Court name
Supreme Court of Uganda
Case number
Civil Miscellaneous Application 3 of 2021
Judgment date
17 March 2021
Title

In Re application for Recusal of Owiny - Dollo CJ (Civil Miscellaneous Application 3 of 2021) [2021] UGSC 7 (17 March 2021);

Cite this case
[2021] UGSC 7
Coram
Owiny-Dollo, CJ

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CORAM: OWINY - DOLLO, CJ; KISAKYE, ARACH - AMOKO, AWERI OPIO,
MWONDHA, MUGAMBA, MUHANGUZI, TUHAISE, & CHIBITA, JJSC.

MISCELLANEOUS APPLICATION NO. 03 OF 2021

(Arising from Presidential Election Petition No. 01 of 2021 - Kyagulanyi Ssentamu Robert vs Yoweri
Kaguta Museveni Tibuhaburwa & 2 Ors.)

IN RE: APPLICATION FOR RECUSAL

OF

HON. JUSTICE ALFONSE CHIGAMOY OWINY - DOLLO, CJ.

BY

MALE H. MABIRIZI K. KIWANUKA................................................................ APPLICANT

REASONS FOR THE RULING OF ALFONSE C. OWINY - DOLLO, CJ.

Introduction

The Applicant has brought this application (ex parte) by way of Notice of Motion, under the following laws: -

  1. Paragraphs XXVI, XXIX (a) & (f) of the National Objectives of State Policy in the Constitution of the Republic of Uganda;
  2. Articles 1, 2, 3, (2), (4) & (5), 8A, 28 (1), 44 (c), 104 (1) & (8), 126 (1) (2) (a) & (e), 128 (1), 131 (1), 132 (1), 133 (2) 144 (2) (a) & (c), of the Constitution of the Republic of Uganda;
  3. Section 98 of the Civil Procedure Act, Cap 71;
  4. Paragraphs 1 >4 of the Uganda Code of Judicial Conduct, 2003;
  5. Paragraphs 3-6 of the Constitution (Recusal of Judicial Officers) (Practice) Directions, Legal Notice No. 7 of 2019;

      

 

  1. Rule 15 of Presidential Elections (Election Petitions) Rules, S.I. No.

13 of 2001;

  1. Order 52 Rule 1 of the Civil Procedure Rules, S.I. 71-1;
  2. Rules 2 (2) & (3), 42 (1) of the Judicature (Supreme Court Rules) S.I. 13-11, Section 98 of the Civil Procedure Act, Cap 71 and Section 33 of the Judicature Act, Cap 13.

He seeks orders that: -

  1. Hon. Justice Alfonse Owiny - Dollo, CJ, disqualifies/recuses himself from participation in hearing and determination of Presidential Election Petition No. 1 of 2021 - Kyagulanyi Ssentamu Robert vs Yoweri Kaguta Museveni Tibuhaburwa, The Electoral Commission and the Attorney General.
  2. An order doth issue, setting aside the orders in Misc. Application No. 1 of 2021 on grounds that they are null and void in the circumstances.
  3. An order nullifying the proceedings of 9th February 2021 and 11th February 2021 where the Hon. Justice Alfonse Owiny - Dollo, CJ, participated.

Background:

On 14th January 2021, Uganda held a presidential election contested by a number of candidates. The Electoral Commission announced the results of the election on the 16th January 2021; in which it returned Yoweri Kaguta Museveni Tibuhaburwa as the duly elected candidate. One Kyagulanyi Ssentamu Robert, one of the candidates in the aforesaid election, who was aggrieved by the declared election outcome, filed Presidential Election Petition No. 1 of 2021 in the Supreme Court, on the 1st February 2021, contesting the said election outcome. On 9th February, 2021, the Supreme Court dismissed an application the Petitioner had

 

brought for the amendment of the petition. On 15th day of February, 2021, during the pendency of the hearing of the petition, Mr. Male H. Mabirizi K. Kiwanuka, hereafter referred to as ‘the Applicant', filed this Application, seeking the orders listed above. The Application was supported by an affidavit deponed by the Applicant, and dated 15th February, 2021; and a supplementary affidavit deponed by the Applicant, and dated 18th February, 2021.

Grounds of the Application

The grounds upon which the application is premised are stated briefly in the Notice of Motion, and brought out in detail in the affidavit in support of the Application, and as well the supplementary affidavit in support thereof. In the affidavit he deponed in support of the application, the Applicant stated that he is a lawyer by profession, a civically active Ugandan who has keenly followed issues of constitutional, human rights, and rule of law trends in the country. He then stated that: -

7 know that as a Ugandan citizen, I am constitutionally duty bound to defend the Constitution and, in particular, to resist any person or group of persons, including judicial officers, seeking to overthrow the established constitutional order.

I know that I have citizenry duties to protect the Constitution, promote rule of law, and fight abuse of authority.

I know that on 5th February 2021, while presiding over New Law Year 2021 at High Court, Kampala, on which function the 1st Respondent in the head petition attended, Owiny-Dollo, CJ requested for an appointment to meet him so that he could present the Judiciary budget to which the 1st Respondent agreed to the meeting

 

I know that indeed on 7th February 2021, Owiny-Dollo, CJ, in the company of Deputy Chief Justice and other Judiciary leaders met the 1st respondent in the head petition.”

He pointed out the fact that on the 9th and 11th February 2021,1 as Chief Justice headed a panel of Justices which presided over the proceedings in Presidential Election Petition No. 1 of 2021 wherein an application by the Petitioner for amendments to the election petition was dismissed. He pointed out further that he has established from my Curriculum Vitae with the Judicial Service Commission that in 2006, I was a “member of the defense team” for Yoweri K. Museveni (Respondent) in the presidential election petition in the Uganda Supreme Court: Col:(Rtd) Dr. Kiiza Besigye vs Yoweri Kaguta Museveni & The Electoral Commission.

The Applicant then stated that “a Judge has no discretion to decide whether to sit in a case of his former client.” And further stated that since I was counsel for the 1st Respondent in 2006, I was therefore “automatically disqualified from sitting as a Judge.” This is because he believes I cannot be “sufficiently impartial to adjudicate the head petition. ” In his supplementary affidavit in support of the application, he further affirmed that the Petitioner makes the conduct of the 1st Respondent in the 2006 election an issue in this petition; hence, I having been counsel for the 1st Respondent in the 2006 petition, I should not sit as a judge in the present petition.

He makes further accusation that on the 16th February 2021 which was a public holiday in commemoration of the 44th anniversary of the martyrdom of Archbishop Janan Luwum, I attended the function which was held at State House Entebbe; and he observed that I “was happy to be at the occasion in State House whose occupancy BY THE 1st Respondent in the coming presidential term is in issue.” He followed this up with pictures of a group photo of those who had attended the function, taken

 

in front of State House in which I stood next to the President; and opined that “objectively viewed, there is no way Owiny-Dollo, CJ can be viewed to be impartial as far as the 1st respondent in the head petition is concerned given his close association with him in recent and past times. ” Following the recusal application, and because social media was awash with posts about alleged secret meetings I supposedly attended at the official residence of the 1st Respondent, the Judiciary issued a press statement on 21st February, 2021, categorically denying these adverse allegations; and unmistakably clarifying that the two meetings I attended at State House were strictly official; and were held in public.

