Kampala, Uganda — A recent ruling of the Constitutional Court that it was unconstitutional for judges to be appointed to the Executive branch without first resigning their posts appears to have thrown a spanner in the workings of some government departments.
But the real battle over the so-called ‘Kasango case’ ruling is being fought in the courts with President Yoweri Museveni and his legal team in one corner and advocates of the separation of powers doctrine in the other.
The Constitutional Court ruling was made on March 18. In its ruling, the five member court averred that the appointment of judicial officers to executive offices like the Office of the Director of Public Prosecutions (ODPP) and Electoral Commission contravenes the principle of separation of powers among the two arms of government.
But on March 31, at the prompting of an appeal to stay the ruling, the top court of the land; the Supreme Court, issued an interim order halting the implementation of its implications until an appeal of the case is completed.
Without that Supreme Court order, the position of judges like Simon Byabakama as the chairman of the Electoral Commission and Jane Abodo as the Director of Public Prosecutions appeared to be in jeopardy.
The Kasango petition
The Constitutional Court ruling was a result of a constitutional petition by deceased lawyer Bob Kasango challenging his prosecution by then DPP, Justice Chibita.
In an amended petition dated June 8, 2016, Bob Kasango vs Attorney General and DPP; Kasango stated that the appointment of Chibita as DPP while holding the position of the judge was inconsistent with the constitution because it causes a fusion of the Executive and Judiciary and undermines the independence of the judiciary and the separation of powers that the Constitution requires.
The lead judgment delivered by Justice Kenneth granted Kasango’s petition saying the appointment of Chibita as DPP while he was still serving as a judge contravened the doctrine of separation of powers enshrined in Chapters Six, Seven and Eight of the Constitution and Articles 128 (1), (2) and (3) and 129.
The other judges on the panel were Geoffrey Kiryabwire, Cheborion Bashaki, Stephen Musota, and Muzamira Mutangula Kibeedi.
“Henceforth the appointment and actions of a judge to any other Executive or Constitutional office prior to his or her resignation render his or her actions invalid.” Kakuru ruled. He added, “Judicial officers as custodians of justice must comply with this constitutional requirement. They must not be seen contravening the very constitution they took oath to uphold, while requiring others to uphold it.”
Based on that ruling, Abodo had already stepped aside but Byabakama’s position had not been publicly declared. Meanwhile, the ruling by the Constitutional Court has sparked a slew of commentary among legal minds.
In a Zoom conference held on March 30 discussing the lessons and constitutional implications of the successful petition, lawyer Isaac Semakadde of Legal Brains Trust, who has made a name in public interest litigation, said “Judges must take the judicial oath seriously and stop moonlighting.”
He urged judges to always put judgments in plain English and contextualize them for ordinary Ugandans arguing that the Kasango ruling was similar to the one issued on the IGG’s powers in 2010.
Semakadde said, therefore, there is nothing “new or groundbreaking” about the rulings since it was based on another ruling by the same court. In that case, the prosecutorial powers of then Inspector General of Government (IGG), Justice Faith Mwondha were challenged in Constitutional petition No. 10 of 2008 Jim Muhwezi & 3 Others V. Attorney General & Anor.
Semakadde said having a second judgment made on the same issue without the first ruling being acted on demonstrated the contempt of court by President Museveni who unconstitutionally appoints the judges to executive positions.
“There’s nothing new in it except the same old song that we are subjects not citizens in a dysfunctional democracy,” Semakadde said, “It is a mirror for the state of rule in this country.”
In an impassioned presentation, Semakadde took a swipe at the Attorney General and the entire judicial fraternity for their failure to act in accordance with the law and respect to judicial norms.
“How much respect does the office of the Attorney General have for the rule of law? There are also implications for those in the Justice Law and Order Sector (JLOS) who teach the law,” he said.
Semakadde went ahead and issued an even more damning indictment for the court that handed down the judgment. “The constitutional court is guilty of judicial avoidance. This petition was filed in 2016 and now it is 2021 and now the petitioner is dead. It is of no sequence to him.”
He said the court had set forth important constitutional norms and provided lessons on judicial ethics. “Why would you want to carry water for the President? These judges are moonlighting.”
“It brings to shame the Judicial Service Commission, the judiciary, individual judges, Public Service Commission and the Appointments committee of parliament,” he added.
He added that Uganda Law Society and individual lawyers are also indicted by the ruling. “Even for Kasango, it was not until the system came for him, that he realised this.”
But Kiryowa Kiwanuka who is President Museveni’s personal lawyer and the other discussant of the court decision on the conference said the concept of separation of powers that the Constitutional Court based its ruling on is not provided for in the constitution.
“It is a concept we just have,” he said.
