The Constitutional Court is on trial for refusing to hear Dr Kizza Besigye’s petition seeking to stop his prosecution on charges of unlawful assembly under Section 65(1) and (2) of the Penal Code Act.
The panel led by Justice Kenneth Kakuru advised Dr Besigye to seek redress from his Peoples’ Government, a mock government that Besigye formed to protest results of the 2016 polls. Justices Geoffrey Kiryabwire, Elizabeth Musoke, Cheborion Barishaki and Stephen Musota were also on the panel.
In what might be construed as ‘judicial overzealousness’, the judges reminded Dr Besigye, a four-time challenger to President Museveni, that since he refused to recognise the ruling National Resistance Movement government, he cannot seek redress in courts created under the same government. This was uncalled for and in some ways taints Judiciary as a temple of injustice.
In the petition, Dr Besigye had argued that section of the Penal Code is inconsistent with Articles 21, 27, 29, 43 and 120 of the Constitution. This was the issue at hand. Instead, the judges veered into the post-2016 election drama, accusing Dr Besigye of swearing-in himself and refusing to recognise President Museveni.
These accusations were not part of the pleadings and there was record to that effect. The petition was filed in 2011 but the judges used events of 2016 to disregard the petition.
The impugned decision of the Constitutional Court in our view, raises serious legal and political questions and in some ways borders on ‘judicial bias.’
It’s true, the principle of equity requires that everyone who goes to court must go with clean hands, but in law, there is also something called ‘extrajudicial source rule’. This rule provides that any judge shall disqualify himself in any proceeding in which his or her impartiality might judiciously be questioned.
Although there is no material evidence to implicate Justice Kakuru’s panel as “regime judges”, it’s important that we maintain public confidence in judicial impartiality. The angry public reaction over the judges’ refusal to hear Dr Besigye’s petition, should guide the Judiciary in enforcing its rules on how meticulous judges should be in deciding cases. Let’s protect the integrity of our judicial system.
In a flawed judicial system, judicial officers, who, through impunity, bias or outright corruption, prevent people from getting fair hearing. This is one of the most disturbing threats to our judicial system.
We must confront this problem and create a system that works for the rich, the poor, those in Opposition as well as the ruling class. It’s critical that people have full faith and confidence in the judicial process.
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