Court dismisses lawyer Mabirizi’s case against Mao

Kampala, Uganda | THE INDEPENDENT | Entebbe Chief Magistrate Stella Maris Amabilis has dismissed a private suit instituted by jailed city lawyer Male Mabirizi, against the Democratic Party president Norbert Mao, and his Secretary General Gerald Siranda.

Mabirizi dragged the duo to court on charges of being a common nuisance, disobedience of statutory duty, and conspiracy to defraud by seeking a lucrative ministerial appointment as President General of the Democratic Party after the expiry of his term.

It came days after President Yoweri Museveni and Mao signed a cooperation agreement at State House Entebbe on July 22nd, 2022 as leaders of the ruling National Resistance Movement-NRM Party and Democratic Party respectively.

The agreement provided for the appointment of Mao as the Justice and Constitutional Affairs Minister. The two leaders also agreed that NRM would support the DP candidate for the East African Legislative Assembly-EALA elections. This prompted Mabirizi to institute a private suit against the duo.

On Friday, court dismissed the application on grounds that Stephen Ssemakula, the chairman of Nsamizi/State House sub ward, dismissed Mabirizi’s allegations that Mao’s ministerial appointment “caused common nuisance contrary to Article 160 (1) of the Penal Code Act as false. Section 42 of the Magistrates Court Act, 1971 provides that any person other than a public prosecutor and police officer can institute criminal proceedings (files complaint) in court.

However, the magistrate is required to inquire into the alleged offense and among others consult the local chief (leader) of the area where the complaint arose and put on record the gist of the consultation. If the complainant submits a letter from the local chief in support of the complaint, the magistrate may simply put the letter on record.

However, if the magistrate is convinced that the offense has been disclosed and is “not frivolous and vexatious”, then he or she is expected to “draw up and sign a formal charge containing a statement of the offense or offenses alleged to have been committed by the accused.” Amabilis dismissed Mabirizi’s complaint, saying that she was not satisfied that Mao and Siranda committed any offenses and the failure by the area chairperson to support the claims.

She noted that when consulted, Ssemakula said Article 113 (1) of the 1995 Constitution of Uganda empowers the President to appoint ministers. As a result, Ssemakula told Amabilis that Mao and Siranda “are not common nuisances and inconveniences in his area of jurisdiction and asked the court to dismiss the allegation.

Mabirizi has vowed to appeal Amabilis’ decision in the High Court. Amabilis made the decision shortly after she had declined to recuse herself from the case. She justified her decision, saying that she is not related to Mao as alleged by Mabirizi. Amabilis also explained that she also swore the judicial oath, which among others requires her to be impartial.

Mabirizi questioned Amabilis’ impartiality in handling his application to institute private criminal proceedings against Mao and asked her to clarify her relationship with the DP leader. He claimed that in 2020, Amabilis participated in securing bail for lawyer Nicholas Opiyo in the Anti-Corruption Court where he was charged with among others money laundering. “Bail was granted to Opiyo…Opiyo is a brother to Mao and unless otherwise clarified, you are a relative to Mao,” Mabirizi said. But Amabilis said she is not related to Mao and declined to recuse herself from the case.

The Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 require judicial officers to step down once they have a conflict of interest or lack impartiality. Amabilis added that she is required to be impartial and fair at all times and where impartiality is in question, she must recuse herself from handling the matter.

Mao and Siranda were no show in the court. They were however represented by Mukasa Mbidde, Eric Ssengendo, and Justine Ssemuyaba who opposed Mabirizi’s prayers that Amabilis should recuse herself from the case. Mbidde asked the court to dismiss the application, saying it was aimed at merely annoying Mao and Siranda who did not commit any offenses when they signed the NRM-DP agreement.

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