17 April 2017

Uganda: Kavuma Retires - Here Is Who Might Replace Him

Officially, the position of deputy Chief Justice (DCJ) was advertised on April 10 by the Judicial Service Commission (JSC), effectively shaking off public doubts about the retirement in September 2017 of Justice Steven Kavuma, the current DCJ. Kavuma, a controversial judge, had earlier sought to amend his birth date in a bid to extend his tenure.

In this analysis, DERRICK KIYONGA offers a sneak peek into the qualities of prospective judicial candidates that may be tapped to replace the widely controversial Justice Kavuma.

Article 143 (1b) of the Constitution stipulates that a person shall be qualified for appointment as deputy chief justice or principal judge if he or she has served as a justice of the Supreme court, a justice Court of Appeal, a judge of the High court or a court of similar jurisdiction to such a court.

The alternative is that such a person has practiced as an advocate, for a period not less than 15 years, before a court that has unlimited jurisdiction in civil and criminal matters.

Going with the previous tradition of tapping senior judges at the Constitutional court to become deputy chief justices, it is expected that President Museveni, acting on the advice of the Judicial Service Commission, will appoint one of the senior judges either at the Court of Appeal, which doubles as the Constitutional court, or appoint one judge from the Supreme court.

That is if any of the judges at the highest court in the country applies for the job. In 2002, when Deputy Chief Justice Seth Manyindo retired, he was replaced by Justice Laeticia Mukasa Kikonyogo, who was the most senior at the Court of Appeal at the time. In 2010, Justice Alice Mpagi Bahigeine, who was the most senior at the court, replaced Kikonyogo.

When Bahigeine retired in 2012, she was replaced by the late Justice Constance Byamugisha - the most senior at the time at the Constitutional court - who served in an acting capacity.

In principle, the deputy chief justice heads the Constitutional court. Byamugisha's tenure didn't last long; she passed away in 2013 and was replaced by Kavuma, again the most senior judge at the court at the time. Kavuma first served in acting capacity, before he was substantively appointed in 2015.

Below are short profiles of five picks for likely candidates to replace Kavuma, curated in the order of their seniority at the Constitutional court.

REMMY KYONOONEKA KASULE

If Justice Kavuma retires in September, Justice Kasule will be the most senior judge at the Court of Appeal/Constitutional court, since he was appointed to the court in 2011.

At the Constitutional court, Kasule wrote his name in the annuls of Uganda's legal history when he wrote a minority ruling rejecting NRM's push for the ejection of the rebel MPs from parliament because they had been expelled from the party. Though Kasule's ruling was a minority view, he was later vindicated. When the rebel MPs appealed to the Supreme court, that court, too, in a decisive 6-1 ruling, refused to eject the lawmakers.

Before being elevated to the Court of Appeal, Kasule served as a High court judge from 2004 in Kampala at the Criminal division and adjudicated cases in Gulu as the resident judge.

At the High court, according to legal critics, Kasule was the conservative judge. For instance, in 2007, Kasule stopped the marriage of a couple from the same Buganda clan. He argued that such a union would go against the Buganda tradition.

Before joining the judiciary in 1994, Justice Kasule was a Democratic Party (DP) supporting politician. He was beaten by late John Zimula Mugwanya to a slot in the Constituent Assembly (CA), which framed the current Constitution.

Besides being a judge, Kasule is the current chairman of the Uganda Law Council. He is also a former president of the Uganda Law Society (ULS) and served as the chairperson of the disciplinary committee of the Law Council for many years. He was once a commissioner of the Judicial Service Commission (JSC).

It remains to be seen if Justice Kasule, who was part of the first law class at Makerere University, will apply for the position. At 68 years old, Kasule has two years to retire.

FREDERICK EGONDA-NTENDE

Justice Egonda-Ntende, 60, was a chief justice of the Republic of Seychelles from 2009 to 2013. Before that, he served in Uganda's High court and was co-opted on the panel of the Court of Appeal/ Constitutional court and Supreme court of Uganda.

In 1996, Egonda-Ntende was on the Constitutional court panel in the David Tinyefuza V Attorney General case, in which he and other judges ruled that Tinyefuza, now Sejusa, had a right to leave the army. That judgment was later reversed by the Supreme court.

When Egonda-Ntende's stint in Seychelles ended in 2013, he was immediately appointed to Uganda's Court of Appeal. In 2016, Justice Ntende together with four other justices in a constitutional petition ruled that police officers and other state agents implicated in violation of human rights of suspects will be held liable as individuals, and not as institutions.

Recently, Egonda-Ntende was in the spotlight, when he joined justices Kenneth Kakuru and Elizabeth Musoke in ruling that it is unconstitutional for a single judge to hear interim applications, which arise out of constitutional petitions. They ruled that such applications should be heard by five justices of the Constitutional court.

Previously, Egonda-Ntende was also involved in setting up an independent judiciary in East Timor, where he served as a judge of the Court of Appeal. Egonda-Ntende lectured law at Makerere University and was the chairperson of the Law Reporting Committee of the judiciary in Uganda. He also has extensive experience in dealing with matters of drug trafficking, which he accumulated while working as a judge in the United Nations Mission in Kosovo.

SOLOME BALUNGI BOSSA

Justice Bossa is a former lecturer at the Law Development Centre from 1980 to 1997. She has also previously served as president of the Uganda Law Society (1993-95) and is the founding president of The East Africa Law Society (1994-97).

During this time, she was an activist lawyer with a bias towards human rights and constitutional law. For instance, she was among the lawyers who challenged the procedure used in restoring kingdoms. She was a founding chairperson of Kituo Cha Katiba (East Africa Centre For Constitutional Development 1996-2003).

