Uganda’s legal system is embroiled in yet another controversy over alleged political interference in judicial independence. This time, an official of the Attorney-General’s office wrote to the principal judge (roughly equivalent to a divisional judge president in South Africa) complaining about the outcome of a case and asking for him to take action. The principal judge duly did so, sending the judge who wrote the judgment and heard the dispute to sit in another court, and handing the file to a different judge. This tendency was first seen when the country’s President, Yoweri Museveni, wrote to the Chief Justice saying he was approached by a dissatisfied litigant, and asking that the CJ intervene. The latest case, however, could have considerable consequences, since the constitutional court has been approached to consider whether such actions infringe judicial independence.
These ongoing and increasingly frequent letters to senior Ugandan judges, instructing them to ‘deal with’ judicial decisions that are unpopular in government circles, have many serious consequences. One of the more alarming is that the senior judges, who obviously feel pressured into acting as the letters require, are effectively turned into unofficial one-person courts of appeal, in which only one side gets to state their case.
This was particularly obvious in the latest incident, involving the case of Plinth Consultancy Services against the Attorney-General and Inyatsi Construction.
An official of the AG’s office, deputy Solicitor-General, Pius Biribonwoha, wrote to the principal judge, Flavian Zeija, on Thursday, 19 September. His letter complained about the judgment in a case, delivered by high court judge Harriet Magala, at the end of August.
Request for ‘urgent administrative intervention’
Biribonwoha explains what he says is the serious impact of the decision on the government project involved. He says the government ought to have been made a party to the case and his office was concerned there might be additional orders that would further prejudice the government of Uganda.
‘The purpose of this letter therefore sir is to bring to your attention the above irregularities to which we request your urgent administrative intervention’.
By the following Tuesday, 24 September, just three working days later, Magala had been transferred. Another judge replaced her, via a reallocation note, with the letter of complaint attached, presumably so the new judge could see just how the decision of previous judge had displeased the AG, and through him, the government.
Complaint that AG ‘grossly misrepresents’ the dispute
On October 18, lawyers acting for Plinth wrote to Zeija. They said the correspondence between the AG’s office, Zeija and the new judge involved in the matter, had not been copied to Plinth or to them as Plinth’s lawyers. According to Plinth’s lawyers, the letter of complaint sent to Zeija by the AG ‘grossly misrepresents the position’ in the dispute.
They summarise the situation, and their version is completely at odds with what Zeija was told in the AG’s letter. Of course, even if the contents of this letter impressed Zeija, it was by then too late for the principal judge to do anything about it. The AG’s office made its complaint and Zeija immediately reacted, despite not hearing Plinth’s point of view.
At a minimum, that cannot be good for public confidence in Uganda’s judiciary as impartial or independent.
Challenge testing lawfulness of the intervention
But Plinth has now taken a further step. For the first time since such interventions by senior government officials began, the affected party has issued a challenge to the lawfulness of the intervention.
On Monday 28 October, the Court of Appeal officially noted that it had received a petition from Plinth, asking for the Constitutional Court to consider the events set in motion by the letter to Zeija from the AG’s office asking for his intervention.
The petition largely leaves aside the disputed facts of the litigation itself, and focuses instead on the intervention of the AG’s office and Zeija. Plinth asks the Constitutional Court to ‘interpret, construe and declare’ that the action of the AG in writing to Zeija demanding his ‘administrative intervention’ is unconstitutional because it infringes on judicial independence.
Further, they claim Zeija’s transfer of the initial judge in response to the AG’s letter, and his appointment of a second judge, infringed Plinth’s right to a fair hearing.
AG a partner in firm representing second respondent
Plinth also mentions a matter that would presumably cause shock in many other jurisdictions: the AG (first respondent in the litigation) is still a partner in a law firm, K&K advocates, and this law firm acts for the second respondent in the same litigation. According to the petition, K&K advocates also act for the second respondent in arbitration at the International Chamber of Commerce. This alleged relationship results in a conflict of interests on the part of the AG, and thus infringes Plinth’s right to a fair hearing on these grounds as well.
The petitioners add that Zeija has a ‘tendency’ to act unilaterally on purported complaints, and to ‘direct judges and other judicial officers on how to handle matters pending before them’. They give an example of where they say this has happened and add that Zeija also ‘outright’ withdraws files from high court judges and ‘summarily transfers them to far flung circuits’ in response to these complaints.
Plinth thus petitions for a declaration that the AG’s actions in ‘demanding “administrative intervention”’ contravenes various clauses of the constitution. They want a similar declaration in relation to the principal judge’s action in re-allocating the case file to a second judge ‘after suspiciously transferring the first trial judge’, on the grounds that both the right to a fair hearing and judicial independence are negatively affected.
‘Flagrant intermeddling’ by respondents alleged
They ask for a declaration that the transfer amounts to interference with the exercise of judicial functions by a judicial officer; and that, in acting on the basis of the letter of complaint, without giving Plinth a chance to be heard, the principal judge further contravened the guaranteed right to a fair hearing.
They want the Constitutional Court to find that the ongoing proceedings between the first and second respondent and Plinth, since reallocation of the judges, are ‘manifestly unconstitutional’ since they are founded ‘on the erosion of judicial independence … in light of the flagrant intermeddling’ by the respondents.