Kiwanuka said the principle of separation of powers is a “romanticised” view of things. Kiwanuka said there is a relationship among the three arms of government. “It is why ministers can be MPs.”
Referring to the principle as an eighteenth century concept, he said it was a way in which the political authority of the state was always divided.
“It is quite difficult to draw a line,” he said, “the separation of powers was meant to limit the branches of government but not to stop them. There is no single democracy which exists with an absolute separation of powers.”
He asked whether the court will now require every judge who is appointed in a position anywhere outside of the judiciary to resign.
“If a judge is appointed to the Uganda Human Rights Commission, must they first resign as a judge?
He also argued that the court should have given interpretation on some articles of the constitution. “In Article 252, what amounts to a resignation from a public office?
He added: “Without court interpreting for us Article 120 (which creates the DPP), it leaves a lot of doubt.”
Using the analogy of a tree with three branches, Kiwanuka said the principle is encapsulated by the constitution. He said it is rooted in Article 1 of the constitution which says power belongs to the people and then after the constitution branches out to specify functions of other arms of government.
But away from the legal duels, the implications of the Constitutional Court ruling were already being felt in some government departments.
Jane Abodo, the Director of Public Prosecutions, had already been forced to unexpectedly relinquish office.
Abodo’s quick response was possibly an attempt to ensure that the office of the DPP, which has had its fair share of controversies in the past, does not become the focus of the current one.
President Yoweri Museveni has had a preference for appointing people from the judiciary as DPP.
As a result, the DPP office has faced accusations of being used by the president to settle scores with political opponents. Chief of these accusations is the treason charge that presidential candidates; Robert Kyagulanyi aka Bobi Wine and Kizza have faced.
In 2018, Kyagulanyi and 30 others were charged with treason after a chaotic by-election in Arua Municipality where he had gone to campaign for an opposition MP. The case has virtually collapsed after several adjournments mostly on a lack of evidence on what was a politically motivated charge.
1n 2016, then DPP Chibita charged Besigye with treason after a mock swearing-in a day before Museveni was sworn in. It was essentially a holding charge for four years and Chibita left office without the opposition leader ever being committed to the High Court for trial. Critics said it was a continuation of the path of the office from the earlier days when Besgiye was first charged with treason and rape in 2005.
When the High Court acquitted Besigye of the rape charge in 2006, the presiding judge John Bosco Katutsi was scathing in his criticism of the DPP and government in general. Katutsi said the attempts to frame Besigye were “crude and amateurish”. The judge recused himself from hearing the treason case which could possibly have seen him targeted by the state.
The other charge levelled at the DPP by opposition critics is the haphazard withdrawal of charges after they are already financially and mentally invested in cases.
Abodo’s predecessor was Justice Mike Chibita, who was a High Court judge when he was appointed in 2013. He now sits on the Supreme Court. Chibita replaced Justice Richard Buteera who had served since 1995. At the time he was appointed DPP, Buteera was working as chief registrar in the courts of judicature.
Abodo had been a High Court judge since 2018 before her appointment as DPP in April 2020. However she had served as Senior Assistant DPP for years. At the time Chibita was leaving the office early last year, sources at the DPP’s office say it was unlikely Museveni would appoint someone directly from the office.
Abodo’s decision to step aside, whatever its motivation, seems to have triggered a rushed bid to find her replacement. Alice Komuhangi Khauka appeared to have won the spot although media was awash with reports of how there were more senior deputy DPPs ahead of Khauka who Abodo reportedly delegated to while she was away on official duty.
The organogram of the ODPP lists the four deputies and their directorates in that order of hierarchy. Khauka was one of the deputies.
But some reports said Charles Elem Ogwal, deputy DPP in charge of prosecutions and quality assurance should have taken over as the most senior deputy having joined the Ministry of Justice and Constitutional Affairs in 1985 as a Pupil State Attorney. At the time, the ODPP was part of the ministry.
In 1995, Ogwal went a notch higher when he joined the ODPP, a separate directorate from the ministry then, as a Principal State Attorney. This is why those who back Ogwal feel the elevation of Khauka may cause administrative hiccups.
The other deputy is Vincent Wagona, in charge of management support services. The website of the ODPP says he is a long serving attorney of 25 years meaning he is second in terms of seniority of service. There are four deputy DPPs; the third one is in charge of international affairs and the fourth is tasked with inspection, and quality assurance.
When The Independent spoke to Khauka about these issues, she referred to a media statement by the office regarding questions of disharmony. Ogwal meanwhile kept his views to himself when asked if he should have been appointed based on his seniority.
“That is a question for Public Service. I have no opinion on it,” he said. That seems to have been a smart response since Abodo is back in office although the case against her and other judges occupying executive branch offices rages on in the Supreme Court.