Justice Bbosa joined the judiciary in 1998 as a judge of the High court. Since then, she has served in various capacities, including a posting to the East African Court of Justice and the United Nations International Criminal Tribunal for Rwanda.

At the Constitutional court, where she was appointed in 2013, Justice Bossa will always be remembered for her lead judgment that held that the Anti-Corruption court was constitutional.

At the time Justice Bossa wrote her ruling, the court had been locked down following a petition lodged by city lawyer Davis Wesely Tusingwire, who contended that the court was unconstitutional. However, Justice Bossa, who was supported by Justices Remmy Kasule, Geoffrey Kiryabwire and Lillian Tibatemwa, ruled to dismiss the petition "in the interest of fighting corruption in the country."

Justice Bossa, who is married to UPC stalwart Joseph Bossa, holds a master's degree in International Public Law from the University of London.

STELLA ARACH-AMOKO

It's said that in 2015, Supreme court Justice Arach-Amoko was among the Judicial Service Commission nominees recommended for appointment as deputy chief justice. But, somehow, the job was taken by Justice Kavuma, who many claim neither applied nor was recommended by the commission for appointment, as the law prescribes.

Justice Arach-Amoko has extensive management and administrative experience in the judiciary, arising from her tenure at the High court. First, she served as deputy head of the Commercial court under Justice James Ogoola in the early 2000s. Later, she served as head of the High court Civil division and the Commercial court.

During her tenure as the head of the Commercial court, Arach-Amoko is credited with initiating exemplary performance in the dispensation of, and the development of, commercial justice in Uganda, particularly in the use of Alternative Dispute Resolution (ADR). The ADR mechanism was eventually rolled out to other High court divisions and the entire judiciary.

Early in her career, Arach-Amoko, 63, served in the Attorney General's chambers from 1979 to 1997 and rose from being a state attorney to commissioner for civil litigation. She joined the bench in 1997 as a High court judge and was promoted to the Court of Appeal in 2010.

In 2013, Arach-Amoko was appointed to the Supreme court and, in 2016, she participated in dismissing former prime minister Amama Mbabazi's petition challenging President Museveni's election.

GEOFFREY KIRYABWIRE

Justice Kiryabwire has been at the Court of Appeal since 2013. Before joining the Court of Appeal, the judge, who is said to be passionate about information technology, had previously headed the Commercial division of the High court.

Kiryabwire enrolled as an advocate of the High court of Uganda in 1987 and holds a Master of Laws degree (with a bias in International Economic Law) from the University of London. He has been a member of three commissions of inquiry into the mismanagement of criminal cases, the collapse of three commercial banks and the junk helicopter purchase.

He joined the bench in early 2000. As a jurist, Kiryabwire professes to have a lot of interest in what he terms as "evolving mechanisms to access justice for all manner of peoples." Consequently, he says that he is involved in the development of Alternate Dispute Resolution in Uganda.

That's why it did not come as surprise when, in 2015, he was appointed as a mediator at the INSOL International College of Mediation based in England. He is the only African mediator on the 14-man panel of mediators from different countries. Kiryabwire also takes pride in having developed a 2004 concept paper, which was about the introduction of small claims/fast track procedure that he says led to the introduction of the small claims court in 2007.

Legal experts call for open vetting process

Although the Judicial Service Commission has advertised the position of deputy chief justice, ahead of Justice Steven Kavuma's retirement in September, legal experts have implored the commission to ensure that the principles of transparency are adhered to in selecting the next office bearer.

In a telephone interview on Friday, retired Supreme court judge John Wilson Tsekooko advised that in order to avoid what he called the "terrible mistake they [JSC] committed" in "selecting Justice Kavuma as DCJ," the JSC should entertain open vetting like it is done in Kenya.

"The interviews should be open. Let the media be there and it's broadcast live so we can all see how the candidates answer questions. Short of that, they will repeat the terrible mistakes they committed the other time," Tsekooko said.

Constitutional law giant Peter Walubiri advised that when applications are received from people interested in the job, the JSC should publicly disclose them.

According to Walubiri, at that stage, the commission should receive queries from the public about the candidates.

"There are judges who have been sitting on judgments for years, and we know them. There are judges who are debt-burdened. Such [judges] shouldn't be allowed to sit for interviews. And there those who are ever consulting witchdoctors; we know them," Walubiri said, adding, "So, the JSC should ask lawyers or even members of the public to write to them about such judges."

But to lawyers Isaac Kimaze Ssemakadde and Isaac Walukagga, the clear candidates for the job are justices Egonda-Ntende, Kiryabwire and Kasule.

"When you look at the job both Egonda-Ntende and Kiryabwire did at the Commercial court, their creativity and innovation is second to none. There is no doubt that the Court of Appeal would need such skills," said Ssemakadde, who works at the Center for Legal Aid, a not-for-profit organisation.

Walukagga of MMAKS Advocates said the position should go to Egonda-Ntende, whom he described as a judge who "isn't compromisable."

"Justice Ntende has the moral authority and commands respect from all lawyers and that's what that court needs right now," Walukagga said.

Walubiri said the idea of gender balance or regional balance shouldn't compromise the principles of selecting the DCJ. But he added that, on their own merits, justices Arach-Amoko and Balungi-Bossa are well-qualified for the job "since they have integrity."

Walubiri said after "Kavuma's mess," which he said has left the "Court of Appeal/ Constitutional court virtually dead," the next DCJ should be a person who has "strong knowledge of constitutional law, commands respect, a team player and works hard."

"Currently, we have people who don't even qualify as magistrates sitting at the Supreme court as judges," Walubiri said. "Such a thing shouldn't be repeated again."

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