Saturday, March 29, 2014

A Commentary on the Re-appointment of the Chief Justice Emeritus of Uganda

This brief opinion is in response to the legal opinion by the Attorney General of Uganda, Peter Nyombi which supported the re-appointment of the erstwhile Chief Justice of Uganda Benjamin Odoki. 

In arriving at this opinion, I am guided by an earlier ruling of the Constitutional Court in Sam Kuteesa & 2 Others Vs Attorney General CONSTITUTIONAL PETITION NO.46 OF 2011 Constitutional Reference No. 54 O f 2011, when it held that ''the Constitution must be interpreted broadly, liberally and purposively. The entire constitution has to be read as an integral whole with its letter and spirit, as the supreme law, being respected. (Minister of Home Affairs (Bermuda) Vs Fisher [1980] AC 319). The Constitutional Court in Kuteesa also held that ''The principle of harmonization goes hand in hand with the broad approach to interpreting the Constitution. Where there are several articles that conflict with each other in the same constitution, it is the duty of the court to give effect to the whole constitution by harmonizing its provisions.'' ( Cited in TINYEFUNZA VS. THE ATTORNEY GENERAL: CONSTITUTIONAL APPEAL NO.1 OF 1997)

Therefore, in interpreting the Constitution, one should take heed to read the Constitution in its entirety; that is, all the Articles, the Preamble as well as the National Objectives and Directive Principles of State Policy. Further, interpreting the Constitution requires one to take cognizance of the requirement for the said interpretation to be in conformity with law, values, norms and aspirations of the people. Once that is done, it is difficult to concur that the intention of the framers of the Constitution envisaged - as the AG opines- that a person who has VACATED the position of Chief Justice or any other Judicial position (by reason of having reached the mandatory age for retirement), would be recalled from retirement and reappointed - first as an ''Acting'' Justice of the Supreme Court and consequently ''appointed'' either as an Acting or Substantive Chief Justice. Such a finding would defeat both the explicit wording of the Constitution as well as its spirit and purpose. 

Article 144 (1)  of the 1995  Constitution says that a judicial officer ....SHALL vacate his or her office .... in the case of the Chief Justice, the Deputy Chief Justice, a justice of the Supreme Court and a justice of Appeal, on attaining the age of seventy years. Further, whereas Article 253 provides for the re-appointment of any person who has vacated an office established by this Constitution, that person can only be re-appointed or elected to hold that office, IF QUALIFIED, and IN ACCORDANCE WITH THE PROVISIONS OF THIS CONSTITUTION (Emphasis mine). Article 253 therefore requires that ALL the provisions of the Constitution are complied with and not just the one which is cited by the Attorney General. 

So, when the Attorney General suggests that ''the retirement age of seventy years is not the qualification referred to in clause (2) of Article 142 because it is DISCARDED (emphasis mine) under the above-mentioned clause.'' How can one Article of the Constitution DISCARD another? Is that in line with the harmonization principle? Is that what the framers of the Constitution intended? If yes, i beg to differ. Indeed i strongly disagree that that could be the right interpretation of the law. I believe that the correct interpretation of the Constitution is that the qualifications under Article 143 must be read in harmony with the DIS-qualifications under Article 144. There is no way in which a retired judge, who vacated office  by reason of age, can be reappointed into a substantive or acting appointment  in ‘‘accordance with the provisions of the Constitution.’’ In other words, for an ‘acting’ position to become the linchpin for a substantive or other acting position is untenable.  

The right interpretation should be, as my learned friend Sarah Kihika asserts, that the Constitution does not envisage a Supreme Court Justice acting as Chief Justice in the same way that it does not envisage an Acting Deputy Chief Justice serving as an Acting Chief Justice. This is because Article 133 of the Constitution clearly stipulates that where the office of the Chief Justice is vacant or for some reason the substantive Chief Justice cannot perform the functions of his or her office, those functions can only be performed by a Deputy Chief Justice until a substantive appointment is made. 

It is therefore incorrect to suggest that Article 253 does away with Article 144. That could not have been the intention of the framers of this Constitution. Such an opinion runs foul of the harmonization principle that is expounded in US Supreme Court in SOUTH DAKOTA VS NORTH CAROLINA 192 V 268 [1940], to wit; “ the entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.” When one reads the Constitution in its totality, one is UNABLE to come to the same opinion as that of the Attorney General . Neither can one agree with the advice of the Attorney General to the effect that the aforementioned proposed re-appointment should be ''harmonised'' in a meeting of the President with the entire Judicial Service Commission. My understanding of the role of the Judicial Service Commission is that it recommends candidates to the President for appointment as judicial officers and not vice-versa.

