Investigation and Removal from Office of Justice Elubu Michael for Incompetence

BAKAMPA BRIAN BARYAGUMA

MOBILE: +256753124713 / +256772748300;

EMAIL: bakampasenior@gmail.com;

WEB: www.huntedthinker.blogspot.com;

Kampala, Uganda.

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Tuesday, 6^th December, 2022.

To:

H.E. the President,

Republic of Uganda,

Office of the President,

P.O. Box 7168, Kampala, Uganda.

Your Excellency,

Re: Investigation and Removal from Office of Justice Elubu Michael

[Note for the reader: hard copies of this letter were duly served on H.E. the President and other government officers on Wednesday, 7 December, 2022, as evidenced by the stamps and signatures confirming receipt in the image here.]

1.                 Introduction

“If we do not defend justice, justice will not defend us,” Francis Bacon.

I humbly move Your Excellency to convene Cabinet and set in motion a process of investigating and removing from office, a judge of the High Court, Justice Elubu Michael, for incompetence under article 144 (2) (c) of the Constitution. He grossly mismanaged my case before him in a manner unexpected of a judge and to unacceptable levels, as explained below.

Mr. President, you are empowered by article 144 (3) of the Constitution to remove a judge from office for incompetence. You head Cabinet, which is mandated, under article 144 (4), to recommend to you the question whether the removal of a judge should be investigated. I therefore request you to table this matter before Cabinet for its consideration.

Your Excellency, the level of unseriousness exhibited by some judicial officers is gross, unacceptable and injurious to the stability and progress of our country. It is not funny anymore! As a matter of fact, when I was still waiting for the decision of Justice Elubu Michael, one seasoned advocate told me, in reference to High Court judges, that, “Ahhhh...! Those ones are unpredictable and unserious! You walk with a notice of appeal in the pocket.” As it turned out, quite sadly, the advocate was right: I eventually needed one. I remember that when I was still a university student 10 years ago, such dismissive perceptions and tendencies were often held of magistrates. Many magistrates say or think that since they are not courts of record, they are free to write anything in their judgments and any unhappy person may go to the High Court for correction. It is unfortunate that this rot is now at the High Court. Very soon this carelessness will be at the Court of Appeal and the Supreme Court if the mess is not cleared.

Mr. President, as may be seen in the tone of my letter, I am very disappointed and angry; but certainly not bitter. I am very sorry about this. But if anyone places himself or herself in my position, he or she will understand where I am coming from. Like King Leah, in William Shakespeare’s play, King Leah, I am a man more sinned against than sinning. As for my uncharitable remarks to and descriptions of Justice Elubu Michael, the Good Book – the Bible – says in 1 Timothy 5:20, that, “Rebuke publicly all those who commit sins, so that the rest may be afraid.” Justice Elubu committed a great sin of subverting justice. This dehumanizes me, offends the conscience of humanity and profanes God. Justice Elubu Michael’s removal from office is therefore in defence of justice itself.

However, I am worried that Justice Elubu Michael and his sympathizers may most likely attempt to frustrate this endeavor through bogus legal machinations, for him to escape liability and evade justice. I inform such people in advance that this is an administrative measure in the Executive that, under separation of powers, should not be unduly hindered by legalese in the Judiciary.

2.                 Appreciation and Commendation

“Sometimes it falls upon a generation to be great. You can be that great generation,” Nelson Mandela.

Before much ado, allow me to appreciate and commend Your Excellency for your sound and exemplary leadership in Uganda, Africa and the world. There is so much to thank you for that space is not enough here. Under your leadership, Uganda has grown tremendously in all respects of national development. Our image and reputation have also soared in the community of nations. Thank you.

More particularly, I thank you, Mr. President, for your zeal and commitment to the East African Community (E.A.C.). The E.A.C. presents great opportunities for people in this geographical area, but also for black people everywhere. We need a super-state of sorts to serve as a pillar and center of gravity for the black race, promoting Black people’s interests politically, economically, militarily and diplomatically, while also expanding the frontiers of freedoms. I may easily sound and pass-off like a Black Supremacist. But no, I am not. I am simply urged by practical reality and necessity. The Whites have the United States of America to speak for them; the Yellows (Chinese and other look-alikes) now have China to look out for them. Who is there for Blacks? No one! We cannot remain vulnerable like this. East Africans should be ready to play the role of guaranteeing the strategic defence and security of all Blacks so that we engage with other races from a point of strength – not weakness, moreover perpetual.

3.                 Background

“Even an ordinary man has a part in the fate of his nation,” Tangu Wu, in the movie, The King Is Invincible.

Mr. President, I was a Bar course student at the Law Development Centre (L.D.C.) in the 2012/2013 academic year. I saw several loopholes in the design and conduct of the course and witnessed intolerable abuse of power and privilege by L.D.C.’s lecturers and officials. So, occasionally, I wrote exposing these shortfalls and abuses and published my writings on noticeboards. As a result, I was frequently ridiculed, insulted, intimidated and threatened publicly with failure in examinations by L.D.C. lecturers, who placed power before virtue. But I did not capitulate and continued writing. Just that: writing. I put duty and justice before the fear of failure, for honour and loyalty to my country because, as was said by Cynthia Addai-Robinson (as Queen Regent Miriel), in the movie series, The Lord of the Rings: The Rings of Power, Season 1, Episode 8, at 35:07, “… the way of The Faithful is committing to pay the price. Even if the cost cannot be known. And trusting that, in the end, it will be worth it.”

Ultimately, I eventually failed the fourth and final term and was dismissed from the course. I appealed internally against my results and dismissal but my appeal was not heard. From then on, L.D.C. officials, led by Mr. Othembi Frank, have firmly frustrated all possible attempts to resolve this controversy. One wonders why they teach law if they do not want to follow and implement it. I have since confirmed that L.D.C. officials interfered with my results, since the official results they released conflict with my actual scored results. That is how much they hate me. This brings to mind and indeed vindicates the French philosopher, Voltaire, who, in The Age of Louis XIV, said that, “It is dangerous to be right in matters on which the established authorities are wrong.” L.D.C. is a damned, wretched and God forsaken place that ruins people’s lives and prospects!

