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Judge: Why Mbabazi lost 2016 petition

Justice Jotham Tumwesigye

Justice Jotham Tumwesigye

Justice Jotham Tumwesigye has carefully remained out of the media eye since he retired last year at the end of his two year contract at the Supreme court.

In the judiciary, Tumwesigye started out on the bottom rung of the ladder as a state attorney. He was later appointed to the Benjamin Odoki Commission that wrote the 1995 Constitution.

Before his appointment to the Supreme court in 2009, Tumwesigye served as Inspector General of Government (IGG) from 2000 to 2005 and later as chairman of the Directorate of Citizenship and Immigration. Last year, he hang up his wig after a 45 yearlong public service career. DERRICK KIYONGA interviewed him recently. Below are excerpts.

You have been in public service for a long time. How do you feel now that you are retired?

I feel happy. I have served this country to the best of my ability. I have retired in good state and I think that’s very important. I’m still in good health and I’m able to do other things.

When you were appointed to the Supreme court back in 2009 many opposition politicians labeled you as “a cadre judge.” Before that President Museveni had appointed you as IGG. So the conclusion was you were a judge to do Museveni’s bidding…

Well, it was a misconception. If you know me as a person, as a lawyer, those who know how I discharged my functions as an IGG, I didn’t administer justice as a cadre of the movement [NRM].

I have always been very objective and impartial wherever I worked including my work as a judge. Definitely I get disappointed. Those who on the onset called me a cadre judge clearly misunderstood me as person. I have tried to do the best I can in every office I have been in. I can tell you I wasn’t influenced by any external factor whether as an IGG or as a Supreme court judge.

Are the challenges of being an IGG and a Supreme court judge the same? 

The challenges weren’t the same. The functions of the IGG are basically fighting corruption and enforcement of the Leadership Code, among other things. The challenges I faced most as an IGG included lack of support from other offices.

Other offices were required to implement my recommendations but they didn’t. That was very discouraging. The IGG can only perform well if he or she gets support from other offices. Let me give you an example, you would make a recommendation that this person should be removed from office on corruption grounds but that person would be kept in office instead.

An IGG would make a report to parliament and it was parliament to take it from there. Parliament would decide either to implement the recommendations or not. Not implementing what we had recommended wasn’t encouraging.

But as a judge the decision of the court is final and if you don’t agree, you appeal. At the Supreme court – that’s the end. At the Supreme court whenever we made a decision it had to be implemented. I’m aware of complaints that some decisions of the lower courts aren’t respected by certain arms of government. But it was never the case at the Supreme court.

You ruled on the row between opposition stalwart John Ken Lukyamuzi and the IGG.  You ruled against the IGG, the office you had previously held….

[Smiles] You see the case was simple. It is just a principle that a person shouldn’t be an investigator, prosecutor and a judge, at the same time. Now in the Lukyamuzi case, the IGG had investigated and found that Lukyamuzi [then Lubaga South MP] had failed to declare his wealth and then the same IGG ruled that since he had failed to declare his wealth he had to be dismissed from parliament.

I don’t think that was justice. Justice shouldn’t be done; it should be seen to be done. After investigating you should forward the issue to the tribunal or judge. The accused also has a right to defend him or herself before the tribunal or a judge. I’m now happy that [after] my judgment the leadership code tribunal has been established. If the IGG investigates there is a tribunal to look into the matter. 

We had the so called rebel MPs who had been expelled from NRM and the party wanted them ejected from parliament.  You ruled against the NRM….

To me it was a straight forward matter. While members of parliament are elected after being nominated by political parties, the people who elect them elect them as individual candidates. You may stand as an NRM candidate but people who vote may have nothing to do with NRM.

So it would be betrayal of the people if you are removed from parliament just because the party has thrown you out. In parliament, MPs represent people who elect them and not necessarily political parties. If such a move is allowed it would create an absurd situation.

If an MP disagrees with his or her political party, then that means they would be thrown out of parliament. I think the correct position is that if a political party doesn’t like the views of a certain MP, then they wait for election time and choose a different person. This is my view.

