Kampala, Uganda | THE INDEPENDENT | Jailed lawyer Male Mabirizi has asked the East African Court of Justice to nullify a decision that denied him temporary release, saying one of the Justices who presided over the matter is biased because he is a member of the ruling National Resistance Movement which he (Mabirizi) opposes.
In his appeal, Mabirizi argues that Justice Muzamiru Mutangula Kibeedi is partisan and a member of NRM, whose rule he opposes and that this Judge in 2018, appeared at KFM radio political show supporting amendment of the Constitution to remove presidential age limits, which was a subject of his constitutional petition that opposed the amendment.
The appeal arises from a decision made by the Justices on August 19th 2022, in which the Court of Appeal Justices Mutangula Kibeedi, Irene Mulyagonja, and Eva Luswata, dismissed the applications where Mabirizi wanted to be released temporarily.
The application was dismissed on grounds that Mabirizi was committed for criminal contempt which they say is an offense that is subject to the inherent jurisdiction of the court that found him guilty. They advised Mabirizi to go back to High Court which convicted him for contempt and sent him to jail for 18 months to seek forgiveness.
By the time he sought to be released temporarily, Mabirizi had on February 15, 2022 been found guilty by High Court Civil Division Judge Musa Ssekaana, saying he had continued to use his social media platforms to attack judicial officers.
Ssekaana reasoned that this was in contempt of another order that he had made on January 27, 2022, directing Mabirizi to pay a compensation of 300 million shillings – the first time he was found guilty of attacking judicial officers and issued a strong warning against him to desist from the same.
But now after the dismissal of his applications in the Court of Appeal, Mabirizi argues before the EA court that the decision is unlawful and infringes on fundamental and operational principles enshrined in the Community as well as the principles and provisions of the protocol for establishment of the Common Market.
Mabirizi says for instance, it was unlawful for the Court of Appeal to determine the case after six months, since their filing was in February and March 2022, amid an application for interim and ex parte release from prison, and the decision was delivered without due notice to him thereby by making him incapable to attend the ruling delivery.
He also notes that there was failure to avail him copies of the rulings given in his absence as a prisoner, and there was also participation of Justices whom he has cases against.
He gives examples of Lady Justice Mulyagonja who is the accused person in the case filed in April 2022, before Makindye Chief Magistrates Court where Mabirizi accuses her of suspending his non derogable right to fair hearing.
Mabirizi also accuses the third member of the panel, Justice Eva Luswata for presiding over the matter yet knowing that her appointment as a Judge in that court is being challenged.
According to Mabirizi, these Justices referred to him as a contemnor in their decision yet the decisions to that effect were under challenge and he says, they are therefore biased and favoring the government/Attorney General who is the respondent in the case.
Mabirizi challenges the ‘finding’ that the applications were made to intimidate the Attorney General and to exert pressure on him to agree that he be released from prison.
“The applicant is a vexatious litigant who applies for refusal of judicial officers and complains against them in Judicial Service Commission. The Uganda Chief Justice should make rules to stop the applicant from suing,” Mabirizi quoted the Court of Appeal ruling.
The evidence before court in form of points of law which Mabirizi will rely on show that Uganda is a signatory to the November 30th, 1999 Treaty for establishment of East African Community and the November 20th, 2009 Common Market protocol under which, she is mandated to observe good governance including adherence to the principles of rule of law, democracy and respect of universality acceptable standards of human rights.
He adds that Uganda maintains a constitution which states that judicial positions are held in trust for the people, people are sovereign, makes the right to fair hearing non derogable, provides for equality before the law, requires court to exercise judicial power in the name of the people under the norma, and aspirations of the people without undue regard to technicalities, requires judicial officers to act independently and requires all laws to comply with it.
Mabirizi now wants the East African Court to declare that the processes, actions and decisions made by the Court of Appeal were unlawful and go ahead to nullify them.
He also wants the court to issue a permanent injunction restraining the government and the State from giving legal effect to the decision, to be awarded general, aggravated and exemplary damages for mental anguish and disturbance, plus costs of the case.
The East African Court of Justice is yet to summon the Attorney General to respond.