What you need to know:
- The constitutional petition filed by Supreme Court Justice Esther Kisaakye has been dismissed by the respondents as dead in the water, since—according to them—it doesn’t raise any serious issues for the Constitutional Court to interpret, but as Derrick Kiyonga writes, the petition is layered in multiple complexities.
In the coming days, after all the essential court documents are filed, it is expected that Justice Esther Kisaakye’s lawyer—constitutional law expert Peter Walubiri—will write to the Constitutional Court.
Saturday Monitor understands Mr Walubiri will ask the court to fast-track the petition in which the Supreme Court judge is accusing the entire Judiciary establishment of, inter-alia, victimising her by concealing her salary, withholding her files, denying her leave, denying her seniority, denying her work.
Once Mr Walubiri’s dossier specifying the reasons why the petition should be prioritised arrives at the Nakasero-based Constitutional Court, which has a big case backlog, the pressure will be on Deputy Chief Justice Richard Buteera, the head of the court.
Justice Buteera will now have to quickly formulate a panel that will determine a case in which his boss—Chief Justice (CJ) Alfonse Owiny-Dollo—is listed as the first respondent.
The conundrum Justice Buteera finds himself in—handling this petition—is clearer in Article 133 of the Constitution, which lays out administrative functions of the CJ. It says the CJ shall be the head of the Judiciary and shall be responsible for the administration and supervision of all courts in Uganda; and may issue orders and directions to the courts necessary for the proper and efficient administration of justice.
Yet in Article 136 of the Constitution, Justice Buteera is now charged with deputising for CJ Owiny-Dollo as and when the need arises; be the head of the Court of Appeal and in that capacity assist the CJ in the administration of that court; and perform such other functions as may be delegated or assigned to him by the CJ.
The decision by Justice Kisaakye to sue CJ Owiny-Dollo, in his individual capacity, has opened yet again a Pandora’s box for lawyers as to how the CJ will be represented. Ordinarily, the CJ would be represented by the Attorney General since he works for the State. However, that position has changed since he has been listed as an individual in the petition.
This has prompted CJ Owiny-Dollo to hire private lawyers, including Dan Wandera Ogalo, former Deputy Attorney General Mwesigwa Rukutana, former Uganda Law Society president Francis Gimara and Caleb Alaka. This team will work under the Attorney General, Kiryowa Kiwanuka, who is personally going to lead the respondents’ legal team.
“We have signed what they called a commission to be able to work with the Attorney General since we are private lawyers,” Mr Alaka said in an interview with Saturday Monitor, adding, “It’s a new process that wasn’t known to us, but we had to do it.”
The complexities don’t stop at that. Justice Kisaakye has further complicated things by suing the Chief Registrar, Ms Sarah Langa Sui. Section 15 of the administration of the Judiciary Act outlines the roles of the Chief Registrar. It stipulates that the Chief Registrar is responsible for giving effect to policies and directions of the CJ, Deputy CJ and Principal Judge; effectively overseeing judicial operations of all the courts of judicature; monitoring and enhancing the quality of services and official procedures; communicating with the government and the public on matters relating to the Judiciary or any other matters which the government may be concerned with; implementing the judicial activities in the Judiciary Strategic Plan; assisting the CJ, Deputy CJ and the Principal Judge in the facilitation and supervision of the courts; linking the Judiciary and the Judicial Service Commission (JSC) on appointments, promotions and disciplinary matters relating to registrars and magistrates; and any other matter assigned by the CJ, Deputy CJ or Principal Judge. The Act also makes it clear that the Chief Registrar shall report to the CJ.
In the petition, Justice Kisaakye accuses Ms Langa-Siu of taking away her research assistant, who is at the level of Grade One assistant in the aftermath of the fallout. The Supreme Court judge doesn’t pull any punches, saying the action amounts to obstruction of justice.
