The Executive and the Judiciary looked headed for renewed tensions, after Attorney General Peter Nyombi reacted angrily to a ruling that found him in contempt of court.
Speaking to The Observer on Saturday, Nyombi accused High court judge Lydia Mugambe of personalizing issues pertaining to the embattled Kampala Lord Mayor Erias Lukwago In her Friday ruling, in favour of Erias Lukwago, Justice Mugambe stopped the Electoral Commission from organizing the mayoral by-election earlier planned for April 17.
The judge held Nyombi, EC Chairman Badru Kiggundu, KCCA Executive Director Jennifer Musisi and Minister for Presidency and Kampala Capital City Authority Frank Tumwebaze in contempt of court.
She faulted them for defying court orders that temporarily blocked the removal of Lukwago as lord mayor. Responding to the judgment in a phone interview, a spiteful Nyombi wondered why Justice Mugambe got so personal in her ruling. Asked why two judges; Yasin Nyanzi and now Mugambe have 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." Responding to the judge's charge that he (Nyombi) gave bad legal advice to government, Nyombi said: "Those who are saying that I am misleading government failed [exams] at LDC [Law Development Centre], then how can they determine that my legal opinions are wrong?" he said.
Nyombi said he met several state lawyers on Saturday to decide whether government could appeal the ruling. On his part, Tumwebaze, faulted the judge for making her ruling without giving him an opportunity to be heard.
"If the judge wanted my evidence in that matter as well as that of other officials she mentions and condemns in her ruling, she should have summoned us to be heard and perhaps also to give us an opportunity to cross-examine those alleging certain offences against us," he said.
"That didn't happen. It's a very strange precedent in our justice system to rule and condemn someone unheard in a matter that even he/she wasn't even a party.Certainly we shall challenge this," Tumwebaze said.
He further asserted that Mugambe's ruling has given government good grounds for appeal.
"How could the judge rule, for example, that I ignored a court order without hearing from me to confirm whether I got the said court order or not? Don't I have a right to be heard? We shall stiffly challenge that unfair and biased judgment," he concluded.
The court's ruling transformed the fight for the mayoral office, putting the Judiciary on a collision course with the Executive. In her ruling the judge drew the battle lines. She said that in trying to replace Lukwago, the Executive was trying to usurp the powers of the Judiciary enshrined in the Constitution under article 128. The article stipulates that "In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority."
Mugambe's ruling came days after Justice Yasin Nyanzi, who is also handling another Lukwago-related case, warned that the central government was trying to create an unnecessary war with the Judiciary.
"The Executive has its own mayor and the Judiciary has its own mayor [Lukwago]. This is the kind of situation the attorney general has created in the country. If your position is that this man [Lukwago] is no longer the mayor of this town, then why are you here? What are you doing here?" he asked.
"But let me tell you we do not know what you [the executive] do and we do not care. What we care about is what we do. Let me tell you all these applications will be heard by court," Nyanzi said on March 20 during another Lukwago hearing.
Mugambe, in her ruling, said she was disgusted with the behaviour of the four respondents (Nyombi, Tumwebaze, Kiggundu and Musisi) describing their conduct as "unprofessional."
She said by government sanctioning a mayoral by- election, it was emphasizing "rule by law" instead of the constitutional "rule of law." Mugambe said courts should exhibit their constitutional power in guarding the rule of law.
"The supremacy of the rule of law must be a principle and respected because court orders are not issued in vain. I find that this huge elephant called rule by law should not be allowed space in a democracy to replace rule of law. It is clear that the AG and all other respondents received the court orders but chose to defy them yet most of them are lawyers like Musisi," Mugambe noted.
"It is for these reasons that I find the AG, Musisi, Counsels Martin Mwambutsya, Dickson Akena, Yasin Lugoloobi [KCCA] plus Erick Sabiiti not only unprofessional but also out of order," Mugambe added.
The judge said Nyombi was the very reason there was a deadlock over the mayoral position since he gave wrong legal advice to government officials. She dismissed Nyombi's claim that the court order stopping the authority meeting from impeaching Lukwago came after the fact.
"The mere fact that he later learnt of this court order and another by Justice Nyanzi, he was by law supposed to implement it whether he considered it regular or irregular pending an appeal against it," she said.
"It is, therefore, professional misconduct for Mwambutsya [AG's lawyer] to stand in court with uncalled-for swagger and lie to court. As an officer of court, he was duty-bound to wait for the order from court he attended. He chose to join the other in sabotaging the court process," noted the judge
Going through the chronology of events that unfolded in the November 25, 2014 meeting, Mugambe faulted Tumwebaze for lying to court that he got the court order after the impeachment of Lukwago. She said the minutes of the very authority meeting that 'impeached' Lukwago showed that Councillor Allan Sewanyana served him (Tumwebaze) with the order before the resolution to impeach Lukwago was passed.
Mugambe said the authority minutes indicated that Tumwebaze convened the councillors' meeting at 9am and the resolution to impeach Lukwago was passed at 9:30am. But the judge said that in another letter, Tumwebaze wrote that the resolution was passed at 9am and that was when Lukwago ceased to be lord mayor.
"I don't understand whether the minister passed the motion before the resolution?" she asked.
The judge said it was wrong for Tumwebaze to call the court order he had got from Sewanyana unauthentic.
"Was it Tumwebaze to decide whether the order was authentic or not? He would have stopped the whole process [convening the meeting] and consulted court," Mugambe said.
Mugambe said that Musisi, a lawyer, should not have based on an illegality to declare Lukwago's seat vacant and write to the EC to organize a by-election because evidence on record shows that Lukwago's lawyer Abdullah Kiwanuka who went to City hall with the court order stopping the impeachment was flogged like "a chicken thief" hence making her notification illegal.
"I find it highly persuasive to stop the process of the Electoral Commission since it's an illegality. The temporary injunction requested for by the applicant [Lukwago] is allowed until the final determination of the main miscellaneous cause 326 is hereby granted," she said.
"Mindful of my findings, I allow the application against all respondents and there must be no attempt to remove the lord mayor until miscellaneous cause No. 362 of 2013 is disposed of in its finality," Justice Mugambe ruled.
The judge also ordered all respondents to pay a fine to Lukwago for defying court orders.
After the ruling at 6:51pm, Lukwago's supporters, meanwhile, were singing songs praising him. They carried T-shirts with the words "Omuloodi waali - respect the court order". Lukwago described the ruling as a major victory which he hoped would, this time round, be respected. He said he would reoccupy his office on Monday.