JUSTICE KATUTSI SENTENCED JAMWA IN HIS LAST JUDGEMENT TO RETIREMENT

By Michael Wamasebu – Assistant Director Public Prosecution Inspection & Quality Assurance Justice John Bosco Katutsi retired from the Judiciary with a bang. He made his last judgment as Judge of the High Court on 9th March 2010. On that day he sentenced Jandi Jamwa, the former Managing Director of National Social Security Fund (NSSF) to 12 years of imprisonment for causing Financial Loss of Shillings 3 billion to NSSF. Justice Katutsi joined the judiciary in 1972 while still pursuing his post graduate diploma in law. This was a stop gap measure by the Government of the day to fill the vacuum in the judiciary left by the expulsion of the Asians. He later completed the diploma in law while already in the judicial service. The Learned Judge has in his long career handled many high profile cases. Since 2008 he has been the head of the Anti Corruption Court (ACC). He bid farewell to the judiciary on 15th March 2011 upon completion of the statutory three months allowed by the law for retiring judges and justices to complete any pending work before retirement. THE INTERVIEW MY LORD YOU HAVE HAD AN ILLUSTROUS CAREER IN THE JUDICIARY SPANNING 38 YEARS. WHAT WERE SOME OF YOUR MOST MEMORABLE MOMENTS? You are right, 38 years is a long time and many memorable events have happened. It is not possible to remember all of them. One event however stands out very vividly in my memory. It was in 1977/78. I was serving in Mbarara as a Grade One Magistrate. The Chief Magistrate was his Lordship De Mello. We were all summoned to Kampala to meet the then Vice President (VP) Mustafa Adrisi. When I say “we” I mean all judicial officers in Uganda from the Chief Justice to the lowest judicial officer. The courts shut down for the duration of the meeting. At the commencement of the meeting, the VP addressed us in Kiswahili as follows: “Kazi yenu kuvaa siti (suit) peke yake. Mimi yiko na siti mingi kabisa lakini mimi nafanya kazi muzuri. The VP blamed the judiciary for ignoring their work and thereby having many suspects overstay in cells in Mbarara. The then Chief Magistrate (CM) his worship De Mello – a very soft spoken lawyer got the microphone to explain the problem whereupon the VP ordered him in Kiswahili “Ongea Kama ndume.” This forced the Chief Justice (CJ) His Lordship Saed to try to get the microphone from the Chief Magistrate (CM). The CJ complained to the VP regarding the irregular manner in which he had raised his complaint without first contacting him. The CJ complained to the VP about the harassment of the Judiciary. The VP grabbed the microphone from His worship De Mello before he could hand the microphone to the CJ. In the ensuing melee, the ADC of the CJ took off his coat ready to defend the CJ. The VP said “mimi bado kuja ku gombana” (I did not come for a quarrel). On that note, the meeting ended prematurely. The judicial officers returned to their stations without ever knowing the agenda of the meeting. Following the meeting, the CJ went and saw President Idd Amin and raised a number of issues including the over due promotion of judicial officers. Amin ordered the immediate promotion of all over-due judicial officers. I was one of the beneficiaries as I was promoted to Chief Magistrate immediately after the meeting. THE CREATION OF THE ANTI CORRUPTION COURT WAS A SIGNIFICANT WATER-SHED IN THE FIGHT AGAINST CORRUPTION IN UGANDA. THIS WAS ON ACCOUNT OF THE CONVICTIONS RECORDED WITHIN A FEW MONTHS OF THE CREATION OF THE COURT AND THE WIDE PUBLICITY GIVEN TO THESE CONVICTIONS AND GENERALLY TO THE WORK OF THE COURT. WHAT STRATEGY DID YOU USE TO ACHIEVE THIS RESULT AND WHO TAKES THE CREDIT FOR IT? Like all beginnings, ours was not easy. We had to grapple with a whole host of issues. These included getting a new home for the court, getting the right personnel and logistics in place and getting the good will of the public to provide evidence in court. Once this was done, we started our work initially at a slow pace, then we gained momentum with time. If you analyze our earlier sentences, you will notice that they were more lenient. We have progressively imposed more deterrent sentences in keeping with the magnitude of the corruption and the contriteness of the convicts. The credit for this goes to the pioneer staff who included myself, my brother Justice Paul Mugamba and all the support staff. We cannot forget the good work done by the prosecution staff from both the DPP’s office and the IGG for selecting worthy cases and