Official correspondences regarding the reappointment of Benjamin Odoki as Chief Justice reveal a far wider split in legal opinion among government officials than previously thought.
In one of the correspondences, a frustrated Attorney General Peter Nyombi accused Justice James Ogoola, the former principal judge and now chairperson of the Judicial Service Commission (JSC), of being dishonest and insincere in the commission’s final opinion on Odoki’s reappointment.
While the JSC maintained that Odoki’s reappointment was irregular according to the Constitution, Nyombi told President Museveni that the commission was shifting goalposts as it had earlier agreed with the re-appointment. He urged the president to ignore JSC’s reservations.
In a letter to the president dated July 30, 2013, Nyombi wrote: “Clause 1 of Article 142 of the Constitution provides that the chief justice shall be appointed by the president acting on the advice of the Judicial Service Commission and with the approval of Parliament…Although it is clear from the above mentioned provisions that the appointment of the chief justice is a preserve of the president, it is not clear to me that the president can only act on the advice of the Judicial Service Commission.”
However, in his letter to President Museveni dated August 1, 2013, Ogoola rubbished Nyombi’s claims, insisting that the commission had been firm in its objection to Odoki’s reappointment.
“Your Excellency in all meetings I have held with you ending with the meeting of 24th June 2013 (which was attended by the whole membership of JSC), we have always expressed the commissions’ reservations (about Odoki’s reappointment) as being the absence of the constitutional authority to reappoint, let alone appoint a chief justice who has attained the age of 70,” reads part of the letter.
Ogoola writes that the Constitution is clear that once someone attains the age of 70, like Odoki has, they “must” vacate office.
He adds that once someone vacates the office like Odoki did, they “cease to be qualified for that office.”
Ogoola says JSC’s reservations are grounded in “the letter and spirit of the fundamental provisions of the Constitution.”
He says that for JSC to advise otherwise would be to “advise an illegality and to transgress the solemn oath which the commissioners took to uphold, protect and defend the Constitution.”
Ogoola says Odoki can only be reappointed as ‘acting’ Chief Justice and not a substantive one like Nyombi advised. In an earlier letter dated July 23, Nyombi had told the president that although Odoki had attained the retirement age of 70, that was not a hindrance to his reappointment as chief justice.
“The effect of clause 2 of Article 142 is to render the retirement age irrelevant. As long as one can continue to serve, he or she may be appointed to serve as a justice of the Supreme court and a judge of the High court irrespective of his or her age.”
While it has been public knowledge that Nyombi and JSC disagreed over Odoki’s reappointment, the exchanges in the letters provide the detail to the disagreement, giving the saga a new ring.
Contacted yesterday, Nyombi said, he had nothing more to add on what he has already said.
Nyombi has come under attack from sections of the legal fraternity over his advice on Odoki’s reappointment and other matters. Last week, the Uganda Law Society (ULS) resolved to issue Nyombi a “certificate of incompetence” to show their displeasure at the way he has handled various legal issues.
As for Odoki, he has kept his cards to his chest. However, Sunday Monitor of September 1, 2013 quoted him as saying that he would serve his country until he runs out of energy.
“I know the country is looking at me because of what is happening in the media. But, as you can see, I am still firm and solid. I still love my country and as long as I have energy, I will serve my country,” he reportedly said at a function to install Betty Bigombe as goodwill ambassador for ABETO, a civil society organisation.
Odoki’s reappointment awaits the approval of Parliament, which is still on recess. It is expected to resume next week.
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