By Haggai Matsiko
Mbabazi case exposes lawyers, judges
John Mary Mugisha aka JMM as his colleagues in legal practice call him, is a hulk of a man. Combine that with his grandiloquence and expertise in civil litigation and it is obvious why he has won many top cases. But on Jan.8, JMM suffered a setback. In an ironical twist, JMM who has in the past represented the NRM party and government was this time in the Constitutional Court to challenge it.
Flanked by colleagues Severino Twinobusingye and Fred Muwema, JMM wanted court to issue an interim injunction blocking the approval of new appointees at the NRM Secretariat and, implicitly, allow sacked former prime minister, Amama Mbabazi to remain in office.
It was an exercise in futility. Acting Chief Justice Stephen Kavuma, who is a former minister and cadre in the NRM government without a record of ruling in favour of those who oppose President Yoweri Museveni, was presiding.
JMM’s case stunk when whiffs of local politics wafted into the courtroom because the petitioner; Benjamin Alipanga, hails from the greater West Nile region which is also home to Youth MP Evelyn Anite who is credited with hammering the nail that buried Mbabazi’s ambitions to challenge Museveni for the NRM party leadership. Anite is from the northern West Nile district of Koboko and Alipanga from the southern district of Zombo; all on the edge of Uganda’s border with DR Congo.
But the frivolity around the case was doubled by Alipanga, a political nonentity, also insisting he is a supporter of the NRM and Museveni. So why was he suing his party? Is he a proxy for the embattled Mbabazi?
No, says Alipanga who is a successful clinical psychologist, university don, and PhD scholar at Ghent University in Belgium.
Alipanga told a local broadcaster, NTV, that his suit was intended to ensure that his party remains strong, is founded on democratic principles, and actually practices democratic principles. He denied being in Mbabazi’s camp.
“I have nothing against him personally, but I am not doing this for him either,” Alipanga said.
Mbabazi’s front men?
But allegations persist that Alipanga is in fact a Mbabazi Trojan horse. To build on these allegations, some point to the fact that in the court documents his lawyers have filed, Mbabazi’s sister-in-law, Hope Mwesigye, is acknowledged as one of the sources of information.
Even before representing Alipanga, JMM and Severino Twinobusingye, had already earned the label of `Mbabazi’s lawyers’. Severino Twinobusingye in 2013 said he had resigned his job at the Electoral Commission to defend Mbabazi, who is his MP as the lawyer comes from Kinkizi West, which Mbabazi represents in parliament.
When the former Secretary General was still in the president’s good books, the lawyers rubbed shoulders with President Museveni at State House. In one of the photos on Severino’s firm’s website, the pair is seen posing with the President, Mbabazi, and other lawyers.
The pair were also the main lawyers for the NRM in legal battles with the so-called rebel MPs—Theodere Sekikubo, Banabas Tinkasimire, Wilfred Niwagaba and Mohammad Nsereko.
But their most successful constitutional case was when they were awarded Shs.13 billion when they blocked parliament from forcing then Prime Minister Amama Mbabazi, and ministers Sam Kutesa and Hilary Onek to step aside following allegations the trio had taken bribes from foreign oil firms.
Severino told the media Mbabazi had distanced himself from that petition even declining to sign an affidavit. But Mbabazi was the main beneficiary of the case—as it cushioned him from a raging parliament.
As for the rebel MPs case, Mbabazi was directly involved. Sources told The Independent at the time that the former SG was the one who convinced President Museveni to sign affidavits in the legal battle intended to make the legislators lose their seats in parliament after they had been expelled from the party over indiscipline.
Justice Kavuma had been expected to rule on the case on Jan.7.
But as the court battle intensified in Kampala, a parallel sub-plot of operatic proportions was playing 40kms away, in State House Entebbe. The two events got even more entangled when Justice Kavuma on Jan.7 instead adjourned court to Jan.8 at 11:30 am and NRM seized the opportunity to hold a meeting of its National Executive Committee (NEC) that very morning to approve the contested new secretariat officials.
