Supreme court justice Kisaakye retires from judiciary 7 years early 

Supreme court justice Dr Esther Kitimbo Kisaakye has retired from the judiciary seven years early. 

Details of her early retirement are communicated in a letter written to President Yoweri Museveni dated July 18. According to the letter, Kisaakye says that Museveni appointed her to serve as a justice of the Supreme court on October 12, 2009 and by the time she wrote this letter, she had served in the Supreme court for 13 years and ten months. 

“Article 144 (1) of the Constitution of Uganda permits a judicial officer to retire at any time after attaining the age of sixty years. I am now aged 63 years. In accordance with the said article, I hereby tender in my early retirement from the Supreme court,” reads the letter.

Adding: “I thank you and the people of Uganda for having given me the opportunity to serve my country as a justice of the Supreme court.”

The letter is copied to the chief justice, chairperson Judicial Service Commission, permanent secretary/secretary to judiciary and her alternative contact person David Musoke and lawyer Peter Walubiri from KBW Advocates. According to multiple sources who feared to be named over the sensitivity of this issue, they believe Kisaakye has retired herself early because of being frustrated by judiciary’s top management. Supreme court justices in Uganda usually retire after clocking 70 years.

In 2022, in a rare circumstance, Kisaakye sued top administrators of the judiciary including the chief justice Owiny-Dollo, permanent secretary Pius Bigirimana, chief registrar Sarah Langa, commissioner human resource Apophia Tumwine and the Judicial Service Commission.

Kisaakye sued the said people together with the attorney general in the Constitutional court seeking 24 orders among dozens of other declarations so that a record showing that she has been away without official leave be quashed and be assigned duties, and reinstated as the administrative head of the Supreme court.

In her petition, Kisaakye said that effective March 18, 2021, from the presidential election petition filed by Robert Kyagulanyi Ssentamu against President Museveni, the respondents jointly and engaged in acts that are inconsistent with the constitution.

They include the confiscation of her file by Owiny-Dollo before she could read her decision arising from that presidential petition, the closure of the Supreme court on the orders of the chief justice and government on March 19, 2021, the issuance of a deceitful and defamatory press statement and denial of funds for medical treatment.

These include among others their failure to recognize and or follow seniority at the Supreme court, secretive investigations against her disguised as a general inquiry, denial of leave, refusal by the chief justice to allocate her work, and refusal to reinstate her research assistant, withholding the allowances of her driver and bodyguards, denial of a letter of undertaking to her bankers and her subsequent removal from the judiciary and government payroll.

After filing the case, the registrar of the Constitutional court summoned the respondents and gave them seven days within which to respond to the petition or else the court was to go ahead and hear the case without them. Consequently, the attorney general filed a response which was accompanied by an affidavit of Owiny-Dollo and the registrar of the Judicial Service Commission Julius Mwebembezi.

In his affidavit, Owiny-Dollo argued Kisaakye’s petition is incompetent, misconceived, bad in law, frivolous, vexatious without merit and an abuse of court process. According to Owiny-Dollo’s affidavit sworn before the commissioner of oaths George Omunyokol, the chief justice, together with other members of the panel were categorical that they would return to court only when Kisaakye shares her draft ruling prior to its delivery as is the norm and practice.

But she reportedly insisted that she would deliver her rulings whether or not the other members of the panel accompanied her. Owiny-Dollo says he proposed that Kisaakye’s ruling be delivered on March 22nd or 23rd, 2021 and informed the attorney general that they were to be informed of the day accordingly but she was adamant.

“I then instructed the registrar of the court through the clerk that all the files for members of the panel be brought to the boardroom where all of us except the petitioner were assembled. The files were all brought to the boardroom and while other members of the panel took charge of the court files allocated to them and were preparing to depart from the boardroom, leaving the court file for the petitioner on the table, I instructed the clerk to take the file to my chambers since it had reasons for her rulings that should not leak out before delivery,” reads Owiny-Dollo’s affidavit.

According to Owiny-Dollo, Kisaakye insisted and stormed out of the Supreme court building and addressed a press conference that day and even a day after and because of this, he decided to refer the matter to the JSC and the process is now in advanced stage.

“I have never confiscated, taken possession of or kept any file belonging to the petitioner. What I have lawfully kept in my chambers to date is a court file that was allocated to the petitioner as a member of the panel. Files allocated to judicial officers remain property of the court. I had kept this file and continue to do so to stem a gross abuse of the due process by the petitioner for the reasons set out in the referral made go the 5th respondent/JSC and annexed go the petitioner’s,” adds Owiny-Dollo.

According to the respondents, generally, Kisaakye’s pleadings are ambiguous, susceptible to various meanings, confusing, irrelevant and therefore an embarrassment to the respondents. The response covered in more than 150 pages adds that it not the mandate of the chief justice to approve or provide funds for medical treatment but only to grant permission to travel abroad.

“The respondents shall further contend that the administration of the Supreme court is the preserve of the chief justice and there is no constitutional entitlement of any justice of the Supreme court to appointment as administrator of the court. The respondents shall contend that the decision on appointment or removal of an administrator is administrative and there is no question for constitutional interpretation,” reads the attorney general’s joint response.  

The records before court accompanied with dozens of correspondences between the parties in court show that during the hearing, Kisaakye will be put on strict proof to prove her allegations and that she was never authorized or permitted to go on leave but according to Owiny-Dollo, she absconded from court thereby excluding herself from its operations.

“The 6th respondent/attorney general further contend that all the averments and actions of the petitioner are consistent with her guilt of wrong doing including among others abscondment from duty without authorization from her supervisor,” adds the response. 

According to respondents, Kisaakye is therefore not entitled to the reliefs she sought and instead she made a disguised attempt to circumvent the constitutional process being conducted by JSC. They asked the Constitutional court to dismiss the petition saying it’s a disguised attempt to frustrate an on-going inquiry into her conduct and abscondment from duty

Although the case is lying idle in the Constitutional court, several members of  Uganda Law Society advised that the chief justice and Kisaakye sort out their grievances through mediation and therefore not in court. In a July 2022 letter, judiciary permanent secretary Bigirimana accused Kisaakye of having been away without official leave (AWOL) although she continued to receive salary.

“It has been brought to my attention that since September 2021 when you returned from you medical leaves, you have NEVER reported to work nor sought leave grant from your supervisor. This is a serious matter which I as accounting officer, has picked interest,” read the letter.

In the same letter, Bigirimana asked Kisaakye to show cause as to why he should not recover nine months’ salary that has been paid to her despite her not showing up for work. Following Bigirimana’s letter, Kisaakye retaliated in an open letter that she has studied and practised law for a long time and as such can’t be schooled in matters regarding her rights to annual leave and salary.

She previously expressed interest to be the chief justice of Uganda following the retirement of Bart Katureebe who was replaced by Owiny-Dollo. By precedence, the appointing authority usually chose the most senior judge in the Supreme court to be the chief justice, when Katureebe retired.

This time round though, President Museveni picked the then deputy chief justice Owiny-Dollo from the lower court, the Court of Appeal/Constitutional court and elevated him to the Supreme court and appointed him as the chief justice. This, some sources say could have also angered Kisaakye who has chosen to retire seven years earlier.