A Supreme Court judge has questioned the rationale of the Judiciary paying her colleagues and subordinates in excess of Shs104m in honoraria for handling the age limit case appeal yet they receive monthly salaries for hearing and determining such matters.
Justice Faith Mwondha in a November 2018 memo addressed to Chief Justice Bart Katureeba, and copied to other judges and senior staff, also noted that it was out of order to budget honoraria for all the 11 Supreme Court judges yet four were not on the Coram.
Details of the judge’s misgivings coincide with revelations that the 93-day determination of the age limit appeal by the country’s highest court cost Shs567m, with most of the money spent on facilitation for judges, registrars, magistrates, drivers and body guards, among others.
Other spending heads included stationary, bottled mineral water, research assistants, and librarians.
The contention began on November 20 when the court’s acting registrar, Mr Godfrey Opifeni, wrote to the Secretary to the Judiciary, Mr Kagole Kivumbi, instructing him not to pay the Shs15.9m honorarium to justices Faith Mwondha and Esther Kisaakye each which was given to all the justices, including those who did not hear the appeal.
Mr Opifeni stated that the two justices should not be paid because Ms Mwondha was scheduled to travel to Singapore to complete her training while Ms Kisaakye was sick.
“…I have been instructed to inform you that it was resolved that honor aria of Shs15.9m should not be paid to two justices because they are not participating in the above [age limit] appeals. The honoraria is supposed to facilitate the justices who are participating in the said appeals,” the letter reads in part.
His instructions triggered a rebuttal from Justice Mwondha who wrote back to Chief Justice Bart Katureebe in a November 27 letter questioning the logic of the contents of the letter branding them “misleading” and “misrepresentation” of facts.
Justice Mwondha added that the contents gave a false impression that she was out of the country for an indefinite period and that her whereabouts were unknown.
She also stated that Mr Opifeni’s letter gave a wrong impression that she had demanded the honoraria and questioned the justification for such a payment.
Justice Mwondah argued that honoraria is a payment for acts or professional services for which custom or propriety forbids a price to be set and where the recipient does not receive salary yet she receives salary and allowances as a judge.
“Regarding the issue countermanding the payment of honoraria, I would like to clarify I never participated in the budget process and I have never asked to be paid. If there is any money deposited on my bank account on the basis of honoraria for appeal in issue without my knowledge, I request that evidence of deposit be availed as well as the bank details of the sender to facilitate return of the same through an order to my bank as soon as possible,” her letter reads in part.
“I am a hired justice of the Supreme Court of Uganda on full time basis and on permanent and pensionable terms to hear and determine cases not merely to participate. I earn a salary and allowances. Honoraria is not part of my terms and conditions of service. In the present circumstances, there is no justification to pay me honoraria when I am not on the panel of the appeal in issue,” she added.
The judge contended that on September 7, 2018, the Chief Justice constituted a panel of seven justices to hear the presidential age limit appeal, adding that she was not part of the panel.
“When the panel was constituted, I was not consulted like some other justices were to establish whether or not I would be on the panel. It therefore defeats my understanding as to why, when the budget was made for hearing the appeal, all the 11 justices were budgeted for and yet four of them were not hearing but merely participating in discussions,” Justice Mwondha stated.
The justices who heard the age limit appeal which was dismissed on the majority decision of 4:3 were Chief Justice Katureebe, Stella Arach Amoko, Jotham Tumwesigye and Rubby Opio-Aweri who dismissed the appeal and upheld the removal of the presidential age limit clauses from the constitution.
Others justices are Lillian Tibatemwa Ekirikubinza, Eldad Mwangusya and Paul Mugamba who dissented and nullified the amendments that scrapped the presidential age limit clauses.
Chief Justice Bart Katureeba
Chief Justice speaks out
Daily Monitor contacted the Chief Justice on why there was a proposal to facilitate all the 11 justices with honoraria yet only seven of them were selected to the panel that heard the age limit appeal.
In his response, Justice Katureebe said since this was a unique appeal, just like the last presidential election petition, he wanted to involve all the 11 justices in hearing it for purpose of benefiting from each judge’s expertise, hence all had to be facilitated.
He added, however, that upon inquiring on the composition of the coram (panel for hearing a case), he was cautioned that the age limit appeal was a constitutional appeal whose coram has to be seven justices and not 11 as he had thought.
“I later decided that all the 11 justices be involved in the appeal even if not all of us were to be on the seven-man panel. The idea was to deal with age limit appeal collectively as a court. For example, Justice Augustine Nshimye wrote us a paper on parliamentary proceedings, so we benefited from his wisdom despite him not being on the panel that was constituted to hear the appeal,” Justice Katureebe said.
On why the Supreme Court justices had to be paid honoraria yet they are paid a monthly salary to do the same work, he said from time immemorial, judges are paid an honoraria when they handle special cases/assignments.
He added that even the ongoing trial of former commander of the Lord’s Resistance Army (LRA) rebels, Thomas Kwoyelo, the judges handling it are being paid an honoraria.
