In less than 24 hours, five justices of the Constitutional court led by Deputy Chief Justice Alphonse Chigamoy Owiny-Dollo, Remmy Kasule, Kenneth Kakuru, Cheborion Barishaki and Elizabeth Musoke are expected to deliver a decision that could decide the political direction of Uganda for the next 10 years, writes BAKER BATTE LULE.
After the controversial December 2017 constitutional amendment that saw the scrapping of presidential age limits, the extension of all political offices from five to seven years, and the reintroduction of the two presidential term limits, dissatisfied Ugandans went to court.
As things stand, President Museveni, who would be over the 75-year age limit at the next election, is a singular beneficiary of the amendment. Critics point out that the amendment opened the door for him to become a life president. His position, and with it the country’s very destiny, awaits the outcome of almost two months’ deliberation by the judges.
Led by the leader of opposition in parliament Winnie Kiiza, the petitioners challenged the legality of the amendment as unconstitutional. Now court is set to deliver a highly anticipated ruling tomorrow, July 26.
Publicly, no one can say which way the judges will rule. In fact, in his closing remarks during the hearings in the eastern Uganda town of Mbale, Deputy Attorney General Mwesigwa Rukutana beseeched the bench, pleading that if they find some elements of the amendment inconsistent with the constitution, those elements should be struck down, not the entire law.
It was headache enough for the government to muscle the bill through, involving the paying-off of regime MPs, the staging of a very violent attack on parliament by soldiers from the presidential guard; and an unprecedented beating up of MPs in the House precincts which left some like Mukono municipality representative Betty Nambooze hospitalised with life-threatening injuries.
Even with these extreme efforts, the amendment only squeaked past the threshold of three thirds majority by just 17 votes. That number has since been reduced by three following the fatal shooting of Arua Municipality MP Ibrahim Abiriga in June and by-election reversals. Abiriga was one of the most visible proponents of the amendment.
By-elections saw the ruling party’s Nathan Igeme Nabeta thrown out of Jinja Municipality East by voters angered by his support for the amendment which drew countrywide opposition. He was replaced by Forum for Democratic Change’s (FDC) Paul Mwiru.
Similarly, Winnie Matsiko lost her Rukungiri woman seat to FDC’s Betty Muzanira. Pundits suggest that President Museveni would prefer to avoid a re-run of such a nerve-wracking experience if court decided to quash the entire bill.
Those in the know about the goings-on inside the attorney General’s chambers say they are already readying themselves for a potential appeal in the Supreme court. Male Hassan Mabirizi Kiwanuka, one of the petitioners, also believes that the matter will ultimately go to the highest court in the land.
“Either way the justice decide, we shall end up in the Supreme court. If our petition is allowed, I know the government is going to appeal. Likewise, if the government side wins, we are going to appeal,” Mabirizi told The Observer on Saturday, July 21.
That the ruling should be delivered in less than 24 hours constrains speculation on which way it will go. However, looking at how the five judges have decided prominent political cases in the past, an educated guess can be attempted based on a brief look into their respective records.
Remmy Kasule
Of the five justices, Kasule has been on the bench longest. He was appointed judge of the High court in 2004 and elevated to the Court of Appeal in 2011.
Since then, he has sat on the coram of almost all constitutional petitions, issuing landmark judgements along the way. His most outstanding ruling dates back to 2014 when he dissented from four of his colleagues; Steven Kavuma, Augustine Nshimye Ssebuturo, Faith Mwondha, and Richard Butera to rule that MPs Muhammad Nsereko, Barnabas Tinkasiimire, Wilfred Niwagaba and Theodore Ssekikubo cannot vacate their seats in parliament simply because they have been expelled from the ruling NRM party on whose ticket they were elected to parliament.
The Supreme court upheld his ruling. Kasule was also part of the four justices who ruled in 2014 in a majority 4-1 ruling that it was unconstitutional for Museveni to reappoint Benjamin Odoki as chief justice after his retirement on attaining the mandatory 70 years of age.
In 2011, Kasule and others quashed former vice president Gilbert Bukenya’s arguments that he couldn’t be charged by the inspector general of government for the offences of abuse of office before the Anti-Corruption court. The charges leveled against him were based on actions done in his official capacity as the vice president.
