BAKAMPA BRIAN BARYAGUMA
MOBILE:
+256753124713 & +256772748300;
EMAIL:
bakampasenior@gmail.com;
WEB
ADDRESS: www.huntedthinker.blogspot.com;
Kampala,
Uganda.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Friday, 31st
January, 2025.
To:
Hon.
Justice Esta Nambayo,
Courts
of Judicature,
High
Court of Uganda at Kampala (Civil Division),
Kampala,
Uganda.
Your Lordship,
Re:
Application/Request to Recuse Yourself from Hearing Miscellaneous
Application No. HCT-00-CV-MA-0911-2024, Bakampa Brian Baryaguma v. Attorney
General.
[Under
Practice Directions 5 and 7 of The Constitution (Recusal of Judicial Officers)
(Practice) Directions, 2019, Legal Notice No. 7 of 2019.]
 |
| I served the letter to all concerned stakeholders as can be seen from their stamps acknowledging receipt of it. Court copies were filed electronically via ECCMIS as required by law, but I also took initiative to deliver a hard copy to Justice Nambayo through her clerk. |
1.
Introduction.
“If
we do not maintain justice, justice will not maintain us,” Francis Bacon.
Thank you very much for
the good work you are doing for our country, Uganda. God bless you abundantly.
My Lord, I have the
unenviable task of requesting you to refrain from hearing Miscellaneous Application No. HCT-00-CV-MA-0911-2024,
Bakampa Brian Baryaguma v. Attorney General (hereinafter “MA 911/2024”)
and recuse yourself from adjudicating it.
As you are aware, I
sued the Government of Uganda in 2021, through the Attorney General, in this
court vide Miscellaneous Cause No. 129 of
2021, Bakampa Brian Baryaguma v. Attorney General (hereinafter “MC
129/2021”), for violation of my fundamental and other human rights and
freedoms. You heard that case and dismissed it from court on Friday, 22nd
March, 2024.
I am aggrieved by your
dismissal of my case from court and have duly applied for it to be reviewed. Pleadings
in the application have been completed and are now closed. By automatic
application of the law, under order 46,
rules 2 and 4 of The
Civil Procedure Rules, Statutory Instrument 71–1, the case should come
back to your Lordship for review of the same. I am, however, extremely uncomfortable with you hearing this application
for review, for reasons given hereunder, and humbly request you to recuse
yourself from it.
But before much ado, I
would like to inform your Lordship that I have found it necessary to copy this
application/letter to other stakeholders in the justice sector, notably the
Honourable Minister of Justice and Constitutional Affairs, because the letter
raises pertinent matters of general public importance and/or concern in the
administration of justice in this country, which I think the stakeholders,
being directly responsible at the policy, administrative and political levels,
should know and find ways of remedying/addressing urgently.
2.
Reasons
for Applying/Requesting for Recusal.
“Injustice
anywhere is a threat to justice everywhere,” Martin Luther King, Jr.
The following are my
reasons for applying/requesting for your Lordship’s recusal from hearing this application
i.e. MA 911/2024.
A.
Questionable
Impartiality.
I doubt, and indeed
question your Lordship’s impartiality in this matter because during hearing of
my cause from which the application for review arises, in your chambers on
Thursday, 1st September, 2022, you made an inappropriate comment that,
“Why don’t I just dismiss your case and
you appeal?” even before reading through my file to ascertain the case’s
merits. My doubts and questioning of your impartiality are not afterthoughts following
your dismissal of my cause, as I have constantly lived with them ever since the
hearing. I held those fears even up to the very day when you issued your
ruling, as can be seen in my letter to the Chief Justice proposing amendments
to the rules of civil procedure in courts that is available online here: https://huntedthinker.blogspot.com/2024/03/proposed-amendments-to-civil-procedure.html.