prosecuting them before us firmly and effectively. Finally, I have to acknowledge the role played by the media in widely publicizing the proceedings of the court and disseminating them to the wider public of Uganda. ALMOST ALL THE CONVICTS AT THE ANTI CORRUPTION COURT HAVE APPEALED TO THE COURT OF APPEAL. BEFORE THE APPEALS WERE DEALT WITH THE APPELLANTS WERE GRANTED BAIL PENDING APPEAL. WHAT IS YOUR COMMENT ON THESE DEVELOPMENTS? I am a strong believer in the appeal process. First and fore most it is the statutory right of the convicts in question to appeal. Secondly and very importantly, we judges are human and as such we are prone to make errors in the way we assess or apply evidence to cases before us. It is only fair and befitting that the affected persons get the benefit of our verdicts being subjected to a fresh scrutiny by a higher court. My only reservations regarding the grant of bail pending appeal is that it should be granted to applicants who demonstrate the existence of Exceptional Circumstances. The fact that an applicant is a bread winner in my humble and respective view does not fall in such a category. IT HAS BECOME FASHIONABLE FOR PERSONS UNDERGOING TRIAL FOR CORRUPTION AND GENERALLY FOR CRIMINAL OFFENCES IN OTHER COURTS TO FRAME ISSUES WHICH REQUIRE THE INTERPRETATION OF THE CONSTITUTION UNDER ARTICLE 137 (5) (b) – AND TO APPLY FOR STAY OF PROCEEDINGS PENDING THE DETERMINATION OF THE CONSTITUTIONAL COURT. WHAT IS YOUR VIEW OF THIS AND WHAT HAS BEEN THE PRACTICE OF THE ANTI CORRUPTION COURT IN APPROACHING SUCH APPLICATION FOR REFERRAL? My take is that whether an issue is a constitutional issue or not is a triable issue to be judiciously determined by the judicial officer before whom it is raised. This view has guided me in dealing with all such cases coming before me. My brother judges, and indeed other judicial officers take the view that referral is automatic once a party seeking the referral cites article 137 (5)(b) of the constitution. In my experience such referrals are now used by parties to delay cases at the trial stage. I know of one case where after a matter had been resolved by the constitutional court, another referral was sought by the applicant and granted by a Chief magistrate. The case meantime has stalled indefinitely. Surely, I do not think the framers of the constitution intended that the said constitutional provisions should be used to cause injustice. I hope the DPP or the IGG takes up this matter with the appropriate court to settle the question once for all. DO YOU BELIEVE IN “JUDICIAL ACTIVISM” IF NOT, WHAT IS YOUR STAND? In my understanding, “Judicial Activism” is the practice of basing judicial rulings on personal political considerations other than existing law. In my experience, judicial activism is a short cut to justice often based on expedience rather than in the exercise of lawful judicial authority. In my considered opinion, justice should neither be delayed nor rushed. It should be slow and steady like a tortoise. WHAT DO YOU SAY TO PEOPLE WHO SAY YOUR POSITION ON THE INTERPRETATION OF ARTICLE 37(5) (c) IS A SIGN OF JUDICIAL ACTIVISM? They are entitled to their opinions. I am entitled to mine. THE ANTI CORRUPTION COURT IS IN THE MIDDLE OF STORM OF THE FIGHT AGAINST CORRUPTION. SOME OF THE CULPRITS MAY INCLUDE THE POLITICALLY POWERFUL AND MIGHTY INDIVIDUALS. THERE IS THEREFORE EVERY NEED FOR THE COURT TO BE AND BE SEEN TO BE INDEPENDENT. IN YOUR VIEW IS THE COURT SUFFICIENTLY INDEPENDENT TO DEAL WITH ALL THE BIG FISH WHO WILL BE FOUND TO BE CORRUPT? There is no doubt that we are independent. In my 38 years as a judicial officer, I have never had to base my decision on directives from any one or authority. This is the way I have been conducting my work as the head of the anti corruption court, having said that; I wish to add that the existing institutional frame work in Uganda leaves room for the independence of the judiciary to be compromised. This arises from the payment of varying salaries to different levels of judicial officers especially in the courts of record. While I have no practical example, I can see that it is possible for aspiring judges to be compromised to hand down verdicts considered to be favourable to certain interests which can promote or assist to promote them to higher courts whereby implication they can earn better benefits. I have no quarrel with the Chief Justice or the Principal Judge or Supreme Court Judges having higher or better terms of employment. This is because at their level they do not aspire to