Peter Nyombi’s candle of scandals dim but was unabashed as AG
Andrew Karamagi once snatched and tore his speech at a public function, and ULS once issued him with a certificate of incompetence. But Peter Nyombi, as AG, did not hide behind anything and gave his opinion without shame
OBITUARY | It’s January 2014 at the High Court‘s, the headquarters of the Judiciary. The occasion “New law year” which the Judiciary uses to officially open to the public to have their cases heard in that given year.
Peter Nyombi, the Attorney General (AG), takes to the podium to give his remarks. Out of the blue, Andrew Karamagi dashes to where Nyombi is standing. He appears to be whispering something to a clearly astounded Nyombi, who tried to listen.
Karamagi, who at the time was a law student at Uganda Christian University (UCU), had different ideas: he grabbed and tore to pieces the AG’s speech. The incident, as well as the infamous ‘certificate of incompetence’ case, summed up Nyombi’s tenure as AG–controversy.
Before replacing Edward Kiddu Makubuya as the government’s chief legal advisor in May 2011, Nyombi, who succumbed to heart failure on Sunday aged 64, had served in various capacities. At the time he was appointed AG, Nyombi was Buruuli county MP, a position he held from 2001 to 2016, when he was thrown out following the chaotic 2016 NRM primaries.
Before venturing into the mucky waters that’s Uganda’s politics, Nyombi, for almost a decade served as state attorney in the Attorney General’s chambers. From 1996, Nyombi had a stint in the Inspectorate of Government’s (IGG) office where he worked as counsel, after which he served as the director of legal affairs in the same office until 2001.
After quite some relative political obscurity, he was appointed as AG at the behest of Amama Mbabazi, the then prime minister. His appointment at a time political actors were making decisions in the heat of the moment but Nyombi carried the cross from giving such decisions legal barking.
The four years he was AG will always define Nyombi’s legacy. His legal opinions irked many, from Speaker of Parliament Rebecca Kadaga, and IGG Irene Mulyagonja, to judges who responded by attacking him through judgments, down to Uganda Law Society (ULS) and the Opposition.
Take for example in 2013 when the NRM Central Executive Committee (CEC) decided to expel four MPs on grounds that they had rejected party positions which, according to the party, honchos amounted to indiscipline. The affected MPs were: Theodore Ssekikubo (Lwemiyaga), Muhammad Nsereko (Kampala Central), Wilfred Niwagaba (Ndorwa East) and Barnabas Tinkasiimire (Buyaga West).
Taking another unprecedented step, the ruling party said that as result of their expulsion the MPs had to lose their seats, this would trigger by- elections in their respective constituencies- the MPs out rightly rejected this as unconstitutional.
Nyombi seized this opportunity to guide the country. He wrote a letter to Kadaga asking her to throw out the embattled lawmakers but she refused. Inching for a fight, once the case went to the Constitutional Court for interpretation, Kadaga rejected the Attorney General’s representation, saying that Parliament should be independently represented.
Brief victory evaporates
One of the many issues framed to be determined by the Constitutional Court one of was “whether the Attorney General’s opinion was binding to the speaker.”
Nyombi had the first laugh here because the majority judgment of Justices Richard Buteera, Steven Kavuma, Faith Mwondha, and Augustine Nshimye was to the effect that “Attorney General’s opinion is binding on government departments and agencies and must be respected.”
Justice Remmy Kasule was a lone ranger, he disagreed with his colleges.
But this victory turned out to be short-lived. Upon appeal by the MPs, the Supreme Court, in a majority judgment, found that the opinion of the AG isn’t binding to the Speaker of Parliament under the doctrine of separation of power.
“We agree that the principle of separation of powers should be duly observed to avoid erosion of the constitutional functions of the other arms government,” Justices Stella Arach Amoko, John Wilson Nattubu Tsekooko, Christine Kitumba, Galdino Okello , Jotham Tumwesigye and Benjamin Odoki ruled.
Only Justice Esther Kisaakye dissented.
Still in 2013 Justice Odoki retired as Chief Justice but President Museveni wanted to retain him, a move the Judicial Service Commission (JSC) opposed through Justice James Ogoola, it’s then chairman.
Museveni sought advice from his legal fixer Nyombi and he delivered what the boss wanted to hear. In a letter to Museveni dated July 30, 2013, which was interpreted as a scheme to undermine the JSC, Nyombi wrote: “Clause 1 of Article 142 of the Constitution provides that the chief justice shall be appointed by the president acting on the advice of the Judicial Service Commission and with the approval of parliament…
“Although it is clear from the above mentioned provisions that the appointment of the chief justice is a preserve of the president, it is not clear to me that the president can only act on the advice of the Judicial Service Commission.”
Gerald Karuhanga, then a Youth MP, was having none of it. He went to the Constitutional Court challenging both the move to reappoint Odoki who had clicked the retirement age of 70 and Nyombi’s opinion that JSC was inconsequential in appointing the Chief Justice.
The judgment left Nyombi pretty much embarrassed to the extent that the Attorney General didn’t even appeal. Justice Lillian Tibatemwa, who has since been elevated to the Supreme Court wrote the lead judgment and it was very instructive: “The reappointment of Odoki as Chief Justice after vacation of office by virtue of having attained the mandatory retirement age is inconsistent with articles 133 (2), 142 (1), 144 (1)(a), 147 (1) (a) 147 (2) (3) and 253 of the Constitution. The advice of the JSC is a prerequisite for the appointment of a Chief Justice and an appointment done without the advice from Judicial Service Commission is in contravention of articles; 142 (1), 147 (1) (a) 147 (2) (3) (a) and 253.”