Nothing could probably
be more coincidental than your ruling and my letter because apparently as you
finalized writing the ruling and signed it off, I also finalized the letter,
judging from the fact that both are dated the same day and were delivered to
their intended recipients at roughly the same time: the ruling was delivered to
my email at 4:10 PM, while I delivered my letter in the Chief Justice’s chambers
at about 3:30 PM. In the letter, at page 11, lines 251-252, I commented on MC 129/2021 saying that, “…one of the
options available to the learned trial Judge, Nambayo J, in her ruling, is
dismissing the cause.” So, as you can see, up to the very last minute, I walked
in anticipation of you dismissing my case, as you promised – and you did not
disappoint.
By-the-way, those who
read my complaint to H.E. the President against Hon. Mr. Justice Michael Elubu,
dated Tuesday, 6th December, 2022 (available
online here: https://huntedthinker.blogspot.com/2022/12/investigation-and-removal-from-office.html)
may want to know that you are the judge I was referring to, at page 28, lines
697-699, when I wrote that, “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.”
From that comment, it
is clear that in your Lordship’s mind the only feasible remedy for me now,
after your dismissal of my case, is appealing to the Court of Appeal; yet here
I am invoking another remedy i.e. review of your decision. Since, from your
inappropriate comments, you immediately concluded that the case was hopeless
and that the hearing of it represented a disgraceful waste of judicial
resources, I am sure you hold the same opinion and attitude of this case for
review and cannot reasonably be expected to be impartial in its adjudication. You are already biased and therefore
unable to review this case impartially.
To my mind, the
applicable test for bias was supplied by Chief Justice Alfonse Chigamoy
Owiny-Dollo in the case of In Re Application
for Recusal of Hon. Justice Alfonse Chigamoy Owiny-Dollo CJ, Miscellaneous
Application No. 03 of 2021
(hereinafter “In re Owiny-Dollo”) that I accept as the authority in our realm in
which the appropriate test was most recently elucidated. The learned Chief
Justice said, at pages 22-23 of his ruling, that,
I therefore
find the correct test for bias to be “whether a reasonable, objective and
informed person, acting on the correct facts, would reasonably apprehend that
the Judge has not or will not bring an impartial mind to bear on the
adjudication of the case”. The ‘mind’ referred to herein is one that is
open to persuasion by the evidence and submissions of Counsel. The
reasonableness of the apprehension must be assessed in the light of the oath of
office taken by Judges to administer Justice without fear or favour, affection
or ill will. This is the duty to render justice without prejudice. (Emphasis is
in the original.)
Judging from your inappropriate comment stated above, I reasonably
apprehend that you, “… will not bring an impartial mind to bear on the
adjudication of the case” for review now before you because clearly you are
prejudiced, and so your mind is not open to persuasion. By that comment, you
have effectively judged the case even before it has been presented. For this
reason, my Lord, I respectfully request you to recuse yourself from this case.
I so pray.
B.
Exhibiting
Bias in the Cause.
Closely related to the
first reason above is another one, which is that you actually exhibited bias in your adjudication of MC 129/2021.
In your ruling, your
Lordship found and held that there is no evidence presented at all to show that
I was ever subjected to abuse as alleged and that all I did was to sit down and
write as if I was presenting a moot problem. In other words, your Lordship said
that my case is non-existent, is a forgery, and that I am a liar.
But actually there is
evidence presented in the cause and had you looked more intently and
open-mindedly, you would have seen and appreciated it. I presented oral/direct evidence which is
permissible under sections 58 and 59 of The Evidence Act, Cap. 6.
The import of the sections is that all facts, except the contents of documents,
may be proved by oral evidence, which must be direct in all cases, meaning that
if it is evidence of a fact which could be seen, heard, perceived, or opinion
held, then it must be
the evidence of the person who saw it, heard it, perceived it or holds that
opinion.
