Lawyer Hassan Kiwanuka Male Mabirizi was checked into the much dreaded Kitalya prison to serve 18 months for contempt of court. As expected, his incarceration has drawn mixed reactions. While passionate human rights enthusiasts feel sorry for a man whose passion for social justice and fairness is unrivalled, those on whose toes he has stepped in his pursuit for the same are jubilating the end — at least for now — of an excited lawyer who stretched his handshake beyond the elbow.
However, regardless of which side one belongs in this Mabirizi puzzle, several judicial inconsistencies in the run-up to his jailing should not be ignored as they vindicate more “level-headed” Ugandans who earlier cried out that something is grossly amiss in our courts and that it is increasingly becoming difficult for many Ugandans to truly get the justice they honestly deserve in these “temples of justice”. What’s even scarier is that even pointing out genuine complaints about these injustices is turning into riskier business that can quickly land one in prison at any aggrieved judicial officer’s wish — after all, any attack on any judicial officer is an outright attack on the entire judiciary; at least in the recent words of Chief Justice, Owiny-Dollo.
SOME BACKGROUND
It should be remembered that after former FDC President Dr. Kizza Besigye vowed never to return to court after his 2006 Election Petition was dismissed, government apologists castigated him as a person who had resorted to illegal means to unseat a legitimate government.
Indeed from 2011 onwards, it became a song for NRM supporters to taunt opposition politicians with questions like “if you feel aggrieved, why don’t you go to court?” Victims of land grabbing were also handed the “go to court weapon” by their tormentors, well aware that it can deliver absolutely no remedy or respite.
Meanwhile, on the other side, the judges always expressed their eagerness to dispense justice and often took bouts with lawyers “who fail to bring evidence in court and blame them for not winning. Indeed a few financially stable elites whose challenge to the status quo was always dismal given their economic or political interests often showed up in court and could go mute as soon as the case is decided; not even saying a word to the media. A classic example was the case of Dr. Benjamin Alipanga who filed a Constitutional Petition in 2014 asking the Constitutional Court to declare that President Yoweri Museveni was not qualified to contest in the 2016 general elections because he was likely to clock the then 75years’ age cap at which one was not qualified to be president. This petition lay on the shelves of the Constitutional Court unheard until 2019 when it was remembered after President Museveni had already contested, won and even successfully pushed for the amendment of the Constitution to remove the age-limit from the Constitution!
ENTER THE CURIOUS CASE OF MALE MABIRIZI
That year 2019, marked the birth of the “Rule of Law Icon” in city lawyer Male Mabirizi Hassan Kassim Kiwanuka after his passionate, neatly tailored and alluring arguments in the Constitutional Court that sat in Mbale to determine the Constitutionality of removing the Age Limit for the Presidency from the Constitution. He has since then taken issue with every decision made by Parliament, Judiciary, the executive and private individuals like Pr. Aloysius Bugingo that even those who had earlier dismissed him as an “attention seeker” or a “lawyer lacking proper legal training” (having not done the bar course to become an advocate), had been won over at the time of his imprisonment on Monday February 21, 2022.
Those who have been following developments in the judiciary will agree that Mabirizi has more letters written to the Principal Judge, Office of the Chief Justice and Complaints filed before the Judicial Service Commission about judges’ misbehavior than most of the advocates who have practiced for more than 10 years; irrespective of how or whether the contents of those letters and complaints will be addressed. But one thing they speak of is the vigilance of their author and his unwillingness to accept his rights to be swayed by judicial protocols.
While senior advocates were lamenting about closure of courts and their not being categorized as essential workers during the first and second COVID-19 lockdowns, Mabirizi was busy filing cases in the East African Court of Justice challenging actions of the executive, the Judiciary and Parliament which contravened the East African Treaty. He has more than 20 rule of law-related references in that court from 2019 to date, including one filed against Kenya for rejecting Ugandan Maize over Aflatoxins and another against the court itself for accepting the reappointment of Justice Monica Mugenyi (Uganda) to the appellate division of that court.
The local courts have not been spared his numerous cases, mostly against the actions of the state or its agencies, including the recent one against the Capital Markets Authority — which has finally landed him the sentence.
It was such a protracted case not just because of the stakes involved economically but also the glaring evidence that would deny telecommunication giant MTN Uganda an opportunity to list on the Ugandan stock market yet this was a condition for renewal of its contract by Uganda Communications Commission. The overriding aspect was the fact that Uganda Capital Markets Authority had allowed MTN Uganda Limited to proceed with a Public offer of its shares yet it was still a private company and the offer was made to MTN Uganda Limited yet the Company registered in Uganda is MTN (U) Ltd which to Mabirizi, the two aren’t the same.
