Justice Kakuru: Uganda’s new star judge
Justice Kenneth Kakuru. FILE PHOTO
Immediately after Justice Keneth Kakuru’s verdict last Thursday, one of the social media users posted in his approval thus: “Those giving birth now, name you children Kenneth Kakuru if male and if female, attach their name to Kakuru.”
Some social media sycophants went on to say that Justice Kakuru’s courage to rule against President Museveni was “inborn”.
Daily Monitor sampled a section of the staff at the Nakasero-based Court of Appeal/ Constitutional Court where Justice Kakuru spends most of his time adjudicating cases. They described him as a judge who blows “cold” and “hot”.
“Amongst all the judges we have, he is the most complicated one,” one of the Judiciary staff who preferred to be remain anonymous, described Justice Kakuru.
He added: “Honestly, he is not an easy judge; even the registrars fear him. He can be very nice to you today and the following day, he yells at you over something small.”
On the contrary, Justice Remmy Kasule, one of the justices who was on the panel with Justice Kakuru during the hearing of the age limit case, described him as “a judge who carries out his work “properly” and “appropriately”.
Justice Kasule further described Justice Kakuru as a judge who stands by his views when it comes to decision taking and that he did the same with the famous age limit case.
“He is a very approachable judge and he discusses his points of view like any of us and he takes a stand like how he did in the age limit case.” Justice Kasule says of his colleague.
The start
The making of Justice Kakuru started way back while he was an advocate when he formed his own law firm of Kakuru & Co Advocates in 1987.
One of the cases that stood out during his time as advocate in private practice was when he fought against relocation of chimpanzee to China.
Through his environmental organisation, Greenwatch in 2004, he sued the Attorney General and Uganda Wildlife Authority, seeking a temporary order, stopping the exportation or relocation of the chimpanzees.
Justice Kakuru argued that there were about 5,000 chimpanzees left in Uganda and that any further reduction in their number, significantly affects the fauna component of the environment in Uganda.
During the hearing of the application, state lawyers raised a preliminary objection and asked court to reject Greenwatch’s application on grounds that they were ready. But court presided over by then Justice Gideon Tinyidondi, rejected the State’s plea.
“I have no better words to use than these in order to overrule the preliminary objection before me. It is accordingly overruled,” Justice Tinyidondi ruled.
In defence of wetlands
Also while still a practicing advocate, Justice Kakuru through the Greenwatch, opposed before the Constitutional Court the petition filed by former Kampala Central Division mayor, Godfrey Nyakana, whose house was demolished by National Environmental Management Authority (Nema) for being built in a wet land.
Justice Kakuru argued that Mr Nyakana was not deprived of his property and that ownership of property goes with duties and obligations.
He pointed out that section 43 of the Land Act requires an owner of land to manage and utilise it in accordance with the Forest Act, the Wildlife Act and any other law. He claimed that what was taken away from the petitioner was abuse of land.
The facts which led to the filling of the petition were that Mr Nyakana was the proprietor of land comprised in LRV 3184 Folio 2 Plot 8 Plantation Road Bugolobi, a Kampala suburb.
He obtained the title in 2004 to construct a residential house on the plot. He obtained the necessary approvals and commenced work.
In June 2004, Nema carried out an inspection of Nakivubo wetland located in Nakawa Division. The inspectors found that the Nyakana was constructing a house within a wetland which was unacceptable.
Mr Nyakana failed to comply with Nema’s orders and his house was demolished on January 8, 2005.
The Supreme Court in 2011, upheld the decision of the Constitutional Court and even ordered Mr Nyakana to pay government costs.
Refund of bride price
The other public interest case that Justice Kakuru was involved in together with the Attorney General as respondents was filed MIFUMI regarding the refund of bride price.
Justice Kakuru and the AG, denied that the custom and practice of payment of bride price or dowry as a requirement for the recognition of a customary marriage, or the refund thereof as a requirement for the dissolution of a customary marriage was unconstitutional.
It was pointed out that the custom of payment of bride price was constitutionally protected by the provisions of Article 37 of the Constitution.
The Supreme Court in 2015, went on to rule that the refund of bride price by the woman’s parents or relatives upon a failed marriage, was unconstitutional.
The same court declined to declare practice of demanding for payment of bride price as a precondition for customary marriage as unconstitutional.
Annulled interim orders issued by a single judge
While at the Bench last year, Justice Kakuru stood tall when he along with two other justices, declared null and void all interim orders of the court issued by a single judge, saying they were made in contravention of the Constitution.
The other justices who delivered the land mark decision were: Fredrick Egonda Ntende and Elizabeth Musoke.
Justice Kakuru and his colleagues, held that interim orders of the Constitutional Court from the date of their judgment were to be heard and decided by a full coram (panel) of five judges, not one judge as had been the practice.
“All interim orders issued by a single justice of the Constitutional Court which are still in force are null and void and of no effect,” Justice Kakuru declare in the unanimous judgment.
“Any interim or substantive orders of the injunction issued by a coram of three justices of the constitutional court which are still in force are null and void and of no effect,” he added.
The judgment of Justice Kakuru affected mainly the interim orders that had been issued by the then Deputy Chief Justice Steven Kavuma.
Some of Justice Kavuma’s affected interim orders were in regard to Kampala Lord Mayor Erias Lukwago in which he reversed the High Court ruling that had given him a lifeline to return to his City Hall office, the other being that involving former IGP Kale Kayihura when he stopped Makindye Chief Magistrates Court from prosecuting Gen Kayihura over torture of Dr Kizza Besigye’s supporters.
Cases handled by Kakuru
•The chimpanzee case - Green watch vs. Uganda Wildlife Authority (Misc App No. 92 of 2004).
•Amooti Godfrey Nyakana vs National Environment Management Authority & 6 Others, Constitutional petition No.3 of 2005 (main issue was alienation of land in wetlands and issuance of titles against existing laws)
•Advocates for Natural Resources Governance and Development & 2 Others vs. Attorney General & Uganda National Roads Authority, Constitutional petition No. 40 of 2013 ( main issue was no acquisition without prior compensation)
•Dorothy Nandugga Kabugo vs. Attorney General, Constitutional petition 039 of 2010 (main issue was that the proprietor of land does not have the right to abuse the land he or she owns)
•Sheer Property Limited vs. National Environment Management Authority Misc. Cause No. 232 of 2008 (main issue was that land use is subject to law.
