Outspoken judge says Judiciary was bolder under Wambuzi
Judge blasts Besigye, saying he didn't prove he won in 2006 despite the rigging
In this sixth part of MY STORY, Justice GEORGE KANYEIHAMBA who retires from the Supreme Court in November, talks about his time in the Judiciary. He also tells SSEMUJJU IBRAHIM NGANDA that he wants to see someone else at the helm of the ruling NRM.
After Constituent Assembly 1995
I remained a Member of Parliament (National Resistance Council) after the CA. Remember we were going for elections in 1996. That is when I called it quits. I was never defeated; I said I am no longer going to stand.
Because my original proposal, which they objected to in the CA, was to have those who were making the Constitution not stand for the next Parliament.
Because then they would act independently, they would be detached from their personal interests and would make a good constitution, but I was defeated.
But I maintained the principle. For me when we finished making the 1995 Constitution, I told the President and others that I will not be standing in the 1996 elections, and I didnt. That is when the President proposed that I should join the Judiciary and strengthen it; it was his suggestion.
Did you discuss the appointment?
There was very little to discuss once he said go to Parliament (for vetting). The procedure was to send in my name to be discussed. He said now that you are not going to stand for Parliament, I would like you to go to the Supreme Court and strengthen its personnel.
I accepted. Once I accepted, all I had to do was to write to the Judicial Service Commission saying I would like to be considered as a judge. The President didnt have much role to play other than to support me and to tell me he would like me to be a judge.
By that time, remember I was a Senior Presidential Advisor, until 1997 when I was appointed judge of the Supreme Court.
Supreme Court judge
Under Samuel Wako Wambuzi as Chief Justice, I think we were a very vibrant, purposeful and a very, very illustrious Judiciary. We really did everything that you would expect of a Supreme Court of any country. We made some landmark decisions.
Notably the referendum case (overturning a ruling of the Constitutional Court , which had annulled the Referendum and Other Provisions Act and by extension the Movement system), David Tinyefuza versus Attorney General; these were landmark decisions which will guide Uganda for a long, long time.
Life as a judge
It has been a wonderful experience despite some problems. I acknowledge there is a lot of corruption practiced, particularly by the administrators and the young people, but the powers that be have not really moved to combat it.
It is a very disappointing thing. The Judiciary is not adequately facilitated financially to do its work maximally, so for example we have about 26 judges in the High Court when they should be something like 50 or more.
The Court of Appeal is similarly handicapped, and above all the Supreme Court. The highest court in the land, which issues binding judgments, has not been facilitated properly and as I say, part of its business has been at a standstill for the last two years. So that is a disappointment.
Col. Besigye says he wont petition court again because of how you (Supreme Court) handled his 2001 and 2006 election petition?
Presumably I will not be there. Certainly going by the reluctance to appoint us acting judges, I will not be involved in case there is a petition in 2011 and may be because of the comments I have made, and so on and so forth. Even if I was to be there, somebody may move or I would disqualify myself from hearing those petitions.
It is unfortunate that Besigye should have made that comment. In other countries where politicians really see an advantage, he should have hailed those judgments as vindicating his charges that the election was on the whole fraudulent.
There was no evidence that he won anyway; he didnt win even if the election had been free and fair and the laws hadnt been violated, they didnt present evidence that actually I won.
Even his own witnesses, including experts, although we didnt really appreciate some of their analysis; they said had the election been free and fair, there being no intimidation, vote rigging, Museveni would not have won a majority.
Saying Museveni wouldnt have won the majority is not the same as saying Besigye would have won. So, the maximum that they could have achieved is to have the election nullified, so that they go for another election. He cannot say these are Museveni judges, whatever; therefore they were not fair, I should have won. That would be incorrect.
But he was correct in saying that there were irregularities, very massive irregularities to the extent that the Supreme Court on the whole said the election was not free and fair, and that the Constitution was violated.
So, he should have stuck to that and argue that as you can see, 90% I have been vindicated. My complaints were justified. He lost that opportunity to capitalise on the judgment of the Supreme Court, and that is lack of political foresight I think.
