Sunday March 16 2014

Of mutinying ‘rebel’ MPs and naive lawyers -Part I

By Prof George W. Kanyeihamba

Since the four rebel MPs and my incredulous junior colleagues (lawyers) messed up the application I had carefully prepared and filed in the Supreme Court and instead got a temporary injunction instead of a permanent one which my application was seeking, all of them have failed to answer my telephone calls or tell anyone why they mutinied.

In the application, we were seeking the cutting and destruction of the whole rotten tree but in their incredible naivety, my junior lawyers, for whom I was the lead counsel, believed wrongly that they would shine and be recognised better if they eclipsed their leader and file their own application without my knowledge or consulting me.

Their application used my ideas and arguments. However, they instead did not want to cut the whole rotten tree but to remove a dry branch from it and preserve the rest. They will presumably return to the Supreme Court again and again in order to learn the art of advocacy for a little while longer.

What the world did not know is that these advocates, in conspiracy with our clients, opposed or sabotaged the advice of lead counsel. At almost every stage, I would be forced to take counter measures to defeat the wrecking schemes of my colleagues in order to protect and advance the interests of our clients. Occasionally, the mutineers would betray one another’s scheme and inform me.
Following the filing of petitions by the four legislators expelled from the ruling party, looking like lost sheep, the MPs turned up very early one morning and begged this columnist to be their lead counsel. I agreed and asked them to put it in writing. By the time they returned, they had met some of the lawyers who would later be my juniors in the petitions.

To my surprise, the four Members of Parliament had been advised by some of those junior lawyers that I should only be a senior consultant in the case. I refused to accept or play that role. I advised them to look for another counsel. Almost in tears and pleading like abandoned and hungry refugees, they insisted that I represent them. They promised to go and draft another letter of instructions. That is when they instructed me to be their lead counsel. They informed me that they had instructed other law firms and lawyers to be my junior counsel in the petitions. I organised a plan of action meeting and invited them all to attend.

What occurred at the meeting proved to me that I was dealing with unprincipled or naïve clients and junior lawyers. They all suggested that the petitions and their grounds be apportioned between all the lawyers, so that each of them has an opportunity to address court personally. Several of them suggested that this would be their first time in the appellate court and an opportunity to become famous by addressing the justices of the Constitutional Court.

After prolonged and heated arguments about the division of labour, every one became wiser and accepted the proposal that in cases where there are lead and junior counsels, the lead counsel is the manager and he or she chooses who may speak about what and when. Throughout the conduct of the petitions, my juniors were never disciplined or wise enough to understand, let alone appreciate how a group of lawyers, however each or all of them think themselves, conduct a case as a collective team. Mr John Mary Mugisha and his team with whose arguments and submissions, we often disagreed and opposed are an exemplary team.
Sadly, my lot appeared to have insufficient wisdom and patience to appreciate the efficiency and impact of acting as one team under one leader in the context of litigation and advocacy.

In consequence, throughout the proceedings of the petitions, I was confronted not only by Counsel but also often ambushed by the naivety and opposition of our own clients.

One such incident occurred when lawyers Ben Wacha and Caleb Alaka decided against my advice and applied for leave to appeal when in our preliminary objection, we had contended that the same court was not constitutionally empanelled and therefore had no jurisdiction to entertain any such application.

Prof Kanyeihamba is a retired Supreme Court judge.