Supreme Court Justice Kisaakye retires early after controversy

Kampala, Uganda | THE INDEPENDENT | Supreme Court Lady Justice Dr Esther Kitimbo Kisaakye has decided to retire early from the Judiciary.  The details of her retirement decision are communicated in a letter written to President Yoweri Kaguta Museveni dated July 18th 2023.

“Article 144 (1) of the Constitution of Uganda permits a Judicial Officer to retire at any time after attaining the age of sixty years. I am now aged 63 years . In accordance with the said article, I hereby tender in my early retirement from the Supreme Court,” reads the letter.

According to the letter, Kisaakye says that Museveni appointed her to serve as a Justice of the Supreme Court on October 12th, 2009 and by the time she wrote this letter, she had served in the Supreme Court for 13 years and ten months.

It adds that, “I thank you and the people of Uganda for having give me the opportunity to serve my country as a Justice of the Supreme Court.”

The letter is copied to the Chief Justice, Chairperson Judicial Service Commission, Permanent Secretary/Secretary to Judiciary and her alternative contact person David Musoke and lawyer Peter Walubiri from KBW Advocates.

According to multiple sources who feared to be named over the sensitivity of this issue, they believe Kisaakye has retired herself early because of the frustration from the Judiciary top management. Supreme Court Justices in Uganda retire after attaining the age of 70.

In 2022, in a rare circumstance Kisaakye sued top administrators of the Judiciary including the Chief Justice Owiny-Dollo, Permanent Secretary Pius Bigirimana, Chief Registrar Sarah Langa,  Commissioner Human Resource Apophia Tumwine and the Judicial Service Commission.

Justice Kisaakye sued the said people together with the Attorney General in the Constitutional Court seeking 24 orders among dozens of other declarations so that a record showing that she has been away without official leave be quashed and be assigned duties, and reinstated as the administrative head of the Supreme Court.

In her petition, Kisaakye said that effective March 18, 2021, from the Presidential Election Petition filed by Robert Kyagulanyi Ssentamu against President Museveni, the respondents have jointly and severally engaged in acts that are inconsistent with the constitution.

They include the confiscation of her file by Owiny-Dollo before she could read her decision arising from that presidential petition, the closure of the Supreme Court on the orders of the Chief Justice and Government on March 19, 2021, the issuance of a deceitful and defamatory press statement and denial of funds for medical treatment.

These include among others their failure to recognize and or follow seniority at the Supreme Court, secretive investigations against her disguised as a general inquiry, denial of leave, refusal by the Chief Justice to allocate her work, and refusal to reinstate her research Assistant, withholding the allowances of her driver and bodyguards, denial of a letter of undertaking to her bankers and her subsequent removal from the judiciary and government payroll.

After filing the case, the Registrar of the Constitutional Court summoned the respondents and gave them seven days within which to respond to the petition or else the Court was to go ahead and hear the case without them.

Consequently, the Attorney General filed a response  which was accompanied by an affidavit of the Chief Justice Owiny-Dollo and the Registrar of the Judicial Service Commission Julius Mwebembezi.

In his affidavit, Owiny-Dollo argued Kisaakye’s petition is incompetent, misconceived, bad in law, frivolous, vexatious without merit and an abuse of Court process..

This the respondents say is because the petition does not raise any questions for constitutional interpretation and that the allegations raised therein are a subject of an inquiry being conducted by the JSC and it seeks to preempt and frustrate it.

“The respondents shall contend that the scheduled date for delivery of the reasoned ruling of the Supreme Court in the Election Petition was 18th March 2021. The respondents shall further contend that the petitioner was not ready with her ruling for delivery on the day scheduled by the Court”, reads the response.

It adds: “The respondents shall contend that the Supreme Court, as a collegial court sits as a panel in Presidential Election Petitions. All decisions of the Court including dissenting decisions are made and delivered when the Court is sitting as a panel.”

According to Owiny’ Dollo’s affidavit sworn before  the Commissioner of Oaths  George Omunyokol,  the Chief Justice  together with other members of the panel were categorical that they would return to court only when Kisaakye shares her draft ruling prior to its delivery as is the norm and practice. But she reportedly insisted that she would deliver her rulings whether or not the other members of the panel accompanied her.

