What was meant to be the end of a high-profile political case intended to challenge the outcome of Uganda’s national elections earlier this year turned into something even more astonishing late this week: a senior member of the country’s Supreme Court claimed that Chief Justice Alfonse Owiny-Dollo had tried to gag her and stop her reading her minority decision in the matter until he had vetted her ruling. Justice Esther Kisakye went on to say that the CJ had used ‘barbaric methods’ in dealing with the matter and that he had given her unconstitutional orders that she felt she could not obey.
This week saw an unparalleled drama play out in Uganda’s supreme court. Now, lawyers and members of the public are waiting for clarification by the country’s new Chief Justice, Alfonse Owiny-Dollo, the jurist who followed former Chief Justice Bart Katureebe, after having been appointed seven months ago.
In particular, they will be wanting to know his response to a claim by a colleague on the Supreme Court, Justice Esther Kisakye, made from her seat on the court, that he had refused to allow her to read her minority, dissenting opinion in a high-profile political matter, and that he said she could read it at a later date after the other members of the court had ‘debated’ its contents.
Justice Kisakye also said that she had been ‘gagged’ by the Chief Justice, that he had acted constitutionally in refusing to allow her to present her decision, and that in view of her judicial oath of office, she felt obliged to read her judgment, despite the Chief Justice telling her that she was not allowed to do so.
So far there has been no word from the Chief Justice in reaction to the widely-published comments by Justice Kisakye.
Journalists and others who attended the supreme court sitting on Thursday first heard the court explaining the basis on which opposition leader, Robert Kyagulanyi Ssentamu, more popularly known as Bobi Wine, was being allowed to withdraw his petition testing the outcome of Uganda’s January 2021 elections. The court also explained the decision not to award costs against him.
The majority judgment is not yet available in written form, but the court reasoned that awarding costs against Ssentamu would have a chilling effect and could discourage future presidential petitions.
However, the significant outcome of that matter was almost immediately overshadowed by the bizarre development that saw Justice Kisakye sitting on her own, all the other members of the court, along with lawyers representing some of the parties in the matter, having left.
She is heard, on camera, referring to a recess called by the court at the end of the reading of their majority decision. She said that when they gathered after the recess, she was informed, to her surprise, that she was not to read her ruling. She said she was told that this was because she had not circulated her ruling to the other members of the court. She said she responded to this by saying that the decisions had already been made and were well known to all the judges. What was contained in the written judgments were merely the reasons for the decisions.
She said while it was good practice for members of the court to circulate their draft rulings, there was no law that required it. ‘I would have loved to have circulated my draft to my colleagues before’, but as was made clear in the majority decision, the constitution required that rulings had to be finalised within 45 days and, she implied, there had not been time to circulate her rulings within that timeframe. ‘Nevertheless, the whole court was aware of my decisions in the three applications that were called today. So I am very surprised that the Chief Justice of Uganda has chosen to use barbaric means and to use his powers in the manner that he has chosen.’
She said the CJ had told her that she could only read her decision on a later date that he would appoint, and after ‘he and the other members of the court had vetted – had probably vetted – my ruling’.
‘I found that order unconstitutional and I chose to disobey it. When I was appointed a judge of this court, in 2009, I swore to uphold the constitution of Uganda. I also took the judicial oath, and I am acting based on those undertakings I made. I felt it my constitutional duty to disobey the orders – the unlawful orders – of the Chief Justice, fulfil my duty as a member of this quorum, and deliver my decision within the 45 days that are required under [the constitution].
She said, ‘I am seated her today to give my reasons, my ruling. … I instructed my staff to put my ruling here [indicating her place on the bench].’ However, it appeared her file had been ‘confiscated’, apparently on the orders of the CJ.
She said she would go back to the court building to recover her file and would come back ‘and read my ruling today, as scheduled’.
After she returned with a copy of her decision, she found the court room closed but found a way in. Sitting alone on the bench, surrounded by the empty seats previously occupied by her colleagues, her isolation was emphasised by the absence of the sound system - it had been disconnected and all the electricity was switched off.
Before she began reading her ruling, she asked the lawyers who had remained in court, to introduce themselves and say who they represented.
Uganda media quote Solomon Muyita, 'judiciary spokesperson' as saying that the CJ had asked Justice Kisakye ‘to share’ but that she had failed to do so. Muyita added that the situation would be resolved 'internally' via the 'judiciary administration'.
* Justice Kisakye is a very senior member of the Supreme Court, having been appointed to that bench in July 2009. She qualified locally as a lawyer but then obtained a Master’s degree in Women’s Rights from Georgetown University Law Centre in Washington DC. This was followed by a doctorate in law from the American University, also in Washington DC. She is also prominent in organisations of women judicial leaders.