When justices Kenneth Kakuru, Esther Kisaakye met Male Mabirizi

Justice Kenneth Kakuru: he went out like a lion, didn’t he? He chose not to go out like the many poodles crowding the corridors of power nowadays. There will be no dancing on his grave.

Melancholia engulfed the country when news of his passing came through. Kampala’s endlessly noisy streets and social media platforms are in shock and painful mourning. We are talking in whispers again. Sometimes pompous, but profoundly articulate, Justice Kakuru stood for the truths he understood to be true—and died for or on those truths.

We have been told stage IV cancer, which he had been battling for some time, caused his death. But Kampala has taught us not to believe anything nowadays. And in addition to wishing Justice Kakuru a deservedly peaceful rest, we acknowledge that
his name is boldly emblazoned on the hearts and souls of his compatriots.

About a week ago, I sought out a more educated friend of mine—specifically on legal and activist matters—to discuss radical legal activist, Male Mabirizi. For a long time now, I have been conflicted about Mabirizi legal politics and activism: while I appreciated his ceaseless petitioning of court on mostly matters of public interest—in that exciting Delta Force fashion—I struggled to comprehend his sense of strategy and direction.

Because constantly engaging Museveni courts, on political cases (not civil ones, where Museveni has no interest), actually validated these same courts, gave them an appearance of independence and functionality, yet they ought to be held in contempt for their often-one-sided positions on the major issues of the land especially, I argued.

But my contention was unconvincing to me as well, since I believed Mabirizi was engaged in something productive. His guts, rebel approach, tenacity and a youthful recklessness are profoundly appealing. They are core components to the growth and realisation of a truly democratic society.

Indeed, historically, it is folks with these kinds of obsessions, and zealousness that have always made the lives of the majority comfortable: they either pick up arms and go to the bush (as Museveni and co. did), or wake up one time and immolate themselves.

Social transformation has never been the work of the pretentiously, gentlemanly and so-called lady-like silent majorities. These often sit back and watch the tide and wait to be given discourse and direction. Revolution and transformation are often the work of exiles (they were in Kenya and Tanzania decades ago), and radical intellectuals, Dr Stella Nyanzi, Kakwenza Rukira, and folks such as Francis Zaake—and the many political prisoners in Luzira.

So, I sought this wonderful counsel to debate Bwana Mabirizi legal activism especially that only recently returned from jail, he was in court the weekend after. In the course of our conversation, Justice Kakuru’s and Esther Kisaakye’s names popped up quite often. Sadly, a day later, Justice Kakuru was pronounced dead!

JUSTICES KAKURU, KISAAKYE

There was the age-limit petition in Mbale in 2018 where Male Mabirizi stormed the airwaves as a national star. Having been first to file an appeal, the 2018 age-limit petition came to be named “Male Mabirizi and others Vs Attorney General.”

Standing in his corner as a citizen—not lawyers whose manners and thus earnings are controlled by judges—Mabirizi would help lawyers wrestle with judges and keep them in order. Also, for the first time, the country saw a citizen representing himself without the work of a lawyer.

Present in Mbale was Justice Kakuru, the sole justice who agreed with the petitioners in the 4-1 and later 4-3 verdict that the amendment was null and void. But it wasn’t the verdict that endeared us to Justice Kakuru; it was the way in which he grilled deceitful legislators, and how he openly expressed his frustration with Museveni’s government not respecting court orders.

Thus, if Male Mabirizi was the star among the petitioners, Justice Kenneth Kakuru was the embodiment of the aspiration for the rule of law. In the election petition following the 2021 violent elections—that would be unceremoniously withdrawn—Male Mabirizi had tactfully squeezed himself into the petition, filing a miscellaneous application pointing to the fact that one of the judges on the bench had a conflict of interest. This conflicted judge would be the chief justice himself, comrade brother, Alphonse Owiny-Dollo.

Among other concerns in this petition, this citizen stated that in 2006, the current chief justice was Museveni’s lawyer in the election petition that Col Kizza Besigye filed and, thus, he would be biased in the assessment of things.

As expected, the miscellaneous application was dismissed and comrade Owiny Dollo didn’t recuse himself. But Mabirizi had established a productive fault-line, which will forever animate legal studies. Before the reading of the judgment, the chief justice demanded that all the judges surrender their judgments to him so that the bench writes a singular judgment. (Remember, this application is actually about the chief justice himself and queries a potential conflict of interest).

While the others agreed, Justice Dr Esther Kisaakye Kitimbo disagreed with this collectiveness preferring to read her judgement alone as was the tradition. Drama ensued as other justices shunned Justice Kisaakye while reading her dissenting verdict.

Mabirizi had been there watching the entire time as the man upon whom he had raised the conflict of interest, actually lived through this conflict in that very moment.

MABIRIZI’S PRODUCTIVE FAULT-LINE

The beginning point is understanding that while Museveni would be the fiery speaking military leader, he maintains and actually cherishes the façade that he operates within the law. He will do everything in his power to protect this façade. This is his absolute weakness.

It is not just petitioning court that is costly, but also dispensing with petitions—in a performatively democratic fashion—attracts a huge cost that is both financial and political with potential to end in both intended and unintended consequences.

At the financial level, firstly, whenever judges meet on these bombastic political applications, they heavily bill the treasury. Consider the Supreme court hearing where judges awarded themselves each Shs 104 million in honoraria—and a fight ensued over the over Shs 500 million package. Consider another Shs 240 million claimed to have been spent on pre-hearing preparations! Most other monies are unreported.

Consider the ridiculous 2020 retirement package act for the judicial officers — upon which Museveni had held judges hostage as they had to negotiate their retirement packages with him personally — since the promulgation of the 1995 Constitution. Comrade Bart Katureebe would table this as the bargaining chip in exchange of a favourable age-limit verdict.

The amounts are so ridiculous that retired judges get packages far bigger than those of sitting justices. It is actually arguable that Male Mabirizi (and others) on the one hand, and Kakuru and Kisaakye on the other, indirectly combined and delivered Uganda’s judiciary from Museveni’s hostage. But the other bigger point is that Museveni does not have these monies!

But he has been pushed in a corner to make concessions and spend because he cannot afford to lose his façade as a rule-of-law-observing leader.

Secondly, at the politico-intellectual level, it is petitions like Mabirizi’s that enable us to see folks such as Kenneth Kakuru, Esther Kisaakye, Lydia Mugambe, Yasin Nyanzi and so on— especially their absolute commitment to the rule of law. They will never share their opinions randomly, but only after petitions. And thus, there have to be people petitioning.

And thirdly, rifts such as the Owiny-Dollo vs Kisaakye or fights over cash—emerging from petitions—show plenty of political possibilities all of which have potential to dismantle Museveni’s façade of judicial order.

yusufkajura@gmail.com

The author is a political theorist based at Makerere University.