Owiny-Dollo says he proposed Kisaakye’s ruling to be delivered on March 22nd or 23rd, 2021 and informed the Attorney General that they were to be informed of the day accordingly but she insisted.

“I then instructed the Registrar of the Court through the clerk that all the files for members of the panel be brought to the boardroom where all of us except the Petitioner were assembled. The files were all brought to the boardroom and while other members of the panel took charge of the Court files allocated to them and were preparing to depart from the boardroom, leaving the Court file for the petitioner on the table, I instructed the clerk to take the file to my chambers since it had reasons for her rulings that should not leak out before delivery,” reads Owiny-Dollo’s affidavit.

According to Owiny-Dollo, Kisaakye insisted and stormed out of the Supreme Court building and addressed a press conference that day and even a day after and because of this, he decided to refer the matter to the JSC and the process is now in advanced stage.

“I have never confiscated, taken possession of or kept any file belonging to the Petitioner. What I have lawfully kept in my chambers to date is a court file that was allocated to the petitioner as a member of the panel. Files allocated to judicial officers remain property of the Court. I had kept this file and continue to do so to stem a gross abuse of the due process by the petitioner for the reasons set out in the referral made go the 5th respondent/JSC and annexed go the Petitioner’s  adds Owiny-Dollo.

According to the respondents, generally, Kisaakye’s pleadings are ambiguous, susceptible to various meanings, confusing, irrelevant and therefore an embarrassment to the respondents.

The response covered in more than 150 pages adds that it not the mandate of the Chief Justice to approve or provide funds for medical treatment but only to grant permission to travel abroad.

“The respondents shall further contend that the administration of the Supreme Court is the preserve of the Chief Justice and there is no Constitutional entitlement of any Justice of the Supreme Court to appointment as administrator of the Court. The respondents shall contend that the decision on appointment or removal of an administrator is administrative and there is no question for constitutional interpretation,” reads the Attorney General’s joint response.

The records before Court accompanied with dozens of correspondences between the parties in court show that during the hearing, Kisaakye will be put on strict proof to prove her allegations and that she was never authorized or permitted to go on leave but according to Owiny-Dollo, she absconded from court thereby excluding herself from its operations.

“The 6th respondent/Attorney General  further contend that all the averments and actions of the petitioner are consistent with her guilt of wrong doing including among others abscondment from duty without authorization from her supervisor”, adds the response.

According to all the respondents, Kisaakye is therefore not entitled to the reliefs she sought and instead she made a disguised attempt to circumvent the constitutional process being conducted by JSC.

They asked the Constitutional Court to dismiss the petition saying it’s a disguised attempt to frustrate an on-going inquiry into her conduct and abscondment from duty

Although the case is lying idle in the Constitutional Court, several members of  Uganda Law Society advised that the Chief Justice and Kisaakye sort out their grievances through mediation and therefore not in court.

In a July 2022 letter , the Judiciary Permanent Secretary Bigirimana accused Kisaakye of having been  been Away Without Official Leave (AWOL) although she continued to receive salary.

“It has been brought to my attention that since September 2021 when you returned from you medical leaves, you have NEVER reported to work nor sought leave grant from your supervisor. This is a serious matter which I as accounting officer, has picked interest,” read the letter.

In the same letter, Bigirimana asked Kisaakye  to show cause as to why he should not recover nine months’ salary that has been paid to her despite her not showing up for work.

Following Bigirimana’s letter, Kisaakye retaliated in an open letter that she has studied and practised law for a long time and as such can’t be schooled in matters regarding her rights to annual leave and salary.

She previously expressed interest to be the Chief Justice of Uganda following the retirement of the Chief Justice Emeritus Bert Katureebe who was replaced by Owiny-Dollo. And like  it was previously that the appointing authority usually chose the most Senior Judge in the Supreme Court to be the Chief Justice, when Katureebe retired, Museveni didn’t follow his previous precedents.

Instead, he picked the then Deputy Chief Justice Owiny-Dollo from the lower Court, the Court of Appeal/Constitutional Court and elevated him to the Supreme Court and appointed him as the Chief Justice .  This , some sources say could have also angered the learned Supreme Court Justice who has chose to retire seven years earlier.

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