I am deeply concerned about allegations of arbitrary and unfair treatment against Justice Esther Kisaakye Mayambala Kitimbo and implications it may carry for the independence of the Judiciary in our country.
Supreme Court Justice Esther Kisaakye has reportedly come under disciplinary proceedings by Uganda’s Judicial Service Commission (JSC), without proper notice or due process, and her salary has been suspended.
Reports indicate that a disciplinary inquiry was initiated by the Judicial Service Commission following Justice Kisaakye’s decision to deliver her dissenting judgment in one of the 2021 presidential election petitions. In that case, main opposition leader Robert Kyagulanyi Ssentamu had filed a petition challenging the results of the 2021 presidential election. He made a follow-up application seeking leave of the Court to amend his main application. The Court refused to grant the sought leave, holding the application had been beyond the strict time limit provided by law within which the petition should be filed. However, Justice Kisaakye dissented, arguing that the Applicant had been deprived of his right to prepare the main application as he had been placed under illegal house arrest during the window of time he could have been preparing his application.
While delivering her dissenting judgment, which was covered by the media on 18th March, 2021, Justice Kisaakye alleged that Chief Justice Alfonse Owiny-Dolo, had attempted to obstruct her from handling down her dissenting judgment. The Chief Justice is reported to have ordered the confiscation of Justice Kisaakye’s files.
Justice Kisaakye is now being investigated by the JSC on charges that are yet to be disclosed to Justice Kisaakye and the public. The payment of Justice Kisaakye’s salary, housing, medical and other benefits has been stopped since July 2022 by the Secretary to the Judiciary, Pius Bigirimana, on allegations that she has been away from her duties without official leave since September 2021. Justice Kisaakye denies these allegations that she was on duty from September 2021, went on leave from December 2021, and resumed her duties in June 2022.
The Judicial Service Commission has commenced a disciplinary inquiry against Justice Kisaaye without duly informing her, as required under both domestic and international human rights law.
All these reports suggest violations of Uganda’s obligations, under African and universal international human rights law, to ensure due process and the right to a fair hearing for any person accused of criminal or ethical misconduct. Any charges against Justice Kisaakye should be clearly stated and the evidence substantiated, presented and subject to challenge. These reports also suggest interference with the independence of the judiciary and the quest for an independent judiciary.
International law and standards require that where there are allegations of professional misconduct, the right to a fair hearing includes the right to be duly notified of the charges and any disciplinary proceeding to be undertaken. Commencing a disciplinary inquiry against Justice Kisaakye without notifying her would constitute a violation of her right to a fair hearing. The decision to stop the payment of her salary, housing, medical and other benefits without conducting disciplinary proceedings against her, and finding her guilty of misconduct which justifies such suspension of benefits would be a serious violation of Uganda’s obligations to ensure due process in cases involving the discipline of a member of the judiciary. It would also undermine judicial independence.
I call upon the Judicial Service Commission to ensure that Justice Kisaakye’s procedural rights are fully respected. In particular, her right to receive her salary and other benefits must be restored and she must be duly notified of any disciplinary proceedings pending against her. Please avoid the quest for an independent judiciary from the public because of your unfortunate actions.
Denis Mugonza Waggumbulizi | Advocate, Researcher & Entrepreneur
wagumbulizidenis@yahoo.com
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