By Aggrey Baba
There are court sessions where attention is entirely on the case before the judge, and there are others where, even before the substantive arguments begin, the conduct of the judge itself becomes part of the story.
Monday’s proceedings in the election petition filed by NUP’s former Kawempe South MP candidate Fred Nyanzi Ssentamu against NRM’s Madina Nsereko belonged to the latter category, with Justice Faridah Bukirwa leaving a particularly striking impression on all parties’ lawyers, the media and other court users through the manner in which she conducted the proceedings.
The session had been scheduled to start at exactly 9:00am but Justice Bukirwa arrived a few minutes later, by which time lawyers and other court users had already taken their seats while speculating about what was coming.
Ordinarily, such a delay could easily become another source of frustration in a judicial system that has for years faced complaints about delays. Yet when Justice Bukirwa finally entered the courtroom and took her seat, she immediately apologized to the court users and the advocates for keeping them waiting, something which softened the atmosphere.
Justice Bukirwa did not merely apologize and move on. She explained that the delay had been occasioned by the number of election petition matters being handled at the same court on the same day, with the different cases having to share the available limited courtroom facilities. Her explanation was brief but direct, and it appeared to demonstrate an understanding that the people who come to court also have schedules, commitments and legitimate expectations about how court proceedings should be conducted.
That seemingly small gesture set the tone for much of what followed. As the lawyers began dealing with preliminary and housekeeping matters, which are a must before the substantive petition hearing can commence, Justice Bukirwa appeared keen to ensure that everybody understood what was being said and that the courtroom remained a place for legal argument rather than personal confrontation.
To her credit, at one point, she switched from English to Luganda while giving guidance to the court. This impressed people in the fully-packed courtroom, many of whom said they had been used to judicial officers being hostile and synonymous with an intimidating demeanor. This was particularly notable because an interpreter was available, meaning that the Judge could easily have left the translation to the designated interpreter, but instead, she herself used Luganda to ensure that her message was understood directly by those in the courtroom. This evidently, made journalists and many people inside the court to feel at home and entitled to being present.
For a judge presiding over an election dispute whose ultimate subject is the votes of the ordinary people of Kawempe, the gesture added a distinctly accessible touch to the otherwise formal proceedings. “That’s how a people’s Judge should be as opposed to seeking to be feared,” quietly observed a supporter to one of the parties.
Even her appearance on the day drew quiet attention. Justice Bukirwa came dressed in black and pink, with a head veil reflecting her Muslim faith, and her carefully done makeup depicted a composed and polished appearance. But beyond the color of her attire and the veil on her head, it was the calmness and the accommodative approach with which she handled the courtroom that stood out most for a lot of people present.
The Nyanzi petition is hardly an ordinary case. It pits NUP’s Fred Nyanzi against NRM’s Madina Nsereko in a contest over the Kawempe South parliamentary seat, with Nyanzi alleging that the election results were manipulated and insisting that he was the rightful winner. His legal team, led by Alex Luganda and including Nomwesigwa Cranimer and Robert Rutaro, is challenging the declaration. They are in court before Justice Bukirwa seeking original election results declaration documents which they say are critical to affirming their claim that what was used to declare Nsereko Madina the winner differed from what actually happened at the polling stations.
With such politically charged issues before her, Justice Bukirwa appeared determined from the outset to keep the proceedings focused on the legal questions rather than allow the courtroom to become an extension of the political contest outside. She also seemed deliberate to avoid being perceived as biased in favor or against any of the parties. Indeed, for many people present in court, she came off as a neutral arbiter-the way it’s supposed to be.
This became particularly evident during the preliminary discussions when she guided that lawyers representing all sides should, throughout the case hearing, maintain respect for each other. She also reminded the lawyers that they are officers of court who have a responsibility to help the bench limit unhelpful arguments while sticking to the overall objective of ultimately arriving at a fair and just outcome. She called for respect and dignity among colleagues and reminded the advocates that disagreements could be resolved privately in chambers rather than being allowed to turn the public courtroom into a battleground, which can only be good for media content. “This is not a hearing for war,” flamboyantly Justice Bukirwa told the lawyers.
It was perhaps one of the clearest illustrations of the kind of courtroom she wanted to preside over, where lawyers were free to disagree strongly, challenge one another’s arguments and defend their clients vigorously while enduring that the contest remains professional, courteous and respectful (as it’s supposed to be).
Similarly, the Judge demonstrated the appropriate temperament when the lawyers raised the sensitive question of the live media coverage of the proceedings. Counsel Alex Luganda, who is leading Nyanzi’s legal team, asked the court to provide clear guidance on the role of journalists during the court proceedings, noting that different courts had adopted different approaches to media coverage and that it would therefore be very appropriate from the very onset for everyone to know the specific rules governing this case.
His concerns were considered against a wider background of the sometimes uneasy relationship between Uganda’s courts and the media. The Judiciary has previously had to develop specific guidelines around media access, accreditation and the use of recording equipment in sensitive proceedings, while journalists have on several occasions have complained about being gagged, denied access or being restricted from covering court proceedings.
The Judiciary itself has acknowledged the need for a better working relationship with court reporters and has held engagements aimed at improving media access and coverage of judicial proceedings.
