27 August 2013

Uganda: Benjamin Odoki's Re-Appointment Is Justified and Legal


Benjamin Odoki's re-appointment as Chief Justice is justified. The Ugandan electorate candidly elected Yoweri Museveni in 2011 as President for the next five years, not any other.

Together with him, the NRM manifesto was also elected. As a result, President Museveni is entitled to a team of people to constitute the Cabinet, Judiciary and others, their impeccable character notwithstanding. To implement his manifesto, the President must, as a matter of fact, assemble a team of people to implement his dream for the country up to 2016.

The President, as appointing authority, has forwarded Justice Benjamin Odoki's name to Parliament for approval. The public has been entertained to a melodrama by some, including

Joseph Sewungu and others, who have said they won't allow Odoki's name to sail through as Chief Justice. Fine, but what does the Constitution say about this appointment.

The Attorney General, who enjoys finality in advising Government, which includes Parliament, some lawyers including surprisingly, my friend Peter Walusimbi from the feeble opposition have truthfully said that there is no Constitutional provision that debars Benjamin Odoki from being re-appointed to act as Chief Justice after retirement. Specifically, Article 14.2.1 provides that the Judicial Service Commission (JSC) merely advises the President "... in the exercise of his powers... "

The (JSC) has honourably recommended him to the Supreme Court(SC) as justice, a measure that rules out his ineligibility for the job of Chief Justice (CJ) because anyone member of the JSC is eligible as a CJ. The role of the JSC is advisory and as such the President can take their recommendation or leave it depending on the suitability of a candidate.

So, by Abdu Katuntu and others misrepresenting the readily available facts and attempting to give an impression that, indeed, the Constitution does not allow such an appointment is to seek cheap popularity and publicity. Abdu Katuntu simply argues that way without quoting any legal provision and it would appear his stance is a reflection of the behaviour of elements in the JSC who are hell-bent to stop Benjamin Odoki.

Interestingly, nobody amongst those opposing Odoki's re-appointment is making reference to another legal provision that allows the President to recall someone from retirement to serve, which actually exists. They selectively and deliberately avoid mentioning this legal provision. The President may even have the option of invoking this executive order powers provided for under the Law to reappoint his preferred candidate.

If I may ask, which policy proposal, Bill or position from the Government has Abdu Katuntu and his ilk ever supported? To him, Ibrahim Semujju Nganda, Betty Nambooze, Kiiza Besigye, Muwanga Kivumbi, Elias Lukwago and Matthias Mpuuga, anything proposed by the Museveni administration must be opposed even if they lack that political muscle in Parliament to frustrate Government Programmes via numbers.

A litany of proposed Bills and appointments opposed by these wonderful people have included but not limited to: The Public Order and Management Bill, Finance Bill, appointment of General Aronda Nyakairima as Internal Affairs Minister and the re-appointment of Benjamin Odoki as Chief Justice. Some have argued that the President in violating the Constitution, in total disregard that by sending Odoki's name to Parliament he is actually pursuing the Constitutional path to the letter. Do some also remember that the President gave in when Nasser Sebagala, James Kakooza and others were blocked from becoming ministers.

Back to the re-appointment of Benjamin Odoki, the Chairman of the JSC, James Ogola, has behaved in a manner that raises eye brows. First, the President can take the advice of the JSC or he may actually ignore it, he has that wide latitude within which to decide. For instance, His Excellency has hordes of advisers who give him briefs on their areas of operation.

He is at liberty to use, or not, their recommendations. As an elected leader, President Yoweri Museveni may take your advice or not, besides he may elect to consult others outside the JSC who are also knowledgeable about the subject. I wonder why James Ogoola, himself appointed Chair of the JSC after retirement, would appear to be so passionate about the crusade against Benjamin Odoki's re-appointment.

And above all, why did he ask the MPs on the House Committee to allow him and his Colleagues, not all of them though, to have "free exchange" between Committee members and the Commission. In other words, the press was dismissed from the hearing. What were his fears about press presence? The impression I have is that there is a level of opposition in the JSC against James Ogoola, Commissioners Grace Oburu, Henry Kyemba and Kagole Kivumbi who, he said, "could only speak freely in the absence of journalists."

In one of the dailies of August 20, 2013, it was alleged that the JSC clashed with the President over this re-appointment. To me it appears the clash is in the JSC itself and probably in the editors' minds of that daily because those who James Ogoola chose to protect from the press while appearing before the House Committee were Henry Kyemba, Grace Oburu and Kagole Kivumbi, and not the entire membership of the Commission.

The re-appointment of Benjamin Odoki, which I support, due to his long standing dexterity in legal matters and profession, is only for two years, by the time the dust settles that span of time will be over. The President is not giving him a new full-fledged mandate, no, but rather keep the fort in the meantime as the search for a substantive CJ goes on. Let us stop being selfish by denying others a chance to serve while they are still able.

To Justice Odoki, I say stand firm, many of us are with you in spirit despite attacks by some on your moral standing and long span in the profession. There is this Gerald Karuhanga who always burns his fingers by jumping into controversy, including the oil bribery allegation he tabled before the House last year, only to be proven wrong.

He was lucky the Prime Minister, Amama Mbabazi, and other ministers he accused never dragged him to Court because that is where he belonged. He is at it again in the Constitutional Court over the Odoki re-appointment. I wish him well.

The writer is a Special Mobiliser, NRM

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