Odoki speaks out on re-appointment

By Joan Akello

Does he have a deal with Museveni?

On February 4, 2005 while launching his book, `The Search for National Consensus’ at the Imperial Resort Beach Hotel, Entebbe, then-Chief Justice Benjamin Joseph Odoki made a statement that has become quite relevant since finding a replacement for him became an issue and  the grapevine swelled with rumour that he wants to stay on.

Speaking on his role in the 1995 constitution making process, Odoki said: “For a Constitution to be an effective instrument of democratisation and development there must be established viable institutions, principles and practices to support it.”

He added: “A culture of Constitutionalism requires fidelity to the Constitution by observing its letter and spirit and all those elements by all organs and institutions of Government, civil society, and all the people. It demands that agreed rules for acquisition, retention and relinquishing of political power be respected and observed, to promote peaceful transfer of power.”

Eight years later, Justice Odoki who has been CJ for 12 years, has the country holding its breath over his succession. Until now a document that he authored titled “Tenure of office of judges in Uganda”  has been quoted widely to suggest that the out-going CJ wants to stay on.

The document, purported to have been written by Odoki to Museveni seems to justify reappointment of a retired CJ either as an Acting CJ or on contract.

Although many people interviewed by The Independent agree with the main views of the proposal, raising the mandatory retirement age for the CJ from 70 to 75 years, many appear apprehensive that Odoki could end up `perpetuating the culture of leaders who do not want to hand over power’.

Others say Odoki’s desire to cling on will injure the independence of the judiciary since he will be serving at the mercy of the President. Finally, others say, Odoki who is often called the `father’ of the Uganda Constitution because he lead the team that wrote it, is effectively engaging in destroying constitutionalism.

In an interview with The Independent on July 22, the retired CJ denied he wants to cling on.

“I’m anxious to get a successor, contrary to media reports that I want to come back,” he said.

Asked whether he would accept Museveni’s offer for him to stay on, he said he was surprised because he was learning of it from the newspapers.  So would he accept the offer?

“It’s hypothetical, there are so many people who are qualified to become CJ and the president can choose any of them,” he said, “If there is a proposal to reappoint me, I have to reorganise my mind because I’m enjoying my retirement.”

What about the allegation that his re-appointment would be unconstitutional?

“The constitution allows any body to be appointed even after they retire,” he said.

He says the memo he wrote proposing extension of the retirement age of judicial officers was part of internal consultation and blames the media for the haloobaloo it has raised.

He said: “I wrote an internal memo to fellow judges  in April about the appointment of an acting CJ and an Acting CJ since I had retired in March. It was the main point.

On extending retirement age, which was even an aside, I was quoting from other countries such as India, Swaziland and South Africa that are debating the issue of raising the retirement age of judges. South Africa has actually raised the age of supreme court judges from 70 to 75.

“In Uganda, this was a proposal made by judges during a judicial review in 2005. Not by me. It is other people who authored it though it (memo) included my views about it and it’s been a general debate that is constitutional, a matter of public policy.”

Odoki in March clocked 70 years, the mandatory retirement age. However, even if his retirement was foreseen and he was allowed to serve in a transition capacity for another three months until June, President Museveni has not named a successor CJ.

In a first for Uganda’s judicial history, the Acting Deputy CJ, Steven Kavuma, is also the Acting CJ. The crisis doubles because another top office in the judiciary, that of the Director of Public Prosecution, is also vacant and all litigation he sanctions is in limbo. Further still, a recent ruling has halted the business of the Anti- corruption Court.

Before Odoki retired, the Supreme Court had five justices including him, instead of 11, the court of appeal that also sits as Constitutional Court had five judges instead of 15 judges, and the High Court has 42 judges instead of the required 50.

Loyalty versus competence

There have been some new appointments and the numbers are unclear but these issues cannot be resolved without a head of the judiciary. Meanwhile, President Museveni is biding his time four months after Odoki retired.

Part of the problem is that for Museveni who has often been criticised for favouring loyalty over competence when making appointments, Odoki might represent the last of a generation of leaders he has grown accustomed to working with.

