Lawyers react to Mabirizi, justice Ssekaana legal feud

KAMPALA-UGANDA/NEWSDAY:  There are mixed reactions to the continuing legal feud between High court civil division judge, Musa Ssekaana and city lawyer Male Mabirizi. The two have been exchanging tough letters, with Mabirizi asking Ssekaana to recuse himself from hearing his cases and the judge not budging. Last week, Ssekaana slapped Mabirizi with a Shs 300 million fine for contempt of court.

Mabirizi and Ssekaana started clashing in 2019 when Mabirizi and 13 opposition leaders led by Erias Lukwago, challenged the failure of Electoral Commission chairperson justice Simon Byabakama to relinquish his powers as the Court of Appeal judge. During the proceedings, Mabirizi asked Ssekaana to summon Byabakama to appear in court and be cross examined, which he didn’t, forcing Mabirizi to ask him to step down from the case.

This was on grounds that for over 12 years when Ssekaana was in private practice, he used to represent the Electoral Commission, and as such, there is no way how he could have fairly rendered justice in the matter.

Some of the prominent cases where Ssekaana previously represented the Electoral Commission included when Asol Kabagambe sued the Electoral Commission for nominating Dr Kizza Besigye for the 2006 presidential elections while in prison and the election petition of Muwanga Lutaaya against Kenneth Lubogo.

But Ssekaana insisted on hearing the case in a session that was conducted under a tense environment and harsh language that saw the judge refer to Mabirizi’s submissions as “rubbish” and threatening to send Mabirizi to prison when he insisted on his plea. He later dismissed the application with costs on grounds that it ought to have been filed within three months after Byabakama’s appointment. Mabirizi appealed against the decision.

But prior to this, Mabirizi had petitioned the Judicial Service Commission (JSC) to remove Ssekaana from office for alleged misconduct and incompetence. Later in 2021, Mabirizi filed a case seeking to block the recruitment of judicial officers by the JSC but the case file was allocated to Ssekaana. Mabirizi withdrew it saying that he feared to appear before Ssekaana because he had earlier threatened to send him to prison.

Mabirizi who describes himself as the ‘rule of law champion’ reinstated the same matter but again it went to Ssekaana and he withdrew it for the second time before filing it afresh for the third time. This time it was allocated to justice Emmanuel Baguma. But Baguma after perusing through the file, forwarded it to Ssekaana, saying that there was a similar case that had been filed and withdrawn twice before Ssekaana without reason.

Days later, on June 10, 2021, Ssekaana wrote to Mabirizi saying that his actions of filing three cases on the same subject matter were an abuse of court process.

“This division will not allow you to abuse the court register by filing and withdrawing cases at leisure and refilling later to be allocated to another judge,” wrote Ssekaana.

He added: “Your actions and practices amount to forum shopping which is strictly abhorred by this court. You have no basis of rejecting a judicial officer allocated a file/matter. The games you are playing in filing the same matter several times to get a favorable judge will not be entertained, I have directed the court registry to return your application filed or left in court and the same shall not be received or entered in the register of the court.”

Despite all this, Mabirizi continued filing his cases but now trouble for him resumed when he filed a case against Capital Markets Authority (CMA) seeking an injunction restraining CMA from extending the MTN Uganda IPO window and listing their shares on the Uganda Securities Exchange on grounds that the company was not well incorporated in the country.

The matter came up before civil division judge Phillip Odoki, who dismissed it with costs on November 26, 2021 on the basis that Mabirizi did not have the locus to file the case against CMA because he did not have sufficient interest in the public offer.

Following the court decision, the attorney general through state attorneys; Patricia Mutesi and Jimmy Oburu Odoi filed an application in court to find Mabirizi in contempt of court and send him to civil prison for a minimum of six months or to pay a fine of Shs 250 million.

They accused Mabirizi of taking to his social media platforms especially Twitter and Facebook to intimidate and threaten justice Odoki prior to the delivery of his ruling, imputing improper motives of his judicial acts and decisions as well as attacking his character and competence. coincidentally, The attorney general’s application was allocated to Ssekaana.

However, before Ssekaana could hear the matter, Mabirizi asked him again in his letter dated, December 23, 2021, to step down from hearing his case because he was seething to send him to prison. But on January 3, 2022, Ssekaana wrote to Mabirizi saying that his claims that he was dying to send him to prison were baseless, and that having taken him to the JSC doesn’t mean that he couldn’t dispense justice in his matters.

