The International Commission of Jurists-ICJ has raised concern about the alleged unfair treatment of Supreme Court Justice Dr. Esther Kisaakye and the implications it may carry for the independence of the Judiciary in Uganda.
ICJ is an international human rights non-governmental organization with a standing group of 60 eminent jurists including senior judges, attorneys, and academics who work to develop national and international human rights standards through the law.
In an August 30, 2022 statement published on the ICJ website, ICJ contends that it has received reports indicating that Kisaakye has come under disciplinary proceedings by the Judicial Service Commission without proper notice or due process, which has led to the suspension of her salary.
”ICJ has received reports indicating that a disciplinary inquiry was initiated by the Judicial Service Commission (JSC) following Justice Kisaakye’s decision to deliver her dissenting judgment in one of the 2021 presidential election petitions. In that case, main opposition leader Robert Kyagulanyi Sentamu had filed a petition challenging the results of the 2021 presidential election”, reads the Statement.
It adds that Kyagulanyi made a follow-up application seeking leave of the Court to amend his main application but the Court refused to grant the sought leave, holding the application had been beyond the strict time limit provided by law within, which the petition should be filed.
“But Justice Kisaakye dissented, arguing that the Applicant had been deprived of his right to prepare the main application as he had been placed under illegal house arrest during the window of time he could have been preparing his application,” adds the statement.
According to the statement, while delivering her dissenting judgment, which was covered by journalists on March 18th, 2021, Justice Kisaakye alleged that Chief Justice Alfonse Owiny-Dollo had attempted to obstruct her from handing down her dissenting judgment.
The Chief Justice is reported to have ordered the confiscation of Justice Kisaakye’s files. ICJ noted that they have recieved reports that Justice Kisaakye is being investigated by the JSC on undisclosed charges.
“The ICJ also understands that the payment of Justice Kisaakye’s salary, housing, medical and other benefits has been stopped since July 2022 by the Secretary to the Judiciary, on allegations that she has been away from her duties without official leave since September 2021,” reads the statement further. According to the statement, Justice Kisaakye has since denied the allegations insisting that she was on duty from September 2021, went on leave from December 2021, and resumed her duties in June 2022.
Justice Kisaakye couldn’t be reached for comment as she neither replied to text messages from our report nor picked up her phone. However, the Judiciary Permanent Secretary, Pius Bigirimana confirmed the suspension of Justice Kisaakye’s salary on the grounds that she was away from duty.
“It’s true. She has not been working since September last year. But I came to discover it towards the end of July. It was actually brought to me by the media. I didn’t know. I followed it up. So I stopped paying her. How can I pay somebody who is not working? I would be reprimanded for that. The Constitution is very clear and I’m answerable on every expenditure in the judiciary,” Bigirimana told URN on phone.
Asked if there was any other problem, which could have led to the suspension of Kisaakye’s salary, other than her absence from work, Bigirimana, said there was no other reason that he is aware of. Asked if he summoned Kisaakye to explain why she was not working, Bigirimana said he wouldn’t do that because the Supreme Court Justice is supervised by the Chief Justice.
ICJ notes that International law and standards require that where there are allegations of professional misconduct, the right to a fair hearing includes the right to be duly notified of the charges and any disciplinary proceedings to be undertaken.
“Commencing a disciplinary inquiry against Justice Kisaakye without notifying her would constitute a violation of her right to a fair hearing. The decision to stop the payment of her salary, housing, medical and other benefits without first conducting fair disciplinary proceedings against her, and finding her guilty of misconduct which justifies such suspension of benefits would be a serious violation of Uganda’s obligations to ensure due process in cases involving the discipline of a member of the judiciary. It would also undermine judicial independence,’ the statement reads.
Dr. Rose Nassali Lukwago, the Judiciary Permanent Secretary and Secretary to the Judicial Service Commission wasn’t very clear when asked about Justice Kisaakye’s matters. “All I can say is that all those processes will be followed in the matter of Justice Kisaakye. There are no disciplinary decisions or sentences that have been passed. The process is ongoing but all I can say is it’s not a concluded matter. I’m not at liberty to say much”, Nassali told URN.
Shortly after the Kyagulanyi presidential election petition, lawyer Male Mabirizi petitioned the JSC to find the Supreme Court Justices who presided over that matter guilty of gross misconduct and accordingly remove them from office with the exception of Justice Kisaakye whose file was reportedly confiscated.
Nassali said this case has not yet been determined. Justice Kisaakye has since vowed never to be gagged by the Chief Justice, arguing that his action was unconstitutional.
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