Sunday January 19 2014

The ping-pong over Lukwago court case

 

By Mukiibi Sserunjogi

On Tuesday, Jan 14, Kampala Lord Mayor Erias Lukwago attempted to whip up interest in his court case. Due to return to court where he is trying to secure his position as Lord Mayor the following day, Mr Lukwago called on his supporters to accompany him to City Hall, the seat of the Kampala Capital City Authority (KCCA), to reoccupy his office.

In preparation for the march to KCCA that never was, Mr Lukwago had made copies of the court ruling of November 28, 2013 with which each of the accompanying supporters would be armed. In this order, the High Court Judge, Yasiin Nyanzi, held that Mr Lukwago was still the Lord Mayor until the application he filed in court challenging his planned removal from the position was decided.

Ultimate price
“We shall see what is stronger between the gun and the court order,” Mr Lukwago had said, vowing that he was prepared to “pay the ultimate price” in the process.

On Tuesday, however, the police blocked him at his home in Wakaliga in Rubaga Division.

Mr Lukwago, those close to him tell us, wanted to test the court order and show that the Executive was violating it before returning to court the following day, probably hoping to extract a tougher statement from the judge on the position of the law.

In court, however, matters took a different twist with the Attorney General (AG) demanding that Judge Nyanzi disqualifies himself from hearing the case. The AG says the judge erred in granting an order stopping the meeting on November 25, 2013, in which majority KCCA councillors voted to remove Mr Lukwago from office.
The order stopping the meeting, according to the Judge, was issued less than an hour to the said meeting. KCCA Minister Frank Tumwebaze had called the meeting on November 25, 2013 at 9am, an hour before court would sit to hear Mr Lukwago’s application.

Mr Lukwago’s lawyers rushed to court to stop the meeting, arguing that if the meeting happened and Mr Lukwago was voted out before court would rule on whether it was proper for the minister to act on the report, Mr Lukwago’s application would be overtaken by events and that he would suffer irreparable damage.
On being notified of the developments, Judge Nyanzi explained in his November 28, 2013 ruling, he asked the deputy registrar of the High Court to issue an order stopping the meeting before it happened.

What next?
Judge Nyanzi has yet to pronounce himself on whether he will continue with the case following the AG’s demand that he steps aside, something Judiciary spokesperson Erias Kisawuzi says “rests with the judge”.

Mr Kisawuzi also declined to state the position of the Judiciary regarding the status of Mr Lukwago, saying the question could only be answered by the judge.
We tried to speak to Justice Nyanzi without success, but his November ruling addresses the issue.
The AG, in trying to block Mr Lukwago’s application for an order stopping the meeting before his case is heard, had argued that Mr Lukwago had stopped being Lord Mayor immediately Mr Tumwebaze wrote the letter summoning the KCCA meeting of November 25, 2013 in which a motion to remove him from office was to be moved.

For this reason, the AG argued, Mr Lukwago had no status quo to preserve and therefore the application for the injunction was meaningless.

The judge ruled, however, that Mr Lukwago’s application was also based on the same law under which the minister had acted and that therefore Mr Lukwago had “a status he seeks to protect”. The AG said he would appeal against the ruling, but he had not done so by the time of writing this report.

However, Mr Lukwago has been blocked from accessing his office, with state agencies like the police saying the AG has advised them that Mr Lukwago is no longer Lord Mayor. Mr Lukwago has taken issue with this reasoning, challenging police chief Kale Kayihura: “How can a party (the AG) that lost in court advise you to disobey a court order and you comply?”

How case could pan out
In the current case, Mr Lukwago fears the Executive seems keen to keep him out of office for the rest of the term, albeit illegally, because pursuing the legal channel would almost certainly see him finish his term.
Mr Lukwago’s backers have accused the Executive of trying to force Judge Nyanzi out of the case and replace him with a “cadre” judge who will rule in their favour.

Whatever the case, however, the legal road would still be long. Mr Peter Walubiri, one of Mr Lukwago’s lawyers, said when the current case challenging the legality of the report is decided, the losing side can appeal to the Court of Appeal and later to the Supreme Court. If Mr Lukwago loses the current case and the appeals, the Minister for Kampala will be free to call the councillors’ meeting again in order to vote on Mr Lukwago’s fate.

But, Mr Walubiri says Mr Lukwago would still go back to court before that, this time to try to enforce an earlier court ruling. Judge Vincent Zehukirize ruled that even if a prima facie case were to be found against Mr Lukwago, the Authority would still have to be fully constituted for him to be voted out of office. This prompted a rush for the election of councillors to represent professional bodies.

But Mr Walubiri says the Authority has no deputy Lord Mayor since Mr Sulaiman Kidandala’s appointment was blocked. Mr Lukwago would therefore have to first preside over a meeting to approve his deputy and fully constitute the Authority for purposes of his removal. Would he do it?

In case he does it and he is voted out, Mr Walubiri adds, Mr Lukwago can still go back to the High Court to challenge his removal and afterwards appeal to the Court of Appeal and the Supreme Court.

There does not seem to be enough time left during Mr Lukwago’s current term to do all that. For that reason, observers say, the government chose the shorter route of keeping Mr Lukwago out of office, albeit illegally. It has been done before at KCCA, in the case involving Kampala District Land Board chairman Yusuf Nsibambi.

GROWING TREND

The AG insists that his interpretation of the law is the correct one and that it is the judge who is wrong.

And this time, unlike in the past, not even Judiciary spokesperson Kisawuzi will be drawn into issuing a clear statement. In the past, when there was doubt about a court order being violated, Mr Kisawuzi spoke out clearly, inviting criticism from the Executive.

Mr Kisawuzi, for example, declared that the Democratic Party’s Moses Kasibante and not the ruling party’s Katongole Singh, was the validly elected MP for Rubaga North in the 2011 general election.

Mr Kasibante had been declared winner of the election but was controversially replaced by Mr Singh following a vote recount which went on deep into the night in disregard of a court order stopping it. Mr Singh occupied the seat in Parliament for more than a year until Justice Kibuuka Musoke ruled that Mr Kasibante was the validly elected MP for Rubaga North.

During the trial, Mr Singh attempted to crank up pressure on the judge, alleging without substantiating that the judge had taken a bribe to rule against him and therefore that he should disqualify himself. Justice Musoke ignored the call to jump out of the case.

The above is just another example of a judge in a political case being asked to disqualify himself by one of the parties in the recent past.

In another case, expelled NRM MPs Theodore Ssekikubo, Barnabas Tinkasiimire, Muhammad Nsereko and Wilfred Niwagaba asked Justice Steven Kavuma to disqualify himself from the Constitutional Court panel hearing the case in which the ruling party is seeking to throw them out of Parliament as a result of their having been expelled from the party. He ignored the call.

Again, Justice Kavuma was asked to disqualify himself from hearing the petition seeking to block former Chief Justice Benjamin Odoki from being reappointed to the position.

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