Bitter war, Age-Limit ruling and power struggle splits court of appeal judges

The 15-member Court of Appeal is split by the fallout between Deputy Chief Justice Alfonse Owiny-Dollo and Justice Kenneth Kakuru, who has quit his role as the head of registry and cause-listing.

The power struggle follows months of simmering tensions after the controversial age-limit ruling and has also sucked in some staff at court, which raises concern over the administration of justice. DERRICK KIYONGA breaks down how differences in approach escalated and drew a huge wedge between these two most experienced judges, who on paper were supposed to unleash a new era of congruence at the beleaguered court.

In late 2017 when Justice Alfonse Chigamoy Owiny-Dollo took over the reins at the Court of Appeal, he set out to repair the image of an institution, which had been so badly battered by the four-year leadership style of Justice Steven Kavuma, his predecessor.   

During Justice Kavuma’s controversial tenure, one of the key issues that rattled fellow judges was his tight control over the allocation of cases. Kavuma could singlehandedly choose a panel of judges to determine specific cases or which cases were to be heard first regardless of the time they were filed.

This inevitably left many senior judges at this court, which doubles as the Constitutional court, distraught as Kavuma had a set of trusted lieutenants he used to allocate politically sensitive cases while others were left out in the cold. 

As a result, sources who spoke on condition of anonymity since they are not authorised to speak for the judiciary have it that the alienation of some judges splintered the court into cliques and behind the scenes, corruption accusation were subtly peddled around. 

So, once Justice Owiny-Dollo stepped onto the fourth floor of Twed Tower, where the deputy chief justice’s offices are found, he set out to cure the disease he dubbed as “cliquesim” through devolution of powers.

ENTER OWINY-DOLLO

It seemed Owiny-Dollo had learned from the authoritarian style of Kavuma – that having a tight grip on the operations of this court would only lead to trouble and disunity. So, he allocated Kenneth Kakuru the powers to be in charge of the court’s registry as well as allocating cases or cause-listing.

Kakuru is a renowned maverick who was six years ago plucked out of private practice and catapulted into the second-highest court in the country. Last year, he endeared himself to the political opposition when he authored a minority judgement against the amendment of Article 102 (b) of the Constitution to remove the 35 and 75 year age limits for presidential candidates.    

Beyond that, his appointment to the sensitive docket was supposed to decentralise roles but has instead ended in a bitter split between the two.

THE SHOWDOWN

The tipping point came in July when Justice Kakuru threw in the towel following a stormy meeting with fellow judges who weren’t happy with his approach to work. Justice Kakuru declined an interview for a comment yesterday. He said Justice Owiny-Dollo was best placed to comment.

Interviewed for this story, Justice Owiny-Dollo said he does not agree with the assertion that temperatures have soared at the court. Rather, his assessment is that the Court of Appeal, just like any other organization, can be ensnared with contradictions.

Tellingly, Owiny-Dollo, a former politician who represented Agago county in parliament, dismisses as “absolutely false” the allegation that Kakuru acrimoniously left his docket. Instead, he gives an account on why and how he decided to appoint Kakuru.

“I appointed Justice Kakuru way back in 2017; I can’t remember the date now. But he came to me about two or three months ago and told me that he was going on leave. He said: ‘you know I am going to be away; so, you need to find someone who can be in charge of cause-listing. Then, he said: ‘by the way I have handled this thing [cause listing] for a long time.’ These are his words: ‘When you appointed me, you said it was going to be rotational. It is time you find somebody else who will, maybe, come up with new ideas,’” Owiny-Dollo explained.

Owiny-Dollo further said that he responded to Kakuru’s resignation in restrained manner: “I said that is okay with me. I have no quarrel with you. But since I appointed you in writing, you also put that in writing and I think the following day, he came with a statement containing what he had suggested. If I had refused and given my reason, he would stay. I had no reason because he had done his part and wanted to move on. I am the one who appointed him to be in charge of cause-listing of cases and I have the powers to change committee members for whatever reason and I don’t even have to explain to anybody just like I don’t explain to any person why I appoint him/her on a committee. It has been part of my administrative powers.”

KAKURU’S TOUGH STANCE

Before quitting, Justice Kakuru had taken his role as the head of registry and case allocation typically seriously. Having been at the court for five years, Justice Kakuru had dreadfully seen the pile-up of case backlogs at the Court of Appeal and Constitutional court.

For instance, the 2016 judiciary court census found that the Court of Appeal had a backlog of 5, 836 pending cases plus 117 constitutional petitions and 96 constitutional applications. Poor work attitude and poor performance were listed in the report as reasons for the court’s abysmal performance.         

With that in mind, Justice Kakuru set out to streamline the management of cases and the cause-list. He envisaged that eight cases would be heard on each working day. And to realise his dream, he decreed that with immediate effect, there should be a panel of three judges stationed at the court for each month. These judges would deal with any emerging issue. However, our source contends that this didn’t go down well with some judges.   

“Some judges were fond of breaking panels by not turning up on the day of hearing cases without prior communication to their colleagues,” one source revealed, citing an incident in June where one female judge who had been designated a panel failed to arrive simply because she was fresh from her leave and was tired after travelling back to Kampala.

“Another judge who was listed to sit on a five-man Constitutional court panel kept his four colleagues waiting for hours because he had gone for a prayer-breakfast meeting that very morning without notifying his colleagues about his whereabouts.”