Ultimately, in 2019, I sued L.D.C. in the High Court of Uganda for violation of my fundamental and other human rights and freedoms. The case was tried by Justice Elubu Michael, who dismissed it on technicality, with costs. I appealed to the Court of Appeal against the whole of his decision. The appeal is still pending there, as that court is yet to hear and determine it. But Justice Elubu totally mismanaged my case in a manner and extent unbelievable and unacceptable of a judge. It is precisely for this reason that I believe he is grossly incompetent and should be removed from the office he holds and occupies.

4.                 Guiding Considerations

“When a crime goes unpunished, the world is unbalanced. When a wrong is unavenged, the heavens look down on us in shame. … We will leave this record of our courage, so the world will know who we were and what we did. … None of us knows how long he shall live or when his time will come. But soon all that will be left of our lives is the pride our children feel when they speak our names,” Hiroyuki Sanada (as Oishi), in the movie, 47 Ronin.

The views expressed in this letter are guided by the following considerations–

(i)                Justice is sacred and all those who sit in judgment over others perform a sacrosanct duty. Therefore they must carry and exude a sacred sense of justice. That job should be taken very seriously and not be done perfunctorily (or working gadibe ngalye, as is said in Luganda, one of our local dialects).

(ii)             Justice is an indispensable pillar of society. It is so important that no society or civilization can grow and advance to greatness without it. A state or government that cannot deliver justice to people it leads has no right to govern or preside over those people; and the people are entitled to reject and resist such leaders through all legal and socially acceptable ways. As Mark Twain said, “Patriotism is supporting your country all the time and your government only when it deserves it.”

(iii)           Judges are mandated to interpret and apply the law, but they have no right to do so as they please. The purpose of interpreting and applying the law is to achieve justice. Justice is achieved when disputes and cases are resolved based on the inherent or intrinsic aspirations of the relevant law, evidence available, good sense and simple dictates of fairness like truth, decency and normative or moral judgments of what is right or wrong. Even where they enjoy discretion, it should be exercised judiciously – but not arbitrarily, without good basis.

(iv)           Losing a case is part and parcel of justice. In litigation, there must be a winner and loser, one way or the other. Even if it is a mediated settlement, there will inevitably be a party who is found culpable – at least more at fault than the other – but the parties negotiate and agree to let go of their claims against each other, give one another benefits (even if undeserved) and cease hostilities, considering their overarching mutual benefits like peace, harmony and reconciliation between them. So, winning is not the only indicator of justice.

(v)             Judges (and indeed all other judicial officers) are not perfect. As a matter of principle therefore, it is to be expected and is actually alright for a judge to be wrong in his or her interpretation and application of the law and legal principles. But this is only valid and acceptable insofar as it applies to complicated and shady areas of law – those that are generally still undergoing development. It does not extend to common, simple, well settled and salutary rules of law. Otherwise this will lead to condoning things like mediocrity and corruption. In this letter, I shall prove that Justice Elubu Michael is guilty of misinterpreting and misapplying straightforward laws and legal principles, for which reason he is incompetent and unfit to continue serving as a judge.

(vi)           In a democratic society (which our Constitution dictates Uganda should be) everyone is accountable under and according to the law. Everyone answers to someone. Much as it is very important for judges to enjoy independence and immunity, they must nevertheless be accountable, within the law, for what they do and how they do it. This is particularly more pertinent when they are found to have deliberately done wrong. Judicial independence and immunity are not licences for wanton commission of wrongs or breach of law. Accountability and independence are neither mutually exclusive nor corrosive of each other. On the contrary, accountability reinforces independence by eliminating tendencies of personal or external compromises to do wrong, thus ensuring a sense of care and responsibility in decision making.

5.                 The Incompetence of Justice Elubu Michael Exposed

“Truth vaccinates impunity,” Miguna Miguna, in his book, Peeling Back the Mask (2012), at 332.

I contend that Justice Elubu Michael is incompetent and unfit to continue serving as a judge, for misinterpreting and misapplying common, simple, well settled and salutary rules of law that have been known, respected and followed by all courts – some for hundreds of years. We are not talking about new fields like crypto currencies, artificial intelligence or even space science. No!

Mr. President, this letter is not intended to be a lecture in law to you or anybody else. Nevertheless, for purposes of guidance and/or clarification, I shall keep giving summarized positions of law on different aspects addressed in the letter. Below is an analysis of how the Judge exhibited incompetence in his unacceptable mishandling of my case before him.

5.1.         Accepting Inadmissible Hearsay Evidence

Hearsay evidence is testimony that a person cannot prove independently, on his/her own knowledge. In other words, the person did not, for example, see it himself, hear it first-hand himself or touch it himself. In simple terms, hearsay evidence is gossip (lugambo). Such evidence is generally not allowed in court. None of the few instances in which it can be allowed is applicable in this case.

When I filed my case in court, I named the people who harassed me at L.D.C. or were involved in the development of the case. None of them appeared as witnesses to give evidence on behalf of L.D.C., clearly because the case against them was very straightforward, strong and embarrassing. What they did, they brought the Secretary, Mr. Didas Bakunzi Mufasha, a man who knew nothing about the case, to testify on their behalf. Mr. Bakunzi never taught me, was not complained against, never played any part in the development of this case and in fact did not know me until I met him recently in 2018 while serving him (in his capacity as secretary) letters that were part of negotiations between myself and L.D.C.’s former Deputy Director geared towards resolving this longstanding dispute amicably. Mr. Bakunzi was simply a stranger to the case, who appeared as a witness to hoodwink court and help in subverting justice. On this basis, I raised a preliminary objection to his affidavit, quoted the relevant law and requested Justice Elubu Michael to strike (or throw) it out of the record. A court is obliged to resolve preliminary objections raised for its consideration.

But in his ruling, Justice Elubu did not resolve this objection! He only said that I raised it, at page 6. A copy of that ruling is hereon attached as “A” for ease of reference. Justice Elubu did not resolve this preliminary objection for three clear reasons: one, there was no room for him to maneuver and maintain L.D.C.’s affidavit on court record, such that the safest course was to ignore the objection; two, he needed to maintain the affidavit on record and thereafter rely on the counter objections raised in it to dismiss my case; and three, to consequently avoid the task of determining my case on its merits. Justice Elubu is a lazy man.