Your Lordship, in my
pleadings in MC 129/2021, I accused
the Attorney General, through his officers, of violating my right to respect
for human dignity and protection from inhuman treatment; violating of my right to personal
liberty; violating my right to food; and violating my right to health and medical
treatment. To support and sustain these
accusations, I made averments in my affidavit in support of notice of motion
showing that I testified to things that were done to me. I therefore saw, heard
and perceived them myself, hence qualifying and passing as oral/direct
evidence. It was therefore clear exhibition of bias for you to say that there
is no evidence presented at all to show that I was ever subjected to abuse as
alleged and that all I did was to sit down and write as if I was presenting a
moot problem.
But, suppose it is
argued that you were not prejudiced and biased against me, but that you merely
held a wrong view leading to you making a wrong decision. Still, such argument
cannot stand considering that you made totally contrary decisions in other
cases very similar to mine. One such case is your ruling in RO
10224 Retired Lieutenant Ali Nangosha Kundu v. The Attorney General of Uganda,
Miscellaneous Cause No. 229 of 2018 (hereinafter “Nangosha v. AG”). In
that case, the Respondent (Attorney General) was served with the Applicant’s
pleadings but did not file a reply to the application – just like in my cause, MC 129/2021. Plus, in Nangosha v. AG, a state attorney from
the Attorney General’s chambers appeared for the hearing on behalf of the AG –
just like in my cause, MC 129/2021 because
according to the certified record of proceedings, Ms. Elizabeth Semakula
appeared in court for hearing on 11th January 2022 and sought an
adjournment. To this extent, Nangosha v.
AG is on all fours with my case
now under review. Yet, ironically, your Lordship held totally conflicting views
in both cases: in Nangosha v. AG you
said that all the facts stated in the application and the accompanying
affidavit are true since the AG opted not to file a reply after being served
with the application, while in my case, you said that it was drafted as if it
is a moot problem. What a contradiction!
Perhaps you may argue
in your defence that in my cause, I did not attach any documents to confirm my
claims, whereas in Nangosha v. AG there
were documents attached to confirm the claims. Now, in law such documents are
technically termed as real evidence. I
believe you understand well the concept of real evidence and so I need not
belabor giving an elaborate explanation of it here. Suffice to say that real
evidence is not a mechanical matter, to be invented and presented in each and
every case. If it does not exist, it need not (and cannot) be adduced in court;
and that by itself does not make the case presented moot. Rather, it is the
duty of a party having real evidence to adduce it in court during trial. Thus
you will find that in this review application, MA 911/2024, the Attorney General has adduced a letter dated 20th
May 2021 accompanied by lock up registers of the days I was detained and
released from custody, both obtained from the Inspector General of Police. This
real evidence of the letter and lock up registers confirms that I was truly in
police detention as stated in my pleadings and so my case cannot be
moot/non-existent as your Lordship found and held in your ruling. Of course,
the Attorney General bringing these documents now is a misguided, disingenuous
and legally untenable attempt by him to belatedly adduce evidence and
disguisedly defend the cause in this review application – something I cannot
allow to go unchallenged. He should have brought them in the cause. It is now
too late in the day for him to do that.
Then, by-the-way, you
may realize that section 58 of The
Evidence Act on proof of facts by oral evidence excludes the contents
of documents from being proved orally. That exception is instructive to note because
it shows that real evidence (like documents) is not the only mode of proof that
is possible in a court case. Hence, if the documents are there and available to
a litigant in a case, then they should be adduced in evidence, but if they are
not (like I did not have them in my cause, MC
129/2021) then they definitely need not be presented because real evidence
cannot be manufactured. For instance, had a police bond form been issued to me
upon my release from detention at Central Police Station, Kampala, I would have
definitely attached it to my pleadings. But those were days of Covid-19 and Uganda
Police was easily releasing detainees, especially those on minor offences like
me, in order to decongest police cells. So, as a judge, you cannot expect me to
adduce a police bond form to confirm that my right to personal liberty was
violated. My testimony – moreover uncontested – is enough. And, for your
information, there are many situations where cases succeed on plain, persuasive
averments of parties, for example oral contracts, circumstantial evidence and
events occurring in private spaces such as disputes in domestic relations. So,
lack of real evidence is no indicator of mootness of a case, as you supposed.