Representation

The Applicant argued the application himself.

The case of the Applicant

The Applicant raised two issues for Court’s resolution, viz;

  1. Whether the Applicant has locus before Court.
  2. Whether the Application raises grounds for recusal.

Issue No. 1

The Applicant advanced a proposition in law that the Court’s application of its inherent power is not limited only to parties to a suit. For this, he relied on Alcon International vs New Vision - Supreme Court Civil Application No. 04 of 2010, wherein Okello JSC, sitting as a single Justice, in an application that sought an interim order restraining a News Paper - which was not a party to the appeal before Court, but was publishing comments or opinion allegedly prejudicial to a party to the appeal - from engaging in such prejudicial publication, stated as follows: -

"I must confess that I have not come across any specific rule which empowers this Court, or any other Court, to grant an interim

 

injunction restraining a non-party newspaper from publishing prejudicial opinion on a case pending before the Court. However, every Court has inherent powers to make any order as may be necessary for achieving the ends of justice, or to prevent abuse of its process     

.............. In my considered opinion, the application of inherent power is not limited to only parties. It is wide enough to cover even non-party News Paper that engages in publishing prejudicial opinion on a party to or in respect of proceedings that are sub judice. In such a situation, the Court exercises that power to achieve the ends of Justice."

He therefore sought the exercise of inherent power by Court; which he argued are not restricted to parties to the main case pending Court. He argued that he had locus standi under Article 17 (1) (d) of the Constitution and could not be prevented by an outdated rule of technicality which would in the circumstances invalidate the principles under the rule of law. He submitted further that Article 3 of the Constitution also gives him locus to intervene where the parties to the petition have not raised the matter of recusal.

Upon being challenged by Court, he conceded that only a candidate to a presidential election can lodge a presidential election petition; but he nonetheless contended that as a citizen of Uganda he has sufficient interest in the matter owing to the special nature and importance of a Presidential Election Petition. He contended that since the Constitution (Recusal of Judicial Officers) (Practice) (Directions), 2019, did not provide for applications for recusal by non-parties, section 39 (2) of the Judicature Act, Cap 13, filled that lacuna.

He also relied on the authorities of Sejjusa vs Uganda - High Court Criminal Division Misc. Application No. 15 of 2016; Rtd. Col. Dr. Kiiza Besigye vs Y.K. Museveni & Others- Presidential Election Petition No. 1 of 2006, Kikungwe Issa & Ors vs Standard Bank Investment HCT-00-CC-MA-0394 of 2004 & 0395/2004 (Arising from HCT-00-CC-CS-0409-2004), Makula International Ltd vs His Eminence Cardinal Nsubuga &Anor, Re: Ivan Sebaduka In the Matter of Contempt of Court Proceedings arising out of Presidential Election Petition No. 1 of 2020 , Bush vs Gore S.C of the USA No. 00-949 and R vs Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet UKHL 41, 1 AC (1999).

Issue No. 2

The Applicant heavily relied on the Bangalore Principles of Judicial Conduct, 2002, and argued that from an objective view, I could not be considered sufficiently impartial; and thus not qualified to sit in the head petition herein due to my having been a lawyer to the 1st Respondent herein in Presidential Election Petition No. 01 of 2006. His contention was that this created a financial interest between the 1st Respondent and myself; which leads to my automatic disqualification.

The Applicant further submitted that I should recuse myself because I have background information of the Presidential Election Petition No. 1 of 2021, since from the Petitioner’s affidavit in support of the petition, the 1st Respondent has always engaged in illegal activities in presidential elections, including the 2006 elections challenged in Presidential Election Petition No. 1 of 2006 in which I represented the 1st Respondent herein who was the 2nd Respondent therein. The Applicant further submitted that my visit to the 1st Respondent to present the Judiciary budget, and the other during the celebrations of St. Janan Luwum day created a public perception that I would not be impartial. It did not matter to him whether these were not private, but official visits. Citing Paragraph 2.5 of the Bangalore Principles, he submitted that the public could not perceive me to be impartial in handling the Petition.

 

The Applicant submitted further that the Bangalore principles enjoin a judge to disqualify himself from participating in proceedings where he is unable to decide the matter impartially or where it may appear to a reasonable observer that the Judge is unable to decide the matter 5 impartially. He however disclosed that as a reasonable man, he knows me to be a fair and independent minded person well placed to decide the Presidential Election Petition No. 1 of 2021. He pointed out that he was only concerned about the perception of the public towards my participation in the petition. In support of the argument about public io perception, he argued that the jurisprudence in the country shows that “even if you feel there is no ground whatsoever, you recuse."

He cited Mandela Motor Spares v Marketing Information Systems - High Court (Commercial) Civil Suit No. 258 of 2008; Matala v Kigongo Misc. Appln No. 61 of 2014 (Arising out of Civil suit No. 655 of 2013)’, MK Financiers v N. Shah & Co. Ltd is Misc. Application No. 452 of 2014, as authorities for that proposition of law.

In further support of his contentions, he referred also to Chandiru vAsiku- Arua High Court Misc. Application No. 0011 of 2014; Kinyara Sugar Ltd v Hajji Kazimbiraine Mahmood & 4 ors- Masindi High Court Misc. Application No. 3 of 2020; Mandela Auto Spares v Marketing Information Systems- Commercial Court 20 Civil Suit No. 258 of 2008; COMESA Trade & Development Bank & Anor v Martin

Ogang COMESA Reference No. 1B/2000, ruling dated 26 April 2002; Lukyamuzi vs Attorney General; Bakaluba Peter Mukasa v Nambooze Betty Bakireke SC Election Petition No. 4 of 2009; Congo v Republic of Zimbabwe, South African Development Corporation Tribunal Case No. SADCT: 05/2008.

25 The Applicant’s contention is that impartiality applies not only to the decision itself, but the process by which the decision was made. He further submitted that an independent Judiciary is the pivot of democracy and the rule of law. It is so fragile that it only survives on public perception and confidence as opposed to self-conviction. He thus 30 prayed that I recuse myself on the basis of the above grounds.

 

COURT’S CONSIDERATION AND DETERMINATION OF THE APPLICATION

Upon hearing the Applicant, I gave a summary ruling, declining to recuse myself; and undertook to give the reasons therefore later. In my appreciation of the law recusal is a principle of law and practice of universal application. A party is entitled to apply for recusal by a particular judicial officer; and it is incumbent on such a judicial officer to give the application due consideration within the law, and determine whether to recuse or not. The decision of the Constitutional Court of South Africa in The President of the Republic of South Africa & others v South African Rugby Football Union & others- 1999 (4) S.A. 147 (C.C.) (hereinafter referred to as the SARFU case) is quite persuasively instructive in this regard. Therein, the Court noted at para 10 as follows: -

“At the very outset we wish to acknowledge that a litigant and her or his counsel who find it necessary to apply for the recusal of a judicial officer has an unenviable task and the propriety of their motives should not lightly be questioned. Where the grounds are reasonable it is counsel's duty to advance the grounds without fear. On the part of the judge whose recusal is sought there should be a full appreciation of the admonition that she or he should “not be unduly sensitive and ought not to regard an application for his [or her] recusal as a personal affront.”

Issue No. 1.

Whether the Applicant has locus to bring this Application.

