Bobi Wine Withdraws Election Fraud Case From Uganda’s Supreme Court- Citing a Lack Of Independence by the Supreme Court and Refusal to Recuse By Some Judges.

10 min readFeb 22, 2021

Referring the matter to the Court of Public Opinion which he termed as ‘The Court of the People’.

Ugandan Supreme Court Justices On Trial?

Be The Judge.

Bobi Wine the prominent NUP party leader raised acute concerns of alleged lack of impartiality of Uganda’s Supreme Court Justice and withdrew the election petition.

This followed Ugandan Supreme Court Judges Overwhelmingly Consecutively Denying the NUP Party’s Submission of New Evidence and Amendment of The Legal Petition Of the Alleged Electoral Fraud Case.

Does the old Maxim that Justice Must Not Only Be Done But Must Be Seen To Be Done, Apply Here ?

Well, You Be The Judge.

Principles of Natural justice

There is an old legal maxim that says that justice must not only be done but it must be seen to be done. Adding to that is the other one that states that he who comes to equity must come with clean hands.

We shall come back to the second adage but first let’s examine the justice related one.

The Allegations and Counter allegations

During the week, ending the 21st February 2021, amidst an ongoing national and international outcry, s in Uganda, characterised with killings, enforced disappearances and torture, the NUP leader, Bobi Wine laid his case in the court of public opinion against the alleged bias and impartiality of some of the Ugandan judges hearing the electoral petition he filed.

Among those was the chief justice, who was alleged to have been already compromised because of his alleged previous direct or indirect associations with the respondent, according to the NUP president, Bobi Wine. He stated that the Chief justice of Uganda was not only a former minister in the respondents’ administration but was also allegedly seen ‘hosting the defendant’.

Bobi Wine went on to complain that this is already evidenced by the rejection of the pre-hearing pleas by the court to amend and accept further crucial evidence that forms part of his case. Which it is stated set the NUP up to inevitably fail.

Supreme Justice’s response

The response by the judge is on record and it is not the purpose of this article to litigate the claims and counter claims between the parties concerned.

But rather to provide an overview of the basic principles of justice, equity and due process in tandem with the totality of circumstances. Of particular focus are old legal principles laid out in the maxims above and the seminal cardinal rule about the independence, integrity and impartiality of judges.

In short, judicial independence and the public perception thereof.

Starting with judicial independence

The principles of an impartial and independent judiciary specifically in relation to judges, per se, are generally universal. They are set out in most constitutions, at least on paper and international instruments such as the United Nations.

Uganda’s Constitution is no exception

Specifically, S126 of the Ugandan constitution states that, ‘Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people. In the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority. (2) No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.’

International Provisions

Beyond the local constitution , the Bangalore declaration, lays down the guiding principles ‘ intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct that bind the judge’.

Model Judicial Codes

Furthermore, most jurisdictions have model codes of judicial conduct. Here we take a glimpse on three jurisdictions. The US, UK and Uganda. The US being one of if not Uganda’s biggest financial and development sponsor, the UK being the colonial ruler of Uganda and the US, on which both common law legal systems were premised. And of course, Uganda.

The ABA Code

The ABA Code, the American Bar Association, summarises the key canons that, lay down the principles, duties and expectations of judges. Duplicated in full below.

‘CANON1
‘A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety’.

CANON2
‘A judge shall perform the duties of judicial office impartially, competently, and diligently’.

CANON3
‘A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office’.

CANON4
‘A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary’.

British Judicial Guidance Code

Although there are quasi political judicial separations, the UK as a whole largely follows guidelines laid down by the respective body.

Importantly, the final decision in so far as the application of the guiding principle, is concerned, is left to the individual judge, per se.

However, the guiding principles and further advice are instrumental in forming a specific judge led opinion augmented by an office that investigates specific complaints against judges.

Broadly the key guidance centres on, ‘three basic principles guiding judicial conduct. Namely, Judicial independence, Impartiality and Integrity’.

‘In practical terms, this means that judges are expected to display:

• Intellectual honesty

Respect for the law and observance of the law

• Prudent management of financial affairs

• Diligence and care in the discharge of judicial duties

• Discretion in personal relationships, social contacts and activities.

‘These principles provide judges with a guide both as to the way in which they discharge their judicial functions and as to the conduct of their private lives to the extent that it affects those functions’.

‘They are a distillation of the six fundamental values set out in the Bangalore Principles of Judicial Conduct that were endorsed at the 59th session of the United Nations Human Rights Commission at Geneva in April 2003 and which form the key statement on judicial ethics’.

The code notes that, ‘Judicial independence is a cornerstone system of government in a democratic society and a safeguard of the freedom and rights of the citizen under the rule of law. The judiciary must be seen to be independent of the legislative and executive arms of government both as individuals and as a whole’.

In other words, ‘Judges should bear in mind that the principle of judicial independence extends well beyond the traditional separation of powers and requires that a judge be, and be seen to be, independent of all sources of power or influence in society, including the media and commercial interests.
Judges must be immune to the effects of publicity, whether favourable or unfavourable.
That does not of course mean being immune to an awareness of the profound effect judicial decisions may have, not only on the lives of people before the court, but sometimes upon issues of great concern to the public.
Circumstances will vary infinitely, and guidelines can do no more than seek to assist judges in reaching their own decisions. Integrity Judges are expected to put the obligations of judicial office above their own personal interests’.

