Judicial commission recommends removal of Justice Kisaakye

Combo: Chief Justice Owiny-Dollo  and Justice Esther Kisakye. PHOTOS | FILE

What you need to know:

  • Judges can be subjected to disciplinary processes. Article 144 (2) of the Constitution provides for the removal of a Judge due to inability to perform the functions of his or her office arising from infirmity of body or mind; misbehavior or misconduct; or incompetence.

The Judicial Service Commission (JSC) has recommended to President Museveni to cause the removal of Justice Esther Kisaakye from the office of the Supreme Court. 
The commission also recommended that Justice Kisaakye be investigated over her alleged misconduct and verbal attack against the Chief Justice Alfonse Owiny-Dollo during the ruling of her dissenting decision in the presidential election petition involving National Unity Platform (NUP) leader Robert Kyagulanyi, aka Bobi Wine, and President Museveni in March 2021.

Judge sues CJ, five others over Bobi 2021 poll case spat
This was after the JSC, in its over year-long investigations against Justice Kisaakye’s alleged misconduct, established that there exists “some degree of evidence (prima facie case)”, that warrants her being investigated by a tribunal formed by the President.

“The commission is of the considered opinion that a prima facie case has been established through this inquiry of probable grounds of misbehaviour or misconduct, on the part of Hon Lady Justice Dr Kisaakye,” the February 8 report containing the recommendations, which this publication has seen, reads in part.
It added: “The Hon Lady Justice Kisaakye, being a Justice of the Supreme Court of Uganda, the commission, recommends that the President appoints a tribunal, pursuant to Article 144 (2) (b), 3 and 4 of the Constitution, for the question of the removal of Hon Dr Justice Kisaakye, from office, to be investigated.”
When contacted last evening, Justice Kisaakye said she had not yet received a copy of the report.
“How did you get that information? That is news to me,” Justice Kisaakye said in a telephone interview last evening.
“If they recommended for my removal from office, then they will communicate to me at the right time but if they choose to communicate to others and leave me out, I don’t control them. Thank you for informing me,” she added.
The JSC is chaired by Justice Benjamin Kabiito.

The other commissioners who signed the recommendation are Attorney General Kiryowa Kiwanuka, Ms Ruth Sebatindira, Ms Norah Matovu, Mr Johnson Bitarabeho, Mr Badru Wagwa, and Mr Jimmy Okello, who are all members of the commission and Ms Jane Margaret Akurut, the acting secretary of the commission.
Justice Kisaakye is the first judge to be recommend to the President to have her removed from office for purposes of investigation.
Former High Court judge Anup Singh Choudry survived the process after he successfully petitioned the Constitutional Court.
Mr Choudry was accused by lawyers, under their umbrella association of the Uganda Law Society, of not being fit to be a high court judge on grounds that his name had been tainted with a bad legal record after he was sacked as solicitor in the United Kingdom for allegedly making bogus claims for costs
The lawyers further argued that Justice Choudry never successfully appealed against the UK decision, a move they said confirmed his guilt.

On March 18, 2021, the Supreme Court was thrown into pandemonium after Justice Kisaakye’s file, which contained her dissenting ruling in the 2021 presidential election petition, was allegedly confiscated on the orders of the Chief Justice.
This followed Bobi Wine’s withdrawal of the presidential election petition challenging Mr Museveni’s 2021 victory.
The Chief Justice denied confiscating her file and the JSC initiated an inquiry into the matter.
The commission states that it initiated the inquiry on account of the social, print and electronic media coverage of the fallout between the head of the Judiciary alongside seven other justices of the Supreme Court and Justice Kisaakye, which was tarnishing the image of the Judiciary.
JSC said the inquiry initially covered public statements made by Justice Kisaakye against the Chief Justice when she alleged that he had ordered for the confiscation of her file to prevent her from reading her dissenting ruling and that Mr Owiny-Dollo had given her unconstitutional orders that had the effect of interfering with her independence.