Where you have a judgment where four say we dismiss and three say we allow; that is almost winning. How can he now criticise that court? In your criticism, do you say Kanyeihamba, late Justice Arthur Oder and Justice Tsekoko who dissented, are also in Musevenis pockets or what? I have failed to understand his comments.
Message to the country before retirement
I tell the country a number of things, which I have gathered over the years. That in electing your representatives, you must reflect on what you are electing them for.
Are you electing them to give you food, to enrich you personally, or to govern this country properly and justly? And therefore, it is very important that you elect correct leaders because if you elect wrong ones, corrupt ones or those who have ulterior motives, the governance will follow those wrong visions; always remember that.
Secondly, I think that the country should come up openly and not fear. Those who govern by fear can never achieve much. Those who govern by fear are helped by evil. Because it is only evil that puts it into the mind that let that man decide what I want and if he doesnt, I am going to flatten him, let me facilitate him or her to decide wrongly. We need to reflect on that.
Thirdly, there is no need to fear anybody; we are all born free Ugandans. This is our country, if it is governed well, we shall all benefit. If it is governed badly, we shall all be victims.
Those should be reminded of the statements that I got from the Bible; I think it is Ecclesiastes Chapter 9 verse 18 - to the effect that being governed by wisdom is preferable to being governed by arms of war. That wisdom is preferable to any or all arms of war.
You should always choose properly, that is not in the Bible but elsewhere; that you should always participate and vote for the right leader because if you chose the wrong ones and you are misgoverned, you will have to regret afterwards.
There have been occasions when Ugandans, one way or another, have had to regret their choice. Dont accept to be led by events, you should always lead the events. I recently gave a lecture at Mbarara and said that we should not always wait until the events dictate to you.
If we want the 2011 elections to be free and fair and to reflect the will of the people, we need to work now, to discuss issues.
In that paper I talk about some judges saying that when the Constitution says that the Supreme Court shall carry out an inquiry and give its reasons, that it is the same thing as it shall have a trial and give judgment. The two are radically different. That should be discussed now. Not in 2010 and not in 2011, so that if it requires legislation, we put it there.
The political parties have let us down. I saw in the papers someone speaking on behalf of the UPC saying that in 2011, they will get 60% [of the vote]. Where does he get those statistics from? In the election, whether rigged or otherwise, 2001, 2006, UPC, DP didnt get more than 2%; I think each one got 1%. How do you convert 1% in 2006 to a 60% majority? We must stop this wishful thinking.
The Movement has not stopped the other political parties from being popular, projecting their policies to the people to become more popular than the NRM. In the world no political party ever surrenders power, saying we have had enough therefore we are surrendering power.
It is up to the opposition to become more attractive to get into the countryside, instead of mourning all the time. They themselves, including FDC, at one time talked about their leadership and indeed one of the most admired generals, Gen. Mugisha Muntu contested; at least for them they showed there were some contests. What do the other parties do, including the NRM?
At least even if you know that our current leader will be re-elected, show the country that he has been subjected to democratic discipline and lets have another candidate. For me I dont bat for the other parties, I am still inherently inside me a Movement person.
Believing in the 10-Point Programme that popularised us in the past, and my claim has been that the Movement can change its leadership and I would applaud it. But every time they have had a meeting, they miss the opportunity. Let us at least be transparent and say Kanyeihamba is going to oppose Museveni in the leadership of the Movement and I will be defeated, I have no doubt.
But at least we shall have shown the country that we are not afraid of other supporters.
You know I am still qualified to be a president at my age and I could spring it to anybody and say I am going to stand as a candidate and contest the leadership of the Movement. I wonder what they will do. I could put the spanner in the works!
If you met Museveni today
I would say that in principle I was against lifting term limits because you, Mr. President, praised that provision in 1995 when we were promulgating the Constitution. You are on record as having said, we have made the best Constitution in the land and you will go to the bush again if anybody tampers with it.
And nobody thought it would be the Movement to tamper with it first. There is one area where he disagreed with all of us and I would acknowledge it, on land provisions. He wasnt happy that everything was privatised so that the government couldnt develop [land].
