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Justice Kakuru: A principled man who advocated for human rights
Justice Kenneth Kakuru during the age limit petition in Mbale in 2018. PHOTO/MICHAEL KAKUMIRIZI
What you need to know:
- In 2021, citing ill health, Justice Kenneth Kakuru sought early retirement but President Museveni, who had the powers to grant such prayer, didn’t respond. Two years later, the judge died, leaving a footprint of a judge, who was feared for being stern and yet was committed to advancing human rights, Derrick Kiyonga writes.
A lot of mischief and theatre came with the lifting of the presidential age limit - which had been capped at 75 years. Opposition Members of Parliament (MPs) raised the red flag that they had somehow each found Shs29m wired to their accounts only for Parliament to explain that the money was to facilitate consultative meetings before the decision could be taken on the age limit Bill.
The MPs led by Kira Municipality legislator Ibrahim Ssemujju returned the money, saying this was a ploy by President Museveni to bribe legislators to pass the controversial Bill that had fuelled emotional debate countrywide.
This political contestation would be resolved legally, first in Mbale where Justice Alfonse Owiny- Dollo, then Deputy Chief Justice, decided that the court would assemble away from the raucous Kampala. While the rest of the judges were concentrating on other aspects of the petition, the issue of MPs receiving and returning the money captured the attention of Justice Kenneth Kakuru.
Some MPs had physically returned the money to Parliament’s Finance office in-charge of refunds in cash wads of Shs10,000, Shs20,000, and Shs50,000.
Mukono Municipality MP Betty Nambooze wasn’t part of the group that physically returned the money, but while under oath, she told Justice Kakuru that she had written a cheque worth Shs29m to Parliament. Justice Kakuru wasn’t convinced any money had left Nambooze’s account. He asked Nambooze a number of questions, including why she didn’t use electronic funds transfer.
Justice Kakuru asserted that she chose to use a cheque because she knew that Parliament wouldn’t cash it, after all they had already issued the money. Thus, the money, he concluded, had stayed in Nambooze’s account, yet the MP was telling the public she had returned the money.
In a much-celebrated judgment in which he dissented from the majority by annulling the amendment, Justice Kakuru, who had sensed deception couldn’t let Nambooze get away with it.
“A few Members of Parliament of their own volition returned the money. I must mention here that they were only 14 members according to the evidence of Jane Kibirige, the Clerk to Parliament. This list did not include Ms Betty Nambooze Bakireke. She was not truthful when she stated in her testimony in court that she did return the money. All she did was write a cheque which was never cashed. She knew very well at the time she came to court to testify that that money had never left her account. She did not appear at all as a truthful witness,” Justice Kakuru ruled.
Later, he ordered: “The Auditor General carries out a forensic audit of accounts of the 10th Parliament, and a copy of the resultant report be submitted to this court and to the Minister of Justice and Constitutional Affairs.” This judgment came to epitomise Justice Kakuru in many ways.
The different faces of Kakuru
Justice Kakuru used the age limit case to vent his frustrations with the government for defying court orders. Before he arrived at the Court of Appeal in May 2013, Justice Kakuru was in private legal practice with Kakuru & Company Advocates, with a human rights leaning, yet making public interest litigation his forte.
He had also cut his teeth as an environmentalist with Greenwatch, a non-governmental organisation that promotes public participation in environment conservation.
Justice Kakuru, through Greenwatch, in 2002 sued the government asking the court to detriment whether the use, manufacture, and distribution of polythene bags of more than 30 microns constitute a danger to the environment and in turn violated the rights of Ugandans to a clean and healthy environment.
In 2012, in victory to Greenwatch and Justice Kakuru, Justice Eldad Mwangusya ordered the state to draft a law that would control the use of polythene bags. The government didn’t do as Justice Mwangusya had ordered, something that Justice Kakuru raised in his age-limit judgment questioning the government’s priorities, which he said seemed tilted towards entrenching itself in power than keeping Ugandans safe.
“In Greenwatch vs Attorney General & NEMA; High Court Civil Suit No. 140 of 2002 the High Court directed the Attorney General to initiate a law to regulate the importation, manufacture, and use of plastics,” Justice Kakuru said, citing his own case that was delivered one year before he became a Court of Appeal judge.
“The Attorney General, to my knowledge, has never brought such law. The impact of plastics on the environment and on the lives of Ugandans is a mess. In my view, nothing would stop any MP from sponsoring a private members Bill to bring into effect the order and recommendation of the High Court in the above-cited case, in fact there was an attempt to do so.”
In private practice, Justice Kakuru also got involved in political cases. On March 27, 2008, the General Court Martial under the stewardship of Gen Ivan Koreta sentenced Maj Gen James Kazini to three years in jail for causing a financial loss of Shs60m. With Gen Kazini isolated, it was Justice Kakuru and Dr James Akampumuza, who teamed up to take the battle to the Constitutional Court, insisting the trial was illegal because the former army commander had been tried by the army court instead of the civil courts, unlike some of his colleagues. The Constitutional Court, however, didn’t agree with Justice Kakuru, dismissing Kazini’s petition.
A judge, impatient with bureaucracy
With a master’s degree in Law from Makerere University and a master’s degree in Educational Policy Planning, Justice Kakuru took up his place at the Constitutional Court which doubles as the Court of Appeal. Justice Kakuru, who arrived together with Justices Richard Buteera, Faith Mwondha, Prof Lillian Tibatemwa, Fredrick Egonda-Ntende, Ruby Opio Aweri, Solomy Balungi Bossa, Mwangusya, found a Court of Appeal that was dysfunctional.
