The Executive in Uganda last week missed a Tuesday deadline to report back to Parliament the steps taken to fill a vacuum in the judiciary that has pushed the country to the brink of a constitutional crisis.

A senior government minister told The EastAfrican they were “in the dark” over the matter and awaiting guidance from President Museveni who is responsible for the appointments.

The crisis was sparked by the departure of former Chief Justice Benjamin Odoki who turned the mandatory retirement age of 70 on March 23, and acting deputy chief justice Elizabeth Mpagi Bahigaine.

The situation was further exacerbated by the appointment of the Director of Public Prosecutions Richard Butera to the Court of Appeal and his deputy Damalie Nantudde Lwanga to the High Court, leaving both the highest court and the prosecutor’s office without leadership.

Justice Odoki completed his three-month transitional period on June 23 but there was no successor to hand over to as none had been appointed.

READ: Lawyers push Museveni to name chief justice after three months of dithering

The retirement of Justice Bahigaine, who had been acting Deputy Chief Justice, a position left vacant by the death of Justice Constance Kategaya Byamugisha, meant that there was also no substantive deputy to hand over to.

Two days later President Museveni appointed Justice Steven Kavuma of the Court of Appeal to act as Chief Justice.

However, the Uganda Law Society (ULS) challenged the legality of Justice Kavuma’s acting appointment, pointing out that he was already the acting Deputy Chief Justice and could, therefore, not hold two acting appointments simultaneously.

Justice Kavuma sits on the Court of Appeal whose decisions can be appealed in the Supreme Court. The ULS argues that he cannot legally sit on one court and then listen to the appeal in a higher court.

“We are not malicious,” ULS chairperson Ruth Sebatindira told The East African. “We are interpreting the Constitution and want the judiciary to function well.”

Under the law, the Judicial Service Commission recommends names to the President who appoints key judicial officers that are then vetted by parliament.

The JSC had sought to bring some transparency to the process by asking for public nominations of deserving candidates to be forwarded to it by May 27.

Sources close to the commission told The EastAfrican that four names were sent to the President to appoint a chief justice and deputy: Supreme Court judges Bart Katureebe and Peter Kabatsi, Principal Judge Yorokamu Bamwine, and Justice Julia Sebutinde who is currently serving at the International Court of Justice.

State House sources told The EastAfrican they believe President Museveni would have preferred a larger pool of candidates to choose from and that the delay was caused by the head of state carrying out further consultations.

The delay means the country has not had a substantive Chief Justice or deputy for several weeks and no chief prosecutor for over two months.

The situation has been complicated further by the emergence of a private member’s Bill, the Judicial Officers Vacation Office Bill, 2013, by MP Eddie Kwizera seeking to raise the retirement ages of the Chief Justice, Deputy Chief Justice, Principal judge and high court judges.

The draft legislation, which is yet to be tabled in parliament, seeks to extend the age limit to allow retiring judges to stay on the bench longer.

The proposals, which seek to increase the age limit by five years, have been heavily criticised by the legal fraternity for being poorly drafted. Information Minister Rose Namayanja has distanced the Executive from the draft Bill, whose author previously worked for President Museveni in State House.

The proposal has drawn the attention of politicians who view it as an attempt to test the waters ahead of a potential amendment to raise the president’s retirement age, which is currently at 75.

This would enable president Museveni, 69 — if he were to win elections in 2016 — to seek re-election in 2021.

READ: Presidential age caps up for debate again in Uganda

A few weeks before his retirement former Chief Justice Odoki made similar proposals to keep retiring judges on the job longer in an internal paper circulated to fellow judges.

South African example

Legal experts have drawn parallels to South Africa where the Constitutional Court threw out an appeal by President Jacob Zuma to extend the term of office of former Chief Justice Sandile Ngcobo by five years.

“When you apply the South African court ruling to our local context it basically says that any attempt to pass the proposed Kwizera Bill will, among other things, offend Article 128 of our Constitution, which guarantees the independence of the Judiciary,” a senior lawyer in Kampala told The East African.

Retiring Justice Odoki led the commission that drafted Uganda’s Constitution and it would be ironic if he were to find himself embroiled in a constitutional debate about any extension of his tenure.

The retired chief justice was not available for comment.

Any new chief justice will, however, benefit from the intense lobbying Justice Odoki did to raise judicial pay and can expect to earn at least Ush40 million ($15,480) per month, considerably higher than the Ush5.9 million ($2,283) the retired Chief Justice earned.

The law allows President Museveni to appoint a retired judge, including Justice Odoki, on contract, which technically means he could bring him back.

The ULS, however, has warned that having a chief justice on contract could undermine the independence of the judiciary.

“Any Chief Justice who is appointed on contract would be vulnerable to a revocation depending on the mood of the president,” said Ms Sebatindira. “Imagine if the president could revoke the appointment of the Speaker of Parliament.”

Lawyers have for long complained about delays in filling judicial positions, including positions in the Inspectorate General of Government.

President Museveni moved to answer such criticism by appointing and promoting 28 new judges in May but the current vacancies in the Supreme Court and the Prosecutor’s office are too important to ignore or delay.

READ: Judicial reforms: How will Uganda select its next judicial officers?

The upside for the president is that the Supreme Court vacancies give him an opportunity to shape the ideology of the bench by appointing trusted allies.

With an election coming up in 2016 President Museveni is perhaps keen to ensure that he has the right person running the Supreme Court and the judiciary.