He said the justices of the Constitutional Court, who first heard the age limit petition from Mbale District, also earned the same, adding that it is not a new practice in the Judiciary.
“Paying honoraria to judges has been a norm in the Judiciary and it has not started with my regime. I think it is embedded in Public Service standing orders. The honoraria is paid to judicial officers for the longer hours they put in particular cases, the research involved among other considerations,” Justice Katureebe said.
“The honoraria was not only paid to the justices but also the support staff such as the bodyguards, drivers, clerks who were involved in the hearing of the age limit appeal. I remember on the eve of the judgment day of the last presidential election petition, we left court coming to 3am. But on how the honoraria is paid, kindly contact our permanent secretary,” he added.
Accounting officer explains
Explaining how honoraria is paid, Mr Kagole Kivumbi, the secretary to Judiciary (accounting officer of the Judiciary), cited the Circular Standing Order No. 4 of 2008 that provides for it.
He said honoraria is paid to officers who are assigned exceptional work which is of importance to government, work outside their normal work scope, requires use of their professional skills and officer’s active participation, among other reasons.
“The format for calculating the honoraria is you count the number of days worked on the special assignment and multiply by 60 per cent of the officer’s monthly salary,” Mr Kagole said.
“It is little money compared to lawyers in private practice and remember judicial officers are not allowed to do side income business due to conflict of interest. Much of the work in the Judiciary falls under this scope since majority of the judicial officers spend most hours of the day in court hearing cases and then later write judgments and read literature outside official court hours, including weekends,” he added.
In her memo to the Chief Justice, Ms Mwondha alleged that she was deliberately excluded not only from hearing the age limit appeal but other activities/workings of the Supreme Court despite her seniority.
She said the actions of the CJ have left her in abeyance and the same have reduced her to a mere spectator.
“By so doing, I have to strongly state now that your lordship have consistently and deliberately depicted me as a non-performer for your own reasons unknown to me. Right from the time I was appointed and joined the Supreme Court, you have completely ignored my seniority and experience on the Bench in the Judiciary and elsewhere,” she states.
“In conclusion and for avoidance of doubt, let me restate that the reason as to why I am not participating in the appeal in issue is not that I am out of the country…. I have put the record straight bearing in mind that the truth shall set me free.”
Supreme Court Justice, Stella Arach Amoko
However responding to the allegation, Chief Justice Katureebe said he had a discretion as the head of the court on which judge to pick and include on the panel on account that the rules could not allow him have all the 11 justices on the panel.
The Chief Justice said he rarely constitutes panels to hear cases. He said this task is for the most senior judge on the Bench who in this case is Justice Stella Arach Amoko since Justice Esther Kisaakye had been unwell.
“Composing a panel is a discretion of the Chief Justice. She (Justice Mwondha) is the only one complaining out of the four justices who were left out, why?” Chief Justice Katureebe asked.
By press time, Mr Emmy Vincent Mugabo, the court registrar, was yet to reveal the actual number of cases that Justice Mwondha has heard since her appointment and in how many cases she has appeared on the panel with the Chief Justice.
When Daily Monitor visited Justice Mwondha at her chambers yesterday seeking a comment about he claims, she said she was “very busy” and therefore could not speak on the matter. On the budget to facilitate the hearing of the appeal, the initial requisition was Shs292m.
However, along the way in February, the court sought an additional Shs275m for concluding judgment writing, bringing the total to Shs567m.
A brief breakdown of how the facilitation cash was spent
Honoraria for dinner allowances
Honoraria for dinner allowances.
Served in court to litigants during the hearing. 200 boxes
11 research assistants, facilitation for two librarians , 12 secretaries, Three court clerks.
Over time, dinner, allowances
Chief Justice Shs24m, ten justices Shs116m, two registrars Shs10m, one magistrate Shs2m.
For support staff like research assistants, secretaries, systems administrators, senior accounts, office supervisor, process servers, attendants, body guards and court orderly for over time and dinner allowances.
Stationery, transport, bound copies for justices, Attorney General, appellant lawyers, computer services, photocopying machines, generator, toilets and fuel for the generator.
Transport refund for four clerks, tonner for photocopier and 11 computer printers, photocopying paper,photocopying file proceedings and attachments
Preparation for pre-hearing conference
-Honoraria for presiding 11 justices, 2 registrars, 1 magistrate, 10 research assistants, 4 clerks, 12 secretaries, 10 attendants, 17 drivers, 32 body guards, refreshments 2 boxes of water, splash, fruits, apples, pineapples, bananas and snacks.
-Facilitation for two registrars and one magistrate –Shs8.3m.
Photocopying 50 cartons, drafting duplicating paper, allowances for 11 research assistants, 12 secretaries, 32 body guards, 30 police officers, break tea and eats-(outsourced) to be served in court and lunch for justices and registrars. Justices eats, fruits, drinks and snacks during meetings and registrars.