With the court short on judges and experiencing case backlog that had shot up over the years, it was obvious that Justice Kakuru, who sought to hear cases expeditiously, would end up frustrated. The annual judge’s conference of 2016 is where Justice Kakuru chose to vent his frustrations.
“Instead of coming here, why don’t we put this money into hearing cases?” Justice Kakuru asked. He took a dig at judges whom he accused of taking ages to deliver rulings with no admissible reason. Although he was new in the Judiciary, it didn’t take long for Justice Kakuru to distinguish himself from the lot.
While many judges stand out at the High Court, they sometimes struggle to shine once they arrive at the Court of Appeal, as they are often overshadowed by justices with bigger personalities. However, Justice Kakuru’s character as a firebrand, intrusive and always posing thought-provoking questions wasn’t to meet the same fate, as lawyers soon started dreading him being on the panels that would determine their cases.
“Saddened by the passing of the Hon Mr Justice Kenneth Kakuru JA [ Justice of Appeal], ” Elison Karuhanga, partner at Kampala Associated Advocates (KAA), said. “His Lordship was a tough, opinionated and principled judge.”
On the record, it was Kyambogo University Council in 2013 that first sampled Justice Kakuru’s temper. That council had a standoff with Prof Isaiah Ndiege, then Kyambogo University’s vice chancellor, saying he wasn’t legally in office.
Justice Kakuru not only ruled that Ndiege was lawfully in office but also rejected the council’s contention that “hell would break loose at Kyambogo” if the professor was allowed back in the office, stressing that the court would not be “bound by threats”. “This is absolutely unacceptable. This court must make orders that are legal, just, and equitable, irrespective of what happens outside the courtroom,” he ruled.
On corruption
Justice Kakuru also found some more possible corruption: The council’s application had been filed on October 25, 2013 - a day after it’s notice of appeal had been filed- and was fixed for hearing before him on November 1, 2013, something the judge found bizarre.
“There are hundreds of similar applications pending in this court which were filed sometime back; some as far back as 2008 or even earlier. These applications have never been fixed for hearing, yet recent applications such as this one has been fixed (to be heard) in a record time, “Justice Kakuru said.
“Justice must not be done but must manifestly be seen to be done. All persons in this country are equal before the law. A system must be put in place which ensures objectivity, fairness, and equity in fixing all matters in this court subject only to the law,” he said.
When Kakuru was appointed a judge, there was excitement among human rights activists. And, they were right to be hopeful as Kakuru has been instrumental in nullifying certain sections of the law that violated people’s rights. He was very clear when Section 8 of the Public Order Management Act (POMA) was challenged. The section was used by police to foil Opposition gatherings on grounds that they didn’t seek permission from the Inspector General of Police (IGP).
“The impugned law in my humble opinion imposes conditions and restrictions that are unjustified. It makes it almost impossible for any person to hold a public meeting in Uganda unless of course the police permit him or her to do so. The law can only be applied subjectively and as such, the limits that it imposes on the citizen of Uganda are not demonstrably justifiable in a free and democratic society,” Justice Kakuru said.
In 2021, Justice Kakuru agreed with former Nakawa MP Michael Kabaziguruka that civilians shouldn’t be tried in military courts.
“The General Court Martial, therefore, is a specialised court set up by Parliament and clearly is not part of the Judiciary. It is part of the Executive arm of government established under Chapter 12 of the Constitution which provides for the country’s defence and national security,” he wrote.
As Justice Kakuru is laid to rest, it should be noted that of the judges with whom he arrived at the Court of Appeal 10 years ago, it is only he and Justice Egonda – Ntende who were never promoted to the Supreme Court despite writing ground-breaking judgments.
Ill-health sets in
As he was issuing out judgments in the fall of 2021, it was reported that citing a terminal illness, Justice Kakuru had sought early retirement since Court of Appeal judges retire at 70 years. “I find myself unable to continue performing my function as a Justice of the Court of Appeal… I have taken the decision in the interest of the Judiciary, my health, and my family,” Justice Kakuru, 63 at the time, wrote in a letter to Chief Justice Owiny-Dollo.
It was President Museveni to greenlight his retirement but he didn’t do so and Justice Kakuru after spending some time off, returned to duty in 2022.
Lasting legacy in human rights
Justice Kakuru continued to issue judgments that promoted human rights – he agreed with a different set of petitioners that civilians can’t be tried in military court and he also led four other justices in striking down Section 25 of the Computer Misuse Act, which had been used to charge people who are accused of abusing Museveni and his family.
“The ingredients of the offense cannot be properly determined because the act of ‘disturbing the peace, quiet and privacy of anyone’ and ‘with no purpose of legitimate communication’ is not clear and without knowing the ingredients of an offense, one cannot meaningfully prepare his [or] her defence,” Justice Kakuru said of the section, adding that the provision “gives law enforcement agencies unfettered discretion to punish unpopular or critical protected expression.”
As Justice Kakuru is laid to rest, it should be noted that of the judges with whom he arrived at the Court of Appeal 10 years ago, it is only he and Justice Egonda – Ntende who were never promoted to the Supreme Court despite writing ground-breaking judgments.
