Constitutional Crisis at Judicial Conference

Lake Victoria just after sunrise

In January of each year, the entire Ugandan Judiciary assembles at a Lake Victoria resort hotel for an full week of meetings and reports.  This includes about ten justices each from the Supreme Court and Court of Appeals, about fifty High Court judges (trial level), and about thirty Registrars.  Also present are a few representatives of other law-based governmental and non-governmental organizations, including the Uganda Law Society.  This Annual Conference began on Monday with the President of Uganda showing up nearly four hours late in order to deliver the “opening” address.  The media reported Museveni as confrontational and somewhat dismissive.  At one point, he drew laughs of derision when he referred to former Chief Justice Benjamin Odoki as his “nominee” for the post of Chief Justice, which has been vacant since June of 2013 when Odoki reached the mandatory retirement age of seventy under Uganda’s Constitution.  Ironically, Odoki, himself was the primary drafter of Uganda’s Constitution.

Nonetheless, President Museveni reappointed Odoki to a two-year term as an “Acting” Justice on the Supreme Court, which is permitted by the Constitution, but then proceeded to further nominate him to fill the position of Chief Justice – a position for which he is ineligible due to his age – and over the firm objection of the Judicial Services Commission, the body tasked with forwarding judicial nomination recommendations to the President.  After President Museveni sent his nomination to Parliament for its approval, but prior to an up or down vote in Parliament, one of its members challenged the nomination’s constitutionality in the Constitutional Court, which is Uganda’s Court of Appeals.  The case was scheduled for argument before a panel of five appellate judges two weeks ago.  The advocate representing the objecting Member of Parliament is himself an aged-out Supreme Court Justice.  He first sought to disqualify two of the five judges, one on the grounds that she had previously ruled against Parliament on another controversial case (frivolous), and the other on account of his current multi-faceted role in the judiciary.

A brief bit of background is in order here.  In March of 2012, the Deputy Chief Justice, who heads the Court of Appeals, reached her mandatory retirement age.  Rather than appointing her successor then, President Museveni decided to wait, apparently because he knew the Chief Justice post would be vacant in June of 2013 with the retirement of Odoki, so the two top positions could be named together.  Consequently, the senior-most member of the Court of Appeals became the Acting Deputy Chief Justice.  In March of 2013, however, she died.  This elevated Justice Kavuma to the role of Acting Deputy Chief Justice, as he was the senior judge on the Court of Appeals.  Fast-forwarding to June of 2013, Chief Justice Odoki named Justice Kavuma Acting Chief Justice as his last act as retiring Chief Justice, or so it appeared.  This, of course, made Justice Kavuma the senior judge on the Court of Appeals, the Acting Deputy Chief Justice, and the Acting Chief Justice.

At the hearing two weeks ago, the lawyer representing the Member of Parliament challenged Justice Kavuma’s place on the appellate panel deciding the constitutionality of the re-appointment of retired Chief Justice Odoki on two somewhat inconsistent grounds.  The first was conflict of interest, alleging that he could not be impartial in deciding whether Odoki should take over the position Kavuma now occupies.  While a facially plausible argument, Kavuma has never been under consideration for the permanent Chief Justice position, so there really are no grounds for kicking him off the panel on this basis.

But the second challenge sent shock waves through the courtroom and spilled much ink onto the front pages of the local papers the next day.  The advocate forthrightly declared Acting Chief Justice Kavuma to be illegally holding that post.  He produced a copy of the letter from Chief Justice Odoki purportedly naming Justice Kavuma as Acting Chief Justice until such a time as the next Chief Justice would be appointed and confirmed.  So far, not a problem – everyone has that public document.  But no one had previously calculated the dates.

When reaching the retirement age, a judge has a three-month extension in which to complete written judgments and further wind up the judge’s work.  So three months after Chief Justice Odoki turned seventy, he automatically became a civilian.  Unfortunately, the letter from Odoki to Kavuma designating him Acting Chief Justice was dated three months and one day after he turned seventy.  No one had realized this until it became ground two for the motion to remove Justice Kavuma from the panel.

While this is a weak argument for removing Kavuma – it actually undercuts the conflict of interest argument if he is not actually the Acting CJ – its potential for destabilizing the entire judiciary cannot be overstated.  After briefly conferring, the five-judge panel denied the motion to dismiss the two judges, but granted the lawyer the rare right to immediately appeal this interim order directly to the Supreme Court before the Court of Appeals proceeding on the merits of the constitutional challenge of Odoki’s reappointment.  Odoki, of course, currently sits as an Acting Justice on the Supreme Court, so the constitutionality of his own reappointment is now coming before the court on which he sits.  In addition to potential chaos, this immediate appeal promises to inject many more months (perhaps years) of delay, meaning that the Ugandan Judiciary will be without a permanent leader for the foreseeable future.  It also means that the legitimate power of the Acting Chief Justice hangs under a cloud of uncertainty and skepticism.  Just how wide and deep that skepticism ran was anyone’s guess as the annual conference opened on Monday.