Museveni and Odoki have known each other since their student days at the university of Dar es – Salaam in the 1960s.

Museveni enrolled for a degree in political science in 1967 and Odoki was at least two years ahead of him. While at university, Museveni formed the University Students’ African Revolutionary Front activist group.

It is not clear whether Odoki was at member but other individuals who have held top positions in Museveni’s government were at Dar at the same time. Top among them were former prime minister, the late Eriya Kategaya, and the late James Wapakabulo, former Speaker of parliament, but many others hold top positions.

When the National Resistance Movement captured power in 1986, President Museveni immediately appointed Odoki a Justice of the Supreme Court. He appointed him CJ in 2001.

During his tenure, Odoki has presided over several contentious cases, including to petitions filed by opposition leader Kizza Besigye challenging Museveni’s re-election in 2001 and 2006. Odoki has been described as cautious and diplomatic in decision making, often times silent, soft, mellow, not hard punching. He is seen as a “sure court vote for the NRM”.

Retired Justice Kanyeihamba  in his book, `The Blessings and Joy of being who you are’, writes about events that preceded the judgment on the 2006 presidential election petition in a manner that shows how important Odoki is to Museveni.

Kanyeihamba writes on page 365: “It had  so long been rumoured that some Supreme Court judges in the 2006 Presidential Petition had been approached and persuaded to change their minds and dismiss the appeal.

All the justices who participated in the appeal denied any such interference. Recently however evidence has surfaced that at least Odoki and one other justice were approached and warned about the political consequences if the petition succeeded”.

Kanyeihamba writes on page 381 that initially five of the seven justices of the Supreme Court were decided to uphold Besigye’s assertion that the 2006 was rigged in favour of Museveni. They were, accordingly, ready to order a re-election. In the end, four Supreme Court judges; Odoki inclusive, disallowed the petition.

Kanyeihamba writes on page 386: “A year or two  following the  publication of our findings and  decision, the chief justice revealed, inadvertently in my opinion , that the  chairperson  of the ruling party (Museveni)  had summoned him to a meeting  and words  about the pending  verdict and its possible  consequences  had been exchanged between them”.

Kanyeihamba, who was beaten by Odoki in the race to be CJ, is a sort of Odoki basher.

In his book, he says on page 370 that Odoki “was the least qualified leadership wise’ when he was appointed CJ because Museveni, a westerner, was doing a tribal balancing act by naming an “easterner”.

That history appears to be repeating itself.

The Judicial Service Commission (JSC) which is charged with the recruitment of judges has forwarded three names to Museveni. As required by law, Museveni should name one of them CJ and forward the name to parliament for vetting.  Those forwarded include Justice Bart Katurebe of the Supreme Court, Principal Judge Yorokamu Bamwine, and former Solicitor General Peter Kabatsi.

Nicholas Opiyo, a lawyer, political analyst, and Secretary General of the Uganda Law Society which has two representatives on the JSC says Museveni is once again battling with the “dilemma of tribal politics and ethnic relations”.

“All the three nominees are from Western Uganda, so he is thinking about the implication of appointing another Munyankole,”Opiyo told The Independent.

Karoli Semwogerere, a top city lawyer, blames the shortage of candidates for CJ from other parts of the country on the “selective appointments” of Museveni and years of bad politics.

If true, resorting to considerations of ethnicity instead of competence in the selection of a CJ; although politically prudent, are a further sign of the backwardness of the decision making.

But Jackie Asiimwe, an advocate and leading good governance activist, says the delay in appointing a CJ is deliberate.  Asiimwe says Ugandans should not focus on the chief justice but how President Yoweri Museveni addresses the judiciary as a whole.

She blames the president for presiding over a judiciary with human resource gaps yet he knows that every so often he has to appoint judges so that when there is a vacancy like that of the CJ he has a pool of experienced judges.

“The crisis is intended because the president is looking for a person who can   ensure regime survival by delivering his whims at court,” she said, “Unfortunately, the judiciary is docile because the President is looking for somebody who can deliver his political agenda and appoint cadre judges.”