[Note for the reader: this is the first page of the ruling of Justice Elubu Michael in my case before him. The ruling is too long (14 pages) to be scanned and attached here in its entirety. A copy is however definitely available on file with me. Contact me if you are interested in getting the complete ruling.]

5.2.         Condoning Non-Payment of Court Fees

L.D.C. did not pay court fees for its pleadings (the affidavit in reply) in court, as required by law. I raised a preliminary objection on this and requested Justice Elubu Michael to strike out or throw out L.D.C.’s affidavit, as stated by law.

The law is that court fees must be paid before validly filing any pleadings in court. If court fees are not paid, an application should be formally made to the court seeking leave or permission to pay out of time. The court may give more time to pay court fees, if it (court) has power to do so. Otherwise, court should not consider documents for which court fees have not been paid. Other judges respect and follow these rules, but Justice Elubu Michael totally ignored them. To him, they probably counted for mere chicken shit.

In this case, L.D.C. did not pay court fees. They only paid the fees at my prompting, only after I raised the matter. Had I not raised it, they would not have paid the fees, thereby cheating government of its revenue. Moreover, they did not bother applying for leave/permission to pay the fees out of time. They paid at the last moment and brought a receipt of payment when filing their submissions. In any case, paying at this very last stage would not have been legally possible because it was way out of time since even their affidavit had been filed on extended time. Justice Elubu allowed them to file a reply late (out of time) although for me I vehemently objected to that extension of time.

So, what did Justice Elubu do in his ruling? He displayed mischievous cleverness by ratifying L.D.C.’s late payment of court fees. Ulalalala…! How can a judge ratify late payment of court fees? Is he a principal in the law firm that paid the fees late? I say this because in law, ratification works in sofaras a principal accepts the actions of his/her servants or subordinates. Anyway, there are three clear reasons why Justice Elubu did this weird thing: one, there was ample room for him to maneuver and maintain L.D.C.’s affidavit on court record, by twisting the law to serve their (him and L.D.C.) mischief against me; two, he needed to maintain on court record L.D.C.’s affidavit in reply by all means and thereafter rely on the counter objections raised in it to dismiss my case; and three, to avoid the task of determining the case on its merits. Mr. President, this is an unserious judge who should be removed from our judiciary.

5.3.         Faking Res Judicata

After failing to properly resolve my preliminary objections, Justice Elubu Michael proceeded to pretend to handle the case on its merits – and boy-oh-boy, what a wondrous mess he makes of things! By so pretending, the Judge was faking res judicata. This is a doctrine or rule of law which says that once a case has been fully decided by an authorized court, then that case cannot be entertained or handled again in that court or any other court. The court’s decision is final. In the context of this matter, the only way the decision can be challenged is by appealing against it to a higher court.

Justice Elubu Michael faked res judicata because in reality he did not dispose of my case on its merits. All he did is simply pick on things but without exhausting them. For example, in my letters to L.D.C. officials and indeed in my subsequent pleadings to court, I demanded that L.D.C. produces minutes of its Appeals Committee that is said to have met and determined my appeal against Bar course results. About 90% of the case is based on this aspect. L.D.C. did not bring those minutes. Yet Justice Elubu did not even talk about minutes anywhere in his poorly written and edited ruling! At page 13 of the ruling, he simply said that I disputed information that the Appeals Committee sat to hear and determine my appeal and that I said the letter written to me communicating the results of the appeal was a forgery. Yes, I did. But how and why? I disputed the genuineness of the letter by demanding minutes of the Committee’s meeting to verify its contents and therefore authenticate it. Why did Justice Elubu not address this crucial aspect of the case? He should have found and held L.D.C. guilty of non-disclosure of material documents and judged in my favour here. Anyway, me I know why he chose to conveniently disregard this aspect: first, he did not want to catch his friends and companions at L.D.C. whom he wanted to protect from liability and thereby ‘ensnare’ himself as well; and second, he wanted to hoodwink general readers of his ruling to escape their scrutiny, since they do not know that I actually demanded minutes of the Appeals Committee meeting. The interested public is cheated of this information.

The reason why Justice Elubu Michael pretended to be deciding my case fully on its merits was to prevent me from instituting another case in the High Court, after rectifying any loopholes in the original one. This way, the Judge legally and technically restricted me to appealing to the Court of Appeal. I guess if it were possible, Justice Elubu would have also closed this possibility. The other reason, as seen at pages 12 to 14 of his ruling, is that he wanted an opportunity to do public relations for L.D.C. from his judicial seat by showing that its examinations process is transparent and credible, contrary to mine and other people’s accusations that the process is tampered with and students’ results falsified. This whitewashes his friends at L.D.C. of claims of interference. There is sadism that unfortunately pervades our society today. As if laziness and incompetence were not enough, Justice Elubu Michael is a very terrible sadist!

5.4.         Making Wrong and Unfounded Assumptions

My case before Justice Elubu Michael was for enforcement of fundamental and other human rights and freedoms. This is very clear from the notice of motion which indicates that it is brought under article 50 of the Constitution and rule 3 of the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, 2008. Article 50 of the Constitution concerns enforcement of rights and freedoms by courts. So, it is remarkable and strange that Justice Elubu ended up guessing and assuming what I really wanted from him. At page 11 of his ruling, the Judge surmises that, “It would appear that the applicant intended to apply for prerogative writs but chose to proceed under the enforcement of Human Rights Rules. However if indeed it was prerogative orders that he sought, the applicant was caught by the limitation of time.” The man is not sure! It is funny.

Mr. President, in order to fully enjoy my guaranteed rights and freedoms, I asked for consequential orders from Justice Elubu to the effect that one, he issues an order prohibiting L.D.C. and/or its agents from threatening, bullying, and intimidating me; two, he orders L.D.C. to graduate me at the next available graduation ceremony, immediately after judgment; three, he quashes and expunges from public records L.D.C.’s forged letter, purporting to be a reply to my appeal against Bar course results of the 2012/2013 academic year; and four, alternatively, he orders L.D.C.’s Appeals Committee to meet unconditionally to hear and determine my appeal. These are just consequential orders which effectuate the enjoyment of rights and freedoms – and nothing more.