Late last week, one newspaper published rumors of a coming widespread boycott of the conference by the judges, and everyone wondered who would take the podium as the Chief Justice.  A collective sigh of relief was breathed when the conference opened without such a boycott and the Acting Chief Justice continued to assume and assert his leadership role, much to the consternation of the President, who pointedly warned the judiciary in his opening speech not to “provoke” him.  For now, this constitutional crisis seems to be bubbling just below the surface, though the cauldron continues to periodically spit.  On Thursday, the Principal Judge (third-ranking post) characterized the judiciary as “sheep without a shepherd” and the President of the Uganda Law Society referred to the situation as “the big elephant in the conference room.”

Shortly after the plea bargaining conference I was honored to keynote last Thursday, the lead prosecutor informed me that he had been asked to address the judiciary on day two (Tuesday) of the judicial conference on the subject of plea bargaining.  He had been allocated fifteen minutes to provide an overview and path forward for the plenary gathering.  Thursday’s conference had been sufficiently well received that he asked me to do an encore performance for the judiciary.  The problem is that my opening presentation went an hour on Thursday, so cutting it to fifteen minutes for Tuesday presented a challenge.

My portion was to be part of a three-presenter panel, the other two of which related to anti-corruption and sentencing guidelines.  Director Chibita’s introduction of me included telling the crowd about his trip to Malibu late last year to learn more about plea bargaining, and about me meeting Henry in prison, representing him in court, and sponsoring his education.  The latter point brought a vigorous show of appreciation from the judges.  But now I only had thirteen minutes.  In order to get through it all in the allotted time, I decided that not only would I need to whiz through several of the PowerPoint slides Susan and I had prepared, but that I needed to also skip most of the vowels in my speech.  At least that is how it felt.  It was a real high-speed chase, but I got out everything I wanted to say.

Following the third presenter on the panel – the Inspector General of Government – the Q and A/Comment session began in earnest.  Roughly half of the questions/comments related to plea bargaining, while the other half concerned the other topics.  After the allotted thirty minutes expired, the master of ceremonies for the day made an executive decision and cancelled the next one-hour session in favor of continued discussion, which occupied the next eighty minutes.  All of the feedback was positive toward the concept of reducing the substantial backlog in the criminal justice system through plea bargaining, though (as always) the devil will be in the details.  I am cautiously optimistic that things will begin picking up speed, though the transition period will take place over the span of years, rather than months.  Following the session, one of the three judges on the panel I appeared before in Henry’s case last March introduced himself to me.  We exchanged polite words, but I was unable to read anything into his demeanor regarding how he intended to rule and when.

In other news, our hopes of a reasonably quick diagnosis and treatment of Henry’s father at the Mulago hospital proved to be overly optimistic.  While he was admitted to the hospital late Tuesday morning, he wasn’t actually seen by a doctor at all on Tuesday, nor did he receive an ultra-sound or CT scan.  Given the uncertainty of the timing, Joseph took a bus home, but Henry stayed by his father’s side the entire day.

On Wednesday morning, I took a forty-minute flight to neighboring Rwanda to meet with the Chief Justice of the Rwandan Supreme Court.  For the last five years, two of our students have been spending their summer working for Justice Rugege, so it made sense for me to pop in for a visit while I was in town.  I enjoyed a lively discussion over lunch with this brilliant and wise jurist who studied law not only at Makerere in Uganda, but also earned Masters’ degrees in law at both Yale and Oxford.  He was teaching Constitutional Law in South Africa when the 1994 Rwandan genocide took place, and was summoned shortly thereafter to provide a stabilizing influence to the country as Deputy Chief Justice of Rwanda.

While we were eating at a hotel restaurant, he introduced me to the chief prosecutor for Rwanda, and we had a brief discussion about the potential adoption of plea bargaining in Rwanda.  Indeed, Chief Justice Rugege and I discussed numerous points of future collaboration/training that will be explored in the coming weeks.

After our lunch, I took a quick tour of the beautiful and clean capital city of Kigali and secured accommodations and a driver for our two students who will be spending eight weeks there this next summer.  The contrast between Kigali, Rwanda and Kampala, Uganda was sobering.  Following the 1994 genocide, the city and its infrastructure was rebuilt and order was restored.  The streets are clean and paved sans potholes, the motorcycle taxi drivers all wear helmets and numbered vests, and new construction abounds.  At the hostel where I secured housing for our students, I spent a few minutes talking to two young British women who have traveled the world with their jobs and they said unequivocally that Kigali was the safest city they had been in.

Throughout the day, I periodically checked in with Henry and learned that his father had finally been seen by a doctor.  The ultrasound revealed normal functioning of his pancreas, liver, and kidneys, though his gall bladder was inflamed.  While a follow-up CT scan had been performed, the results were not yet ready.

On Wednesday evening, I flew back to Kampala, then boarded a plane bound for Amsterdam, Detroit, and then LAX.  From takeoff in Kigali to landing in Los Angeles, the trip will take just over thirty-one hours.  As they say in the South, I am plum tuckered out and will be glad to be home with my family.

Thanks for reading along.

The rolling hills of Kigali, Rwanda