Lawyers call for mediation between Justice Kisaakye, CJ Alfonse Owiny

Kampala, Uganda | THE INDEPENDENT | Several lawyers want Supreme Court Justice Esther Kisaakye, and Chief Justice Alfonse Owiny-Dollo to settle their grievances through mediation. According to lawyers, allowing the feud between two senior Justices of the highest court of the land, to end up in court before their juniors would set a very bad precedent for the country and the independence of the judiciary, which they are supposed to safeguard.

The lawyers expressed their views in an interview with URN conducted just a day after Justice Kisaakye filed a constitutional court petition seeking a permanent injunction against Justice Alfonse Owiny-Dollo and five others from withholding her salary and allowances without following due process.

In her petition filed before the Constitutional court on Monday, Justice Kisaakye who is seeking 24 orders among dozens of other declarations wants the record showing that she has been away without official leave quashed, be assigned duties, and reinstated as the administrative head of the Supreme Court.

The other respondents to the suit are Pius Bigirimana, the Permanent Secretary to the Judiciary, Sarah Langa Siu, the Chief Registrar of Courts of Judicature, Apophia Tumwine, the Commissioner of Human Resources in the Judiciary, the Judicial Service Commission, and the Attorney General respectively.

Kisaakye says that effective March 18, 2021, from the Presidential Election Petition filed by Robert Kyagulanyi Ssentamu against President Yoweri Museveni, the respondents have jointly and severally engaged in acts that are inconsistent with the constitution. They include the confiscation of her file by Owiny-Dollo before she could read her decision arising from that presidential petition, closure of the Supreme Court on the orders of the Chief Justice and Government on March 19,  2021, the issuance of a deceitful and defamatory press statement and denial of funds for medical treatment.

These include among others their failure to recognize and/or follow seniority at the Supreme Court, secretive investigations against her disguised as a general inquiry, denial of leave, refusal by the Chief Justice to allocate her work, and refusal to reinstate her research Assistant, withholding the allowances of her driver and bodyguards, denial of a letter of undertaking to her bankers and her subsequent removal from the judiciary and government payroll.

Martin Asingwire Baryaruha, the Acting President of Uganda Law Society describes the feud as unfortunate but hastens to add that what they are seeing is a fire whose smoke appeared long before. He says that the ideal situation with the help of the strongest arm or pillar of government would have been to mediate and resolve the issues peacefully through the judiciary’s internal mechanisms such as the Judiciary Council established under the Administration of the Judiciary Act.

“The matter would have been discussed and guidance provided. Seeing as a constitutional petition has been filed in court, and then it’s important to first see the responses of persons named as respondents and figure out the entire dispute frame. We are then going to consider whether to intervene as ‘Amicus Curiae’ or Friends of Court and guide on the matter as best as we can,” said Baryaruha when asked what he thought about the dispute.

For counsel George Musisi, the battle doesn’t portray well the judiciary given the legal implications it’s likely to lead to since the constitutional court is headed by the Deputy Chief Justice and in case it doesn’t succeed, it goes to the Supreme Court where they both sit. Musisi believes that Kisaakye wants to portray the rot in the judiciary and it goes on record that the most senior Judge of the Supreme Court is complaining about mistreatment.

He says the two former elders in the Judiciary, retired Chief Justices Phillip Odoki and Bart Katureebe should have presided over their mediation because it doesn’t go well when such is happening at the hands of people who are supposed to safeguard the Independence of the Judiciary since it sets a bad precedent.

A legal scholar who has preferred not to be quoted for fear of violating the subjudice rule said no one is immune from civil proceedings and it’s the reason why the said respondents have been sued.

“This case shall have far-reaching implications on the independence of individual judicial officers and their post-judgment days. It is factual that Justice Kisaakye is the most senior member of that court. Somewhere in the Court of Appeal we have a justice that went to another country, reformed their entire judiciary as Chief Justice, but for some reason, his promotion to the Highest Court has been delayed,” said the anonymous source.

Human Rights activist Andrew Karamagi describes the move as a culmination of events but not the worst he has seen in many years of the emasculation of the Judiciary, which he says is a crucial arm of the government. He says that issues like the military raid of the High Court in 2005 and subsequent occurrences of a similar nature in which suspects who have been granted bail were rearrested by paramilitary/counterterrorism operatives and detained in ungazetted locations, and such outrages continue to occur, one cannot expect a functional judicial system that is free from interference and discord.

“Prior to her current predicament, Justice Kisaakye herself had not been exempted from conducting herself in a manner beneath the office of a Justice of the Supreme Court. She has been outstandingly biased against the political opposition and contributed significantly to the loss of judicial independence–whose umbrella of protection she now seeks,” said Karamagi.

He explained that; “it is my considered opinion that this is a culmination of so many years of decay; it is called metastasis in medicine…where a chronic disease like cancer spreads beyond the primary organ of infection to other organs or systems. Unfortunately, if the situation remains as it is, we are bound to see far worse manifestations of the institutional malaise that has eaten away at just about every ministry, department, and authority”.

Shamil Atabua Letia, another lawyer says that Justice Kisaakye has become a victim of what he describes as bull shit protocol, a policy he says is adopted by a government to undermine citizens’ rights by first violating them, keeping them in litigation in courts for a long time, and once the Courts have pronounced themselves on the law and awarded damages, the government simply refuses to pay them citing budgetary restrictions among others.

“Justice Kisaakye has now become a victim of the bullshit protocol. When they partook in sentencing Ivan Sebaduka and violating his rights no one spoke up, now when it’s a Supreme Court Judge suddenly it gathers all this attention. As Ugandans our Supreme Court/courts lost value a long time ago,” said Atabua.

He said that; “the only person I can forgive is Pius Bigirimana because he is a simple bookkeeper who played with fire and got burnt. As for the rest, they are simply learned but not properly educated legal practitioners. Am sure it will end in mediation. However, it’s a culmination of the bullshit that our Courts have since descended into. As for our dear Chief Justice Chigamoy, he has succeeded in finally undressing”.

Lawyer Nalukoola Luyimbazi, who is also the Legal Advisor of the Democratic Party, says that overstaying in power is cancerous against not only the three arms of the government but also against all institutions in the country. She says before taking any decision, the players are supposed to first think about how the decision is to be perceived by the top most leaders whom she describes as the leader for eternity.

According to Nalukoola, the country has lost the independence of not only the Judiciary but also other organs of the state and some players are always afraid of losing the source of their daily bread and cannot tolerate dissenting voices.

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URN