As the lawyers held their breath waiting for Kavuma’s ruling, many phone calls were made. At State House, the over 700 NEC delegates were busy approving the nominees. The NEC approved Justine Kasule Lumumba to replace Mbabazi as party secretary general, Richard Todwong as the deputy secretary general, Rosemary Namayanja as treasurer, Dr Kenneth Omona as deputy treasurer and Tanga Odoi as the party’s electoral commission chairman even before Kavuma could rule on the petition. They finished at 11:10 am.
Several minutes later, Kavuma announced that because of some challenges, he could not deliver his ruling at 11:30 as promised but would instead do so at 02:30 pm, a good three hours after the NEC had approved the nominees.
Justice Kavuma would later tell court that the petitioner had raised issues that deserved to be interpreted by a panel of judges in the same court.
He then ruled against Alipanga in favour of the NRM. Kavuma said, in his view, Alipanga stood to lose nothing if the interim order blocking NRM business was not given.
Justice Kavuma ruled: “I am not satisfied there will be losses suffered when I don’t grant the injunction. Nothing will change when I grant the injunction,” Kavuma ruled, “I am left with no doubt that the balance of convenience weighs in favour of the respondents.”
There had been indications the case was heading that direction, with some pointing at parallels with the case in which embattled Kampala Lord Mayor Elias Lukwago was challenging government over attempts to impeach him in 2013.
In the Lukwago case, Minister in Charge of Presidency, Frank Tumwebaze who also oversees Kampala Capital City Authority, together with the council hurriedly impeached Lukwago in the wee hours of the Nov.25 morning before the mayor’s associates could secure a court order blocking the move. Unknown to Tumwebaze, however, Lukwago had managed to secure a court order, which was ignored as the carrier, councillor Allan Sewanyana was thrown out of the KCCA premises. Justice Kavuma later overruled that court order.
In the Alipanga case, there was no violence. The actors, including the defense team of NRM diehard Kiwanuka Kiryowa, Enoch Barata, Martin Mwambusya, and Ahmed Kalule, executed their lines with symphonic precision.
JMM’s team immediately vowed to appeal against Justice Kavuma’s ruling.
But other legal minds told The Independent that Justice Kavuma was right; nothing will change even if an injunction is granted on appeal. The popular wisdom is that JMM and Co. are better off channelling their energy effectively in the main suit.
“They are better off pursuing the main petition, which has the net effect of undoing what the NRM has done,” Nicholas Opiyo told The Independent.
In the main suit, JMM’s team want court to quash the Evelyn Anite resolution passed by the NRM Parliamentary Caucus at Kyankwazi in February 2014 which declared President Museveni, the NRM sole candidate for the 2016 polls and effectively locked out Mbabazi. The petitioner also wants the Rosemary Seninde report ruled unconstitutional as well as the amendments to the NRM party constitution, which were passed by the party National Conference on December 14, 2014.
The amendments, among others, made Mbabazi’s former post of SG together with that of Deputy SG, Treasurer and Deputy Treasurer, appointive instead of elective.
But, as they argued before Kavuma, the defence lawyers will also be hammering away the fact that Alipanga’s demands have since been overtaken by events. The ruling NRM party lawyers also argue that Alipanga is on a mission to fail the NRM, and he should not be allowed to do so. Before going to the press, The Independent learnt Kiryowa’s team had already put in their defence ahead of the legal show down.
Whatever the outcome of the main suit, NRM insiders seem to believe that the tide is favour of Museveni. As for Mbabazi, who was just a few years ago considered Uganda’s defacto number two, political clout continues to ebb from the man who once claimed to be ahead in the queue to succeed Museveni. Many in the legal and political circles see no big value for Mbabazi in the suit being pursued by JMM, Severino Twinobusingye and Fred Muwema.
