May 15, 2021

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Current Affairs

Current Affairs (10)

JUDGES CANT HOLD TWO OFFICES-CONSTITUTIONAL COURT RULES

 

The late Bob Kasango has won a petition he filed at the Constitutional Court challenging the appointment of Justice Mike Chibita as the Director of Public Prosecutions without resigning his job as a judge.

In 2016, Kasango dragged the DPP and the Attorney General to the Constitutional Court arguing that it was illegal, unconstitutional and causes a fusion between the executive and judiciary on top of undermining the independence of the judiciary and the separation of powers as enshrined in the constitution for judges to be appointed to other government positions without first resigning as judges.

In the lead judgment by Justice Kenneth Kakuru, on behalf of a panel of other justices including Geoffrey Kiryabwire, Cheborion Barishaki, Stephen Musota and Muzamiru Mutangula Kibeedi, the Constitutional Court ruled that it is illegal for a judge to be appointed to any executive or constitutional office and that assuming the position without first resigning as judges is illegal.

“I would like to observe that judges and justices are still being assigned and or appointed to various executive and constitutional offices. The relevant authorities, especially the Judicial Service Commission must ensure that before a judge or justice takes up another appointment, he or she first resigns,” Justice Kakuru ruled.

“Judicial officers as custodians of justice must comply with this constitutional requirement. They must not be seen to be contravening the very constitution they took oath to uphold while requiring others to uphold it. Consequently, any appointment of a judicial officer to any executive or constitutional office prior to his or her resignation from the judiciary shall be null and void and his or her actions will be null and void.”

The judgment means that Justice Jane Frances Abodo, the current Director of Public Prosecutions and the Electoral Commission chairperson, Justice Simon Byabakama ought to resign as judges of the High Court so as to continue serving in their current respective positions in which they were appointed by President Museveni.

However, the judges of the Constitutional Court ruled that the investigations, arrest and prosecution of the deceased lawyer, Bob Kasango while Justice Mike Chibita held the office of the Director of Public Prosecutions didn’t contravene any provisions of the Constitution.

Lady Justice Dr Esther Kisakye. 

 

Justice Esther Kisakye of the Supreme Court has disagreed with eight Justices in their decision on two applications arising from the presidential election petition filed by former presidential candidate Robert Kyagulanyi Ssentamu.

Kyagulanyi petitioned the Supreme Court to challenge President Museveni’s victory in the presidential elections. At the start of the petition hearing, Kyagulanyi first filed an application seeking to be given more time to amend his petition and introduce new grounds. He filed another seeking to file additional affidavits and another seeking to withdraw the whole petition.

Kyagulanyi argued that there were unusual circumstances including the fact that his lawyers were operating mobile law firms due to insecurity and fears that state operatives may steal the evidence. He also argued that state operatives seized their political party offices which made it difficult for him to file relevant affidavits and evidence in support of his petition on time.

On Thursday, the two applications were dismissed by the eight Justices led by Chief Justice Alfonse Owiny-Dollo on grounds that a presidential election petition cannot be amended due to its strict timelines within which it should be determined.

However, in her dissenting judgement read to Kyagulanyi’s lawyers, Justice Kisakye said that the reasons advanced by Kyagulanyi were more than unusual circumstances and therefore his applications should have all been allowed. She noted that it was not right for the Attorney General to argue the way he did on the strict timelines because the issue of amending petitions has happened before in the presidential election petition of Amama Mbabazi and therefore it cannot be unlawful.

 
 
 
 

She added that although the extension to file additional evidence was going to have an impact on the roadmap of court, the respondents who were the majority opted to ignore the fact that those provisions were enacted and the constitution amended.

But to Kisakye, whereas the law says that the matter should be determined within 45 days from the date of filing, this requirement didn’t impose on the Supreme Court the duty to ignore the unconstitutional and unlawful acts as declared by the High Court to the detriment of Kyagulanyi.

“The restrictions on the movements of the applicant as pleaded in his affidavit and as confirmed by High Court more than constituted the special circumstances which were envisaged under rule 17 of the Presidential Election Rules,” she said. Kisakye added the rest of the Justices should have allowed the applicant to file additional evidence which was ready on the morning of February 15, 2021, when the deadline was on February 14th 2021.

Court heard that the fact that the evidence was ready by February 14 and the country is under curfew, coupled with the siege of NUP offices, the shutdown of the internet for five days and Kyagulanyi’s house arrest, it was impossible that the time was sufficient for him to do all that was required.

She added that there is a principle that the mistake made by the lawyers should not be blamed on his client like the majority of the Justices did yet Kyagulanyi had already lost ten of the fifteen days.

 
 

“The applicant’s counsel was not able to deliver all the evidence in the time prescribed for a variety of reasons some of which were submitted on by counsel Sseggona. By the majority attributing the mistakes of counsel to the client, the court was reversing its decisions without giving reasons,” said Kisakye.

On the issue of Kyagulanyi’s witnesses being arrested by the state, Justice Kisakye dismissed the arguments by the respondents saying that he should have brought evidence of the list on who was arrested and taken where and by who.

She noted that the argument lacked merit because Kyagulanyi knew who exactly was his witnesses and where they were and that the respondents were talking about matters that they didn’t know about.

“The first respondent is the incumbent president, He has been in power for 35 years with an established party structure which is in place and which has not suffered any disruptions or closures as were suffered by the applicant’s party at the expense of the state organs,” said Kisakye.

