“Lukwago and Mabirizi are Politicking” – Judge Ssekaana Declines to Recuse Himself from EC Case

Lawyers Male Mabirizi (R) and Erias Lukwago.

Judge Musa Ssekaana of the High Court has Tuesday delivered a ruling declining to recuse himself in an application filed by lawyers Male Mabirizi and Erias Lukwago in a case against the Electoral Commission. The two applicants had requested that Judge Ssekaana recuses himself citing conflict of interest.

“The applicants have not persuaded this court why I should recuse myself. I find no merit in the application for my recusal,” Ssekaana said in his ruling.

“I will and do hereby dismiss the application for recusal. I shall proceed to determine this matter even if I was transferred to High Court of Uganda at Mbarara as Senior Resident Judge”.

Ssekana termed the application by Lukwago and Mabirizi as an attempt to gain some political capital out of a case, in the lead up to the 2021 elections.

The application was heard on December 17 last year arising from a case in which Mabirizi and Lukwago wanted court to summon Electoral Commission chairperson, justice Simon Byabakama for cross-examination.

The two wanted Byabakama examined on his defense in a suit where he was jointly sued with the attorney general for alleged failure to resign as a Court of Appeal judge following his appointment to the Commission.

In the consolidated cases filed by 14 leaders of the People’s Government and Mabirizi sought court to issue a permanent injunction restraining Byabakama from holding as the chairperson of the Electoral Commission before he resigns from the Appellant court.

They also wanted Electoral Commission secretary, Sam Rwakojo to vacate office, saying his contract had expired and the same can’t be renewed twice in as far as the rules governing the Commission are concerned.

Later, after a heated exchange between Mabirizi and Ssekaana (after the former said he wasn’t ready to receive the ruling), Mabirizi asked the trial judge to recuse himself since he has ever represented the 1st respondent (Electoral Commission).

At the time, Ssekaana conceded to that fact and admitted to having represented the Electoral Commission in different Election Petitions as an external lawyer since 2005.  

In a similar submission, Erias Lukwago said in the eyes of the public, Ssekaana would not be seen to have been impartial in the determination of the application.

In delivering his ruling on Tuesday, Ssekaana said that as a judge of a few years standing, he has observed the two applicants (Mabirizi and Lukwago) in court trying to allege bias at the onset of the trial as a way of intimidation and the same has been extended to other judges.

“I have tried to be a good judge and continue to aspire being a good or better judge and the allegations made by the likes of the applicants shall not make me a bad judge. After taking the judicial oath before assumption of office, it has always been at the back of mind and I have administered justice without fear or favor, ill will or affection,” he said.

The Judge argued that all judges/justices have had different background employment and this shall never mean that they remain with allegiance to such employment or collegiality.

He added that he has recently, as a judge, presided over cases of election petitions against Electoral Commission in which the EC has lost some of the cases before him “and such wild and baseless allegations of bias or impartiality were never raised”.

Ssekaana cited the example of other Judges and Justices who have previously been employed by Office of Directorate of Public Prosecution or Attorney General’s chambers or have held other positions in Government as Ministers or Public Servants.

“Should they recuse themselves since they were in employment of different government departments? We all took the judicial oath and it must be respected and we are all bound by the oath to administer justice to all persons alike without fear, favour and prejudice,” he added in his ruling.

“As a judge, I will never put myself in a situation where I cannot judge rightly. Therefore my conduct is always free from the appearance of impropriety. Fairness and impartiality are the fundamental qualities to be possessed by a judicial officer”.

He says application for recusal of a judicial officer is the occupational hazard every judicial officer must face in the course of her/his judicial career. Listening to an application for judge’s recusal and making a ruling on that application are some of the biggest challenges judges face in the course of their judicial duties, he says.

In making his case, the Judge also made reference to a ruling by the Supreme Court in Uganda Polybags Ltd v Development Finance Co. Ltd SCCiv App 2 of 2000.

The Supreme court ruled: “We would like to make it clear that litigants in this country have no right to choose which judicial officers should hear and determine their cases. All judicial officers take oath to administer justice to all manner of people impartially, and without fear, or favour or ill will. That oath must be respected.”

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