Chief Justice Alfonse Owiny-Dollo yesterday declined to step aside from hearing the presidential election petition filed by Mr Robert Kyagulanyi, aka Bobi Wine, challenging President Museveni's election.
Mr Male Mabirizi, a lawyer, had filed an application in the Supreme Court seeking Chief Justice Owiny-Dollo to withdraw from hearing the presidential election petition against Mr Museveni on account of the conflict of interest.
Mr Mabirizi said the Chief Justice was President Museveni's defence lawyer in the 2006 presidential petition, and thus cannot be impartial in this petition.
"I have perused the application and the supporting affidavits and listened carefully to the submissions by the applicant (Mr Mabirizi). I decline to recuse. The reasons I will give in my detailed ruling to be delivered on notice," Chief Justice Owiny-Dollo ruled.
Last week, Mr Mabirizi petitioned the Supreme Court contending that the Chief Justice was unlikely to deliver justice in the ongoing presidential election petition since he is presiding over a case against his former client Mr Museveni. He wanted the head of the Judiciary to step aside from the case.
On Monday, Mr Kyagulanyi announced at a press conference in Kampala that he was withdrawing his petition, citing alleged bias by three of the judges, including Chief Justice Owiny-Dollo.
Below are highlights of exchanges between Mr Mabirizi and the judges prior to Justice Owiny-Dollo's ruling.
At 10:30am, a panel of nine justices walk into the huge tent which served as the courtroom. Clerk calls for Hassan Male Mabirizi's file.
Mabirizi: I am the applicant, appearing in person. I am ready to proceed with the application.
CJ: Mr Male... , this court sits, you have two grounds to your application. One seeks recusal, then the other one seeks to set aside the decisions of the court. The first ground will be determined by the person whom you are seeking for recusal; the full bench will determine the second ground.
Mabirizi: That's right my lord, but there are three grounds. The third prayer is about setting aside the proceedings.
CJ: Hmm, the practice directions and rules of this court are clear.
Mabirizi: Yes, I have them, Rule 6 paragraph 3
CJ: You will have to address us in 20 minutes.
Mabirizi: My lord, I was soon seeking leave of this court for an enlargement by 10 minutes.
CJ: Well it depends on how we proceed. The justification for extension will be determined when we cross that bridge.
Mabirizi: My lords, I will address you on three aspects. The first aspect is my capacity (locus standi) before you this morning; the second aspect will be why my lords the CJ is not supposed to sit in the head (main) petition and then I will go to the consequences of recusal or non-recusal by my lord CJ.
My lords, I need to point out that this is not the first time a person, who is not a party to the head suit in this court, is a party in an application under it.
I am a Ugandan citizen, the main case being a presidential election petition. I have real sufficient interest in the democracy and rule of law in my country. Indeed the issue of bias by a Chief Justice in an election petition is grave and of public importance and there's a high constitutional principle of the right to fair hearing.
Therefore, it is my submission that going by the above authorities, I have the locus to be before you.
It is my submission that Owiny-Dollo CJ is disqualified by prior engagements from being sufficiently impartial to adjudicate the petition at hand. Paragraphs 10-13 read together with annex C to the affidavit in support leave no stone unturned in proving that the learned CJ was hired as a former lawyer of the first respondent (Mr Museveni) in the head petition.
I was asking myself my lord that if a petitioner brings a presidential petition and her husband sits in the case and she does not complain and the parties don't complain, should we sit back and say the court is proceeding properly? My lords, this conduct is prohibited. It doesn't matter whether the parties are okay, the constitutional principles abide [by] all the people.
Mabirizi: My lord, I don't have any doubt in your independence in cases that you preside over nor do I have any personal grudge against you because I have been before you before. I even won a case before you and got costs but the point is, the law is the law.
CJ: Sorry to ask you, are you a reasonable person?
Mabirizi: Yes my lord, I am even beyond (laughter in court) I believe you are independent but I also believe in the perception of the public that you are not fit to sit in that petition. That is my submission.
Justice Stella Arach-Amoko: Mr Mabirizi, have you done a research from the public or is there evidence that what you are saying is from the general public because you keep referring to the public? Have you done any survey from the public to prove that the CJ is not fit to hear the petition?