“The removal of your petitioner’s research assistant was done by the fourth respondent (Langa-Sui) with the full knowledge of your petitioner’s eye disability by first (CJ Owiny-Dollo) and fourth (Langa-Siu) respondents,” Justice Kisaakye’s petition reads in part, adding, “Your petitioner has not had any research assistance from July 2022 up to the date of filling this petition and has been adversely affected and impacted in the performance of her judicial functions.”
JSC stands accused
Justice Kisaakye has also taken on the JSC, the body that vets judicial officers before they are appointed. The JSC is also charged with punishing errant judicial officers such magistrates and registrars. It, however, can’t punish a judge, but rather can make a recommendation for the President to form a commission of inquiry to investigate a particular judge.
Justice Kisaakye blames the JSC, which is headed by Justice Benjamin Kabiito, for carrying out investigations into her actions. She adds that this was done in secrecy, contrary to the spirit of fair hearing.
Another Judiciary official, who has been put on the spot by this petition is Mr Pius Bigirimana, the secretary to the Judiciary or Permanent Secretary. Mr Bigirimana is charged with overseeing the finance and administration department. Justice Kisaakye accuses him of withholding her salary, a process he started by writing a letter last year after accusing her of going away without official leave (Awol).
“The second respondent (Mr Bigirimana) required your petitioner to submit a report of her performance contrary to well established reporting procedures of the performance of the Supreme Court as a whole,” Justice Kisaakye contends, adding, “The second respondent made a finding that I had not worked since September, 18, 2021 to June, 30, 2022.”
If the Constitutional Court Justices are going to find themselves in a dilemma of ruling against their leadership or embarrassing Justice Kisaakye, the case would get more complicated if any of the parties seeks redress in the Supreme Court. If the appeal arrives at the Supreme Court, it means Justice Owiny-Dollo and Justice Kisaakye can’t be part of the coram since they are party. In that event, matters will get complicated since Justice Kisaakye is most likely to object to the justices who will make up the coram owing to the fact that she has fallen out with the majority of them.
In his defence, CJ Owiny-Dollo says when Justice Kisaakye refused to share her dissenting ruling on whether Bobi Wine should have been allowed more time to file his affidavits, the other Justices of the Supreme Court (Mike Chibita, Percy Night Tuhaise, Ezekiel Muhanguzi, Faith Mwondha and Stella Arach-Amoko) made it clear that her conduct was in contravention of the time-honoured rule of collegiality. The rule stipulates—albeit silently—that all decisions, be they dissenting or minority, are shared prior to delivery of decisions in court.
“I had to intervene and advise that we proceed to court and have their rulings that were ready for delivery to be delivered,” CJ Owiny-Dollo noted, adding that at the conclusion of the delivery of the rulings, he decided that court should go for short interlude.
During the break, CJ Owiny-Dollo says his colleagues didn’t budge.
They made it abundantly clear that their return to the court was premised on Justice Kisaakye circulating her minority ruling.
To avoid a crisis and pursuant to the spirit of collegiality, CJ Owiny-Dollo says he advised Justice Kisaakye to circulate her draft rulings to her colleagues such that court reconvenes during the following week for her to deliver her ruling. She, however, roundly rejected the offer.
In the affidavit, the CJ says he instructed the registrar of the Supreme Court to take all the files of the justices to the boardroom where they had all assembled, apart from Justice Kisaakye.
“The petitioner then appeared in the boardroom, shouting and asking for “her file”, ignored restraints by one of the senior members of the panel, and stormed out. A few minutes later, as we were still discussing … we learnt she was holding a press conference in the tent that was serving as a courthouse purporting to be delivery of her reasons of ruling,” CJ Owiny-Dollo revealed, adding that Justice Kisaakye lambasted him and before “making wild, unfounded and malicious allegations against the person of the CJ and other members of the panel.”
Following the scale of the fallout, a number of legal experts, who spoke to Saturday Monitor on condition of anonymity since the case is before court, wondered how it would proceed at the Supreme Court.