The specific law that governs applications for recusal is The Constitution (Recusal of Judicial Officers) (Practice) (Directions), 2019. Rule 5 of thereof provides as follows: -

“A judicial officer may, on application by any of the parties or on his or her own motion, recuse himself or herself from any proceedings in

 

which his or her impartiality will reasonably be in question.” (Emphasis added)

Rule 7 provides for instances under which a judicial officer’s recusal may be sought. It states: -

Any party to the proceedings may apply to Court for a Judicial officer to recuse himself or herself under the following circumstances...” (Emphasis mine)

Paragraph 8 provides for the procedure for application for recusal, at the instance of the parties as follows: -

“(1) A party who seeks the recusal of a judicial officer under paragraph 7 shall, by letter copied to all the parties and the Registrar of the court or orally in open court in the presence of the parties, request the judicial officer to recuse himself or herself.”

Applying the literal rule of interpretation to the provisions of the law in issue, since it is couched in plain language, devoid of any absurdity or ambiguity, it is unmistakably clear that the locus to move Court for the recusal of a judicial officer is exclusively vested in ‘any party to the proceedings’. I am unable to appreciate how, even with a most liberal construction of the provision in issue, one could extend this to grant locus to a person who is not a party to the suit or proceedings; however vigilant such a person is. In Hon. Theodore Ssekikubo & Others vs The Attorney General and 4 Ors - S.C. Constitutional Appeal No. 1 of 2015, the Court applied this rule of statutory interpretation with regard to Article 83(1) of the Constitution; and held that, ”...‘leave’ as it is used in Article 83 (1) (g) is plain, clear and unambiguous, and must be interpreted using the literal rule of statutory interpretation.”

With regard to the instant matter before me, Article 104 (2) of the Constitution provides that: -

 

“104. Challenging a presidential election.

  1. Subject to the provisions of this article, any aggrieved candidate may petition the Supreme Court for an order that a candidate declared by the Electoral Commission elected as President was not validly elected. ”

It is, therefore, manifestly clear that only a presidential candidate has locus to challenge a presidential election outcome. This being so, it would be quite absurd that a person who has no locus under the law to challenge a presidential election outcome could nonetheless be permitted through the window to join in the proceedings and contest the conduct thereof. Had the framers of the Constitution intended to widen the catchment area for challenging a presidential election outcome, they would have provided so in clear and unmistakable language; as is the case with the Kenyan Constitution, which grants locus to ‘any person’, or the Ghanaian Constitution which grants locus to ‘any aggrieved citizen’, to challenge a Presidential Election outcome.

In this case, the Applicant, not having been a presidential candidate, was neither a party to Presidential Election Petition No. 1 of 2021 now before this Court, nor was he granted locus as an intervener in the Petition. Article 3 (4) (a), Paragraphs 29 (f) and (g) of the National Objectives and Directives Principles of State Policy or public law, and Article 17 of the Constitution, being general provisions, are in my considered view inapplicable in this matter. This owes to the specific and clear provision of Article 104 of the Constitution on the issue of locus in a presidential election petition; which negates recourse to general or abstract provisions in the Constitution in that regard, such as is being pursued by the Applicant herein (See US authorities of Radlax Gateway Hotel, LLCv. Amalgamated Bank, 566 U.S. No. 11-166, slip op. (May 29, 2012), Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228 (1957).

The Applicant has sought to rely on the provisions of section 39 of the Judicature Act, Cap 13.1 should point out that this provision of the law would be inapplicable in view of the fact that the Constitution and the Presidential Elections Act are expressly clear on the matter. In any case, that provision of the Judicature Act is restrictive in its application; as follows: -

“39. Practice and procedure.

  1. The jurisdiction vested in the High Court by the Constitution, this Act or by any other enactment shall be exercised in accordance with the practice and procedure provided by this or any other enactment or by such rules and orders of the court as may be made or existing under this Act or any other enactment.
  2. Where in any case no procedure is laid down for the High Court by any written law or by practice, the court may, in its discretion, adopt a procedure justifiable by the circumstances of the case.

This provision of the law is clearly specific to the conduct of business in the High Court; and is intended to address any lacuna in the law applicable to the High Court. Whatever the motive or driving factor is for bringing this application, the Applicant would better be advised to operate within the ambit of the law. The framers of the Constitution could not have intended that in the defense of the Constitution, one can legitimately operate outside of the law. That would, indeed, defeat the whole purpose and spirit of adherence to and protection of the rule of law, which the Applicant purports to be pursuing. In my considered view, section 39 (2) referred to herein above is inapplicable in the circumstance of this case. I would accordingly answer issue No. 1 in the negative; and on that score alone, this application would fail.

However, if it is or it were that the Applicant has locus to bring this application, then it is incumbent on me to consider and determine the merits of the application. The other imperative for doing so, is that the Applicant has, as is evidenced by his own boastful admission, gained some notoriety for raising the issue of recusal in virtually all proceedings before Court with abandon. It is therefore quite opportune and appropriate that this Court pronounces itself on the matter.

Issue No. 2

The Applicant premised this issue on two grounds. First, is that I represented the 1st respondent in Presidential Election Petition No. 01 of 2006; which automatically disqualifies me from handling the present petition before this Court. Related to this, is that by reason of my having been an attorney for the 1st Respondent, I am privy to information on some of the subject matter raised in the present petition. Second, is that on two occasions I visited the official residence of the 1st Respondent at ‘State House’; which causes a reasonable man to have fears that I cannot impartially determine the Petition now before the Supreme Court.

Test Applied in Applications for Recusal

Recusal is defined under Paragraph 4 of the Recusal Practice Directions to mean: -

“the act of abstaining from participation in an official action such as a legal proceeding due to conflict of interest of the presiding Judicial officer. ”

Rule 5 of the Practice Directions provides as follows: -

“A Judicial officer may, on application by any of the parties or on his or her own motion, recuse himself or herself from any proceedings in which his or her impartiality will reasonably be in question.” (underlining added)

 

In the South African Supreme Court case of Take and Save Trading C.C. 7 4 Others & The Standard Bank of S.A. Limited- Case No. 21 of 2003, Harms JA noted as follows: -

“Everyone is entitled to a fair trial and that includes the right to a hearing before an impartial adjudicator. This common law right is now constitutionally entrenched. Present a reasonable apprehension of bias, the judicial officer is duty bound to recuse him or herself. The law in this regard is clear, having been the subject of recent judgments of both this Court and the Constitutional Court, and does not require any restatement...

At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.” (underlining added)

In the SARFU case (supra), the Constitutional Court of South Africa also noted at para 35 that: -

“A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before the courts and other tribunals. This applies, of course, to both criminal and civil cases as well as to guasi-Judicial and administrative proceedings. Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes.’’

As I have already noted above, Rule 4 of the Recusal Directions defines bias as an actual, imputed, or apparent, inclination or prejudice for or

 

against one person or a group of persons; especially in a way considered to be unfair to the other party or parties in the dispute under consideration. The requisite test for the determination of bias has, in many common law jurisdictions, been held to be that of a reasonable, fair minded, and informed person.