According to her, the Electoral Commission and Attorney General also have nationwide offices throughout the country and it didn’t make any sense when they said that Kyagulanyi’s witnesses should have been in Kampala for them to file their responses to additional evidence he wanted to file.

Since the application for the withdrawal was consented to, Kisakye said she was not going to say much about it. She noted that what Kyagulanyi went through was unconstitutional and in the interest of justice and fairness, Museveni, Electoral Commission and Attorney General shouldn’t have asked for costs.

Uganda’s Transitional Justice Policy Development Process and the International Criminal Court

Lady Justice Margaret Opiny sworn in as Judge of High Court

Wednesday, February 10, 2021

STATE HOUSE, ENTEBBE: President Yoweri Museveni has said that with proper planning and resource prioritization, the judiciary can provide nation-wide judicial service up to the sub county level, reiterating his earlier stand that since there are administrative units at the Sub-county level including Chiefs, Forest officers, veterinary officers and medical assistants, it would be important to have a judicial officer as well.

“It is a question of planning then we discuss resources. Its important to have coverage for the whole country but at what cost? Planning determines what to do,” he said.

Giving an example of the army, President Museveni said they have been able to defend the whole country with very little money. 

“If you are to look at our budget, it is like US$500million other countries are in billions. We are able to provide a defense service in spite of a small budget. The secret also is in prioritization. Like the recruitment of educated people, army in past was illiterate; then weapons. Housing and transport are a bit down. That is how we are able to provide you with that defense service,” he said.

The President was today speaking shortly after the swearing in ceremony of the new Judge, Lady Justice Margaret Apiny to the bench at a ceremony at State House Entebbe. The ceremony was also attended by The Minister of Justice and Constitutional Affairs Prof. Ephraim Kamuntu, Chief Justice Alfonse Chigamoy Owiny-Dollo, Deputy Chief Justice Richard Buteera, Principle Judge Justice Flavian Zeija, Chairperson judicial service commission Uganda, Chairperson Judicial service commission, Commissioner Ruth Sebatindira, PS and secretary to Judiciary.

The President who first apologized for his casual work wear said there was a mix-up in the programme.

“Banyankole have strict protocol on matters of dress. There is dress for work, then dress for Sunday. I came here with the dress of work. I was not told there was a Sunday function. I am not under looking your ceremony. I come with dress of work. Am very sorry, I would have put on a tie. I suffer, but I put it on. I congratulate Lady Justice Margaret Apiny,” he said.

Using the example of the army, President Museveni said while their human resource is not well paid it is well trained. 

“Even if soldiers are not getting good pay, their children get a good education, health housing, transport and salary etc. We had to keep salaries down. In Somalia for example, they can’t build a national army because they started by paying soldiers. It is a big country that needs a big army. For us we said in order to have enough manpower to defend our country, we can’t afford high salaries. Low salaries but enough weapons. The good thing with weapons they are not recurrent. Can buy a system, which will help you for ten years, because of this we are flexible,” he said.

The President appealed to the Judiciary to prioritize cases like murder and rape.

“For me, I appeal to the Judiciary that offences like murder, rape and defilement, even without enough resources should be got out of the way. It removes enmity out of the way among the people. The African mentality like the Banyankole, is if you make mistakes e.g, steal my cow, abuse, attack or beat me those are..ebichumulo. They are wrongs (aggrieve people) and the answer for that is okukhola. Once the case is judged against me I must pay a goat or cow. But the boundary is murder, if you kill a person for murder it is  enzungu (vendetta). They believed in collective punishment, must go and kill somebody in your clan. Because of collective accountability…make a whole clan accountable for the wrong of one of them. In order not to attract revenge go to settle matter Okukalaba. (Give many cows perform religious ceremony to wash away blood of one who died),” he said.

The Minister of Justice and Constitutional Affairs Prof. Ephraim Kamuntu congratulated Justice Margaret Apiny on the appointment thanked President Museveni for sparing time and devotion to the Judiciary arm of state. 

“The NRM as a party in government, its’ history is rooted in the search and pursuit of justice and rule of law. You have been exemplary in showing that no one is above the law. There are some Ugandans who only think justice is done only if they win and if they don’t win they think justice has not been done. We discourage this attitude. We must build confidence and defend the integrity of the Judiciary. That Ugandans can go to court and expect justice and no one should belittle when he loses in the courts of law,” he said.

Chief Justice Owiny Dollo commended the President for unfailingly and religiously standing and understanding the role of judiciary in our national scheme of things. 

“We find a lot of people highly educated people who do not understand the role and place of judiciary. You have demonstrated your kin interest and full understand of importance of the judiciary as one of the three arms of govt. You have given me additional weapon in my arsenal but of course like Charles Dickens character, we ask for more,” he said.

Justice Owiny Dollo said Ugandans need judicial service and he welcomed the Presidents support for widening coverage. 

“When you graced our new law year for the judiciary, you promised us that you would ensure that our people see the rendering of justice up to sub county level. You wouldn’t have given us a better prize than ensuring that our people enjoy safe water, local governance and similarly administration of justice right at their doorstep. You couldn’t have done anything greater,” he said.

Justice Dollo said they are not blind to the fact that they are competing with other people for contents of baskets and the baskets are not many and other demands are important, but ask that the state juggles and ensures there is equity so that the three pillars of government are at the same level.

Kyagulanyi cannot intimidate the judiciary – Chief Justice

Hon. Minister of Justice meets with ADC Head of Delegation in Uganda

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