The landmark judgments Katureebe dished out as judge

Sunday June 14 2020

Chief Justice Bart Katureebe

Chief Justice Bart Katureebe. PHOTO BY ERIC DOMINIC BUKENYA 

By Derrick Kiyonga

Eight months before Dr Kizza Besigye could dash to the Supreme Court asking it to annul President Museveni’s 2006 electoral victory on grounds that it was a sham, Justice Bart Katureebe joined the court, which was by then based in Bulange, Mengo, in Kampala.

Standing at approximately 6.4 fit and with his eyes hidden behind spectacles, Katureebe in a career-changing decision decided to abandon Kampala Associated Advocates (KAA), one of Uganda’s leading law firms he had established in 2001 together with Sam Mayanja, who had served as secretary of the Uganda Development Bank for more than a decade; Oscar Kambona, who headed and managed the Uganda Tax Bureau; and Elly Karuhanga, who is the honorary consul general of the Republic of Seychelles to Uganda, for government.

President Museveni, according to those who are familiar with Justice Katureebe’s thinking, played behind-the-scenes role in enticing Katureebe into joining the bench, which wasn’t paying well at the time.

Museveni apparently reached out to Katureebe who had served in his Cabinet in numerous portfolios, including that of the Attorney General, to quit private practice where he had been listed in Chambers Global, the world’s leading directory of business lawyers, to serve the country.

During this year’s judges conference, which was Justice Katureebe’s last as a serving a judge, Museveni corroborated this narrative when he praised him for having swapped his well-paying job for what he called “obwanakyeewa,” meaning voluntary service.

In August 2005, aged 56, Katureebe joined the Supreme Court, which meant he joined probably one of the greatest benches in Uganda’s history.

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It comprised justices Benjamin Odoki, who was the Chief Justice and also acclaimed for being an all-rounder of the law, Joseph Mulenga, an expert in criminal cases, Arthur Oder, an expert in tort cases, John Wilson Nattubu Tsekooko, accomplished in interpretation of rules and legal instruments, Prof George Wilson Kanyeihamba whose sphere was constitutional and human rights cases, and Alfred Karokora whose specialism wasn’t clearly defined.

Sitting with doyens of Uganda’s Judiciary meant that Katureebe had to prove himself, considering that he wasn’t a career judicial officer and there were fears from within and without that he could fail to assert himself at the grand stage.

Justice Katureebe was immediately thrown in at the deep end. On March 8, 2006, Museveni’s electoral victory was once again challenged by his eternal nemesis Besigye in the Supreme Court on grounds that it was work of fraud, among other things.
Justice Odoki, the head of the Supreme Court, ruled that all the seven judges of the court, including Justice Katureebe, were to hear the presidential petition.

Besigye’s unsuccessful presidential petition of 2001 was heard by only five justices who included Odoki, Mulenga, Karokora, Oder and Tsekooko, leaving out Kanyeihamba since they needed an odd number of judges to avoid a tie.
Oder and Tsekooko agreed with Besigye while the other three confirmed Museveni’s victory on grounds that malpractices committed were insufficient to annul the results.

In 2006, Katureebe’s inclusion on the quorum created speculation on how he could rule because there was a school of thought that he had fallen out with Museveni when he quit as Attorney General in 2001.
In the end, Justice Katureebe believed his former boss Museveni more than Besigye and joined Odoki, Karokora and Mulenga in clearing the President’s victory.

They ruled much to the shock of Besigye and his lawyers Wandera Ogalo, Peter Walubiri and John Matovu that the electoral malpractices committed by Museveni and the Electoral Commission (EC) did not affect the outcome in a “substantial manner”.
In his judgment, Katureebe evoked the now controversial “substantiality test” which presumes that for electoral transgressions to warrant a nullification of an election, they must affect the results in a substantial manner.
He cited the official results as declared by the EC which showed the difference in votes for Museveni and Besigye was about 1.5 million.

“In my view, 153,000 people, whose deletion is indeed reprehensible, is too small a number to affect the result of the election in a substantial manner, even if they had all belonged to one candidate, which was not proved. I am satisfied that this non-compliance did not affect the result in a substantial manner,” he controversially ruled, giving Museveni another five-year term.

