Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024 · Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

There can be no doubt that the minister of justice, Norbert Mao, knew the significance of what he was doing when he wrote to the high court’s principal judge.

The first paragraph of his letter (see below) spells it out: the case was brought to his attention ‘by Hon Robert Mswesigwa (MP Mbarara City North) on behalf of his constituent, Mr Francis Ishanga, the Plaintiff in the above stated case.’

In other words, this is clearly a matter where a disgruntled litigant has asked his MP to intervene in a matter that is before the courts and the MP has in turn mentioned it to the minister of justice.

Ignoring everything that a minister of justice must surely know about judicial independence, separation of powers and the processes of appeal, Mao then felt entitled to approach a senior judge, assuming he will have some clout in the matter, and ask that he step in to fix a situation that appears to him (the minister) to have been wrongly dealt with by the courts.

‘Immediate administrative intervention’

Earlier this year, Uganda’s president, Yoweri Museveni, caused a storm in some legal circles when he took similar action, writing to the chief justice and demanding that he fix what the president took to be an incorrect judicial decision made by a member of the bench.

Clearly Mao feels emboldened by this example, and his letter brazenly ‘requests … immediate administrative intervention’ by the principal judge.

The case at the centre of this second letter of executive interference concerns a property sold when its owner failed to pay its bank loan. The defaulting company disputes the legality of the circumstances of the sale and applied for an interim order preventing its eviction from the property and preventing the sale from going through and being registered, pending a full hearing of its dispute with the bank.

‘Applicant slept on his rights’

The application for an interim order was heard by the deputy registrar, Nanteza Zulaika. (Uganda’s judicial structure provides that registrars and deputy registrars have ‘judicial powers within their respective areas of jurisdictions’ and the civil procedure rules empower them to ‘take all preliminary steps before trial and hear all interlocutory applications.’)

Having heard both sides, Zulaika wrote, ‘I find that the applicant slept on his rights way too long when he left the bank to advertise, sell and transfer the suit property into the names of the [new owner].’

She also found that granting an interim order to restrain the new owners from taking possession of property would not be in the interests of justice, and dismissed the application, with costs. Further, she explained to the applicant about the right of appeal.

‘Fraudulent and illegal’

The applicant then contacted his MP and complained that the sale of the property had been ‘fraudulent and illegal’.

According to the letter written to the principal judge by Mao, the applicant claimed to have structured a ‘debt settlement arrangement’ to pay the bank by selling part of another property, but that the bank ‘went against this arrangement’ and illegally sold it.

When the former owner applied for a temporary injunction and an interim order to preserve the status quo, the presiding deputy registrar rejected the application and instead issued an order that ‘has been used to evict the Plaintiff from his premises before the main case is heard in full,’ said the minister.

‘Does not foster public confidence in dispensation of justice’

The minister then adds, ‘From the above narrative, it is evident that this matter has been handled in a manner that does not foster public confidence in the dispensation of justice by Mbarara high court circuit.’

‘The purpose of this letter therefore is to request for your immediate administrative intervention to call for the file and examine the propriety of the complaint.’

All this is bad enough, but the final paragraph is most alarming: the minister says his letter serves as notification to the acting inspector general of police, ‘to restore the status quo’ at the disputed premises. In other words, the police have been instructed by the minister to disregard Zuleika’s order, evict the new owners and reinstall the old.

Law firm gives background

In response to Mao’s letter, the legal firm representing the party that bought the property, wrote to both the minister and to the principal judge.

First, they outline the legal proceedings so far. They say that their client had seen the advertisement for the sale of the property, was successful in her bid, paid the purchase price and received the registration papers from the bank. She was given clearance by the police and the ministry of internal affairs to take possession of the property, but before that could happen, the previous owner applied for the interim order. The application was dismissed on 5 March and the new owner then took possession ‘and is currently in occupation’.

They refer to Mao’s letter to the principal judge and list their problems with it.

Interference with the independence of the judiciary

First, they say, the minister’s letter also serves as an instruction to the police to restore the status quo. Such an order ‘would be contrary to the clear orders of court’ holding that the previous owner ‘has no claim’.

Second, while the minister’s letter says the principal judge should call the file, ‘(t)his will amount to interference with the independence of the judiciary.’

Next, the minister’s letter ‘makes your office a new avenue to abuse court process. If someone has gone to court and lost, there are appeal processes in the law. The ministerial office is not an appeal process and should not be used as such.’

Letter is ‘in contempt of the orders of court’

They further complain that the letter makes clear that the minister had only heard one party to the dispute, something that is contrary to the principles of natural justice. And finally, the letter is in contempt of the orders of court.

They ask for a meeting with the minister and for the letter to be withdrawn.

The lawyers also wrote to the principal judge along the same lines and urged that he ‘stop the recall of the file’.

Acknowledge and tackle the problem

The point here is not whether the deputy registrar was correct in her decision. That is a matter for an appeal or for the high court hearing the substantive matter to decide. Rather, it is the alarming – and increasing – evidence that government officials feel they may directly approach judges, by-passing legal processes, and tell them what to do.

The rule of law, judicial independence and the separation of powers are all put at risk by this behaviour. And, a further matter of concern, there seems little leadership or will on the part of the senior judiciary to name, acknowledge and tackle the problem.

Download minister's letter.pdf (104.1 KB)

Carmel Rickard

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