Thursday, September 19, 2013
Legal Opinion on the Re-Appointment of Justice Benjamin J. Odoki as Acting Chief Justice of the Republic of Uganda on a Two Years Contract
Bakampa Brian Baryaguma,
c/o Barya, Byamugisha & Co. Advocates,
Colline House, 1st Floor, Middle Tower,
Plot 4, Pilkington Rd,
P.O. Box 12031, Kampala-Uganda.
Thursday, 19 September, 2013
THE RIGHT HONOURABLE SPEAKER,
PARLIAMENT OF THE REPUBLIC OF UGANDA,
PLOT 16-18 PARLIAMENT AVENUE,
P.O BOX 7178, KAMPALA, UGANDA.
Dear Madam Speaker,
Re: Legal Opinion on the Re-Appointment of Justice Benjamin J. Odoki as Acting Chief Justice of the Republic of Uganda on a Two Years Contract
It is on rare occasions that an ordinary citizen humbly writes to his country’s leaders, beseeching the attention of the high and mighty, like you. When that happens, then surely the matter must be one of great importance, at least for the citizen, such that it would deserve serious attention of the concerned leadership.
First and foremost, let me thank you, Madam Speaker, for all the good work that you and the ninth Parliament are doing for this, our beloved country, Uganda. Under your able stewardship, several Bills have been passed into law and the oversight role has been well played. Most importantly, Parliament has revamped its image as a truly independent arm of government, capable of fulfilling its constitutional mandate, free from the whims and manipulation of the Executive. Thank you very much.
Then, I think congratulations are in order, Madam Speaker, for the tremendous personal achievements that you have registered, ever since your election as Speaker of Parliament, the latest being your election as Chairperson of the Commonwealth Women’s Parliamentary Forum, in South Africa. You make Uganda proud. You are an inspiration and a role model for many of us, the young generation, especially me, which is reason why for instance, one of my profile pictures (and cover photos) on Facebook, is a photo of you, Madam Speaker, beautifully gowned in your official wear. May God bless you more, as you grow wiser, rising further on the ladders of greatness and achievement.
Having said that, let me now turn to the main purpose of writing to you. I have reliably learnt from the media that H.E. the President re-appointed Retired Chief Justice, Benjamin J. Odoki, first, as an Acting Justice of the Supreme Court and second, purported to re-appoint him as Acting Chief Justice of the Republic of Uganda, on a two years contract. Further, that the President has written to the Chairperson of the Judicial Service Commission (JSC), asking him to send the instruments of appointment for presidential signature. Furthermore, that H.E. the President has written to you asking that you summon the Appointments Committee of Parliament to approve of Justice Odoki’s re-appointment. From media reports, it appears that the controversy is on the purported re-appointment of Chief Justice and so, this Legal Opinion is primarily related to that.
It is my considered opinion that this purported re-appointment is unconstitutional and unlawful. This opinion is based on my interpretation of the constitutional provisions relating to the appointment of a Chief Justice, as explained below:
First, the starting point is Article 142(1) of the 1995 Constitution, which, in so far as is relevant, 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.” Therefore, JSC first recommends a candidate, then the President appoints the candidate if he so wishes and lastly Parliament approves the appointment if it is convinced as to the suitability of the candidate. In this case, the reverse was done – the President clearly advised himself (and the JSC), that Justice Odoki should be appointed, which is illegal.
Second, we consider the provisions of Article 144(1)(a) of the Constitution, on retirement of a Chief Justice, especially in light of the fact that Justice Odoki had duly retired as Chief Justice, before his purported re-appointment. This article states that a Chief Justice shall vacate office on attaining the age of 70 years. It should be noted that this requirement is mandatory because of the use of the word “shall.” Hence, having attained the retirement age, under no circumstances is Justice Odoki eligible to serve in this office.
Third, we consider Article 142(2) of the Constitution that provides for situations where there is a vacancy in the office of a Justice of the Supreme Court and Court of Appeal and Judge of the High Court. In such situations, the President, acting on the advice of the JSC, is mandated to appoint a person qualified to serve as a Justice of the Supreme Court, to act as such, even though that person has attained the prescribed retirement age, i.e. 70 years, that applies to the offices of both Chief Justice and Justice of the Supreme Court.