The Uganda Judicial code of conduct

The Ugandan code of conduct appears to mirror that of the British, perhaps cognizant of her colonial tentacles.

The Ugandan code specifically sets out the principles of Independence, impartiality and integrity, propriety, equal protection and competence.

The code states that:

‘An independent Judiciary is indispensable to the proper administration of justice. A Judicial Officer therefore should uphold and exemplify the independence of the Judiciary in its individual and institutional aspects.

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.

Integrity is central to the proper discharge of the judicial office. The behaviour and conduct of a Judicial Officer must re-affirm the peoples9 faith in the integrity of the judiciary.

Propriety and the appearance of propriety are essential to the performance of all the activities of a Judicial Officer. A Judicial Officer shall avoid impropriety and the appearance of impropriety in all judicial and personal activities.

All persons are entitled to equal protection of the law. A Judicial Officer shall accord equal treatment to all persons who appear in court, without distinction on unjust discrimination based on the grounds of sex, colour, race, ethnicity, religion, age, social or economic status, political opinion, or disability.

Competence and diligence are prerequisites to the performance of the judicial office. A Judicial Officer shall give judicial duty precedence over all other activities.’

Key difference

The UK code appears to give latitude and discretion to the judge but also sets out wide ranging principles with an oversight office. Crucially, it emphasises that the responsibility and expectations of judges go beyond the office hours, into aspects of personal and private affairs.

In that regard, in true distinctive exceptional British character, such as the practice of writing or rather imposing constitutions on most of the world, but never writing a British constitution, the British judicial code appears flexible, but with invisible teeth that bite into a judge’s out of office hours well into retirement.

Observation

The claim and counter claims of the parties, in this matter, in relation to alleged impropriety, appear to have ignited, highlighted and simply brought to the fore, a fissure between the court of public opinion and the supreme justice of the highest courts of law.

As a general observation, among the most fundamental and serious professional criticism, that can be levied against the professional integrity of any judge, in any jurisdiction, is the kind that the NUP leader, Bobi Wine made. It is a professional nuclear option for the judge as well as one’s ability to be an officer of the court.

The reason being, as evidenced from the above international and local jurisdictions, this goes to the heart of the judiciary’s ability to dispense justice with fear or favour, the perceived confidence in the system by the wider public or lack thereof; and any lingering real or projected democratic dispensation.

Equally, if there is evidence of any judicial impropriety, in general and specifically, it must be brought to the surface for the benefit of all concerned for the reasons spelt out above.

Especially confidence in the judiciary itself.

Conclusion

Whether the facts as transmitted publicly by the NUP president, Bobi Wine, are accurate is a matter for factfinders, the media, civil society and the wider public.

What is critical, from a legal analytical perspective, is that at such a momentous epoch, is that justice must not only be done but most importantly it must be seen to be done. Mindful of the history of this impoverished but rich small East African nation of Uganda or any other country for that matter.

By the same token, those who come to seek equity must come with clean hands. In other words, if ones seeks justice or fair treatment or seeks understanding from ones peers, in respect of ones intentions as well as modus operandi, one should also be seen and act in good faith.

Whether these principles or observations apply to any of the parties, in this legal matter and rolling story, is a matter of judgement for others. Be it in the court of public opinion or the high echelons of the the Uganda supreme court, its justices, processes and substantive decisions.

Also of notable significance, in the era of social media, the internet and amidst a global pandemic lock down, in the heat of an extremely volatile socio-political atmosphere, in Uganda, what is, may not be what is perceived as fact. News, speculation and images travel at lightning speed.

Crucially, that speed and imagery, in real time, create perceptions which leave an indelible mark on the psyche, thought processes and opinions of the public. As it is often said, perception can be reality and vice versa.

But perhaps more to the point, as the poet Amanda Gorman put it, Just-Is, is not JUSTICE …and Quiet may not be Peace.

A message that should be well heeded by all relevant parties.

Composition of Uganda Supreme Court Judges to date as of 22 August 2020:

Uganda Protectorate(under colonial rule)

1956–1962 Audley McKisack
1952–1956 John Bowes Griffin
1947–1952 David Edwards [10]
1937–1947 Norman Whitley [11]
1935–1937 Robert Evans Hall[11]
1935 John Harry Barclay Nihill (acting)
1933–1934 Sidney Solomon Abrahams
1921–19nn Charles James Griffin
19nn — 1920 William Morris Carter

Bobi Wine Withdraws Election Fraud Case From Uganda’s Supreme Court- Citing a Lack Of Independence by the Supreme Court and Refusal to Recuse By Some Judges.

Referring the matter to the Court of Public Opinion which he termed as ‘The Court of the People’.

Ugandan Supreme Court Justices On Trial?

Be The Judge.

Uganda Protectorate(under colonial rule)

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Written by Sally Peters