Uganda’s appeal court has delivered a major decision that insists essential legal principles must be observed by both the courts themselves and by practitioners who appear in the courts. The three appeal judges effectively censored a legal practitioner as well as a high court judge for their – quite different – roles in the matter before them.
The advocate was chastised for certain actions in relation to the case and the judges referred his ‘dishonourable conduct’ to the law council to consider.
Even more significant, however, was the appeal bench’s criticisms of the way the judge handled part of the matter in the court below: The high court judge held a highly sensitive meeting with an elderly man whose mental capacity was in dispute – and failed to keep any records of what happened in that meeting. This tainted the entire trial ‘with mystery and suspicion’, the appeal judges said. In remarks that echo some of the criticisms currently aimed at the Ugandan judiciary by human rights activists and many in the legal profession, the judges said that if the problem seen in this case was not ‘duly called out’, ‘there is (a) likelihood that judicial power may be abused with impunity’.
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On the face of it, there was nothing to alert readers to the deeper significance of this judgment. It was delivered by three members of the court of appeal, in a case involving two litigants of the same surname, father and son as it turns out. The appeal was brought against a 2019 decision by high court judge Musa Ssekaana.
In a nutshell, the dispute concerns the affairs of one of the wealthiest and best-connected Ugandan families. The patriarch of the family, Mohan Kiwanuka, has two wives, with children from each. The dispute, effectively between the two wives and their families, relates to decisions, domestic and financial, ostensibly made by Mohan over the last few years. At issue is whether Mohan has dementia and thus whether he is able to make valid choices.
Jordan Kiwanuka, a son from the first marriage, claims that his father has been unable to make proper decisions for some time, and wants the court to find that he suffers from a mental illness. However, the second wife and her children by Mohan claim that Jordan is a mere busybody, intent on grabbing the old man’s wealth.
Son barred from access to father
Jordan says that though he has been intimately involved in his father’s business for many years, his father’s second wife, Maria, is refusing to allow him or his mother or siblings from the first marriage, to access his father. Maria is a prominent figure in her own right, being an economist, a businesswoman and a politician who served in the Ugandan cabinet as a minister of finance.
Jordan applied some years ago for the court to rule on his father’s mental health status, but when Ssekaana heard the matter in the high court, he found Mohan not mentally incapacitated.
Jordan subsequently challenged this outcome, and judgment in that appeal, as well as preliminary questions related to the case, has now been delivered.
Three standout issues in the judgment
In the course of the decision, the three appeal judges tackled many issues. To my mind, three stand out. First, the judges dealt with the process to be adopted when courts hear applications related to mental health status. The discussion of these issues, with the judges’ interpretation of the law, will be important for other families and legal professionals, since mental health problems, including dementia among older people, is as prevalent in Uganda as anywhere else.
The next two issues specifically concern the legal and judicial professions. However, as they relate to the proper functioning of the courts and the legal system, they are of more general public significance as well.
Judges’ ‘displeasure’ about advocate’s conduct
One of the lawyers involved in the dispute, appearing for Mohan, the Kiwanuka patriarch, is Francis Buwule. The appeal judges criticised the role Buwule played, finding, among other problems, that he swore to an affidavit in the matter, and appeared at the hearing to argue the same matter.
The judges said they noted this conduct ‘with displeasure’: professional regulations binding on advocates say lawyers cannot be both a witness and counsel in a matter. An advocate must elect ‘to either appear as counsel or as a witness for his client, but not both.’
In this case, there was ‘no doubt’ that, ‘in swearing an affidavit in reply to the application which is highly contentious, and also appearing at the hearing of the application to represent (Mohan)’, Buwule ‘flouted’ these regulations. The bar on such behaviour was ‘couched in mandatory language’, and it didn’t matter whether the advocate who deposed to the affidavit appeared in a personal capacity or on brief for a fellow advocate (as happened here).
Since the judges considered Buwule’s appearance for Mohan ‘irregular’, they ruled that any representation by him would be ‘disregarded’.
Advocate referred to law council
Later in the judgment, the judges noted ‘with concern, the dishonourable conduct’ of the same advocate. They added, to the issues already raised, the fact that, in 2023, during an appearance in the high court, Buwule ‘admitted that the person on whose behalf he was appearing suffers from a mental disability’.
This cast doubt on the legality of the instructions allegedly given to Buwule by Mohan. ‘We think that this is a matter in which the law council should be deeply interested to confirm the factual existence and legality of those instructions.’ Could someone, whom his own advocate admitted suffered from a mental disability, give proper instructions, they asked.
The law council should investigate the ‘existence, legality, scope and propriety’ of these instructions. And the investigation should consider the ‘admitted mental state’ of the client, and whether the representation made as a result caused harm to the client.