This Court had the opportunity to consider the test so applicable in this regard in the case of Professor Isaac Newton Ojok vs Uganda - SCCrA No. 33 of 1991', decided in 1993, well before the issuance of Recusal Practice Directions, and also when the evolution of the test for bias was still at an inchoate stage. The Appellant’s counsel in that case - who incidentally is now the Chief Justice against whom, by a twist of fate, this application for recusal has been made - successfully presented the Applicant’s fear of bias on the part of the presiding judge who was a sister to a top official and ideologue of the NRM; hence a pillar of the government which the Appellant was being prosecuted for having committed the political offence of high treason.

In determining the test for bias, the Court considered whether to apply the ‘real likelihood of bias'test or the ‘reasonable suspicion of bias’ test. Court referred to English authorities and some laws on the test; such as Blackburn J’s judgment in R v Rand [1866] E.R 1 QB 230 where the “real likelihood” test originated, section 2(2) of the Judicature Act (No. 34 of 1962) by reason of which that test became part of applicable common law in Uganda since it had been decided before the 1902 Order in Council which imported English law into Uganda, and Hewart’s dictum in R v Sussex Justices Ex Parte McCarthy [1924] 1 KB 259 that led to a reconsideration of the test of “real likelihood of bias”, when he stated therein that: -

“The answer to that question depends not upon what was actually done but upon what might appear to be done which creates even a

 

suspicion that there has been an improper interference with the course of justice”.

The Court also referred to Lord Goddard’s opinion in R vs Cambodia justices; Lord Denning and Lord Davies LJ’S reassertion of the guidance by Lord He wart in Metropolitan Properties Co. v Lannon [1963] 3 ALLER 304; and Lord Widgery’s judgment in R v Altrincham Justices ex parte Pennington [1975] 2 ALLER 78, where Lord Widgery opined that both tests were correct but were applicable to different circumstances; hence, he proposed a compromise position. The Supreme Court in the Isaac Newton Ojok case (supra) then concluded as follows: -

“The issue becomes one of determining what the test or tests should be in Uganda. It is clear that by relying on R v Cambodia Justices the State has opted for the old English rule, which requires real grounds for setting aside a decision, when the judge (or other judicial officer) has not been shown to have an interest or to be biased in fact, and perhaps conducted a faultless Judicial proceeding. We recall the complaint of Slade J (Supra) that if this test is not followed, there would be created the erroneous impression that it was more important that justice should be seen to be done, than that it was in fact done. That is a very serious consideration, having in mind the delay and expense of trials. On the other hand, to simply rely on justice being done in fact, when reasonable people cannot see or agree is so, denies the Court exactly that confidence which is fundamental prerequisite for justice. Indeed, it erodes all the “real likelihood” test has sought to achieve.”

The Court then restated the test as follows: -

“We consider therefore that although the two tests can be sometimes irreconcilable, they can also be complementary and both should be adopted in this way: first, the real likelihood test should be adopted to

 

ascertain whether the Judicial officer labored under an interest, pecuniary, proprietary or of kindred... The second test is then employed to verify whether the legalities of the first test meet the expectations of reasonable right minded people. If there is reasonable suspicion neither fanciful nor flimsy that the judicial officer may have been biased, we must then pass to the Hewart’s test. We must administer justice so as to satisfy reasonable persons that the Court was impartial an unbiased. ”

It is noteworthy that many common law countries have departed from this position and adopted the ‘the reasonable apprehension of bias' test. In Bradford v McLeod 1986 SLT 244 the High Court of Justice in Scotland adopted a test which focused on the question whether there was suspicion of bias through the eyes of the reasonable man who was aware of the circumstances. In Piersack v Belgium (1982) 5 EHRR 169 at 179-180 (paras 30-31) the Strasbourg Court also adopted the test which looks at the question whether, objectively considered, there is a risk of bias in the light of the circumstances which the Court has identified. In Hauschildt v Denmark (1989) 12 EHRR 266, at 279 (para 48), the Court stated that, in considering whether there was a legitimate reason to fear that a judge lacks impartiality, the standpoint of the one objecting is important, but not decisive: ‘What is decisive is whether this fear can be held objectively Justified.’

In the Pinochet case (supra), the English Court expanded the grounds for automatic recusal in cases where there is no pecuniary interest. The decision however, was criticized for bringing uncertainty over the test for determining bias. In Judicial bias after Pinochet (No.2), in Modern Law Review, 63 (1). pp. 119-127, a treatise by Kate Malleson, an exhaustive review of the Pinochet decision was made. She noted at p. 123, thus: -

 

‘‘By expanding the automatic disqualification in this way and casting doubt on the real danger test [real likelihood test], the House of Lords has increased uncertainty in relation to this aspect of disqualification which had long been settled, and added more confusion in an area in which some degree of certainty had recently been established. Nor can this change be Justified as necessary in order to achieve justice in the light of the particular facts since the same result could have been achieved within existing rules.”

Her concerns were raised by the fact that the ‘real danger test’ had been criticized and not followed in several authorities after R v Altrincham Justices ex parte Pennington [1975] 2 ALL ER 78. The Supreme Court in Isaac Newton Ojok did not consider these authorities. In R v Gough [1993] AC 646 at 654, Lord Justice Farquharson pointed out that it was difficult to justify the two lines of authority coexisting. Lord Goff expressed the view at p. 667 and 669 that the decision in Metropolitan Properties case (supra), had led to some confusion; with the resultant compelling need for the House of Lords to extract from the authorities, "a readily understandable and easily applicable principles”.

The House of Lords rejected the notion that different approaches applied to different tribunals, and endeavored to establish one test applicable to all cases where apparent bias is in issue. The opportunity presented itself in the case of Porter v Magill [2001] UK HL 67 which settled the discourse, and modified the test in R v Gough [1993] AC 646. The Court considered the criticism of the ‘real likelihood’ test and the result of its application when compared to the ‘reasonable apprehension of bias’ test as follows: -

‘‘The ‘reasonable likelihood’ and ‘real danger’ tests which Lord Goff described in R v Gough have been criticised by the High Court of Australia on the ground that they tend to emphasise the court’s view

 

 

of the facts and to place inadequate emphasis on the public perception of the irregular incident_(see Webb vR (1994) 181 CLR 41 at 50 per Mason CJ and McHugh J)...

The Court of Appeal, concluded in Locabail (UK) Ltd v Bayfield Properties Ltd, Locabail (UK) Ltd v Waldorf Investment Corp, Timmins v Gormley, Williams v HM Inspector of Taxes, R v Bristol Betting and Gaming Licensing Committee, ex p O'Callaghan [2000] 1 All ER 65 at 74, [2000] QB 451 at 477 (para 17) that in the overwhelming majority of cases the application of the two tests would lead to the same outcome. In my opinion however it is now possible to set this debate to rest."

His Lordship explained the reasons for adopting ‘the reasonable apprehension of bias’ test and set the parameters of its application, which is that all circumstances of the case or true facts should first be determined. The Court referred to the Court of Appeal decision in Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 before stating the test thus: -

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased ... ...

I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to ‘a real

 

danger1. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” (underlining added)

In agreement with that authority, the Constitutional Court of South Africa, in the SARFU case (supra), pronounced itself on the test for determining apparent bias as follows: -

'The question is whether a reasonable, objective and informed verson would on the correct facts reasonably awrehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case: that is a mind open to persuasion by the evidence and the submissions of counsel.’