Yet quite shockingly, in a fantastic show of fertile imagination, Justice Elubu said, at page 10 of his ruling, that these are prerogative writs under judicial review! He said that I am asking for prohibition, mandamus and certiorari. This Judge concluded, at the bottom of page 10, that, “None of these prayers fall within the purview of the enforcement of human rights. These specific prayers are clearly premised on judicial review although they are not termed as such.” To an informed and competent mind, nothing can be further from the truth than this because when specifically addressing this issue, I emphatically told Justice Elubu Michael, at page 7 of my submissions in rejoinder, as follows:

This is properly a cause for enforcement of fundamental and other human rights and freedoms, seeking appropriate declarations and orders for realizing the same.

The belief and insistence by LDC that I should have applied for judicial review is erroneous because this is not properly a case for judicial review, which presupposes that that there is a decision made by the relevant body. In this cause, I contend that there was no decision made by LDC’s Examination Appeals Committee, and so there is nothing to review. It is for LDC to prove that there was indeed a decision made, by adducing minutes of the Committee’s meeting – which it has failed to do. I cannot apply for judicial review simply because LDC wishes so.

Sadly, Justice Elubu Michael ignored my clear and unambiguous plea and sheepishly towed the line set by my oppressors at L.D.C. and ruled against me, thanks to his sense of fertile imagination that created non-existent things.

5.5.         Unlawfully Requiring Corroboration

I accused L.D.C. lecturers of abusing, bullying and threatening me with failure in examinations, in open class. I adduced evidence of the writings I wrote while still a student, revealing the names of the ringleaders of this campaign and plot against me. None of the named abusive lecturers came to court to deny my accusations. Mr. Didas Bakunzi Mufasha, who testified on behalf of L.D.C., did not in any way discredit my statements against the lecturers.

The law based on numerous court decisions and for a very long time, both in Uganda and elsewhere in the common law system, is that in such cases, the claim or accusation stands proved because it has simply not been discredited. Nothing more is required or expected of the claimant to prove the assertions.

But quite shockingly, at page 13 of his ruling, Justice Elubu Michael required me to corroborate my case against the lecturers with independent evidence! He did not bother to explain why he departed with precedent/tradition to make such an onerous demand of me. I wonder how much independence the Judge requires of evidence that was not materially debunked at all. Corroboration, as far as I understand it, is not a requirement in civil cases. My testimony was enough. The Judge’s demand was therefore strange, ridiculous and unlawful, to say the least.

5.6.         Subjecting Me to a Very High Standard of Proof

Justice Elubu Michael had before him a civil case or suit. In such cases, the standard of proof required in law is balance of probabilities or preponderance of evidence. This simply means that something is more probable than not. In other words, that what is said to have happened most likely happened as stated. It can be disproved only if the contrary is proved.

Justice Elubu subjected me to a very high standard of proof by, first, unlawfully requiring me to corroborate my case against L.D.C. lecturers and officials. Second, as if this was not bad enough, by demanding independent accounts from me of things that only L.D.C. has and knows and then blaming me for its (L.D.C.) people not coming to testify in court to defend themselves against my claims about them. Wow! Wow! Wow!

In my pleadings and submissions before Justice Elubu, I stated that the Academic Registrar of L.D.C., Mr. Everest Turyahikayo, told me that the Appeals Committee did not hear and determine my appeal against Bar course results. Mr. Turyahikayo was L.D.C.’s Academic Registrar by the time Justice Elubu heard and determined the case, yet he (Mr. Turyahikayo) did not come to court as a witness to deny my testimony, if at all what I said of him was false.

Yet at page 13 of his ruling, Justice Elubu blames me for Mr. Turyahikayo’s not coming to court, saying that there is no independent account to verify my assertion that he told me that the Appeals Committee did not hear my appeal! Now, I wonder exactly what more independent account Justice Elubu expected from me in these circumstances. I think common sense dictates that Mr. Turyahikayo should have been the one to give an independent alternative account to contradict mine. Short of this, my case stands proved because it means that the truth of what I said is more probable than not. No sensible person can blame me here. But it seems common sense is not common to Justice Elubu Michael and so it was very easy for him to throw shame to the wind and blame me with a straight face. In so doing, he subjected me to too high a standard of proof, higher than the balance of probabilities or preponderance of evidence.

5.7.         Not Appreciating Existence of Concurrent Remedies

Justice Elubu Michael erroneously assumed that I wanted judicial review but disguised under human rights enforcement and concluded, at page 11 of his ruling, that, “The circumstances here are clearly that the two sets of prayers can only be properly made pursuant to wholly divergent legal regimes and rules.” Well, this shows that he does not appreciate or know that in law there exists concurrent remedies, such that it is open to me, the litigant, to choose which way, option or route to take.

Mr. President, there is no law that says a person cannot sue for human rights enforcement simply because judicial review is or was an available option. When the two remedies are possible, it is for me to choose which one to take, under the doctrine of election. For me I chose long ago to sue L.D.C. for human rights violations and not judicial review, because the former gave me ample time (now 10 years limit) to fully investigate my case, unlike the latter that is very time restrictive and constraining (three months limit). So, Justice Elubu is not entitled to criticize and penalize me for choosing the best option available to me.

Even then, for clarification’s sake, it should be noted that human rights reliefs necessarily embody judicial review remedies due to the supremacy of human rights that inevitably subsume judicial review remedies and the special nature of applications for enforcing human rights. So, there is nothing wrong in principle with granting prerogative writs in applications for enforcement of human rights.

5.8.         Ignoring Law on Technicalities Being Immaterial

Your Excellency, the nature of case before Justice Elubu Michael was a cause for enforcement of fundamental and other human rights and freedoms. Naturally, therefore, the case is governed by the Human Rights (Enforcement) Act, 2019, for which rules were made to be implemented i.e. the Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules, 2019. According to Justice Elubu, at page 10 of his ruling, these were the proper rules governing my case. Section 6 (5) of the parent Act states very clearly that, “No suit instituted under this Act shall be rejected or otherwise dismissed by the competent court merely for failure to comply with any procedure, form or on any technicality.” Yet the Judge ignored this law.

The stipulated procedure for cases of human rights enforcement is motion on notice. There are two joint and inseparable documents used in this procedure: a notice of motion and an affidavit supporting it. Principally, the notice of motion states in brief the grounds upon which the case is based and prayers or requests sought from court, while the affidavit narrates details of the case as it progressed over time and presents evidence to prove that case.

