Inside fallout at Supreme Court 

Members of the Supreme Court prepare to hear a petition filed by former NUP presidential candidate Rubert Kyagulanyi challenging President Museveni’s victory in the January 14 presidential polls. Below: Justice Esther Kisaakye gives her ruling on the matter at the Supreme Court in Kampala on Thursday.   PHOTOS |ABUBAKER LUBOWA. 

What you need to know:

  • Tensions that have been smoldering for some time at Uganda’s highest court were this week laid bare when Justice Esther Kisaakye squared off with Chief Justice Alfonse Owiny-Dollo. We take a deep dive into the issues at play.    

Nine Supreme Court justices have since February been sauntering from the court’s building into a tent erected in its compound, to hear or give a ruling on a matter in the presidential election petition that National Unity Platform (NUP) leader Robert Kyagulanyi, aka Bobi Wine, filed against President Museveni’s victory. 

The optics were good:  Justice Mike Chibita, the tallest of the lot, would lead the way. Justice Percy Tuhaise  would come last, and the Chief Justice Alfonse Owiny-Dollo would be in the middle.  Justices Stella Arach-Amoko, Faith Mwondah, Rubby Aweri-Opio, Esther Kitimbo Kisaakye and Ezekiel Muhanguzi completed the roster.   

But beneath the collegiality and the diplomatic smiles were smouldering tensions, which eventually spilled over into the public domain on Thursday afternoon.
Justice Kisaakye, the longest-serving member of the Bench, was left all alone in a tent that was enveloped in darkness, with power and consequently the public address system, switched off. In the tent, the judge was lamenting before the cameras. 
She alleged that her file containing her ruling had been confiscated on the orders of Justice Owiny-Dollo. 

“My reasoning in the ruling we have made in the presidential petition, which was withdrawn recently,” Justice Kisaakye started out, “I instructed my staff to put my ruling here for delivery. The Chief Justice and other members of the Coram have opted not to be part of this afternoon’s proceedings and I respect their decision.”  

She added: “However, what’s of surprise to me is that my file has been confiscated on the orders of the Chief Justice.  I’m going to proceed in the court building to recover my file and I will come back and read my ruling today as scheduled.”   

The court had spent the entire morning giving detailed reasoning why they had rejected two of Mr Kyagulanyi’s applications, in which he sought to amend his petition, and also one in which he wanted his more than 200 additional affidavits allowed out of time.  

The majority in their ruling cited “democracy” and the importance of not scaring away would-be petitioners inter-alia as the ground to spare Mr Kyagulanyi from having to pay costs to the parties he had sued in the withdrawn petition.
This was against the wishes of the Attorney General, Mr Museveni and the Electoral Commission, whose legal teams had cited provisions within the Presidential Elections Act arguing that it was automatic that if a person withdraws a presidential petition, he pays a price.

Before midday on Thursday, the eight justices were through with reading their joint ruling, and the stage was set for Justice Kisaakye to read her “dissenting” ruling, but Chief Justice Owiny-Dollo said they had to take a break and he promised they would be back to complete the job by 1:30pm. 

Instead, Judiciary sources, who asked not to be named, said when the judges retreated to their chambers, it became apparent that they didn’t want to go and be part of Justice Kisaakye’s session in the afternoon. 

The culture at the Supreme Court and the Court of Appeal, which doubles as the Supreme Court, is that since they work in coram, judges share their rulings or judgements before the day of reading them for everyone to know how the other had decided but judges at the Supreme Court accused Justice Kisaakye of keeping them in the dark about her decisions and reasoning. They said she prefered to ambush them in court as she reads her rulings. 

While the Chief Justice was okay with returning to court for Justice Kisaakye to do her bit, sources say other justices made it clear they weren’t returning and asked him to adjourn the matter until Justice Kisaakye disclosed her ruling to them.
Justice Owiny-Dollo was left with no choice, according to our sources, and he accordingly summoned the Attorney General, Mr William Byaruhanga; Mr Museveni’s legal team led by Mr Ebert Byenkya and Mr Kiryowa Kiwanuka; and the Electoral Commission’s legal team led by Mr Joseph Matsiko and Mr Elison Karuhanga, and informed them about their decision not to return to court as they had promised until Justice Kisaakye first released her ruling to them.   
“It was more about them wanting to know what issues they agreed to than those they disagreed,” a lawyer who attended the meeting but asked not to be named, said.   
When the meeting was done, the three sets of lawyers left for their cars as soon as it became apparent that Justice Kisaakye had insisted on reading her ruling whether the other judges attended or not. For a moment, there was a sense of confusion as journalists couldn’t understand why Justice Kisaakye was seated alone in a tent, with power switched off yet the lawyers were leaving one after another. Only Mr Kyagulanyi’s lawyers stayed put. 
When Justice Kisaakye waited for minutes for her file and it became apparent that it wasn’t coming, she walked back to the court building and for some minutes, security officers at the court promises were telling a journalist to go away. The expectation was that Justice Kisaakye wasn’t going to have her way, but a few minutes later, she returned with what she termed as “a carbon copy” of her ruling. She first sought to clarify the standoff at the highest court in the country.   

“While it is good practice for members of the court to circulate their draft ruling to colleagues, there is no law in Uganda that I’m aware of that requires me to do so,” Justice Kisaakye said before she read out the details of her ruling, which took hours. “As you heard from the rulings, the 45 days required to finalise this matter constrained me to do so.”

Before judges who are on a panel come to court, the practice in Uganda’s Supreme Court is that they meet, say, in the Chief Justice’s chambers, or the boardroom, and they agree on how to proceed. 