The inquiry was to ascertain what led to Justice Kisaakye’s public outbursts, record statements and gather relevant documents relating to the matter for consideration by the commission.
In the process, the commission received four complaints about the matter.
The complainants include lawyer Male Mabirizi, Bobi Wine, Chief Justice. In his complaint, Mr Owiny-Dollo stated that Justice Kisaakye desecrated the Supreme Court by holding a press conference at the court and made scathing and disrespectful attacks on the denigration of the Chief Justice, defied his directives to share her findings with the other members of the panel, and was absent from work beyond her approved leave period.
The commission said no formal statement was filed by Justice Kisaakye despite being given an opportunity to do so.

“On the basis of the report of the preliminary inquiry findings that was considered by the commission, and availed to the Hon Chief Justice and Hon Lady Justice Kisaakye, the commission evaluated the findings and took the decision to close complaint reference no. HRM/ 77/179/01 (1) as no formal statement by Justice Kisaakye despite being given an opportunity to do so,” held the commission
It added: “In respect to the complaint… on the basis of the evaluation of the findings and issues framed, it’s the commission’s observation that there are probable grounds of improper conduct on the part of Justice Kisaakye in terms of regulation 5 (3) (a) of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations. The observation arose from the evaluation of the evidence assembled in the injury, on six issues that were framed.” 

The six issues that the commission framed and inquired against Justice Kisaakye include whether she had a duty to adhere to the practice of sharing her rulings in the presidential poll petition and whether she disobeyed the directive of the Chief Justice as the head of the panel to deliver her rulings.
Others are whether Justice Kisaakye could deliver the said rulings as a single justice of the Supreme Court in a matter that was empaneled, whether the verbal public statements by the lady justice on March 18 and 19, 2021 brought the image of the Judiciary in disrepute, whether she is associating with an applicant (Mabirizi), media and the public on the matter before a court breached the code of judicial conduct and whether she was absent from duty beyond the approved period.
Kisaakye’s position 
According to the report, Justice Kisaakye denied ever convening a press conference at the Supreme Court on March 18 and 19, 2021 and that she did not contact Mr Mabirizi.
However, she said she spoke to the media out of necessity to defend the Constitution and disassociate herself from the unconstitutionality that had continued to unfold before her own eyes.

She said she received a WhatsApp message from Mr Sudhir Byaruhanga of NTV, informing her that members of the press had been denied access to the Supreme Court premises.
She further said she had received reports from judicial staff that Mr Mabirizi had also been denied access.
“After exercising restraint for close to two hours while unprecedented and unconstitutional denial of access to litigants, lawyers and other court users and members of the public unfolded at the gates, she was forced to go to the gates to briefly inform the litigant (Mabirizi) who had been locked out the gate,” the report reads in part.

It added: “…After informing the litigant about the postponement of the delivery of her ruling, she also briefly spoke to the members of the media and the public who were similarly locked out of the court premises. That she did this as the justice of the Supreme Court. She used the address to the press to correct lies and distortions that were put out by then Judiciary’s communications officer Solomon Muyita and the public relations officer, Mr Jamson Karemani about what transpired at the court the previous day.”
According to the final recommendation report of the commission, Justice Kisaakye was also found guilty of being away from duty beyond the recommended sick leave.
This was after she requested for sick leave to travel to the US on June 20, 2021 and returned in September 2021.
Commission records show that upon return, she extended her sick leave period without medical justification being furnished.

It remained unclear last evening on whether President Museveni had already formed the tribunal to cause the removal of Justice Kisaakye from office.
The release of the report by JSC comes about three months after Justice Kisaakye sued the Chief Justice, most of the top members of the Judiciary and the JSC over the same events at the Supreme Court.
She accused them of victimising her by withholding her salary, denying her work among others. 
The Constitutional Court is yet to hear the petition.

Who is Justice Esther Kisaakye?

Justice Kisaakye was born on January 18, 1960.
She began her education at Kyanja Church of Uganda Nursery School in Kampala, Uganda (1964), and later joined Wampewo Primary School (1965). Between 1969 and 1970, she attended Ntinda Primary School and in 1971 and later joined Kibuli Demonstration Primary School (1971).
She also attended Kololo Senior Secondary School (1972), East African Certificate of Education, and Wanyange Girls School in Jinja, Uganda. For her A-level, she attended Trinity College Nabbingo, Kampala.