This is what I did in my pleadings of the case before Justice Elubu. But in my supporting affidavit, I substantiated the seven (7) main prayers in the notice of motion, with more specific prayers or requests. For example, in the notice of motion, I made a general prayer requesting Justice Elubu to order L.D.C. to observe and respect my fundamental human rights and freedoms. Then, in the affidavit, I substantiated this general prayer with specific prayers on respecting my rights to fair hearing, fairness in administrative decision making, education, etc. I also added there other prayers like on general damages. The idea was to make a claim and then follow it up with the necessary prayer or request to court.

Justice Elubu Michael took offence with this. At page 10 of his ruling, he said that it is improper to lay out prayers in the affidavit, reasoning that an affidavit states the evidence relied on and cannot properly be utilized for making prayers. He therefore restricted himself to my main prayers in the notice of motion. In other words, he rejected my substantiated prayers in the affidavit. Mr. President, this is totally contrary to the law under the Human Rights Enforcement Act. It is very absurd that a judge, whose job it is to apply the law, disobeys the law.

But even before that Act was made, our courts had for many years built jurisprudence or principles to the effect that shortfalls like those in my affidavit cannot cause rejection or dismissal of such a case. The law as established by the courts right from the Supreme Court, the Court of Appeal to the High Court, for many years, is that only incorrect acts of the most fundamental nature are null and void; that the administration of justice requires that the substance of a dispute should be investigated and decided on the merits because it is the substance, rather than the form, of an application which is material; that error and lapses should not necessarily debar a litigant from the pursuit of his rights; and that the basic principle is that the opposite party has been notified of the claim or matter brought against it and has had an opportunity to respond to and defend it. It is very unfortunate that in my case, Justice Elubu Michael ignored and trashed the well nurtured forest of authorities in our system and did his own things just to comfort and protect his buddies at L.D.C from blame and liability.

In effect therefore, by stating that merely failing to comply with any procedure, form or any technicality is immaterial in suits for enforcement of fundamental and other human rights and freedoms, the Human Rights Enforcement Act was simply codifying the longstanding principles that were laid down by our courts. Even if it can be argued that the Act is a recent legislation which Justice Elubu had probably not yet read, surely it cannot be successfully argued that he also did not know the jurisprudence of the courts he is part of. This points to only one thing: that Justice Elubu Michael is a grossly incompetent judge.

5.9.         Failing to Distinguish Precedents

A precedent is a decision of court that is used to decide future cases. In Luganda, this is expressed as, omusango omukadde gusala omupya. It is good practice, for many reasons, for courts to refer to earlier decisions for guidance on adjudicating disputes before them. But there must be similarity between the present case under determination and the earlier decided case. If they are different, then the earlier case cannot be a precedent for the new case. The two must be distinguished. This is known to even ordinary diploma in law students.

In my case before Justice Elubu Michael, the Judge heavily relied on an earlier case to dismiss the case before him, as was done in the earlier one. He relied on the case of Seguya Hillary Innocent Taylor (Acting Through His Recognised Agent Male H. Mabirizi K. Kiwanuka) Versus Attorney General of Uganda, Miscellaneous Cause No. 261 of 2019 (hereinafter “the Seguya case”). Now, the question is: was the Seguya case a proper precedent for the case before Justice Elubu? To answer this, we must look at and compare what was done in that case and what was done in my case. The guiding consideration is whether the two cases are similar or not. To draw distinction, one must look at two things in the cases: one, the legal regimes that were invoked; and two, the way remedies sought were phrased.

5.9.1.  The Legal Regimes Invoked

In the Seguya case, from the ruling of the trial judge, Hon. Mr. Justice Bashaija K. Andrew, other than the Constitution, the applicant brought his application under two legal regimes at the same time: the Judicature (Judicial Review) Rules 2009 (as amended) and the Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules 2019.

In my case, again other than the Constitution, I brought my application under one legal regime only: the Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure) Rules, 2008.

So, in this regard, from the perspective of the legal regimes invoked, there is a clear-cut difference between the two applications.

5.9.2.  The Way Remedies Sought Were Phrased

In the Seguya case, the applicant phrased his prayers to court as follows:

1. A declaration that the decisions/actions of the President of the Republic of Uganda, Yoweri Kaguta Museveni, the Government of Uganda Spokesperson, Ofwono Opondo, and the Uganda Police Force Director of Political Commissariat, Assistant Inspector General of Police Asan Kasingye, to block the Applicant through his twitter social media platform handle, @hillarytaylorvi, from following, viewing, contacting, replying, Iiking, tagging and retweeting the tweets on their twitter social media platform handles @KagutaMuneveni, @OfwonoOpondo and @AKasingye, respectively, which handles are used as public forums to disseminate information relating to the activities of their public offices in their official capacities and to get feedback from citizens, are illegal, procedurally improper, unreasonable and irrational.

2. An order of certiorari quashing the impugned decisions/actions of the said public officials.

3. An order of prohibition prohibiting the said public officials from any further blocking of the Applicant, through his said twitter social media platform.

4. General damages.

5. Costs of this application.

In the alternative to the above;

6. A declarations that the impugned decisions/actions of the said public officials, infringe on the Applicant's right against discrimination, guaranteed under Article 21, freedom of speech and expression, freedom of thought, conscience and belief guaranteed under Article 29, the Applicant's right to participate in the affairs of Government and in peaceful activities to influence the policies of Government guaranteed under Article 38, the Applicant's right to access to information possession of the state/Government guaranteed under Article 9, the Applicant's right to just and fair treatment in administrative decisions guaranteed under Article 42; amount to political persecution of the Applicant and beyond what is acceptable and demonstrably justifiable in a free and democratic society, prohibited by Article 43(2) of the Constitution of the Republic of Uganda.

7. A permanent injunction restraining said public officials from further committing the impugned acts, general damages for inconveniences caused and costs of this application.

In my case, the way I phrased my remedies sought can be seen in the ruling of Justice Elubu Michael, at page 9. But in order not to procrastinate reading, let me reproduce them here as well, since we are doing comparison:

1.                 The Respondent observes and respects the Applicant’s fundamental human rights and freedoms, in accordance with the Constitution;

2.                 An order prohibiting the Respondent and/or its agents from threatening, bullying, and intimidating the Applicant.