But on issues where we agreed and there was consensus, you should have upheld the Constitution. Secondly, in an attempt to change the Constitution, many of the provisions you put in during the amendments, were not tested by the people.
The 1995 Constitution, everything was taken upcountry and we agreed on it. The Movement changed the Constitution without going back to the people and I would tell him that was a breach of the contract with the people.
I dont mind if they had taken it to the people and they agreed to remove term limits, but the people having insisted and this was a non-controversial issue; that there should be term limits, they shouldnt have changed it unilaterally without first going to the people. So, we betrayed the people.
Lastly, I would tell him that recently you made (during the July 12 WBS TV show) a statement [to the effect that he would quit power after 75]; in my opinion that statement is vague, if it is true. It was a heading in the newspapers; that the President has said he will stop being President after the age of 75.
Why give such a statement? If he was to say, I will leave the presidency when I get to 75 or any term I get at the age of 75 will be the last one, people would understand. But if you say, I will stop being President after I am 75, it could be when you are 81, when you are 100, when you are 89, or whatever because all that will be after.
I think please Mr. President, we respect you, you have done a lot of work but also respect us. We are also intelligent to read between the lines. When a man says I will stop at 75, in other words after I am aged 75, that stretches until you are 100.
Is that what you mean or not? I would say if really what you meant was should I become 75, I will stop being President. Many of us will applaud that statement even if we didnt approve the removal of term limits.
Because then you will give certainty to the country that come the age of 75, they should look for someone to succeed you in the Movement, somebody to succeed you in the country, whether it is the Movement or somebody else; for me I have no problem with that.
But please, can you clarify what exactly you meant by saying I will cease being President after 75? Because that gives you even until you die! Is that what you meant? But if you meant when I become 75, I will stop being President, many Ugandans will welcome that one because you will have clarified an issue that has engaged us since 2000.
For me I would say let 2011 be your last term. But if he says he has got two more terms, I think many Ugandans would welcome that. Because it gives certainty; at the moment people dont know.
Next, Kanyeihamba concludes his story with his childhood, school time and how a gay man almost raped him in Germany .
Judge blasts Besigye, saying he didn't prove he won in 2006 despite the rigging
In this sixth part of MY STORY, Justice GEORGE KANYEIHAMBA who retires from the Supreme Court in November, talks about his time in the Judiciary. He also tells SSEMUJJU IBRAHIM NGANDA that he wants to see someone else at the helm of the ruling NRM.
After Constituent Assembly 1995
I remained a Member of Parliament (National Resistance Council) after the CA. Remember we were going for elections in 1996. That is when I called it quits. I was never defeated; I said I am no longer going to stand.
Because my original proposal, which they objected to in the CA, was to have those who were making the Constitution not stand for the next Parliament.
Because then they would act independently, they would be detached from their personal interests and would make a good constitution, but I was defeated.
But I maintained the principle. For me when we finished making the 1995 Constitution, I told the President and others that I will not be standing in the 1996 elections, and I didnt. That is when the President proposed that I should join the Judiciary and strengthen it; it was his suggestion.
Did you discuss the appointment?
There was very little to discuss once he said go to Parliament (for vetting). The procedure was to send in my name to be discussed. He said now that you are not going to stand for Parliament, I would like you to go to the Supreme Court and strengthen its personnel.
I accepted. Once I accepted, all I had to do was to write to the Judicial Service Commission saying I would like to be considered as a judge. The President didnt have much role to play other than to support me and to tell me he would like me to be a judge.
By that time, remember I was a Senior Presidential Advisor, until 1997 when I was appointed judge of the Supreme Court.
Supreme Court judge
Under Samuel Wako Wambuzi as Chief Justice, I think we were a very vibrant, purposeful and a very, very illustrious Judiciary. We really did everything that you would expect of a Supreme Court of any country. We made some landmark decisions.
Notably the referendum case (overturning a ruling of the Constitutional Court , which had annulled the Referendum and Other Provisions Act and by extension the Movement system), David Tinyefuza versus Attorney General; these were landmark decisions which will guide Uganda for a long, long time.