 “The meeting,” a retired Supreme Court judge, who asked not to be named, explained, “helps the Chief Justice to organise well by knowing the stand of each member and how they are doing. One might be sick and the Chief Justice doesn’t know.”  
This meeting, according to some justices interviewed for this story, becomes critical on the day the judges are set to deliver either a judgment or ruling as it helps them to know clearly who is in the majority and those in the minority. Judges accused judges Kisaakye of consistently missing such meetings and they insisted that the Chief Justice should call her to order- even if it came with bad press.

“A judge having a dissenting judgment or ruling isn’t new,” one of the Justices on the panel, who preferred anonymity, said. “In fact, everybody knew that Justice Kisaakye had dissented in one of the issues in the Kyagulanyi case … but we find it disrespectful that she doesn’t attend meetings and she also doesn’t circulate her draft judgments or rulings. That’s not how things work.”

Justice Kisaakye was together with Justice Owiny-Dollo and others, interviewed for the Chief Justice job last year.  The job finally went to Justice Owiny-Dollo. When Chief Justice Bart Katureebe retired in June last year, Justice Kisaakye was the most senior judge at the Supreme Court and some thought her seniority would propel her to the highest office in the Judiciary. There was a precedent: Justice Katureebe was the most senior judge at the Supreme Court when Chief Justice Benjamin Odoki retired in 2013 and he replaced him later in 2015.

Judiciary staff say before Justice Kisaakye competed for the Chief Justice job, she had years earlier tried without success to become the Deputy Chief Justice.

When the retired Justice Katureebe was Chief Justice, there were again some issues involving Justice Kisaakye but different Judiciary sources say Justice Katureebe acted differently to the way Justice Owiny-Dollo has.

A year ago, Justice Kisaakye sued former Supreme Court Judge George Kanyeihamba and a one Michael Kalule Buwembo for alleged defamation, invasion of privacy, unlawful conduct over allegations against her that were contained in a letter Prof Kanyeihamba wrote to former Chief Justice Katureebe and the letter was published in a book by Mr Buwembo.

Justice Kisaakye’s ruling

Not much has been said about the ruling Justice Kisaakye readout while making corrections to it at the same time.   
Essentially, Justice Kisaakye, who joined the Supreme Court in 2009, having been tapped from the Makerere University Law School, agreed with the majority ruling of the judges that Mr Kyagulanyi couldn’t amend his presidential petition, reasoning that there is no law that supports such and that he couldn’t pay costs.

Justice Kisaakye specifically disparaged as “unconstitutional” provisions of the Presidential Elections Act that somehow make it apparent that a petitioner pays costs the moment he or she withdraws a presidential petitioner before it’s logically determined. 

Justice Kisaakye’s departure from others was mainly on the issue of additional affidavits that Mr Kyagulanyi’s legal team couldn’t file in court as they failed to meet the deadline set by the court in their presence. In the detailed majority ruling, which was read by Justice Mugamba, the eight judges insisted that allowing Mr Kyagulanyi to file more 200 affidavits out of time would have meant that the respondents would have needed more days to respond and this would have eaten up much of the constitutionally laid out 45 days in which they are supposed to deliver a judgment. 
Justice Kisaakye believed Mr Kyagulanyi’s narrative that he couldn’t collect evidence in time because he was under incarceration from election day until the High Court intervened and declared his detention illegal on the prompting of Mr Kyagulanyi’s lawyers. 

The judge squarely put the blame on President Museveni. “The first respondent [Museveni] is the commander-in-chief [of the armed force] and also the president-elect. He appoints the Chief of Defence Forces and you can’t say he wasn’t in the know of the petitioner’s incarceration. It’s possible that he is the one who sanctioned it,” Justice Kisaakye ruled. 

“The framers of the Constitution didn’t envisage that an incumbent [Museveni] would restrict movements of his opponents,” she added.
Justice Kisaakye’s latest disagreement with the majority at the Supreme Court has further enhanced her label of being “a dissenting judge” because she has dissented in most critical judgments.  


Kisaakye’s other rulings
Last year, sitting as a single judge of the Supreme Court, she triggered a debate in Uganda’s criminal justice system, when she ruled that it’s unconstitutional to allow a convicted person out on bail pending appeal. “The reasoning that a convicted person should be allowed to first exhaust all his rights of appeal before he can start serving his sentence in our legal system is flawed,” she argued. 

In 2013, Justice Kisaakye was on the Coram of seven justices who heard an application filed by four National Resistance Movement (NRM) party MPs who had been provisionally locked out by a ruling delivered by the Constitutional Court.

The MPs were Theodore Ssekikubo (Lwemiyaga), Wilfred Niwagaba (Ndorwa East), Muhammad Nsereko (Kampala Central) and Barnabas Tinkasiimire (Buyaga West).
Justices Christine Kitumba and Galdino Okello ruled that the MPs should go back to Parliament. Justice Kisaakye had different ideas.
“In my view, Article 132 of the Constitution only vests this court appellate jurisdiction to hear from decisions of the Constitutional Court.
It does not vest in this court supervisory powers to police the Constitutional Court in every incidental or interlocutory decision the Constitutional Court makes in the course of hearing a constitutional petition,” Justice Kisaakye said.
She additionally disagreed with fellow judges, arguing that the MPs had no right of appeal to the Supreme Court, on interim decisions made so far by the Constitutional Court.

“I entirely agree with the first part of the majority’s ruling that there is no right of appeal granted under Article132 (3) of the Constitution from interlocutory decisions made by the Constitutional Court. With all due respect … I respectfully disagree with the majority that the two rulings made by the Constitutional Court on the admissibility of the affidavits evidence of President Museveni and the Coram of the Court of Appeal sitting as Constitutional Court are appealable as of right because there weren’t final decisions,” Justice Kisaakye said.