Holding Pattern

I am told patience is an acquired virtue.  If so, I still have loads to acquire.  I feel like I am in a jumbo jet circling an airport, waiting for permission to land.  The pilot keeps announcing on the intercom that we should be given the all-clear any moment now, but the all-clear never comes.  I am stuck in a holding pattern.

Nearly three months ago, I posted that Uganda was facing a looming Constitutional Crisis.  The Chief Justice of the Ugandan Supreme Court had just reached (on June 23^rd) the mandatory retirement age (70), and yet no successor had been named.  Adding further urgency to the situation, the Deputy Chief Justice had termed out over a year earlier, and still hadn’t been replaced.  Because the Deputy Chief Justice is head of the Court of Appeals, these vacancies left the top two judicial posts in the country empty, and left the top two judicial courts (Supreme Court and Court of Appeals) without an appointed leader.

Fast forwarding nearly three months to the present reveals nothing new.  The Constitutional Crisis has, if anything, deepened.  Every morning when I wake up, the first thing I do is read the two daily Ugandan newspapers on line.  About every third day, there is another story about this Crisis.  What follows is a thumbnail sketch of how the situation has evolved, or perhaps more accurately, how it has devolved.  (I am only using public sources for this description, and those are the only sources I have, at least as far as you know).

Shortly before the Chief Justice reached the constitutionally mandated retirement date, an internal memorandum circulated within the government that floated the idea of the Chief Justice being appointed to serve a two-year term as an Acting Judge on the Supreme Court.  Uganda’s Constitution provides for limited-term appointments of judges to serve when there are vacancies on the court and judges are needed.  This provision allows for retired judges to fill these short-term slots.  This internal memorandum also suggested that perhaps an acting judge appointed in accordance with this provision could then serve as the Chief Justice.  This, in turn, could allow the retired Chief Justice to be reappointed as Chief Justice, thus skirting the Constitution’s mandatory retirement.

The media reported that the Judicial Services Commission (JSC) – the body responsible for recommending names to the President of Uganda for judicial appointments – rejected this idea as impermissible under Uganda’s Constitution.  The head of the JSC is the former Principal Judge of Uganda (third in command) and is widely respected in Uganda.  Instead, the JSC sent three names to the President from which he was asked to choose.  After seeking advice from his Attorney General, the President declined to accept the advice of the JSC and instead announced he was reappointing the retired Chief Justice.

This news was not well received by the Uganda Law Society (ULS), which is Uganda’s legal bar association.  The ULS then filed a petition in the Constitutional Court (which is the Court of Appeals) seeking to block this reappointment as unconstitutional.  The ULS also made hay of the fact that the retired Chief Justice was the lead drafter of the Constitution and would be, in essence, violating his own rules if he accepted a reappointment.  To his credit, the Chief Justice has declined to engage with the media on the constitutionality of his reappointment.

The President’s nomination then went to Parliament, which held closed hearings on the nomination.  But someone leaked.  It was reported that the head of JSC, in response to a direct question, stated his opinion that the reappointment of the Chief Justice would be unconstitutional.  Meanwhile, the Attorney General consented to interviews both on and off camera and stated that the reappointment is constitutional under the short-term Acting Judge provision.

Well, this pronouncement went over like a pregnant pole vaulter with the ULS.  They held a public meeting and voted to expel the Attorney General from the bar.  Quite naturally, this move was met with utter contempt from the Attorney General and other governmental officials.  Unsurprisingly, the government newspaper (New Vision) is highly supportive of the reappointment of the Chief Justice, while the private newspaper (Daily Monitor) is opposed.

So where are we now?  We are still in Parliament, which must ratify the appointment for it to become effective.  So Parliament can ratify, decline, delay, or . . . they could take another approach that is looming in the background.  They could amend the Constitution.  I have a sneaking suspicion that things are headed in that direction.

When Uganda’s Constitution was enacted in 1995, it explicitly limited the President to two five-year terms.  After the current President served two terms, he decided he wanted a third.  So his ruling party amended the Constitution to remove the two-term limit.  In 2011, he was elected for his fourth term in office.  While his actual age is disputed and/or unknown, he now claims to be 69 years old.  This means that if he were re-elected in 2016, he would bump up against the 75-year maximum for the Presidency.  And all indications are that he would like to continue serving as President for the indefinite future.

So . . ., don’t be surprised if Parliament re-evaluates the Constitutional provision forcing the Chief Justice to retire at age 70.  This would make it quite a bit easier to then lift the age limit on the President a few years down the road.  After all, if Parliament thought the age limits for the judiciary were no longer needed, then why would they be needed for the President?

So what does all of this have to do with me being in a holding pattern?  Thanks for asking.

When I argued Henry’s appeal in March, I did so before a three-judge panel on the Court of Appeals.  The most senior judge on the panel was a last-minute replacement because the Acting Deputy Chief Justice (serving in an Acting role because of the vacancy created a year earlier when the Deputy Chief Justice reached retirement age) was quite ill.  Shortly thereafter, the Acting Deputy Chief Justice died.  This made the senior judge on my panel the Acting Deputy Chief Justice.  This leadership role carries with it significant administrative responsibilities.  And when the Chief Justice reached retirement age in June and no replacement was appointed, the Acting Deputy Chief Justice automatically also became the Acting Chief Justice under Uganda’s Constitution.  Accordingly, shortly after my argument, the senior judge on my panel became the Acting Deputy Chief Justice, then three months later also inherited the additional role of Acting Chief Justice.

So, where does that leave the judicial opinion in Henry’s case?  Likely somewhere near the bottom of the to-do list.  Further complicating things, another of the three judges on my panel was elevated to the Supreme Court in July.  What this means for the ruling, I don’t have any idea.  But what I do know is that the Acting Chief Justice/Acting Deputy Chief Justice/Senior Judge on my panel is scheduled to come to Malibu next month for a week, along with five or six other Ugandan judges.  While I do not intend to bring up the ruling in Henry’s case, it will be the proverbial elephant in the room.

Meanwhile, I still talk to Henry every week and he is doing great.  He begins his final term of Secondary School on Monday and is feverishly studying for the national exams in November.  He is hoping to do well enough on those exams to be admitted to medical school next August.