Wakilii

In Re Application for recusal of Hon. Justice Alfonse Chigamoy Owiny-Dollo - CJ (Miscellaneous Application 3 of 2021)

Supreme Court · [2021] UGSC 63 · 2021 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Ex parte application by notice of motion for the recusal of the Chief Justice from a presidential election petition
Decision
Application for recusal dismissed; the Chief Justice declined to recuse himself.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Chief Justice declined to recuse himself from the 2021 presidential election petition. Under the Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019, only a party to proceedings has locus to seek a judge's recusal, and under Article 104 only a presidential candidate may challenge a presidential election; the applicant, a non-party citizen, therefore lacked locus. On the merits, the test is whether a reasonable, objective and informed person, on the correct facts, would apprehend bias. Having represented the first respondent some fifteen years earlier and having attended official State House functions in his capacity as Chief Justice did not meet that test. The application was dismissed with no order as to costs.

Facts

Following the 14 January 2021 presidential election, in which Yoweri Kaguta Museveni was declared elected, the unsuccessful candidate Robert Kyagulanyi Ssentamu filed Presidential Election Petition No. 1 of 2021 in the Supreme Court. The Chief Justice, Owiny-Dollo, presided over a panel that on 9 February 2021 dismissed the petitioner's application to amend the petition. Male H. Mabirizi K. Kiwanuka, who was not a party to the petition, filed this ex parte application seeking the Chief Justice's recusal. He relied on two grounds: that in 2006 the Chief Justice had been a member of the legal team that represented Museveni in an earlier presidential election petition, which he argued caused automatic disqualification and gave the judge knowledge of disputed facts; and that the Chief Justice had visited Museveni at State House on two occasions in February 2021. The Chief Justice explained that the State House visits were official functions attended in his capacity as Chief Justice — to present the Judiciary budget and to attend a national commemoration of the martyrdom of Archbishop Janan Luwum — and were held publicly.

Issues

  1. Whether the applicant, who was not a party to the presidential election petition, has locus to bring an application for the recusal of a judicial officer.
  2. Whether the application raises grounds for the recusal of the Chief Justice from hearing the presidential election petition.

Orders

  • Application disallowed.
  • No order as to costs.

Key headnotes

Recusal of Judicial Officers — Locus Standi of Applicant
Under the Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019, locus to apply for the recusal of a judicial officer is vested exclusively in a party to the proceedings; a non-party, however vigilant, cannot bring such an application.
Presidential Election Petition — Locus Standi
Only a candidate in a presidential election has locus under Article 104 of the Constitution to challenge the election outcome or contest the conduct of the petition; general or abstract constitutional provisions cannot be invoked to extend that locus to other citizens.
Recusal of Judicial Officers — Test for Apparent Bias
The test for apparent bias is whether a reasonable, objective and informed person, acting on the correct facts, would reasonably apprehend that the judge has not brought or will not bring an impartial mind to bear on the adjudication of the case.
Recusal of Judicial Officers — Automatic Disqualification Distinguished
Automatic disqualification arises only where the judge is a party to, or has a relevant pecuniary, proprietary or other interest in, the cause; a judge's prior representation of a party as counsel falls into the second category, which requires the applicant to prove a reasonable apprehension of bias.
Recusal of Judicial Officers — Former Clients and Remoteness in Time
A judge who was formerly an attorney for a party is not perpetually disqualified from hearing matters involving that party; the remoteness in time of the prior professional engagement is a material consideration weighing against recusal.
Recusal of Judicial Officers — Burden of Proof and Duty to Sit
The burden of establishing a reasonable apprehension of bias lies on the applicant, who must adduce cogent evidence rather than mere allegation; judicial officers have a duty to sit, and litigants have no right to choose the judge who hears their case.
Recusal of Judicial Officers — Disclosure and Official Conduct
Failure to disclose facts already within public knowledge cannot ground an apprehension of bias, and a judge's attendance at official functions involving a party, in the judge's official capacity, does not give rise to a reasonable apprehension of bias.

Legislation cited (21)

  • Constitution of Uganda Article 104(1)
  • Constitution of Uganda Article 104(2)
  • Constitution of Uganda Article 28(1)
  • Constitution of Uganda Article 3(4)
  • Constitution of Uganda Article 17
  • Constitution of Uganda Article 133
  • Constitution of Uganda Article 155
  • Civil Procedure Act, Cap 71 s.98
  • Judicature Act, Cap 13 s.33
  • Judicature Act, Cap 13 s.39
  • Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 (Legal Notice No. 7 of 2019) rule 4
  • Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 (Legal Notice No. 7 of 2019) rule 5
  • Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 (Legal Notice No. 7 of 2019) rule 7
  • Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019 (Legal Notice No. 7 of 2019) rule 8
  • Uganda Code of Judicial Conduct, 2003 Principle 2 (paras 2.1, 2.2, 2.4)
  • Presidential Elections (Election Petitions) Rules, S.I. No. 13 of 2001 rule 15
  • Civil Procedure Rules Order 52 rule 1
  • Judicature (Supreme Court Rules) Directions, S.I. 13-11 rule 2
  • Judicature (Supreme Court Rules) Directions, S.I. 13-11 rule 42(1)
  • Bangalore Principles of Judicial Conduct, 2002 paragraph 2.5
  • Administration of the Judiciary Act, 2020

Cases cited (27)

  • Alcon International v New Vision (Civil Application No. 4 of 2010)
  • Ssekikubo & Others v Attorney General & 4 Others (Constitutional Appeal No. 1 of 2015)
  • Prof Isaac Newton Ojok v Uganda (Criminal Appeal No. 33 of 1991)
  • President of the RSA v South African Rugby Football Union 1999 (4) SA 147 (CC)
  • Take and Save Trading C.C. & 4 Others v The Standard Bank of S.A. Limited- Case No. 21 of 2003
  • R v Rand (1866) LR 1 QB 230
  • R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256
  • Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 All ER 304
  • R v Altrincham Justices, Ex parte Pennington [1975] 2 All ER 78
  • R v Gough [1993] AC 646
  • Porter v Magill [2001] UKHL 67
  • R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet (No. 2) [2000] 1 AC 119
  • Attorney-General v Anyang' Nyong'o & Others [2007] 1 EA 12
  • Mulugeta Guadie Mengiste v Endowment Fund for the Rehabilitation of Tigray [2013] EWCA Civ 1003
  • Uganda Polybags Ltd v Development Finance Company Ltd (Misc. Civil Application No. 2 of 2000)
  • Galaxy Paints Co Ltd v Falcon Guards [1999] 2 EA 83 (CAK)
  • O'Driscoll v Hurley [2016] IESC 32
  • Meera Investments Ltd v Commissioner General URA (Civil Appeal No. 15 of 2007)
  • Hamilton v Pendleton, 237 P. 611 (Okla. 1925)
  • Bradford v McLeod 1986 SLT 244
  • Piersack v Belgium (1982) 5 EHRR 169
  • Hauschildt v Denmark (1989) 12 EHRR 266
  • Laird v Tatum 409 US 824 (1972)
  • Re JRL; Ex parte CJL (1986) 161 CLR 342
  • Webb v R (1994) 181 CLR 41
  • Rtd Col Dr Kizza Besigye v Yoweri Kaguta Museveni & Electoral Commission (Presidential Election Petition No. 1 of 2006)
  • Bush v Gore, 531 US 98 (2000)
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