By Isaac K. Ssemakadde
When the justice system abandoned former OPM accountant accused of corruption
Although I have great respect for Ernest Kalibbala, a university lecturer and vice president of Uganda Law Society and my former boss at AF Mpanga Advocates, I was disappointed to learn from press reports in December 2015 that he had improperly abandoned his allegedly poverty-stricken client, Geoffrey Kazinda, 45, at the Anti Corruption Court in Kololo where he was defending him against 18 new charges that include abuse of office and causing financial loss of more than Shs316 million. Kazinda allegedly committed the offences while he worked as the accountant general in the Office of the Prime Minister (OPM) in Kampala.
According to Rule 3 of the Advocates (Professional Conduct) Regulations, an advocate must see the client’s case through to conclusion unless discharged by the client or “duly permitted” by the court to withdraw. This rule is intended to maintain people’s trust that their lawyers will stick with them through thick and thin.
It appears, however, that Kalibbala failed to comply with the rule. He did not give his client, the court and the prosecutor sufficient notice of his intention to withdraw. He also failed to obtain permission from the court in a proper manner.
According to press reports, before the case came up for further hearing on December 8, 2015, Kalibbala met with the trial judge, Lawrence Gidudu, for about one hour behind closed doors in the judge’s private chambers and narrated “how he was suffering” as Kazinda’s advocate.
Subsequently, the judge entered the open court and immediately rebuked Kazinda for being “a bad man” who had refused to honour fee agreements with Kalibbala (who was not present) and other defence lawyers who had previously quit the Kazinda case, including criminal law giant MacDusman Kabega, his partner Tom Magezi, and city lawyer Richard Omongole.
It is indisputably unethical for an advocate to directly inform the judge that his client is a liar or a cheat, as Justice Gidudu appears to have understood what Kalibbala said in camera.
Withdrawal must be accomplished with due regard for the interests of the client, but Kazinda was neither given an adjournment to organise legal representation nor advised to apply for legal aid in order to reduce the consequences of his lawyer’s unjustifiable withdrawal.
With due respect, the trial judge embarrassed the judiciary by allowing Kalibbala to present his application for withdrawal from the Kazinda case when his client, the prosecutor, the public and the media were excluded and the doors of the judge’s chambers closed.
These in-camera proceedings not only violated the principle of “open justice” which promotes transparency and accountability of the judiciary, but also raised serious concerns about confidentiality and the fiduciary duty that lawyers have to their clients – even the alleged bad ones.
Did Kazinda’s lawyer not tarnish the image of his client or compromise the confidential advocate-client relationship during the one-hour closed door meeting he had with the trial judge?
Criminal defence counsel secretly asking for the judge’s permission to withdraw from a case is tantamount to turning the client in.
Clearly, Kazinda was condemned both by his advocate and the trial court without being afforded a fair and public hearing.
The public needed to know the amount of the agreed-upon fees and the arrangements Kazinda had made with his lawyers for payment.
Failure to pay the entire agreed-upon fee does not necessarily mean that Kazinda is a liar or a cheat or that he had “disregarded a lawful agreement or obligation to his advocate” under Rule 3.
Wasn’t Kazinda required to pay manifestly excessive lawyers’ fees?
Before permitting Kalibbala to withdraw from the Kazinda case, Justice Gidudu was duty-bound to consider many factors, including the terms of the fee agreement, the level of the client’s compliance with the agreement, the sufficiency of notice to the client regarding consequences of non-payment, the length of time that the advocate had been involved in the case, the proximity of the trial date, and the availability of successor counsel. But he did not.
In light of the above flaws, I respectfully submit that Justice Gidudu displayed a lack of impartiality and failed to protect Kazinda’s interests from being adversely affected by the improper withdrawal of his counsel. The judge should therefore recuse himself from this case.
Isaac K. Ssemakadde is the CEO Legal Brains Trust, a Kampala-based human rights watchdog. firstname.lastname@example.org