Justice Remmy Kyononeka Kasule, an outgoing Constitutional court/Court of Appeal judge, has seen it all from surviving Idi Amin’s rogue soldiers to serving in LRA-infested northern Uganda.
Last month, he clocked the mandatory retirement age of 70 and is now clearing his desk as retirement beckons. Derrick Kiyonga writes about his tricky journey to the top echelons of Uganda’s judiciary.
One day in 1971, Brig Isaac Maliyamungu, one of Idi Amin’s most-feared henchmen, scrambled to receive a phone call. The person on the other side of the phone was Kasule, at the time an advocate with Kiwanuka and company advocates who had a grievance.
The gist of Kasule’s complaint to Maliyamungu was that his unruly soldiers had ransacked a coffee factory in Kayunga, which belonged to Kasule’s clients. Maliyamungu, much to Kasule’s surprise since soldiers were known for speaking in Kiswahili, responded in Luganda and sounded apologetic. He assured Kasule how ‘this was an easy thing’ that would be sorted. He advised Kasule to go over to his office in Naguru, Kampala.
Before he could meet Maliyamungu, Kasule made a move that arguably saved his life. On his way to Naguru, he for some reason decided to first visit a senior police officer he recalls by one name: Mugamba at the Criminal Investigations Department (CID) which, at the time, was at Impala House – along Kimathi avenue.
When Kasule told Mugamba about his plans to meet Maliyamungu, the police officer simply implored him to forget about the idea. “This is a trap,” Mugamba, reportedly warned Kasule. “He told me that’s an army man. He will kill you if you go there. That’s how they behave,” Kasule who took heed to the warning, recalls Mugamba’s words.
That was one of the several encounters that Kasule had with Amin’s bloodthirsty soldiers.
Years later, he showed that in pursuit of justice, he feared no body. In Uganda’s rather tumultuous history, it is well documented how in 1991, senior political leaders from the northern Uganda, including Daniel Omara Atubo, Zachary Olum and Andrew Adimola were among the 30,000 people rounded up and gathered in Pece stadium to screen out rebels; all this at the behest of Gen David Tinyefuza, who has since taken on the name Sejusa. It’s said the politicians were beaten and forced to do onerous physical exercises by soldiers as Sejusa brushed his teeth.
What’s not documented, however, is how these politicians left Pece stadium to ultimately face justice in the capital city. One Sunday evening, Arthur Oder, a leader from the north who would later be appointed to the Supreme court, paid Kasule a visit his home in Muyenga, an opulent Kampala suburb. Oder, who has since passed on, had one simple request to Kasule: use his legal prowess to rescue Atubo and his group.
At the time, Kasule practiced law under the firm Kasule & Kawanga, a law firm he opened in 1974 together with John Kawanga, the former Masaka municipality legislator who belonged the Democratic Party (DP).
The task was complicated because it had security ramifications but the first stumbling block Kasule faced were the tribal sentiments and stereotyping which were high in the nineties. Kasule, a Muganda from the south, was now going to represent people from the North. It was a rare thing.
“At the time, the southerners hated northerners,” Kasule recalls. “They were blaming them for the chaos that had befallen Ugandan from Indepedence until Museveni took over. So, they wanted them to suffer.”
Even with such sentiments, Kasule wasn’t one to be drawn into such brouhaha since his main concern has always been justice. Once Justice Oder gave him instructions, Kasule considered two options: Administrative and the legal path.
Having personally visited Pece stadium and witnessed the humiliation Atubo and others were going through, he sought the intervention of the Uganda Red Cross and it seemed to have worked. The accused were airlifted to Kampala where they were remanded at Luzira prison after the state charged them with sedition and treason.
Kasule was willing to go toe-to-toe with state. He defended Atubo and company in court until January 1992 when the Director of Public Prosecution (DPP) discontinued proceedings.
This was the same period he was also the president Uganda Law Society (ULS) and coincided with the period in which Uganda was trying formulate the current Constitution. Indeed, it was Kasule who presented the law society’s views to the Uganda Constitutional Commission, known popularly as the Justice Benjamin Odoki Commission, whose role was to draft a new Constitution.
Kasule didn’t want his role in framing the Constitution to be peripheral - he wanted to be at the centre of this historic process. In 1994, Kasule, who was deemed a DP-leaning politician, decided to contest in Mawokota North constituency for a slot in the Constituent Assembly (CA).
“I never wanted to stay in elective politics. I just wanted be in the CA and make a contribution to that process. I explained this to my opponent but he said I was lying,” Kasule reflects on the race he lost to the late John Zimula Mugwanya. “The voters were simply not interested in issues but only who was giving them soap, salt and sugar.”
With the route to politics blocked, he resumed private practice and later his duties were widened in 1996 when he was appointed to the Judicial Service Commission (JSC), the body that vets judges. He was there as representative of ULS.
CALL TO THE BENCH
At the beginning of this century, Kasule’s friends led by the late Jehoash Mayanja Nkangi, fronted an idea to have Kasule appointed as a judge but he initially hesitated. But in 2004, Kasule decided to go for it even though his ultimate designation created some controversy. Those who nominated Kasule had the understanding that with his experience and competence, Kasule would straightaway go to the Court of Appeal, which doubles as the Constitutional court.
But to their astonishment and some extent Kasule’s, President Museveni decided to send him to the High court. It seemed that his DP roots were haunting him and it is believed the president was simply not comfortable with Kasule at the Court of Appeal.