That is the law - as i understand it - that bars Chief Justice Emeritus Odoki from being reappointed. 

The Feather


The feather is swayed against the strength of the gale. Swept to and fro. As a single entity it exists but isn’t strong enough to resist the up , the down , the sideways

Sometimes it manages a moment’s rest on the ground only to be swooped up again like the dry leaves - high up - away

In my dreams, the winds blow – they draw me closer like the moths are drawn to the beauty of the perilous tongues of orange, yellow and red. Fire

The dancing fire tantalizes like the eyes of the anaconda. The unsuspecting prey star struck by the fireworks on Guy Fawkes night - the dark prowler creeps closer, talons out

She delightfully disturbs my dreams i must confess. This lady of my delight. I see smooth skin, shapely thighs and inviting breasts. I see no face. Fire. Prawler. Dark skinned anaconda? This lady of my insight

In my dreams i run but cannot climb. I leap but the talons of the dark bird swoop down. I melt in the waters of the swamp . Even then, she is there . Fire. Prawler. Anaconda. Barely touching sometimes stroking. I draw nearer the further i get away

The feather swooning. The fire flicking. This dream. I must awake


The Headmaster

He was tall. Yet he was short. Quite tall. At that time it didn’t matter to me. I was way too short and too young to know.  Yet he was tall. His spectacles were tall. His piercing eyes were tall. His bald head was tall. His pipe – oh yes his pipe was tall.  He had a way he looked deeply at you above the rims of his spectacles. His pipe – a symbol of prestige and authority- would then momentarily leave his mouth as he spoke directly to you, only to be restored back to its throne – surrounded by rather plump cheeks- to accomplish the ever present side grin on his face. 

He was smart. Always quite smartly dressed. Necktie, coat and well pressed trousers. Well polished shoes. Did he walk with a hardly noticeable hunch? As though his bald head, full of intelligence, bore heavily on his shoulders? My respect he earned automatically with is bald head – yes, like my Dad’s. His height, his dress, his head all fitted the bill. Yet he was The Headmaster -

A great Headmaster he was – A great headmaster he will ever be. Eloquent, respectful, respected. Master of the English language. I can’t imagine he ever asked us what DHL was in full. D.H.L? I had to ask my Dad to do some research in those days without Google. Yet I digress.  Oh how I envied those who escorted The HEADMASTER down the amphitheater on Friday for the weekly assembly. A Scout walked ahead, followed by the Headmaster, the head girl and head boy at his side. Following closely behind were three or four other scouts guarding the esteemed leaders right from his office to the waiting gathering of murmuring students. I recall waiting to escort the Headmaster one such Friday. The excitement of being near this great man was immense. Dressed in khaki scouts uniform, complete with a rope and knife, I waited anxiously with my tiny colleagues who could hardly hurt a fly. Yet we stood ‘tall’ and proud. Quite an impression it left on a young man like me. Who do our kids look up to these days? I digress again. The Scout leader would then walk ahead of the Headmaster down to the stage of the amphitheater. Did the rest of the school stand as they approached? I forget. ‘’Scouts salute!!’’ The shrilly prepubescent voice would scream upon reaching the stage. Then the anthems would begin. The Uganda National Anthem and the School Anthem: ‘‘There is a School near the museum by the roadside; no school is so dear to your child… Kitante is the best in the world…..’’

The Headmaster made us love that School. We felt that ours was indeed the best in the world. Indeed it was. (Some of my old schoolmates might not hesitate to add that it was even visited by the Queen of England during the Commonwealth Heads of Government Meeting in 2007 ). There was no other for our younger siblings and for our children.  Even as we take our kids to other schools, we wish Kitante had the glory it enjoyed then. It’s a sign of the times I guess. Once again I digress.  The Friday Assemblies had entertainment from one class, news read by some higher school pupils ( I once enjoyed this rare privilege), announcement of the cleanest pupils of the week, a thought of the week by one of the teachers ( including one who had been so damaged by alcohol that he shook all through the time he spoke). Finally, the headmaster would rise to speak. The murmuring would stop. The boy scouts scuffling to attention. ‘‘Good afternoon School…’’ he would begin …. We listened intently to advice and caution, to inspiration and encouragement. At one point he admonished a lower class for not performing well and asked them to pull up their socks… and they literally did – drawing quite a bit of laughter from those who deciphered the saying.

The HEADMASTER is now dead. Long live The HEADMASTER.

Rest in Peace Mr. Augustine Dymocke Ssozi (1933-2014). You inspired too many. 

You have left us a tall order. To inspire as you did. To leave a long-lasting legacy.

Proud ‘product’ of Kitante Primary School, Class of 1989