Somewhere around the bend of what used to be Kampala Pentecostal Church building was a famous barbershop. Few months before his governmental fell, Idi Amin Dada dropped by for a hair cut- driving himself. Seated in his usual chair was a man he had just appointed a judge. The conversation between them was short. The new Judge was a young man of just 35 years old. “ Please let them cut your hair,” said the judge. Amin declined. “ It is your turn he said” and left. Many things have changed since that day. Idi Amin is dead and the evangelical business around the corner has corporatized into “Watoto” church. Its wealth gospel may well have resonated with the Amin era “Mafuta Mingi” rugs to riches Uganda.
Across the road on the main thoroughfare known as Kampala road is a strip of beauty. A fountain, flowers overlooking the slope downtown to Kiseka market that shares a name with the deceased doctor-politician, Dr. Samson Kiseka, an old boy from Kings College Buddo where the judge had studied. There are many shiny new buildings around KPC reflecting the growing wealth in the city.
Nearby the new division of the commercial court just a few hundred meters away from the western entrance to Nakasero State House, one of the homes of Ugandan presidents. Kampala’s hills and valleys reflect two types of inequalities these days. The higher one goes the wealthier.
Downtown Kisekka Market was recently closed after clashes, a fairly regular occurrence, between underemployed angry youth whose political society is their poverty and their age. Uptown, older folks like the judge who is 70 this year and has shaken the hands of several presidents, is a generation for whom the mixture of the old slums with new glass covered buildings is a form of settled chaos- stability even.
Recently now retiring Justice Benjamin Odoki was packing his books and papers from the Chief Justice’s chambers, which have been his offices since 2001. His departure has been shrouded in controversy especially after a discussion paper attributed to him begun circulating in legal circles. Odoki has reached the mandatory retirement age for judges of the higher courts. The paper titled “ Tenure of Judges in Uganda” proposes to review the retirement age for judges, to implement the hiring of retired judges (he was last year appointed to the Supreme Court bench of the Republic of Swaziland- one of Africa’s last monarchies that has a similar policy), and other reforms. Odoki’s retirement is also, importantly, a very political matter. When he became judge in 1978, Uganda was undergoing a transfiguration that most African countries went through – military regimes, one party states pumped up by the cold war engaged in bloody arm wrestling for the power of the state.
President Yoweri Museveni ,who appointed Odoki Chief Justice, emerged victor at the end of that period in 1986. With the cold war gone a new path of “managed democracy” became the main arena of political competition. Twice Justice Odoki led the Supreme Court in a decision to uphold Mr. Museveni’s victory at the ballot in 2001 and 2006 against his main rival Dr. Kiiza Besigye, in this era of state-building.
The senior Judge and the President are in much better terms than in the Amin days. Their sons are good friends. In fact when Phillip Odoki wedded in 2009 at All Saints Cathedral, the Anglican powerhouse on Nakasero hill, it was the President’s son, Muhoozi Kainerugaba (Brig) who was his best man. The two younger men, one a son to the chief executive of the country and the other to the CEO of the judiciary are around the same age. In some respects therefore the debate about the retirement of Benjamin Odoki is about two things, one of them being political transition ( if the other is the generational tension at the heart of Ugandan society today).
Never in his long career as a judicial officer has Odoki witnessed a handover of power from one President to another, a civil affair that would be the crowning achievement of one who has seen the good, bad and the ugly of Uganda’s political evolution. However the wider debate about political transition is not just political- it is generational and in this way inevitable.
Uganda has one of the youngest and most volatile populations in the world. As seen from the signature protests now being patronized by Mr. Museveni’s political rival, Dr. Besigye, restless young people in the lower stratum of Ugandan society and impatient young professionals in higher society reflect the pressures of change regardless of the emerging preference of the Odoki generation for more managed version this new history.
That after all is what his discussion paper is about.
