Authors: Francis Karoro, Wandera E. Jonathan & Rola Birungi
“…The Law always has been, is now and will ever continue to be, largely vague and variable…” Law and the Modern Mind, Jerome Frank (1930)
In a Jurisprudence class at Makerere University Law School, a Professor issued a profound statement regarding the Law; it (Law) occurs not in a vacuum; which therefore follows that the Law is shaped by different aspects in life; some historical, some political, economic, some gendered; name it. For instance, under the Preamble of our Constitution (1995) therein lies an acknowledgement of the Country’s violent political past and the aspiration not to repeat the same. It could be argued that this very aspiration shapes constitutional decisions or in the least is at the back of the mind of a Judicial Officer interpreting the said Law. What has this got to do with Judicial Recusal? I postulate that the capricious nature of Law complicates the issue of Judicial Recusal. The element of “bias” in contemporary times is plagued by extra-legal matters such as one’s gender, race, political inclination and in some cases ideology. It therefore cannot remain as is in the statute books but rather, will continue to be questioned as the political, socio-economic scene in Uganda changes. The current presidential petition of Robert Kyagulanyi v Yoweri Kagutta Tibihabura Museveni and 2 Others, (Supreme Court Election Petition No.1 of 2021) embodies this conundrum and puts the independence of the Judiciary a test; at least in the perspective of the Petitioner. Many Ugandans wondered whether the Justices of the Supreme Court, handling the Presidential petition would be fair considering their history with the 1st Respondent President Yoweri Museveni.
The Petitioner (Robert Kyagulanyi; hereinafter referred to as the “Petitioner”) upon filing his petition challenging the result of the current presidential election, voiced his concerns about the independence of three Justices including the current Chief Justice, Alfonse Owinyi-Dollo, Ezekiel Muhanguzi and Mike Chibita. He stated that it was impossible for them to be independent as they had worked closely with the President. City Lawyer Male Mabirizi later on lodged an application in the Supreme Court asking the Chief Justice to recuse himself from the case because he was part of the President’s defense team in the 2006 Presidential election, Dr. Kizza Besigye v Yoweri Museveni (Petition No.1 of 2006). The Chief Justice declined the orders sought in the application. Nonetheless the Petitioner’s statements upon withdrawal of the Petition and his accusation of the Courts “working for Mr. Museveni” raise the most important issue when dealing with Judicial Recusal; “bias”; what does it mean in current times and how does one prove it. One has to ask whether it is merely his Lordship’s past workings that are the issue of bias or rather it is a larger question of political power, ideology and political inclination.
What is judicial recusal?
A Judge will excuse himself or herself from hearing of a case when there is conflict of interest or bias in relation to a party, advocate, witness or other related matter. Judges must at all times uphold the judicial oath they took before taking up their roles. They must at all times be fair, impartial without fear or favor affection or ill will and do right to all manner of people.
The moment a judicial officer is perceived to be biased, he or should in most instances excuse himself from handling that particular matter.
Under what circumstances should a Judge excuse himself or herself?
Whenever questions arise about recusal of a judicial officer, the first thing that comes to mind is bias. Bias is defined (source) as an inclination or prejudice for or against one person or group of persons who are under the impression that the Judge in question shall not accord them a fair hearing as far as their matter is concerned. Having regard to the capricious nature of Law, one might argue that a Judge, whose political inclination is swayed by a particular ideology as evidenced by either their statements or their decisions, might in some cases, exhibit prejudice to a particular group of people. Or, one might argue that certain extra-legal characteristics of a Judge such as their Gender, race or religion might play into their decision making hence calling into play questions of bias. In this line of thinking we have a clearer understanding of the underlying rationale for Counsel Male’s recusal Petition.
To question the integrity of the Judge is essentially a question of law clothed under Article 28(1) of the Constitution of the Republic Uganda 1995, as amended fused with common sense from which the reasonable test arises.
To ground this argument, where any reasonable suspicion and likelihood of bias is expressed, the prudent and ethical act would be for the Judge to recuse him or herself from the matter before him or herself especially where the aggrieved party has expressed substantial concern as opposed to mere ploys.
The reality of a Judicial officer recusing himself from a matter are relative and not automatic as there is a lot to account for other than just mere allegations of bias.
The test to ascertain whether a judicial officer is biased was established in the case of Prof Isaac Newton Ojok v Uganda, (Supreme court Criminal Appeal No.33 of 1991) where it was considered that a judicial officer should have labored under pecuniary, proprietary or kindred interest in dealing with the matter before him to warrant bias.
This is the basis for which to question whether the judicial officer’s conduct in question satisfies a reasonable man that court was impartial and unbiased. We then come to the question of who is a reasonable man. Justice Kenneth Kakuru in Constitutional Petition-2017  UGCC 4 defined a reasonable man in the Ugandan context as one who has a national Identification card, a mobile phone, listens regularly to radio attends to LC1 meetings, has a job or tends to his or her gardens or businesses rides a boda to town and takes his or her children to school.
They are also circumstances which may recuse a judicial officer isolate of bias but in context can question the integrity of a judge, they include:
Therefore, in conclusion, Law in practice is a lot more complex than the black letter in the statues and law reports. It evolves with changing political and socio-economic situations. All of this must be considered before quickly arriving at the conclusion that there could be a likelihood of bias warranting a recusal Petition.
Nevertheless, in light of the above and taking into consideration the reasonable person test, I leave it to all Ugandans in the their utmost conscious of minds, to determine whether the three Justices should recuse themselves.