On February 11, 2025, President Museveni established a Tribunal of Inquiry into the behavior and conduct of former Supreme court JUSTICE ESTHER KISAAKYE KITIMBO pertaining to the March 18, 2021 hearing of the controversial Presidential Election Petition by Robert Kyagulanyi challenging the election of President Museveni.
In the two-and-a-half years that followed, there was unease between Justice Kisaakye and Chief Justice Alphonse Owiny-Dollo, and in July, 2023, Kisaakye retired from the Supreme court before fleeing to exile early this year citing threats to her life. In this abridged version of the 9,000-word commentary dated October 28, Kisaakye lays 25 grounds to challenge the legality and actions of the tribunal.
After carefully reviewing the composition and the terms of reference of Legal Notice No. 4 of 2025, and the constitutional violations that happened before and after the Tribunal’s establishment, I have found it imperative to embrace my constitutional duty to raise the constitutional, legal, ethical and moral issues discussed in this open Commentary…
I have made this Commentary in my capacity (a) as a citizen of Uganda, (b) as a retired Justice of the Supreme Court of Uganda and (c) as a person well qualified and knowledgeable about the law, who is committed to upholding and safeguarding constitutionalism, judicial independence, the rule of law and good governance in Uganda and beyond.
In summary, my assessment and conclusions are that the Tribunal appointed lacks validity, legitimacy, is a nullity, and that if it ever proceeds, it will further undermine judicial independence in Uganda and will be a total waste of scarce national resources.
I have shared this Commentary with and written Open letters to the President of Uganda, the Members of the Tribunal of Inquiry, the Attorney General of Uganda, the Uganda Law Society and called upon them to act in accordance with the Constitution and laws of Uganda. Copies of the Commentary and letters have been shared with the people of Uganda, on whose behalf I was exercising judicial power and from whom all holders of constitutional offices draw their power and mandate.
Lastly, copies will also be shared with other stakeholders in and outside Uganda who are working to uphold constitutionalism, the Rule of law and to safeguard judicial independence, as the cornerstones of justice and democratic governance.
It is my sincere hope that this Commentary will inform and assist all the different actors and recipients to further reflect on the issues raised and to take the necessary steps to bring the unwarranted affront on judicial independence and constitutionalism in Uganda and my four and a half year long persecution to an end.
1. Tribunal lacks jurisdiction to inquire into the conduct of a retired Judge
The Tribunal lacks jurisdiction to investigate me and to make any recommendations about my continuation or removal from office as a Justice of the Supreme Court of Uganda.
The Tribunal was appointed to investigate whether “I should be removed from office’ one year and seven months after I had exercised my constitutional right under Article 144(1) of the Constitution to take early retirement from the Supreme Court of Uganda.
My early retirement was effective on 18th July 2023 when I was 63 years old. Article 144(1) of the Constitution permits a Judge who has attained the age of 60 years to retire from judicial service.
Neither this Article nor any other article of the Constitution gives the President of Uganda the right or discretion to deny a Judge to take early retirement. Copies of my letter to the President of Uganda informing him of my decision to take early retirement and the President’s reply dated October 2, 2023 are attached, for ease of reference.
Furthermore, Article 144(4) of the Constitution of Uganda which permits the President of Uganda to set up a Tribunal to determine whether a Judge should be removed from office due to misconduct, inability or incompetence to perform judicial duties, was intended to apply to serving Judges.
This is because serving judges require security of tenure to enable them to carry out their constitutional duty to render justice to all without fear or favour, while at the same time ensuring judicial accountability.
This article was NOT intended to apply to retired Judges, who become private citizens after completing their tenure of service. Before the Tribunal was appointed, I had filed Constitutional Petition No. 25 of 2024, seeking among others, a declaration that President Museveni’s refusal to accept my early retirement contravenes the Constitution.
This Petition remains pending before the Constitutional Court. The Tribunal cannot have jurisdiction over a matter which is blatantly unconstitutional and is already before Uganda’s Constitutional Court for determination. It would not be appropriate for the Tribunal to proceed before this matter is determined.
2. Constructive Discharge from the Supreme Court of Uganda
From March 2021 until July 2023 when I retired, I was never assigned any new judicial work and was dubiously removed from the Corum of other appeals I had presided over.
All this happened under the watch and supervision of Chief Justice Owiny Dollo who is the Head of the Supreme Court and Justice Professor Lillian Tibatemwa Ekirikubinza, the unconstitutionally appointed Administrative Judge of the supreme court and the silent approval of other Justices of the Supreme Court, Even after the President deferred to endorse my early retirement in October 2023, no judicial work has ever been assigned to me, to date.
Since I have not been assigned any work since March 2021, does the Tribunal intend to try a Judge who has already been rendered a non-Judge by the non-assignment of duties for over four and a half years?
A Judge who is not assigned cases is not effectively a Judge. Therefore, the Tribunal cannot have jurisdiction over me by virtue of my prior constructive discharge from the Supreme Court of Uganda.
3. My clean 13-and-a-half-year Judicial Record does not call for any Inquiry
I wish to categorically put on the record of the President of Uganda, the record of the Tribunal and on public record of all Ugandans and the international community that I have never engaged in any judicial misconduct, and that my Judicial record of service does not call for any judicial inquiry.
I am the wrong person in the Dock. Throughout my tenure as a Justice of the Supreme Court of Uganda from October 2009 to July 2023, I performed my judicial duties with diligence and professionalism, in accordance with the Constitution and laws of Uganda.