“…it is one decision where I am at peace with, based on the evidence that I saw,” Katureebe later defended himself in an interview following a barrage of criticism.

Banking fraud
It is often argued that this case forever changed operations in Uganda’s financial sector. Early in 1996, Frederick Zaabwe, a lawyer, couldn’t get hold of Shs1 million. He wanted to pay the money to regulatory body Uganda Law Council in fulfilment of his obligations as a practicing advocate.

Zaabwe approached a friend, Livingstone Masambira Sewanyana, who doubled as his client, to assist him to pay the money. Sewanyana agreed, but on one condition: Zaabwe had to execute a power of attorney in favour of Mars Trading, a limited liability company in which Sewanyana was a shareholder and director and would then borrow the money from the bank.

On November 7, 1996, Zaabwe executed a power of attorney in respect of his land comprised in Kibuga Block 9 Plot 534, court records showed. With that, Sewanyana gave Zaabwe a cheque worth Shs1 million written in favour of the Law Council to settle the debt. But there was a twist: the cheque bounced on grounds of insufficient funds on the account.

When Sewanyana was told about the development, he directed that the cheque be re-banked. Zaabwe accordingly advised the Law Council to re-bank the cheque, which it did. The cheque bounced once again.

In the meantime, Sewanyana had also introduced two of his fellow shareholders/directors in the company to Zaabwe who surrendered to them not only the power of attorney, but also the certificate of title in respect of his land.
The power of attorney was then registered with the registrar of documents. Thereafter, and on the basis of the power of attorney, Mars Trading mortgaged Zaabwe’s property to Orient Bank in an effort to borrow money from the same bank. Mars Trading failed to pay back the money it had borrowed from Orient.

Accordingly, on December 11, 1998, Orient sold Zaabwe’s land to one Ali Hussein for Shs35 million. On May 19, 1999, Zaabwe was evicted from his house by bailiffs Tito Twijukye and Rwenzigye Byaruhanga. Zaabwe’s law chambers, which were on the same property, had to fold too.

Humiliated, Zaabwe filed a suit in the High Court challenging the mortgaging and sale of his property, therein accusing Orient, Mars Trading, lawyer Allan Shonubi, Martin Nkuku, Twijukye and Byaruhanga of fraud.
Both the High Court and Court of Appeal dismissed Zaabwe’s case saying it was unmerited, setting the final showdown at the Supreme Court.

The panel that heard Zaabwe’s case, 10 years later, was led by the experienced Tsekooko, Karokora, Mulenga, Kanyeihamba, with new comer Katureebe completing the list. Though Katureebe was most junior, he seized the opportunity to write a lead judgement. Therein he announced his arrival at the Supreme Court through laying down the ingredients of fraud.

He remarked that he found it strange that the two inferior courts had not found Zaabwe’s tormentors guilty of fraud.
“Looking at the evidence, there can be no doubt that Sewanyana and his two co-directors contrived a plot to get the appellant [Zaabwe] to give their company, the two respondent [Mars Trading], a power of attorney and surrender his certificate of title to his property which they could, and did, use as a security to secure their own borrowing from the bank, the 1st respondent [Orient bank].

Clearly they took advantage of the appellant’s problems with the Law Council, i.e. his inability to settle his financial obligations with that body,” Justice Katureebe wrote.

“The fact that they gave a cheque which bounced, and then asked him to ask the Law Council to re-bank the cheque when they knew there was no money on that account, must be taken to show the bad faith and perfidy of these people. Their cheque bounced a second time and they still proceeded to mortgage the appellant’s title, and obtained funds which they used for their own purposes. Having obtained and used the money, they then failed, refused or neglected to re-pay the loan. What could be more fraudulent than this?”

In his analysis, Katureebe didn’t spare Orient. He exposed how the bank not only had knowledge of the fraud that its client Mars Trading was engaging, but also enabled the same.

“The 1st respondent [Orient Bank] appears only to have been interested in getting hold of some property to secure credit already given to their customer, the 2nd respondent [Mars Trading]. It did not scrutinise the power of attorney, or if it did, it chose to ignore the provision therein, and surprisingly for a bank, did not even insist on a proper execution of the mortgage,” he said.

