Some thoughts about transition

A few years ago, I confronted him with a pointed question, whether it was true that he had supported an in-house move to extend the retirement age of the judges in the High Court from 65 to 70 and in the higher courts of record from 70 to 75.  This is a personal conversation, but I felt it was important to place it here, the former Chief Justice denied it. In fact, he always repeated he would leave on the day he attained retirement age in June (we share the same birth month).

In the same vein, a lot happened in his final two years in office. First was the judicial imprimatur given first by the Court of Appeal (4-1) (Owiny Dollo CJ, Musoke, Cheborion, Kasule JJA (Kakuru JA dissenting) and then in a sharply divided Supreme Court (Katureebe CJ, Tumwesigye, Arach Amoko, Opio-Aweri; Mwangusya, Tibatemwa Ekirikubinza JJSC dissenting) approved the lifting of presidential age limits, removing the final straw in political transition in the Constitution of Uganda. 

Second was the inauguration of the first Ugandan Chief Justice Ben Kiwanuka at the High Court and Ben Kiwanuka Day in September 2018, which laid a different narrative or a fresh narrative by his contemporaries and especially moving tributes by Wambuzi CJ emeritus, Godfrey Lule SC, my father, Nshimye Sebutulo, whom he groomed from a clerk to sit on the highest court and Remmy Kasule JA, SC who first as a young lawyer, worked in his chambers. There was so much history in this moment and it was a pity the President could not attend. On these two counts, the ex-Chief Justice kept his word. Actually from other sources, he always kept his word even when he was bound by collective responsibility. He left government before term limits were lifted in 2005, an action that his successor Owin-Dollo recently made commentary on: “That was the day he knew Uganda as a country had taken the wrong path.”

So I began wondering how to reconcile Owiny-Dollo, the man who redeemed the Court of Appeal after the precarious tenure of his predecessor Steven Besweri Kavuma with the long judgment in drafting legalese that clothed the lifting of presidential age limits in legalese. Justice Owiny-Dollo in court is a curious listener and quite even-handed. Actually, even when you are on the losing side, he has words of encouragement. Once seven years ago, he told me: “Mr Ssemogerere, don’t worry, come back in six months and demand for your judgment debt, but for now, I have to give the Attorney General a stay to organise his house.” I think this transition from Katureebe to Owiny Dollo is a good thing. Even for the Judiciary, it is a first. Wambuzi handed over to Odoki in 2001, but was always reserved about his would be successor with whom he had sat from their days in the High Court in 1975 and with whom they heard and decided Andrew Kayiira & another v Attorney General Constitutional Petition No. 1 of 1979 challenging the removal of President Lule.

The succession of Masika CJ to Peter Allen CJ was after the 1985 coup. Masika was chided for receiving a letter to keep certain political figures in detention from Dr Luwuliza Kirunda, the Internal Affairs Minister, who himself died in exile.

The transition from Peter Allen CJ to Wambuzi CJ was matter of factly as Allen was an expatriate. Wambuzi made a number of changes making the Supreme Court permanent and removing himself from the High Court to the Supreme Court a change that made that court quite authoritative in later years. The transition of Odoki first to Acting Chief Justice, left a blemish on the office as the President reluctant to appoint the next most senior Justice Katureebe as Chief Justice ran into corners on the advice of his super then prime minister and Justice Minister. There was another spectacle as the Supreme Court all of a sudden became a mini city of acting Justices on two year contracts. There was no chain of command, etc., but thankfully, both government and the justices eventually relented and retired.

One particular justice always reminds me of something that appeared in these pages, and one time I met Odoki CJ at an airport lounge and he recollected all the writings that challenged his extended stay in office.

So turning to the inevitable transition, even in the middle of a campaign, the President must assure the population he has learnt the folly of not mapping a certain transition map. That the military which surprisingly is quiet compared to the first days of the campaign will support his successor in any event. The country must also promise him a safe retirement as a leader of most of Uganda’s post-independence era and even where there have been errors, this must not be personalized to him. 

Mr Ssemogerere is an Attorney-At-Law and an Advocate. [email protected]