In the paper (a caveat here- while many have attributed the paper to him directly he has not commented on it publicly) he argues that the constitution allows for retired judges to be re-appointed to serve – a positive way to retain institutional memory and grow the experience of the bench. He however also ventures on thin legal ice to argue that since the constitution (which he was responsible for writing) allows for reappointment of qualified persons (including ex-judges who have reached retirement age), it means such persons also qualify to hold the Judiciary’s highest offices, that of Chief Justice and his deputy. The two are constitutional offices. There is something to be said about the retirement age for judges capped at 70 for the superior courts and 65 for the lower courts. Indeed when this writer met law school professor, Joe Oloka Onyango, he was in favor of a debate on the issue (this writer prefers US-Style Supreme Courts where appointments are for life- setting the Superior bench truly free)
Like other legal-political scholars Oloka however pointed out that the timing of the paper (around the time of Odoki’s retirement) was self-serving. There are other reasons however as to why the Odoki paper (if that’s what it is) is a political and not just a legal trojan horse. Varying the age of judges is a constitutional matter or at least one where parliament would be required to make new laws. However it would be unfair if it were attempted only for judges alone and not other offices established by the constitution including that of President. Since Uganda already has no term limits for President one can see how the latter implication of the Odoki paper may raise serious political opposition- maybe.
The other issue it raises is whether it makes sense for a country with a fairly young bar association to desire a change in the retirement age now when Justice Odoki can be replaced by several experienced judges or members of the bar. In other words should he not clear out so that his son’s generation can assume the challenges of the bench? There are other controversies both of a legal and political nature. Uganda’s judiciary is caught like other institutions in the shifting winds of the country’s inchoate political transition. Politics and political competition is now a legal battleground. One lawyer described it as the Judiciarization of Ugandan politics referring to the final arbiter position of the courts on important political matters.
Take for example the institutional pressures on the ruling NRM party. Since the NRM primaries in 2006, the party has been growing younger with every election. In 2011, more than 65% of its members were new Mps, mostly young, setting up a generational struggle as the main political question within the party. This year in order to reign in errant members (or to put it simply to allow the older guard breathing space to manage any transition) the party sought to expel “rebel Mps” and push for a decision to have them vacate their elected seats. The move failed in parliament and moved to the courts. Perhaps remotely linked to this is a proposal that emerged recently to separate like its rival, the FDC party, the office of party chairman and party flag bearer within the NRM.
This means that a flag bearer can emerge and if successful become President. In previous elections both President Yoweri Museveni and before that Dr. Besigye both held positions of being Chairman of their parties and presidential candidates. One would argue that one window of a managed transition is if Mr. Museveni supports a different presidential candidate but retains the powerful position of party chairman.
Since the party would be running the state, such a position would theoretically be as powerful as president especially if the party can recall its members ANC style. Either way only a judicial position that upholds the expelling of its members would encourage such strategizing. It’s important therefore for the NRM, like any ruling party, to have a friendly Chief Justice either way. One perhaps ideologically (in this case where ideology refers to managed change versus radical change) inclined to its programs. Obviously if the age for judges is varied, it opens legitimately the way to vary the age limits for President too, pushing the way through for another transitional window- that of the continued stay, bearing election to office, of President Yoweri Museveni.
According to usually reliable sources who have spoken to members of the Judicial Service Commission- when the names for potential Odoki replacements were tabled- it was the Executive that requested for Odoki himself to be included for consideration on the list. This would naturally make sense. Benjamin Odoki in many respects is the best candidate to replace himself in the eyes of the establishment. The uncertainty over his replacement thus reflects closely the wider political uncertainty.
But a bigger issue looms large in the Odoki-transition.
The judiciary in Uganda is the last institutional failsafe of destructive political competition. While it may be desirable for the political center to “manage” change, there are associated dangers of having an overly politicized judicial transition. If confidence in the judiciary flies out the window, so does much of the legitimacy of subsequent arrangements for the sensitive era of political transition be they through elections or other forms of elite compromise. A judiciary that bears confidence of the public is a key equalizer of competing political forces. Interviewed in April about his retirement, Justice Odoki gives a moving insight into his career and emerges as the kind of man who should be Chief Justice; confident, aware of the political minefield of the job. The interview given to Emmanuel Gyezaho (now “retired” from active journalism) is here. Odoki Q&A
However for the man who shaped the constitution of 1995 his decision to stay on- should he be re-appointed as suggested will mark a pivotal moment for that document. In the interview he says of history that it is composed of eras. “Eras come and go” he says. Indeed; the era when the 95’ constitution shaped political democratization would be coming to an end. A more uncertain era would begin.