It has nothing to do with me being a cadre or not. And the most interesting part was that after the judgment the people who had been expelled were welcomed back into the party. Can you imagine what would have happened if they had lost their seats in parliament.

In 2016, you ruled to dismiss former presidential candidate Amama Mbabazi’s petition challenging Museveni’s election. The common accusation is the Supreme court can’t rule against Museveni… 

It was an issue of evidence and the law. There was no way any court would have allowed that petition. Since the evidence presented to court was scanty, no reasonable court would have ruled in favour of the petitioner.

All the grounds presented in court weren’t supported by evidence presented in court. So anybody with modicum of knowledge of law would have found no other way apart from coming to the same conclusion like the court did.  

You even notice that the court leaned backwards and made recommendations which were accompanied by an order of enforcement. Because though we dismissed the petition we recognized our elections have issues and electoral reforms must be made. 

We are now in election time. Do you know whether the Attorney General has implemented the electoral reforms you recommended?

What I know is that the Attorney General has presented draft electoral amendments. I have not acquainted myself with the electoral amendments that have been drafted but I believe the reforms will include the recommendations made by the Supreme Court.

Back to the presidential petition. There is a strong belief that the Supreme court should go beyond evidence presented by the parties in court. That judges should be carrying out their own investigations instead of relying on litigants…

I don’t believe that. I know former Supreme court judge [Professor George Wilson Kanyeihamba] has been saying that. But considering the time we have to dispose of the petition, court doesn’t have time to do its own inquiry to establish the facts in one month.

It’s impossible. Secondly, you would expect a person who has petitioned to have done research and investigations by the time they come to court. Perhaps you can rely on grounds of failure to comply with electoral laws such that court has a basis to find out whether that is true or not.

What people forget is that we are operating in an adversarial system of justice where you have two parties: one presents the complaint and the other presents the defense. And the judge decides who is right and wrong. The same applies to electoral petitions and civil or criminal cases. The Supreme court isn’t a commission of inquiry. It’s a court of law.

In the Mababazi case, the Supreme court came under fire for writing just one judgment yet the judges were nine. In previous presidential petitions each judge on the panel wrote his or her own judgment…

That’s not true. Again the issue of time is very important. We didn’t have plenty of time for each one of us to write his or her own judgment. Secondly, there is a misconception that courts operate with multiplicity of judgments from each judge on the panel. A court makes a decision as a court not judges.

And when you have each and every judge writing his or her own judgment then sometimes you have to find out where the decision of the court lies. It’s interesting that some judgments might not be very clear not only on matters of substance but also on costs. All this is caused by multiplicity of judgments. 

I think it’s important that the mind of the court is easily ascertained. In each matter decided. Students of law should easily establish the ratio decidendi the legal basis or reasoning underlying a judicial decision or judgement.

Multiplicity of judgments makes ratio decidendi hard to establish. I would agree that if a judge isn’t in agreement with the majority decision then he or she is free to write a dissenting judgement. People forget that a judgement is discussed by all members of the court that have agreed. So a judge writing a judgment is not writing his or her own judgment but writing on behalf of the court because other judges have had input.   

It was suggested that the chief justice whipped the panel into writing one judgment    

[With a smile] The chief justice can’t do that. Everybody is free to write his or her own decision. Nobody can be ordered around by the chief justice to support a decision that he or she doesn’t support. And in any case, the chief justice doesn’t have such powers. 

Last year you upheld the decision to amend the constitution to remove presidential age limit caps. Those who wanted the amendments struck down argued that the military raid on parliament was enough to render the process a nullity.

Journalists are quick to arrive at conclusions without thoroughly investigating the matter. When the military raided parliament, the age limit issue hadn’t yet started. It was at the stage of reading the motion not the stage of reading the bill.

And what happened, happened. But eventually, the process started normally without any raucous. So the bill was called for the first reading and sent to the committee on legal and parliamentary affairs and it came back to the floor of parliament.

There was a certificate of financial implication presented and the majority voted in favour of the bill at the second reading. And remember during the committee stage some MPs included amendments in the bill. They extended the term of parliament and reinstated term limits for the president. 