Life as a judge
It has been a wonderful experience despite some problems. I acknowledge there is a lot of corruption practiced, particularly by the administrators and the young people, but the powers that be have not really moved to combat it.
It is a very disappointing thing. The Judiciary is not adequately facilitated financially to do its work maximally, so for example we have about 26 judges in the High Court when they should be something like 50 or more.
The Court of Appeal is similarly handicapped, and above all the Supreme Court. The highest court in the land, which issues binding judgments, has not been facilitated properly and as I say, part of its business has been at a standstill for the last two years. So that is a disappointment.
Col. Besigye says he wont petition court again because of how you (Supreme Court) handled his 2001 and 2006 election petition?
Presumably I will not be there. Certainly going by the reluctance to appoint us acting judges, I will not be involved in case there is a petition in 2011 and may be because of the comments I have made, and so on and so forth. Even if I was to be there, somebody may move or I would disqualify myself from hearing those petitions.
It is unfortunate that Besigye should have made that comment. In other countries where politicians really see an advantage, he should have hailed those judgments as vindicating his charges that the election was on the whole fraudulent.
There was no evidence that he won anyway; he didnt win even if the election had been free and fair and the laws hadnt been violated, they didnt present evidence that actually I won.
Even his own witnesses, including experts, although we didnt really appreciate some of their analysis; they said had the election been free and fair, there being no intimidation, vote rigging, Museveni would not have won a majority.
Saying Museveni wouldnt have won the majority is not the same as saying Besigye would have won. So, the maximum that they could have achieved is to have the election nullified, so that they go for another election. He cannot say these are Museveni judges, whatever; therefore they were not fair, I should have won. That would be incorrect.
But he was correct in saying that there were irregularities, very massive irregularities to the extent that the Supreme Court on the whole said the election was not free and fair, and that the Constitution was violated.
So, he should have stuck to that and argue that as you can see, 90% I have been vindicated. My complaints were justified. He lost that opportunity to capitalise on the judgment of the Supreme Court, and that is lack of political foresight I think.
Where you have a judgment where four say we dismiss and three say we allow; that is almost winning. How can he now criticise that court? In your criticism, do you say Kanyeihamba, late Justice Arthur Oder and Justice Tsekoko who dissented, are also in Musevenis pockets or what? I have failed to understand his comments.
Message to the country before retirement
I tell the country a number of things, which I have gathered over the years. That in electing your representatives, you must reflect on what you are electing them for.
Are you electing them to give you food, to enrich you personally, or to govern this country properly and justly? And therefore, it is very important that you elect correct leaders because if you elect wrong ones, corrupt ones or those who have ulterior motives, the governance will follow those wrong visions; always remember that.
Secondly, I think that the country should come up openly and not fear. Those who govern by fear can never achieve much. Those who govern by fear are helped by evil. Because it is only evil that puts it into the mind that let that man decide what I want and if he doesnt, I am going to flatten him, let me facilitate him or her to decide wrongly. We need to reflect on that.
Thirdly, there is no need to fear anybody; we are all born free Ugandans. This is our country, if it is governed well, we shall all benefit. If it is governed badly, we shall all be victims.
Those should be reminded of the statements that I got from the Bible; I think it is Ecclesiastes Chapter 9 verse 18 - to the effect that being governed by wisdom is preferable to being governed by arms of war. That wisdom is preferable to any or all arms of war.
You should always choose properly, that is not in the Bible but elsewhere; that you should always participate and vote for the right leader because if you chose the wrong ones and you are misgoverned, you will have to regret afterwards.
There have been occasions when Ugandans, one way or another, have had to regret their choice. Dont accept to be led by events, you should always lead the events. I recently gave a lecture at Mbarara and said that we should not always wait until the events dictate to you.
If we want the 2011 elections to be free and fair and to reflect the will of the people, we need to work now, to discuss issues.
In that paper I talk about some judges saying that when the Constitution says that the Supreme Court shall carry out an inquiry and give its reasons, that it is the same thing as it shall have a trial and give judgment. The two are radically different. That should be discussed now. Not in 2010 and not in 2011, so that if it requires legislation, we put it there.
