JSC on the spot as it moves to investigate Justice Kisakye

Supreme Court Judge Esther Kisaakye after storming out of the meeting at Serena Hotel in Kigo on February 8, 2023. PHOTO | STEPHEN OTAGE

What you need to know:

  • The focus is now on President Museveni following a recommendation by the Judicial Service Commission (JSC) that he should institute a commission of inquiry to investigate Supreme Court Judge Esther Kisaakye. However, as Derrick Kiyonga writes, the decision has put the commission under a microscope, with many lawyers accusing it of selective prosecution.

It has been about 16 years since a judge in Uganda came close to being subjected to the disciplinary committee appointed by President Museveni over corruption-related allegations.  
By 2006, nimbus clouds had encircled the judicial career of Justice Richard Oscar Okumu Wengi after authorities at the Judiciary had stopped him from hearing cases pending the conclusion of an investigation into a case in which he had been accused by the Gandesha family of corruptly demanding $500,000 (about Shs1.8b) in 1999. 

The charges against Justice Wengi were serious as they ranged from corruption, forgery and impropriety to perversion of justice. However, the Judicial Service Commission (JSC), which is inter-alia charged with disciplining errant judicial officers, having looked into the matter, didn’t recommend that Mr Museveni appoints a commission to investigate the embattled High Court judge. The JSC instead advised the President to indefinitely suspend Justice Wengi, which Mr Museveni dully did.  
Justice Wengi wasn’t about to go down without putting up a fight; he went to the  High Court challenging the decision by the JSC as illegal, arguing that he was not given a fair hearing and he, accordingly, asked the court to declare null and void the actions of the JSC and President Museveni. 

During the hearing, the JSC got an upper hand when it presented to the court copies of letters written to Justice Wengi in February 2005 asking him to respond to the allegations and in response, Justice Wengi wrote to Mr Museveni in August 2006 asking for permission for early retirement. 
The JSC was amenable to Wengi’s request and told Mr Museveni that Justice Wengi’s early retirement would not only give him a soft landing but also save the Judiciary’s blushes if its dirty linen wouldn’t be put in the spotlight.  
The President, who was ostensibly fed up with the mess, ordered that Justice   Wengi be retired with full benefits. As the dust was settling, Justice Wengi reneged on the retirement deal, insisting that he was waiting for Justice Musoke-Kibuuka, the trial judge, to give his verdict. Justice Musoke-Kibuuka wanted none of it. He ruled that Justice Wengi’s judicial career ended the moment Mr Museveni endorsed his application to retire, adding that the beleaguered Justce Wengi could only make a comeback to the bench if Mr Museveni reappointed him as a judge – something which wasn’t possible at the time.

Members of the Judicial Service Commission with Chief Justice Alfonse Owiny-Dollo (centre) and other members of the Judiciary. PHOTO/JSC website

If the drama of appointing a tribunal to investigate a judge was avoided in the Justice Wengi saga, the decision to ask the President to institute a tribunal to investigate Supreme Court Judge Esther Kisaakye has ultimately put a sharp focus on how the JSC does its job.   
After a year of investigating Justice Kisaakye over her alleged attack on Chief Justice Alfonse Owiny-Dollo during the delivery of her dissenting decision in the presidential election petition involving National Unity Platform (NUP) party leader Robert Kyagulanyi, aka Bobi Wine, and President Museveni, in March 2021, the JSC finally recommended that a commission be set up.   
“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 Hon Lady Justice Dr Kisaakye,” the recommendation, which was signed by JSC members led by its chairperson Justice Benjamin Kabiito, states.

It added: “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.”
Although for many years the JSC, under different leadership, has been petitioned to investigate judges, they have never been this swift, with many complaints handled years later after complainants have lost interest or not looked into until that particular judicial officer retires. 
“This is just a political witch-hunt,” lawyer Eron Kiiza said.  “Many cases are filed every year against judicial officers and they are never handled but look at how they have quickly handled [Justice] Kisaakye’s case.”  
Mr Kiiza was among the lawyers in 2019 who ran to the JSC accusing then High Court Judge Joseph Murangira of being compromised when he was presiding over a case where more than 3,000 people were evicted from five villages in Mubende District.  By the time Justice Murangira retired last year, having clocked 60 years, the mandatory retirement age of a High Court Judge, the JSC had never got back to the complainants. “They just sat on the case. They never called us or did anything,” Mr Kiiza said.
The snail’s pace with which the JSC handles complaints against judges was exemplified when maverick lawyer Frank Kanduho dragged Justice Murangira to the commission, accusing him of corruption and a witch-hunt in 2016.  The JSC, however, didn’t decide on the matter until 2020, when they dismissed it for lack of evidence, leaving Mr Kanduho livid.  
“I did all I could. I listed witnesses such as senior counsel Barnabas Tumusingize, Alfred Okello Oryem, and Bob Kasango, who were present when Justice Murangira was calling me a Munyarwanda,” the lawyer said, further asking if the commission has ever summoned those witnesses. “I don’t have powers to summon such people. But the JSC has investigators to do all that work. Why they never called the clerks to tell us why the file disappeared and years later resurfaced, is amazing. 