Probably it may be said
that if a court of law accepts such a case as mine that does not have
supporting real evidence, then that will
open floodgates, thereby allowing lies and unfounded cases to flood in courts.
While this may be a valid concern, that cannot be a justification for wholesale
rejection and dismissal of otherwise true cases. That will result in
entrenchment of injustice and oppression. Since most facts with which a court
is concerned are not capable of being tested empirically, proof in the legal
sense is quite different from proof in the context of mathematics or science. Thus
the uncorroborated evidence of one credible witness is sufficient proof for
most purposes in the law. This is precisely the reason why we have in existence
laws like order 8, rule 3 of The
Civil Procedure Rules, Statutory Instrument 71–1 and court precedents like
Prof.
J Oloka-Onyango & Others v. Attorney General, Constitutional Petition No.
08 of 2014, which are to the effect that where one has alleged a fact and the person against whom the fact is
alleged, does not deny, he is presumed to have accepted that fact. Accordingly,
your Lordship’s decision in my uncontested case, MC 129/2021, that there is no evidence presented at all to show
that I was ever subjected to abuse as alleged and that all I did was to sit
down and write as if I was presenting a moot problem is a negation of the above
provisions of the law, rendering them meaningless and non-existent, and consequently
causing gross miscarriage of justice to me. Your duty as a court of law is to
make the rules effective and workable, not inept and inoperative.
Maybe to assuage those
still holding the floodgates fears,
let me say that at the end of the day, it should be understood that the job of
dispensing justice should be left to the best among us and indeed only the best
of us should be chosen to do it. Judicial officers must be able to succinctly discern
fact from fiction, on close scrutiny, without confusing or mistaking one for
the other. Those who cannot measure up to the task should not be tolerated and be
weeded out of the judicial system. So much for this matter.
It follows, therefore,
from the foregoing, that the trial of the cause, MC 129/2021, giving rise to this review application, was unfair, your
Lordship having exhibited bias and prejudice against me, having baselessly concluded
that there is no evidence presented at all to show that I was ever subjected to
abuse as alleged and that all I did was to sit down and write as if I was
presenting a moot problem, yet in fact I presented oral/direct evidence in the
case to confirm my claims. Your mind was clouded by your immediate conclusion at
the hearing of the cause on Thursday, 1st September, 2022, that it was
hopeless and that the hearing of it represented a disgraceful waste of judicial
resources, as can be seen from your inappropriate comment that, “Why don’t I
just dismiss your case and you appeal?” even before reading through my file to
ascertain the case’s merits. You had effectively
judged the case even before it had been presented and closed, thus satisfying the
test for bias enunciated in the case of In re Owiny-Dollo. Your decision
is not to command respect by any innate justice or morality. Hence, for reason of exhibiting bias in my cause, I request
your Lordship to please recuse yourself from this present case for review of your
ruling in the cause. I so pray.
3.
General
Observations on the Administration of Justice.
“The
hottest place in hell is reserved for those who remain neutral in times of
moral crisis,”
Dante.
In 2020, soon after I
started litigating in this court (the High Court), I was told by some practitioners
that it is very hard to win against government in court. When I asked why that
was so, they said it is because of compromises on the part of judges, explaining
that it is one way for them to express their loyalty to those in power and
endear themselves to their appointers, hoping even to receive more favors and
privileges. I was told that even the Minister of Justice, Hon. Norbert Mao, speaking
in a news report, expressed concern that some judges decide cases involving
government as if they are government themselves. In other words, that they take
such cases personal. I did not watch or hear the report myself, but I have no
reason to doubt the credibility and authenticity of my sources. With particular
reference to MC 129/2021 from which
this application for review arises, I was told in no uncertain terms that since
it involves the President I should expect to lose it. Initially I thought that
to be a weak reason and did not give it much attention. But when I finally
appeared before Justice Nambayo Esta and she made the inappropriate comment
mentioned above at page 2, lines 47-48, I realized that I was truly naïve and simply
inexperienced in these matters.