Legal education
In 1981, she graduated from Makerere University. The following year, she graduated from the Law Development Center (LDC) with a post graduate diploma in legal practice where she emerged as the fourth-best student.
In 1985, she enrolled as an advocate of the High Court. In 1994, she graduated with a Master of Law from Georgetown University in the US.
In 2009, she acquired a doctor of juridical science degree from the Washington College of Law, American University in Washington DC
Present employment
She was appointed to the Supreme Court in 2009 where she has been to date.
She is the most senior judge after the Chief Justice and is ranked fourth in the Judiciary hierarchy.
Other leadership positions that she has held include chairperson of the Judicial Training Committee, chairperson of the Judicial Monitoring Committee, chairperson of the East African Judicial Training Committee, chairperson of the National Association of Women Judges of Uganda, administrative judge of the Supreme Court.
Past employment
Between 1999 and 2009, Justice Kisaakye worked as an advocate with Kisaakye & Co. From 1983 to 1991, she was a legal officer with the Uganda Commercial Bank and a senior legal officer with National Insurance Corporation.
She also worked in the office of then vice president, Dr Specioza Kazibwe, as a private legal secretary.
Between 1995 and 2009, Justice Kisaakye worked as a lecturer at Makerere University where she taught human rights, family law, and health, among others.
She has also received several awards such as the female lawyer lifetime achievement and leadership award.
She was one of the candidates who applied to replace retiring Chief Justice Bart Katureebe but President Museveni picked Justice Owiny-Dollo.

Disciplinarya Mechanism/Removal of Judicial Officers

Judges can be subjected to disciplinary processes. Article 144 (2) of the Constitution provides for the removal of a Judge due to inability to perform the functions of his or her office arising from infirmity of body or mind; misbehavior or misconduct; or incompetence.
Where such removal is due to misconduct, a two-step approach is followed by the JSC.
The first step requires the Commission to make a finding as to whether there is a prima facie case. If the finding is in the affirmative, the second step requires the Commission to make a referral of the matter to the President as the appointing authority, with a recommendation that a tribunal be set up to hear the matter evoked.
The judge shall be removed from office by the President if the tribunal makes a recommendation to that effect.

Other Disciplinary Penalties
The Judicial Service Commission, Regulations SI 87 of 2005, under Regulation 23, sets out examples of judicial misconduct. Fourteen disciplinary offences are stipulated. The disciplinary offences provide an ethical and integrity check list for all judicial officers which they must strive to avoid by complying with the set standards highlighted herein above. As a quick reminder the disciplinary offences include:
a) Conducting himself or herself in any manner prejudicial to the good image, honour, dignity and reputation of the service;

b) Practicing favoritism, nepotism or corruption whether for personal advantage or gain
or that of any other person;
c) Practicing discrimination on the basis of sex or race, ethnic origin, tribe, birth, creed
or religion, social or economic standing, political opinion and disability;
d) Habitual late comer or absents or absconds from duty without reasonable excuse;
e) Insubordination, rudeness, use of abusive language, and disrespect or uses vulgar

f) Laziness or producing poor standard work;
g) Untrustworthy or lacks integrity in public or private transactions;
h) Engages in private interests at the expense of his or her official duties;
i) Divulges official information to unauthorised persons;
j) Acting in contravention of the Code of Judicial Conduct, the Judicial Oath or any other oath taken by the judicial officer – deliberate violation, intentional
k) Is convicted of a criminal offence by a court of law – corruption is a criminal offence;

l) Disregards the chain of command in his or her place of employment without reasonable excuse;
m) Abusing judicial authority – intentional.
n) In any way contravenes any provisions of the law, Uganda Government Standing Orders or any other instructions relating to the discipline of judicial officers.
In 2016/2017 the commission registered 287 complaints against judicial officers, 2011/2018, they registered 323 complaints and in 2018/19, they registered 227 complaints.