Indeed, when asked, Kasule doesn’t shy away from this notion.
“Politics played a hand,” says Kasule, whose father, the late John Ssebunya Kasule, was one of the founders of DP in 1954. “Some politicians interfered with that appointment and that’s how I ended up at the High court.”
That notwithstanding, Kasule, a staunch catholic, didn’t sour grape. He didn’t’ reject the High court placing; in fact, he decided to flourish while at it. Justice Herbert Ntabgoba, then Principal judge, decided to place Kasule at the civil division in Kampala, where he also handled the normally sensitive family disputes.
It was during this time that the war between UPDF and the Joseph Kony’s LRA intensified in the north. As a result, some judicial officers frowned on the idea of working there. Ntagoba, nevertheless, decided to dispatch his trusted lieutenant Kasule to the epicenter of the war - Gulu district – where he was the resident judge. Unlike today, the judge in Gulu would handle cases from Lira to West Nile, almost the whole of Northern Uganda.
Asked which case stood out of all he handled during his seven-year stint at the High court, Kasule is quite sure about this particular case. It’s the 2007 case in which he stopped the marriage of a couple from the same Buganda clan.
Ivan Sserunkuuma and Juliet Namazzi both of Ndiga clan had planned to walk down the aisle at Makerere St Francis Church. But the plans were thwarted once Namazzi’s father challenged the wedding before Justice Kasule’s court on grounds that the couple belonged to the same clan. Citing article 37 of the Constitution the judge blocked the union on grounds that it would go against the Buganda traditions. In Buganda culture, it’s an abomination for people from the same clan to marry.
As a result of that judgment, legal critics labeled Kasule ‘a conservative judge.’
“I’m not a conservative judge,” Kasule said while defending his position in an interview. “But we have to have core values as a society. So, just because you are liberal you let the customs and norms of the society to be torn apart. It’s not possible.”
Indeed, whenever invited to give his views on contemporary societal issues such as homosexuality, Kasule mind is quiet clear. The retiring judge asserts if the legality of homosexuality had been put before him the results wouldn’t have been any different.
“If people in Sweden want homosexuality and gays that’s fine,” Kasule expounds. “Here in Uganda our norms are clear. Sexual relations are between man and woman. It can’t be between man and man or woman and woman.”
Not that Kasule isn’t alive to the fact that in 2014 the Constitutional court struck down the Anti-Homosexuality Act on a technicality that parliament had passed it without quorum. So, this means court has never delved into the merits or demerits of that law, as Kasule wants.
Talking of the Constitutional court, it has been Kasule’s home since 2011. Kasule together with Sam Rugege, Rwanda’s chief justice are members of Makerere University’s first law class of 1968. So his eventual arrival at the Constitutional Court was a case of cream finally rising to the top
While he was part of the panel that handled the contentious age limit petition in Mbale , Kasule doesn’t single out that case as the most interesting he has handled during his 7 years stay at the Constitutional court .
The case between four MPs who came to be known as “rebels” and the NRM ruling party still stands out, according him. It was in 2014 when Kasule wrote his name in the annuls of Uganda’s legal history when he wrote a minority ruling rejecting NRM’s push for the ejection of the MPs from parliament because they had been expelled from the party. Though Kasule’s ruling was a minority view, he was later vindicated. When the rebel MPs appealed to the Supreme court, that court, too, in a decisive 6-1 ruling, refused to eject the lawmakers.
“That judgment was very important in our democracy,” he explains the reasoning behind his judgment. “Those who are not electorates shouldn’t impose their will on the electorates. A caucus of a party can’t determine who should be in parliament and who shouldn’t be. That can’t be democracy.”
As he winds up his work in the judiciary there is case of what it should have been. There general feeling in the legal circles that Kasule should have been promoted to the Supreme court some years back. He merits this place since the Center for Public Interest law’s research shows that out of 15 judges of the Constitutional court – Kasule has been the best performer.
Though he doesn’t want to offer an opinion on the refusal by the powers that be to promote him to the highest court in the land, Kasule gives a more futuristic perspective. He says going forward the criteria of both appointing and promoting judges radically be altered and that’s the only way the judiciary will tap quality judges.
“Giving people judicial appointments as a consolation for failing as MPs should stop,” he said, “its okay to appoint people who have been MPs but they shouldn’t be appointed as judges just because they have nowhere else to go.”
He adds: “The Chief justice I would argue that he should be part of the judicial service commission. Because it’s him who knows how judicial officers perform. He gets reports from the magistrate court all the way to the Supreme Court. He is better placed than other people to evaluate performance.”
According to Kasule the current system of appointing judges can’t produce judges who promote the much cherished judicial independence.
“The current set up we have isn’t sufficient. It can easily be manipulated,” Kasule said. “It’s doubtful whether one really comes to the bench to administer justice or whether one comes just because there is a good salary and it’s an opportunity to make money.”
From 2013, he has been the chairman Law Council; the body that regulates and disciplines errant lawyers in Uganda and also approves the contents of law programmes for law degrees for universities.
So, such context he offered some advice to young lawyers. “We have been discouraging them from forming one-man law firms. We are telling them to form mergers because it’s only then you can handle big cases. We also advise them to look at the region not Uganda only.”
“East Africa has a lot of potential and we should be able to get the most of it as lawyers,” Kasule says.
Kasule proudly refers to himself as a protégé of Benedicto Kiwanuka, Uganda’s first back chief justice, since it’s him who first offered him a job upon leaving university.