Supreme court has an Owiny-Dollo problem

At the launch of the Judiciary Annual Performance Report for financial year (FY) 2022/2023 last month, the Chief Justice Alfonse Chigamoy Owiny-Dollo deftly used statistics to conceal his responsibility for yet another scandal.

Triumphantly, he opened his big speech with a big splash: “Over the last three financial years, the judiciary received an increment in its budget allocation from Shs 199bn for FY 2020/2021 to Shs 376.9bn for FY 2021/2022 and to Shs 383.2bn for FY 2022/2023.”

As accountability for all this dough, the 67-year-old head of the judiciary explained that “In line with our transformation agenda, and supported by the increase in funding, the judiciary was able to enhance on its human resource capacity...Key among the recruitments were the three justices of the Supreme court: Christopher Madrama Izama, Elizabeth Musoke and Stephen Musota.”

Doubling down on statistics, Owiny-Dollo chest-thumped that he currently had 649 judicial officers “all strategically deployed” and “the judicial officer-to-population ratio has therefore improved to 1:70,203 in 2023 from 1:81,724 in 2022 and 1:114,362 in 2020.”

CASE DISPOSAL NATIONALLY

Flashing five tables and a bar graph across a network of big screens, the former politician from Agago claimed an improvement in the speed of disposal of cases: “a disposal rate of 63.01% in FY 2022/2023 was achieved as compared to 55% in FY 2021/2022 and 49% in FY 2020/2021.”

“The average time taken (in days) from filing to disposal of a case has reduced...by three weeks in FY 2022/2023 as opposed to previous years. Because of this good performance, the percentage of court users rating confidence in courts has increased from 61% to 71%, according to a survey done by Avocats Sans Frontieres, 2023.”

Unfortunately, for the users of the Supreme court, these national statistics are not true.

CASE DISPOSAL BY THE SUPREME COURT

During FY 2022/2023, the nine- member Supreme court completed only 62 cases out of a total caseload of 757, of which 614 had been brought forward from FY 2021/2022. This means that while the national disposal rate was 63.01 per cent, the top court lagged at 8.19%.

In a section breaking down the vaunted statistics by ‘case type’ – criminal, civil, land, commercial, family, anti-corruption and international crimes, the chief justice scandalously omitted the most consequential category: constitutional cases. This was not an innocent error. Over the last three financial years, the Supreme court has not completed a single constitutional case.

THE ERASURE OF CONSTITUTIONAL CASES

A constitutional case raises questions about the interpretation of the Constitution, the supreme law of Uganda. Typically, it starts as a petition or reference in the Constitutional court, where five justices of the Court of Appeal have the power to grant various remedies and can declare legislation and other acts of the government invalid.

The party dissatisfied with their decision may then file an appeal to the Supreme court, where seven justices of the apex court have the power to confirm, reverse or vary the decision of the Constitutional court.

For instance, in two well-known petitions—one brought in 2016 by the former Nakawa division MP Michael Kabaziguruka and the other in 2015 by more than 100 people led by Capt (rtd) Amon Byarugaba, Hasibu Kasiita and Mathias Rugira—questioning whether the Constitution allowed the prosecution of civilians before the Court Martial, the Constitutional court found, in July, 2021 and December, 2022 respectively, that there was no such power for the military within the provisions of the Constitution.

It ordered all such proceedings to be stopped forthwith. The government responded with its usual strategy. The Attorney General (AG) instantly appealed and obtained, from a five- judge bench of the Supreme court, a ‘temporary suspension’ of this game- changing decision pending the hearing of the government’s appeal by the full court (a seven-judge bench).

However, a full court hearing of a constitutional appeal lately comes once in a blue moon. Consequently, many hundreds of civilians continue to be court- martialed and imprisoned in dubious circumstances because Owiny-Dollo has erased the timely completion of constitutional cases from the judiciary’s priorities.

‘THE BUCK STOPS HERE’

According to rule 20 of the Supreme court rules, ‘the sittings of the court and the matters to be disposed of at those sittings shall be determined by the chief justice.’

Currently, there is a backlog of more than 25 constitutional appeals at the Supreme court, with no indication of a solution from Owiny-Dollo, who is famed for scapegoating, globetrotting, ribbon-cutting and nonjudicial speechifying at the taxpayers’ expense.

Whereas it may be argued that the vagaries of death, illness, absenteeism, resignation or bias have hitherto prevented Owiny-Dollo’s court from clearing constitutional cases in a timely manner, the buck certainly stops with the chief justice for his failure to call upon the president to appoint an acting justice of the Supreme court under article 142(2) of the Constitution.

In a bid to solve the staffing gap in the High court, 27 acting judges were appointed to it under that article over the past two financial years. Why wasn’t the same done to solve any quorum challenge that bedevilled the top court’s constitutional sessions?

A LONG TRADITION OF ACTING JUSTICES

During his 13-year tenure as chief justice, Benjamin Odoki’s Supreme court (2001-2013) was chronically understaffed due to the meagre funding of the judiciary in those days.

To ensure that constitutional cases were completed as frequently as civil and criminal cases (which require a lesser quorum of five each), Odoki routinized the appointment of acting justices from among members of the lower courts. In FY 2003/2004, acting justice Constance Byamugisha from the Court of Appeal joined the apex court in a historic session that clarified the principles for invalidating legislation through constitutional cases such as Paul Kawanga Ssemogerere v AG, and Charles Onyango-Obbo v AG.

In FY 2008/2009, acting justices Steven George Engwau, Byamugisha and Christine Kitumba from the Court of Appeal, and Fredrick Egonda-Ntende from the High court, joined the apex court in cases that delivered an invaluable compilation of constitutional principles, including Brig Henry Tumukunde v AG (independence of parliament), AG v Wilson Masalu Musene (independence of the judiciary), and AG v Susan Kigula & 417 others (death penalty and sentencing principles).

In FY 2009/2010, acting justice Alice Mpagi-Bahigeine from the Court of Appeal joined the apex court in the landmark case of John Ken Lukyamuzi v AG, which trimmed the powers of the ombudsman (IGG).

In FY 2013/2014, Odoki and three other Supreme court colleagues, John Wilson Tsekooko, Galdino Okello and Kitumba, clocked retirement age around the same time, yet their replacements could not be recruited quickly enough due to funding shortages.

Consequently, article 142(2) was invoked and the quartet stayed on as acting justices for a two-year period. In FY 2014/2015, the quartet saved the political careers of the inaugural KCCA Lord Mayor Erias Lukwago, who had been impeached from City hall, and the so-called NRM rebel MPs, who had been expelled by the ruling party from the ninth parliament.

It also helped the then newly-minted chief justice Bart Katureebe to clear a backlog of other constitutional cases, including the maternal healthcare petition (CEHURD v Attorney General). Against this background, what possible explanation does Owiny-Dollo have for deleting constitutional cases from the Supreme court’s calendar over the last three financial years?

The author is the CEO, Legal Brains Trust, a Kampala-based democracy and human rights watchdog