Mabirizi: In the authorities I have referred to you, I have not seen any case where a survey was done to prove recusal but it's a common understanding that there are common principles that have been laid. We just need to put in our minds that can a former lawyer sit in such a petition against his former client? The answer is no.
Arach-Amoko: Mr Mabirizi, this is not the first presidential election petition, there was one in 2006 and Justice George Kanyeihamba presided over that petition, wasn't he a former Attorney General, minister? What about in 2016, the then Chief Justice Bart Katureebe, hadn't he previously been an Attorney General, wasn't he a former founding member of Kampala Associated Advocates, why didn't you ask him to recuse?
Mabirizi: Both were never personal lawyers of President Museveni.
CJ: Doesn't the Attorney General advise the President on a daily basis? When you went through that resume at the Judicial Service Commission, didn't you also find information that the same person who in 2006, for example, represented the first respondent [Museveni] also represented a host of other people who were caught committing high level treason whom I saved from the gallows? You remember there was a rebellion in northern Uganda that was seeking to remove the same person you say I represented, so I also represented rebels. I am quoting the CV which was your source. So the same person who did this, was assisting or representing people who wanted to overthrow the 1st respondent (Mr Museveni). There is some more information that might not be in the CV but in judicial records, the same person represented FOBA, do you know what it means?
CJ: Force Obote Back Again is what it means. I am not doubting your reasonability but wouldn't you as a reasonable man put together this information before you can judge the person whom you want to recuse.
Mabirizi: A reasonable man reading this CV will discover that all those representations were past, the representation of the 1st respondent (Mr Museveni) is very recent in 2006. As far as the lawyer circle is concerned, that is the latest assignment he did, may be that is why he was made a judge. That could be the reason why the Fountain of Honor signed the instrument of appointment that you did some good work in representing him.
Arach-Amoko: The CJ was asking you, how many years are those, are you dodging the question?
Mabirizi: From 2006, I think its 15 years.
CJ: The authorities you cite, did you come across any that states that within this time frame, it's permissible or not to represent a client?
Mabirizi: The Banglore principles of judicial conduct try to talk about it but not in a case where a judge represented a client. The perception of the public needs to be clear.
CJ: Do you mean that the entire public is reasonable. You said Justice Owiny-Dollo is a very important person, so which other reasonable person are we referring to who is standing next to a litigant?
Mabirizi: I have no doubt in your independence but my point is, in all circumstances and fairness, making for recusal does not mean there is vindication about a judge. My lord Arach has just given me an example of Justice Kanyeihamba, he was asked by Dr Besigye to recuse. He refused and even ruled in favour of Besigye.
Arach-Amoko: So why are you wasting time because we could rule in your favour?
Mabirizi: This matter has different facts. The point is not whether the CJ can allow his relationship with the 1st respondent (Mr Museveni) to bias his mind. The point is about public perception. It's about fair hearing, and any clout about the process of the court must be avoided. Another point I need to make is Section 74 of the Advocates Act. It is clear that an advocate must work for money, actually, you will be penalised if you work for free or for less money. So the CJ was paid, and that makes it a financial interest.
CJ: All that is speculation.
Mabirizi: Unless my lord you breached the rules. A reasonable man can't believe that you worked freely for the Fountain of Honour who has lots of money at his disposal and that makes it a financial interest, then if it's a financial interest, the discretion is eroded.
CJ: Isn't the duty of reasonable people to make those ignorant ones know that the Chief Justice can deliver justice?
Mabirizi: Yes, we have a reasonable duty to advise the unreasonable ones but in this case, indecisive and that is the leadership I am offering. I wasn't paid, instead, I am using my money so that we get a decision on this. I have come as a common Ugandan to say that there is a problem of the rule of law. We need to defend this fragile system because the consequences are dire.
CJ: You can now proceed to the other grounds.
Mabirizi: My other grounds fall.
CJ: Then tell us what you what us to do with them.
Mabirizi: They fall, you have made them fall.
CJ: Do you want to collect them from the ground? What do you want to do with them?
Mabirizi: I shall leave them there (laughter in court).
CJ: It's your application that is why I am asking you.
Mabirizi: My lord, I am not abandoning them because you are supposed to recuse. Maybe the full court can overrule you (laughter in court).