Just over half of MPs on the House's Appointments committee don't support the two-year reappointment of Justice Benjamin Odoki as Chief Justice, a mini survey by The Observer reveals.
With the exception of Speaker Rebecca Kadaga and her deputy, Jacob Oulanyah, who rarely vote, 12 out of 21 voting members said they were opposed to Odoki's approval before the Constitutional court rules on a petition challenging his re-appointment.
"It will be sub judice for us to proceed and consider an issue that is before court. The Odoki matter is before court and if we go ahead to make the decision on the matter it will be prejudicial to the court process," Kibanda MP Sam Otada said at the weekend.
In July, Western Youth MP Gerald Karuhanga filed a Constitutional court petition seeking an interpretation on whether a retired chief justice can be reappointed after clocking the mandatory retirement age of 70. The reappointment of Odoki has met fierce resistance from sections of the public and legal fraternity who argue that it was not in line with Article 144(1) (a) of the Constitution.
The article provides that the chief justice, deputy chief justice, a justice of the Supreme court and a justice of Appeal, shall vacate their office on attaining the age of 70 years.
But those who support Odoki's reappointment invoke Article 253 of the Constitution, which says: "Where any person has vacated an office established by this Constitution, that person may, if qualified, again be appointed or elected to hold that office in accordance with the provisions of this Constitution," reads the provision.
In light of a divided opinion on the matter, Otada argues that since it is the Constitutional court which is the only entity bestowed with powers to interpret the constitution, it is the only institution that can provide an answer.
"Let us give the court time to consider the matter and Rule 64 of the Parliament's Rules of Procedure bars Parliament from discussing an issue that is before court," he said.
The 12 MPs, who support the stay of approval, include Nathan Nandala-Mafabi (Budadiri West), Sebuliba Mutumba (Kawempe South), Mathias Mpuuga (Masaka municipality), Mathias Kasamba (Kakuuto) Betty Amongi (Oyam South), Stephen Kagwera (Burahya) Atwooki Kasirivu (Bugangaizi West), Hood Katuramu (PWDs Western), Milton Muwuma (Kigulu South), Sam Otada (Kibanda) Paula Turyahikayo (Rubabo), and David Ochwa (Agule).
What other members say:
In opposition to the majority opinion of the committee, Patrick Nakabale (Youth Central) argues that there is no clear reason as to why the approval process should not go on.
"If you read the Constitution, there is a provision that allows his [Odoki] reappointment and I think that this will happen when we reconvene," said Nakabale, the only committee member to openly support Odoki's reappointment.
Nine members could not be reached for their views, with some reported out of the country. These included Gen Elly Tumwine (UPDF), Rosemary Nyakikongoro (Sheema Woman), Victoria Rusoke (Kabarole), Simon Peter Aleper (Moroto municipality), Safia Nalule (PWD), Dorothy Mpiima (Buikwe Woman), Teopista Nabulya (Workers), and Lowila Otekayot (Pader).
Committee write to Museveni:
In a September 26 meeting, committee members agreed to shelve the matter as it would be sub judice. Some argued that Odoki's re-appointment, was not only contested in court, but it was not in line with the recommendation of the Judicial Service Commission.
"We asked the speaker to write to the president, to explain our concern why he rejected the JSC recommendation," says Kagwera.
The JSC is reported to have recommended Justice Bart Katureebe for the CJ position but the president ignored it. It is not clear whether the speaker has written to the president but sources familiar with the committee, say the president is slated to meet the committee before it reconvenes to take the final decision.
"He promised to meet us but we have not received any communication," said one committee member.
Committee not trusted:
Aware that the committee has previously caved in to presidential pressure, Ssebuliba Mutumba told The Observer that the majority decision would stay unless the president meets the committee.
"Members have been like this before but when they get to meet the president they switch positions. And, this was evident in the Aronda [Nyakairima] reappointment," Ssebuliba argued.