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President Museveni can’t block Justice Kisaakye’s resignation

Justice Esther Kisaakye

Justice Esther Kisaakye

I was rather surprised to read a letter in the media purportedly written by President Yoweri Museveni on the October 4, 2023, responding to Justice Esther K. Kisaakye’s request for early retirement from the Supreme court of Uganda.

The only legally correct sentence in that letter is the following: “As per the law, I cannot obstruct your wishes.” The Attorney General or the minister of Justice and Constitutional Affairs should have advised the president to end his letter by accepting the resignation and wishing the judge well in her retirement.

Unfortunately, the President goes on to talk about interference with “the Judicial Commission of Enquiry or the Tribunal,” raising numerous constitutional matters which need to be taken into consideration.

In the first instance, and to the best of my knowledge, there exists no “Judicial Commission of Enquiry or Tribunal” which has been set up to review what the president refers to as “some strong statements (Justice Kisaakye) made against the Chief Justice.”

There is a legal process for the establishment of such a body that, at a minimum, requires a notice in the Official Gazette; I have not seen any. While it is true that the Judicial Service Commission (JSC) conducted an investigation of Justice Kisaakye and made some recommendations to the president, he has so far failed and/or refused to act on them.

Which means the president has been delinquent in carrying out his constitutional duties to set up a commission as recommended. In so delaying, he is denying the judge an opportunity to have her matter expeditiously resolved which is yet another contravention of the Constitution.

Since the president has not set up that tribunal/inquiry, and there is no indication as to when (or if) he will actually do so, the judge is placed in a double-bind. The president cannot have his cake and eat it, i.e. stop Justice Kisaakye from resigning from the Supreme court, and continue sitting on the appointment of a tribunal/ inquiry to hear her case.

Secondly, even if such a tribunal/ inquiry was actually in place, under Article 144 of the Constitution, the president does not have the right to reject a resignation by a judge under any circumstance.

According to that article, a judicial officer may retire at any time after attaining the age of sixty years, and must do so upon the attainment of a specified age (depending on the rank they hold in the judiciary). There are no ifs, buts, or howevers attached to that provision. Therefore, a judge may (at their own volition, and not at the instance of any other person) opt to leave the bench.

The Constitution is silent about any circumstances that can prevent such a resignation. In other words, the president cannot stop a judge from resigning in accordance with the Constitution especially since the Article in question makes absolutely no mention of such powers.

Lastly on this matter, the president’s letter at best treats the learned judge as a civil servant, and worse, as a suspected criminal. The language of the letter is similar to one that might be written by the Director of Public Prosecutions (DPP) or the Inspectorate of Government (IG).

There are very clear provisions in the Constitution regarding the Independence of the judiciary and of the individual officers who are employed in this constitutional arm of the state.

At a minimum, it is a reflection of a president who either does not seek or accept legal advice, or at worst the extreme tragedy of the President deliberately undermining the provisions which he has sworn to abide by.

The author works at Makerere University

Comments

-7 #1 kambarage 2023-11-29 15:56
Well put Prof. Oloka. The challenge with such academic positions is their disregard for the pragmatic issues on ground especially the politics of it.

If the President allows her resignation when she still has disciplinary issues to address it may set a bad precedent and scenarios where every disgruntled judge will wake up one night and resign.

Parliament should review some of these constitutional provisions that create demi-Gods that take advantage of such protection to act impartial and unprofessional.

So let her be cleared by the disciplinary machinery in her sector before she gets retirement benefits. What she did was an act of insolence (to CJ) and bias (for the position which was visibly political because Bobi wine had no convincing ground.
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+8 #2 Kidepwe 2023-11-29 19:25
Professor Oloka, let nothing that Museveni does surprise you. And you should not for any moment think that Museveni can not block Justice Kisakye's resignation, because he can, and will, if it's what he intends to do.

This is a man who has run this country's affairs roughshod for the past 40 years, and to hell with with what the constitution says.

How we, as a nation have let him get away with it, defeats my little understanding. Consider this. Have you heard it anywhere in the world, that permission from a head of state had to be sought, before a person's remains, who had died outside their country of birth, could be buried in their own country?

If this didn't surprise you when Museveni threatened to do it twice, then wake up. Nobody has abused power like Museveni has.
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0 #3 kabayekka 2023-11-29 22:49
The Ganda great parents of our country have a saying; Akugoba kumulimu yakuwa amagezi!
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+4 #4 joe 2023-11-30 02:21
The President can and should be challenged in the courts. His refusal of her resignation is constructively forced labour. I agree with the Professor, the Attorney General should have given the President sound advice as this is now embarrassing.

Even if there was an ongoing judicial inquiry, Justice Kisaakye would still be entitled to withdraw her services at any time. A pending inquiry notwithstanding cannot derogate from her right to withdraw her labour.

Article 25 of our Constitution (revised 2005) prohibits forced labour. Section 5 of the Employment Act 2006 also prohibits forced labour.

The President is also in contravention of S.253 Penal Code Act and commits a misdemeanor.
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+2 #5 Akot 2023-11-30 14:35
Quoting Kidepwe:


Professor Oloka, let nothing that Museveni does surprise you.

This is a man who has run this country's affairs roughshod for the past 40 years, and to hell with what the constitution says.

How we, have let him get away with it, defeats my little understanding. Have you heard anywhere in the world, that permission from a head of state had to be sought, before a person's remains, who had died outside their country of birth, could be buried in their own country?

If this didn't surprise you when Museveni threatened to do it twice, then wake up. Nobody has abused power like Museveni has.


Thanks.

Rwandese Museveni ploayed with Ugandans, got what he wanted & will keep playing with them, unless Ugandans say NO to the tribalistic system he put in place & UNITE to block & show him way out.
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+3 #6 Ismail 2023-11-30 21:51
Bwana Oloka- thank you for interpreting the law as it stands as many people including myself had misread/misunderstood Sabalwanyi’s letter to our learned judge, following in the footsteps of Ben Kiwanuka- truthfulness and fairness.

It would appear that in a Banana Republic- the law of the jungle is supreme for la eader firing a passing shot at our learned judge who was not be party to the electoral fraud on moral grounds.

We Swahilis have saying Hasira ni hasara- anger is a waste of time, so his excellency- please let the honourable judge retire in peace and write her memories like Ben Kiwanuka did.
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+2 #7 Lakwena 2023-12-01 09:48
Thanks Prof. Oloka Onyango.

In deed for the last 38 years and counting, we have the misfortune of having a delinquent and unconstitutional personality in our State House for a president.

E.g. it is coming to 2 years, since Emanuel Mutebile (RIP) died in office in January 2022. But the "delinquent and Unconstitutional Problem of Africa", Gen Tibuhaburwa has not yet appoint another Governor Bank of Uganda.

In other words, that is how selfish the man is. Unfortunately many Ugandans see nothing wrong with such delinquency.
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+1 #8 Joe 2023-12-02 17:17
Excellent piece of writing from my teacher, thanks. One of the best that ever taught me.

Prof., I would have loved to read an article that defends many rather than an individual. I know by defending your learned colleague, you're questioning the system and alarmed by the precedent it might create. Much respect for my Prof.
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