Prime
Chibita’s journey to Supreme Court and the case that made his mark
Justice Mike Chibita
What you need to know:
- It took him a year to make a mark at the High Court, but it has taken him two years to assert himself at the highest court in the country; Justice Mike Chibita wrote a lead a judgment that could limit the number of parliamentary by-elections in this term.
In 2012, two years after being appointed a High Court judge, Justice Mike Chibita was thrown into the deep end. He was assigned by the then Principal Judge to determine the fate of businessman Godfrey Kato Kajubi who was accused of being the mastermind of the ritual sacrifice of Joseph Kasirye, 12, in the central district of Masaka.
In 2010, Kajubi had been acquitted by Justice Moses Mukiibi without requiring him to put up a defence on grounds that the prosecution hadn’t established a prima facie case against him.
When the Director of Public Prosecutions (DPP) appealed, Court of Appeal justices Amos Twinomujuni, Steven Kavuma and Augustine Nshimye ordered retrial.
“This case shocked the entire nation. It is in the interest of the respondent and the people of Uganda that a just solution is found. At the risk of an amount of delayed justice, we think the only viable resolution of the conflict between justice and impunity is to order that there be a retrial in the High Court of Uganda before another judge,” the three justices ruled on November 23, 2010.
The new judge to hear the case was Justice Chibita who had previously served in different portfolios, including private secretary for legal affairs in State House and as a State Attorney.
Having listened and analysed testimonies from 18 state witnesses as presented, the judge concluded that Kajubi participated in the ritual murder. The punishment handed to Kajubi was to spend the rest of his life in jail.
Kajubi has fought Chibita’s ruling, but both the Court of Appeal and recently Supreme Court agreed with the judge.
“Indeed, owing to the gruesome, horrendous, callous, and most unjustifiable killing of an innocent and defenceless 12-year-old child by decapitation and cutting off the private parts, it is unreasonable for anyone to contend that a sentence of life imprisonment upon conviction is either harsh or disproportionate,” Chief Justice Alfonse Owiny-Dollo, justices Ruby Opio-Aweri, Lillian Tibatemwa Ekirikubinza, Ezekiel Muhanguzi and Percy Night ruled last year.
One year after the famous Kajubi judgment, Justice Chibita was tapped by President Museveni to serve as Director of Public Prosecutions where he served until he was appointed to the Supreme Court in December 2019.
It took him a year to make a mark at the High Court, but it has taken him two years to assert himself at the highest court in the country: Justice Chibita wrote a lead judgment that could limit the number of parliamentary by-elections in this term.
The petition that gave Justice Chibita a chance arose from events of 2016 when after the general election Parliament created six municipalities – Apac, Sheema, Ibanda, Nebbi, Bugiri and Kotido – and in 2018 the Electoral Commission (EC) proceeded to organise the so-called mid-term elections.
Mr Eddie Kwizera, a private citizen, successfully challenged the elections at the Constitutional Court. The court agreed with him that it was unconstitutional for EC to organise elections in the six constituencies in the middle of a parliamentary term, and yet they were not by-elections as its contravened Article 63(6) of the Constitution.
Unsatisfied, the Attorney General and EC took the battle to the Supreme Court. The penal had senior justices such as Esther Kisaakye, Stella Arach-Amoko, Faith Mwondha, Paul Mugamba, Ezekiel Muhanguzi and Percy Tuhaise.
But Chibita, their junior, wrote the judgment that could end the habit of having parliamentary elections halfway a term.
In his analysis, Justice Chibita said: “There is no evidence on record to show that the Electoral Commission ever undertook to demarcate constituencies based on the resolution of Parliament, dated August 9, 2016,” he ruled.
“This, therefore, meant that the process of creation of the constituencies as prescribed in the Constitution was never completed. In view of this, the Electoral Commission could not be seen to organise elections in purported constituencies whose demarcation and creation had not been completed in law.”
Justice Chibita agreed with the Constitutional Court, holding that any demarcation of constituencies or alteration of boundaries can only take effect in the next general election.
“I agree with the above dicta. Having a Member of Parliament vacate his or her seat in Parliament is not the same as creating a constituency that didn’t exist at the time of election. In any case, the facts at hand do not even show the process of creation consistencies was completed,” Justice Chibita ruled. “Be that as it may, the same position would be maintained even if the creation process had been completed.”
To buttress the point, Justice Chibita quoted the Constitutional Court’s lead judgment which was written by Justice Christopher Madrama who said: “…. Before for a constituency is split into two or more constituencies, a Member of Parliament is elected for a whole region which is subsequently split into two or more constituencies. So long as the Member of Parliament remains in Parliament, he is under obligation to represent all the people in the constituency which elected him or her into Parliament before it was split into two or more constituencies.”
Before Justice Chibita could deal with the legality of creating new constituencies, he first dealt with a cross-petition which was filed by MPs who were beneficiaries of the contested elections. Asuman Basalirwa (Bugiri Municipality), Elioda Tumwesigye (Sheema Municipality), Patrick Ocan (Apac Municipality), Peter Abrahams Lokii (Moroto Municipality), Rwaburindore Bishanga (Ibanda Municipality), and Sulaiman Hashim (Nebbi Municipality) filed what they called “cross- petition”, accusing the Constitutional Court of proceeding without them yet its findings affected them adversely.
Dan Wandera Ogalo, Kwizera’s lawyer, insisted that the cross-petition couldn’t stand because those who filed it were not party petitions at the first court of instance, the Constitutional Court.
In resolving this issue, Justice Chibita cited Article 132(3) of the Constitution which he said makes it clear that parties aggrieved by a decision of the Constitutional Court can make a last-ditch effort at the Supreme Court.
“In my view, I would hold that unless a party took part in the proceedings in the Constitutional Court and following this participation, the party was aggrieved by the decision of that court, he or she doesn’t have locus whatsoever before this court,” he said.
Mr Geoffrey Kandeebe, who represented the six applicants, contended that the Constitutional Court had condemned them unheard, but Justice Chibita didn’t buy that argument.
“The aforementioned rule clearly shows that a cross-appellant should be an appellee or a respondent named in the appeal pending before the court who is desirous of expanding the relief granted to him or her or to lessen the relief granted to the appellant,” he said. “The cross-appellants herein were none of the above. This in itself disentitles them from having legal standing in this court.”
Though the right to be heard is at the centre in Uganda’s legal books and Constitution, Justice Chibita said it doesn’t exist in the vacuum and one has to prove that it existed and it was breached.
“I entirely agree with the decision of the Constitutional Court regarding the affected MPs right to a fair hearing, which, having found that there were no vacant constituencies to be filed and that the decision by the court was never meant to deprive the affected Members of Parliament in the six constituencies, the court rightly held that the rule of audi alteram partem was violated.”