Odoki’s plan

Bob Kasango a city lawyer agrees. He says Museveni was not concerned about the judiciary until 2001 when Col (Rtd) Dr. Kizza Besigye filed his first presidential election petition.

“It was a wakeup call when twice the judiciary almost overthrew Museveni by overturning election results,” Kasango says, “Museveni has since realised that other than the people, the army, the judiciary is the third institution that wields both political and judicial power.”

Opiyo says: “Museveni has also not recovered from losing the Besigye rape and treason cases (2001). His only sure way of winning is if he appoints a cadre judge who is none other than Odoki.”

Unconfirmed reports say it is for this reason that President Museveni has since advised retired Justice James Munange Ogoola who heads the JSC to include Odoki among recommended candidates.

Kasongo says Odoki needs to pronounce himself on the anxiety surrounding his succession.

“His silence is speaking more than he is saying.  If he is interested in coming back, then he is subverting the very views of the people he gathered as chairman of the constitutional commission that stayed age limits,” Kasango said, “It is unfair for parliament to legislate for an individual with such a poor report card.”

What has been dubbed the “Odoki plan” is a six page proposal titled “Tenure of office of judges in Uganda”. At its centre is a proposal seen as Odoki’s way of advising President Museveni on how he can keep him as CJ.  The plan warns that there is no provision for the acting Deputy CJ acting as the CJ in the manner that Justice Kavuma is doing.

Instead it cites Article 142 (2) of the constitution which provides for the re-appointment of a justice who has retired to the Supreme Court, Court of Appeal, and High Court.

“Judges who have reached mandatory retirement age and vacated office irrespective of their offices qualify to be re-appointed in accordance with the provisions of Articles 142(2) and 253 (1) of the constitution,” the plan document notes.

In a parallel development, the Bufumbira East MP Eddie Kwizera says he plans to table a Bill in parliament regarding the retirement age of judicial officers.

“Given the expertise developed by the judges in the execution of their duties the country is losing out on their experience by requiring them to vacate at the age 70,” Kwizera says.

No problem there because Kwizera is not an obvious intended beneficiary of his shenanigans. In the Odoki case, the out-going CJ appears to be riding a Trojan horse of his return. That, and the baggage of his legacy, makes his plan unpalatable to some. But, as everyone knows, the only opinion that matters here is Museveni’s.

Meanwhile, Odoki continues to be flayed from all sides.

Kasango says Odoki is unsuitable because he has “a poor report card”.

“He is responsible for the mess in the judiciary including understaffing,   his silence about the squabbles between the principal judge and Justice Singh Choudry.

“In his twelve year tenure, Odoki has failed to kick start the construction of permanent premises for the supreme court,  some divisions of the high court such as land, civil and the Court of Appeal.

“These courts are in the same plaza with restaurants; money lenders, a university, the Supreme Court has leaking roofs, where is the integrity of these courts?” Kasango says. Kanyeihamba makes the same point on pages 363 to 367 of his book.

“Odoki has tended to personalise tasks and this made him a poor administrator of the judiciary,” he says, adding that during Odoki’s tenure as chief justice “judicial standards fell and corruption increased. Cases of corrupt judges and magistrates were often brought to his attention but he tended to prefer silence and non- performance.”

But Ruth Sebatindira, the president ULS, says there has been increased public confidence in the judicial system under the leadership of Justice Odoki that has led to increased use of the courts against without matching resources and personnel. This has also created other challenges like case backlog and increased allegations of corruption.

She praised Odoki for the initiating the JLOS concept to serve justice from a sector wide approach.   “It started with only five members now it has 17 and is the most organised and most focused sector and with the help of Development Partners it has tremendously improved in the quality of justice,” Sebatindira said.

Odoki is also praised for pioneering the Commercial Justice Reform Program which delivered the Commercial Court and now we see a number of specialized /division of the High Court like the Anti – Corruption Court, the War Crimes Court, Land Division.  The estate of the Judiciary currently has 54 courts countrywide with the help of DANIDA and JLOS with improved efficiency through Court recordings in most Courts and computer use.  Judiciary Budget has also grown from Shs 500 million to Shs 2 billion per month.  Odoki has led the Criminal Justice Reform Process leading up to setting up of sentencing guidelines, and introduction of plea bargain to ensure predictability in sentencing, and to de-congest the prisons and deal with case backlog in the Courts. A review of the criminal procedure is going on as well as the Penal Code Act to harmonise offences.