High court interviewed alleged dementia patient in private
A third major issue in the judgment concerns an interview the trial court judge held with Mohan. This was part of the judge’s efforts to determine whether the patriarch had mental problems, a question he answered by saying there was ‘no evidence’ that Mohan was of unsound mind.
One of the key matters flagged by Jordan in the appeal was this inquiry, conducted by Ssekaana at a luxury Kampala hotel. There, the judge met Mohan in the presence of both counsel for about half an hour, followed by a private meeting between the judge and Mohan, without any counsel present.
His judgment showed that this private meeting had a strong influence on Ssekaana. But Jordan complained that his right to a fair hearing was infringed by Ssekaana’s private meeting, a complaint that the appeal court said was fairly made.
‘Every party must have access to evidence from the other side’
While a judge had the discretion to hold a private inquiry in such a case, there was no provision for that meeting to be held ‘in the absence of anyone else’, they said.
The constitution provided an inalienable right to a fair hearing, and that meant equality of arms in litigation: ‘every party must have access to the evidence presented by the other party and the opportunity to question it’, but it didn’t happen in this case.
While the judge apparently formulated the procedure for the private inquiry after consulting both sides, there was nothing in the record suggesting that Jordan’s counsel expressly consented to this procedure. ‘Without express consent, (Jordan) is right to feel that his right to a fair hearing was compromised when he and his counsel were locked out of part of the trial court’s private inquiry.’
No record of any part of the interview
To lock out one side was ‘simply indefensible in light of the non-derogable right to a fair hearing.’ And to make this ‘irregularity’ worse, there was no record of the inquiry. None of the proceedings of the inquiry, either with or without counsel, was recorded. ‘There are no notes from the judge … about the persons present … what questions were put to (Mohan) … and what (his) responses were.’
Everything ‘remained a secret’ between the judge and counsel, and then between the judge and Mohan. Despite the inquisitorial nature of the inquiry conducted by the judge ‘there is nothing that can justify (the judge) spending even a single second behind a closed hotel door with one of the parties to the case with absolutely no record of what they were discussing. This defect taints the inquiry, and the entire trial, with mystery and suspicion.’
The appeal judges said Jordan was right to be suspicious of what happened in the closed session, because there was no record of it. When a private inquiry was held into suspected mental illness, a trial court always had to reproduce ‘anything and everything said’ by the court and by the person whose mental capacity was being considered.
A record essential, ‘with nothing left out’
In all cases, the record of proceedings must be complete, with nothing left out. Everything had to be recorded verbatim including all the questions and responses because those responses are essential to a court making a fair and accurate decision.
Even if both sides agreed that an interview between the judge and the person whose mental status was being investigated could take place without counsel present, that still did not excuse the court from noting its private discussions. Without the presence of counsel, a full record was even more important.
The judges stressed that court records were public records, and the public had a vested interested in the proper exercise of judicial power. ‘How will judicial accountability flourish if trial judicial officers keep certain parts of the trials before them secret? How can other stakeholders, like appellate courts, confirm that judicial power has been properly exercised if the record of proceedings is not the full account of what transpired at the trial.’
Without transparency, judicial power ‘may be abused’
They said that if this problem was not ‘called out’, then ‘judicial power may be abused with impunity, to the detriment of litigants.’ There was no logical or rational ground not to record the closed-door court session between a judicial officer and a litigant on one side. This was ‘not the standard of fairness, transparency and equality of arms’ demanded by the constitution.
On the dispute itself, the appeal judges accepted the medical evidence that by May 2017, Mohan was already suffering from Alzheimer’s disease, a finding that vindicated Jordan’s motives. They added, ‘It is unfortunate that this remarkably sensitive issue, supported by medical evidence, has been reduced (to) a property war by (Mohan’s) counsel.’
They formally declared that Mohan was suffering from a mental illness and was unable to manage his affairs. The judges also ordered that all Mohan’s direct descendants and relatives should be able to have ‘unfettered physical access to him’. And they ordered an end to the existing situation, in terms of which a select group of family members was managing the estate. Instead, a family meeting of all the direct descendants and both wives was to appoint a manager of the estate. Failing this, the court would appoint such a manager.
Finally, a full account of all transactions involving the estate since May 2017 was to be drawn up and provided to Jordan.
Tragic private story with important public lessons
This is a tragic family story about the decline of a shrewd and wealthy businessman, but it also has important elements for litigation in Uganda more broadly. This is particularly so given unhappiness in Ugandan legal circles about the way some cases are conducted, and what some claim is the failure by certain judges to be scrupulously fair, open and transparent in matters where they preside.
Are the appeal court’s powerful comments on the judicial duty to be transparent, a turning point? Whatever the answer, the strong findings in this matter must surely re-energise everyone concerned about the need for transparency and impartiality in all litigation.
Read judgment