Help Uganda get peaceful transition, lawyers tell judges

Friday April 20 2018

Submissions.  Mr Male Mabirizi makes his

Submissions. Mr Male Mabirizi makes his submissions before the Constitutional Court during the age limit petition in Mbale yesterday. PHOTO BY MICHAEL KAKUMIRIZI.  

By Anthony Wesaka and Fred Wambede

Ladislaus Rwakafuuzi (counsel for the petitioners): My lords, I will go straight and address you on the issue of costs. The matter that is before you is a public litigation matter and it’s brought by several parties including the Uganda Law Society, private citizens some of who are Members of Parliament. The rules regarding costs, specifically in Section 27 of the Civil Procedure Act; it’s wrongful, it’s not applicable in public interest matters.
Section 27 is read together with … it is specifically supposed to enforce their private rights. The rules say you can sue the Attorney General in matters of conduct, breach of trust but when we…..
Justice Alfonse Dollo: You are asking us to trace the rules in the Civil Procedure Act, so you want us to understand the genesis?
Rwakafuuzi: Yes my lords. When we got our Constitution around 1962, it was incumbent upon Parliament to make rules and laws for the enforcement of the Constitution specifically the Bill of rights and enforcement of public rights. It did not happen and we have continued to apply the same rules in litigating public rights. That is why our jurisprudence has not grown in terms of what should happen when negotiating public rights as it is before you today. In Section 27, the import of it is such that the winner takes it all.
Justice Kenneth Kakuru: Section 27 state that court has discretion in awarding costs but costs ordinarily follow the event. But in the event that court declines to award costs, it must give reasons.
Courts have faulted judges who have declined to award costs without giving reasons. So the general rule is that costs follow the event but the principle is that courts have the discretion and when it decided not to follow the general, it must give reasons.
Rwakafuuzi: My lords, the public interest doctrine requires that private citizens who spend resources on the enforcement of the Constitution, good governance, democracy should be awarded costs because the petitions cost money. My lords, these are not damages but costs for spending money on a public good. My prayer is that in petition number 5 which has been brought by private citizens though they are members of Parliament, they have hired lawyers and, my lords, I am applying for certificate for two counsel in petition number 5.
Justice Dollo: Mr Rwakafuuzi, that argument of yours is double blended if you understand what I am saying because we take as a principle that should you lose the petition, the learned Attorney General will also say he is going to file for a bill of costs. It can never be one way.
Rwakafuuzi: That is why I told you that Section 27 is about enforcing private rights because when you are enforcing a public good, the Attorney General is in this court as a party because he is a reference for a public good.
Justice Dollo: Then your argument will be that in the event, you could even say in the unlikely event that this court dismisses the petition, costs should not be awarded to the Attorney General but that is a different lane you are arguing because you are pursuing interests of all the country and we are digging our hands in our pockets as we are not asking for funds from them. So your argument is that if court is pleased at the end of the day, costs should be awarded.
Rwakafuuzi: Yes.
Justice Dollo: But I am also saying the Attorney General will say that what is good for the goose is good for the gander.
Rwakafuuzi: Thanks for guiding me but I was coming to that. My lords, in the unlikely event that we lose, you should find that this petition was not frivolous, it was something very serious and you could still award us costs (laughter in court).
Yes my lords because the doctrine of public interest invites court to do it that way to encourage others to participate in the governance of the country
Justice Dollo: I don’t know whether court can award costs to ….
Rwakafuuzi: To a losing party?
Justice Dollo: No no, on grounds that the petition was not frivolous..? I think in the authorities, there must be something done on the other side
Justice Kakuru: I understand you clearly. The issue here is how this has been abused because there was a public case where court awarded Shs13b so we have to have safeguards.
Justice Dollo: Lastly, the rules apply to all. Not only the petitioners.
Rwakafuuzi: And for Mr Mabirizi…..
Justice Dollo: In the event that he (Mabirizi) succeeds and we were to award costs, he will not get instruction fees because he is not instructed. We will be pleased to do so.
Male Mabirizi: I applied for general damages (big laughter in court).
Justice Dollo: Let us conclude this issue of remedies.
Mabirizi: My lords, I have one authority to back this up (cites a South African authority). On my side, I am a business person and have spent so much time and resources on this petition. I have been in Mbale for the last close to two weeks.
Justice Kakuru: Your business is going to have a boost, you have got two weeks of free adverts (big laughter in court).
Justice Kasule: Mr Mabirizi, I want you to address court on what happens in the event you lose the petition.
Mabirizi: Each party to bear its own costs because we are raising matters of general importance and in case we win partially, my prayer is to be awarded full costs.
Justice Dollo: Counsel Wandera Ogalo, what do you say about the issue of costs?
Wandera Ogalo: My lords, there are two ways. There are those issues that we argued which attacked the entire process, there was also an argument relying on…… on behalf of the Uganda Law Society, they only pray for disbursement, not costs.
Justice Dollo: Thank you.

