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Mabirizi v Kabaka of Buganda (Civil Appeal 13 of 2018)

Supreme Court · [2021] UGSC 32 · 2021 Recusal Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Ruling on the appellant's application for the recusal of a member of the coram (Tuhaise, JSC) in a pending civil appeal.
Decision
Tuhaise, JSC recused herself from the hearing of the appeal.

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Holding

On an application for recusal, a Supreme Court Justice declined to recuse herself on two grounds: a litigant's unsubstantiated perception of bias, arising from his having sought her removal from office, did not meet the objective reasonable-apprehension-of-bias test; and knowledge of a dispute acquired through earlier judicial proceedings is not the firsthand "personal knowledge" that would warrant recusal or qualify a judge as a witness. However, she recused herself on the third ground, because the appellant sought in the appeal to set aside a ruling she had delivered in the related Court of Appeal application. Sitting in that appeal would offend the principle nemo judex in causa sua — that no one may be a judge in their own cause.

Facts

When the appeal was called, the self-represented appellant informed the Court that he had written to all members of the coram, through the Registrar, requesting their recusal. His grounds were that he had complained against each of them to the Judicial Service Commission and had sought their removal from office, which he said bred animosity. Against Tuhaise, JSC specifically, he added that she had personal knowledge of the facts, having made a ruling in Court of Appeal Miscellaneous Application No. 257 of 2017, and that the appeal sought to set aside that ruling, so she would be sitting in her own appeal. The other members of the coram declined recusal immediately. Tuhaise, JSC deferred her decision to peruse the record referred to. Her earlier ruling had disposed of a Reference at a preliminary stage, on the basis that the head suit had been dismissed and proceeding would be moot. The Amended Memorandum of Appeal (at paragraph 5) sought to set aside that ruling.

Issues

  1. Whether the applicant's having sought the Justice's removal from office gives rise to a reasonable apprehension of bias warranting recusal.
  2. Whether the Justice's prior ruling in a related Court of Appeal application gave her personal knowledge of the facts of the appeal warranting recusal.
  3. Whether the Justice should recuse herself where a party seeks, in the appeal, to set aside a ruling she made in the matter below.

Orders

  • The application for recusal on the ground of questioned impartiality is declined.
  • The application for recusal on the ground of personal knowledge of the facts of the appeal is declined.
  • Tuhaise, JSC recuses herself from the hearing of the appeal on the ground that she should not be a judge in her own cause.

Key headnotes

Recusal of Judicial Officers — Apprehension of Bias — Objective Test
A judicial officer who is not a party and has no relevant interest in the subject matter will not be disqualified on the basis of an unsubstantiated or unreasonable apprehension of bias; the test is whether a reasonable, fair-minded and informed member of the public would perceive bias.
Recusal of Judicial Officers — Personal Knowledge of Facts — Distinction from Knowledge Acquired Judicially
Knowledge of a dispute gained by a judicial officer through pleadings and evidence in prior proceedings is not the firsthand "personal knowledge" of facts that grounds recusal; only such firsthand knowledge as would qualify the holder to be a witness amounts to personal knowledge.
Recusal of Judicial Officers — Nemo Judex in Causa Sua — Setting Aside Own Prior Ruling
A judge must recuse herself from hearing an appeal in which a party seeks to set aside a ruling she delivered in the matter below, since to sit would offend the principle that no one may be a judge in their own cause and the requirement that justice be seen to be done.

Legislation cited (7)

  • Constitution of Uganda art.28
  • Constitution of Uganda art.149
  • The Constitution (Recusal of Judicial Officers) (Practice) Directions, Legal Notice No. 7 of 2019 rule 5
  • The Constitution (Recusal of Judicial Officers) (Practice) Directions, Legal Notice No. 7 of 2019 rule 6(1)
  • The Constitution (Recusal of Judicial Officers) (Practice) Directions, Legal Notice No. 7 of 2019 rule 6(2)(a)
  • Uganda Code of Judicial Conduct Clause 2
  • Uganda Code of Judicial Conduct Clause 2.4.1

Cases cited (3)

  • Attorney General of the Republic of Kenya v Prof. Anyang' Nyong'o & 10 Others (EACJ Application No. 5 of 2007)
  • President of the Republic of South Africa v South African Rugby Football Union (Case CCT 16/98)
  • Male H. Mabirizi K. Kiwanuka v The Kabaka of Buganda (Court of Appeal Miscellaneous Application No. 257 of 2017)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.