All of that was done constitutionally and the Court of Appeal rightly struck down those additional amendments but matters such as lifting age limits which were done properly were saved. Some people were saying that since those particular amendments were in violation of the constitution then the whole bill should have been rendered a nullity- we didn’t agree with it. Under the law, the illegal parts can be severed and thrown out while the legal parts are kept and that’s what happened.

Don’t you think this amendment gave Museveni leeway to rule Uganda forever?

I do not. The issue wasn’t about Museveni as a person. The issue was whether Ugandans should be able to stand for president after attaining age 75. A person should be allowed to stand. I felt it was obvious to me that stopping a person just because he or she is 75 years old is unconstitutional since it would be discriminatory.

Just look at the US where presidential contestants such as Joe Biden and Bernie Sanders are over 75. What are you talking about? I think people make the mistake of personalizing this and concentrate just on President Museveni.

During submissions they [lawyers] didn’t talk about President Museveni. And we asked them if they worried about Uganda descending into chaos as a result of Museveni’s overstay in power and why they didn’t petition court when they lifted the term limits.

What was their response?

They said they weren’t ready, then.

Why do you think challenging the lifting of presidential term limits makes more sense than challenging age limits?

The constitution has prescribed two terms for each president taking into account the history of our country.  There hasn’t been a smooth handover from one president to another.

I was a member of the Uganda Constitutional Commission, which received views of the people in respect of the constitution, which was to be drafted. We received memoranda about how the constitution should be drafted. There was no single suggestion by Ugandans that a person aged 75 years shouldn’t stand to be elected as president. Not a single one.

However, the overwhelming number of memoranda including views collected from the population said there should be [presidential] term limits.

Fair enough. But the constitution also said that those below 35 years can’t stand for president…

That has been changed. But I still strongly believe that saying those who are below 35 years can’t stand for president is unconstitutional. I think we should let the people decide who they want to be president.

If somebody is old enough to vote, then he is old enough to stand for president. Just look at the President of Austria, I think he is below 35 years old. Even the Finnish president who was recently elected is about 33 years. Why don’t we let the people decide who should represent them instead of putting age limits?

You were a Judicial Service Commissioner representing the judiciary, since 2015. The Commission vets judicial nominees before forwarding names to President Museveni. But critics insist this process is shrouded in mystery…

The process is like this: The judiciary declares vacancies and the Judicial Service Commission advertises them through newspapers and calls for applications. Usually, a lot of applications are received. But there must be a shortlist.

For example, during the recently concluded process, 30 candidates were shortlisted for the Court of Appeal. We conducted interviews but remember for the Court of Appeal we had only three vacancies and we selected six out of the 30 and submitted them to the president. Now the constitution says in making appointments we shall factor in matters of religion, ethnicity or nationality.

Now the Judicial Service Commission has to strike a balance so that these appointments reflect the character of the country. And because of this, it can’t be said that appointments are based purely on merit. During the interviews, if the first one is from central, the second also from the central region and yet you want only five –you have to pick someone from the West, North, and the East.

Do you think we should copy the Kenyan model of conducting public interviews?     

I think it’s not proper. People have detractors who don’t want to see them advance. And permitting the public to participate would create a very dangerous situation for the integrity of the people being interviewed. And I have been informed that Kenya has since changed the method of selecting judges because people’s reputations were unnecessarily damaged.

Cases take a long time to be heard and by the time they get to the Supreme court, parties are either exhausted or they have even died.

We have been trying to tell authorities responsible for appointing judges that we need to appoint more judges to dispose of cases in a reasonable timeframe. Sixty judges for over 40 million people is nothing.

Ghana, which has around 27 million people has 150 High court judges and Ghana’s Court of Appeal has about 35 judges. Kenya next door has about 300 judges of the High court. Here in Uganda the numbers are so small.

The Court of Appeal has about 15 judges but you find that some are co-opted to commissions of inquiry or working with the East African court justice. Then you find that actually only 12 are at the workstation.

It’ not surprising that we have a very big case backlog of about 8,000 cases at the Court of Appeal. If commercial and land disputes are not disposed of or not settled in a reasonable timeframe that will undermine the development of this country. And criminal cases like murder are brought on by land disputes.

