Constitutional court judges Frederick Egonda Ntende, Kenneth Kakuru and Elizabeth Musoke last Thursday annulled all interim orders previously handed down by deputy Chief Justice and Head of the court, Steven Kavuma.
As DERRICK KIYONGA reports, many legal minds feel the ruling was meant to loosen Justice Kavuma’s tight and increasingly unilateral grip on the court.
Since Justice Kavuma took over leadership of the Court of Appeal / Constitutional court, in 2013, he has unliterary issued many controversial interim orders arising from constitutional petitions. This, according to people familiar with the court, soiled the court’s image and angered many of its judges.
Justice Ntende, who led the panel that annulled the interim orders, has previously criticised the way cases are allocated and determined at the court. For instance, during the 2016 annual judges’ conference at Imperial Resort Munyonyo, Justice Ntende said much as he was a Constitutional court insider, he didn’t know the criteria used at the court to decide which case is heard first. Though Justice Kavuma was listening, he said nothing.
Even during a November 2016 meeting of High court judges organized ostensibly to strategize on how to eliminate the huge case backlog, Justice Ntende described the Constitutional court interim orders, mostly by Justice Kavuma, as “idiotic.”
Justice Ntende’s rebuke was in response to complaints from High court judges who said the controversial Constitutional court interim orders were contributing to the huge case backlog in their courts.
Interviewed at the weekend, Peter Walubiri, a constitutional law expert, said last Thursday’s ruling by the three justices was meant to get back at their boss, Justice Kavuma.
“I know the judges are trying to redeem the image of that court which has been battered as a result of Justice Kavuma’s orders,” Walubiri said, adding: “The ruling, when read carefully, shows the symptoms of discord between Justice Kavuma and other judges. There is no harmony at that court and probably the judges used the ruling to send a message.”
Human rights lawyer Ladislaus Rwakafuuzi said on Friday that lawyers normally respect judges regardless of how they rule.
“But the problem with Kavuma, nobody respects him even if he genuinely rules in your favour,” he said.
According to judicial officials who declined to be named, the disharmony at the Constitutional court became louder last year, when Justice Kavuma decided to hang on to all parliamentary election appeals, ostensibly to go through them – causing significant delays. That, according to some officials, is the reason so few judgments have been delivered, so far.
“The judges were angry and some decided to abandon work altogether,” a source told The Observer.
Chief Justice Bart Katureebe reportedly had to intervene. Sources said, Justice Katureebe hurriedly went to the Constitutional court at Nakasero and personally supervised the constitution of the three-judge panels that would hear the election petition appeals.
Interviewed on Friday, Justice Kakuru, part of the panel against interim orders, said more needed to be done: “There can be challenges like any other institution, which I think we shall manage like you people in the media manage your news,” Kakuru said.
But in a recent interview with The Observer, Justice Remmy Kasule said work at the court demands a lot of teamwork. Asked whether they work as a team at the Constitutional court, Kasule said: “Of course it’s not good when one person is determining who is hearing cases but we are dealing with it through a committee which is looking at the rules.”
Contacted by telephone at the weekend, Kavuma declined an interview, curtly saying: “no comment”.
For his part, retired Supreme court judge George Wilson Kanyeihamba said the ruling was only possible because of the independence of “serious judges” like Ntende and Kakuru.
ERRONEOUS RULING
In their unanimous ruling, which also affects all interim orders that are still being enforced, the three judges declared that all the interim orders were issued by the court contrary to provisions of Article 137 (2) of the Constitution. The article requires that applications for interim orders in the Constitutional court be heard and decided by a full coram (panel) of five judges, not one judge as has been the practice.
“All interim orders issued by a single justice of the Constitutional court which are still in force are null and void and of no effect,” Justice Kakuru said.
“Any interim or substantive orders of the injunction issued by a coram of three justices of the Constitutional court which are still in force are null and void and of no effect,” he added.
Although the ruling has been widely celebrated, some lawyers say it is flawed and could be overturned if the the attorney general and the inspector general of government (IGG) appeal.
“In the first place, an order in one court cannot be used to affect cases in a different court which are of different facts and circumstances. That ruling will be challenged,” said Joseph Matsiko, the managing partner of Kampala Associated Advocates.
Elison Karuhanga of Karuhanga and Kasajja advocates, said: “The judges were wrong because their ruling affects other parties who never appeared before them. This violates a right to fair hearing.”
Walubiri said it would be very hard currently for a lawyer to get a panel of five judges of the Constitutional court, more so, when he needs interim reliefs, which according to him, means that people’s rights will be violated.
“That court should up its game if we are to go by this ruling because now five judges must be available even in interlocutory [provisional] applications,” Walubiri offered. “But the spirit of the ruling is the evidence of a sick court and the sick society in which it operates.”
Rwakafuuzi also described the ruling as “erroneous” in the sense that court was not fully constituted: “These judges are saying the panel should always be of five in all constitutional matters which is fine; but the problem is that they themselves were only three. So, they are also making the ruling illegally.”
The people who lodged the application that resulted in Thursday’s ruling, include Shafik Mourisho, Godfrey Kironde, Abedi Sowale, Sam Male, Edward Nnune and Moses Kalangwa Kalisa. In their main petition, they challenged their prosecution by the IGG as unconstitutional.
dkiyonga@observer.ug