Foreign job puts JSC, Judiciary on war path

The fight now between the two offices is over who wields the power of recommendation for foreign judicial jobs. Article 144 of the Constitution empowers the JSC to vet and recommend judicial officers for appointment to the president as well as disciplining errant judicial officers.

It is on this premise that last week, JSC disowned the appointment of Tibatemwa, a former Makerere University deputy vice chancellor in charge of Academics Affairs. But the judiciary insists that though legally the JSC can’t have a say on external appointments of judicial officers, out of courtesy, Seychelles reached out to the commission over Tibatemwa’s appointment but got no cooperation.

Insider Judiciary sources, who declined to be named, have pointed an accusing finger at JSC chairperson Benjamin Kabiito. They claim Justice Kabiito worked to frustrate Tibatemwa’s latest appointment.

Prof Tibatemwa, who was among the three Supreme court judges who ruled against the lifting of the presidential age limits, was on September 17, 2019, appointed to the Seychelles Appeals Court by the country’s president Danny Faure based on what he termed as “Constitutional Appointments Authority” and indeed she was sworn in at the Seychelles State House.           

Though it has come to the fore now, The Observer understands, this process started last year. In August 2018, Tibatemwa was alerted about vacancies at the Seychelles Court of Appeal. The islands’ Court of Appeal is an equivalent of the Supreme court of Uganda. She swiftly picked interest but wasn’t certain how to go about her application, sources close to her said.

Was she to approach her boss the chief justice or the JSC? In case she got the Seychelles job, how would her new appointment affect her job here in Uganda? These are the questions she mulled over, a source briefed The Observer on the matter said. This would be her second foreign assignment after her five-year stint at the International Commission Jurist (ICJ) in 2018.

Sources at the Supreme court said she first decided to consult chief justice Katureebe who reportedly told her to talk to Kabiito. She met Kabiito and asked him if at all applying for a foreign job would have a negative bearing on her job here. Kabiito reportedly said JSC had nothing to do with foreign job placements.

“We deal purely with local issues,” Kabiito reportedly told Justice Tibatemwa, before adding, “You can consult the Attorney General.”     

With that, Tibatemwa went back to Katureebe who gave her green light to apply for the job. After all, Katureebe reasoned, the 58- year-old justice wasn’t going to sit permanently in Seychelles.

“The Court of Appeal in Seychelles sits for two months and the Chief Justice argued that won’t affect Tibatemwa’s job in Uganda,” a person with knowledge of the chief justice’s decision said.

“The chief justice even reasoned that the judge could even do her duties in Seychelles during her annual leave,” the source said.

And the most critical issue is that Tibatemwa wouldn’t be the first serving judge to work in a foreign country. Currently, Justice Geoffrey Kiryabwire, who is a Court of Appeal judge in Uganda, sits at the East African Court of Appeal. 

Justice Monica Mugenyi, who is a High court judge in Uganda, is now at the East African Court of Justice where she serves as the “principal judge.” 

Supreme court judge Mary Stella Arach-Amoko served at the regional court without any aggravation. Retired chief justice Benjamin Odoki was sitting at the Supreme court of Swaziland even when he was a Supreme court judge in Kampala. 

Justice Duncan Gaswaga who heads the High court’s execution and Bailiff Division has been superintending the Seychelles Anti-corruption Commission. Given that context, in March or thereabout, Tibatemwa needed an official nod of approval and her bosses gave her the endorsement without hesitation. 

The Observer understands that it was deputy chief justice Alfonse Chigamoy Owiny-Dollo who penned the recommendation in favour of Tibatemwa, which was dispatched to authorities. Owiny-Dollo stepped in because chief justice Katureebe was in South Africa.

Interviewed for this story, Justice Owiny-Dollo said he wrote Tibatemwa’s recommendation as a referee but declined to be drawn into the legal implications.

“I’ve known her as an exceptional person but this is a part-time job; I don’t think there is a problem legally,” he said.

On his part, retired Supreme court judge George Wilson Kanyeihamba, who was once denied government backing for a foreign job, said though it’s purely an administrative matter, it’s not clear between the chief justice and the JSC who should give clearance to a judge who wants to work outside on a part- time basis.