3.                 The Respondent graduates the Applicant, at the next available graduation ceremony, immediately after judgment;

4.                 The Respondent’s forged letter, purporting to be a reply to the Applicant’s appeal against Bar course results of the 2012/2013 academic year, be quashed and expunged from public records;

5.                 In the alternative, but without prejudice to paragraph 3 above, the Respondent’s Appeals Committee meets unconditionally to hear and determine the Applicant’s appeal, justly and fairly;

6.                 The Respondent compensates the Applicant for specified money lost, pays damages, and interest, as a result of the Respondent’s wrongdoing; and

7.                 This court makes such other orders it may deem fit, for the achievement of the ends of justice.

Again, there is a clear-cut difference in the two applications from the perspective of remedies sought. While in the Seguya case distinct judicial review remedies are sought alongside distinct human rights enforcement remedies in one application, in my case only consequential human rights enforcement remedies are sought in the application. I did not combine or comingle the two procedures.

Therefore, in all respects, the two cases are so different that one cannot be a precedent for the other. In the Seguya case, Justice Bashaija K. Andrew held that the applicant’s application was a fatally defective omnibus application that cannot be sustained and accordingly dismissed it with costs. To a competent mind, the question is why that application was deemed omnibus and the case dismissed; and the answer is because it was brought under two wholly divergent legal regimes at the same time and the prayers sought are disjointed in nature. This renders the application omnibus. Disjointedness denies the prayers the essential character of being consequential. That is it. Very simple! Justice Bashaija used colourful and flowery language in analyzing issues in his ruling that is interesting and pleasant to read. Justice Elubu Michael was so excited and swept off his feet by the language that he sheepishly followed the Seguya case without independent analysis and reasoning of his own. Mr. President, it is very unfortunate that a judge decides cases out of sheer excitement.

When one sees Justice Elubu belabouring to discuss the differences between judicial review and human rights enforcement, at page 11 of his ruling, in a bid to justify dismissal of my case, one may think that he is very intelligent. No! Not at all! He is just a copycat who simply copied and pasted findings and holdings from an earlier ruling of another serious and competent judge.

5.10.    Ignoring Context of and Misinterpreting Documents

Mr. President, reconciliation is very important in every society. In any dispute, the people involved must reach a point in time when they necessarily agree to reconcile, resolve the conflict, bury the hatchet and move on peacefully. In Uganda, this is so important that article 126 (2) (d) of our Constitution says that in exercise of judicial power, the courts should promote reconciliation between parties, in adjudicating cases of both a civil and criminal nature.

It is in this spirit and context that the former Deputy Director of L.D.C. (also doubling as Head of Academics), Mrs. Nakacwa Florence Dollo and I embarked on negotiations to end the impasse between us concerning the disputed Bar course examination results. Madam Nakacwa advised me to write a letter to management, through her, calling for review of my results and hear my appeal. In the letter, as in the appeal, I requested to repeat a subject called Civil Proceedings that I thought I failed. I wrote and delivered the letter on Monday, 9^th July, 2018. She went to consult her colleagues and got back to me over one month later, advising me to write to the Chairperson of the Management Committee, through the Director, Mr. Frank Othembi, requesting to repeat all the four subjects that, according to them, I failed in fourth term. She reasoned that doing this would avoid controversies and the need for hectic investigations and processes of determining my appeal, since all I would have to do is re-sit the papers I failed and go away. This presented a promise of overturning my dismissal. So, I wrote and delivered the letter on 20 August 2018. I was very excited and hopeful that L.D.C. would finally reconsider my matter and give me justice. In November 2018, the Deputy Director called me to her office. She told me that my request was rejected and showed me a note by the Director, Mr. Frank Othembi, saying that I failed the Bar course and should sit for pre-entry exams to be admitted afresh to re-do the course! This was very disappointing.

Justice Elubu Michael ignored all this underlying context of my letters and completely misinterpreted them, to suit his biased inclination in the case. At page 14 of his ruling, he superficially concluded that by these letters, I admitted failing exams, contradicted myself and lowered the probative value of my evidence. Then he kept saying (as if to emphasize) that he notes that prior to writing these letters, I consistently insisted that I passed all my papers. All these are not true! Actually, all along I thought and maintained that I had failed Civil Proceedings. Fortunately, after these failed negotiations, a sympathetic insider tipped me off that I actually passed all my subjects and gave me my actual results indicating that I passed the Bar course outright. This was when I served L.D.C. with a notice of intention to sue. The insider did this for me out of admiration for my commitment and determination to fight on relentlessly.

Moreover, had Justice Elubu Michael been smart enough intellectually, he would have realized that my case remains valid in spite of these letters. If for example, L.D.C. violated my right to a fair hearing by not hearing my appeal against Bar course results, the right remains violated even if I later on wrote a letter requesting to sit failed exams, in a reconciliation exercise. The letter does not correct or undo the wrongs originally done by L.D.C. So, the purpose of me presenting these letters in the case is to basically show the gravity of the wrongs done. But they cannot be used as a weapon against me. Only a quack can think so. Plus, had Justice Elubu Michael been competent enough in law, he would have realized that these letters point to other legal doctrines like legitimate expectation and promissory estoppel. By these principles, L.D.C. cannot be permitted to indulge or take me on a path of reconciliation and then later use my compromises to turn against me. The law shuns and prevents dishonest dealings.

6.                 Why Justice Elubu Michael Misconducted Himself

“Talent without ethics; skill without values; and knowledge without conscience are the greatest curse that can ever befall an individual, society or nation,” Chief Justice Dr. Willy Mutunga.

I was shocked and alarmed by the glaring and pervasive errors and inadequacies in the ruling of Justice Elubu Michael. Then I remembered threats issued to me by L.D.C.’s lecturers to the effect that I would not get favourable judgments in courts since lecturers and judges have networks that would ensure that it is impossible for me to win cases before them when I am in practise.

