President Museveni recently named judges to the Constitutional court and Supreme court, drawing praise for some of his choices, but also criticism for persistently ignoring some candidates.
Museveni promoted five justices of the court of Appeal to the Supreme court, namely Augustine Nshimye, Lillian Tibatemwa, Faith Mwondha, Eldad Mwangusya and Ruby Opio Aweri. The new judges will go some way filling gaps on the bench, following the retirement of Justices Benjamin Odoki, John Wilson Tsekooko, Galdino Okello and Christine Kitumba.
Seven more judges were appointed to the Court of Appeal: Alfonse Owiny-Dollo, Elizabeth Musoke, Paul Mugamba, Simon Byabakama, Catherine Bamugemereire, Cheborion Barishaki and Hellen Obura. Interviewed separately by The Observer, insider sources in the judiciary said the president has yet again passed over some judges recommended as fit for promotion to the Supreme court by the Judicial Service Commission (JSC).
The nine-member JSC is mandated to improve the efficiency and effectiveness of justice administration in Uganda. It also nominates and vets judicial officers before forwarding them to the president for appointment.
“Although those who were selected have the requisite qualifications, it is also strange that justices with proven records were rejected,” a judiciary official said last week.
According to this source, the senior judges who sat interviews but were passed over include Remmy Kasule, Stephen Martin Egonda-Ntende, Geoffrey Kiryabwire, and Solomy Balungi Bossa. Justice Kasule confirmed last week that he and his colleagues sat promotional interviews to the Supreme court.
“Almost all Court of Appeal judges sat [interviews] but the results never favoured me,” he said.
Prof Fredrick Ssempebwa, who represents the Uganda Law Society on the JSC, confirmed that both Kasule and Egonda-Ntende’s names have been submitted several times to the president for promotion to the Supreme court but they have been ignored.
“We submitted in several names and out of the many the president chose those five and there is nothing we can do about that,” Ssempebwa told us.
Kasule, 67, joined the Judiciary as a High court judge in 2004, after an illustrious career in private practice. He served in Kampala and as a resident judge in Gulu from 2007 to 2011 before he was promoted to the Court of Appeal.
He has written several groundbreaking judgments, but he is publicly more remembered for his dissenting judgment in the case of the four expelled NRM MPs. Kasule is also the current chairperson of the Uganda Law Council, a body that ensures that legal practitioners act within the professional standards.
Justice Egonda-Ntende, 58, was a chief justice of the Republic of Seychelles from 2009 to 2013. Before that, he served in the High court and was co-opted to the panel of the Court of Appeal and Supreme court of Uganda.
He was promoted to the Court of Appeal in 2013. Ntende was part of the Court of Appeal panel in the David Tinyefuza V Attorney General case, in which he and other judges ruled that Tinyefuza now Sejusa had a right to leave the army.
According to a JSC source, Uganda Law Society had lobbied for Kasule and Ntende to be appointed to the Supreme court.
Justice Bossa is a former lecturer at Law Development Centre from 1980 to 1997. She has also previously served as President of the Uganda Law Society (1993-95) and is the founding President of The East Africa Law Society (1994-97).
During this time, she was an activist lawyer with a bias towards human rights and constitutional law. For instance, during the same period she was among the lawyers who challenged the procedure in which the kingdoms were restored. She was a founding chairperson of Kituo Cha Katiba (East Africa Centre For Constitutional Development 1996-2003).
She joined the judiciary in 1998 as Judge of the High court. Since then she has served in various capacities having been posted to the East African Court of Justice and the United Nations International Criminal Tribunal for Rwanda. Bossa, married to UPC Vice President Joseph Bbosa, holds a master’s degree in International Public law from the University of London.
For Justice Kiryabwire, he was previously a judge at the Commercial division of the High court. He joined the bench in early 2000. He enrolled as an advocate of the High court of Uganda in 1987 and holds a Master of Laws degree (with a bias in International Economic Law) from the University of London.
He has been a member of three commissions of inquiry into the mismanagement of criminal cases, the collapse of three commercial banks and the junk helicopter purchase.
A source within the JSC also told this newspaper that the head of the High court’s Commercial division, David Wangutusi, has been passed over for promotion several times.
“We have submitted his name [Wangutusi] name like three times so that he can be promoted to the Court of Appeal but the president kept on ignoring him,” the source said.
Wangutusi is remembered for acquitting Soroti municipality MP Mike Mukula of embezzling Shs 210m from the Global Alliance for Vaccines and Immunizations (GAVI).
According to article 143 (1) (d) of the constitution, a person is qualified to be appointed as a Justice of Appeal, if he or she has served as a Judge of the High court or a court having similar or higher jurisdiction or has practised as an advocate for a period not less than 10 years before a court having unlimited jurisdiction in civil and criminal matters or is a distinguished jurist and an advocate of not less than 10 years’ standing.
In an interview last week, Judicial Service commission secretary Kagole Kivumbi explained the procedure for appointment or promotion of judges.
“The commission advertises, the judges apply and then we call them for interviews, and those who are successful [in interviews] their names are submitted to the president who appoints them. Then the president sends the names to parliament for approval,” Kivumbi said.
REFORMS OF APPOINTMENT
Some members of the legal fraternity think the process of appointment of judges should be opened to public scrutiny. Dr Busingye Kabumba, a constitutional law lecturer at Makerere University, said the current manner of appointing judges is closed, which raises more questions than answers.
“The process of appointing and promoting judicial officers, most especially for those in the higher courts, should be made more transparent to attract more public scrutiny. In so doing, it would increase the legitimacy for those holding the offices and it would help them to enjoy the trust,” he said.
City lawyer Elison Karuhanga said the laws should be changed so that the promotion of judicial officers is more on merit: “No system is perfect but clearly some good judges are being left out for one reason or the other. We need things to change.”
But until that change comes, any criticism of Museveni’s choices is bound to be muted, because he followed the present procedure. Attorney General Fred Ruhindi said he did not know why some judges were being overlooked by the president.
“A lot of things happen at that level [presidency] and I’m not in position to explain what goes on there,” Ruhindi said.