Controversy follows this Ugandan judge, from roads to land

1 May 2019 · Carmel Rickard

Justice Catherine Bamugemereire of Uganda’s Court of Appeal has something of a name for being a tireless fighter against corruption. But her commission’s findings against a key figure in a 2015 report into allegations of fraud in the country’s national roads authority has just been set aside by the high court on the grounds of her perceived bias against him, and because his right to be treated fairly was infringed.

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Marvin Baryaruha is a familiar figure to Ugandan readers. Everyone else might benefit from a brief introduction: formerly legal officer of the Uganda National Roads Authority (Unra), Baryaruha was fingered by the Court of Appeal’s Justice Catherine Bamugemereire when she reported on her 2015/16 commission of inquiry into the country’s national roads authority.

Just after the report was delivered in 2016, Marvin Baryaruha, formerly legal officer of the Uganda National Roads Authority (Unra), brought a high court application asking that the court quash the findings of the report as they related to him.

His argument was based on claims that the entire commission – but particularly its chair, Justice Bamugemereire – were biased against him. They did not give him a fair hearing, he said, and made findings and recommendations without getting his side of the story.

Baryaruha said that the judge, as chair, had “hurled personal attacks, insults and abuse” at him.

Among the more colourful of his allegations was that the chairperson, Justice Bamugemereire, “insulted, abused and attacked” him and that she had said he was “a fat cat in Unra” who lived beyond his salary with apartments in several cities and “houses in Entebbe”. Even his father had warned him that amassing wealth would one day lead him to prison, she is alleged to have said.

Baryaruha said that as a result of this kind of comment he complained about the chairperson to the Chief Justice, asking him for protection against “rants, insults, personal attacks and abuses”. According to Baryaruha, that letter in turn led to Justice Bamugemereire including in the report “falsehoods, bias, lies, unsubstantiated findings and recommendations” against him (Baryaruha).

He said that when he appeared at the commission during August 2015, the chairperson said, “We have all along been discussing you in the commission and we are going to deal with you seriously … just answer the way we want”. This, he claimed showed that “his fate” had already been decided by the commission.

In response, officials of the commission said the report’s recommendations had not yet been discussed by Cabinet nor made public. They were “merely proposals” by the commission and not binding on any agency or department.

Because they were findings based on the opinions of the commission and not orders or decisions they “should not be open to judicial review” and Baryaruha’s application amounted to “abuse of process”.

Judge Ssekaana Musa, who heard the application, said that the only answer to Baryaruha’s allegations of biased comments by the chairperson had been a statement by an official of the inquiry. All that this official had said was that the commission’s members had high morals, wide-ranging knowledge and specialization and that they had been rigorous and fair throughout.

The statements made by the chairperson and complained of by Baryaruha “would indeed leave a fair-minded and informed observer” to conclude there was a real possibility that the commission was biased, said the judge.

Having decided that question, the judge had to consider whether Baryaruha had had a fair hearing on the allegations against him. The judge said that this particular commission of inquiry was about mismanagement, abuse of office and corrupt practices. Such inquiries were generally subject to judicial review and had a general duty of fairness.

Although it would have been fair to highlight beforehand the issues on which Baryaruha would be examined, so that he could prepared and be ready to defend himself – or even know what documents to bring – very little information was provided in the summons he received.

In fact, “the particular areas of inquiry, the nature of documents required, the nature of evidence available to the commission” to which Baryaruha would have to respond, all were missing. Thus, the summons did not give fair notice of the allegations against him that he would have to answer.

Was this “material non-disclosure”, or simply a case of the commission regulating its own proceedings? Was the inquiry infringing its overriding duty of fairness?

Judge Musa concluded that Baryaruha was not given prior and reasonable notice of the allegations against him. Nor was he given a chance to be heard on the questions of mismanagement, abuse of office and corrupt practices in the projects being investigated.

While the court did not have evidence with which to evaluate whether the findings of the commission were irrational, the judge issued a declaratory order: the findings of the commission against Baryaruha were arrived at in breach of the right to be treated justly and fairly and were thus null and void.

Justice Bamugemereire is no stranger to controversy. This was the second inquiry she has chaired, and the third – on land grabbing – has also generated considerable debate and personality clashes.

At one stage, for example, Chief Justice Bart Katureebe spoke out against remarks made by Justice Bamugemereire, saying her land probe was “effectively blackmailing” her fellow judicial officers.

Addressing a conference of magistrates, the Chief Justice implied she was the author of a dossier naming judicial officers that, according to her commission, had taken bribes over land cases.

Carmel Rickard

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