Now, this Article is very instructive, because it shows that this purported appointment is inherently illegal. The following observations may be made of it:–
(i) There is a difference between the offices of Justice of the Supreme Court and Chief Justice. For instance, whereas every Chief Justice is a Justice of the Supreme Court, not every Justice of the Supreme Court is a Chief Justice;
(ii) The President’s re-appointment of Justice Odoki, after retirement from the Bench, to serve as an Acting Justice of the Supreme Court, was legal and lawful, as long as this was done on the advice of the JSC; and
(iii) The President’s purported re-appointment of Justice Odoki, after retirement from the Bench, as Acting Chief Justice, is unconstitutional and illegal, because our Constitution ONLY envisages this Acting capacity, for the offices of Justices of the Supreme Court, Court of Appeal and Judges of the High Court, NOT Chief Justice, Deputy Chief Justice or Principal Judge. Therefore, a person cannot be appointed or re-appointed to sere as Acting Chief Justice, simply because that office is unknown to our Constitution and other laws. The only situation when there can be an Acting Chief Justice (as envisaged under Article 136(2) of the Constitution) is under Article 133(2) of the same, where the Deputy Chief Justice is mandated to perform the duties of the Chief Justice, if the latter office is vacant or where the office holder is for some reason, unable to perform his or her functions. In such situations, it is my submission that this happens by automatic application of the law, not appointment or re-appointment.
Last but not least, we bear in mind Article 253(1) of the Constitution which provides that a person who has vacated an office established by the Constitution may, “if qualified,” be appointed to hold that office, “in accordance with the provisions of this Constitution.” It is submitted that this Article cannot be invoked to justify the re-appointment of Justice Odoki as Chief Justice, whether in a substantive or acting capacity, because he has cloaked the retirement age of 70 years. He is not qualified to be re-appointed. To do otherwise would not be in accordance with the provisions of our Constitution.
On Justice Kavuma’s Serving in Duo Capacity of Acting CJ and Acting DCJ
Madam Speaker, please allow me also observe, in passing, that Justice Steven Kavuma’s appointment to serve in two capacities, as Acting Chief Justice and at the same time, Acting Deputy Chief Justice, is itself unconstitutional and unlawful, because under Article 136(2)(b) of our Constitution, it is provided that where the Deputy Chief Justice is acting as Chief Justice, then the duties of Deputy Chief Justice shall be performed by a Justice of the Supreme Court or Court of Appeal, as appointed by the President, in consultation with the Chief Justice or Acting Chief Justice. Therefore, the Constitution does not envisage a scenario of acting in such duo capacity. Besides, it is inconceivable that the President probably consulted Justice Kavuma, in his capacity as Acting Chief Justice, and that Justice Kavuma nominated himself to serve as Acting Deputy Chief Justice. I strongly suggest that this continued gross abuse of the Constitution should not be tolerated any longer. Parliament may want to debate this matter extensively.
It is my sincere prayer therefore, that in light of the above constitutional provisions, this re-appointment of Justice Benjamin J. Odoki, a man of great learning, who has served our judiciary with distinction for about 40 years, be rejected and denied parliamentary approval. To do otherwise would be a blatant violation of the fundamental principles of constitutionalism and the rule of law, as deeply entrenched in this country, an insult to our God-given intelligence, a negation of the core duties imposed on us by virtue of our citizenship, such as being law abiding and definitely, an affront to our enduring faith in the leadership of this country. I humbly request that you remind the Appointments Committee of these valuable considerations, when you summon it, such that the members may be alive to this guidance.
Bakampa Brian Baryaguma
Web Address: www.bbbakampa.blogspot.com
Facebook: Bakampa Brian Baryaguma
c.c.: The Chairperson,
Judicial Service Commission,
Farmer's House Ground Floor,
Plot 6/8 Parliamentary Avenue,
P.O. Box 7679, Kampala, Uganda.