(SOURCE: Judiciary Press Release)
By Markson Omagor
Justice Dr. Esther Kisaakye went against the rule of practice by hiding her dissenting ruling from the Chief Justice and colleagues, the Judiciary has come out to explain.
In a presser dated 22nd March 2021 by the Judiciary spokesperson, Jameson Karemani and senior communications official, Solomon Muyita, Justice Kisaakye was never stopped from making her ruling.
Below is the Judiciary press release;
On the morning of March 18, the Chief Justice and the other Justices asked Dr. Esther Kisaakye to circulate to them copies of her ruling for perusal, as is the Court’s rule of practice. She told her colleagues that her ruling was only partly typed and partly in handwritten form. The Chief Justice then decided that they go to Court to deliver the rulings that were ready.
Justices; Rubby Aweri-Opio, Paul Mugamba and Ezekiel Muhanguzi delivered the Court’s detailed rulings, which essentially allowed the petitioner’s application to withdraw the petition with orders that each of the parties bears their own costs.
After the three justices’ rulings, the Chief Justice adjourned the Court for a 30-minute health break. The Court was to reconvene at 1:30pm for Justice Dr. Kisaakye to read her dissenting ruling in the matter.
During the health break, the Chief Justice and the other Justices waited for Justice Kisaakye to circulate her ruling. She, however, stayed in her chambers up to 2pm.
Upon her return to the boardroom, she told the Chief Justice and the other Justices that she would not circulate her ruling, ready for delivery. Each of the Justices then told her that they would not go back to Court unless they have read her ruling.
At this point, the Chief Justice advised Justice Kisaakye to circulate her ruling for the Justices to peruse, and then she would deliver the ruling on another day early next week in the presence of her colleagues. She, however, stormed out of the boardroom.
The Chief Justice then directed the Registry to collect all the Judges files from the Court (tent) and bring them back to the court building since they were not returning to court. He also summoned the Attorney General to his Chambers with all the lawyers representing all the parties to brief them that one of the rulings was not ready and that the Court would reconvene on another date next week.
Unknown to the Chief Justice and the other Justices, Justice Kisaakye had proceeded to the Courtroom alone and read her ruling in the presence of a few advocates for the petitioner and the media.
No one tried to gag her
The Judiciary also denied claims that the Chief Justice tried to gag Kisaakye from speaking or vet her ruling before she could deliver it.
“It is well known that the Supreme Court Justices respect each other’s independence in dispensing their duties as a panel and to own all their decisions as a Court. However, the rule which is practiced the world over is that Justices share their judgments whether they are dissenting or concurring with each other,” the statement noted.
The Chief Justice has always reiterated the importance of respecting the individual judicial officers’ independence and that of the institution. The unfortunate misunderstanding in the Supreme Court, which has necessitated this Press Release, will certainly be resolved,” it further said.
What was in Kisaakye’s dissenting ruling on Kyagulanyi
Kyagulanyi petitioned the Supreme Court to challenge President Museveni’s victory in the presidential elections. At the start of the petition hearing, Kyagulanyi first filed an application seeking to be given more time to amend his petition and introduce new grounds. He filed another seeking to file additional affidavits and another seeking to withdraw the whole petition.
Kyagulanyi argued that there were unusual circumstances including the fact that his lawyers were operating mobile law firms due to insecurity and fears that state operatives may steal the evidence. He also argued that state operatives seized their political party offices which made it difficult for him to file relevant affidavits and evidence in support of his petition on time.
The two applications were dismissed by the eight Justices led by Chief Justice Alfonse Owiny-Dollo on grounds that a presidential election petition cannot be amended due to its strict timelines within which it should be determined.
In her dissenting judgment read to Kyagulanyi’s lawyers, Justice Kisakye said that the reasons advanced by Kyagulanyi were more than unusual circumstances and therefore his applications should have all been allowed.
She noted that it was not right for the Attorney General to argue the way he did on the strict timelines because the issue of amending petitions has happened before in the presidential election petition of Amama Mbabazi and therefore it cannot be unlawful.
She added that although the extension to file additional evidence was going to have an impact on the roadmap of court, the respondents who were the majority opted to ignore the fact that those provisions were enacted and the constitution amended.
But to Kisakye, whereas the law says that the matter should be determined within 45 days from the date of filing, this requirement didn’t impose on the Supreme Court the duty to ignore the unconstitutional and unlawful acts as declared by the High Court to the detriment of Kyagulanyi.
“The restrictions on the movements of the applicant as pleaded in his affidavit and as confirmed by High Court more than constituted the special circumstances which were envisaged under rule 17 of the Presidential Election Rules,” she said. Kisakye added the rest of the Justices should have allowed the applicant to file additional evidence which was ready on the morning of February 15, 2021, when the deadline was on February 14th 2021.
Court heard that the fact that the evidence was ready by February 14 and the country is under curfew, coupled with the siege of NUP offices, the shutdown of the internet for five days and Kyagulanyi’s house arrest, it was impossible that the time was sufficient for him to do all that was required.
She added that there is a principle that the mistake made by the lawyers should not be blamed on his client like the majority of the Justices did yet Kyagulanyi had already lost ten of the fifteen days.
“The applicant’s counsel was not able to deliver all the evidence in the time prescribed for a variety of reasons some of which were submitted on by counsel Sseggona. By the majority attributing the mistakes of counsel to the client, the court was reversing its decisions without giving reasons,” said Kisakye.
On the issue of Kyagulanyi’s witnesses being arrested by the state, Justice Kisakye dismissed the arguments by the respondents saying that he should have brought evidence of the list on who was arrested and taken where and by who.
She noted that the argument lacked merit because Kyagulanyi knew who exactly were his witnesses and where they were and that the respondents were talking about matters that they didn’t know about.
“The first respondent is the incumbent president, He has been in power for 35 years with an established party structure which is in place and which has not suffered any disruptions or closures as were suffered by the applicant’s party at the expense of the state organs,” said Kisakye.
According to her, the Electoral Commission and Attorney General also have nationwide offices throughout the country and it didn’t make any sense when they said that Kyagulanyi’s witnesses should have been in Kampala for them to file their responses to additional evidence he wanted to file.
Since the application for the withdrawal was consented to, Kisakye said she was not going to say much about it. She noted that what Kyagulanyi went through was unconstitutional and in the interest of justice and fairness, Museveni, Electoral Commission and Attorney General shouldn’t have asked for costs.