Many litigants and lawyers using the Supreme Court have over the years been grumbling and becoming disgruntled by the fact that since Bart Katureebe’s departure, Uganda’s apex Court has gradually been becoming less efficient when compared to the Richard Buteera-led Court of Appeal (Constitutional Court).
But all these (along with some disgruntled insiders) always merely grumbled fearing reprisals and painful consequences that come with belling the cat at that level. NUP’s Robert Kagulanyi and his social media crowd tried but didn’t go very far because they were easily dismissed as political anarchists who had refused to accept defeat after the 2021 elections.
Then came Dr. Justice Esther Kisakye, a member of the same Supreme Court but her ranting too was easily dismissed as someone who had failed to accept that her efforts to become CJ (for all these years) had failed and move on.
But the last week’s much-publicized belligerence with which the aggrieved Kampala businessman Hamis Kiggundu (also a diehard Museveni supporter) reacted to perceived mistreatment by the Dollo-led Supreme Court seems to have emboldened more dissent from within the Supreme Court.
Mulengera News has anonymously interacted with some members of the bench and other senior staffers at the Supreme Court who are increasingly perceiving Kiggundu’s belligerence as a blessing in disguise.
“It’s an opportunity to increase scrutiny on the fact that Owiny Dollo hasn’t been very effective as the head of that Court and the Judiciary as a whole. He might have excelled depicting himself as a loyal cadre of Uganda but as an administrator, things are yet to look good. There is a lot that has gone wrong including having to be presided over by the administrative head who hasn’t been very enthusiastic towards his team,” says a Supreme Court Judge.
“His lack of initiative manifested when for 6 months the Supreme Court didn’t conduct any business simply because we had no offices to operate from. It took public pressure, amplified through the media as lawyers and litigants cried out, for the new offices to be improvised. That’s how that new Wandegeya location was secured otherwise the leadership didn’t seem to be in a hurry. But even at this new place, our administrative head hasn’t been very enthusiastic towards outputting work. Can you imagine not many judgments have presided over and delivered since January this year? Compare that with the performance of the Court of Appeal whose output has inspired more and more public confidence.”
Specifically speaking about the Ham-DTB fracas, another Supreme Court Judge asserted: “Those guys of Muwema are right to be aggrieved. They have their application which our administrative head hasn’t resolved for more than 18 months. Why would you deny them some recourse? They don’t have to win that application but as the head of the Court ensure that it’s concluded even if they lose. Let’s rule against them but deliver expeditious justice as is required under the Constitution. It’s a command but our boss doesn’t look at it that way.”
That the right thing to do would have been to entertain the application, rule against the applicants and give reasons. “Our code of conduct is very clear. All matters must be heard and concluded in 60 days. We are the Supreme Court supposed to set standards for lower Courts. In case, we are unable to deliver in 60 days as a Court, we are obliged to give reasons which wasn’t done and the Muwemas are right to resort to the Court of public opinion like Kagulanyi did because they haven’t had recourse and it’s something over which any one reasonable would sympathize with them because many other litigants are suffering quietly simply because our boss doesn’t give a damn about those who keep parroting the fact that Supreme Court has to be Supreme Court.”
Another Judge says it was anomalous for Chief Justice Owiny Dollo, who is supposed to have prioritized such a sensitive case because of the anxiety it has created for the financial markets, to be absent himself yet he is the head of the panel.
That it was wrong to unleash Justice Elizabeth Musoke to come and face the parties as opposed to Owiny Dollo coming himself as the head of the Supreme Court and the entire Ugandan Judiciary. “That matter has delayed for too long which is problematic in itself because when you delay, you give room for new evidence to emerge or for smart lawyers like Fred Muwema to claim having new evidence and this exactly is where we have ended yet the same would have been avoided.”
Another Judge says that, because of the CJ’s strange way of leading the bench, the very opposite of what everyone wanted to avoid (uncertainty and alarming the financial markets and making Uganda less attractive to lenders) is what has ended up prevailing. “There was a lot of sensitivity on that case because the governor Bank of Uganda [then Emmanuel Mutebile] had to contact the President and the Judiciary asserting that Justice Adonyo’s ruling was going to kill the entire economy because investors and lenders wanted to avoid Uganda for contradicting syndicated loans which is the way the entire industry operates. That ruling had created plenty of uncertainty and anxiety for the financial markets yet that is where we have ended because of the indecision which Ham Kiggundu sought to expose through his defiant antics.”
What happened back then was that Justice Adonyo, then of the Commercial Division of the High Court, avoided going into the merits of the Ham-DTB dispute and instead decided on technicalities namely that DTB Kenya involved itself in the loan transaction without being explicitly licensed to conduct such business in Uganda as required under the Financial Institutions Act. This simply meant the entire loan transaction between them and Ham Kiggundu, stretching hundreds of billions, was a nullity. The same was subsequently implied in the Patrick Bitature case against his South African lenders.
DTB got alarmed and appealed against the Adonyo ruling in the Court of Appeal which acted quickly and directed retrial of the case so that the same gets inquired into on its own merit. This is how the current appeal in Supreme Court came about as Ham Enterprises protested against the directed retrial. This is the thing on which the Owiny Dollo-led panel at the Supreme Court is supposed to deliver judgment. But the same has taken curiously so long to be proclaimed, sparking off speculative whispers within and outside the Court.
This delay was exploited by Ham Enterprises to file an application for judgment of admission claiming they had discovered new evidence of their adversary DTB admitting to some helpful facts. They came to Court last week demanding to be heard on matters relating to that application, something Justice Elizabeth Musoke objected to at the prompting of DTB’s lawyer Edwin Kargire who coincidentally happens to be the President’s son-in-law as he marries Gen Museveni’s 47-year-old daughter Natasha Kainembabazi Karugire.
Stung by his own conclusion that the Supreme Court was hostile and simply not prepared to hear him making out his claim against DTB, Kiggundu exploded during the Court session and (in a very defiant mood) personally went after Karugire and his law firm partner the AG Kiwanuka Kiryowa accusing them of acting with impunity and plotting to bump him off though he didn’t corroborate his claim. He also branded the Supreme Court and it’s head incompetent and unsuitable.
The Kiggundu fracas (which saw hundreds of ordinary Ugandans denounce the same Court process) has since created plenty of bad publicity for the Judiciary and more so the Supreme Court which the naturally very combative Chief Justice Owiny Dollo personally heads.
Another disgruntled Judge also anonymously explained why the contempt of court charges or even administrative proceedings against Fred Muwema and his client Hamis Kiggundu wouldn’t make the Judiciary look any better.
“The writ of contempt of Court can either be civil or criminal and Muwema & Co can at worst walk way with an administrative caution because in any case, summoning them to such a forum will only give them additional opportunity and platform to illustrate the circumstances under which they were denied recourse by the Supreme Court for all these months and that will only make the Chief Justice more embarrassed. It can only lead to unnecessary escalation which comes with deeper public scrutiny on the Supreme Court which won’t be good for Alfonse Owiny Dollo as it’s administrative head,” says one of the top judicial officers we spoke to for this article.
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