But even before I appeared
before her, there was an attempt to interfere in the case by losing its file so
that it is not presented in court. I filed it on 23rd April 2021 and
then the file went missing for the next five months until Wednesday, 15th
September, 2021. During that time, I made frantic efforts to have it located
and copies given to me for service on the Attorney General, but the Judge’s
clerk, Ms. Nakacwa Jennifer, kept tossing me up and down with all sorts of lies,
until I was convinced that the file was lost. On Monday, 16th
August, 2021, I wrote and published a blog post here: https://huntedthinker.blogspot.com/2021/08/how-can-modern-judiciary-lose-court-file.html,
wondering how a modern judiciary can lose a court file, which I also circulated
on various social media platforms. Following this publication, Ms. Nakacwa
informed me, on Thursday, 26th August, 2021, that she had found the
file, but that the registrar had not yet signed and sealed it, and advised me
to wait. She kept telling me to call her after a few hours or days, until she
stopped picking my calls. So, on Friday, 10th September, 2021, I
wrote a letter to the Deputy Registrar of the High Court Civil Division, reporting
the loss of my file. On Wednesday, 15th September, 2021, Ms. Nakacwa
called to tell me that my file was found and asked me to come for copies of my
documents. I did so on Thursday, 16th September, 2021 and served the
Attorney General, who did not file a reply, prompting me to apply to proceed ex
parte. Whenever my case came up for hearing, the Judge would not be around and
it would be adjourned. Fed up of the adjournments, I tried to get a registrar to
hear my ex parte application but my attempts failed. I finally met Justice
Nambayo Esta at the hearing of Thursday, 1st September, 2022. I
found her very angry for reasons best known to her, although I suspect the
anger was fuelled by my spirited pursuit of the case. The rest, as the saying
goes, is history, until her manifestly biased ruling that is in favour of the Attorney
General i.e. government. Clearly this was a highly syndicated trial between the
court and Attorney General’s Chambers. It is regrettable that instead of these
courts modeling us as beacons of civilization, they are leading us into a
cesspool of corruption and decay. Perhaps the warnings and words of caution I
received from the advocates that it is nearly impossible to win against
government in its courts of today, no matter how good your case is, must have
been right. Moreover, in further reference to my particular situation, Justice
Nambayo Esta’s prejudicial ruling followed the scandalous ruling of another
High Court (Civil Division) judge, Justice Elubu Michael in February 2022, in
my case against Law Development Centre (a government agency), which shocked me
to the marrow. That ruling, the absurdity of which I analyzed and discussed in
the complaint alluded to earlier at page 3, lines 65-71, significantly lowered
my trust and confidence in our judiciary; so much so that nowadays when I come
across a really senseless court decision, I am not surprised at all.
In light of the
foregoing, I would like to take this opportunity to join numerous other voices in
warning against encouraging or inculcating a politicized judicial system – one
of courts without justice – in which the judiciary is a political arm of the
state designed for repression and quick fixes for rulers of the day. A
professional and impartial judiciary benefits both governors and commoners in
many respects including that it will defend those with power today when they
lose it tomorrow, thereby becoming vulnerable to the injustice and abuse they
constructed. A partial and intrinsically biased judiciary also frustrates other
judicial processes like out-of-court
settlement of disputes by disinteresting parties involved from pursuing
such mechanisms; because, for instance, why should a party who knows that the
judge is already in his or her pockets, and is therefore confident and assured
of victory, no matter the merits of his or her case, want to reach a negotiated
out-of-court settlement with the opponent? This state of affairs contributes to
backlog and continuous circulation of cases in the court system.