“Its own manager was quite happy to witness the signatures of the directors of the 2nd respondent on the mortgage deed, which I have already discussed, without even disclosing his full identity. In the result I find that fraud was committed on the appellant [Zaabwe] by the 2nd respondent’s directors/shareholders. I also find that the 1st respondent [Orient] had, at the very least, constructive notice of the fraud but chose to ignore it. The transaction of the mortgage between those two parties was totally null and void on account of that fraud.”

Shonubi Musoke & Co. Advocates, the law firm that strangely acted in all the transactions, that’s to say the mortgage, the sale of the property and transfer to Ali Hassan, weren’t spared either in Justice Katureebe’s judgement.

“The lawyers were aware that the appellant [Zaabwe] was alleging fraud in the mortgaging of his title and its proposed sale. He was in the process of conducting a criminal prosecution over the matter,” he said.

Katureebe later ordered that the land should be transferred into Zaabwe’s names and also ordered Orient and Mars Trading to not only pay Zaabwe the money he spent on lawyers from the High Court to the Supreme Court via the Court of Appeal, but also to pay Zaabwe Shs200 million in aggravated damages.

Betty Nambooze vs Bakaluba Mukasa
In 2007, DP’s Betty Nambooze obtained a High Court judgment cancelling victory of NRM’s Peter Bakaluba Mukasa for Mukono North constituency.

Bakaluba had been found guilty by Justice Stella Arach-Amoko, who went on to be a Supreme Court judge, of bribing voters during the 2006 parliamentary elections.

Little did Nambooze know that her nemesis would remain in Parliament for three more years as he kept on appealing all the way to the Supreme Court, challenging Justice Arach-Amoko’s judgment.

It was Katureebe who wrote the lead judgment ending Bakuluba’s dream of staying in the House, but it came when the 2011 elections were beckoning.

Bakaluba’s stay in Parliament for almost the whole term under the pretext that he was appealing provoked lawmakers into amending Parliamentary Elections Act, inserting in section 66(3) which provides that the decisions of the Court of Appeal pertaining to parliamentary election petitions shall be final. The option of appealing to the Supreme Court was eliminated.

Rebel MPs
In September 2013, the Constitutional Court led by then acting Deputy Chief Justice Steven Kavuma agreed with the NRM to temporarily throw out four of its MPs out of Parliament as they awaited the final judgement from the same court.

The affected MPs – Wilfred Niwagaba (Ndorwa East), Theodore Ssekikubo (Lwemiyaga), Barnabas Tinkasiimire (Buyaga West) and Muhammad Nsereko (Kampala Central) – were impatient and went to the Supreme Court and challenged the Constitutional Court’s temporary order.

The MPs found a Supreme Court that was undergoing changes. Odoki who would have led the panel had retired but was involved in this case thanks to the two-year contract he had been awarded together with Tsekooko, Christine Kitumba and Galdino Okello.

Katureebe by virtual of the being the most senior substantive judge of the court headed the panel that was tasked to go against the wishes of Mr Museveni who badly wanted the four MPs out of Parliament.

With justices Jotham Tumwesigye and Esther Kisaakye Kitimbo completing the panel, during submissions Ellson Karuhanga, an NRM lawyer, threw the spanner into the works when he told the seven justices how they could not handle the matter because two of the judges of the Supreme Court were missing.

The missing judges were Arach-Amoko, who was away at the East African Court, and Amos Twinomujuni, who was ill and later passed on.

Karuhanga quoted Article 131(2) of the Constitution, which provides that, “When hearing appeals from the decision of the Court of Appeal sitting as Constitutional Court, the Supreme Court shall consist of a full bench of the members of the court and where one is not available the President for that purpose shall appoint an acting judge.”
But Katureebe in a show of authority shutdown Karuhanga saying, “We are fully constituted.”

In the end, the Supreme Court, in a ruling which was dissented to by only Justice Kisaakye, overruled the Constitutional Court and ordered the MPs back to Parliament as they waited the judgment.
Peculiarly, months later when the same case returned to the Supreme Court following the final decision by the lower court to throw out the MPs, Katureebe who had been pinpointed as next Chief Justice wasn’t on the panel. Justice Arach-Amoko had replaced him, triggering murmurs.

The Supreme Court finally ruled in the rebel MPs’ favour.

In the final part next Sunday, read about criticisms of Katureebe’s rulings and lack of reforms

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