Kampala. Chief Justice Alfonse Owiny-Dollo says that he declined to recuse himself from the presidential election petition filed by Robert Kyagulanyi as demanded by city lawyer, Male Mabirizi because his application was malicious. He revealed this in his detailed judgment on an application filed by Mabirizi asking him to recuse himself from the petition because of his close links with President Yoweri Museveni, who was a respondent to Kyagulanyi’s petition.
Mabirizi wanted the Chief Justice to step down from petition on grounds that he was one of the lawyers who represented Museveni in the 2006 presidential election petition filed by former presidential candidate Dr. Kiiza Besigye. He also accused Owiny-Dollo of meeting Museveni on several occasions in the month of February before the disposal of Kyagulanyi’s petition.
In his detailed judgment, Owiny-Dollo noted that Mabirizi was not a party to the proceedings and therefore lacked the locus to file such an application in the first place. He argued that in his view, this reason alone was sufficient for the court to dismiss the application. He also argued that Mabirizi lacked evidence other than his own boastful submissions, which have since gained notoriety and are only aimed at finding fault in his professionalism.
Justice Owiny-Dollo explained that the person seeking recusal has to first recognize the fact that judicial officers are impartial by training, which they apply in the adjudication process especially in a multicultural and multilingual country like Uganda but this, he said wasn’t the case with Mabirizi. “The onus to pass the test for bias is upon the person seeking recusal by a Judicial Officer. An unfounded or unreasonable apprehension of bias cannot be a justifiable cause for recusal. Furthermore, even where the apprehension of bias is expressed by a reasonable person, such apprehension must be assessed in the light of true facts established at the hearing of the application” said Owiny-Dollo.
He explained that the Judges are also part of the society and have naturally at one time or another worked or associated with various members of society. As such, Owiny-Dollo reasoned that any person asking a Judge for recusal must do more than merely allege bias founded on suspicion by adducing evidence, which was not the case. On the issue of meeting Museveni, Owiny-Dollo said that he went to State House on official business on Feb 10th and 16th, 2021, and was never there on February 7 2021 as alleged by Mabirizi.
He said that he went to the statehouse to perform his constitutional duties in full of cameras, which included the swearing in of a High Court Judge and lay down the budget of the Judiciary. He argued that apart from finding fault with his happiness on the memorial celebrations of the Janan Luwum day and standing next to Museveni in a picture, there was no other basis for the alleged apprehension of bias by Mabirizi.
“Indeed, I find the applicant’s faulting of my attendance of this event and my evident joy at the occasion quite pedestrian, unfortunate, and most unreasonable. I attended the function not to mourn, but to rejoice and pay homage to the Lord God for his goodness”, said Owiny-Dollo. Adding that, “Any reasonable person would know that celebrating the martyrdom of St. Janan Luwum is testimony of the triumph of justice over evil.” He also reasoned that Mabirizi sought for his CV from the Judicial Service Commission with the sole purpose of finding fault.
Justice Owiny-Dollo argued that if Mabirizi had sought to discover his moral competence, he would have found out that he previously took instructions from a wide range of clients whom he didn’t bond with while exercising his profession as a lawyer. He cited the example of Professor Isaac Newton Ojok whom he was representing as a lawyer yet he was facing trial for treason against the government of Museveni, who was also the first respondent in Kyagulanyi’s petition.
He also noted that Mabirizi would have also discovered that he represented some rebels more than 30 years ago and in June 1988, drafted a peace agreement with the rebels and the ruling government, which he did as his contribution to restoration of peace in the Northern Uganda region. “He would also have gathered from the same CV that I was invited by the notorious warlord, Joseph Kony of the Lord’s Resistance Army, whom I rendered professional advice in the jungles of Garamba in the Democratic Republic of Congo”, said Chief Justice.
Whereas Mabirizi was saying that the public would not perceive well his failure to step down from the petition, the Chief Justice explained that the public has also, three categories of people and not all should be considered when deciding recusal cases. He described the first category of people as those driven by ill motive or ulterior mind. He said these actually know the truth about the matter but because it serves their malicious enterprises to present a position opposite to the truthful position, they hype that which best ensures the realization of that purpose.
“They are ordinarily in the minority in society; but because they may be cunning, or are a little more informed than the ordinary persons and are quite noisy, they create the impression that the silent majority is with them whereas not. They are not reasonable or objective and their views cannot be a measure for the test of bias”, Owiny Dollo reasoned.
The second category he said comprises the majority in any society and these are the ordinary persons who are generally well-intentioned but are woefully ignorant and gullible to manipulation and can easily jump on any bandwagon and can be driven by the said first category.
“When they are negatively beguiled, they can be quite unreasonable and dangerous. They are only useful with regard to the test for bias when their minds are positively directed” said Dollo.
Justice Owiny-Dollo said the third category comprises the objective, fair-minded and reasonable persons but still those qualities alone would not be sufficient for them to pass the test for bias without proof of facts. He later dismissed the application without costs.
Commenting about the detailed judgment, Mabirizi said there was another irregularity in the court since one of the judges on the nine member panel of Justices, Esther Kisakye who was absent. He argued that there is no way how they would read the whole detailed judgment in her absence yet the signing took place inside court.
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