Museveni can’t block Kisaakye’s resignation

Prof J. Oloka-Onyango

What you need to know:

  • “...Under Article 144 ... the President does not have the right to reject a resignation by a judge under any circumstance.  

I was rather surprised to read a letter in the media purportedly written by President Museveni on October 4 responding to Justice Esther K. Kisaakye’s request for early retirement from the Supreme Court.
The only legally correct sentence in that letter is the following: “As per the law, I cannot obstruct your wishes.”  The Attorney General or the Minister of Justice and Constitutional Affairs should have advised the President to end his letter by accepting the resignation and wishing the judge well in her retirement. 
Unfortunately, the President goes on to talk about interference with “the Judicial Commission of Enquiry or the Tribunal,” raising numerous constitutional matters which need to be taken into consideration. 
In the first instance, and to the best of my knowledge, there exists no “Judicial Commission of Enquiry or Tribunal” which has been set up to review what the President refers to as “some strong statements (Justice Kisaakye) made against the Chief Justice.”  

There is a legal process for the establishment of such a body that, at a minimum, requires a notice in the Official Gazette; I have not seen any.  
While it is true that the Judicial Service Commission (JSC) conducted an investigation of Justice Kisaakye and made some recommendations to the President, he has so far failed and/or refused to act on them.  Which means the President has been delinquent in carrying out his constitutional duties to set up a commission as recommended.  In so delaying, he is denying the judge an opportunity to have her matter expeditiously resolved which is yet another contravention of the Constitution.  

Since the President has not set up that tribunal/inquiry, and there is no indication as to when (or if) he will actually do so, the judge is placed in a double-bind.  The President cannot both have his cake and eat it,   that is stop Justice Kisaakye from resigning from the Supreme Court, and continue sitting on the appointment of a tribunal/inquiry to hear her case.  
Secondly, even if such a tribunal/inquiry was actually in place, under Article 144 of the Constitution, the President does not have the right to reject a resignation by a judge under any circumstance.  
According to that article, a judicial officer may retire at any time after attaining the age of 60 years, and must do so upon the attainment of a specified age (depending on the rank they hold in the Judiciary).  There are no ifs, buts, or howevers attached to that provision. Therefore, a judge may (at their own volition and not at the instance of any other person) opt to leave the Bench.  

The Constitution is silent about any circumstances that can prevent such a resignation.  In other words, the President cannot stop a judge from resigning in accordance with the Constitution, especially since the article in question makes absolutely no mention of such powers.   
Lastly on this matter, the President’s letter at best treats the learned judge as a civil servant, and worse, as a suspected criminal. 
The language of the letter is similar to one that might be written by the Director of Public Prosecutions (DPP) or the Inspector of Government (IG).  
There are very clear provisions in the Constitution regarding the independence of the Judiciary and of the individual officers who are employed in this constitutional arm of the state.  At a minimum it is a reflection of a President who either does not seek or accept legal advice, or at worst, the extreme tragedy of the President deliberately undermining the provisions to which he has sworn to abide.

The writer, Prof J. Oloka-Onyango is a law professor at Makerere University.