The Chief Justice Alfonse Owiny Dollo has Wednesday given detailed reasons as to why he couldn’t recuse self from Hon. Robert Kyagulanyi alias Bobi Wine’s case challenging the January presidential election contrary to a request by Lawyer Male Mabirizi.
Mr. Mabirizi had applied to the Owiny Dollo led Supreme Court asking that the Chief Justice steps aside from hearing and determining the election dispute on account of his past relationship with President Yoweri Museveni, having been his lawyer in the 2006 Presidential election petition.
The controversial lawyer contended that that linkage automatically disqualified the Chief Justice from handling Bobi Wine’s case which has since been withdrawn and that it undermined his impartiality in the eyes of the public to adjudicate the dispute.
Mabirizi had further cited two meetings the Chief Justice had with the President – one, at the opening of the new Law year and another, at the commemoration of Janani Luwum’s day to buttress his application.
However, the Chief Justice explained that these meetings were official and done in his administrative capacity as the Chief Justice and that no reasonable person would impute partiality on him on account of the meetings.
In a robust 42 page defense of his reputation and image as an independent Judge, Mr. Justice Owiny Dollo found, first, that according to the law governing recusal of Judges, Lawyer Male Mabirizi did not possess any legal basis to ask for his recusal since he was not a party or an intervener in the presidential election petition.T
TheChief Justice suggested Bobi Wine or any of the other parties in the election petition should have asked for his recusal instead.
” … It is unmistakably clear that the locus to move court for the recusal of a judicial officer is exclusively vested in ‘any party to the proceedings.’ I am unable to appreciate how even with a most liberal construction of the provision in issue, one could extend this to grant locus to a person who is not a party to the suit or proceedings, however vigilant such a person is ” The Chief Justice ruled.
” It is therefore manifestly clear that only a presidential candidate has locus to challenge a presidential election outcome. This being so, it would be quite absurd that a person who has no locus under the law to challenge a presidential election outcome could nonetheless be permitted through the window to join the proceedings and contest the conduct thereof”
While acknowledging that indeed he was part of President Yoweri Museveni’s legal team that defended him in 2006 against an election court challenge mounted by Dr. Kizza Besigye, the Chief Justice ruled that that alone could not be basis to impute partiality on his judgement in a case where Mr. Museveni is a party.
The Chief Justice called for the understanding that Judges are selected from among lawyers who during the course of legal practice may work for different categories of people and therefore it would not be right to say judges are permanently barred from participating in cases involving their former clients.
” There is need to bear in mind that judges are part of a given society and have naturally at one time or another worked or associated with various members of society. As such any person asking a Judge for recusal must do more than merely allege bias founded on suspicion. There must be cogent evidence to satisfy the test for bias ” Justice Owiny Dollo said.
The Chief Justice, further, cited the length of time since 2006 when he worked for Mr. Museveni as a lawyer and 2021 when Bobi Wine filed his election petition.
He said: ” To allow to be bound by my past engagement with [ President Museveni] would not only be unfortunate but greatly absurd. I think the remoteness of the past engagement of 2006 from the present court process in 2021 balances with the need to ensure justice is seen to be done quite well in the mind of a reasonable person.
” To take the converse as the correct position would make judicial officers or any other person executing an adjudicatory function quite vulnerable to unfounded allegations of bias for which they would have to unfortunately recuse themselves .”