I suspected foul play and embarked on inquiring for possible connections between Justice Elubu and L.D.C. officials. I discovered that the Judge was a Makerere University, Faculty of Law classmate and 1992 co-graduand of L.D.C.’s director, Mr. Othembi Frank, a man under whose leadership and watch I was maliciously failed; and who has continuously played a critical role in frustrating efforts to amicably resolve my outstanding dispute with his institution. Justice Elubu and Mr. Othembi are still close friends up to this day. A copy of the graduation list is hereon attached as “B” for your reference.

Then, Justice Elubu is a university contemporary and friend of other officials of L.D.C, who are complained against in my cause for harassing me while still a student there and causing my fictitious failure in Bar course examinations. They are still close associates up to this day.

Justice Elubu was influenced by his good friendship and close association with Mr. Frank Othembi and his co-employees at L.D.C. to decide my case in a manner biased against me. The Judge purely acted as a hired mercenary, ignored the evidence presented to him and decided the case on basis of technical know-who to save the careers and reputation of his friends and associates in L.D.C.’s employment.

7.                 Appeals/Requests/Proposals

“… let justice flow like a stream and righteousness like a river that never goes dry,” the Bible, Amos 5:24.

Mr. President, this letter is principally addressed to you. But it also raises other matters that are more context-specific and therefore fall under particular domains of Government. Thus, the letter is copied to different stakeholders for their due consideration and input. Nevertheless, there should be no Great Wall of China in the appeals, requests and proposals made, such that nothing prevents one addressee from taking up recommendations made to another addressee.

7.1.         H.E. the President

Your Excellency, the cardinal duty of a court of law is to do justice. But the truth of the matter is that Justice Elubu Michael did the exact opposite in my case before him. He caused a traversity and mockery of justice. What Justice Elubu signed off and issued on 5 February 2022 was not a judicial ruling, properly called. Rather, it was simply a heap of rubbish! Only an incompetent judge can deliver such garbage to litigants seeking court assistance. Justice Elubu Michael is very incompetent as well demonstrated in segment 5 above.

He abused the process and sanctity of court. He gave meaning to the common belief and adage in Uganda that a poor man cannot win a case (Omwavu tawangula musango). Justice Elubu Michael is a crook, morally corrupt man, intellectually bankrupt and an unmitigated disaster in the judiciary. He should be held responsible and accountable for his wrongs. His mismanagement of my case forced me to appeal against his decision to the Court of Appeal, which caused me to sell off almost all things in my house in order to raise money to fund the appeal. I even sold off my bed and I am now sleeping on the floor. Can you imagine, Mr. President? I believe this is what other thousands of your citizens are going through as they seek justice in courts in this country that you are leading. I am just an example who has boldly come out to reveal this plight. I hope my sacrifice will help the many others out there who are suffering silently, through meaningful system reforms.

Mr. President, there is a big problem in the Judiciary that you, as Head of State and Government, should help resolve, because it matters who administers justice. On this note, as a starting point, I therefore once again reiterate my call and request that you be pleased to invoke your authority and prerogative to cause the investigation and removal from office of Justice Elubu Michael for incompetence, in accordance with our Constitution and other laws. Let him serve as an example for other wrongdoers in our court system.

Finally, Your Excellency, allow me inform you that controversies surrounding L.D.C. are longstanding and persistent. I believe you have received many complaints and concerns about it. It is high time this matter is put to rest once and for all. I have therefore devised a workable plan in a proposed Bill for Parliament to pass into law, geared towards breaking the monopoly of L.D.C. over the Bar course, by devolving the course to universities. We actually do not need L.D.C. at all. A copy of the proposed Bill is hereon attached as “C” for your perusal. [Note for the reader: a copy of the Bill is available online here - https://huntedthinker.blogspot.com/2022/12/the-legal-education-and-training-bill.html] Mr. President, this is indigenous thought that should be promoted – African solutions for African problems, indeed. Hopefully we shall meet one day and discuss my proposed Bill. I believe this plan will solve the L.D.C. menace. Actually, had there been an alternative, I would have left L.D.C. alone long ago and enrolled elsewhere. But I am stuck, with no other place to go to! My plan will therefore create viable and cost effective options in Uganda, enhance the quality of legal education, save scarce resources and reduce schooling time for students, among other benefits. This is very timely now when Government is restructuring its agencies to avoid irrelevance and duplication.

7.2.         The Rt. Hon. Speaker of Parliament

Madam Speaker, I came to Parliament requesting for the C.V. of Justice Elubu Michael but was told that you do not have it. I wanted it for purposes of ascertaining Justice Elubu’s previous connections with L.D.C. officials. I expected to find the C.V. there because since Parliament is the one that vets and approves judges’ appointments, they therefore leave with you copies of their C.V.s to keep in your archives. It is very important that Parliament keeps records of those it vets. Black Africans have lost their rich legacy and heritage to humanity largely because our ancestors did not keep records. For example, the longest reigning monarch in history was a Black Egyptian Pharaoh called Pepi II who reigned for 90 years, yet distorters and deniers of black civilization falsely claim that the longest reigning monarch was a French king who reigned for 74 years. This is not true. But because information about Pepi II’s reign is scanty, while that of the French king is in plenty, this common lie easily passes for truth. Government institutions like yours should lead our people in building a culture of astute record keeping.

That aside, through you, Madam Speaker, I call upon Parliament in general and legislators individually to support my plan for breaking L.D.C.’s monopoly by devolving the teaching of the Bar course to universities, for reasons given in segment 7.1 above, but also as stated in the memorandum to my proposed Bill, a copy of which is hereon attached as “C” for your perusal. From my interactions with some M.P.s, I find that they think that just because there is no other known country in the world where Bar course training is devolved to universities, it therefore cannot be done in Uganda. I think this is an indicator of low self-esteem. There are pioneers in everything. We can be the first to do this and the rest of the world learns from us. Why not? Therefore, Madam Speaker, I request you and Parliament to please support this local content. I shall be glad to meet you for further discussions on this proposed Bill, if it pleases you.