The Court, in that case, considered the huge corpus of laws, and authorities on this test in several Canadian and Australian jurisdictions; and came to the conclusion that the test involves two considerations or presumptions regarding the nature of the judicial office and the character of bias. On the nature of the judicial office, the Constitutional Court noted at para 39-44, thus: -

“Before looking at the manner in which the test is applied, it is necessary to mention two considerations built into the test itself. These are the nature of the Judicial office and the character of bias in this context. ...

In applying the test for recusal, courts have recognized a presumption that judicial officers are impartial in adjudicating disputes. This is based on the recognition that legal training and experience prepare judges for the often difficult task of fairly determining where the truth may lie in a welter of contradictory evidence...

 

The test should be applied on the assumption that a reasonable litigant would take these considerations into account. A presumption in favour of judges’ impartiality must therefore be taken into account in deciding whether such a reasonable litigant would have a reasonable apprehension that the Judicial officer was or might be biased. ”

With regard to the character of bias, it is admitted that absolute neutrality on the part of a judicial officer can hardly ever be achieved. What is however required of a judicial officer, in its utmost, is impartiality. In a multicultural and multilingual country such as Uganda, Judicial officers can appropriately bring their own life experience to the adjudication process. In R. vs. (R.D) (1997) 118 ccc (3d) 353, cited with approval in the SARFUcase (supra) at para 42, Cardozo J referred to an Article by Benjamin N. Cardozo in The Nature of the Judicial Process (1921) at 12-13 and 167 where the author stated that: -

“There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them - inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs ... In this mental background every problem finds it [s] setting. We may try to see things as objectively as we please. Nonetheless, we can never see them with any eyes except our own.

Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person] whether [she] or he be litigant or Judge."

 

The test also applies to the Supreme Court but with other unique considerations that should be taken into account. This was noted in Laird v Tatum 409 US 824 at 836 wherein an article by John P. Frank in Disqualification of Judges: In support of the Bayh Bill” in 35 Law and Contemporary Problems 43 at 48 was quoted with approval by Rehnquist J, as follows: -

“Supreme Court Justices are strong minded men, and on the general subject matters which come before them, they do have propensities; the course of the decision cannot be accounted for in any other way.

The fact that some aspect of these propensities may have been publicly articulated prior to coming to this Court cannot, in my opinion, be regarded as anything more than a random circumstance that should not by itself form a basis for disqualification. ”

The ‘apprehension of bias1 test is objective; and the onus of establishing it rests upon the applicant or objector. The test has a twofold objective element. The person alleging bias must be reasonable, and the apprehension of bias itself must equally be reasonable in the circumstances of the case. Unfounded or unreasonable apprehension of bias on the part of a judicial officer can never be justifiable basis for seeking recusal. As is pointed out in the safru case (supra) at para 45, the apprehension of bias giving rise to the objection against a judicial officer must be assessed in the light of the true or correct facts as are presented before Court or tribunal deciding the issue of recusal.

I find the proposition of law expounded in the authorities cited above asserting the ‘reasonable apprehension of bias’ test, most persuasive; and compels the need for departure from the test propounded in the Prof Isaac Newton Ojok case (supra). I therefore find the correct test for

 

bias to be “whether a reasonable, objective and informed person, acting on the correct facts, would reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case”. The ‘mind’ referred to herein is one that is open to persuasion by the evidence and submissions of Counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by Judges to administer Justice without fear or favour, affection or ill will. This is the duty to render justice without prejudice, (emphasis added)

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 the true facts established at the hearing of the application. Courts are hesitant to make a finding of bias or to conclude that there is a reasonable apprehension of bias in the absence of convincing evidence to that effect; meaning, it does not suffice to merely allege. The reasonable, objective, and informed, person should be appraised of all the correct facts before determining whether, or not, there is bias.

Guided by the test clearly laid down above, with which I am in full agreement and have adopted, it is my duty to consider, with a mind very much open to persuasion, the grounds the Applicant has raised for seeking my recusal from handling the head petition herein.

Ground 1:

1. That in 2006, I was a member of the defence team for the 1st Respondent in Presidential Election Petition No. 1 of 2006 Presidential Election Petition No. 1 of 2006 - Col (Rtd) Dr. Kiiza Besigye v Yoweri Kaguta Museveni & Electoral Commission.

It is this ground for which the Applicant seeks my automatic recusal. Added to this is the allegation that owing to that past engagement with

 

the 1st Respondent, I have knowledge of the facts in dispute in the head petition herein. True, I was part of the team of lawyers who represented Yoweri Kaguta Museveni in the aforesaid Presidential Election Petition in 2006. The same Yoweri Kaguta Museveni is the 1st Respondent in the head petition before this Court; from which this application arises. It is also not in dispute that this information is contained in my Curriculum Vitae (C.V.) which by reason of its having been submitted to the Judicial Service Commission, and Parliament, during the appointment process, is now a public document. However, no evidence of apparent bias is discernible from the fact of my earlier engagement with the 1st Respondent; to necessitate my automatic disqualification and recusal.

The Applicant argued that due to the grounds cited, I was automatically disqualified from participating in the hearing of the petition, citing the Pinochet case (supra). The test for automatic disqualification and that for reasonable apprehension of bias, is covered in the Halsburys Laws of England Volume 61 (2010) 5,h Edition para 631-633, and were also considered by Lord Browne-Wilkinson in Pinochet’s case at p. 586, and the East African Court of Justice in Prof Anyang’ Nyog’o & 10 Others (supra). The Court in Attorney-General v. Anyang’ Nyong’o & Others [2007] 1 EA 12, where Court explained thus: -

“There are two categories of scenarios. In the first, where it is established that the Judge is a party to the cause or has a relevant interest in its subject matter and outcome, the judge is automatically disqualified from hearing the cause. In Pinochet’s case (supra) the House of Lords held that automatic disqualification applies not only where the judge is directly or indirectly a party or has financial or proprietary interest in the suit, but also where he has some other interest in the outcome of the suit. In a case where an automatically disqualified judge does not recuse himself, the decision or order he

 

makes or participates in, will be set aside, notwithstanding that he did not act with bias.

In the second category, where the Judge is not a party and does not have a relevant interest in the subject matter or outcome of the suit, a Judge is only disqualified if there is likelihood or apprehension of bias arising from such circumstances as relationship with one party or preconceived views on the subject matter in dispute. The disqualification is not presumed like in the case of automatic disqualification. The applicant must establish that bias is not a mere figment of his imagination. " (underlining added)

The true facts of this case, as I have presented herein above, place the grounds in the application in the second category; hence, they are not automatic grounds of recusal as the Applicant would want this Court to find so. The test for apparent bias has to be met before I can bow out of the petition. Furthermore, I find that was under no duty to disclose my status as a former attorney of the 1st Respondent. These facts were already in the public domain in light of the transparency of the appointment process. In the Anyang’ Nyong’o case (supra), the East African Court of Justice noted at p.19 that: -

“Failure of a Judge to disclose facts that are within public knowledge cannot be a ground on which a reasonable member of the public would apprehend bias.”

It was thus incumbent on the Applicant, on whom the burden of proof lay, not to merely allege bias; but to present before Court all the true facts and circumstances of the case, and thereby adduce evidence in proof of the alleged bias.