It was against that background that Justice Bukirwa’s handling of the issue appeared particularly measured. Rather than simply imposing blanket restrictions and moving on, she allowed the concerns to be openly discussed by lawyers representing the contending parties and even asked the journalists present to choose a representative who could speak on their behalf. This inclusiveness of the 4th estate ensured that the media side was heard before the court arrived at a decision on the issue.
That may sound like a minor procedural detail, but it was significant because it demonstrated that the Judge was transparent and willing to hear from the very people who would be affected by her final proclamation on media access. The journalists present greatly appreciated this consultative approach and some claimed this is lately rare in the Ugandan courts. Instead of treating journalists as unwanted outsiders, whose only role was to obey instructions, Justice Bukirwa created an opportunity for them to participate in the discussion and have their concerns considered as part of the final decision.
The eventual guidance was that journalists would be allowed to remain inside the courtroom and follow the proceedings, particularly once the substantive hearing begins and witnesses start giving evidence, but recording gadgets such as cameras and other devices would have to be regulated depending on the sensitivity of that particular moment of the proceedings. The concern was principally the safety and comfort of some of the witnesses for whom witness protection rules might apply. The same was also understood as potentially for good for avoidance of distractions and preservation of the integrity of testimony.
In effect, the court was not closing its doors to the media. Journalists would still hear the evidence first-hand and report what transpired without being gagged. What was being restricted was the physical recording of some of the witnesses and some parts of the proceedings, a distinction that appeared important in the court’s effort to balance public access with the need for witness protection which, occasionally, might become necessary.
Counsel Abubaker Kayondo, who represented the Electoral Commission, also suggested that some form of media accreditation and recognized media leadership at the court could help mitigate against any abusive conduct. Other advocates similarly raised concerns about witnesses and the possibility of testimony being taken out of context once recorded and irresponsibly circulated.
Justice Bukirwa calmly and intently listened to all these concerns and arguments with the same calmness she had displayed throughout the session. There was no apparent hostility towards the media neither did the court appear to dismiss the concerns raised by the advocates. Instead, the discussion was allowed to take its natural course before the Judge provided guidance on how the competing interests could be accommodated and balanced.
To many media representatives present this consultative approach made Justice Bukirwa (whose work station ordinarily is the Luwero High Court & she is only in Kampala to handle a few election petitions) stand out at a time when media access to court proceedings has sometimes become contentious. There have been cases in Uganda where journalists have found themselves locked out of proceedings because of imprudent application of discretion, prompting complaints about transparency and in some instances an overt dislike for members of the 4th estate.
The Judiciary has itself previously acknowledged that judicial officers can sometimes become overzealous in dealing with journalists and has stressed the importance of working with the media rather than simply shutting it out.
Justice Bukirwa’s approach on Monday appeared to take the opposite route: listen to the media, listen to the lawyers, consider the concerns of witnesses and then establish a framework under which the proceedings can continue without compromising either the hearing or the media’s duty to report responsibly.
The same sense of balance was visible when the court dealt with the application concerning the disputed election results declaration documents. Nyanzi’s lawyers want the Electoral Commission and Nsereko to produce original DR forms, as well as other election materials including the official report book, tally sheets, scanner report and accountability forms for election materials. They argue that some documents supplied to them do not correspond with the original forms in their possession and those held by other candidates.
Nyanzi’s lawyers say results from more than 71 polling stations, involving more than 50,000 votes, were not tallied, while more than 3,000 votes allegedly cast for Nyanzi were subsequently altered and donated to Nsereko. They also allege criminal inflation and reduction of figures at several polling stations.
These are contested allegations which the respondents will have an opportunity to answer and it is ultimately the court that will determine what is proved by the evidence.
On the other side, Nsereko’s lawyers, led by David Kamukama (and comprising Kibirige Ismael, Kitimbo Shamira, Samuel Wamala and Luyima Jabal) sought more time to consult their client, who was said to be away on a duty trip. The EC, represented by Kayondo, also sought time to study the application, explaining that some of the officials handling the relevant documents were away on election-related assignments in Adjumani where voters will soon elect the late Gen Moses Ali’s successor.
Justice Bukirwa considered the competing requests but was equally conscious of the need to avoid allowing the matter to drag unnecessarily. The lawyers were therefore guided towards an expedited timetable for the filing of the necessary responses and submissions, with the main petition scheduled to return on September 30th for further directions on case management, documentation and witnesses.
This was another area where the Judge’s prudent courtroom management credentials came to full display. She was not simply interested in hearing lawyers argue, she appeared interested in getting the case organized so that it could eventually proceed to the substantive evidence submission phase without unnecessary procedural delays.
Perhaps that is what made Monday’s session particularly interesting to those who watched it closely. Justice Bukirwa did not appear to be seeking to dominate the courtroom through intimidation and coercive bullish approach. Her authority came more through calm intervention, clear guidance and an insistence that everybody, from senior counsel to journalists and other court users, understand what will be expected of them in the coming days and weeks. She has up to mid-November to hear the petition, receive and apply all the evidence-culminating into delivery of her judgment which ultimately will determine who ends up being the MP for the Kawempe South voters. (For comments on this story, get back to us on 0705579994 [WhatsApp line], 0779411734 & 041 4674611 or email us at mulengeranews@gmail.com).
