Attorney General defends Deputy Chief Justice's appointment

COURT|DEPUTY CHIEF JUSTICE

The Attorney General, William Byaruhanga has defended the appointment of Justice Richard Buteera as the Deputy Chief Justice (DCJ) by President Yoweri Museveni without applying for the job.

In his answer to a suit by lawyer Hassan Male Mabirizi in which he challenges Buteera's appointment at the regional court, Byaruhanga argues that the DCJ's appointment was consequential as a result of an Executive act by President Yoweri Museveni.

"Following the appointment of Justice Alfonse Owiny-Dollo as Chief Justice, the position of the Deputy Chief Justice fell vacant and the President in the exercise of his prerogative power provided under Articles 142 and 147 appointed Buteera to fill the position," Byaruhanga contends.

Byaruhanga insists that Buteera is qualified for the position having been among the top three finalists in the race for the Chief Justice position.

"Buteera was among the three candidates interviewed by the Judicial Service Commission (JSC) for the position of Chief Justice and were graded and ranked in terms of performance but JSC recommended Owiny -Dollo for the position of the Chief Justice," Byaruhanga argues.

The principal government legal adviser maintains that proper process was followed in the appointment of Buteera and has since been approved by Parliament.

Byaruhanga argues that the JSC received no complaint from any person that Buteera's appointment denied him/her an opportunity to compete for appointment if the vacancy had been declared.

 Byaruhanga's defence to the suit is based on an affidavit of Jane Kibirige, a clerk to Parliament.

In her affidavit, Kibirige claims that Buteera's appointment was cost-effective and saved government public funds that would have been expended in going through a lengthy recruitment process.

"The Parliamentary Committee on Appointments considered the appointment of Owiny-Dollo and Buteera in full compliance with Article 142 of the Constitution after weighed Mabirizi's complaint and found it devoid of any merit," Kibirige contends.

Genesis of the case

On September 8, this year, Mabirizi petitioned the East African Court of Justice challenging the appointment of Owiny-Dollo and Buteera as Chief Justice and Deputy Chief Justice respectively.

Mabirizi argues that their nomination, appointment and approval were purportedly flawed.  

He contends that Buteera was nominated to the position of Deputy Chief Justice which was not vacant at the time of his nomination, approval and appointment since it was being occupied by Owiny-Dollo.  

"The Uganda Judicial Service Commission (JSC) has never declared the position of Deputy Chief Justice vacant, never advertised it, never conducted interviews and never selected candidates for the same and Buteera never applied to become a Deputy Chief Justice and his appointment is null and void," Mabirizi contends.  

Article 144(1) of the Constitution provides that the Deputy Chief Justice shall be appointed by the President acting on the advice of the Judicial Service Commission and with the approval of Parliament.  

Mabirizi however says Buteera was appointed by the president without the advice of the JSC, which was purportedly not done.  

Mabirizi faults Parliament over failure to address the caveat he lodged against their approval.  

He says it was illegal and contrary to basic tenets of rule of law and democracy for Parliament to ignore his petition challenging the duo's appointment and approval.  

Mabirizi argues that the report of Parliamentary Appointments Committee was never presented to the Parliamentary plenary for debate and voting, which he says is unlawful and infringements on the fundamental and operational principles of the East African Community Treaty.  

The principles include good governance including adherence to the principles of democracy, the rule of law, accountability, transparency and the maintenance of universally accepted standards of human rights.  

Regarding Owiny-Dollo, Mabirizi argues that he is purportedly incompetent for the office.  

"Before his appointment, Owiny-Dollo had turned the Constitutional Court a no go area for people not represented by advocates and I tasted his wrath on April 9, 2018 at Mbale during the hearing of the Age limit case. He threw me to the dock as if I was standing criminal trial," Mabirizi contends.  

Mabirizi also accuses Owiny-Dollo of denying him a chance to cross-examine the Chief of Defence Forces (CDF) Gen. David Muhoozi during the Age limit case trial.  

In 2014, the Constitutional Court quashed the re-appointment of Chief Justice emeritus Benjamin Odoki on grounds that it was done without the recommendation of the JSC.

Born in 1987, Mabirizi became famous when he sued Kabaka of Buganda Ronald Muwenda Mutebi II to court over a purported illegal collection of land fees known as Busulu from people living on his land.