{UAH} Bobi petition: Would Chief Justice Dollo pass the impartiality test?
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Bobi petition: Would Chief Justice Dollo pass the impartiality test?
- March 3, 2021
- Written by OUR STAFF WRITER
"The power of judiciary lies, not in deciding cases, not in imposing sentences, not in punishing for contempt, but in the trust, faith and confidence of the common man," former USA chief Justice John Marshal.
The doctrine of judicial recusal demands that a judge may recuse himself from proceedings if he decides that it is not appropriate for him to hear a case to be heard by him. 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 'apparent bias'. There has been virtual altercation between the chief justice Alfonse Owiny Dollo and former presidential candidate and petitioner, Robert Kyagulanyi Ssentamu.
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Kyagulanyi, until recently had petitioned the Supreme court contesting the victory of candidate Tibuhaburwa Yoweri Kaguta Museveni in the concluded January 2021 general election. The petitioner among the prayers he made is that, the election results should be nullified because they were not free and fair and were fraudulent.
After submission of the petition, Kyagulanyi questioned the impartiality of three justices on the coram.
WHY OWINY DOLLO?
The petitioner pointed an accusing finger at chief justice Owiny Dollo, Michael Chibita and Ezekiel Muhanguzi. The petitioner believes that he cannot have justice because these judges have been very close to Museveni who is a party in the case.
Kyagulanyi's misgiving about these judicial officers was buffeted by an application for recusal of the chief justice from the case by an independent lawyer, Hassan Male Mabirizi. Mabirizi argued that Owiny Dollo could not be impartial in this matter as he was part of the legal team that defended the victory of Museveni in 2006 when Col. Dr Kizza Besigye challenged his election in the Supreme court.
"Owiny- Dollo, CJ was formerly engaged/hired as a personal attorney/advocate of the first respondent (Mr Museveni) in the lead petition," Mabirizi alleged in his application.
"Owiny Dollo is disqualified by prior engagement described above from being sufficiently impartial to adjudicate the head petition at hand," the application further read.
RIGHT TO FAIR HEARING
The principle of recusal is alive in the Constitution, and other Ugandan laws and rules governing the conduct of judicial officers. It is derived from the principle of fair hearing where by a person before trial is entitled to a fair hearing before an independent and impartial court established by law.
Itis also implied in paragraph 3 of the Uganda Judicial Code of Conduct:
"Aware that the real effectiveness of chief justice Owiny-Dollo judicial authority lies in the respect and acceptance of the public accords to its exercise, which in turn ultimately depends on the proper manner in which the administration of justice is conducted."
There are various way of asking the judge to recuse himself or herself. In the first instance, the counsel for the petitioner could have approached the judge in his chambers and presented the reasons and questions about his impartiality in the matter.
When that fails, the same counsel can formally apply to the judge in an open court asking him to recuse himself from the matter because of apprehended bias.
The lawyers for Kyagulanyi did not make this application but Male Mabirizi an independent person who is interested in the fair outcome of the petition made the application and chief justice Owiny Dollo heard the application which he later dismissed for lack of merit and declined to quit. He said he would give his reasons on notice.
The impartiality of judges often expressed as nemop iudex in propria, meaning no man should be a judge in his own cause. Owiny Dollo denies being partial. But he admits working as an advocate for Museveni. He also implies that he defended the respondent a long time ago to merit any substantial connection between him and the president.
But he did not disclose whether or not Museveni paid him. Instead he asked Mabirizi; "how do you prove that he (Museveni ) paid me?" To which Mabirizi answered: "if he didn't pay you then he is your friend."
The chief justice does not believe that public perception matters. Indeed, his colleague, justice Stella Arach Amako asked Mabirizi whether he had had a public survey to prove that the chief justice is not fit to hear the petition.
The answer to this question lies in the following authorities that have been applied in the common law and commonwealth. In the South African case, Moch v Nedtravel (Pty) Ltd t/a American Express 1996 (3) SA 1 (A) at 13H the Appellate Division stated that in approaching recusal application, "a judicial officer should not be unduly sensitive and ought not to regard an application for his recusal as a personal affront."
It appears that Owiny-Dollo regards this application as personal attack on his character and impartiality.;
THE TEST
The fundamental principle underlying the concept of judicial bias is that a man may not be a judge in his own cause. There is actual bias and apparent bias. Apparent bias appropriate for this discussion.
Apparent bias is where the judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour gives rise to suspicion that he is not impartial. This could be occasioned by his friendship with a party or where he has a private conversation with the lawyer for one party.
The appearance of bias can also arise because of the judge's interests and affiliations. The test therefore which has been adopted in most common law jurisdictions is that whether a reasonable and informed observer, having considered the facts, would conclude that there was a real possibility that the court is biased.
The judiciary must ensure that it remains independent and that it is seen to be independent of any influence that might reasonably be perceived as compromising its ability to judge cases fairly and impartially. The classic case, which explains why recusal is about public perception is R v Sussex Justices ex parte McCarthy.
In that case, the applicant came before magistrates charged with the offence of dangerous driving, which had involved a collision between his vehicle and another vehicle. The solicitor acting as a magistrate's clerk was also acting as solicitor for the other driver in the civil proceedings against the applicant arising out of the collision.
At the conclusion of evidence before the magistrate, the acting clerk retired with them in case his help should be needed on a point of law; but in fact the magistrates did not consult him and he himself abstained from referring to the case. The court convicted the applicant, but a Divisional Court quashed his conviction.
Lord Hewart CJ said: "It is said, and, no doubt, truly, that when the gentlemen retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way.
But while that is so, a long line of case shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should be manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case, the deputy clerk made any observation or offered any criticism which he might not have properly made or offered; the question is whether he was so related to the case in its civil aspects as to be unfit to act as a clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice .."
This case brings home the point that in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself. The court looks at the impression which would be given to other people. Therefore, the issue here is not the impartiality of Owiny-Dollo but the impression that would be created by Dollo's participation in the case given his past dealings with the respondent.
JUDICIAL OATH?
Owiny Dollo like the former deputy chief justice Steven Kavuma argued in the recusal application in the case of Buwembo v Kato Lubwama, that he took judicial oath to do justice to all manner of people without fear or favour, or ill-will and affection.
And he follows that oath strictly. But that argument was ably countered long time ago by a legal philosopher and USA judge, Jerome Frank who said: Much harm is done by the myth that merely by putting on a robe and taking oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine."
Similarly, another American philosopher Morris Cohen had this to say: "The dogma that the judicial decision follow logically from the provision of the constitution involves the unbelievable psychological assertion that when men mount the judicial bench they become, unlike all other human beings, altogether free from personal or class bias or the prejudices of their limited education and experience."
The point Mabirizi and Kyagulanyi attempted to impress upon Owiny Dollo is that the act of becoming a judge does not convert a person into an individual without emotions and prejudice. These human motives and mental processes are not entirely debased when one assumes judicial roles.
In an emotive case such as this presidential petition, the judiciary needs to mind society's trust and confidence. Therefore, where there is a bonafide feeling that recusal would serve the ends of justice, judges should consider this impassionately without any ego.
The relationship between Kyagulanyi is already bruised considering the angry rebuttal from the chief justice where he advised him to resort to his plan B if he did not trust the court he head. As philosopher Socrates once said, four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, to decide impartially."
Considering all those circumstances as highlighted above, would chief justice Owiny Dollo pass the test of an impartial judge in this matter? It is all about impression, impression of the ordinary reasonable person, and not the judge.
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