“It’s very clear that Justice Kisaakye doesn’t see eye-to-eye not just with the CJ but with most of the Supreme Court justices,” a lawyer who is familiar with happenings at the Supreme Court, said, adding, “She will reject the panel and I wonder where she will get the justices who will hear her case.”
Fearing such an outcome, the Uganda Law Society (ULS) last week asked CJ Owiny-Dollo and Justice Kisaakye to avoid a protracted court battle that will leave the Judiciary in disarray. ULS prefers that the matter is settled through mediation.
“When you have such conflicts coming out in the open, they erode public confidence in the Judiciary and if we lose confidence in the Judiciary, where shall we go?” ULS president Bernard Oundo said during the release of the third quarterly rule of law report last week.
Mediation was fronted last year immediately after tempers shot through the roof, with this newspaper reporting that law professor Fredrick Edward Ssempebwa, who had written a letter to the JSC supporting Justice Kisaakye’s candidature for the position of Chief Justice, and former ULS president James Ssebugenyi approaching CJ Owiny-Dollo to see that issue is amicably resolved.
Sources familiar with talks say CJ Owiny-Dollo proposed that Mr Gimara should join Prof Ssempebwa and Ssebugenyi in constituting the mediation team, but this proposal hit a snag when Justice Kisaakye rejected Mr Gimara on ethnic grounds.
“She said Gimara is an Acholi like Justice Owiny-Dollo,” a lawyer who is familiar with the negotiations said on condition of anonymity since he is not allowed to speak on the matter. “The CJ was shocked because he had no problem with Prof Ssempebwa yet he is a Muganda like Justice Kisaakye.”
Sources familiar with negotiations say as much as the CJ has made up his mind for the case to be resolved through litigation, he can give a second thought if Justice Kisaakye apologises.
“The CJ has been very clear that if Justice Kisaakye publicly apologises to him and the Judiciary, then she will get a safe landing,” said a source who spoke on condition of anonymity.
From the wording of the petition, it seems Justice Kisaakye sees herself as a victim and an apology is off the table. This should translate into a long, drawn out battle between the four walls of a courtroom.
Cracks in Uganda’s apex court started to emerge last year following the withdrawal of the presidential petition filed by Mr Robert Kyagulanyi Ssentamu, alias Bobi Wine (pictured), after losing the 2021 presidential poll at the hands of President Museveni. After that episode, the Judicial Service Commission (JSC) says it formed a team to investigate what had happened. The team, according to court documents, included detectives from the JSC’s directorate of complaints, investigations and disciplinary affairs.
Last year, the JSC revealed that it received a response from Justice Kisaakye in respect to a complaint lodged by Chief Justice (CJ) Alfonse Owiny-Dollo. The JCS adds that it proceeded to retrieve statements from Justices who were part of the coram that heard the said presidential petition.
Others sounded out included the Judiciary’s public relations officer, advocates who represented parties in the petition, support staff of the Judiciary, security personnel who were deployed the Supreme Court premises that day, the Electoral Commission and the Attorney General.
While the CJ cooperated and added an additional statement, the JSC claims Justice Kisaakye didn’t cooperate.
“I further know that the petitioner (Kisaakye) declined to record an additional statement, stating that she had nothing useful to add to the previous statement. The petitioner stated that information that the fifth respondent was still seeking from her is in the public domain,” Mr Julius Mwebembezi, a registrar with JSC, revealed in an affidavit that supports JSC’s defence.
Mr Mwebembezi’s affidavit adds that in July this year, the JSC served both Justice Owiny-Dollo and Justice Kisaakye their preliminary findings. The key takeaway from the preliminary findings was that the JSC was compelled to ask Justice Kisaakye to explain her absence from duty since last September. The issue had been raised by CJ Owiny-Dollo in his additional statement. The JSC claims that rather than address the question posed, Justice Kisaakye opted to serve it with an intention to sue in August.