Contempt between lawyers and judges

What the fight between Justice Musa Sssekaana and lawyer Male Mabirizi reveals

Kampala, Uganda | IAN KATUSIIME | On Feb. 22, while appearing at the Court of Appeal, Male Mabirizi’s lawyer Isaac Ssemakadde, asked the presiding judge, Justice Christopher Madrama, to remain “judiciously alert”. Mabairizi, a litigious lawyer, is appealing against an 18-month jail sentence imposed on him by High Court Judge Musa Ssekaaana whom he was feuding with.

The sentence that Mabirizi is serving out at Kitalya Prison was handed to him on Jan. 27 after he was found guilty of contempt of court.  High Court Judge Musa Ssekaaana in his ruling ordered Mabirizi to pay a fine of Shs300 million and to desist from further attacking judicial officers.

Mabirizi has made a name for his litigation activism. Some of his suits sound frivolous; from suing opposition leader Robert Kyagulanyi over academic papers to petitioning court over illegal marriages, Mabirizi has filed everything but the kitchen sink in the courts of law. He has gone as far as the East African Court of Justice. In his activism he has riled judges and lawyers alike; a hero to some and a villain to others.

But now Mabirizi finds himself in a predicament where he has fallen afoul of the law. He is in the first few days of an 18-month sentence barring an appeal lifting his jail term; that appears to have pitted judges against lawyers in a simmering fight over “contempt of court”.

Mabirizi’s lawyer, Ssemakadde, told The Independent that the contempt of court charge thrown at his client is “fraught with anachronistic justification, procedures and overtures that achieve constitutionally repugnant outcomes because of its common law origins.”

Ssemakadde explained “We told the justice that the case aligns from a disturbingly peculiar context known as contempt of court.”

According to Ssemakadde, the modern day judge should uphold freedom of expression, be the pillar of tolerance, broadmindedness and plurality.  He stresses that a judge should be able to “permit the widest affront from the citizens.”

He argued, “Judicial power is sought from the people. It is their right. There has been a considerable thinning of the grounds for contempt of court.”

Ssemakadde says his appeal to Justice Izama Madrama of the Court of Appeal was to take a broad constitutional perspective of the case and lift restrictions on Mabirizi’s personal liberty. On whether the contempt of court has resulted into a fight between lawyers and judges, Ssemakadde has a nuanced view. “Some judges are overwhelmed. They do not understand the constitutional duties of a judge.”

Before his appearance at the Court of Appeal, Ssemakadde had already been summoned by Police to appear before the Criminal Investigations Directorate (CID) headquarters in Kibuli, Kampala in relation to alleged offensive communication against Justice Ssekaana.

Ssemadde has said Justice Ssekaana will soon get his “comeuppance.”

Mabirizi in his litany of applications and cases before Ugandan courts, he has had public tiffs with judges and he has revelled in the drama.

One of the judges Mabirizi has antagonised is Justice Ssekaana who is attached to the Civil Division of the High Court. The two have clashed in court before and Mabirizi has even accused the judge of being corrupt.

In December 2019, the two had an exchange in court where Mabirizi had filed an application with Erias Lukwago and wanted court to summon Electoral Commission Chairperson, Justice Simon Byabakama for cross examination.

According to records of the proceedings that day, Mabirizi first told Justice Ssekaana that he was not  ready to receive the ruling setting the stage for a confrontation. Ssekaana went ahead and delivered his ruling, in which he declined to summon Justice Byabakama.

After delivering his verdict, Justice Ssekaana allowed Mabirizi to speak out what he called “his rubbish he had earlier wanted to raise” according to a media report of that court session at the Civil Division of the High Court.

In his response, Mabirizi asked the judge to recuse himself from the case, saying Sekaana worked as a lawyer for Electoral Commission since 2001, which casts doubt on his impartiality. Mabirizi also reportedly said that Justice Ssekaana’s conduct and discipline as a judge were wanting.

“It’s personal,” a source close to Justice Ssekaana says of the relationships between the judge and the incarcerated lawyer. The source added that attacking judges cannot bode well for Mabirizi.

“Mabirizi has been running to the judiciary to fight his battles. Instead of cooperating with judges, he is now attacking them, it is a self-defeating strategy,” the source who preferred anonymity to discuss the case candidly said.

Mabirizi has provoked the wrath of judges by attacking them personally on social media and in his court submissions. In a recent instance in October last year,  where Mabirizi filed a case restraining Capital Market Authority (CMA) from extending the MTN IPO window, he attacked presiding judge, Justice Phillip Odoki as incompetent drawing the ire of the judge and that of the entire judiciary.

This prompted the Attorney General to file an application in court stating that Mabirizi was acting in contempt of court. The case culminated in a conviction last month and a police manhunt for the lawyer. Early last year, Mabirizi had a run in with the Chief Justice Owiny-Dollo during the presidential election petition filed by Robert Kyagulanyi where he asked the head of the bench to recuse himself from the case.

Mabirizi argued that he scrutinised the Chief Justice’s resume which showed that Owiny-Dollo was a lawyer representing Museveni in the 2006 presidential election filed by Dr. Kizza Besigye. The two petitions were filed on similar grounds.

However what raised the spectre of Mabirizi’s case at the height of the 2021 petition was when the lawyer said that the Chief Justice had recently met President Museveni at State House as Kyagulanyi’s petition awaited determination.

Mabirizi was not done. He added that Owiny-Dollo’s participation in the case eroded the confidence not only in him but the entire judiciary because “judgment must be rooted in confidence and confidence is destroyed when right minded people go away thinking the judge was biased.”

Amidst the heat of the presidential election petition and the charge from Mabirizi, Owiny-Dollo launched into a tirade saying no one had been invited to the court to file a petition. A year later, Mabirizi is directly in the eye of the storm rankling more members of the judiciary.

Wandera Ogalo, a legal analyst told The Independent at the time: “You cannot have running commentary on between every ping pong between an advocate and a judge.” He said not every exchange in court should be obsessed over.

The fight between Ssekaana and Mabirizi illuminates the larger dynamic of the tensions that exist between judges and lawyers in and outside court sessions. Lawyers say usually the arguments in court are usually about procedure and how to conduct the case but in the specific cases of those filed by Mabirizi, they say there is a lot of vendetta and unwarranted attack.

However judges have also been known to be hostile to lawyers in their courts where they do not want to be undermined or when they think that some cases could be troubling for their standing. In all cases, the Mabirizi and Ssekaana situation has stood out for several reasons.

Judicial solidarity

“The judge should have taken the high road,” a lawyer who did not want to be named told The Independent. “But I guess what he is doing is representative of the whole judiciary that has been looking for ways of getting him (Mabirizi).”

The lawyer says Mabirizi could even be in more jeopardy. “He has trodden on some big feet along the way. He added “Judiciary has to protect itself. He won’t get any justice.”

The lawyer who has been following Mabirizi’s cases says that Justice Ssekaana’s ruling has set a worrisome precedent on contempt of court where the slightest criticism of a judge can mean contempt of court.

He also said applications filed by Mabirizi have put judges in a bind. “Some cases are politically sensitive and can block a judicial officer’s promotion.” He adds that the abrasive style favoured by Mabirizi cannot win him any favours among judges. “You decide against him, he dresses you down in the media, goes on Facebook and even attacks you personally.”

He added that as Mabirizi starts out his sentence at Kitalya, he should know that there is a solidarity in the judiciary he cannot run roughshod over. “If he was decent, trust me they would not disturb him.”

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