What perplexed Mabirizi was the fact that instead of resolving all the issues as raised, the Judge Phillip Odoki based on a preliminary objection by Capital Markets Authority to rule that Mabirizi had no sufficient interest in MTN becoming a public company to allow Ugandans invest in it yet he is a Ugandan. The judge went against the long established practice where after determining a preliminary objection, judges proceed to determine the case in its entirety. In the first place this case had been allocated to Justice Boniface Wamala but when Odoki was allocated an application for an interim order, he decided to hear the main case.
It was from Odoki’s conduct that Mabirizi ran to the Judicial Service Commission accusing him of being incompetent and corrupt. The said complaint was shared on Facebook and Twitter handles whose ownership Mabirizi denies. From nowhere, the Attorney General who had not been party to the dispute between Mabirizi and Capital Markets Authority (the latter being an autonomous entity) decided to file an application seeking that Mabirizi be found in contempt of court and committed to Civil Prison. When the application was served on him, Mabirizi pointed out that the application was not signed by the Attorney General and had nowhere the Registrar signs to confirm receipt and indeed it had not been received by the Registrar; so it was incompetent.
Instead of withdrawing it or seeking leave of court to amend it, Assistant Commissioner Patricia Mutesi and Principal State Attorney Jimmy Oburu Odoi just filed fresh papers in court “mafia style”. Despite Mabirizi’s written complaint against such conduct and the fact that he had had earlier animosity with the current head of Civil Division, Justice Musa Sekaana, who had allocated himself the file, none of the leaders of “the temple of justice” bothered to question the falsification of the court record or the negative publicity the case was attracting.
Mabirizi went ahead to file a total of nine applications (cases) all emerging from the actions of the Attorney General and the judge’s. Among them was an application for Justice Sekaana to recuse himself from hearing this application for contempt, an application for stay of proceedings since at first the judge had proceeded with the hearing in Mabirizi’s absence, an application seeking to cross-examine the Attorney General’s witnesses to establish the motive for this application and also he filed a reference in the East African Court of Justice. The judge unilaterally determined these applications without asking Mabirizi to file submissions and then determined the application for Contempt — still without any submissions/hearing from Mabirizi.
The judge had given Mabirizi a week to file submission from Monday January 24, 2022 but without any notice, he on 27th January 2022 just delivered the ruling before the week elapsed. The ruling was also just posted on Mabirizi’s email by Justice Sekaana as opposed to the practice of delivering rulings in open court and in presence of parties. He had found him in contempt, ordered him to pay Shs300m fine and also issued “a strong warning” against him to desist from undermine judges. Remember, the Attorney General’s application was for Committal to Civil Prison and Mabirizi had responded that Civil Prison cannot apply in matters of contempt because “it is intended to enlist a positive action.” The AG had not asked for a fine, more so the excessive Shs300m which is not anywhere in the fines statutes.
On receiving the ruling, Mabirizi filed a notice of appeal in the Court of Appeal, filed another application before Justice Sekaana asking him to stay his orders and another application in the High Court to set aside Sekaana’s ruling because he had not been given an opportunity to defend himself. They were all filed on January 27, 2022, the day he received the email. He then kept pushing for the hearing date of his applications without success.
On February 1, 2022 the Uganda Judicial Officers’ Association (UJOA) issued a statement condemning Mabirizi and City Lawyer Isaac Semakadde for what they termed as “unbecoming utterances against Justice Sekaana attributed to them through Twitter handles.” Mabirizi responded in writing warning UJOA against “being used by Justice Sekaana” and threatened to bring a defamation action against them if they didn’t retract their statement because the said Twitter handle wasn’t his.
After this letter, Justice Sekaana moved himself on February 10th and issued a notice-to-show-cause asking Mabirizi to appear the next day (February 11, 2022 (Friday) to explain why he should not be committed to Prison. Having earlier vowed never to appear before Justice Sekaana, Mabirizi decided to hire lawyers of Ojok and Company advocates to appear on his behalf. When the lawyers asked the judge for the Application from which the notice he had issued emanated and to ascertain who the complainant was, the judge decided to adjourn the case to February 15, 2022. Mabirizi used this lull to write to the Principal Judge Dr. Flavian Zeija and the Chief Justice Owiny Dollo beseeching them to allocate his file to another judge because Sekaana was bent on imprisoning him unheard. He even wrote to the Deputy Chief Justice Richard Buteera reporting that all his letters to the Principal Judge and the Chief Justice had been ignored and his hope was in the office of the DCJ. They all remained mute!