And so, it is obvious that
we cannot afford to have pseudo-politicians in judicial garbs because their
actions simply cause more harm and pain instead of curing or solving them. I
think they are better off resigning their judicial roles to go and do active
politics at political party or national level. They even do a disservice to
their colleagues who wake up every day to do a good, professional job in the
administration and dispensation of justice, by subjecting them (the
professionals) to undeserved mistrust and disdain. Such unscrupulous judicial
officers are an embarrassment to themselves, their colleagues and the country
as a whole. History, man and God will not look upon them kindly and will judge them
harshly. To them I say that you may probably consider yourselves untouchable,
which explains the noxious aura of impunity that follows your doings, but let
me remind you of the words of the French philosopher,
Montesquieu: “Be
ye ever so high, the law is above you.” One day you will account for your wrongs.
4.
Conclusion.
“Through
conflict and challenge, better laws and practices emerge,” Bwowe Ivan.
Your Lordship, from the
foregoing, your impartiality in this matter, MA 911/2024, is reasonably in question. Article 28 (1) of The Constitution requires and
obliges you, as a court of law, to be independent and impartial in determining
civil rights and obligations – such as those at hand. In the same vein, that
article entitles me to an independent and impartial court in determination of
my civil rights and obligations. By your own conduct, and indeed from reading
your ruling, you are not such a court.
Therefore, with great
humility and utmost respect, I humbly request you to refrain from further
participating in any proceedings in this matter and recuse yourself from
handling of the same, in accordance with practice
direction 5 of The Constitution (Recusal of Judicial Officers) (Practice) Directions,
2019, Legal Notice No. 7 of 2019. Thank you.
My Lord, before taking
leave of this matter, kindly allow me to comment, in passing, on two things–
First,
is to remind you that I have another case pending before you vide Bakampa Brian Baryaguma v. Bbaaka Property
Consultants (U) Ltd, Miscellaneous Cause No. HCT-00-CV-MC-0033-2023. It has
been due for ruling for long, yet at the conclusion of hearing on Monday, 3rd
July, 2023, you undertook to deliver ruling on Thursday, 14th
September, 2023, at 09:00 AM. I humbly request you to expedite delivery of the ruling
in that cause.
Second,
is to assure you that I am an upright person, since by your decision in MC 129/2021, your Lordship effectively said
that my case is non-existent, a forgery, and that I am a liar. I would not want
that whenever and wherever you see me, you think that I am a crook who forges
things. I went to State House and President’s Office for sure (as proved in
evidence by the Attorney General in this application, MA 911/2024), and what I narrate in the cause (MC 129/2021) was truly what was done to me by the police personnel
that I interacted with in that venture. My story was even reported post facto in the Sunday Monitor newspaper of 12th April 2020, at page 2 (available
online here: https://www.monitor.co.ug/uganda/news/national/lawyer-earns-night-in-jail-for-begging-food-from-museveni-1884926).
My action awoke the conscience of the nation by reminding all and sundry that we are one another’s keeper. Before
that, everyone was at home waiting for government to deliver relief food items,
but after my decision, people with means came up to assist those without and in
need, especially if they belonged in the same occupation. I remember first were
DJs, followed by advocates in Uganda Law Society with a young lawyers’ relief
scheme, then musicians followed suit, and the chain spread to other categories
of people. I am grateful to God for using me to positively impact my country in
this way.
With these remarks, I
rest my case. Thank you, once again, your Lordship.
For God and my country.
[signed]
Bakampa
Brian Baryaguma
Applicant
Copy to: 1. Hon. Minister of Justice and
Constitutional Affairs
2. Hon. Attorney
General
3. Chairperson,
Judicial Service Commission
4. Deputy
Registrar, Civil Division
5. President,
Uganda Law Society
