Justice Kakuru takes a bow

Until the 2018 Age Limit petition ruling in Mbale City, many Ugandans did not know Justice Kenneth Kakuru. 

Justice Kakuru was the only one of the five-member Bench to oppose the amendment of the Constitution to remove the presidential age cap of 75, a move that later paved way for President Museveni to contest again in the 2021 polls.

With his dissenting decision, Justice Kakuru, who was known for his judicial activism during his 10 year service at the Bench, caught attention of many observers.

The four justices who dismissed the petition against the amendment were Alfonse Owiny-Dollo, then Deputy Chief Justice and now Chief Justice, Justice Remmy Kasule (now retired), Justice Elizabeth Musoke, and Justice Cheborion Barishaki.  

At the time, Justice Kakuru’s name trended with a section of Ugandans referring to him as a judge with integrity.

A tweep, Sarah Bireete, said: “Good Morning Uganda -a country where people are still celebrating the landmark judgment by Justice Kenneth Kakuru. He will go down in history as the torchbearer of constitutionalism and a highly respected statesman just like Thomas Moore in ‘“ Man For All Seasons.”

Jackie Oloya in a reply to a quote by NTV Uganda wrote: “Listening to Justice Kenneth Kakuru gave me hope for Uganda and the future knowing we still have sober, bold and patriotic learned elders who are ready to stand for truth and only truth in order to guide the young and those to come in the reconstruction of the country.”

@JonanTea said: “Always tell the truth and the truth shall set you free. And Yes, Justice Kenneth Kakuru did exactly that. How proud I feel to have lived when [you] wrote this history!.’’

The praises for Justice Kakuru were also on Facebook. Okoth Ronald Watson wrote: “I pray to God to give me twins, I will name [the] first twin Justus Kenneth Kakuru not Opio as my culture dictates.”

In his 2018 judgment, Justice Kakuru held that there was no public participation before carrying out the amendment of the Constitution. He also observed that the amendment was a planned ambush since the Bill was introduced in Parliament, debated, and passed on the same day.  He declared that the process of amending the Constitution was “unconstitutional and a nullity.”

However, the love that Ugandans showered Justice Kakuru with was cut short yesterday morning after news spread about his demise to cancer of the prostate at Aga Khan Hospital.

“It’s with great sadness that we announce the passing on of Hon. Justice Kenneth Kakuru who until this morning (yesterday morning), was the Justice of the Court of Appeal/ Constitutional Court.  Reports from the family indicate that he passed away at Aga Khan Hospital in Nairobi this morning,” Chief Justice Dollo announced yesterday in Kampala during a press briefing.

“Justice Kakuru as many of you know has been a very valued member of the Bench. He will greatly be missed by the Judiciary of Uganda. He was through his judgments a human rights defender. The Judiciary will release a detailed burial programme in due course. The Judiciary shall miss him and we ask that the Lord receives him in Glory for eternity.”

The Age Limit case wasn’t the only case that saw Justice Kakuru express his judicial activism.
In March 2020, the Constitutional Court in a landmark judgment ruled that the police have no powers to stop or disperse public gatherings as it annulled the contentious Section 8 of the Public Order Management Act (POMA).

In a majority decision of the court of 4:1, the court observed that POMA contravenes several provisions of the Constitution that warrant freedom of assembly to its citizens in a democratic society. 

The verdict of the court came as good news mainly to the Opposition politicians whose gatherings as they prepared for the 2021 General Election had always been violently dispersed by the police based on the same law.

The annulled Section 8 of POMA gave the Inspector General of Police (IGP) or an authorised police officer of a rank above the inspector to stop the holding of a public meeting that they thought was held in contravention of the Act.

In his analysis, Justice Kakuru held that no evidence was laid by the State to prove that public gatherings stifle economic growth or disrupt businesses beyond what is justifiable in a free and democratic society. 
He added that the government and its agencies, including the security organs, had frequently used demonstrations to publicise their own programmes for just causes.

Justice Kakuru cited the example of President Museveni who had at the time of passing the aforementioned judgment led a huge demonstration across the capital city highlighting the evils of corruption in public institutions.

He argued that all the activities in the capital came to a standstill, but it was a welcome measure. Justice Kakuru further cited other events in the city that have attracted huge numbers of people like the then Kampala carnival and Martyrs Day celebrations.

“Nonetheless, none of those public gatherings resulted into violence nor did they disrupt businesses, commerce or public order beyond what is demonstrably justifiable in a free and democratic society,’’ held Justice Kakuru in March 2020 ruling. The same law had given an authorised police officer powers to disperse public gatherings. 

The maverick judge, as described by many, applied to retire in 2021, seven years earlier due to his health condition. However, at the time of his demise and with five years to his official retirement, his request had not been honoured.