Tanzanian to lead tribunal to probe Justice Kisaakye

A Court of Appeal judge in Tanzania has been appointed by President Samia Suluhu Hassan to set up a tribunal that will probe allegations of misconduct against Uganda’s Supreme Court Justice Esther Kitimbo Kisaakye, Monitor has learnt. Sources privy to the matter said President Suluhu on October 3 named the judge, whose identity has been withheld, upon a formal request from her Ugandan counterpart.

“President Museveni went all the way to Tanzania because he wanted to get a neutral judge," he told Monitor recently.

Kisaakye, an independent jurist whose judgments have enriched Uganda’s legal jurisprudence across the fields of Constitutional Law, Corporate and Commercial Law, and Family Law, reportedly left the country recently, citing threats to her life. This newspaper contacted the judge earlier this week in a bid to get more details on why she left the country. She has since instructed a top law firm in Kampala to furnish us with the details.

2021 election petition

Justice Kisaakye has before accused Chief Justice Alfonse Owiny-Dollo and other top Judiciary officials of a witchhunt, which commenced shortly after she authored a dissenting ruling after the Opposition NUP party candidate, Mr Robert Kyagulanyi, alias Bobi Wine, petitioned the highest appellate court, challenging President Museveni’s victory in March 2021.

On March 18, 2021, there was hoopla at the court premises when the public address system and lights were switched off barely after Justice Kisaakye commenced a news conference in the absence of a Coram of nine justices of the Supreme Court.

Justice Kisaakye alleged that the Chief Justice confiscated her ruling, an accusation Justice Owiny-Dollo denied. In her ruling she later read, Justice Kisaakye said the Supreme Court’s conduct towards Mr Kyagulanyi was unfair because it refused to grant him permission to amend his petition and grant him time to file additional evidence.

The Judiciary later authored a statement, accusing Justice Kisaakye of being repulsive to her colleagues and rejecting to follow the practice of the court. Earlier last year, the Judicial Service Commission (JSC) made a recommendation to President Museveni to suspend Justice Kisaakye from the Supreme Court and be investigated over her alleged misconduct and verbal attack on the Chief Justice. This was after the JSC during its probe established a prima facie case that warrants her being investigated by a tribunal formed by the President.

A “prima facie case” means a legal claim where an initial examination establishes sufficient evidence to prove a particular claim allowing the case to proceed to trial.

“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 Lady Justice Dr Kisaakye,” read

in part the recommendations of the Commission dated February 8, 2023. Adding: “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.”

Presidential powers
Article 144 (3) states that the President shall remove a judicial officer if the question of his or her removal has been referred to a tribunal appointed under clause (4) of this article and the tribunal has recommended to the head of state that he or she ought to be removed from office on any ground described in clause (2) of this article. In 2006, High Court Judge Richard Oscar Okumu Wengi was accused of professional misconduct by counsel Peter Mulira.

On the advice of the Judicial Service Commission (JSC), the President suspended Wengi and appointed a tribunal to investigate him. The panel comprised Tanzania’s retired judge Josephat Kanywanyi, Kenyan Judge Lee Gacuiga Muthoga, Uganda’s Peter Mulira, and former Uganda Law Society President Moses Adriko.

Mr Mulira recused himself from the panel based on a conflict of interest. Mr Mulira later claimed that he was misled, and withdrew the accusations against the judge. The President subsequently dissolved the tribunal, and the judge was granted early retirement and full retirement benefits.

Her case
Justice Kisaakye sued the Chief Justice and a dozen other high-ranking judicial officers, claiming, among other things, unfair treatment. The petition is still pending hearing before the Constitutional Court.

Last year, Justice Kisaakye wrote to President Museveni, seeking early retirement. The Head of State in his capacity as the appointing authority, rejected her request on grounds that she was still the subject of an investigation. The reason Justice Kisaakye advanced for early retirement was that the Constitution gave her the green light to do so after she clocked 60 years of age.

“I have received your letter of the 18th of July, 2023, tendering your early retirement. As per the law, I cannot obstruct your wishes. However, that will pre-empt the work of the Judicial Commission of Enquiry or the Tribunal,” President Museveni replied to Justice Kisaakye in his letter dated October 2, 2023.

He continued: “Apparently, you made some strong statements against the Chief Justice. Either those statements were right or were wrong. It is the tribunal that can conclude that. It is thereafter that the way forward will be clear for you.”

Her past employment
Before she joined the Judiciary, Justice Kisaakye between 1999 and 2009, worked in private practice as an advocate with Kisaakye & Co. Between 1983 and 1991, she was the legal officer with Uganda Commercial Bank, and a senior legal officer with National Insurance Corporation.

She also worked in the office of the Vice President, Dr Specioza Kazibwe, as a private legal secretary. Between 1995 and 2009, Justice Kisaakye was a lecturer at Makerere University Law School.