My service, competence and ability to carry out my judicial duties is well documented through many lead Judgments, I wrote and which (a) two retired Chief Justices of Uganda, namely Justice Benjamin Odoki and Justice Bart Katureebel (b) Tribunal Chairperson and Member, Retired Justice Galdino Okello and Justice Jotham Tumwesigye respectively; (c) deceased Justices Justice Tsekooko, Justice Opio Aweri and Justice Arach Amoko; (d) other retired Justices of the Supreme Court of Uganda, namely Justice Eldard Mwangusya, Faith Mwondha, Justice Muhanguzi, Justice Mugamba; and (e) serving Justices of the Court, namely Justice Lillian Tibatemwa Ekirikubinza, Justice Tuhaise and Justice Mike Chibita, agreed with when we sat on the same Coram.
While I also wrote many dissenting Judgments which have been followed and quoted in and outside Uganda, writing or issuing dissenting judgments has never been evidence of incompetence or inability to perform judicial duties.
Copies of my Judgments are readily and freely available on the Uganda Legal Information Institute website: www.ulii.org and at the registry of the Supreme Court of Uganda. None of the Justices I served with and none of the parties to the appeals I heard, or their counsel, have ever made a complaint about my competence or misconduct, to the Judicial Service Commission.
Secondly, in my thirteen and a half years of Judicial Service spanning from October 2009 to July 2023, I have never been engaged in any judicial misconduct. The so-called complaint (referral) made by Chief Justice Owiny Dollo on April 6, 2021, to the Judicial Service Commission and which the Commission relied on to initiate its discreet and unconstitutional inquiry and to make a recommendation to the President to appoint this current Tribunal, did not amount to a valid complaint under the Constitution and the Commission Regulations.
This referral is discussed later in paragraph 14 of this Commentary. Therefore, Chief Justice Owiny Dollo’s referral document cannot form a basis for the Tribunal to conduct any inquiry into my judicial record and suitability to continue to serve as a justice of the Supreme Court of Uganda.
A copy of this Referral (baptized by the Commission as a Complaint) is attached for ease of reference.
WHY I HAVE WRITTEN THIS OPEN COMMENTARY AND LETTERS
Article 126 of Constitution explicitly provides that all Judges hold and exercise Judicial power on behalf of the people of Uganda.
Since the charges I will be facing before the Tribunal arise from my exercising judicial power on behalf of the people of Uganda in the Kyagulanyi v Museveni Presidential Election Petition, it is only befitting that the people of Uganda should be made aware of matters directly impacting on or obstructing the delivery of justice in the country, so they can judge for themselves what is going on and make informed decisions.
Secondly, from the time of the unfortunate and unwarranted grabbing of my reasoned Rulings and Files from the Supreme Court and the locking out of litigants and the public from the Supreme Court on 18th and 19th March 2021 respectively – to date (which is over four and a half years now), I have maintained my silence and made every effort to work through Constitutional and other official channels, to address the issues at hand.
On the other hand, the chosen and preferred mode for my accusers in the Judiciary, and the Judicial Service Commission has been to operate through the public media. For example, the Judiciary issued a falsified Public Statement about the events of 18th March 2021 to media and posted it on the Judiciary’s website.
It also unleashed the disgraced Solomon Muyita, the former Judiciary’s Communications Officer to move around different radios talk show spreading falsehoods about me and making denials/defending the actions of Chief Justice Owiny Dollo.
I also learnt about the submission of the Report of the Judicial Service Commission recommending to the President to appoint this Tribunal from the Monitor Newspaper, before the Report was served on me.
Similarly, I learnt about the appointment of this Tribunal from the same Monitor Newspaper early March 2025. Since this is the preferred method of communication for all actors involved in this process and considering my status as a Judge living in exile without access to the intended recipients of this Commentary, I have found it befitting for me to use the same mediums of communication to inform all the different stakeholders.
REQUESTED ACTIONS
Based on all the 25 grounds I have laid out in this Commentary, I respectfully submit that the Tribunal appointed by President Museveni to inquire into my Conduct is a nullity, and that it cannot constitutionally, lawfully, legitimately or honorably proceed or grant justice to me and the people of Uganda.
In a separate open letter, I have written to the members of the Tribunal, I have urged them to either decline their respective appointments or to retract their acceptance to serve on the Tribunal or to recuse themselves from participating in this Kangaroo Tribunal, I have also written open letters to the President of Uganda, Chief Justice Owiny Dollo, the Attorney General, and the Uganda Law Society and urged them to uphold and defend the Constitution of Uganda.
If, however, the President, the Chief Justice, the Attorney General and the Members of the Kangaroo Tribunal choose to continue the unconstitutional path of proceeding with the Tribunal hearings, I will participate under protest and remain ready to defend myself against any charges the Tribunal may frame.
I call on my fellow Ugandans and all people of goodwill interested in the Rule of law and democratic governance to join me in this battle and to call upon the President of Uganda, Chief Justice Owiny Dollo, the members of the Tribunal, the Constitutional Court and the Attorney General, to respect, uphold and defend our Constitution and judicial independence and to stop my senseless four and a half year persecution.
CONCLUSION
History has shown that those who fail to uphold the Constitution and the rule of law, and/or allow themselves to be used to actively participate or to condone constitutional violations or to break the law, will eventually face the judgment of posterity.
History will record where each of us stood at this moment regarding the issues I have raised in this Open Commentary and Open Letters.
I have always chosen, and I still choose to stand by the Constitution of Uganda, the people of Uganda, my judicial oath, my conscience, and my integrity and to uphold judicial independence as the bedrock of our democratic governance.
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