Museveni keeps Owiny-Dollo guessing over Justice Kisaakye

Ever since the collapse of the Presidential election petition of 2021, there has been a growing unease within the top levels of judiciary due to the legal stalemate that pits Chief Justice Alfonse Owiny-Dollo against Supreme court Justice Esther Kisaakye.

In recent weeks, it has also sucked in the Judicial Service Commission (JSC) and the Constitutional court. Sources have told The Observer that the two institutions’ handling of the different petitions before them has further raised concerns about their impartiality and integrity.

On April 6, 2021, the chief justice petition dragged Justice Kisaakye to JSC on grounds of bringing the court into disrepute following the unceremonious scenes at the Supreme court when she was delivering her dissenting ruling on the presidential petition.

On February 8, 2023, JSC recommended to President Museveni to remove Justice Kisaakye from the office of the Supreme court to allow investigations into her alleged misconduct.

“The commission is of the considered opinion that a prima facie case has been established through this inquiry of probable grounds of misbehaviour or misconduct, on the part of Hon Lady Justice Dr Kisaakye,” reads part of the report.

“Justice Kisaakye, being a Justice of the Supreme court, the commission, recommends that the President appoints a tribunal, pursuant to Article 144 (2) (b), 3 and 4 of the Constitution, for the question of the removal of Justice Kisaakye, from office, to be investigated.”

The decision has also attracted international condemnation from bodies such as the International Bar Association’s Human Rights Institute (IBAHRI) and the Commonwealth Lawyers Association, which have termed JSC’s recommendation as persecution of Justice Kisaakye.

According to Justice Kisaakye’s lawyer Peter Walubiri, it was not proper for JSC to recommend Justice Kisaakye’s removal without full disclosure of the charges against her.

“What we have so far in the documents are ‘possible charges’ and you cannot proceed on anything without real charges,” he said.

Meanwhile, Justice Kisaakye also sued the chief justice last year along with JSC and others in the Constitutional court for continued witch-hunt against her. A top judicial official who preferred anonymity told The Observer that ever since the fallout between the chief justice and Justice Kisaakye, there is palpable tension at the Supreme court and that many junior staff are suspicious of one another when it comes to handling information.

“Even at the Constitutional court, some justices do not want to be part of the coram that will hear Justice Kisaakye’s case due to the sensitivity of the matters raised.”

The Observer understands there have been back-and-forth efforts to reconcile the two but that may have hit a dead end following JSC’s recommendation to throw Kisaakye under the bus.

FINAL STRAW

Before the recommendation, the JSC had summoned Justice Kisaakye for an interface a day earlier. According to a source who attended the meeting at Serena Kigo hotel, Justice Kisaakye asked for clarity about the interface and challenged the proceedings of the JSC, citing the lack of provision of the law in which it was being conducted.

“She asked the JSC to pronounce itself whether it was part of a disciplinary hearing or part of a general inquiry. She also asked to know how the interface will impact on her suit before the Constitutional court,” the source said.

According to Walubiri, the interface looked like some sort of hearing.

“The regulations and the law regarding hearings had not been complied with. We pointed out to the commission about the challenges of proceeding with the interface in the form they were doing it, including selectively inviting the media to cover some parts and then lock them out later,” he said.

At some point, according to our source, Justice Kisaakye said she was unable to continue to participate in the interface. At this point, Justice Benjamin Kabiito, the JSC chairperson, asked Justice Kisaakye and her lawyer to step out for five minutes to allow the JSC deliberate on the way forward. But before they could move out, he said the commission would continue with its work. Shortly afterwards, JSC separately met the chief justice, something Walubiri found queer.

“The actions of JSC were unusual because there was no need to meet the chief justice who had already submitted his complaint in writing to JSC,” he said.

The source adds that JSC rushed to recommend her removal the following day after being tipped off that Justice Kisaakye intended to petition the Constitutional court for an injunction to stop the JSC proceedings.

“That preempted Dr Kisaakye’s petition and brought the JSC matter to an abrupt end,” says the source.

CONCERN ON CONSTITUTIONAL COURT DELAY

Meanwhile, a source at the Constitutional court has also told The Observer that it will take a miracle to have Justice Kisaakye’s petition heard. Whereas she filed her petition in October last year, up to now it has not been cause-listed. The source added that both parties agreed in January that the case would be cause-listed in March but it was not included and neither is it on the April list.

“It is clear the [Constitutional court] justices do not want to handle it for obvious reasons but the main issue is that it hearing the case is likely to lay bare the embarrassing rot and intrigue in the operations of the Supreme court,” said the source. “It will take a brave justice to agree to be on the panel hearing that case due to the risk involved.”

Indeed, some legal experts have expressed concern that the dispute could harm the reputation of the whole judiciary and erode its public trust.

The situation has also attracted the attention of the Uganda Law Society, whose president Bernard Oundo has called for an urgent resolution of the conflict.

“ULS urges the two judges to resolve their differences in a manner that upholds the integrity of the judiciary and ensures that justice is done,” he said.

WAY FORWARD

President Museveni has so far ignored JSC’s recommendation but sources who preferred anonymity claim Attorney General Kiryowa Kiwanuka is pushing to have Dr Kisaakye removed. He even blasted the international bodies for meddling in issues out of their jurisdiction.

“The president is a master at keeping his cards to the chest to create uncertainty. He loves it when everyone is unsure of his next move. On this issue, he is likely to ignore it and leave everyone guessing and fighting to win his loyalty,” said the source.

At 67, Owiny-Dollo has just three more years to serve as chief justice while Justice Kisaakye, the most senior member of the Supreme court, still has seven more years at the highest court.