Why it has become almost impossible to win a case against a judge in Uganda

Jailed lawyer Hassan Male Mabirizi is headed to the Supreme Court – the highest court in the land – in an uphill battle aimed at getting a reprieve from the 18-month jail sentence handed to him by High Court judge Musa Ssekaana for insulting him on social media, a move that has opened a Pandora’s Box.

The tide is against Mabirizi because recent precedents have shown that the judges in Ugandan courts are more inclined to rule in favour of their colleagues in cases in which they have a personal interest.

“This happens all the time across judicial systems in repressed environments,” said Isaac Ssemakadde, the CEO of Legal Brains Trust (LBT), a Kampala-based democracy and human rights watchdog, adding “Due process is a thing of the past, an irritant not to be observed once the Judiciary perceives an attack on one of its members.”

The relationship between Mabirizi and Justice Ssekaana, who now heads the High Court’s Civil Division, didn’t start off well.

Mabirizi has petitioned the Judicial Service Commission (JSC), saying the judge should be removed from office citing three grounds: misconduct, incompetence, and practicing as a lawyer after he had been appointed a judge in 2017.

The fractious relationship was laid bare in 2019 when Mabirizi joined other litigants in asking Justice Ssekaana to nullify Simon Peter Byabakama’s appointment as Electoral Commission (EC) boss on grounds that he didn’t first resign as a justice of the Court of Appeal.

Mabirizi drew first blood when he asked Justice Ssekaana to recuse himself from hearing the case on grounds that he was still in private practice and had represented the EC in various parliamentary electoral petitions.

“My lord, I have had enough of the appearance of your bias and I have seen the reality and to me, it doesn’t make any sense to continue being here as if I am in court yet I am actually before Justice Byabakama’s lawyer or Mr [Sam] Rwakoojo’s [then secretary of the EC] lawyer,” Mabirizi said.

Not to be undone, Justice Ssekaana retorted: “Mr Male, you have pushed me to the extreme, and I can do extremes and you may end up in Luzira [prison]… Just give respect to the court and don’t think we are in an LC [Local Council] court. That’s the last time you are doing it.”

This year Justice Ssekaana, who was moved by Attorney General Kiryowa Kiwanuka, fined Mabirizi a staggering Shs300m for hurling insults at another High Court judge, Phillip Odoki, on social media after the judge had thrown out his case in which he was challenging MTN’s floating of shares to the public through an Initial Public Offering (IPO) in 2021.

Ssekaana would later imprison Mabirizi on grounds that he had continued to insult him after fining him.

On appeal, Justice Christopher Izama Madrama set aside the Shs300m fine, but he couldn’t allow Mabirizi’s most critical prayer of releasing him, saying they had not followed the right procedure of first going through the High Court to ask for bail. 

High Court rejected Mabirizi’s bail application, prompting Mabirizi to run to the Court of Appeal where it met a similar fate.

“Much as the order was issued against the contemnor to desist/ and or stop attacking judicial officers was violated when he published the statements above, we agree with the trial judge that the acts of the contemnor amounted more to scandalising the court than a breach of a court order,” justices Muzamiru Kibeedi, Irene Mulyagonja and Eva Luswata ruled.

“We, therefore, will not construe them as a breach of the prior order, bringing them in the ambit of civil contempt because they fell in the category where the contemnor engaged in publishing comments that demeaned a judicial officer and amounted to scandalising the court and judicial officers, in the most horrendous manner.”

They further said what Mabirizi did was not civil contempt, but rather criminal contempt and the only way out for him was to dispatch honest apologies to Justice Ssekaana.

“We, therefore, came to the conclusion that criminal contempt, though pardonable, cannot purge his contempt by simply paying a fine, however large,” they ruled. “However, the contemnor may apologise to the court of which he/ she was found to be in contempt but such apology must be genuine, signifying that the contemnor is truly contrite.”

The norm

Ruling in favour of judges hasn’t always been the norm of the Court of Appeal. In 2011, for instance, the civil case between Rock Petroleum and Shell Uganda dramatically turned into a shouting match between Justice Mulyagonja, then a judge at the High Court’s Commercial Division, and Fred Muwema, a veteran lawyer who was representing Rock Petroleum.

Mulyagonja’s reaction was swift; she ordered that Muwema’s law firm was not entitled to any fees or costs in the case on the account of what she called “misconduct”.

Additionally, she suspended Muwema from practicing before the Commercial Court until a complaint about his misconduct, lodged by the chief registrar before the disciplinary committee of the Uganda Law Council, is heard to its final conclusion.

When Muwema appealed, the Court of Appeal found that though the lawyer had provoked Justice Mulyagonja, she ought to have summoned her judicial temper.

“I am acutely aware that these days more and more new and vexing problems find their way before the court than ever before. These call for the highest order and civility by both the bench and the bar. Yet all too often overzealous advocates tend to think that their zeal and effectiveness depends on how thoroughly they can annoy the judge or how close they can come to insulting her,” Justice Alice Mpagi-Bahigeine, then Deputy Chief Justice, wrote a lead judgment which was agreed to by the other two justices on the panel – Constance Byamugisha and Augustine Nshimye.

As a result of such scenarios, Justice Bahigeine ruled, some judges are often under greater stress than others.