The political parties have let us down. I saw in the papers someone speaking on behalf of the UPC saying that in 2011, they will get 60% [of the vote]. Where does he get those statistics from? In the election, whether rigged or otherwise, 2001, 2006, UPC, DP didnt get more than 2%; I think each one got 1%. How do you convert 1% in 2006 to a 60% majority? We must stop this wishful thinking.
The Movement has not stopped the other political parties from being popular, projecting their policies to the people to become more popular than the NRM. In the world no political party ever surrenders power, saying we have had enough therefore we are surrendering power.
It is up to the opposition to become more attractive to get into the countryside, instead of mourning all the time. They themselves, including FDC, at one time talked about their leadership and indeed one of the most admired generals, Gen. Mugisha Muntu contested; at least for them they showed there were some contests. What do the other parties do, including the NRM?
At least even if you know that our current leader will be re-elected, show the country that he has been subjected to democratic discipline and lets have another candidate. For me I dont bat for the other parties, I am still inherently inside me a Movement person.
Believing in the 10-Point Programme that popularised us in the past, and my claim has been that the Movement can change its leadership and I would applaud it. But every time they have had a meeting, they miss the opportunity. Let us at least be transparent and say Kanyeihamba is going to oppose Museveni in the leadership of the Movement and I will be defeated, I have no doubt.
But at least we shall have shown the country that we are not afraid of other supporters.
You know I am still qualified to be a president at my age and I could spring it to anybody and say I am going to stand as a candidate and contest the leadership of the Movement. I wonder what they will do. I could put the spanner in the works!
If you met Museveni today
I would say that in principle I was against lifting term limits because you, Mr. President, praised that provision in 1995 when we were promulgating the Constitution. You are on record as having said, we have made the best Constitution in the land and you will go to the bush again if anybody tampers with it.
And nobody thought it would be the Movement to tamper with it first. There is one area where he disagreed with all of us and I would acknowledge it, on land provisions. He wasnt happy that everything was privatised so that the government couldnt develop [land].
But on issues where we agreed and there was consensus, you should have upheld the Constitution. Secondly, in an attempt to change the Constitution, many of the provisions you put in during the amendments, were not tested by the people.
The 1995 Constitution, everything was taken upcountry and we agreed on it. The Movement changed the Constitution without going back to the people and I would tell him that was a breach of the contract with the people.
I dont mind if they had taken it to the people and they agreed to remove term limits, but the people having insisted and this was a non-controversial issue; that there should be term limits, they shouldnt have changed it unilaterally without first going to the people. So, we betrayed the people.
Lastly, I would tell him that recently you made (during the July 12 WBS TV show) a statement [to the effect that he would quit power after 75]; in my opinion that statement is vague, if it is true. It was a heading in the newspapers; that the President has said he will stop being President after the age of 75.
Why give such a statement? If he was to say, I will leave the presidency when I get to 75 or any term I get at the age of 75 will be the last one, people would understand. But if you say, I will stop being President after I am 75, it could be when you are 81, when you are 100, when you are 89, or whatever because all that will be after.
I think please Mr. President, we respect you, you have done a lot of work but also respect us. We are also intelligent to read between the lines. When a man says I will stop at 75, in other words after I am aged 75, that stretches until you are 100.
Is that what you mean or not? I would say if really what you meant was should I become 75, I will stop being President. Many of us will applaud that statement even if we didnt approve the removal of term limits.
Because then you will give certainty to the country that come the age of 75, they should look for someone to succeed you in the Movement, somebody to succeed you in the country, whether it is the Movement or somebody else; for me I have no problem with that.
But please, can you clarify what exactly you meant by saying I will cease being President after 75? Because that gives you even until you die! Is that what you meant? But if you meant when I become 75, I will stop being President, many Ugandans will welcome that one because you will have clarified an issue that has engaged us since 2000.
For me I would say let 2011 be your last term. But if he says he has got two more terms, I think many Ugandans would welcome that. Because it gives certainty; at the moment people dont know.
Next, Kanyeihamba concludes his story with his childhood, school time and how a gay man almost raped him in Germany .
