Justice Owiny-Dollo argued that if Mabirizi had sought to discover his moral competence, he would have found out that he previously took instructions from a wide range of clients whom he didn’t bond with while exercising his profession as a lawyer.
Chief Justice Alfonse Owiny-Dollo says
that he declined to recuse himself from the presidential election petition
filed by Robert Kyagulanyi as demanded by city lawyer, Male Mabirizi because
his application was malicious. He revealed this in his detailed judgment on an
application filed by Mabirizi asking him to recuse himself from the petition
because of his close links with President Yoweri Museveni, who was a respondent
to Kyagulanyi’s petition.
Mabirizi wanted the Chief Justice to step down from
petition on grounds that he was one of the lawyers who represented Museveni in
the 2006 presidential election petition filed by former presidential candidate
Dr. Kiiza Besigye.
He also accused Owiny-Dollo of meeting
Museveni on several occasions in the month of February before the disposal of
In his detailed judgment, Owiny-Dollo noted that Mabirizi
was not a party to the proceedings and therefore lacked the locus to file such
an application in the first place. He argued that in his view, this reason
alone was sufficient for the court to dismiss the application. He also argued that Mabirizi lacked evidence
other than his own boastful submissions, which have since gained notoriety and
are only aimed at finding fault in his professionalism.
explained that the person seeking recusal has to first recognize the fact that
judicial officers are impartial by training, which they apply in the
adjudication process especially in a multicultural and multilingual country
like Uganda but this, he said wasn’t the case with Mabirizi. "The onus to pass the test for bias
is upon the person seeking recusal by a Judicial Officer. An unfounded or
unreasonable apprehension of bias cannot be a justifiable cause for recusal.
Furthermore, even where the apprehension of bias is expressed by a reasonable
person, such apprehension must be assessed in the light of true facts
established at the hearing of the application" said Owiny-Dollo.
He explained that the Judges are also
part of the society and have naturally at one time or another worked or
associated with various members of society. As such, Owiny-Dollo reasoned
that any person asking a Judge for recusal must do more than merely allege bias
founded on suspicion by adducing evidence, which was not the case. On the issue
of meeting Museveni, Owiny-Dollo said that he went to State House on official
business on Feb 10th and 16th, 2021, and was never there on February
7 2021 as alleged by Mabirizi.
He said that he went to the statehouse to
perform his constitutional duties in full of cameras, which included the swearing
in of a High Court Judge and lay down the budget of the Judiciary. He argued
that apart from finding fault with his happiness on the memorial
celebrations of the Janan Luwum day and standing next to Museveni in a picture,
there was no other basis for the alleged apprehension of bias by Mabirizi.
"Indeed, I find the applicant's faulting of my attendance of this event
and my evident joy at the occasion quite pedestrian, unfortunate, and most
unreasonable. I attended the function not to mourn, but to rejoice and pay
homage to the Lord God for his goodness", said Owiny-Dollo. Adding that, "Any reasonable person
would know that celebrating the martyrdom of St. Janan Luwum is testimony of
the triumph of justice over evil.” He also reasoned that Mabirizi sought for
his CV from the Judicial Service Commission with the sole purpose of finding
Justice Owiny-Dollo argued that if Mabirizi
had sought to discover his moral competence, he would have found out that he
previously took instructions from a wide range of clients whom he didn’t bond
with while exercising his profession as a lawyer. He cited the example of Professor Isaac Newton
Ojok whom he was representing as a lawyer yet he was facing trial for treason
against the government of Museveni, who was also the first respondent in
He also noted that Mabirizi would have also discovered that he represented some
rebels more than 30 years ago and in June 1988, drafted a peace agreement with
the rebels and the ruling government, which he did as his contribution to
restoration of peace in the Northern Uganda region. "He would also have gathered from the same CV that I was invited by the
notorious warlord, Joseph Kony of the Lord's Resistance Army, whom I rendered
professional advice in the jungles of Garamba in the Democratic Republic of
Congo”, said Chief Justice.
Whereas Mabirizi was saying that the public would not perceive well his failure
to step down from the petition, the Chief Justice explained that the public has
also, three categories of people and not all should be considered when deciding
recusal cases. He described the first category of people as those driven by ill
motive or ulterior mind. He said these actually know the truth about the matter
but because it serves their malicious enterprises to present a position
opposite to the truthful position, they hype that which best ensures the
realization of that purpose.
"They are ordinarily in the
minority in society; but because they may be cunning, or are a little more
informed than the ordinary persons and are quite noisy, they create the
impression that the silent majority is with them whereas not. They are not
reasonable or objective and their views cannot be a measure for the test of
bias”, Owiny Dollo reasoned.
The second category he said comprises the
majority in any society and these are the ordinary persons who are generally well-intentioned but are woefully ignorant and gullible to manipulation and can
easily jump on any bandwagon and can be driven by the said first category.
"When they are negatively beguiled,
they can be quite unreasonable and dangerous. They are only useful with regard
to the test for bias when their minds are positively directed" said Dollo.
Owiny-Dollo said the third category comprises the objective, fair-minded and
reasonable persons but still those qualities alone would not be sufficient for
them to pass the test for bias without proof of facts. He later dismissed the
application without costs.
Commenting about the detailed judgment, Mabirizi said there was another
irregularity in the court since one of the judges on the nine member panel of
Justices, Esther Kisakye who was absent. He argued that there is no way how they would read
the whole detailed judgment in her absence yet the signing took place inside