The former NRM Secretary General has not announced he will contest in the 2016 polls but his name is bandied around as a serious contender against President Museveni. It is the reason every action by actors seen as his proxies generates a lot of excitement.
A legal battle against the NRM is seen as intended to portray Mbabazi as a law abiding citizen, a victim of intrigue within the NRM. It is also designed to shine the spotlight on Museveni as manipulative. In that context, Mbabazi, some of his supporters hope, will sweep a sympathy vote.
The legal battle is also seen as the best way to keep Mbabazi in the news as the clock ticks towards the 2016 elections nominations. Some commentators claim that Mbabazi, who understands the inner workings of Museveni’s camp, is determined to delay announcing his intentions as much as possible to minimise incurring the wrath of the state’s brutal suppression of opposition. Several Mbabazi associates that The Independent has talked to insist Mbabazi continues to mobilise for his candidature in 2016.
They claim that Mbabazi is still weighing the cost of taking his bid public especially in the light of threats the state has a litany of cases intended to be thrown at him should he attempt to take on president Museveni. The Independent understands that Mbabazi’s proxies have kept active in, especially eastern and western Uganda.
On the flip side, some say the more Mbabazi has delayed to pronounce himself on his presidential ambitions ahead of 2016, the more he has hurt his chances. They say his candidature has lost the momentum it had built between late 2012 and 2014. Others note that the actions of Mbabazi’s proxies have also eaten into his support base.
A source within the National Executive Committee (NEC), who declined to be quoted, told The Independent that some of Mbabazi’s supporters were disappointed when on Dec.13 he threatened to sue the organ (NEC) over its decision to go ahead and approve the constitutional amendments but did not carry through.
“Some of the people who have always sympathised with him also expressed disappointment,” the official noted, “remember he had also told another party gathering that his daughter would sue if the party didn’t pay her the money she allegedly used in the compilation of the party register.”
They claim this failure to act, might have cost Mbabazi whose popularity within NEC was on Jan.8 tested and faltered. The coup de grace was executed by President Museveni himself. In a surprising manoeuvre, Museveni listed Mbabazi on those he wanted NEC to retain as members of the Central Executive Committee (CEC). Although NEC usually kowtows to Museveni, over 700-member organ this time rebelled and voted overwhelming for Justice Minister Kahinda Otafire.
Mbabazi and his wife Jacklyne Mbabazi did not even show up at the meeting, which some interpreted as a sign that the former party Secretary General has lost interest in mobilising from within the party. The speculation now is that Mbabazi is concentrating on mobilising through his proxies, to strike when campaigns begin.
Mike Mukula, who is the NRM Vice Chairman for Eastern Uganda and sits on both the CEC and NEC, warns Mbabazi not to attempt to take on Museveni and the entire NRM machinery.
“As you know I had also expressed interest,” Mukula told The Independent, “But I realised that you can’t put personal interests ahead of the party, which is the bigger picture. That is what my brother should do. The writing is on the wall, I don’t think he wants to swim against the tide.”
Mukula dismissed claims by some that Mbabazi can beat the NRM.
“Remember,” Mukula said, “NRM is a mass party. With just less than a year left, it is impossible for an individual to traverse the party’s over 57,000 village structures and beat a more organised party that we have become.”
Mukula also does not think there is value in Mbabazi joining the opposition given how divided it is.
“Most importantly,” Mukula said, “these (Mbabazi and Museveni) are people who have worked together for over 30 years, they can always work things out and Mbabazi has made his contribution in the party, I wouldn’t want to ignore him and I know the party is going to find a way to work with him.”
Others like MP Merdard Bitekyerezo of Mbarara Municipality, the only way forward for Mbabazi is finding ways to work with President Museveni.
“Mbabazi should be grateful to the President and find a way to work with him because despite everything, the president was busy campaigning for him in the NEC meeting. It is clear the president is still open to working with him and for me that is his main option,” he says. The Mbabazi versus Museveni saga continues.