When is an advocate not an advocate? The question has been raised in an application heard by the high court, Uganda, in a dispute related to elections held in that country earlier this year. The advocate concerned had commissioned an affidavit that formed the basis of the litigation, but the other side questioned whether the advocate was entitled to do so. It all came down to whether the advocate had renewed her annual practice certificate in time. If not, would the affidavit – and thus the petition – be valid?
Uganda’s high court has been extremely busy in August and September, but not with the cases you might expect. Every one of the nine decisions so far recorded for these two months has arisen from the elections held in Uganda earlier this year.
Not that the elections petitions always end up dealing with problems raised by the elections.
Take the case brought by Boroa Apama against Kania Obiga and the electoral commission. In a text book case of the biter bit, Apama’s petition challenges the nomination, election and declaration of Obiga as the duly elected MP for the Terego East constituency on the grounds that Obiga did not have the necessary minimum qualifications. But before long, however, the tables are turned, and there’s a serious question mark over whether the Apama petition has the minimum qualifications to satisfy the courts.
In his petition, Apama claims that Obiga ‘lacked the academic qualification of a minimum formal education of advanced level standard or its equivalent’. His problem was not the authenticity of the academic papers presented by Obiga before his nomination. It was, rather, whether Obiga was the ‘owner’ of these papers and Apama hoped that the court would agree to annul Obiga’s election and declare that he, Apama, was the winner.
However, Obiga’s legal team said they wanted to raise a prior objection, questioning the ‘competence of the petition’. The judge hearing the case, Boniface Wamala, explained that according to this preliminary objection, the affidavit on which the petition was founded was not ‘duly commissioned’. Thus, there was ‘no petition’ and the case would have to be thrown out.
In the end the answer to this tricky question came down to who may practice as an advocate in Uganda and what hurdles such a person had to jump.
The lawyer who commissioned the affidavit on which Apama’s case was based, was an advocate, Daisy Patience Bandaru. But did she have the right to commission the affidavit? According to Obiga, she did not. His legal team had checked with the chief registrar to find out whether Bandaru had obtained her practising certificate for the relevant year, and was informed that she had not.
The judge quoted the Advocates Act that said the registrar has to issue an annual practising certificate to every advocate whose name is on the roll and who applies for such a certificate. Though certificates are due for renewal from 31 December, the advocate has until 1 March to do so.
Without that certificate, an advocate may not practice and may not commission affidavits.
According to Obiga’s lawyers, the affidavit was commissioned by Bandaru on 13 March 2021. However, on 30 March the chief registrar replied to a letter of inquiry from them and confirmed that Bandaru had last renewed her certificate in 2020. She had subsequently renewed her certificate in June 2021. This meant that when she commissioned Apama’s affidavit her certificate was not valid, she had ‘ceased to practise’ and her power to commission had also ceased.
The judge quoted an earlier decision of the appeal court which held that if an advocate fails in any year to obtain a practising certificate ‘he ceases and stops to act as an advocate and therefore his commission ceases in terms of the Commissioner for Oaths (Advocates) Act.’ Further, that court noted that ‘documents filed by an advocate without a practising certificate beyond the 1st March of any given year are invalid.’
Apama’s lawyers claimed that this approach had been supplanted by a ‘more progressive interpretation’ and urged the court to follow that route. According to these lawyers, given the importance of election matters, ‘technicalities’ such as renewing a practice licence should be ignored ‘in preference to substantive justice’. All that needed to be done, according to Apama’s legal team, was for the court hearing the case to direct that the affidavit be ‘re-commissioned in the interest of justice’.
But Wamala said he was not persuaded by the authorities quoted as ‘more progressive’.
The cumulative effect of the decisions Wamala accepted as binding on him, was that an affidavit ‘commissioned by an advocate who is not in possession of a valid practising certificate is invalid.’
The argument by Apama’s legal team that the expiry of a certificate ‘does not amount to ceasing or stopping to practice is not a correct construction of the law in issue’.
‘The reference to “practice” under both the Commissioner of Oaths (Advocates) Act and the Advocates Act … means to “practice lawfully”. Practising without a practising certificate is unlawful and in fact a criminal offence.’
There was a ‘window’ in which steps could be taken to fix the problem by having another affidavit properly commissioned and filed. But that option only existed where it was ‘lawfully available’ and where the relevant party ‘applies to the court for leave to take such a step before the issue is brought before the court for consideration.’
In Apama’s case the ‘window’ did not appear to be available, said the court. ‘And in any case, upon realising that the impugned affidavit was commissioned by an advocate without a practising certificate, the petitioner never took any step to rectify the error.’
There was another problem in the way of re-commissioning the affidavit: rectifying the affidavit would mean bringing a new petition since the old petition had to fall away. But a new petition would be out of time, given the time-table in the election legislation. ‘This court has no residual power to extend the time within which to bring the petition since [that] is fixed by an Act of Parliament.’
Given these problems, the affidavit accompanying the petition was invalid ‘for having been commissioned by an advocate who was not in possession of a valid praticising certificate and had thus ceased to practice as an advocate at the time.’ No valid petition was thus before the court and it had to be struck out.
In addition, Apama would have to carry the costs of the matter.
He had the option of ‘taking disciplinary proceedings against his advocate, who … was not in possession of a valid practising certificate, to recover any loss and costs incurred.’ Otherwise Apama himself would be liable.