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JUSTICE KENETH KAKURU QUITS BUT HOW WILL HE BE REMEMBERED

By Mulengera Reporters 

In just the 8 years he has been at the bench (2013-2021), Justice Kenneth Kakuru has created impact and a lasting legacy to the levels many of his peers and contemporaries can only fantasize about. Before accepting appointment on the Court of Appeal in 2013, Kakuru, arguably contemporary Uganda’s most popular judge, operated a private law firm (Kakuru & Co Advocates) that was based in Old Kampala. Environmental protection and human rights protection were his specialties and indeed there was euphoria among fellow CSOs activists that he would move mountains as a member of the bench.

Justice Kakuru, who in 2001 was part of the Kizza Besigye campaign effort, has not disappointed as many colleagues in the Civil Society movement insist he has exceeded their expectations in just the 8 years he has been on the bench. He has always taken no prisoners and in the process distinguished himself as a prudent judge in the league of colossuses like GW Kanyeihamba, Tsekooko, Joseph Mulenga, Amos Twinomujuni and Constance Byamugisha whose judgments continue to be appreciated to have deepened the frontiers of freedom and democracy in this country while enriching jurisprudence.

On consolidating himself as a member of the bench, Kakuru instantly showed displeasure at the lack of seriousness with which fellow judges approached work and responsibility that comes with occupying public office. During the judges conference of 2017, Kakuru took to the microphone during the plenary session and demanded that financial resources, which were already scarce and repeatedly given as the reason to justify failure to deliver judgments on time, be put to better use by abolishing the ritualistic annual event called the judges conference so that the resultant savings go into delivering more judgments for the benefit of the public. His controversial views excited many but there were also among some colleagues who had deliberately taken to being floppy and in the process making the entire judiciary seem inefficient.

In the same submission, Kakuru also wondered why the Inspectorate of Courts, then headed by Justice Augustine Nshimye, wasn’t equally being tough on higher hierarchy courts like High Court, CoA and Supreme Court just like they were when it comes to cracking the whip on floppy judicial officers serving in lower Magisterial courts. His views displeasured some of the colleagues in the authority positions in the judiciary but Kakuru wasn’t bothered as long as he uttered what he considered to be the truth. Over the years, a group of progressives emerged at the CoA and these came to be perceived as being patronized by Kenneth Kakuru hence the moniker “the KK camp” whose members were famous for occasionally standing up to Justice Stephen Kavuma who many in the public resented having perceived him as a cadre judge.

Besides lawyer Daudi Mpanga, whose wings he trimmed for objecting to a ruling court hadn’t yet delivered, Kakuru also famously blew up the bosses of Kyambogo University governing council who wanted to use courts of law to overcome the transformative Kenyan Professor Omollo Ndiege and herd him out of office. They argued that even when the law was on his side, Court should not permit Ndiege to remain VC because his continued stay in office would ignite staff strikes. Kakuru said the law had to be applied as is asserting that court wasn’t bothered with what happens outside the courtroom and then proceeded to deliver a pro-Ndiege ruling. The Kenyan professor had become unwanted simply because he stood up and repeatedly said no to the mighty who wanted to use his VC office to grab public land in favor of a private investor.

In the Mpanga case, the matter related to the appeal his client David Chandi Jamwa had lodged in the CoA challenging his sentence. Three justices, namely Kakuru, Stephen Kavuma Opio Aweri, had heard the appeal whose judgment was being delivered at a time former DCJ and Ag CJ Stephen Kavuma had ceased to be a member of the bench. Mpanga’s contention was that it was improper for Kakuru to ready himself to deliver a judgment without the 3rd justice (Kavuma) making his input. Kakuru wondered how Mpanga, whose client wanted to arrest the judgment, had come to know that the judgment was reflecting only 2 justices while excluding Kavuma (yet the same hadn’t yet been proclaimed). Kakuru humiliatingly ordered the otherwise very prudent lawyer to sit down while advising him to prepare to appeal in case the judgment ended up being reflective of the injustices and anomalies he was suspecting.

In Mbale during the hearing of the Togikwatako petition, Kakuru was equally hard on both the petitioner’s and state lawyers whenever he felt they were making imprudent submissions. That is how he endeared himself to millions of Ugandans who were keenly watching the proceedings on TV. In the end Kakuru granted the petition implying the Magyezi amendment, which resulted into deletion of age restrictions on who becomes Presidential candidate, hadn’t been enacted properly including failing to adequately consult the people of Uganda.

He was the only dissenting judge as the others (Remmy Kasule, Owiny Dollo, Cheborion Barishake and Elizabeth Musoke) cleared the thing enabling Gen Museveni to move towards being President for life as age was the only remaining limitation standing in his way. The matter proceeded to Supreme Court on appeal where three justices agreed with Kakuru though majority upheld the Mbale decision. That Mbale ruling, more than anything else, amplified the Kakuru name recognition and it no doubt explains why his positive memory will last and be celebrated forever. Gen Museveni would actually be home by now looking after his cows and grandchildren had majority justices seen things the Kenneth Kakuru way.

Justice Kakuru also famously led other CoA justices to deliver a ruling that in effect constrained the President from freely appointing serving judges for non-judicial assignments including Jane Abodo being DPP, Irene Mulyagonja being IGG and Simon Byabakama being EC chairman. Their ruling was to the effect that such judicial officers’ deployment outside the judiciary work must be preceded by them writing to the JSC seeking to be allowed to resign their judiciary positions. It’s something which excited many in the public court but that was short-lived as the learned Attorney General rushed to the less popular Supreme Court and stayed execution or implementation of the Constitutional Court ruling (it’s also Court of Appeal as well under Article 137).

Under Kakuru’s leadership, as the judge leading the panel, the Constitutional Court this very year equally declared any trial of civilians and non-members of the armed forces in the military court martial unconstitutional. This was under the petition of ex-Nakawa MP Mike Kabaziguruka who personally had suffered dramatic trial in the court martial after he was accused of treason and plotting to bump off Gen YK Museveni while at his farm at Kisozi Gomba district. The ruling had excited larger sections of the population because it came at a time when many civilian NUP supporters were facing trial in the military court yet they aren’t soldiers. Still the very unpopular Supreme Court, headed by the equally unpopular Alfonse Owiny Dollo, intervened, at the instigation of the AG, and stayed execution.

Kakuru also famously registered his veiled approval of Kizza Besigye’s defiance politics when he delivered a ruling admitting that the rampant arrests of the defiant politician from Rukungiri by the state, to curtail his participation in public protests, was unconstitutional and violated his human rights as a Ugandan but implored him to refer the same in his own courts since he had previously over the years been registering his lack of faith and belief in state institutions including the judiciary.    

Aged 63 years, Kakuru is retiring this early on grounds of ill health having become terminally ill following the loss of his wife who succumbed to cancer years earlier. His letter, seeking early retirement, was addressed to the CJ Dollo and JSC boss Benjamin Kabito though the very final word to release him ultimately lies with Gen YK Museveni, a man whose interests Justice KK has been perceived to be ruling against whenever he got the opportunity to do so. Otherwise in absence of this illness, Kakuru (who currently is concentrating on writing his pending judgments as opposed to taking on any new assignments) would have been eligible to remain an active member of the bench up to the age of 70. This simply implies that the very popular judge is exiting 7 years earlier. Gratefully, he won’t be suffering much financial destitution since these days all Ugandan judges retire with their salaries and other benefits.   (For comments on this story, call, text or whatsapp us on 0705579994, 0779411734, 0200900416 or email us at mulengera2040@gmail.com).

 

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