Uganda: Drama at supreme court as judges clash over opposition case

KAMPALA, Uganda

The Supreme Court was thrown into pandemonium yesterday afternoon after Justice Esther Kisakye’s file was confiscated before she read her ruling on Robert Kyagulanyi Ssentamu’s withdrawn petition challenging Yoweri Museveni’s election victory.

“I informed the court that I will be delivering my consolidated rulings on the four applications. My colleagues have opted not to attend this afternoon session,” Justice Kisakye said, adding that she was surprised that her colleagues opted to shun the afternoon session. 

She heaped blame on Chief Justice Alfonse Owiny-Dollo whom she accused of ordering the confiscation of her file. She said she would not delve into detail of what she described as internal matters of the country’s highest court of appeal. 

Justice Kisakye made the remarks while sitting alone in the courtroom after the court break. 

Court went into a short break before returning to complete reading of the reasons for their rulings on several aspects of Kyagulanyi’s withdrawn petition. 

However they did not return. Instead, lawyers representing the Attorney General, the Electoral Commission (EC), President Museveni and Kyagulanyi, aka Bobi Wine, were invited to a brief meeting called by Chief Justice Owiny-Dollo to resolve the issues surrounding Justice Kisakye’s rulings.  

The lawyers, who attended the meeting but declined to be named, said the justices refused to return from the break because they adjourned the matter to allow them time to sort out their differences with Justice Kisakye.  

However Justice Kisakye returned alone in the afternoon to deliver what she called her “consolidated ruling.” 

She sat in court for some minutes without a file, then dramatically marched back to the chambers to collect her file.

Sources told Daily Monitor that the matter started after Justice Kisakye indicated that she would be writing dissenting rulings from her colleagues but refused to share her decisions with them as is the practice.   

The practice at the Supreme Court and Court of Appeal is that all judges must disclose their judgments or rulings to other members of the panel such that they know who are in the majority and minority. 

Another flashpoint, according to sources, was Justice Kisakye’s decision to write her own ruling in the Male Mabirizi’s application seeking Justice Owiny-Dollo to withdraw from hearing Kyagulanyi’s petition. 

Other justices were in agreement that only Justice Owiny-Dollo would deliver the ruling since the issues concerned him alone but Justice Kisakye reportedly decided to write her own ruling, contrary to the norm.   

The two justices were part of the nine member panel that had been appointed to hear Kyagulanyi’s election petition.
Other Justices are Stella Arach Amoko, Faith Mwondha, Paul Mugamba, Ezekiel Muhanguzi, Night Percy Tuhaise, Mike Chibita and Rubby Opio Aweri.

By late afternoon, Justice Kisakye was reading her rulings in the presence of Mr Kyagulanyi’s lawyer Samuel Muyizi, journalists and court staff. Lawyers for the other parties had left.  

Earlier in the morning, in the majority decision of eight to one, the Supreme Court spared Kyagulanyi the costs for withdrawing the petition. 

They ruled that each party would bear their own costs.  

The ruling was read by Justice Muhanguzi. The court said compelling Mr Kyagulanyi to pay legal costs incurred by other parties would not enhance justice as it would stop litigants from filing petitions in future.       

The lawyers representing Museveni, the Electoral Commission, and Attorney General William Byaruhanga had asked the court to order Kyagulanyi to pay costs of the petition in line with Section 61(4) of the Presidential Elections Act. 

The section stipulates that if a petitioner withdraws a presidential petition, he/she shall pay the costs.   

However, the justices interpreted that the operational word “shall” is not “mandatory” but rather it’s “directional” meaning it was not a must that Kyagulanyi had to pay costs upon withdrawing his petition as the respondents’ lawyers had argued.   

During submissions on whether Kyagulanyi should pay costs or not, Mr Byaruhanga had asked the judges to compel the National Unity platform (NUP) party leader to pay costs to punish him for unpleasant utterances he made against the court. 

Byaruhanga cited press conferences at which Kyagulanyi accused the court of being biased, partisan and remote-controlled by Museveni.  

However, the justices noted that despite Kyagulanyi’s several disparaging comments about the court, imposing costs on is not meant to be “punitive” but rather “compensatory.” They disagreed with Mr Byaruhanga. 

The justices said they took judicial notice of the fact that Kyagulanyi attacked them both outside court and also in his affidavit supporting his application to withdraw the petition.  

In the Affidavit, Kyagulanyi claimed that he was withdrawing the petition on grounds that the court had exhibited bias when it rejected both his applications to amend his petition and also file additional evidence out of time to support his petition.  

In their majority ruling, the justices explained that rejecting Kyagulanyi’s application is not evidence that they are not independent. 

“The applications were rejected because of the strict timelines set in the Constitution in which this court is supposed to deliver judgment in a presidential petition,”  Justice Muhanguzi said in the lead ruling, adding that if Kyagulanyi decided to apportion any blame, he should direct it to his lawyers who failed to prosecute the petition. 

Before reading the ruling, Justice Owiny-Dollo made a word of caution.

“You might not like a certain individual,” said Justice Owiny- Dollo, “But it does not mean that you have to attack the entire institution. This is our country. It is not just for a few people,” he said.  

When pleading with the Supreme Court not to condemn Kyagulanyi to costs, his lawyer Medard Lubega Sseggona conceded that since Mr Museveni had already won the election, his victory was enough compensation and there was no need for him to get money from Kyagulanyi who lost.  

Robert Kyagulanyi, alias Bobi Wine ran to court on February 1, 2021, accusing the Electoral Commission of fraudulently declaring Museveni as winner of the January 14 elections with 58 percent of the total votes cast.

On Museveni’s part, Kyagulanyi who scored 35 percent of the total votes accused him of bribery, intimidation, ballot-stuffing and sponsoring violence, which resulted in arrests and death of people during the election process.

On his part, the Attorney General was accused of failure to put in place the recommendations arising from the previous Presidential Election Petitions aimed at improving the electoral processes in the country.

As such, Kyagulanyi asked court to nullify Museveni’s victory and order fresh elections.

But after losing two applications; one seeking to amend his petition and another seeking more time to adduce more evidence in the case, Kyagulanyi became frustrated and decided to withdraw the petition as altogether.