{UAH} Daniel Kalinaki piece on Benjamin Odoki

It appears that President Museveni has reappointed Chief Justice Benjamin Odoki on a two-year contract. This is in apparent disregard of a recommendation from the Judicial Service Commission (JSC) to appoint Justice Bart Katureebe.

Attorney General Peter Nyombi has defended the decision as based in law. Several senior lawyers have privately dissented, again basing on the law, and called the appointment illegal at worst, and illogical at best.
The matter has been complicated by news that on his retirement, after reaching the age of 70, Justice Odoki was called to the Supreme Court bench in Swaziland and graciously accepted.

It is a complicated matter. On the one hand, the President has the authority to appoint the chief justice. On the other, he is mandated to pick from names recommended to him by the JSC. There is a reason why the framers of the Constitution said so. 
The framers of the Constitution must also have had a good reason for imposing an age limit on the position. In some countries, chief justices serve until they are senile and dripping at the mouth. We chose to retire them while they can still read their grandchildren bedside stories. 
Whatever the law says – and hopefully the Constitutional Court can be asked to pronounce itself on this – there is something uncomfortable about motive.

Did the President wish to reward his long-standing friend (Chief Justice Odoki was a year ahead of Museveni at the University of Dar es Salaam) by giving him a chance to earn the new generous salaries granted to the bench? 
Is this appointment, taken together with the equally controversial and potentially unconstitutional appointment of Gen Aronda Nyakairima, a serving soldier, to a partisan Cabinet, part of a wider testing of the waters ahead of more constitutional amendments?

What is the connection, if any, with MP Eddie Kwizera's attempts to extend judges' age limits and how long before someone, pointing unhelpfully in the general direction of Uncle Bob Mugabe, the Zimbabwean President, argues that the presidential age limit should be lifted to 85 or 95?
Unfortunately, our reference point is not very comforting. The plans to lift term limits out of the Constitution started with James Kakooza and his fellow peasants in Rakai adorning themselves with dried banana leaves.

The city-dwelling elite laughed and made snide remarks about sorcery and the like. Then Museveni started wearing the stuff atop his suits, being carried on the back by frail old women and so on, and before long MPs were lining up to be paid to change the Constitution as if they had been bewitched.

It is not easy to see what the end game is other than to assume that it is political. But there are at least two things that can be done to push back in defence of the Constitution.
The first is to sue over both appointments. In South Africa, President Jacob Zuma attempted to reappoint his buddy and chief justice, Sandile Ngcobo, without the approval of parliament.

He was sued together with Ngcobo and the appointment was overturned and ruled unconstitutional. The legal details might be different but the spirit is the same.
The second thing is a personal decision by Justice Odoki. Does a man who led the commission that drafted our Constitution want to end his long legal career mired in such controversy?
I doubt that Justice Odoki would be inspired by financial gain, seeing that he was appointed to the bench at 35 and has had more than three decades to build a retirement nest.

Still, should that be the case, doesn't the Swaziland appointment and the other international courts on which he sits offer a tidy post-retirement income?
If not, let the Honourable Justice just say the word so that citizens who are so inclined can pass the hat around and prepare him a golden parachute.

The eyes of many Ugandans are on you, Justice Odoki, and the Constitution you helped create. If you choose to turn down your reappointment to the Uganda bench as chief justice, you would have stood up for the culture of constitutionalism and the rule of law that your many books repeatedly refer to. The Swazi appointment is a useful excuse, should you feel uncomfortable saying no to your friend.

Should you decide to accept the appointment, please take a copy of the Constitution and throw it into your fireplace and see in the rising smoke the respect many still had for you.
I could have offered the same advice to the new Honourable Minister of Internal Affairs but one is advised to be careful – to stand warned, stand advised – around serving officers.

dkalinaki@ke.nationmedia.com

Twitter: @Kalinaki

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