That same year, Kasule with others also ordered that the trial of former Lord’s Resistance Army fighter Thomas Kwoyelo was inconsistent with the constitution as it deprived him of equal treatment under the Amnesty Act. Kwoyelo’s co-accused had been granted amnesty.
A year later, Kasule also ruled in a petition filed by one Severino Twinobusingye that parliament’s order for ministers Amama Mbabazi, Sam Kutesa and Hilary Onek to step aside pending investigations by an ad-hoc committee into corruption allegations in the oil sector was unconstitutional and, therefore, null and void.
Kasule with others also set a notable precedent when he ruled that the Inspectorate of Government cannot prosecute or cause prosecution in cases involving corruption, abuse of authority in public office when it is not duly constituted.
Foreign Affairs minister Kutesa, who had been dragged to court by the then acting IGG Raphael Baku for alleged corruption during the 2007 Commonwealth Heads of Government Meeting preparations, had challenged his trial in the Constitutional court.
Cheborion Barishaki
He was appointed justice of the Court of Appeal in 2013 after working for a long time as the director for Civil Litigation in the Attorney General’s Office.
According to constitutional judgements that we reviewed, none of them were decided by Barishaki. However, he played quite a dominant role in deciding several 2016 parliamentary election petitions.
He appears on almost every appeal that was decided by the former deputy chief justice Steven Kavuma. And in most of them he is part of Kavuma’s majority ruling that upheld the victory of majority of the NRM MPs whose elections were being disputed.
Kenneth Kakuru
He was appointed justice of the Court of Appeal in 2013, having been a sometimes activist advocate for over 30 years. Some of the high-profile cases that Kakuru decided include the 2012 challenge by Asuman Irumba and Peter Megelah of the 1965 Land Acquisition Act which they said was inconsistent with Article 26 of the Constitution.
In a unanimous judgement, the panel of five judges which included Kakuru and Kasule ruled that, “Section 7(1) of the Land Acquisition Act is hereby nullified to the extent of its inconsistency with Article 26(2) of the Constitution. That is to say, to the extent that it does not provide for prior payment of compensation, before government compulsorily acquires or takes possession of any person’s property.”
The government appealed the ruling in the Supreme court where it again lost.
Government then tabled the controversial Land Amendment Bill 2017 to provide for compulsory land acquisition for public infrastructure projects before compensation. The proposal seemed to be dead on arrival, given the overwhelming public rejection.
Elizabeth Musoke
Elizabeth Musoke was appointed High court judge in 2008 after a long career in the Directorate of Criminal Prosecution and the Inspectorate of Government.
She is amongst that new crop of judges which is gradually replacing the old war horses, many of whom were respected for their brilliance and juridical depth. In 2015, she together with Cheborion Barishaki, Catherine Bamugemereire, Paul Mugamba, Owiny-Dollo, Simon Byabakama, and Hellen Obura were nominated to and duly confirmed on the Court of Appeal/Constitutional court bench.
According to the Constitutional court judgements reviewed for this piece, there were a few where Elizabeth Musoke was part of the coram.
The most outstanding was in 2017 when together with Kakuru and Justice Engonda-Ntende, she ruled that all interim orders issued by a single justice of the Constitutional court were null and void and of no effect. They said it was unconstitutional for the court to hear cases under either a single justice or a coram of three.
In legal circles, however, the jury is still out on where she stands on political questions given her establishment background.
Owiny-Dollo
A former minister in charge of pacification of northern Uganda during the war years, Owiny-Dollo would seem to wear two hats.
He was appointed judge of the High court in 2008, then on to the Court of Appeal in 2015 but he was not to take office until 2016 when he finished delivering his judgement in the 2010 terror bombings in Kampala.
He notably handed down long jail sentences to most of the accused. On the political scene, together with Paul Mugamba, he disagreed with the rather disappointing Steven Kavuma and nullified the election of Winfred Matsiko as the Rukungiri Woman Member of Parliament. She subsequently lost the by-election to Betty Muzanira of FDC.
bakerbatte@observer.ug