Article 28 of the Constitution of the Republic of Uganda, 1995, provides that in determining civil rights and obligations, a person shall be

 

entitled to a fair public hearing before an independent and impartial tribunal. The Uganda Code of Judicial Conduct which has the main body of ethical rules and principles governing the conduct of judicial officers in the performance of their duties, incorporates the principles of fair hearing. Principle No. 2 of the Code, regarding impartiality, states: - “Impartiality is the essence of the Judicial function and applies not only to the making of a decision but also to the process by which the decision is made. Justice must not merely be done but must also be seen to be done. ”

The other relevant provisions regarding impartiality are: -

    1. A Judicial Officer shall perform judicial duties without fear, favor, ill- will, bias, or prejudice.
    2. A judicial Officer shall refrain from participating in any proceedings in which the impartiality of the Judicial Officer might reasonably be questioned.

The Code provides for only two instances where it is mandatory for Judicial Officers to disqualify themselves from the conduct of proceedings; as follows: -

“Without limiting the generality of the foregoing, a Judicial Officer shall disqualify himself from participating in any proceedings in the following instances: -

  1. Where the Judicial Officer has personal knowledge of the disputed facts concerning the proceedings.
  2. Where a member of the Judicial Officer’s family is representing a litigant, is a party, or has interest in the outcome of the matter in controversy, in the proceedings.”

 

The law on impartiality and the all-important need for justice ‘not only to be done, but to equally be seen to be done’, cannot be over­emphasized. However, when a person seeks the recusal of a judicial officer, or any person exercising a quasi-judicial function, the objector must meet or pass the pre-requisite standard test for recusal; otherwise litigants would abuse the provision for recusal and turn it into an avenue for determining or choosing their preferred arbiters in their respective cases.

Authorities are scanty in Uganda regarding recusal by a judicial officer on the ground that such a judicial officer had been an attorney of one of the parties to the dispute prior to the matter for which recusal is sought. In Mulugeta Guadie Mengiste & Anor v Endowment Fund for the Rehabilitation of Tigray & others [2013] EWCA Civ 1003, Lady Justice Arden, of the Court of Appeal of England and Wales, had this to say about recusal and automatic disqualification: -

"... A Judge may recuse himself when a party applies to him to do so. A judge must step down in circumstances where there appears to be bias, or as it is put, ‘apparent bias’. Judicial Recusal is not then a matter of discretion.

Judges who have a financial interest in a case are automatically disqualified. Depending on the circumstances, judges can also be disqualified by other matters, such as involvement with one of the parties in the past. The ability of the judge to deal with the matter uninfluenced by such matters is not the issue: it is a question that, to maintain society’s trust and confidence, justice must not only be done but be seen to be done. Hence it is common ground in this case that a judge should recuse himself from hearing an application if there appears to be bias.” (underlining added)

 

The authority shows that past involvement with a party can be a ground for disqualification; but all the circumstances of the case have to be examined. It is trite and sound principle of law that justice must not only be done, but also be seen to be done. Nonetheless, this must be considered within the context and circumstances of the case in issue. There is need to bear in mind that Judges are part of a given society; and have naturally, at one time or another, worked or associated with various members of the society. As such, any person asking a judge for recusal must do more than merely allege bias founded on suspicion. There must be cogent evidence to satisfy the test for bias.

In the SAFRUcase (supra), para 38, the Court stressed that: -

"Because of inappropriate connotations which might flow from the use of the word ‘suspicion’ in this context, we agree and share the preference for ‘apprehension of bias’ rather than ‘suspicion of bias.”1 (emphasis added)

The Court also rejected the argument raised by counsel for one of the Respondents that judges of the highest Court of the land, should more readily accede and recuse themselves to set an example for lower Courts. The Court decided instead in favour of the ‘duty to sit’, which all judicial officers are enjoined to oblige; and this is in view of the fact that the highest Court has a small composition of judges to pick from to constitute a panel. Court cited the Australian case of Re J.R.L.: Exparte C.J.L (1986) 161 CLR 342 at 352; where it is stated that: -

"Given the intricate procedure to appoint a balanced and representative bench, each of the available judges of this Court is obliged, unless disqualified, to participate in adjudication of every case which comes before this Court. We are in full agreement with ... Mason J in the High Court of Australia:

 

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. ” (underlining added)

This was also the position the Kenyan Courts took in Galaxy Paints Co. Ltd v Falcon Guards [1999] 2 EA 83 (CAK). In the Anyang’ Nyong’o case (supra), Court explained, at p.20, as follows: -

“While litigants have the right to apply for the recusal of judicial officers where there is a reasonable apprehension that they will not decide a case impartially, this does not give them the right to object to their cases being heard by particular Judicial officers merely because they believe that such persons will be less likely to decide the case in their favor. The nature of the judicial function involves the performance of difficult and at times unpleasant tasks. Judicial officers are nonetheless required to “administer justice to all persons alike without fear, favor or prejudice in accordance with the Constitution and the law." To this end they must resist all manner of pressure, regardless of where it comes from. This is the constitutional duty common to all judicial officers. If they deviate, the independence of the judiciary would be undermined and in turn the Constitution itself. ” (underlining added) (underlining added)

In Meera Investments Ltd v The Commissioner General, URA- C.A.C.A No. 15 of 2007, the Court of Appeal of Uganda cited with approval the Carter-Artis case 1981; a persuasive decision of the Supreme Court of New Jersey in the United States, wherein the Court observed thus: -

 

“A review of the basic cases, citing 536 Broad Street v Valeo Mortgage Company, 125 Equity, 581, 1944, affirmed, 136 Equity, 513, Errors and Appeals, indicates that the challenger must adduce proof of the truth of the charges and as to the sufficiency of such proofs the Judge himself must decide. The mere filing of an affidavit of prejudice does not deprive the Judge of the jurisdiction, but permits him to pass on its sufficiency and to dispose of the question of disqualification raised by it, in the same manner as any other question that may come before him during the trial.

As to the sufficiency of such proof of disqualification the Judge himself must decide. Not only is a Judge not required to withdraw from the hearing of a case upon a mere suggestion that he is disqualified to sit, but ‘it is improper for him to do so unless the alleged cause of recusation is known by him to exist, or is shown by proof to be true in fact. ’ See Clawns v Schqkat, 49 N.J. Super, 415. The court held, a mere suggestion that a Court is disqualified to sit is not sufficient and it is in fact improper for him to do so.” (underlining mine)

The other aspect of my having related with the 1st Respondent as his counsel, is its remoteness in time. Authorities abound for the proposition that a lawyer should not be considered eternally bound or bonded by his past engagements. In the US, the practice and Codes of most States place only a limited bar on judicial officers from hearing matters involving those who were formerly their clients before they joined the bench. The Illinois State Supreme Court Rules, for instance, provides for three years where the judge was only associated with the law firm that handled the litigant; but seven years where the judge had personally represented the litigant.

