KAMPALA – City lawyer Male Mabirizi has petitioned the Chief Justice Alfonse Owiny-Dollo asking him to excuse himself from the presidential election petition filed by National Unity Platform-NUP president Robert Kyagulanyi.
Kyagulanyi, the first runners up wants court to invalidate the declaration of Museveni as president-elect of the January 14th election on grounds that it was not conducted in accordance with the principles laid down in the laws governing elections such as the Constitution, the Presidential Elections Act and the Electoral Commission Act. He cites intimidation of voters, heavy security deployment during election, and arrest of his agents among other factors for the petition.
Chief Justice Owiny-Dollo is to lead a panel of nine justices to hear the petition.
But Mabirizi says Owiny-Dollo’s earlier relationship as Museveni’s lawyer and the fact that he has held discussions with the same respondent after Kyagulanyi’s petition had been filed makes the Chief Justice’s presence on the panel “not only be illegal but also unacceptable under constitutional and fairness principle since justice must not only be done but must also be seen to be done.”
The other justices besides Owiny-Dollo are Dr Esther Kisaakye Kitimbo, Stella Arach-Amoko, Rubby Aweri Opio, Faith Essy Mwondha, Paul Kahaibale Mugamba, Ezekiel Muhanguzi, Percy Night Tuhaise, and Mike Chibita. They are expected to determine the case in mid-March.
ut arguing why Chief Justice Owiny-Dollo should not be part of the panel hearing the case, Mabirizi says he has information that the Chief Justice was a lawyer representing Museveni in 2006 when he was accused of similar misconduct in the presidential petition filed by Dr. Kizza Besigye who also challenged Museveni’s victory then.
Mabirizi says that he is informed that the Chief Justice recently met President Museveni at State House as Kyagulanyi’s petition is pending determination.
He says Owiny-Dollo’s participation in the case erodes the confidence not only in him but the entire judiciary because “judgment must be rooted in confidence and confidence is destroyed when right minded people go away thinking the judge was biased.”
Mabirizi refers to Legal Notice No.7 of 2019 which states that a judicial officer shall refrain from participating in any proceedings in which the impartiality of the judicial officer may reasonably be questioned.
Section one of the same notice further requires recusal “where a judicial officer has background information or experience such as the judicial officer’s prior work as a lawyer.”
Mabirizi says that if the Chief Justice continues sitting on the panel, he will no doubt be contravening the Constitutional principles laid down under Article 28(1) which talks about right to fair hearing and Article 44(C) which prohibits derogation from the enjoyment of particular human rights which include right to fair hearing.
He also adds Article 126 which provides for judicial power which is derived from the people and should be exercised by the courts in the name of the people and in conformity with law and with the values, norms and aspirations of the people and lastly Article 128 which provides for independence of the Constitution.
Mabirizi argues that the constitution “was made after several human sacrifices of our dear predecessors and brothers in the name of fairness as indicated in the preamble of the constitution and you will have abdicated your judicial oath”.
He adds that “It will not only be illegal but also unacceptable under constitutional and fairness principle since justice must not only be done but must also be seen to be done”
Mabirizi’s petition was received by the office of the Chief Justice on Friday 12th 2021 and a response is yet to be given.