When the matter returned on Tuesday February 15, 2022, now the Attorney General had written a letter to the Principal Judge and the Registrar of the High Court asking that Mabirizi be summoned to show cause. Again the issue was clear; “to explain” what he meant in the letter he wrote to UJOA, not why he shouldn’t be imprisoned or committed for any period. When Mabirizi’s lawyers appeared, they informed Justice Sekaana that he already had two formal applications on his desk from Mabirizi filed way back on January 27th, 2022 which he ought to have determined before entertaining these letters from the Attorney General. Under normal circumstances, there must have been a court order and a formal application for an execution to occur not by exchange of letters.
SEKAANA DEFIES CONFLICT OF INTEREST LOGIC
Secondly, the judge was informed that he is mentioned in the letters by the Attorney General as one of the people offended by Mabirizi’s letter to UJOA so he cannot sit as a judge yet he is also the complainant. Justice Sekaana just kept quiet, only to rule that he had found Mabirizi in contempt and had committed him to Prison to serve a sentence of 18 months. It is unheard of for a judge to sit and decide a case where he is the complainant; even the Almighty God has never! That very evening of February 15 as Mabirizi was being briefed by his lawyers, the police surrounded the premises where he was and moved in to arrest him. Luckily he jumped over the fence and disappeared. He then became a fugitive, but still never relented on his quest for fair hearing.
He through proxies managed to file three applications; one, to set aside orders for arrest and imprisonment, another for stay of execution and an application for interim stay of execution. At the time of issuing the order for him to be arrested, the Court of Appeal had fixed the hearing for his interim order against Justice Sekaana’s Shs300m fine orders for hearing on Tuesday February 22. So Mabirizi insisted that if he were to be arrested before February 22, his applications would become useless. When the threat to arrest him became imminent, he again filed another lengthy additional affidavit asking court to use its inherent powers and issue restraining orders stopping the man-hunt given that he had not been given an opportunity to be heard in the High Court or the Court of Appeal. He also filed another application to be allowed to appear before the Judge alone without his pursuers and he explained the urgency of the matter.
Despite all that, Justice Christopher Madrama Izama saw no urgency to at least move the hearing date closer yet the Constitution enjoins him to uphold the right to fair hearing – a non derogable right. Indeed, Mabirizi’s luck ran out on Monday after six days of successful hiding. He was within a few hours driven to Kitalya Prison. In his ruling last Friday, Justice Madrama ignored a Supreme Court precedent set in the case of Theodore Sekikubo and others Vs NRM and AG where the Court issued an order stopping the MPs from being evicted from Parliament yet they had already been evicted by their NRM party and the Constitutional Court had also okayed.
In a classic example of an absurdity in the court system, the judge ruled that “The prayer to stay execution with regard to a Notice to Show Cause has been overtaken by events as the Applicant (Mabirizi) was arrested on 21st of February 2022 and committed to Kitalya Prison.”
Justice Vince T. Zehukirize (now retired) always gave an analogy while determining judicial review applications that “If a citizen is being pursued and by luck he manages to go through the window or the roof and lands into the courtroom. A Judge should not ask him why he has gone through the window/roof or order him to go back and use the main door, instead h/she should hear his reason for running to court then hear from his pursuers before ordering him to use the right entrance. Otherwise the court might miss the opportunity to exercise its cardinal role as an arbiter.” In this case, Justice Madrama let down his senior brother and missed an opportunity to arbitrate in this dispute when it was still live.
So with all the above fight, resilience and prudence in vain on the part of Mabirizi, would anyone be wrong to conclude that the Judiciary is at the center of nurturing mob rule and rule by law and opposed to rule of law? But maybe this is also the time for Ugandans to put context to Chief Justice Owiny Dollo’s threat that anyone who attacks one judicial officer attacks the entire judiciary and so will be dealt with decisively. Was Mabirizi’s crime then attacking Ssekaana for being chosen as his potential judge yet he was an accused on his part? Or better still, did the judiciary therefore set Justice Ssekaana to get his sweet revenge against a man who was bringing ‘kamanyiiro’ on him just to send a clear warning to the rest of us, Ugandans? Only time will tell.
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