“The Bar /Bench relations also improved because of his open door policy and he demystified the office of Chief Justice and engaged more with the Bar so that we could improve the justice mechanism,” Sebatindira said.

Odoki, obviously, is favoured and loathed in almost equal measure. What matters, however, is that the gavel will not have been sounded until Museveni speaks out on him.

Principal High Court Judge

Yorokamu Bamwine

1980: Obtained his Bachelor of Laws from Makerere University Kampala and started work the next year as teaching assistant, Faculty of law, Makerere University.

1983 – 1988: Was Magistrate Grade One Mbarara and Bushenyi.

1984-1986: Obtained his Master of Laws from the University of Sydney, New South Wales, Australia.

1989-1995: Was chief magistrate Kabale, Masaka and Buganda Road Court, Kampala respectively.

1995-1998: Was chief registrar, courts of judicature.

1998-2010: Judge of the High Court.

He was born on December 25, 1954 in Kashekuro, Sheema District, and is married.

Supreme Court Judge Bart Magunda Katureebe

1974: Bart Magunda Katureebe obtained his Bachelor of Laws Degree from Makerere University, Kampala and started working as a state Attorney in the ministry of justice the following year.

1983: Joined private practice until 1988 when he was appointed Deputy Minister for Regional Cooperation.

1991-1992: Deputy minister of industry and technology

1992-1996 State minister for health and a member of the National Resistance Council

1994-1995: Elected member of the Constituent Assembly representing Bunyaruguru County

1996-2001: Appointed minister of justice and constitutional affairs and Attorney General. As AG, he represented Uganda at the International Court of Justice in The Hague, Netherlands where the Democratic Republic of Congo dragged Uganda for plundering its natural resources

It is reported that he was the first Attorney General to appear in court in person during the state’s appeal against Lt. Gen. David Tinyefuza’s victory in the Constitutional Court. The state, by a 5 to 2 verdict, overturned Tinyefuza’s win.

2001: Joined private legal practice and started a law firm, Kampala Associated Advocates.

2005: He was chairman board of directors of New Vision Printing and Publishing Company Ltd, Director with Standard Chartered Bank, and a Director National Insurance Corporation.

Katureebe enjoys farming and playing golf. He was born on June 20, 1950 to Yowana Maganda and Virginia Ngoni of Rugazi village Bunyaruguru County, Bushenyi District. He is married with six children.

Peter Clever .R Kabatsi

1973: Obtained a Bachelor of laws from Makerere University.

1970s: There was a Bonding Decree for all government sponsored graduates to work in a ministry for a minimum of three years. He was bonded as a pupil state attorney after obtaining a diploma in legal practice in 1975.

1974-76: Assigned as acting Senior State Attorney and Principal State Attorney (1978-1981) in the Attorney General’s Chambers.

1981-1984: Principal Crown Counsel at the Lesotho Government Law Office.

1984-1986 Private Legal Practitioner, heading the law firm Kabatsi, Peter & Co. Attorneys and Notaries, Maseru

1986- 1990, Director of Public Prosecutions

1990-2002 Solicitor General of Uganda and permanent secretary of the ministry of justice

1992 – 2007 member of the United Nations International Law Commission from, during which time he was elected President (2001-2002).

2001-2002 one of four members of Organisation of African Unity Commission (OAU) of legal experts constituted to review the proceedings and the conduct of the Lockerbie

2002: Kabatsi and Bart Katureebe founded Kampala Associated Advocates (KAA) in partnership with SNR Denton; a UK law firm is the Managing Partner of KAA and is also the head of the firm’s Litigation department.

Kabatsi is an Ad-Hoc Judge at the Permanent Court of Arbitration at The Hague and a panel member of Enlisted Counsel of the International Criminal Court. He was born on September 11, 1948.