And more specifically, in Hamilton v Pendleton, 237 P. (Okla, 1925) cited as 237 P. 611 Okla.55 (1925), the Court expressed this opinion: -

 

We are of the opinion that the statute does not mean that, if a judge has once been an attorney or of counsel for a person, he shall, if he afterwards become judge, be forever prohibited from acting as judge in cases in which such person may be a party, and in which cases the judge has not been attorney or of counsel, and in which he has taken no part whatever. If such construction of the statute were to obtain, the judges of courts would be disgualified in a very large proportion of the cases which came before them; for judges are elected from among the practicing lawyers of the district, and, in the course of their lives as practitioners, have been attorneys and or counsel for large numbers of persons in their district. It is not intended that the judge shall be disgualified because he has once been an attorney for a party litigant in a matter other than that proposed to be litigated before him." (underlining added)

The above authorities fortify my conviction that to allow to be bound by my past professional engagement with the 1st Respondent, dating about fifteen years back, would not only be unfortunate, but greatly absurd. I think the remoteness of the past engagement of 2006 from the present Court process in 2021, balances with the need to ensure that justice is seen to be done, quite well in the mind of a reasonable person. To take the converse as the correct position would make judicial officers or any other person executing an adjudicatory function quite vulnerable to unfounded allegations of bias; for which they would have to unfortunately recuse themselves.

Further, the Applicant referred to the affidavit of the Petitioner in the head petition, asserting that the 1st Respondent has always committed illegalities and engaged in violence even during the 2006 elections for which petition I was the attorney of the 1st Respondent. These averments are untrue; and in any case, they are mere statements of

belief that the Petitioner would have to prove. I have no knowledge of the facts in dispute in the head petition herein. The Court in Election Petition No.l of 2006 made no such findings against the 1st Respondent as alleged in the head petition herein, for Court to make a finding that I have background knowledge of the facts alleged in the head petition herein. Considering all the circumstances of the case, I find no valid ground whatever for automatic recusal.

Indeed, this Court has taken cognizance of the growing practice of abuse of the principle of recusal; and pointed out the danger in this practice in Uganda Polybags Ltd v Development Finance Company Ltd SC Misc. Civil Application No. 2 of 2000, page 5, where all seven Justices on the panel unanimously pronounced themselves as follows: -

“Before we take leave of this matter we would like to reiterate our concern which was expressed in Constitutional Petition No.l of 1997; Tinyefuza v. Attorney General and Civil Application No.9 of 2000; G.M Combined (U) Ltd v. A.K Detergent (U) Ltd, over the growing tendency to level charges of bias or likelihood of bias against judicial officers. We would like to make it clear that litigants in this country have no right to choose which judicial officers should hear and determine their cases. All Judicial officers take the oath to administer justice to all manner of people impartially, and without fear, favor, affection, or ill will. That oath must be respected.” (Emphasis added)

Ground 2;

Meeting with the 1st respondent in PEP No. 01 of 2021 twice at State House.

For this ground, the Applicant placed reliance on the Bangalore Principles of Judicial Conduct, 2002. Indeed, these principles encapsulate, at an

International level, the norms of universal application regarding issues such as bias. Paragraph 2.5 of the Principles provides: -

“A judge shall disqualify himself or herself from participating in any proceedings in which the Judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where:

  • the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings;
  • the judge previously served as a lawyer or was a material witness in the matter in controversy; or
  • the judge, or a member of the Judge’s family, has an economic interest in the outcome of the matter in controversy;

provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice. ” (underlining mine)

The Supreme Court of Ireland acknowledged the significance of the Bangalore Principles in determining a claim of objective bias against a judge in O'Driscoll (a minor) v Hurley [2016] IESC 32, Judgment of 14 June 2016, wherein it clarified the test of objective bias. In the case one of the judges was asked to recuse herself for having attended and addressed a private conference organized by solicitors of the State Claims Agency which was one of the parties to the matter now before Court. The judge was pictured on the firm’s website sitting under the solicitors’ name and logo while a senior member of the firm was delivering a speech.

 

The judge was also separately pictured with the head of the State Claims Agency. This, it was submitted, amounted to objective bias.

The Supreme Court, Dunne J, noted that the established test for objective or perceived bias, as was stated in Goode Concrete v CRH pic [2015] 2 ILRM 289 per Denham CJ; Bula Ltd v Tara Mines Ltd (No. 6) [2000] 4 IR 412, 441, per Denham CJ; and the principles set out in O’Callaghan v Mahon [2008] 2 IR 514 at 672- 673, per Fennelly J., is: -

"... whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not invoke the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is in possession of all the relevant facts.” (underlining mine)

Court clarified that the ‘reasonable observer’is one who is a ‘reasonable, fair-minded and informed person’. It explained that the attitude of the parties to the case is irrelevant, because even if the parties consent to the conduct of the case by a judge who feels he or she should recuse from hearing the case, the judge should step aside, because of the wider public interest in the manifestly impartial administration of justice.

The Supreme Court found that at the time of the Conference, the judge in issue was responsible for managing the High Court’s personal injuries list, including medical negligence litigation, and was chair of a working group on medical negligence. Court held that it was perfectly understandable and appropriate for her to attend the conference which it considered “private” only in the sense that it was not open to the general public; but otherwise, stakeholders from all sides of the issues were part of the audience of more than 250 persons. Court concluded that a reasonable observer would not form an apprehension of bias in

 

the circumstance; but would instead appreciate that the judge’s attendance was desirable, as it was in furtherance of knowledge of those involved in the pursuit of the topical issues.

To Court, the fact that the conference was hosted by the law firm which acted for the defendants in the particular case was inconsequential; and did not affect this conclusion, having regard to a consideration of the nature of the conference and the topics covered. There was no question of partiality; and the subsequent use of photographs of the judge on the firm’s website was neither exceptional nor unusual, and could not sensibly be regarded as an endorsement of the law firm by the judge.

In the “ The Judicial Commission of Inquiry Into The Allegations of State Capture, Corruption, and Fraud in The Public Sector, Including Organs of State”, chaired by Deputy Chief Justice of South Africa, Raymond Zondo, an application was made by President Jacob Zuma seeking the recusal of the Chair of the Commission, from the conduct of the Inquiry. The grounds advanced for seeking the recusal was that the Chair was conflicted, since he has had a personal relationship with the former President for years, and he met the President at his official residence upon his appointment to chair the Commission. The Chair declined to recuse himself; observing and pointing out that: -

"The meeting I held with the applicant after the CJ had given him my name, was an official meeting. I was not paying him a personal visit. Indeed, I was informed by the CJ that the applicant had asked that whichever judge the CJ selected, should come and see him.......... I am of the opinion that on the undisputed facts there was not the kind of relationship between myself and the applicant such as will disqualify me from chairing this Commission; nor is it a proper ground for me to recuse myself.” (underlining added)

 

 

This is on all fours with the impugned circumstances under which I met the 1st Respondent. I went to State House, where the 1st Respondent carries out his official business, on 10th and 16th February 2021; but never, at all, on 7th February 2021 as was alleged by the Applicant. However, these were both official functions which I attended in my capacity as Chief Justice; and both functions were held in the full view and glare of cameras. The reason for the meeting held on 10th February 2021 was twofold. First, was to attend the swearing-in of a Judge of the High Court. Second, was to lay the Judiciary budget before the President; which is a function of the Chief Justice as provided for under Articles 133, and 155 of the Constitution, and the Administration of the Judiciary Act, 2020. That day I led a team of judiciary officials to State House for the two functions.

The Constitutional Court conclusively pronounced itself on the law that the Chief Justice must present the Judiciary budget to the President, and not to the Minister of Finance, in Krispus Ayena Odongo Const petition No. 30 OF 2017 and Uganda Law society v Attorney General Const. Petition No. 52 of 2017. It would be wrong for the Chief Justice to abdicate his Constitutional duties merely because a case concerning the President is in Court before the Chief Justice. In the absence of any facts or circumstances to the contrary, a fair-minded reasonable person assessing the facts I have presented as the reasons for meeting the 1st Respondent on the 10th February, would be hard pressed to find fault with, or discern any objective bias, in the Chief Justice’s participation in the two official functions in issue.