“The trial judge, in this case, owned up to this. She succumbed to the temptation to react in kind to counsel’s taunts as her judgment reflects. It was plain that the judge acted on extraneous considerations which ought not to influence her, making it apparent that she had ignored her duty to act fairly in the midst of taunts and unbearable stress,” the judgment went on.

“I have the greatest sympathy for the learned judge for what she must have suffered though I am in no doubt that the impression created in open court, as well as her own revelation, would leave no one in doubt that she had let the stress take the better of her and consequently coloured her judgment as shown above,” the justices ruled.

Unlike today where decorum is asked solely by lawyers and litigants, Justice Bahigeine, in her ruling, called on all parties in court to step up to the plate.

“Before leaving this ground, I feel constrained to point out that in the end all of us should comply with basic standards of good manners and professional decorum. We should not forget the necessity for civility as an ‘indispensable lubricant’ that keeps our adversarial system functioning,” she ruled.

Justice Mulyagonja wasn’t the only judge to be left in the court by fellow justices, the same fate befall Justice Okumu Wengi in 2007.

Justice Wengi, in 2006, had been banned from hearing cases pending the conclusion of an investigation into which he had been accused by the Gandesha family of demanding $500,000 seven years earlier.

Justice Wengi had charges such as corruption, forgery, impropriety, and the fraudulent perversion of justice hovering over his head. 

Acting on the recommendation of the Judicial Service Commission (JSC) – which is inter-alia charged with disciplining errant judicial officers – President Museveni indefinitely suspended Wengi from office in 2006.

Justice Wengi reacted to the suspension by suing the Attorney General, claiming that the decision by the JSC was illegal since he was not given a fair hearing and he consequently asked the High Court to declare null and void the actions of the JSC and Mr Museveni’s appointment of a tribunal to investigate him on the recommendation of the Commission.

When the JSC presented to Justice Musoke Kibuuka, who was presiding over the case, copies of letters written to Wengi in February 2005 asking him to respond to the allegations, Justice Wengi wrote to Mr Museveni in August 2006 asking for permission for early retirement.

The JSC was agreeable to the judge’s request and told Mr Museveni that Justice Wengi’s early retirement would not only give him a soft landing, but also save the Judiciary’s blushes.

Mr Museveni, who was seemingly fed up with the mess, ordered that he be retired with full benefits.

As the dust was settling, Justice Wengi reneged on the retirement deal, insisting that he was waiting for Justice Musoke-Kibuuka to give his verdict.

Only that Justice Musoke-Kibuuka wanted none of it. He ruled that Justice Wengi’s judicial career ended the moment Mr Museveni sanctioned his application to retire, adding that the embattled Wengi could only make a comeback to the bench if Mr Museveni reappoints him as a judge – something which wasn’t possible at the time.

Long gone

But the days of justices ruling against their own seem long gone and Mabirizi and others who annoy judicial officers could be in trouble after Chief Justice Owiny-Dollo early this year declared that an attack on any of the judicial officers is an attack on all of them.  

“An attack on one of us is an attack on all of us,” Justice Owiny-Dollo said during the new law year function organised at the High Court Criminal Division, which is the Judiciary’s headquarters.

“When you undress judges and they remain naked they will run into hiding, and then after, you will remember that when the devil goes on a rampage, you need somewhere you find salvage. The Judiciary is the forest you can hide in,” he said.

The Uganda Judicial Officers Association (UJOA) – the umbrella body of judicial officers – had echoed the Chief Justice’s views.

“The same call for action arising out of a decision that found Mr Male Mabirizi in contempt of court and recommended sanctions against him. Mr Male made similar insults via his Twitter handle @MalemabiriziHKK on various dates,” Justice Tadeo Asiimwe, the UJOA president, wrote in a January letter to the Uganda Law Society and Uganda Law Council. 

“We urge the Uganda Law Society and the Law Council to take necessary action to tame this irreverent behaviour, which severely impacts on judicial officers in the performance of their official duties.”

While in Uganda judges feel they should defend their own, in Kenya a High Court judge quashed a directive from the country’s Chief Justice, Martha Koome, which attempted to gag advocates and litigants from giving views on the presidential election that has gripped the biggest economy in East Africa.

Justice Koome had rationalised her directive on grounds that it would protect the integrity of the Supreme Court.

She said there was a motley crew of lawyers who had made it a habit to appear in her court and make their case, only to later take their arguments to social media where they would ridicule judges.

She had dismissed the suggestion that her directive would stifle freedom of speech and expression, insisting that the rules were meant to preserve the poise and independence of the Judiciary.

But Justice Mugure Thande, who is Justice Koome’s junior, wasn’t having any of it. She quashed the ruling of Kenya’s Chief Justice on grounds that it was unconstitutional as it amounted to grabbing of the powers of parliament to define, via legislation, what sums to contempt.

In Uganda, as Mabirizi serves his jail term, he still pushing the horizons by taking the battle to the Supreme Court, but many in the legal circles think he won’t achieve much.

“We have judges who don’t want to stand out. They just want to conform to what’s being done by others,” Peter Walubiri, a constitutional law expert, says adding: “So, people like Mabirizi will now have to serve a full term because judges are timid.”