You have been at the Supreme court. Did you ever come across a judgment from the lower courts that has corruption written all over it? 

It’s difficult to tell if all errors found in a judgment were accentuated by poor appreciation of the law or by some extraneous factors. The line is so thin, so it’s hard to tell whether a judgment is influenced by corruption.

That would be so presumptuous. So you just stop at finding that errors were made and that court misdirected its mind to the law or the fact. But there are also issues outside of the judgment that can make us believe that perhaps there was corruption.

For example, if the case is heard ex parte (in the absence of the other party) and the other party isn’t given a chance to make its case then you can believe perhaps the judge was influenced by extraneous factors. But that doesn’t mean all ex parte rulings are corruptly obtained.

For the 10 years you have spent at the Supreme court what’s the most challenging case you handled?

The most challenging case was the MIFUMI case [Constitutional petition challenging payment of bride price]. As you know I wrote the lead judgment and as a person I don’t agree with the payment of bride price and I’m not alone.

But the Constitution gives the people of this country the right to practice their culture but at the same time the same Constitution provides for equality of people. And the Constitution prescribes against discrimination of people on the basis of gender, nationality, religion etc.

So a girl and a boy should be treated in the same way. So clearly there is a conflict between our culture and rights bestowed on the people in this country. We thought that abolishing bride price would be a radical way of taking away the people’s right to practice their culture.

However, we also recognized that a girl isn’t property to be sold by way of bride price. We, therefore, treated bride price as gifts given by the father of the boy to the parents of the girls and therefore once paid to the parents it cannot be refunded even after the married couple has separated. We thought that was a reasonable balance in the circumstances of this country.

Your final word….       

I have given my service with dedication. I’m happy I’m retiring having served this country for more than 45 years. Let the young people play their part so that there’s more development in this country.

I believe we have a growing economy and probably with time institutions such as the judiciary will get adequate resources including the appointment of the more judges and magistrates to dispense justice in accordance with the law  

dkiyonga@gmail.com

Comments

0 #1 Nasirumbimini 2020-01-22 16:33
"There was no way any court would have allowed that petition. Since the evidence presented to court was scanty, no reasonable court would have ruled in favour of the petitioner."

SECURITY THUGS WHO RAIDED MBABAZI'S LAWYERS' CHAMBERS AND STOLE ALL THE EVIDENCE DIRECTLY HELPED THE JUDGES TO DISMISS THE PETITION.
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0 #2 sula 2020-01-22 17:44
'And what happened, happened. But eventually, the process started normally without any raucous '' My God- so simplistic like that. Why do you people fool Ugandans ?

What happened , the soldiers invaded Parliament , to intimidate and force their partisan decision to the Parliamentarians.

Anyway thank you 'cadres' for destroying this country.
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+3 #3 Lysol 2020-01-22 21:57
Mbabazi was just a phony and not a real contender.

His legal lawsuit was meant to undercut Besigye and others.

That was why he even raided his own office and "stole the evidences" meant to back up his own case. Now we know that he back with his master.
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0 #4 Wooden K. 2020-01-23 17:01
Angandi Justice Tumwesigye !

Its absurd for you to say that stopping someone to run for the presidency because of their age is unconstitutional.

If it was , why did it have to take 20 years to realize that ? Where were you when they put these things in the constitution ?

Are you saying that to force you to retire as a Judge because of your age is also unconstitutional ?

Even if the argument to remove age and term limits had a valid basis , isn`t stupid to change / ammend rules ( laws) if the sponsor is the most likely benefiary

How stupid do you people think we are ?
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0 #5 Edward Mukyanda 2020-01-23 17:21
Honourable Justices, tou will continue making judgements that erode your credibility.

Cases of utmost public interest will require to almost be taken like a judicial inquiry if the judiciary is to maintain public confidence
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0 #6 Kirya 2020-01-24 01:35
The name tells the whole story. The se are the people who have let down their country as they think in tribal terms with little concerned about the well being of the country.

They look at the country as it goes down as a good thing so longer as it is ruled by the bushmen.

They do not care about the 60% unemployment the lack of hospital services and the roads that are death traps!They live in denial! See but do not see!
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