(Court resumed yesterday petitioners making their final submissions in a bid to convince the five justices of the panel to rule in their favour).
Wandera Ogalo: My lords, I begin by stating that the entire of conceptualising, consulting, debating and enacting the Act was so incurably flawed as to render the Act null and void for incompatibility with the constitution. My humble submission is that Article 8A imports the whole purpose of state policy. This Article plus the Constitutional Appeal No 1 of 2015 require this court to demonstrate principles in the interpretation of the constitution. One such principle is orderly succession and peaceful transfer of power.
Uganda’s history of no-longer handing power is at the core of the principles of peaceful transfer of power. The first president Edward Mutesa’s palace was attacked and he was forced into exile where he died. The second president was overthrown in a coup and a life president took over. He was evicted through the 1979 war and President Yusuf Lule assumed office only to be overthrown by his colleagues in total disregard of the Moshi Conference Instrument.
Justice Kakuru: There was a constitutional petition brought by Ssemwogerere and Kayiira and the Constitutional Court said the removal of Lule was unconstitutional…
Ogalo: So my lords, you even have a decision of your court saying that removal is unconstitutional. Then came president Binaisa who was never given chance to hand over power to the next president, they also removed him.
Justice Dollo: He ended the presidency under house arrest (laughter in court).
Ogalo: The military commission simply threw him out and assumed power. Then came in Obote II, then Tito Okello shot himself into power by removing Obote II, no orderly or peaceful transfer of power.
Justice Dollo: Wasn’t there a peaceful transfer of power from the Military Commission to Milton Obote in 1980?
Ogalo: Yes my lords.
Justice Dollo: Milton Obote was even sworn in front of Parliament; was that an exception to the rule
Ogalo: No my lords, how did the Electoral Commission itself come into power, what was it handing over?
Justice Kakuru: The argument was that Paulo Muwanga was holding government by proxy because the moment Obote was sworn in, he also swore-in Muwanga as his vice.
Ogalo: That was an arranged transfer of power, they said this was our thing. In 1985, Tito Okello shot himself into power, no peaceful transfer of power.
Justice Kakuru: The BBC reported that Obote for the second time in 14 years has been over thrown by his own army and has again gone into exile…
Ogalo: This is why the quest for peaceful transfer of power from one president to another is very critical in this country because if we don’t achieve it, we will continue like that. Then in 1986, President Museveni also shot himself into power, there was no peaceful transfer of power
Justice Dollo: He will tell you that he did not. He will say that it’s the people who used forceful means (laughter in court). It was a people’s revolution as a resentment of the status quo then. He was just one among the peasant players
Ogalo: Notwithstanding what anybody can describe it as.
Justice Dollo: So you are saying it was not a peaceful transfer?
Ogalo: It wasn’t my lords, it was violent.
So the principle of orderly succession of government and peaceful transfer of power is now negated by this Bill or rather Act because it removes that possibility.
Justice Kakuru: The purpose was to prolong the peace since 1986 no violent transfer has taken place and the Bill intends to prolong that peace (laughter in court).
Justice Dollo: In 1989, there was a transfer of power by the NCC, from the bush NCC to the now .., then in 1996, there was a peaceful transfer of power from pre 1995 Constitution to a new team, then in 2001, there was a peaceful transfer of power from the president elected in 1996 to the one elected in 2001 and so and so forth, why do you say there is no peaceful transfer of power?
Ogalo: My lords, let me answer the first one, from 1986, we have all this peace so what the Act is doing is simply extending the peace. In my humble submission, once you have unrestrained power however good it is coupled together with incumbency, the advantages of incumbency, you tend to continue on and on and therefore the risk is that you can easily go back to the disorderly transfer of power. So the fact that there is peace now, there is no guarantee that tomorrow there will be peace
Justice Kakuru: Does the transfer of power necessarily result into peace in view of what has happened in many places?
Ogalo: No my lords.
Justice Kakuru: The basic example is Cameron. Before cabinet took power from Paul Pier through an election….. in fact the person who handed him power, I forget his name, he imprisoned him.
Justice Dollo: They thanked him by imprisoning him.
Justice Cheborion Barishaki: Counsel you are saying the peaceful transfer of power and succession have to be through elections, how can successful and peaceful succession be achieved?
