Museveni lawyer reacts on Kasango case ruling

Judicial avoidance 

In a Zoom conference held on March 30 discussing the lessons and constitutional implications of the successful petition, lawyer Isaac Semakadde of Legal Brains Trust, who has made a name in public interest litigation, said “Judges must take the judicial oath seriously and stop moonlighting.”

He urged judges to always put judgments in plain English and contextualize them for ordinary Ugandans arguing that the Kasango ruling was similar to the one issued on the IGG’s powers in 2010.

Semakadde said, therefore, there is nothing “new or groundbreaking” about the rulings since it was based on another ruling by the same court. In that case, the prosecutorial powers of then Inspector General of Government (IGG), Justice Faith Mwondha were challenged in Constitutional petition No. 10 of 2008 Jim Muhwezi & 3 Others V. Attorney General & Anor.

Semakadde said having a second judgment made on the same issue without the first ruling being acted on demonstrated the contempt of court by President Museveni who unconstitutionally appoints the judges to executive positions.

“There’s nothing new in it except the same old song that we are subjects not citizens in a dysfunctional democracy,” Semakadde said, “It is a mirror for the state of rule in this country.”

In an impassioned presentation, Semakadde took a swipe at the Attorney General and the entire judicial fraternity for their failure to act in accordance with the law and respect to judicial norms.

“How much respect does the office of the Attorney General have for the rule of law? There are also implications for those in the Justice Law and Order Sector (JLOS) who teach the law,” he said.

Semakadde went ahead and issued an even more damning indictment for the court that handed down the judgment. “The constitutional court is guilty of judicial avoidance. This petition was filed in 2016 and now it is 2021 and now the petitioner is dead. It is of no sequence to him.”

He said the court had set forth important constitutional norms and provided lessons on judicial ethics. “Why would you want to carry water for the President? These judges are moonlighting.”

“It brings to shame the Judicial Service Commission, the judiciary, individual judges, Public Service Commission and the Appointments committee of parliament,” he added.

He added that Uganda Law Society and individual lawyers are also indicted by the ruling. “Even for Kasango, it was not until the system came for him, that he realised this.”

But Kiryowa Kiwanuka who is President Museveni’s personal lawyer and the other discussant of the court decision on the conference said the concept of separation of powers that the Constitutional Court based its ruling on is not provided for in the constitution.

“It is a concept we just have,” he said.

Kiwanuka said the principle of separation of powers is a “romanticised” view of things. Kiwanuka said there is a relationship among the three arms of government. “It is why ministers can be MPs.”

Referring to the principle as an eighteenth century concept, he said it was a way in which the political authority of the state was always divided.

“It is quite difficult to draw a line,” he said, “the separation of powers was meant to limit the branches of government but not to stop them. There is no single democracy which exists with an absolute separation of powers.”

He asked whether the court will now require every judge who is appointed in a position anywhere outside of the judiciary to resign.

“If a judge is appointed to the Uganda Human Rights Commission, must they first resign as a judge?

He also argued that the court should have given interpretation on some articles of the constitution. “In Article 252, what amounts to a resignation from a public office?

He added: “Without court interpreting for us Article 120 (which creates the DPP), it leaves a lot of doubt.”

Using the analogy of a tree with three branches, Kiwanuka said the principle is encapsulated by the constitution. He said it is rooted in Article 1 of the constitution which says power belongs to the people and then after the constitution branches out to specify functions of other arms of government.