Senior State Attorney in the Attorney General’s office Kadoli Wanyama, acting on behalf of disgraced Attorney General has initiated an appeal process against the majority of Constitutional Court Judgment that rejected the re-appointment of Justice Benjamin Odoki, now also disgraced, as Chief Justice of Uganda.The case of Justice Benjamin Odoki’s reappointment at the age past 70 years as Chief Justice – even though intended to maximize on his capabilities, is unconstitutional and immoral. There are capable brains in Ugandan legal fraternity that are capable of becoming CJ and able to execute that job with excellence. It is only natural to nurture new talent while honoring those who have served diligently. Museweri should appoint Benjamin Odoki an Ambassador to Tripoli or Gaza if he so badly wants to maximize on Odoki’s residual capabilities.
There are two obvious issues as articulated by the Constitutional Court judgment. First, that there is no provision for reappointing someone who has already served as CJ to the maximum term limited by age of 70yrs as corroborated by respective provisions 130, 133, 142 (1), 142 (3), 143 (1) , 144 (1) (a), 147 (1) (a), 147 (2) of the Odoki’s Constitution. Second, in my lay opinion, the reappointment could have been reasonably acceptable if Justice Odoki had not clocked the age of 70 man years based on Art 253 (1).
Lillian Tibatemwa (Lead judgement): “…The advice of the JSC is a prerequisite for the appointment of a Chief Justice and an appointment done without the advice from Judicial Service Commission is in contravention of articles; 142 (1), 147 (1) (a) 147 (2) (3) (a) and 253.”
Solomy Balungi Bossa: “It becomes crystal clear that one of the conditions that a nominee for the appointment of re-appointment of the Chief Justice must fulfill is that he/she should not be above 70 years, a mandatory age for retirement stipulated under Article 144 (1) (a). Therefore, there would be no legal basis for which to make the re-appointment and doing so would violate the spirit of the Constitution [embedded in]Articles 143, 144 and 253.”
Eldad Mwangusya: “It’s also my view that the framers of the constitution would not have intended that all the appointments of judicial officers including the acting appointments would be made under Article 142 and that of the Chief Justice would be made outside this provision. My conclusion would be that a retired Chief Justice is not eligible for the reappointment under article 253… The advice of the judicial service commission is a prerequisite. There is no doubt that the final authority in appointment of Chief Justice is the President. The President and even Parliament may not be bound by the advice of the JSC on the suitability of a particular candidate. But where like in this case the JSC [Judicial Service Commission] advised against the appointment of a particular candidate, that advice should have been heeded to.”
The Article 253 (1) provides that where any person has vacated an office established by the Constitution, that person may, if qualified again be appointed or elected to hold that office in accordance with the provision of the Constitution (See Chapter 17 on page 114). This is also likely to be the basis of the appeal by State Attorney Kadoli Wanyama. But this claim can fall flat on its face because Benjamin Odoki is disqualified naturally by age – he is over the age of 70. Therefore, even if he may be qualified to all extent, his rather advanced age disadvantages him naturally. I believe that if Odoki were under the age of 70, his reappointment would be in order and consistent with Art 253 (1).
However, is it normal for a man who chaired the drafting of the constitution to be hanging on to a reappointment which is controversial and that which threatens the integrity of the very constitution which he helped nurture? Do we Ugandans still have decorum or conscience? Let them also remove the age limit because that is what Museweri is using the Odoki case to scheme for Constitutional amendment which is coming to the House very soon. Over to your lawyers and Judges of human deeds and character!!