Ogalo: One, by people respecting the limits in the Constitution, there you guarantee peaceful transfer of power because once the Constitution says at 75 years you go, when you clock 75 years, you have to hand over to somebody. That might guarantee us peaceful transfer.
Justice Barishaki: But through an election?
Ogalo: Yes my lords, through an election.
Justice Dollo: That is why my lords I am asking you that is it more important to ensure free and fair elections because where the ground is level, you don’t need to level it because it’s already level.
Justice Kakuru: The longest serving head of state is the Queen of England, she has been there for a long time, there are no elections, and it depends on the political structure. My issue on this one is that the opposition having dwelt with the elections were praying to God, court and to the Constitution that the Lord removes the president whom they have failed to defeat in an election, why don’t you defeat him?
Ogalo: My lords that is exactly what Prof Sepembwa says in his affidavit evidence. The advantages of the incumbency, For example, there are 140 districts in Uganda and you give 120 days for presidential candidates to campaign. The incumbent can cover all of them using the incumbent’s helicopter and be in one district every day because he has the facilities.
Justice Dollo: Mr Wandera Ogalo, about three years ago, President Good Luck Jonathan was an incumbent in Nigeria, lost an election, so this can be done.
Justice Kakuru: Even in Ghana, the opposition won and the government went to court that elections had been rigged by the opposition, I don’t know what happened to that petition but at least they handed power to the opposition.
Justice Dollo: Again, do not look at the incumbency of the individual, so look at the incumbency of a political party like KANU was in power since independence but it was defeated in an election…
Ogalo: Yes my lords, which now brings me to the point raised about elections that if you can then guarantee notwithstanding the advantages of incumbency that you can still have free and fair elections, you should have gone a long way of ensuring a peaceful transfer of power. But my lords, as our history shows we are still grappling in court on whether the elections are free and fair or not which is shown by presidential election petitions of 2001, the decision was of 3:2, in 2006 it was decided by a 4:3, which was also narrow. In answer to that, we can’t place all our eggs in that basket because we are still grappling with the electoral process.
Rukutana: My lords, to the best of my recollection, he is addressing your lordships on issue number 6, and I don’t know whether this is a rejoinder or he is re-opening the issue. This issue was canvassed.
Justice Dollo: Issue 6?
Rukutana: Yes, I don’t know which issue he is addressing.
Justice Dollo: I think there was 6(g).
Rukutana: You said issue No. 6
Justice Dollo: No, I said 6 (g). There is 6 but its split from a-g.
Rukutana: 6g was the basic structure which was also canvassed by counsel of the petitioners.
Justice Dollo: Learned Attorney General, in part, yes, you are right, some of the things said had already been covered. I remember each side made introductory statements but there is issue No. 6 with sub issues of a-g and I remember 6g was covered.
Mabirizi: My lords, we didn’t cover (b), we only covered 6 (a) and (g) because 6 (b) required evidence.
Kakuru: I thought he was giving us another preamble, you have not touched any of the issues.
Ogalo: My lords, the Speaker of Parliament invoked the sovereignty of the people, she did so at page 4746 of the Hansard in the affidavit of Jane Kibirige, where she made it clear that the people are central to the issue and that the same can’t be decided without their participation.
Once she did that, my humble submission is that once they embarked on the consultation, the process had to be clean as it had to be but my submission is that it did not. My lords, the process of participation was not structured and was left to whoever on how to carry out their consultations.
The Bill was not circulated to the people, no notice was given that members of the public are having participation, and therefore no dates were given to the people to know of the places where they were going to meet.
Justice Barishaki: Where is the evidence?
Ogalo: In the supplementary affidavit of Prof Latigo. (he added how the army entered the Parliamentary chamber and assaulted MPs). I rest my case.
Erias Lukwago: In the case of the Law Society Vs. Attorney General.... their lordships clearly stated that public participation ought to be real and should not be treated for mere formality for purposes of fulfillment of the constitutional legislation to ensure that the spirit of public participation is attained both quantitatively and qualitatively. It’s not enough to tweet messages...