Part 5: When Justice Kavuma issued “stupid” interim orders

Nile Post News

Early, this year, Justice Steven Kavuma, who retires at the end of this month, issued an interim order stopping Parliament or any individual from investigating the Shs 6bn bonus given to 42 government officials in the oil dispute cases between Uganda , Heritage oil and Tullow Oil over the capital gains tax.

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In doing so, Kavuma did not know that he had touched the raw nerve of the indefatigable Speaker of Parliament, Rebecca Kadaga

In a stormy House sitting, Kadaga described the order as “stupid” and threatened to halt all parliament’s activities if it was not rescinded

Following public pressure, Eric Sabiiti, the Electoral Commission lawyer, who was the brainchild of the petition, withdrew it, and tensions between the judiciary and parliament calmed down.

rnWhat has aided Kavuma, and not any other judge, to be in charge of all these interim order applications according to legal minds is rule 20 of the Court of Appeal rules

This rule, which gives the deputy chief justice overwhelming powers over the court, stipulates: “The sitting of the court and the matters to be disposed of shall be determined by the deputy chief justice and shall be advertised and notified in such a manner as the deputy chief justice may direct……”

rnAs Kavuma was issuing the interim orders his catchword was, “The registrar of the court is ordered to quickly fix the main petition so that it’s heard and disposed expeditiously.” rn

Truth is that despite Kavuma’s “directives” to have matters fixed quickly for hearing, nothing like that ever happened

As Kavuma prepares to step down, the court has 12 judges more than it has ever had in the past, but the case backlog has been increasing by the day.

According to national court census of 2016, the Court of Appeal and the Constitutional court combined, have a total of 5,836 pending cases which constitutes 5% percent of the pending cases (114,809) in the whole judiciary.

rnThe case backlog a side, Peter Walubiri, a distinguished constitutional lawyer, said there about 30 cases which were heard by either the Kavuma-led Court of Appeal or the Constitutional court but whose judgments have never been handed down

Walubiri said chances are high that the hearing of such cases will have to be re-done.

For instance, there is a peculiar case of the former NSSF boss David Chandi Jamwa who is enjoying unfettered freedoms, despite being a convict, thanks to the Court of Appeal.

In February 2011, Justice John Bosco Katutsi, then head of the Anti-Corruption court sentenced Jamwa to 12 years in prison having found him guilty of causing NSSF a financial loss of Shs 3 billion.

rnJamwa, however, did not last long in Luzira prison as he was granted bail, pending his appeal, by Justice Augustine Nshimye.

On October 23, 2014, the court of Appeal, presided over by Kavuma, Rubby Opio Aweri, who has since been promoted to the Supreme Court and Kenneth Kakuru heard Jamwa’s appeal.

Though the trio indicated that judgment will be given on notice, three years later they haven’t delivered anything, leaving Jamwa to move freely like a bird.

rnThere is also the intriguing case of Hassan Basajjabalaba, the former chairperson of the ruling NRM’s entrepreneur’s league.

In January, 2013, Basajjabalaba was arrested and spent some days in Luzira prison. rnHe was arraigned in the Anti-corruption court on charges of evading taxes worth Shs 20bn.

Basajjabalaba, together with his younger brother Muzamiru, were charged with three counts of conspiracy to defeat tax law, forgery of judicial document and uttering a false document.

rnProsecution alleged that Basajjabalaba, also chairman of Haba Group (U) Limited, conspired with his younger brother Muzamiru Basajjabalaba, to evade taxes amounting to Shs 20.1bn arising from a government compensation payment of Haba.

They allegedly committed the offence between 2010 and 2011 in Kampala. rn

Basajjabalaba ‘s trial was meant to start at the Anti-Corruption court on May 10,2013, before justice Catherine Bamugmereire who has since been promoted to the court of Appeal.

But on May 9, 2013, hours to the start of Basajjabalaba’s prosecution, Constitutional court justices: Steven Kavuma, Remmy Kasule, and Augustine Nshimye stopped Bamugemereire in her tracks by halting the trial.

The injunction was issued after Basajjabalaba ran to the Constitutional court claiming that his trail violates key tenets of the Constitutional.

rnOn July 1, 2014, Justices Kavuma, Kasule, Eldad Mwangusya, Ruby Opio Aweri and Solomy Balungi Bossa finally heard Basajjabalaba’s main petition challenging his prosecution.

rnThree years down the road, the judges have never delivered the judgment and no reason has been advanced.

rnWhereas he faces fraud charges, he has continued to enjoy unfettered freedom for over four years.

Then there is a case of the former permanent secretary in the ministry of Local Government, John Muhanguzi Kashaka who was sentenced to 10 years in prison by Justice Bamugemereire after she found him culpable of causing government financial loss of Shs 4.6 billion.

Kashaka, according, to Bamugemereire had a hand in the bungled procurement deal of 70,000 bicycles that were meant to be used by village LC1 chairpersons ahead of the 2011 presidential elections.

After his conviction Kashaka appealed and also asked for bail from the court of Appeal. rnIn early September 2014, Justice Solomy Bossa, sitting as single judge of the court of Appeal, declined to grant Kashaka bail on grounds that his case is grave

This prompted Kashaka then to file another bail application which was given to Justices Kavuma, Nshimye and Opio- Aweri who granted Kashaka bail while criticizing Bossa for having adopted what they termed as “the long departed, harsher and outdated approach” in bail applications.

rnFor now, Kashaka is out of jail yet he is a convict.

His appeal has never been heard.

Such scenarios have forced lawyers to arrive to the a conclusion that the Constitutional court and the Court of Appeal under Kavuma ‘s stewardship have aided many people in the obstruction of justice.

rn“That’s Kavuma’s court for you, a court with no justice,” Isaac Ssemakadde, a human rights lawyer and activist, said

“A court which obstructs justice cannot be a court. If you want to stop justice, you run to the court of Appeal or Constitutional court and you will get what you want.”rn

While Kavuma was quick to hear certain cases more so those that had political implications, he wasn’t when it came to others.

rnSpare a thought for Geoffrey Kazinda, the jailed former principal accountant in the Office of the Prime Minister (OPM).

Upon being sentenced to five years in jail by Justice David Wangutusi in 2013 for graft related offences, Kazinda immediately filed an appeal in the court of Appeal.

But last year in November Kazinda completed his jail sentence without his appeal being heard.

At least Kazinda although incarcerated because of the other graft offences he is still battling, is still breathing

But we may never know the fate the constitutional petition filed by former radio presenter Mulindwa Muwonge who died recently.

Muwonge’s petition sought to abolish elective political positions in the Kampala Capital City Authority area.

It was heard in April 2016 by Justices Kavuma, Kenneth Kakuru, Cheborion Barishaki, Hellen Obura and Elizabeth Musoke but by the time he passed on, the judgment hadn’t been delivered and it’s not clear when that will be done.

rn“That court is really sick. It has been turned into a court of injustices yet it is supposed to serve justice.” Walubiri said

“You file a constitutional petition and it’s even overtaken by events yet the constitution says that they must be heard expeditiously. Actually lawyers prefer going to the High court.”rn

As Kavuma bows out it should be remembered that Gerald Karuhanga and Eron Kiiza’s petition in which they were challenging his appointment as deputy chief justice was filed at the Supreme court.

It remains unheard, leaving a number of unanswered questions regarding Kavuma’s appointment in the first place.

Did he apply for the job?

Was he interviewed? rn

We may never know the answers to those crucial questions.

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