higher or better terms of employment. This is because at their level they do not aspire to higher positions. They therefore would have no motivation or desire to trade their independence for better terms of service. This model has its origins in United Kingdom. It is for this reason that I also do not support the system of employing foreign judges on renewable contracts. The prospect for renewal of their contracts provides an avenue through which their independence can be compromised to obtain the renewal. WHAT IS YOUR ASSESSMENT OF THE PERFORMANCE OF THE DPPTEAM AT THE ANTI CORRUPTION COURT? I have no problem with the DPP’s team at the ACC. I think they are doing a commendable job. I however strongly recommend that the prosecutors and the investigators involved in the corruption investigations should be given special facilitation if only to stop them from the ever present temptation to succumb to bribes or other favours from the suspects or their agents. The financial incentives could be paid out of proceeds of successfully concluded cases in form of fines or restitutions ordered by court upon conviction of corrupt suspects. At the operational level, I strongly recommend that the DPP gives a lead in the investigation of cases at the ACC. My experience has shown that prosecution lead investigations have yielded more focused and purposeful evidence that those where the two arms worked in isolation. I would recommend prosecution lead investigation not only at the ACC but in all criminal investigations. WOULD YOU RECOMMEND A WITNESS PROTECTION SCHEME OR LEGISLATION FOR UGANDA? Such a scheme and the necessary legislation should have been put in place yesterday. There are people whose careers may be permanently changed or drastically affected by their giving evidence in court especially against corruption suspects. Such persons need serious and meaningful protection. The absence of a witness protection scheme and legislation is a big disincentive against witnesses who would have otherwise given useful evidence in court. I however hasten to add that such a scheme should be clearly distinguished from “official bribery” similar to the one I witnessed in the case of one opposition politician I handled in the recent past. This would have the opposite effect. ----------------------------------------------------------------------------------- KATUTSI RETIRES AS HIGH COURT JUDGE Publish Date: Mar 08, 2011 Newvision Archive By Andante OkanyaJUSTICE John Bosco Katutsi will make his last ruling today following his retirement as a judge of the High Court.His last assignment will be to sentence former NSSF managing director, David Chandi Jamwa, who was convicted of causing loss of over sh3b to the social security fund.Katutsi was born on December 15, 1945 in Bukoora, Kitumba-Ndorwa in the present-day Kabale district.His retirement took effect on December 15 last year, having clocked the mandatory retirement age of 65. Upon retirement, a judge is, however, given three months to wind up pending cases. He has served in the Judiciary for 38 years.However, he can still serve in either the Supreme Court or the Constitutional Court, where judges can serve up to the age of 70.Katutsi attended Kinyashano Primary School.He then went to Kigezi College Butobere and Namilyango College for a higher school certificate.Katutsi graduated with a Bachelor of Law degree from Makerere University in 1972.He was among the pioneers at the Uganda Law Development Centre (LDC).An avid golf player and keen reader known for lacing his judgements with poetic language, Katutsi has had an illustrious career.He was posted to Mbale as a Grade I Magistrate in September 1972.In 1974, while serving in Tororo, he handled the case of Maryam Amin, the then president Amin’s wife. She was charged with engaging in wholesale trade without a wholesaler’s licence. He later remanded her.His next posting was in 1976 to Masaka where he was acting chief magistrate before being transferred to Masindi and Kabale where he temporarily resigned in 1980.In 1982, Katutsi made a comeback as the Mpigi chief magistrate. He was then posted to Mbale and later to Mbarara.In 1993, he was appointed an acting judge.He served in Fort Portal (1995), Kampala (1999) and Mbale (2004).He was posted again to Kampala in 2006 where he has worked until his retirement.Some of the cases he has handled includeThat of the FDC leader, Dr. Kizza Besigye, Teddy Sezi Cheeye and John Katuramu. He also presided over the case of the two Acholi MPs Reagan Okumu and Michael Ocula.