Thursday April 3 2014

Attorney General at great risk of shutting down courts

By Karoli Ssemogerere

On an otherwise quiet Friday evening, Lady Justice Lydia Mugambe-Ssali of the High Court’s Division issued a scathing ruling that stopped the process of replacing Erias Lukwago as Lord Mayor. Ms Ssali articulately described from the bench a dangerous trend in government law enforcement that has replaced the constitutional paradigm of rule of law by a new dispensation of the rule by law. The ruling stopped in the tracks the Electoral Commission from replacing Mr Lukwago and in another historic first, held a number of senior government officials led by the Attorney General and the Executive Director of Kampala Capital City Authority (KCCA) in contempt of court.

Unfazed (if press reports are true), the Attorney General initially responded to a failing grade in his duties issued by Justice Ssali by attacking the Justices in a language that should not be repeated here. On Monday, fully loaded, he was in the Court of Appeal where Acting Deputy Chief Justice Steven Kavuma stayed a number of orders from the High Court, even though some of the orders are of doubtful value.

It is true that an overwhelming majority of KCCA councillors from all parties voted to remove Mr Lukwago from office. Twenty nine councillors representing all parties in the Authority voted to remove him from office. However, Mr Lukwago in court proceedings, has succeeded in convincing court that the vote to remove him was in violation of a validly issued court order by the Registrar of the High Court. In a direct rebuke of the events of that day, he has put the political machine that forced him from office into public ridicule by showing that they acted in vain. The Minister for Kampala, Mr Frank Tumwebaze, and the senior civil servant in charge of Kampala, Ms Jennifer Musisi, for the foreseeable future have to contend with willfully ignoring a court order. Ms Ssali had no time for the pleasantries submitted, stating that it was not the job of the said individuals to verify the court order once they had been served.

As for the Electoral Commission that managed the controversial election of special representatives to KCCA whose only job ever since was to vote to remove Mr Lukwago from office, they also found themselves at the receiving end of contempt of court citations.

By emphasising right over might, Mr Lukwago has so far succeeded in isolating his foes. And with the passage of time, he may earn the sympathy of some of the forces that voted to remove him from office. In their annual report, the country’s bar association, the Uganda Law Society, reported that in 2013, election of their representative Frank Kanduho had taken place. They quickly added that there being no Lord Mayor, there wasn’t any Authority business to transact. Government had hoped to put in place an acting Lord Mayor but that has not worked out.

They are hamstrung by the earlier intransigence of the Executive Director refusing to recognise the election of the Democratic Party’s Sulaiman Kidandala from Kawempe as deputy Lord Mayor.

And if the members of the Authority were moved to remove Mr Lukwago from office, the Divisional Mayors have been reluctant to wave to enter into the fray. Testifying at the Judicial Commission of Inquiry in Lukwago’s favour included the NRM mayor of Kampala Central Godfrey Nyakaana.

As the week wore on, the Attorney General has found the wisdom to cool down and direct the Electoral Commission to stay the by-elections. Mr Kavuma’s order seemed to allow the elections to go ahead but the only result could have been two sitting Lord Mayors if the final ruling by Justice Yasin Nyanzi ever came out.

Stay of execution is a safety valve to protect the authority of the courts. On Friday, the parties before Justice Ssali had leeway to apply for a stay of her orders. Stays by their nature are a polite way to freeze avalanches without embarrassing the judge. But the bigger prize which the Attorney General seems to be worried about is the risk in allowing Mr Nyanzi to issue his long-awaited ruling. So, there is some wisdom in skipping the High Court altogether to run to the intermediate appeals court.
But what Attorney General Peter Nyombi could get from the courts must face the test of public opinion. He is the principal legal advisor to government and it follows the people government represents.

By attacking judges in personal terms, he takes a personal hit. He is the head of the Bar in Uganda. Without a functioning Attorney General, courts can grind to a halt. He already has had problems with his constituents - the Uganda Law Society - who sanctioned his removal from their ranks last year. There have been instances in the past where other judges have expelled practitioners from their courts. Current IGG Irene Mulyagonja Kakooza did so in the past. No one has said yet; Mr Nyombi, if he continued down this path, could not earn himself a similar sanction.

And it will always haunt the government whether the Bamugemerire Commission was the best way to handle a purely political problem.

Mr Ssemogerere is an Attorney-at-Law and an Advocate.