POMA decision: A departure from the Justice Cheborion Barishaki we know

Sunday April 5 2020



Justice Cheborion Barishaki. File photo

Justice Cheborion Barishaki. File photo 

By Derrick Kiyonga

When the panel of justices that was going to hear the petition challenging the much questioned Public Order Management Act (POMA) was rolled out in early 2019, it had Geoffrey Kiryabwire, Cheborion Barishaki, Elizabeth Musoke, Stephen Musota and Kenneth Kakuru as its head.

Having scanned through the names, the petitioners and their lawyers expected the worst from Justice Barishaki.
They did not expect him to lead other justices in repudiating a law that the State has been using as an excuse to suppress political dissent like he famously did last week.

“It’s not just about writing a judgment. It’s about the wording he used in his lead judgment. Nobody expected him to lead in the struggle for people’s rights and freedoms,” explained one of the lawyers who argued the case on behalf of the five petitioners, but he preferred anonymity, saying “I will appear before Barishaki in future.”

Definition
POMA defines a public meeting as a gathering of two or more people and every organiser is required to fill a form at a police station, therein that person has to state his or her name, physical address, postal address, immediate contact, occupation and age and the petitioners expected Justice Barishaki to agree that such procedures are legal.

The fears by the petitioners, we understand, were informed by Justice Barishaki’s modus operandi of not seeming to go against the powers that be, even when you trace his record before 2015, the year he joined the Judiciary as a justice of Court of Appeal which doubles as the Constitutional Court.

In 2013, for instance, the ruling NRM party, together with its minions Saleh Kamba and Marym Agasha, flexed muscle.
They hired top-notch lawyers and dragged the Attorney General and four of the party’s MPs to the Constitutional Court.

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The crux of this constitutional petition was that lawmakers Wilfred Niwagaba (Ndorwa East), Theodore Ssekikubo (Lwemiyaga), Barnabas Tinkasiimire (Buyaga West) and Muhammad Nsereko (Kampala Central) were aliens in Parliament following their expulsion from NRM.

When the warring parties appeared before justices Steven Kavuma, Remmy Kasule and Augustine Nshimye for the preliminaries, Justice Barishaki, then director of civil litigation in the Attorney General’s chambers, formally informed the court how the MPs were going to carry their own crosses.

Justice Barishaki and his team subsequently crossed and joined the NRM in asking court to boot the MPs. The Constitutional Court agreed with Justice Barishaki and the NRM in kicking out the MPs, but when the MPs appealed, the Supreme Court quashed the same judgment, ultimately.

In 2015, Barishaki joined the Court of Appeal in the same lot as Alfonse Owiny-Dollo, now Deputy Chief Justice, Musoke, Catherine Bamugemereire, Hellen Obura, Simon Mugenyi Byabakama, now the chairperson of the Electoral Commission, and Paul Mugamba who has since been elevated to the Supreme Court. His presence at the Court of Appeal, however, was much felt in 2017.
The court started reading out judgments resulting from parliamentary electoral appeals from the High Court.

Barishaki and the now-retired Deputy Chief Justice Kavuma were constants on three-man panels that saw the tide turn against the Opposition with the justices either cancelling earlier Opposition victories in the High Court, or simply rejecting their appeals in instances where they had lost at the lower court.

For instance, Justice Barishaki joined forces with Kavuma and Bamugemereire to declare NRM’s Peter Sematimba as the duly elected MP for Busiro South yet the High Court had earlier thrown him out citing gaps in his academic papers.

DP’s Nsereko Wakayima Musoke lost his Nansana Municipality seat to NRM’s Robert Kasule Sebunya once his appeal was heard by justices Barishaki, Kavuma and Obura. The trio agreed with High Court judge Vincent Okwanga that Musoke could not stand as MP since he was not a registered voter and, therefore, never qualified for nomination and election.

The name Wakayima Musoke Nsereko, which was used by the DP politician for his nomination, the justices said, was nowhere on the voter’s register.

Age limit
Born on December 2, 1958, in the hilly eastern district of Kapchorwa, the soft-spoken, if not amiable, Justice Barishaki was presented with an opportunity to give his appreciation of human rights when he was included on the quorum that heard the consolidated petition that challenged the lifting of the presidential age limit from the Constitution.

Left to right: Constitutional Court justices
Left to right: Constitutional Court justices Cheborion Barishaki, Remmy Kasule, Deputy Chief Justice Alfonse Owiny-Dollo, Kenneth Kakuru and Elizabeth Musoke at the hearing of the age limit case in Mbale District in April 2019. FILE PHOTO

One of the acts that petitioners thought would render the whole amendment a nullity was the violence inside and outside Parliament on the day of the passing of the Bill leading to the scrapping of the age limits.
They said the violence had been superintended by the elite Special Forces Command (SFC) while the police, which is constitutionally mandated to maintain law and order, nonchalantly looked on.