Incensed with such laissez-faire conduct, Justice Kakuru openly used to tell off these judges. Speaking on condition of anonymity so he could speak freely, one of the judges, accused of conspiring to frustrate Kakuru, said he wasn’t about to work with him [Kakuru] because of his “militant” style of management.

“Working with him was going to be hard,” the judge said. “We are judges, not soldiers to be ordered around…”

The sweeping changes that Kakuru had introduced didn’t just distress some judges but support staff, too. It was a taboo for court clerks to be found by KK, as Kakuru is fondly referred to at the court, idle.

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They always had to be doing something.

“He has been a hands-on administrator who could come down to the registry to supervise the staff. He had even banned eating in the registry, reasoning that food attracts rats which could eat up court files and he would personally pass by during lunchtime,” said a source. “But now [after his resignation], the plates are always in the registry.”

AGE-LIMIT FALLOUT

Another source privy to the goings-on at this court tied the fallout to the presidential age limit judgement. It’s said that ever since Kakuru differed from his four fellow judges in Mbale, he has been ostracized.

However, it seems the fallout happened the moment that case was filed in the Constitutional court. Though Kakuru had the powers to select the panel, Owiny-Dollo took over the role and ultimately decided which judges would constitute the panel on the case that had far-reaching political ramifications.

One senior lawyer who declined to be mentioned said that the presidential age-limit case could have been thrown out had Kakuru chosen the panel.

“I can assure you it would have been a different outcome if the panel had judges like Stephen Egonda-Ntende and Christopher Izama Madrama,” he said.

However, Owiny-Dollo argues that those allegations are trivial.

“I had to make considerations. I wanted judges from all corners of Uganda. These are things people don’t understand. There is this perception that this judge is anti-government; for me I don’t know of any judge who is anti-government and you can quote me. I have never found even one day when Kakuru is anti-government. He holds his view legally whatever he discusses at the Golf club politics is not for me but in all the judgments he comes up with, it is his legal views, it is not about government.”

Meanwhile, Owiny-Dollo doesn’t see any merits in the notion that Kakuru is being witch-hunted for his minority judgement.

“The issues were; whether there was violence. We all agreed there was violence and we all condemned it, including Justice Kakuru. But all of us said that violence did not affect the outcome of the law. The only thing we disagreed with was consultation. Justice Kakuru said there was no consultation and we said there was consultation and we cited instances of consultation. We said there were hitches but in life you cannot do it 100 per cent. The other thing was certificate of compliance by the speaker. He said there were certain things included so the whole law should be struck down. We said the good and the bad can be separated; so, we separated and retained the good,” Owiny-Dollo said.

MUSOTA TAKES OVER

In the wake of Kakuru’s unceremoniously departure, Owiny-Dollo has replaced him with Justice Stephen Musota. Musota is a newcomer to the Court of Appeal, having joined it in 2018 and his reign as the boss of the registry has been bumpy, so far, to say the least.

One judge, who preferred anonymity due to the sensitivity of the matter, says Musota has resorted to the old system of ‘first come first serve’ basis.

“This system disregards applications which might have just been referred to us [Constitutional court] from the lower courts during trial or hearing and therefore need urgent attention,” he said. “I can tell you that this is going to escalate the case backlog.”

Another criticism is that having spent just months at this court, Justice Musota is still a junior who can’t enforce his ideas without offending senior judges. Musota has created protocol and command chain issues since, under normal circumstances, a junior judge cannot command a senior one to stay on duty or take up assignments.

Section 2 (C) of the Judicature Act states that; Justices of the Court of Appeal shall take precedence….. Among themselves according to priority of the dates on which they respectively took offices. “This means you cannot command someone who takes precedence over you,” a source noted.

In spite of the criticism, Owiny-Dollo defends his decision to appoint Musota. He says appointments are not hinged on seniority but competence.

“This has been his field as a registrar and as a chief registrar of the High court before he became a judge. As a matter of fact there is nobody in this court that beats him in competence when it comes to this work because he has done it for a long time and I have not heard any judge who says it should have been somebody senior,” he said.

According to Owiny-Dollo, the process of cause-listing and coming up with panels isn’t everybody’s cup of tea.

“You can quote me on that. He is the best qualified by that reason. When he took over, I think the Kakuru group had come up with a skeleton schedule for about three months ahead and that is what he is still dealing with. The other thing about cause-listing is that I have the final say. Whether its Kakuru or Musota, they come up with a proposal, until I endorse it, it will remain a proposal. So far, I have not heard anyone complaining about Justice Musota,” he said.

“I have 14 justices and other judicial officers who are my equals in terms of judicial work. I only happen to be the head of the court and I’m not a boss. I’m just the first among equals. My predecessor was cause-listing cases; I said why should I be the one cause-listing? So, we distributed duties,” he said.

Following the retirement of Justice Remmy Kasule, who has since been retained on a two-year contract, the next ranking person in seniority is Kakuru. And whenever Owiny-Dollo is not in the country, Kakuru is in charge.

“I always communicate to him in writing and copy to every judge and he acts, not as DCJ [deputy chief justice] because that can only be given by the president but as an administrator of this court. He does the day-to-day administration,” Owiny- Dollo said.

How Owiny-Dollo deals with this standoff will perhaps define his tenure as deputy chief justice

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