7.3.         His Lordship the Chief Justice

My Lord, Magistrates Courts and High Court are grossly and wantonly abusing the appeals process, using the availability of this mechanism to do substandard work themselves, hoping that upper courts will rectify their intentional errors. Indeed, in another case I am pursuing in the High Court, the trial judge (name withheld) told me, “Why don’t I just dismiss your case and you appeal?” even before reading through my file to ascertain the case’s merits. As you are making serious commendable efforts not only to eliminate case backlog in the judicial system but also to shorten the time leads for case disposal, some in your ranks are merely chasing statistics to catch up, at the expense of substantive and meaningful justice, so that it is said that in such-and-such a time, Justice so-and-so disposed of such number of cases and so he or she is doing a good job. But the decisions they render are hollow in analysis, shallow in reasoning and narrow in jurisprudential value, yet inevitably have far reaching implications. But let me be very clear: this is just generalization and is therefore not intended to be a blanket dismissal of the really fantastic job done by many judges and magistrates. I appreciate their good works. May God bless them abundantly. So, this is not an indictment of all and sundry on those levels of the Bench.

Your Lordship, abuse of the appeals process poses grave challenges and implications that are not good for the administration of justice. For instance, one, it stirs personal and public dissatisfaction and grievances, thereby undermining confidence in the Judiciary; and two, it definitely consumes excessive resources as those served with substandard decisions seek redress to higher courts. This causes unnecessary circulation of cases in the system, leading to lengthy and costly litigation. To me, this is also an element of case backlog because, to my mind, backlog should not just be the technical understanding of a case remaining undisposed for two years and above. If, for example, Justice Elubu Michael had done his job to expectations in my case, there would most likely be no need for appealing to the Court of Appeal; and certainly I would not be as angry and disappointed as I evidently am. But now the Court of Appeal has to hear the case and either determine it on its merits (as requested) or revert the file back to the High Court for fresh determination. Then the Justices or Judge concerned will end up spending resources (time and money) and energy that would have otherwise been saved, had the original duty bearer, Justice Elubu, done his job well. For me, the litigant, this means more expenses and suffering as I wait for justice to be done. I think the Judiciary should seriously look into this issue and devise ways and means of combating it.

Finally, focusing more specifically on my case before Justice Elubu Michael, I am informed that judges have research assistants; and so, Justice Elubu must also have had an assistant. How can it be that both the Judge and his assistant could be terribly wrong on common, simple, well settled and salutary rules of law? Did Justice Elubu Michael consult his assistant? If he did and the assistant gave him this legal advice, then that assistant should be fired. But even if the Judge was misled by the assistant, he (Judge) remains the primary duty bearer, whose endorsement, name and signature the decision carries, at the end of the day. He is still to blame and bears all the natural and probable consequences for issuing an extremely erroneous decision.

7.4.         The Chairperson, Judicial Service Commission

I came to the Judicial Service Commission (J.S.C.) requesting for the C.V. of Justice Elubu Michael, but it was denied to me. As you are aware, Justice Elubu's C.V. is now a public document, by reason of its having been submitted to the Judicial Service Commission and Parliament during the appointment process. So it should have been easy for you to give it to me on this account.

But after tossing me around for long, with false claims that my letter requesting for the Judge’s C.V. was essentially a discipline issue, I gave up and stopped coming. Later on, I received, via email, a letter in reply saying that you do not have his C.V. I only wanted it to find Justice Elubu’s university and year of graduation so that I confirm if indeed he has prior connections to L.D.C. officials, in my pursuit of justice. The J.S.C. would not lose anything if you gave me the Judge’s C.V.

But your refusal and denial had deep eye-opening and mind-blowing revelations for me. I think J.S.C. is not confident of the people it identifies and recommends to H.E. the President for appointment. So you end up nominating quacks and mediocres like Justice Elubu Michael. To this extent, the J.S.C. is itself incompetent. You should pull up your socks. I have also since found out that Justice Elubu was an employee of J.S.C. before being appointed Judge of the High Court. So you were just protecting your own from deserved scrutiny. The President and Parliament should be more careful with your recommendations.

7.5.         Justice Elubu Michael

I call upon (and indeed advise) Justice Elubu Michael to honourably resign and save the country unnecessary expenses and burden of investigating and removing a judge from office. This job is clearly not for you because you are not up to the task. Even calling you “Justice” is really a contradiction in terms. In fact, I feel embarrassed addressing you as “My Lord” or “Your Lordship.” Go and first learn the law and legal principles well enough to adjudicate cases; or better still, find other things outside adjudication that you can manage well. Your immediate exit from the Judiciary will be good riddance.

7.6.         The President, Uganda Law Society

Lawyers trade in the rule of law. Without it, they have no business or relevance in society. So when the rule of law is threatened or compromised, that poses an existential threat to the legal fraternity. But rule of law starts and thrives on fidelity or faithfulness to the law, which Justice Elubu Michael disregarded in my case. Therefore, lawyers must get truly concerned and do everything in their power to safeguard their trade, as a matter of self-preservation.

Through you, Sir, I therefore call upon and challenge the Uganda Law Society (U.L.S.), at the individual and collective level, to pick keen interest in all the critical matters raised in this letter. Your members are the immediate day-to-day users and consumers of court services. Do not reduce yourselves to mere convenient tools for use in the court machinery. That only relegates you to the periphery of court systems. Moreover, U.L.S. is a catchment area – a pool – from which future judicial officers, including judges, are obtained. Recalling the words of Dante that, “The hottest place in hell is reserved for those who remain neutral in times of moral crisis,” it is important that U.L.S. emphasizes, entrenches and protects safeguards designed to prevent future abuse and avoid abusers of processes such as was done in my case. The collapse of the rule of law marks the collapse of all of us.

7.7.         The General Public

I call upon Ugandans to take these matters seriously for the good of our country. Brainstorm and devise solutions in organized groups like professional bodies, think tanks, civil society organizations, political parties, religious and cultural institutions, media houses, education centres and so forth. Be bold, brave and courageous. Your country depends on it.

For God and my country,

 

Bakampa Brian Baryaguma

Mobile:       0753124713 / 0772748300.

Email:         bakampasenior@gmail.com.

Web.:          www.huntedthinker.blogspot.ug.

c.c.:   (i)      Rt. Hon. Speaker of Parliament

(ii)     His Lordship the Chief Justice

(iii)           Rt. Hon. Prime Minister

(iv)           Rt. Hon. Leader of Opposition in Parliament

(v)             Hon. Minister of Justice and Constitutional Affairs

(vi)           Chairperson, Judicial Service Commission

(vii)        Justice Elubu Michael

(viii)      President, Uganda Law Society