“It’s clear that they can’t just take a Ugandan judge without permission from the Ugandan authorities,” Kanyeihamba said.

Meanwhile, we couldn’t reach Justice Kabiito for an interview. Our repeated calls went unanswered. But much as Tibatemwa got the judiciary’s endorsement, a source said, she insisted on reaching out to Kabiito.

“She thought it was proper for the JSC, which essentially recommends judges to the president for appointment to be in the know of what she was doing,” the source said.

She reportedly made several phone calls to the commission to no avail. Before both New Vision and Daily Monitor published the story announcing Tibatemwa’s appointment to the Seychelles Court, Tibatemwa reportedly went to the JSC offices to see Kabiito.

Kabiito is still a High court judge on secondment to the commission just like justice Simon Peter Byabakama who is a Court of Appeal judge but serves as the Electoral Commission chairman. 

Sources say Tibatemwa failed to meet Kabiito. The secretary told the bespectacled judge that the JSC boss wasn’t around. But before she drove away, sympathetic staff at the JSC tipped her off that Kabiito was on the premises. Tibatemwa reportedly returned to the offices and instead decided to have a conversation with JSC commissioners present; Rosemary Nyakikongoro and Norah Matovu –Winyi. 

The two commissioners, sources say, told the judge that they had no queries with her foreign appointment but pointed out that Kabiito had some questions. It’s not the first time a judge is accusing Kabiito and his JSC of not being helpful.

In 2017, Justice Solomy Balungi Bossa, who is now at the International Criminal Court (ICC), and had applied to replace Steven Kavuma as deputy chief justice, wrote a scathing letter. She accused Kabiito of playing ping-pong with her when she sought and failed to be interviewed for the job by the commission.

Bossa claimed she was made to move severally between the JSC offices at Mackinnon road and Kabira Country club in Bukoto, where interviews were being conducted. After several futile trips, she came to the conclusion that she was on a wild goose chase. Once her chances of being interviewed for the coveted job were effectively over, Bossa said Kabiito wished her “well” in her quest for being an ICC judge.   

Once Tibatemwa’s appointment was announced, the JSC swiftly disowned it, creating the current row. The irony about this standoff is that it’s now five years since Justice Tibatemwa-Ekirikubinza while still a Constitutional court judge authored a lead judgment, which buttressed the independence of the JSC. 

Tibatemwa swung into action after President Museveni had sidestepped the JSC then headed by retired Justice James Ogoola to re-appoint a retired Justice Benjamin Odoki as chief justice, something she ruled as unconstitutional.

As she prepares to start her duties in the archipelago off the Indian coast, Tibatemwa might not have envisioned that at one point the JSC, albeit under a different leadership, would move to frustrate her.    

Who is Prof Justice Lillian Tibatemwa-Ekirikubinza?

She is the first Ugandan to be appointed as Justice of the Constitutional court and the Supreme court solely on scholarly work. As a professor of Law, she served as the first female deputy vice-chancellor of Makerere University from 2004 -2013.

She was the first East African female to graduate with a PhD in Law and first female professor of Law in the region. She enrolled as an advocate of all Courts of Uganda’s Judicature in 1988. 

Justice Lillian is an experienced and widely researched legal scholar in Comparative Criminal Jurisprudence and an accomplished author of pioneer textbooks on the substantive law of crime based on judicial interpretation of Uganda’s principal criminal legislation (the Penal Code). 

She is widely published in referred law journals, textbooks and completed the Commonwealth Judicial Bench-book on VAW in East Africa. Although she joined the Judiciary in July 2013, since 2000 she pioneered trainers on the Jurisprudence of Equality Programme into Uganda’s judiciary, and introduced the training of Judicial Officers in the area of Gender and Human Rights. 

Justice Lillian holds a PhD in Law (specialized in Gender and the Law, Criminal Law and Criminology) from the University of Copenhagen, Denmark, an LL.M in Commercial Law from the University of Bristol, U.K, an LL. B (Hons.) from Makerere University in Uganda, and a Diploma in Legal Practice, Law Development Centre, Kampala.

dkiyonga@gmail.com