One sweet victory
Nyombi was on the losing streak but his tenure wasn’t about losing only. He one time got one over his eternal nemesis, ULS.
At all started during ULS’ annual general meeting on August 29, 2013, in Kampala when lawyers voted to suspend Nyombi for alleged incompetence. In a mob justice style, they handed Nyombi a two-year suspension and a certificate of incompetence for allegedly misadvising Museveni.
Nyombi’s legal opinions, ULS said, were inconsistent with the Constitution.
The lawyers, led by Jude Mbabaali, alleged that Nyombi misadvised the president on a number of controversial issues, including; the re-appointment of Benjamin Odoki as chief justice and the appointment of an active military General Aronda Nyakairima as minister for Internal Affairs.
It’s seemed Nyombi had heard enough and decided to go toe to toe with his fellow lawyers. Using Kampala Associated Advocates (KAA), Nyombi dragged ULS to the High Court, saying he was tried and suspended without being heard, an act which contravenes the rule of natural justice.
Nyombi argued that by virtue of section 4 of the ULS Act, the attorney general is a statutory member of the law society who cannot be suspended.
In his ruling, Justice Steven Musota said only the Law Council can suspend and revoke a licence of a legal practitioner. He said the decision of ULS was just an opinion, which cannot be legally binding. Musota also rebuffed ULS’ argument that they suspended Nyombi, the individual, and not the attorney general.
“ULS had no legal authority to discipline Nyombi by suspending him. The suspension was an illegality since ULS has no legal mandate,” he said.
Musota also faulted the law society for not giving Nyombi an opportunity to be heard.
“A trial by 350 members cannot remotely be fair. The applicant’s right to be heard was, therefore, violated. A trial by 350 people cannot fail to have procedural impropriety,” the judge said.
The judge also quashed Nyombi’s certificate of incompetence, saying ULS had no powers to issue it.
“The resolution was passed in total disregard of the respondent’s [ULS] duty to protect members of the society, including the unpopular ones,” he said.
However, Musota rejected Nyombi’s request for Shs200 million in damages because he failed to prove that he suffered from the defamation claims in his petition. Musota said instead of filing for a judicial review, Nyombi should have filed a defamation suit to prove he had incurred damages.
In light of this sweet victory, Nyombi hastily organized a news conference at the AG’s chambers and alleged that the reason lawyers where opposed to him had everything to do with how he had defended taxpayers’ money.
Without naming names, he said that many lawyers wanted him out of office because had had blocked the exorbitant awards courts had given them and their clients.
Between 2013 and 2014, NRM wanted to use every means possible to get rid of Kampala Lord Mayor Erias Lukwago, an opposition stalwart. In 2014, Lukwago ran to court challenging the KCCA-tribunal report authored by Justice Catherine Bamugemereire that led to his botched impeachment.
At the outset, Nyombi asked trial judge Yasin Nyanzi to quit the case, citing bias. Nyombi claimed that, like Lukwago, Nyanzi was a Muslim and Muganda and was more likely to favour the lord mayor.
On February 4, 2014, the bespectacled judge ruled that Uganda’s attorney general was “engulfed in the group of legal darkness.”
Justice Nyanzi accused Nyombi of ‘changing reasons’ to justify his disqualification from the case. And tellingly, he told the attorney general that he found his conduct “embarrassing.”
But that was only the beginning. When the Electoral Commission, acting on the advice of Nyombi, proceeded to organise a mayoral by-election, Lukwago filed a contempt suit. This suit was allocated to nonsense Lydia Mugambe Ssali. The judge held Nyombi, EC Chairman Badru Kiggundu, KCCA Executive Director Jennifer Musisi and the then Minister for Presidency and Kampala Capital City Authority Frank Tumwebaze in contempt of court.
In particular, Justice Mugambe took issue with Nyombi’s legal advice, saying it was “disingenuous” since he appeared to distort the chronology of events in the KCCA meeting to suit his conclusions.
“With all due respect, this, in my view, is grossly unprofessional conduct of the head of the bar,” Justice Mugambe said of Nyombi.
Nevertheless, Nyombi wasn’t one to go down without a fight. Responding to the judgment, a spiteful Nyombi wondered why Justice Mugambe got so personal in her ruling. Asked why two judges; Nyanzi and Mugambe hade found his legal opinions wanting, he said: “I really don’t want to call these judges [Mugambe and Nyanzi] stupid because then I will be attacking the entire Judiciary but I might be forced to do so because this is a legal issue which cannot be personalized.”
Ever since Museveni shot his way to power in 1986, he has used Attorney Generals of various backgrounds. Nyombi wasn’t a legal giant as the late Joseph Mulenga. Nyombi wasn’t a maverick as Prof George Wilson Kanyeihemba, Nyombi had no stature and historical understanding of Abu Kakyama Mayanja. Nyombi had no presence and authority of Bart Katureebe, neither did he possess the know-how of the late Francis Ayume who had been Solicitor General, Director of Public Prosecutions (DPP) and Speaker of Parliament. Let alone possess the the calmness of Amama Mbabazi or scholarly background of the much maligned Makubuya.
But one thing that made Nyombi standout was that he never hid, no matter the consequences. Nyombi, a father of four and the brother of Prof. John Musisi Senyonyi, the vice-chancellor of Uganda Christian University, and Amb. Henry Mayega, made sure that his opinion is known on every controversial issue in government.