By no stretch of construction can this official visit to the 1st Respondent be taken to present evidence giving rise to a reasonable apprehension of bias. It was the contention of the Applicant in the present application before me that even in the absence of any grounds for recusal, upon a

 

allegation of bias or partiality, a judicial officer should do the proper thing and recuse himself or herself. This negates the position in law advanced in authorities such as Galaxy Paints Co. Ltd v Falcon Guards [1999] 2 EA 83 (CAK) and Attorney-General v. Anyang’ Nyong’o & Others [2007] 1 EA 12. I was also at the State House on 16th February 2021 for the celebration of the martyrdom of St. Janan Luwum; at the invitation of the Archbishop of the Church of Uganda. Due to its importance, this day is designated as an annual public holiday in Uganda; and the celebrations always take place at Mucwini in Kitgum; where St Janani was buried. However, owing to the COVID-19 pandemic, the national function for this year 2021, took place at State House. Apart from the Applicant finding fault with my happiness at the function, and my having stood next to the President during the official photo appearance after the service, the Applicant presents no other basis for the alleged apprehension of bias.

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. Any reasonable person would know that celebrating the martyrdom of St Janan Luwum is testimony of the triumph of justice over evil. The millions who mourned the cruel slaying of Janan Luwum by the ignoble Idi Amin, found peace when government set aside the 16th of February as a public holiday for the annual commemoration of his martyrdom. We consider this a fulfilment of a national conscious; which any reasonable person would celebrate with abundant joy. It is utterly illogical to find fault with my having openly rejoiced on this noble occasion. Anyone who subscribes to such a view is certainly unreasonable; to say the least.

 

In the instant application before me, while submitting passionately at the hearing for my recusal, the Applicant stunned Court with a somewhat inexplicable disclosure, as follows: -

“So here my Lord the Chief Justice, I need to be clear. I neither have any doubt in your capacity to handle the cases independently, nor do I have any personal grudge against you; because indeed I have been before you previously ...I have no grudge. I have no doubt about your independence. Indeed, when you look at my authority No. 35 I won before you, and I got costs. But the point is the law is the law. We are keeping this fragile system. It’s so fragile that any slight mistake will make it break. ”

On being asked whether he was a reasonable man, he responded: -

“My Lord, am even beyond!”

It is most intriguing; and I am a little at a loss when a self-proclaimed reasonable person who confesses to having confidence in me as being fair minded and as well seized with an independence of mind, nonetheless seeks that I recuse myself from hearing the head petition because of public interest or concern. It is of further interest that the Applicant sought out my CV from the Judicial Service Commission. While on the face of it there is nothing wrong in doing so, it is discernible that it was apparently so done for the purpose of finding fault with it. That manifests a suspicious and unreasonable mind.

Had the Applicant genuinely sought to establish from my CV, the record of my professional and moral competence for the purpose of determining whether or not I would handle the petition with impartiality, he would have discovered, from the said CV, that in my professional career as an attorney, I exhibited quite an independent mind; as I took instructions from a wide and divers category of clients.

For instance, I represented persons, such as Prof Isaac Newton Ojok, and also those alleged to belong to the Force Obote Back Again (FOBA) organisation, who stood trial for allegedly committing the offence of treason against the government headed by the 1st Respondent.

The Applicant would also have discovered that I represented the rebels of the UPDM/A, and drafted the ‘Peace Accord’ signed on the 3rd June 1988 between the Government of Uganda, and the UPDM/A at Pece Stadium, Gulu; which I did ex gratis as my contribution to the restoration of peace in the region. He would also have gathered from the same CV that I was invited by the notorious warlord Joseph Kony of the LRA, whom I rendered professional advice to in the jungles of Garamba in the DRC; culminating in Joseph Kony nominating me to participate in the inconclusive Juba Peace Process. All this was against the backdrop that at the height of the LRA war in Northern Uganda, I served as Minister in charge of Northern Uganda in the very government the LRA was fighting to oust.

Any person weighing their minds on my CV would discern there from that in the course of my professional service, I exhibited a free will; and never got inextricably bonded to the persons I represented. I carried out my legal work with utmost professionalism. It is most unlikely that seized with all this information, a reasonable person would still have sought to have me recuse myself from handling the head petition. The Applicant was clear that the reason he brought the application, notwithstanding the faith he has in me, is because the public does not see the matter in the same way he does. I should seize the opportunity presented by the Applicant’s submission, to clarify on the issue of public opinion with regard to the determination of the test for bias.

I should reiterate here that the test for finding that there exists justifiable cause for apprehension of bias, is whether the apprehension

 

39

is by a ‘reasonable mind’; and not a ‘suspicious mind’. The Court in Prof Anyang’ Nyong’o & 10 Others (supra) noted that: -

“It is indisputable that different minds are capable of perceiving different images from the same set of facts. This results from diverse factors. A ‘suspicious mind’ in the literal sense will suspect even when no cause for suspicion exists. ”

In the same case, the Court noted further that: -

“Needless to say, a litigant who seeks disqualification of a Judge comes to couyt because of his own perception that there is appearance of bias on the part of the Judge. ”

With regard to “the public”, which the Applicant is concerned with, I need to point out it is actually comprised of three broad categories of persons. The first category comprises those driven by ill motive or ulterior motive. They actually know the truth about the matter in issue; but because it serves their malicious enterprise to present a position converse 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 maybe 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, or that the views they express represent those of the majority; whereas not. By no account are they objective or reasonable in what they perpetrate and perpetuate. Accordingly, their views cannot be the measure for test of bias.

The second category of members of the public, which usually constitutes the majority in any society, comprises the ordinary persons who are generally well intentioned; but are woefully ignorant and gullible to manipulation. They can easily jump on any band wagon; including that driven by the first category of persons acting in pursuit

 
   

 

of ulterior motive. When they are negatively beguiled, they can be quite unreasonable and dangerously subjective. They are only useful with regard to the test for bias when their minds are positively directed. The third category of persons comprises the objective, fair-minded, and reasonable persons. However, these qualities alone are insufficient for them to pass the test for bias.

This category must exercise their objectiveness, fair-mindedness, and reasonableness in the light of correct information or facts of the matter in issue availed to them; without which they could, despite their good intentions, fairmindedness, and reasonableness, erroneously have apprehension of bias, where there is actually none. Therefore, in deciding whether to recuse or not, a judge must not be bothered by the suspicious mind; which would fall in the first and second category of members of the public. He or she must instead, as I hereby do, be concerned about how a reasonable fair-minded person, which belongs to the third category of members of the public, views him or her.

For the reasons given above, I find that the grounds the Applicant has advanced for seeking my recusal is without merit, as it has fallen short of what is required to satisfy the test for apprehension of bias, to compel me to recuse myself from presiding over Presidential Election Petition No. 01 of 2021.

In the result, I disallow this application with no orders as to costs.

Alfonse C. Owiny - Dollo

CHIEF JUSTICE

DATED AT KAMPALA THIS 17TH DAY OF MARCH 2021

Dated at Kampala this 17th day of march 2021