with the majority judgment of the Constitutional Court. But activists were still proud of him saying he had done his duty and history would pardon him. 

There have been other moments in which Justice Kakuru hasn’t shied away from breaking barriers that have for so long stood in the way of Uganda’s fledgling democracy as he was among the justices that nullified section 8 of the Public Order Management Act which was used by police to arbitrarily disrupt Opposition gatherings.

Having enjoyed most of his judgments, the Opposition was for once disappointed in the way he ruled in the petition where FDC’s founding president Kizza Besigye had challenged his arrest by security operatives during the 2011 walk-to-work protests.   
 
While Justices Stephen Musota, Cheborion Barishaki, Geoffrey Kiryabwire agreed to dismiss the petition on grounds that it raised no issues for constitutional interpretation, Justice Kakuru dissented saying that it raised issues worth interpreting and indeed the arrest was a violation of the retired colonel’s rights.   
But in the turn of events, he took a swipe at Dr Besigye, accusing him of being in contempt of the 2016 Supreme Court decision that had declared Museveni as validly elected. 

Dr Besigye, for the record, had filed the case in the aftermath of the 2011 presidential elections not the 2016 elections, but Justice Kakuru who seemed not to understand that, went ahead to say he wouldn’t grant him any remedies, consequently telling him to get from “his” judges since he didn’t believe there was an existing and functional State.
The Opposition accused Justice Kakuru of using newspaper articles and resolving matters that were never brought to the court.

As retirement beckons, there will always be arguments of how Justice Kakuru has expanded the jurisprudence through giving judgments that have stymied the overzealous State functionaries and he perhaps belongs to the league of judicial giants such as Joseph Mulenga, Constance Byamugisha, Amos Twinomujuni, inter-alia, who widened the meaning of human rights in Uganda and checked the Executive overreaches without fear.

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