What you need to know:
- It is common knowledge that some military officers are kept in service against their will as a form of control, or “maintaining discipline” in the forces.
- Doing the same to judicial officers seems to suggest that the need to maintain discipline has now spilled over from the Executive branch to the Judiciary. If those who are supposed to dispense justice are not free, who is? Justice Kisaakye has served her country. Let her go.
The decision not to allow Justice Esther Kisaakye’s request for early retirement is bad constitutional law, bad labour law, bad rule of law, bad precedent and, some would even say, bad manners.
In a short letter to the editor published earlier in the week, Prof. Joe Oloka-Onyango of Makerere University dissected the underlying constitutional premise: that once a sitting judge over the age of 60 asks to be retired, there are no ifs and buts to be overcome. They don’t have to give good reasons and do not need to satisfy some standard, except the aforementioned age.
They do not have to give any reason at all. If they ask to leave, they should be allowed to leave. Labour law pretty much says the same thing; that an employee who asks to end the relationship with their employer need not give a reason for it.
A recent court ruling affirmed the reverse position; that an employer who wishes to terminate an employee’s services need not give any reason for doing so. All the terminating employer or the resigning employee, for that matter, has to do is give the contractual notice or compensation.
An employee whose services have been terminated cannot refuse to leave simply because they have not been given a reason for being let go. Inversely, therefore, an employer cannot refuse to let an employee resign because no reason was advanced or found acceptable. Justice Kisaakye’s matter raises additional issues.
First, the claim that she cannot leave because she is the subject of certain disciplinary proceedings within the Judiciary potentially violates the fundamental premise that everyone is considered innocent until proven guilty in a competent court of law.
Many employees facing the prospect of disciplinary proceedings often resign before those start. Some are possibly guilty and wish to avoid having a dismissal in their employment record, which could undermine their future job prospects. Others are innocent but refuse to be tumble-dried through disciplinary processes and choose to leave with their dignity intact. Regardless of whether innocent or guilty, employees have the right to walk.
Justice Kisaakye’s matter is further complicated by her standing as a judge in the highest court of the land. It is common knowledge that she has had a falling out with some of her colleagues which culminated in her reading out a minority dissenting opinion in the 2021 presidential election petition, against the wishes of the head of the institution.
She subsequently slapped down attempts to remove her emoluments for alleged abscondment, but the back-and-forth left a bitter taste in the mouth and a divided bench.
Given this recent history, it wouldn’t be surprising if Justice Kisaakye questioned the ability to get a fair trial at a tribunal. It would be even more surprising if one refused to accept her resignation and insisted on trying to find her guilty.
The charges against the judge apparently revolve around statements she might or might not have made in respect to the Chief Justice. A trial through the tribunal would have offered interesting insights into whether that is enough to have a judge removed, and whether the CJ, or their office, are beyond criticism.
And yet no tribunal has been appointed. So, she can’t be cleared but also can’t leave because of something that doesn’t exist. Welcome to Hotel California; you can check out, but you can’t leave!
The worst possible outcome were the judge to be found guilty, is to have her removed from the bench – the very thing she is offering. It appears, then, that it comes down to ego and economics. If allowed early retirement, Justice Kisaakye is entitled to certain benefits; if forced out, she leaves with the shirt on her back and a large soiled patch. A few years ago a judge adversely named in corrupt practices was suspended to pave the way for a disciplinary process. Two days later the judge asked to retire. The request was granted. Why would we refuse to extend the same grace to someone whose alleged ‘crimes’ are significantly less serious?
It is common knowledge that some military officers are kept in service against their will as a form of control, or “maintaining discipline” in the forces.
Doing the same to judicial officers seems to suggest that the need to maintain discipline has now spilled over from the Executive branch to the Judiciary. If those who are supposed to dispense justice are not free, who is? Justice Kisaakye has served her country. Let her go.
Mr Kalinaki is a journalist and poor man’s freedom fighter.
[email protected]; @Kalinaki