Chief Justice Alfonse Owiny-Dollo and The Attorney General have asked the Constitutional Court to dismiss with costs a petition filed by Supreme Court Justice Dr Esther Kisaakye saying it’s a disguised attempt to frustrate an on-going inquiry into her conduct and abscondment from duty.
In the response to the petition, they accuse Justice Kisaakye of wrongly suing the top administrators of the Judiciary including the Chief Justice Owiny-Dollo, Permanent Secretary Pius Bigirimana, Chief Registrar Sarah Langa, Commissioner Human Resource Apophia Tumwine and the Judicial Service commission and thus asks the Constitutional Court to strike out them from the petition as respondents.
Last week, Justice Kisaakye sued the said people together with the Attorney General in the Constitutional Court seeking 24 orders among dozens of other declarations so that a record showing that she has been away without official leave be quashed and be assigned duties, and reinstated as the administrative head of the Supreme Court.
In her petition, Kisaakye said that effective March 18, 2021, from the Presidential Election Petition filed by Robert Kyagulanyi Ssentamu against President Yoweri Museveni, the respondents have jointly and severally engaged in acts that are inconsistent with the constitution. They include the confiscation of her file by Owiny-Dollo before she could read her decision arising from that presidential petition, closure of the Supreme Court on the orders of the Chief Justice and Government on March 19, 2021, the issuance of a deceitful and defamatory press statement and denial of funds for medical treatment.
These include among others their failure to recognize and /or follow seniority at the Supreme Court, secretive investigations against her disguised as a general inquiry, denial of leave, refusal by the Chief Justice to allocate her work, and refusal to reinstate her research Assistant, withholding the allowances of her driver and bodyguards, denial of a letter of undertaking to her bankers and her subsequent removal from the judiciary and government payroll.
After filing the case, the Registrar of the Constitutional Court summoned the respondents and gave them seven days within which to respond to the petition or else the Court was to go ahead and hear the case without them.
Now in the response by the Attorney General which is accompanied by an affidavit of the Chief Justice Owiny-Dollo and the Registrar of the Judicial Service Commission Julius Mwebembezi, the respondents argue that at an early opportunity during hearing of the case, they will raise points of law that the petition is incompetent, misconceived, bad in law, frivolous, vexatious without merit and an abuse of Court process.
This they say is because the petition does not raise any questions for constitutional interpretation and that the allegations raised therein are a subject of an inquiry being conducted by the JSC and it seeks to preempt and frustrate it.
“The respondents shall contend that the scheduled date for delivery of the reasoned ruling of the Supreme Court in the Election Petition was 18th March 2021. The respondents shall further contend that the petitioner was not ready with her ruling for delivery on the day scheduled by the Court”, reads the response.
It adds: “The respondents shall contend that the Supreme Court, as a collegial court sits as a panel in Presidential Election Petitions. All decisions of the Court including dissenting decisions are made and delivered when the Court is sitting as a panel.”
According to Owiny’ Dollo’s affidavit sworn before the Commissioner of Oaths George Omunyokol, the Chief Justice together with other members of the panel were categorical that they would return to court only when Kisaakye shares her draft ruling prior to its delivery as is the norm and practice. But she reportedly insisted that she would deliver her rulings whether or not the other members of the panel accompanied her.
Owiny-Dollo says he proposed Kisaakye’s ruling to be delivered on March 22nd or 23rd, 2021 and informed the Attorney General that they were to be informed of the day accordingly but she insisted.
“I then instructed the Registrar of the Court through the clerk that all the files for members of the panel be brought to the boardroom where all of us except the Petitioner were assembled. The files were all brought to the boardroom and while other members of the panel took charge of the Court files allocated to them and were preparing to depart from the boardroom, leaving the Court file for the petitioner on the table, I instructed the clerk to take the file to my chambers since it had reasons for her rulings that should not leak out before delivery”, reads Owiny-Dollo’s affidavit.
According to Owiny-Dollo, Kisaakye insisted and stormed out of the Supreme Court building and addressed a press conference that day and even a day after and because of this, he decided to refer the matter to the JSC and the process is now in advanced stage.
“I have never confiscated, taken possession of or kept any file belonging to the Petitioner. What I have lawfully kept in my chambers to date is a court file that was allocated to the petitioner as a member of the panel. Files allocated to judicial officers remain property of the Court. I had kept this file and continue to do so to stem a gross abuse of the due process by the petitioner for the reasons set out in the referral made go the 5th respondent/JSC and annexed go the Petitioner’s adds Owiny-Dollo.
According to the respondents, generally, Kisaakye’s pleadings are ambiguous, susceptible to various meanings, confusing, irrelevant and therefore an embarrassment to the respondents.
The response covered in more than 150 pages adds that it not the mandate of the Chief Justice to approve or provide funds for medical treatment but only to grant permission to travel abroad.
“The respondents shall further contend that the administration of the Supreme Court is the preserve of the Chief Justice and there is no Constitutional entitlement of any Justice of the Supreme Court to appointment as administrator of the Court. The respondents shall contend that the decision on appointment or removal of an administrator is administrative and there is no question for constitutional interpretation,” reads the Attorney General’s joint response.
The records submitted to Court accompanied with dozens of correspondences between the parties in court show that during the hearing, Kisaakye will be put on strict proof to prove her allegations and that she was never authorized or permitted to go on leave but according to Owiny-Dollo, she absconded from court thereby excluding herself from its operations.
“The 6th respondent/Attorney General further contend that all the averments and actions of the petitioner are consistent with her guilt of wrong doing including among others abscondment from duty without authorization from her supervisor”, adds the response.
According to all the respondents, Kisaakye is therefore not entitled to the reliefs she sought and instead she made a disguised attempt to circumvent the constitutional process being conducted by JSC.
The case is yet to be allocated to a panel of five Constitutional Court Justices who will be giving it a hearing date. But the members of Uganda Law Society wants the case settled through mediation to avoid setting a very bad precedent in the judiciary.
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