The High court Civil division was a scene of drama on Tuesday evening as Male Mabirizi exchanged words with justice Musa Ssekaana.
Trouble started when Justice Musa Sekaana was accused of conflict of interest after he ruled that EC chairman Justice Simon Byabakama cannot be summoned to defend himself in a case where he is accused of illegally holding office, alleging that he has not yet resigned his role as Supreme Court judge.
The case was filed by lawyer Male Mabirizi and the People’s Government represented by Erias Lukwago.
“The exercise of discretion must be exercised with caution since it may defeat the policy considerations for a special procedure or judicial review matters. The intended cross examination if granted would defeat the expeditions disposal intended under the rules,” the judge held.
But this did not go down well with Mabirizi, who pointed out that Justice Sekaana ought to excuse himself from the case since he had earlier in his career represented EC as it’s lawyer.
“I have heard enough of your bias and this appears as if I am before Byabakama or Rwakoojo’s lawyer, please excuse yourself from this case,” Mr Mabirizi said.
Mabirizi first told the judge that he wasn’t ready to receive the ruling. Despite this, Ssekaana went ahead and delivered his ruling, in which he declined to summon Byabakama.
He argued that the applicants failed to make a case for his court to exercise its discretion to summon Byabakama to appear for cross examination.
Justice Ssekaana also argued that granting the applicant’s prayers to cross-examine the respondent, would defeat the provision for expediting the disposal of the matter under the rules governing applications filed for judicial review.
After delivering his verdict, Ssekaana allowed Mabirizi to speak out what he called “[the] rubbish [you] had earlier wanted to raise”.
In his response, Mabirizi asked the judge to step out of the case, saying he worked as a lawyer for the Electoral Commission since 2001, which cast doubt on his impartiality. He also noted that Ssekaana’s conduct and discipline as a judge are wanting.
Mabirizi listed a number of cases where Ssekaana represented the Electoral Commission, which the judge conceded. He cited the case when Kabagambe Asol sued the Electoral Commission for nominating Dr Kizza Besigye for the 2006 presidential elections while in prison and the petition of Muwanga Lutaya against Kenneth Lubogo.
Mabirizi noted that since Ssekaana had conceded to have represented the Commission, he had made his case easy. He also said that he wasn’t surprised that the judge had told him to “speak [my] rubbish” as he made his arguments. Mabirizi told the judge that it doesn’t make sense for him to appear before a judge who favours the Electoral Commission. Ssekaana wouldn’t have any of this.
He told Mabirizi that he could order for his arrest for turning his court like a Local Council one court by speaking what he called “rubbish”.
“We are human beings, you can’t play for the gallery and then think everyone is willing to listen to the same nonsense”, said Ssekaana. The tension turned even more tense as the judge called for the court orderly to arrest Mabirizi.
He later directed Mabirizi to wrap up his submissions, arguing that it was raining and their homes were reportedly flooding. Senior lawyers who were in court like Kiryowa Kiwanuka and Erias Lukwago apologized to the judge for Mabirizi’s conduct, arguing that he isn’t an advocate. Lukwago later asked Ssekaana to assure them of justice, saying his court environment hadn’t promised the same because of his harsh tone.
Ssekana asked the parties to file written submissions to allow another judge take over the matter to read and make his verdict. This matter arose from consolidated cases filed by 14 leaders of the People’s Government and Mabirizi seeking court to issue a permanent injunction restraining Byabakama from holding as the chairperson of the Electoral Commission before he resigns from the Appellant court.
The People’s Government also want court to order that the Electoral Commission secretary, Sam Rwakojo to vacate office, saying his contract expired in September and the same can’t be renewed twice in as far as the rules governing the Commission are concerned.