In the aftermath, Ssekaana heard the case and found that the actions of Mabirizi by his posts on social media were in contempt of court and directed him to pay a fine of Shs 300 million and costs to the government.

REACTIONS

According to lawyer Shamil Letia Atabua, the Mabirizi and justice Ssekaana fight is just a culmination of legal passivism that the Ugandan justice system has descended into. He notes that judges tend to claim the courts are theirs and so take constructive criticism in bad faith which leads them to import their personal feelings into the court arena.

“For example, for attorney general to sue Mabirizi, no one had bothered to ask if there was a consensus or a cabinet resolution to that effect,” said Atabua. “It appears that our learned AG was just doing the judges a favour by suing Mabirizi. This further complicates our judicial system, compromising the independence of the judiciary. This ruling tends to spoil jurisprudence because the same judges will be victims of such a ruling. They have land cases too and our judges may  find themselves in the same catch 22.”

Timothy Amerit a state attorney in the office of the Director of Public Prosecutions (DPP) notes that Mabirizi as a Ugandan citizen is at liberty to bring public officials to account, to make sure that the rule of law is respected adding that whether his actions have merit or not is immaterial.

“The award of Shs 300m is certainly harsh and discourages legitimate litigants to seek legal redress from courts of law, for fear of the financial repercussions,” says Amerit. “Courts should be seen as the hospital for those bearing legal diseases rather than a hell for fear of damnation.”

But lawyer Steven Kalali doesn’t agree with his colleagues. He argues that Mabirizi files cases for the sake of publicity although he appreciates his role in the jurisprudence of the country, but he accuses him of belittling many judicial officers including the chief justice Alfonse Owiny-Dollo.

“ Mabirizi had to be put in the proper lane, litigants can’t keep belittling court if they are left to do so then the sky will be the limit” Kalali said.

“I’m very happy, in my view as an advocate and I believe the legal fraternity as a whole which includes the members of the bar where there are advocates and then the judges, we’re just celebrating. We’re saying this decision was long overdue because his [Mabirizi] conduct had become a morally reprehensible thing. He was belittling judicial officers, belittling fellow advocates, that is kind of unprofessional and unfounded. As a litigant, you cant be seen belittling judicial officers, belittling fellow advocates or lawyers under the guise that you shall be untouchable and besides, who hears your matter and who you agree with and what decision you will get,” added Kalali.

KAMPALA-UGANDA/NEWSDAY:  There are mixed reactions to the continuing legal feud between High court civil division judge, Musa Ssekaana and city lawyer Male Mabirizi. The two have been exchanging tough letters, with Mabirizi asking Ssekaana to recuse himself from hearing his cases and the judge not budging. Last week, Ssekaana slapped Mabirizi with a Shs 300 million fine for contempt of court.

Mabirizi and Ssekaana started clashing in 2019 when Mabirizi and 13 opposition leaders led by Erias Lukwago, challenged the failure of Electoral Commission chairperson justice Simon Byabakama to relinquish his powers as the Court of Appeal judge. During the proceedings, Mabirizi asked Ssekaana to summon Byabakama to appear in court and be cross examined, which he didn’t, forcing Mabirizi to ask him to step down from the case.

This was on grounds that for over 12 years when Ssekaana was in private practice, he used to represent the Electoral Commission, and as such, there is no way how he could have fairly rendered justice in the matter.

Some of the prominent cases where Ssekaana previously represented the Electoral Commission included when Asol Kabagambe sued the Electoral Commission for nominating Dr Kizza Besigye for the 2006 presidential elections while in prison and the election petition of Muwanga Lutaaya against Kenneth Lubogo.

But Ssekaana insisted on hearing the case in a session that was conducted under a tense environment and harsh language that saw the judge refer to Mabirizi’s submissions as “rubbish” and threatening to send Mabirizi to prison when he insisted on his plea. He later dismissed the application with costs on grounds that it ought to have been filed within three months after Byabakama’s appointment. Mabirizi appealed against the decision.

But prior to this, Mabirizi had petitioned the Judicial Service Commission (JSC) to remove Ssekaana from office for alleged misconduct and incompetence. Later in 2021, Mabirizi filed a case seeking to block the recruitment of judicial officers by the JSC but the case file was allocated to Ssekaana. Mabirizi withdrew it saying that he feared to appear before Ssekaana because he had earlier threatened to send him to prison.

Mabirizi who describes himself as the ‘rule of law champion’ reinstated the same matter but again it went to Ssekaana and he withdrew it for the second time before filing it afresh for the third time. This time it was allocated to justice Emmanuel Baguma. But Baguma after perusing through the file, forwarded it to Ssekaana, saying that there was a similar case that had been filed and withdrawn twice before Ssekaana without reason.

