Kanyeihamba; Recall your own ruling on Tinyefuza in 1998
Since last week’s Supreme Court ruling that upheld an earlier decision that the 2017 Constitutional amendment which among other things lifted the presidential age limit for candidates seeking office of president, there has been condemnation of judges who made the majority decision. The amendment also removed the age limit requirement for candidates seeking district chairperson seat.
The amendment then extended the period for filing presidential election petition from ten to fifteen days, and hearing and determination of petition from thirty to sixty days, giving litigants and court ample time. The ruling vindicates majority NRM MPs and supporters against false accusations by the opposition that parliament had no powers to remove age limit, allegedly because it alters the basic structure of the Constitution.
To the critics, all of a sudden, Chief Justice Bart Katureebe, Jotham Tumwesigye, Stella Arach Amoko, and Opio-Aweri, became bad, incompetent, biased, partisan and unprofessional judges. Surprisingly, this condemnation is peddled by would-be reasonable politicians and professionals, yet the same judges received accolades from them when it kept NRM ‘rebel MPs in parliament.
George W. Kanyeihamba, a former justice of the Supreme Court, who knows, that decisions of courts are often unpleasant to unsuccessful litigants flayed his colleagues. His rulings like when he refused to vacate the Coram in Attorney General vs. Maj. Gen. David Tinyefuza, 1997 left sour taste in many mouths. In 1996, Tinyefuza, announced that he had left the UPDF because it wanted to discipline him for having testified outside the written terms given by then Army Commander, Maj. Gen. Mugisha Muntu. Aggrieved, Tinyefuza petitioned the Constitution Court in Petition No.1 of 1996 and five Justices, S.T. Manyindo, DCJ; G.M. Okello, J; A.E.M. Bahigeine, J; J.P.M. Tabaro, J; and F.M.S. Egonda Ntende, J, all ruled in Tinyefuza’s favour declaring that his membership seized in 1993 when he was appointed Senior Presidential Advisor.
However, the Attorney General appealed in the Supreme Court, and Tinyefuza demanded that Kanyeihamba should vacate the Coram. Tinyefuza argued that as former Commerce minister, Attorney General, and Presidential Advisor on Human Rights, Kanyeihamba is partisan and under control by President Yoweri Museveni. Kanyeihamba refused to vacate, and indeed subsequently ruled against Tinyefuza, and to-date Tinyefuza remains in the UPDF. In his ruling, Kanyeihamba said the UPDF was disciplined and professional with well-established procedures, and it is dangerous to let soldiers make unilateral decisions.
Kanyeihamba has been so vicious against the Justices who delivered the majority decision accusing them of political partisanship, lacking detail and depth in how they reached decisions especially on consultations. Kanyeihamba claimed that the Judges relied on “falsely sworn affidavits” of “one or two Members of Parliament of their ilk.”
Evidently, Kanyeihamba hadn’t read the entire judgment otherwise, CJ Katureebe (pages 37-45) quoted at length, not from the affidavits, but Parliament Hansard of December 20, 2017. Other judges similarly quoted. Katureebe, quoted MP Joy Atim Ongom (UPC Lira district) who said she consulted over six thousand people and all told her “No”, not to “touch” the Constitution. Katurebe further quoted Michael Kabaziguruka (FDC Nakawa) who said he consulted in all twenty three parishes where he was told not to amend the constitution.
Furthermore, Katureebe, quoted Francis Mwijukye (FDC Buhweju), who claimed he held fourteen rallies and in all of them people told him they “were interested in peace and stability, and therefore the constitution shouldn’t be amended,” as amending could cause instability. CJ Katureebe quoted Angelline Osege (FDC) who reported having consulted in all ten sub-counties of Soroti district.
Osege said, “In no meeting did anyone rise up to support the amendment.” And perhaps the most poignant graphic presentation by Osege was, “there are women in Soroti district that earn a living by cracking Katine rock. When I went to have a meeting with them, they told me to come and tell you that if you think they have forgotten what they did some years ago, they have not. They said they are going to abandon producing children and focus on Uganda. That is a very deep sentiment from village women that you cannot take for granted. What does it show? They take it as unfair. There is no amount of washing or laundering that will make this amendment look clean”
Citing the Hansard, Katureebe quoted Julius Ocen (Independent Kapelebyong) who said that he “consulted 8073 people throughout Kapelebyong County with five sub-counties and from outside my constituency. Go and tell the people of Uganda never to touch or temper with the Constitution of the Republic of Uganda.” Katureebe also quoted Theodore Sekikubo (NRM Lwemiyaga) who said he consulted his constituency and spoke “for other parts of Uganda who told him not touch the constitution and that President Museveni must retire.”
In the Constituent Assembly, Kanyeihamba was delegate for Rubanda, but they were never sent to conduct direct consultations. To the contrary, provisions in Justice Odoki’s Report and Draft Constitution were amended, or abandoned altogether by delegates who believed they knew Constitutional Law and Uganda’s best interests at the time. Politicians who rejected the promulgation of the constitution in 1995 are its most eloquent defenders today.