Male Mabirizi Vs Alfonse Owiny-Dollo

Will the Chief Justice quit Kyagulanyi’s presidential election petition?

Kampala, Uganda | RONALD MUSOKE |

The Supreme Court is preparing to hear lawyer Male Mabirizi’s application he filed on Feb.11 asking Alfonse Owiny-Dollo, the Chief Justice, to disqualify or recuse himself from participation in the hearing and determination of the presidential election petition No.1 of 2021 (Kyagulanyi Ssentamu Robert v. Yoweri Museveni Tibuhaburwa, Electoral Commission and Attorney General).

Mabirizi’s petition was received by the office of the Chief Justice on Feb.12. Although a response had not been issued by the time The Independent went to press, a source within the Judiciary intimated that the Supreme Court will actually listen to Mabirizi’s application.

Male Mabirizi, a Kampala-based lawyer petitioned the Chief Justice Owiny-Dollo asking him to excuse himself from the presidential election petition filed by the National Unity Platform (NUP) president Robert Kyagulanyi.

Kyagulanyi, the runner-up in this year’s presidential election wants court to invalidate the declaration of Museveni as president-elect of the Jan. 14 election on grounds that the election was not conducted in accordance with the principles laid down in the laws governing elections such as the Constitution of Uganda, the Presidential Elections Act and the Electoral Commission Act. He cites intimidation of voters, heavy security deployment during elections, and arrest of his agents among other factors.

As head of the Supreme Court, Owiny-Dollo is expected to lead a panel of nine justices to hear the petition. But Mabirizi says Owiny-Dollo’s earlier relationship as Museveni’s lawyer and the fact that he has held discussions with the same respondent after Kyagulanyi’s petition had been filed makes the Chief Justice’s presence on the panel “not only illegal but also unacceptable under constitutional and the fairness principle since justice must not only be done but must also be seen to be done.”

The other justices besides Owiny-Dollo are; Dr. Esther Kisaakye Kitimbo, Stella Arach-Amoko, Rubby Aweri Opio, Faith Essy Mwondha, Paul Kahaibale Mugamba, Ezekiel Muhanguzi, Percy Night Tuhaise, and Mike Chibita. They are expected to determine the case in mid-March.

‘Owiny-Dollo is Museveni ally’

Arguing why Chief Justice Owiny-Dollo should not be part of the panel hearing Kyagulanyi’s petition, Mabirizi says he has scrutinized the Chief Justice’s resume which shows he was a lawyer representing Museveni in 2006 when he was accused of similar misconduct in the presidential petition filed by Dr. Kizza Besigye who also challenged Museveni’s victory then.

Mabirizi says that he is also informed that the Chief Justice recently met President Museveni at State House as Kyagulanyi’s petition awaits determination.

He says Owiny-Dollo’s participation in the case erodes the confidence not only in him but the entire judiciary because “judgment must be rooted in confidence and confidence is destroyed when right minded people go away thinking the judge was biased.”

Mabirizi refers to Legal Notice No.7 of 2019 which states that a judicial officer shall refrain from participating in any proceedings in which the impartiality of the judicial officer may reasonably be questioned. Section one of the same notice further requires recusal “where a judicial officer has background information or experience such as the judicial officer’s prior work as a lawyer.”

Mabirizi says that if the Chief Justice continues sitting on the panel, he will no doubt be contravening the Constitutional principles laid down under Article 28(1)  (right to fair hearing) and Article 44(C) which prohibits derogation from the enjoyment of particular human rights which include right to fair hearing.

He also adds that Article 126 of the Constitution provides for judicial power which is derived from the people and should be exercised by the courts in the name of the people and in conformity with law and with the values, norms and aspirations of the people and lastly Article 128 which provides for independence of the judiciary.

Mabirizi said in his petition that he is constitutionally duty-bound to defend the Constitution and in particular, to resist any person or group of persons, including judicial officers, seeking to overthrow the established Constitutional order.

“The applicant has citizenry duties to protect the Constitution, promote rule of law and fight abuse of authority,” Mabirizi’s application reads in part.

“The Supreme Court has jurisdiction powers and duty to make orders necessary for achieving the ends of justice or to prevent abuse of the process of Court (even by justices of court) and to set aside judgment which have been proved null and void after they have been passed to prevent an abuse of the process of Court.”

Mabirizi argues that the Constitution “was made after several human sacrifices of our dear predecessors and brothers in the name of fairness as indicated in the preamble of the constitution and you will have abdicated your judicial oath.