Days later, on June 10, 2021, Ssekaana wrote to Mabirizi saying that his actions of filing three cases on the same subject matter were an abuse of court process.

“This division will not allow you to abuse the court register by filing and withdrawing cases at leisure and refilling later to be allocated to another judge,” wrote Ssekaana.

He added: “Your actions and practices amount to forum shopping which is strictly abhorred by this court. You have no basis of rejecting a judicial officer allocated a file/matter. The games you are playing in filing the same matter several times to get a favorable judge will not be entertained, I have directed the court registry to return your application filed or left in court and the same shall not be received or entered in the register of the court.”

Despite all this, Mabirizi continued filing his cases but now trouble for him resumed when he filed a case against Capital Markets Authority (CMA) seeking an injunction restraining CMA from extending the MTN Uganda IPO window and listing their shares on the Uganda Securities Exchange on grounds that the company was not well incorporated in the country.

The matter came up before civil division judge Phillip Odoki, who dismissed it with costs on November 26, 2021 on the basis that Mabirizi did not have the locus to file the case against CMA because he did not have sufficient interest in the public offer.

Following the court decision, the attorney general through state attorneys; Patricia Mutesi and Jimmy Oburu Odoi filed an application in court to find Mabirizi in contempt of court and send him to civil prison for a minimum of six months or to pay a fine of Shs 250 million.

They accused Mabirizi of taking to his social media platforms especially Twitter and Facebook to intimidate and threaten justice Odoki prior to the delivery of his ruling, imputing improper motives of his judicial acts and decisions as well as attacking his character and competence. coincidentally, The attorney general’s application was allocated to Ssekaana.

However, before Ssekaana could hear the matter, Mabirizi asked him again in his letter dated, December 23, 2021, to step down from hearing his case because he was seething to send him to prison. But on January 3, 2022, Ssekaana wrote to Mabirizi saying that his claims that he was dying to send him to prison were baseless, and that having taken him to the JSC doesn’t mean that he couldn’t dispense justice in his matters.

In the aftermath, Ssekaana heard the case and found that the actions of Mabirizi by his posts on social media were in contempt of court and directed him to pay a fine of Shs 300 million and costs to the government.

REACTIONS

According to lawyer Shamil Letia Atabua, the Mabirizi and justice Ssekaana fight is just a culmination of legal passivism that the Ugandan justice system has descended into. He notes that judges tend to claim the courts are theirs and so take constructive criticism in bad faith which leads them to import their personal feelings into the court arena.

“For example, for attorney general to sue Mabirizi, no one had bothered to ask if there was a consensus or a cabinet resolution to that effect,” said Atabua. “It appears that our learned AG was just doing the judges a favour by suing Mabirizi. This further complicates our judicial system, compromising the independence of the judiciary. This ruling tends to spoil jurisprudence because the same judges will be victims of such a ruling. They have land cases too and our judges may  find themselves in the same catch 22.”

Timothy Amerit a state attorney in the office of the Director of Public Prosecutions (DPP) notes that Mabirizi as a Ugandan citizen is at liberty to bring public officials to account, to make sure that the rule of law is respected adding that whether his actions have merit or not is immaterial.

“The award of Shs 300m is certainly harsh and discourages legitimate litigants to seek legal redress from courts of law, for fear of the financial repercussions,” says Amerit. “Courts should be seen as the hospital for those bearing legal diseases rather than a hell for fear of damnation.”

But lawyer Steven Kalali doesn’t agree with his colleagues. He argues that Mabirizi files cases for the sake of publicity although he appreciates his role in the jurisprudence of the country, but he accuses him of belittling many judicial officers including the chief justice Alfonse Owiny-Dollo.

“ Mabirizi had to be put in the proper lane, litigants can’t keep belittling court if they are left to do so then the sky will be the limit” Kalali said.

“I’m very happy, in my view as an advocate and I believe the legal fraternity as a whole which includes the members of the bar where there are advocates and then the judges, we’re just celebrating. We’re saying this decision was long overdue because his [Mabirizi] conduct had become a morally reprehensible thing. He was belittling judicial officers, belittling fellow advocates, that is kind of unprofessional and unfounded. As a litigant, you cant be seen belittling judicial officers, belittling fellow advocates or lawyers under the guise that you shall be untouchable and besides, who hears your matter and who you agree with and what decision you will get,” added Kalali.