Uganda: Judge Declines to Excuse Self From Case Against EC Boss

21 January 2020

Kampala — a High Court judge has declined to excuse himself from hearing the case challenging the appointment of Justice Simon Byabakama as the Electoral Commission (EC) chairperson.

Justice Musa Ssekaana says that that an application for recusal of a judicial officer is an occupational hazard every judicial officer must face in the course of his or her judicial career.

A concerned citizen, Mr Hassan Male Mabirizi, made an application asking Justice Ssekaana to excuse himself from the case since he has ever represented the EC, which would make him fail to be impartial.

However, Justice Ssekaana ruled that asking a judge to recuse himself/herself is a serious matter and anyone who goes to court to ask the presiding judge in a case, to step aside must, be armed with all the necessary material to support such an application because it is a matter that goes to the core of the administration of justice.

Justice Ssekaana explained that a judicial officer swears to impartially do justice in accordance with the Constitution and all laws without any fear, favour, affection and ill will.

"The applicants have not persuaded this court why I should recuse myself. I find no merit in the application for my recusal. I will and do hereby dismiss the application," he ruled. "I shall proceed to determine this matter even if I was transferred to High Court of Mbarara as a senior resident judge".

Mr Mabirizi and the leadership of "Peoples' Government" sued Justice Byabakama, a Court of Appeal judge, jointly with the attorney general, alleging that he could not hold the EC office before resigning his job as a judicial officer.

Justice Ssekaana also explained why he declined to summon Justice Byabakama and his co-accused, to appear in court to defend themselves.

He said that cross examination is very limited and should not be used for ulterior purposes or motives as a tactic particularly by lawyers or litigants to intimidate, frustrate, delay or add unnecessary costs.

Justice Ssekaana also declined to summon the EC's Secretary Mr Sam Rwakwojo who is accused of occupying office ahead of the 2021 elections, yet his contract expired.

The applicants had argued that they needed Mr Rwakwojo to explain the issues of the National Register and the changing of timelines for voter verification.

However, justice Ssekaana ruled that the applicants did not make out any case for court to exercise its discretion to allow the cross examination of respondents.

"The exercise of discretion must be exercised with caution since it may defeat the policy considerations for a special procedure or judicial review matters. The intended cross examination if granted, would defeat the expeditions disposal intended under the rules," he said.

In his defence, Justice Byabakama contends that since his appointment as EC chairperson in January 2017, he relinquished his position in the Court of Appeal to concentrate on his duty at the EC.

He said that he no longer attends workshops or engage in activities organised by the Judiciary, something that would make him an active justice of the Court of Appeal.

Mr Rwakoojo stated in his defence that his term of office as the secretary that expired on September 19, 2019 has since been renewed for another 5 years.

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