The pile of complaints against judicial officers that have been swept under the carpet includes that brought by serial litigant Male Mabirizi Kiwanuka against Justice Musa Ssekaana, the head of the High Court’s Division.  Mr Mabirizi’s complaint stemmed from a standoff they had on December 18, 2019, when the lawyer had made an application to grill the Electoral Commission (EC) chairperson, Justice Simon Byabakama in a case in which the lawyer wanted the High Court to nullify Mr Byabakama’s appointment as EC boss on grounds that he didn’t first resign as a Justice of the Court of Appeal before he took up the new appointment. “Submit your rubbish,” Justice Ssekaana told Mabirizi before sending the court in a break, but when court resumed, Mr Mabirizi asked Justice Ssekaana to recuse himself from the case on grounds that while the judge was a private practitioner, he had represented the EC. 
“My Lord, I have had enough of the appearance of your bias and I have seen the reality and to me, it doesn’t make any sense to continue being here as if I am in court yet I am actually before Justice Byabakama’s lawyer or Mr Rwakoojo’s [then secretary of the EC] lawyer,” Mr Mabirizi said. 

Judge Ssekaana retorted: “Mr Mabirizi, you have pushed me to the extreme, and I can do extremes and you may end up in Luzira [prison] … Just give respect to the court and don’t think we are in an LC [Local Council] court. That’s the last time you are doing it.” 
 Itching for a fight, Mr Mabirizi decided to take the judge to the JSC, accusing him of misconduct, incompetence, and practicing as a lawyer after he had been appointed a judge in 2017 but to date, the commission has never heard the case.  “One time, they [JSC] sent their officer to take a statement from me but I have never heard from them again,” Mr Mabirizi said.  “They just do nothing yet I have filed several complaints against judges, registrars, and magistrates but nothing is done.”  
The JSC didn’t see any merit in a  case in which Deputy Registrar Fred Waninda was accused of assaulting two journalists –Eric Yiga and Hannington Kisakye, attached to Salt Media and Smart 24 respectively, damaging their cameras as they covered a land case in which he was involved. 
“The complainant was filed. We had a video [footage] of Waninda beating up the journalists as evidence but the JSC never looked into this matter,” Mr Kiiza, who represented the journalists, said.
The sum is that many lawyers find it strange that the JSC acted quickly in Justice Kisaakye’s case while it has ignored other serious complaints. 
“We have an epidemic of judicial misconduct and incompetence at the JSC.” Legal Brains Trust (LBT) Executive Director Isaac Kimaze Ssemakadde said. “…You have finally come around to see the farcical nature of the establishment’s reaction to the Kisaakye problem.”

Chief Justice Alfonse Owiny-Dollo and President Museveni

The decision by the JCS to recommend to Mr Museveni to appoint a commission of inquiry to investigate Justice Kisaakye opens a pandora box because the Supreme Court judge drew first blood when she listed the commission as one of the respondents in the Constitutional petition she filed last year, accusing the entire Judiciary establishment of, inter-alia, victimising her by concealing her salary, withholding her files, denying her leave, denying her seniority, and denying her work. Justice Kisaakye accuses the JSC of irregularly carrying out investigations into her actions. 
She claimed that this was done in secrecy, contrary to the spirit of fair hearing.  
“I confirmed that I had been under covert investigations by the fifth respondent since March 20, 2021 and July 25, 2022, when I was served with the preliminary inquiry findings report on the events that occurred at the Supreme Court on March 18 and 19, 2021,” Justice Kisaakye said in her petition. 

The Judiciary’s defence is that Justice Kisaakye’s petition was an afterthought as she attempted to deflect from the JSC investigations.
Legal experts insist the commission could find itself in a legal conundrum. “Wasn’t the JSC sued in her petition?” Mr Ssemakadde asked. “They have some nerve,” he added. 
Justice Kisaakye’s lawyer, Mr Peter Walubiri, signaled that the battle is just getting started.  
“They have fired the first shorts, but this is something that’s going to be in the four walls of the courtroom for a very long-time,” Mr Walubiri said.   
“People are saying you can’t take on these people because they make decisions in court but we shall bring the war to the courtrooms. It will be up to the judges to decide whether to stand with the law or not.”  
The Judicial Service Commission

Besides being the body that vets judicial officers before they are appointed by the President, the JSC is also charged with punishing errant judicial officers such as magistrates and registrars. It, however, can’t punish a judge, but rather can make a recommendation for the President to form a commission of inquiry to investigate a particular judge. 
JSC members include Justice Benjamin Kabiito (chairperson),    Kiryowa Kiwanuka (Attorney General), Ruth Sebatindira, Norah Matovu, Johnson Bitarabeho, Badru Wagwa, Jimmy Okello and Ms Jane Margaret Akurut (acting secretary).