Though his fellow panellists such as justices Owiny-Dollo, Kenneth Kakuru and Remmy Kasule condemned the violence, Justice Barishaki in his judgment had a radically different take: he shifted the blame back to the MPs.

“Upon evaluation of the evidence on record, I find that the affected Members of Parliament’s right to participate in the debate leading to the enactment of the Constitution (Amendment) Act was curtailed on account of their misconduct. I, however, find that the curtailing of such rights did not amount to a violation of Articles 1, 2, 3(2), 8A and 97 of the Constitution as it was necessitated by their rather unprecedented misconduct, which was contemptuous of the Rules of Parliament and the orders of the Speaker of Parliament,” Justice Barishaki ruled, much to the shock of human rights defenders.

He further rubbed salt into the wound by adding: “The intervention of Uganda police and UPDF to secure the precincts of Parliament by causing the eviction of the said Members of Parliament was a necessary avenue to enable Parliament to proceed with its constitutional mandate. Section 42 of the Uganda Peoples’ Defence Forces Act allows the UPDF to be called in aid of civilians in situations of riots or disturbance of peace.”

Justice Barishaki, who graduated from Makerere University School of Law in 1987, was also on the quorum that determined a constitutional petition filed by Opposition activist Kizza Besigye which also rotated around human rights and freedoms.

Dr Besigye was moved to file the petition when he was arrested by security operatives and put in some form to house arrest during the unprecedented 2011 walk-to-work protests that he had inspired under the auspices of Activists for Change.

Though Besigye had pointed out to the court that the charge of unlawful assembly under the Penal Code should be nullified since it contravenes Articles 21, 27, 29 and 43 of the Constitution, Barishaki joined justices Musoke, Kiryabwire and Musota in summarily dismissing Besigye’s petition on a premise that it was a nonstarter since it never raised any issues for constitutional interpretation.

With such a chequered record of handling human rights-related cases, the legal fraternity never envisaged that Justice Barishaki would join the league of Ugandan judges such as the late Joseph Mulenga who wrote a lead judgment striking down the offence of publishing false news from Uganda’s legal books, and the late Constance Byamugisha Kategaya who wrote a lead judgment to nullify Section 32(2) of the Police Act – the law before POMA that police used to cite when blocking Opposition political gatherings and demonstrations.

In his view, Justice Barishaki said the violent dispersal of political rallies in Uganda has been enabled by Section 8 of POMA which he accused of clearly authorising the police to arbitrarily determine which rallies to disperse.

“…the said provision became a tool that the police directed to partisan purposes under the guise of preserving public order,” Justice Barishaki ruled.
Most crucially, Barishaki uncharacteristically rebuked both the Executive and Legislature when he agreed with the petitioner’s argument that POMA was passed into law to undercut the Constitutional Court’s judgment that nullified Section 32(2) of the Police Act – in what’s known popularly in the legal circles as the “Muwanga Kivumbi case.”

“All efforts must be made by all arms of government to protect this young constitutional democracy. The enactment of Section 8 of POMA by the Legislature following this court’s decision striking down a similar provision in the Police Act was a blatant attempt at disregarding the checks on legislative powers,” Justice Barishaki warned.

About POMA

Public Order Management Act (POMA) defines a public meeting as a gathering of two or more people and every organiser is required to fill a form at a police station, therein that person has to state his or her name, physical address, postal address, immediate contact, occupation and age and the petitioners expected Justice Barishaki to agree that such procedures are legal.
The fears by the petitioners, we understand, were informed by Justice Barishaki’s modus operandi of not seeming to go against the powers that be.

Previous rulings

Barishaki and the now-retired Deputy Chief Justice Kavuma were constants on three-man panels that saw the tide turn against the Opposition with the justices either cancelling earlier Opposition victories in the High Court, or simply rejecting their appeals in instances where they had lost at the lower court.

DP’s Nsereko Wakayima Musoke lost his Nansana Municipality seat to NRM’s Robert Kasule Sebunya once his appeal was heard by Barishaki, Kavuma and Obura. The trio agreed with High Court judge Vincent Okwanga that Musoke could not stand as MP since he was not a registered voter and, therefore, never qualified for nomination and election.

During the petition that challenged the lifting of the presidential age limit from the Constitution, though his fellow panellists such as justices Owiny-Dollo, Kenneth Kakuru and Remmy Kasule condemned the violence in Parliament, Justice Barishaki in his judgment had a radically different take: he shifted the blame back to MPs.

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