Created: 02 August 2009
On Friday June 25, 2004, five judges of the Constitutional Court unanimously ruled that the 2000 referendum on political systems was illegal and therefore its results were null.
Two days later, President Museveni addressed the nation in his angriest attack on the judiciary and accused the court of usurping the power of the “people” and of Parliament. He vowed to “sort” out the problem both politically and legally.
One of these justices who so annoyed Museveni was Christine Kitumba, who was last week appointed to the Supreme Court – the highest in land.
Along with Kitumba, Museveni also appointed Jotham Tumwesigye, a former director at the NRM Secretariat and Inspector General of Government, and Esther Mayambala Kisaakye, a Makerere University Law lecturer and reportedly an advisor to Museveni.
The appointments come barely a year and a half to the 2011 elections. And with the previous two presidential elections having ended up in the Supreme Court, the latest appointees may end up playing a role in determining the next president.
The Supreme Court has had gaps since the death in 2006 of Justice Arthur Oder and the recent retirement of Justice Joseph Mulenga. Justice George Wilson Kanyeihamba is to retire in November while Justice John Wilson Tsekooko is due for retirement within the coming year.
These are very independent-minded judges who have not shied away from ruling against Museveni at critical times. Lawyers we talked to will be anxious to see if the three can fit in the shoes of the Wilsons; which makes Lady Justice Kitumba’s elevation to the country’s top court all the more intriguing.
Of the three appointments, Kitumba’s seems the least disagreeable to a number of senior lawyers The Observer has talked to. To be fair, though, a quick look at the recent judgments she has been involved in would exonerate her of accusations of lacking a backbone.
For instance she was on the Coram that literally kicked Lady Justice Faith Mwondha out of the IGG’s office by ruling that she needed to be vetted by Parliament on reappointment.
In general, though, President Museveni’s latest appointments have surprised the legal community not because they are bad characters – rather because many feel Uganda has more deserving ‘learned’ individuals.
“These appointments are what I consider putting the correct cadres on the bench,” said a seasoned senior city lawyer. “I think people can predict what the [justices’] decisions will be like whenever it comes to something controversial.”
Asked what it takes to make a good Supreme Court judge, the lawyer said one should be a senior legal person who has contributed significantly to the jurisprudence and has had vast experience in the administration of law.
Experience, he said, plays a big part in one’s success in the Supreme Court – having an excellent grasp of the principles of law and writing first class judgments.
The lawyers we interviewed know that they may one day end up before these same judges in their wigs and so they requested not to be named.
But they all suggested that the Court of Appeal – from where Kitumba was picked – and the High Court could have provided more capable candidates.
“For instance we have Justice Twinomujuni, who is really one of the brilliant judges in this country or even Justice Byamugisha who is also very good and very senior – she has been on the bench for a long time,” said the lawyer, adding, however, that he knew both Tumwesigye and Kitumba as first class persons.
Bruce Kwarisiima Kyerere, the president of the Uganda Law Society, noted that at least the appointees have the basic qualifications for their new jobs.
According to Article 143 of the Constitution, for one to be appointed to the Supreme Court bench, one must have been a judge of the High Court or must have practised law for at least 15 years – among other qualifications.
But Kyerere also believes the president should have appointed more experienced and tested legal practitioners from within or without the judiciary.
“If I were the appointing authority, I would have scanned the horizons much more than the President has done,” Kyerere said. “But now that they have been appointed, we welcome them.”
Another lawyer, who also declined to be named just in case his comments affect his future professional relationships with the new supreme justices, said it was unfortunate that only one of the three persons – Kitumba had risen through the ranks of the court system.
“There are many other more qualified judges; people like Egonda Ntende or Kibuuka Musoke,” the lawyer said. He added that although he respected Tumwesigye’s work as IGG, the former ombudsman has jumped one step too many to be at the country’s highest court.
He pointed out that last year Tumwesigye attempted to stand for President of the East African Law Society but his learned friends did not feel that he really belonged to them. The office instead went to Shonubi Musoke.
It is also significant that Tumwesigye’s first job in the Museveni era was as the director of legal affairs at the then NRM Secretariat. He was later appointed IGG and eventually chairman for the National Citizenship and Immigration Board.
This, the lawyer said, makes him more closely associated with the ruling party than the legal fraternity.
In the past, President Museveni has quarrelled that some judges were opposed to the government, saying one time that he would sort out the judiciary now that “our people” had studied law and garnered the experience required to be appointed judges.
To these lawyers, the latest appointments are seen as part of Museveni’s “sorting out” of the bench.
But speaking to The Observer last week, Tumwesigye dismissed such fears as unfounded. He said his tenure at the court would reflect the same integrity and professionalism that he exhibited while he was IGG.
“You remember those fears were expressed when I was appointed IGG but I think I vindicated myself,” he said by telephone.
“If you have integrity and professionalism you will take decisions regardless of whether they annoy or please the appointing authority and I will follow these principles to the best of my ability.”
Citing Justices George Kanyeihamba and Bart Katureebe (attorney generals prior to their appointment), Tumwesigye said he was not the first person to be appointed to the Supreme Court without having been a judge before.