By John V Sserwaniko
Buganda Kingdom Attorney General Owek Daudi Mpanga’s opening statement at yesterday Monday Bulange press conference was reflective of the triumphant mood in which he was. “We have called you here at such short notice to share some good news for the people of Buganda. This has been a very good day for us as a kingdom,” he said as he flamboyantly took his seat. This was inside Buganda kingdom Cabinet Room in Bulange Mengo which is the seat of Kabaka Mutebi’s kingdom. Only hours earlier, a Court of Appeal ruling had been delivered in favor of Mpanga’s boss His Majesty the Kabaka Ronald Muwenda Mutebi. Flanked by senior kingdom lawyers Twaha Mukasa, Christopher Bwanika, Charlotte Nalumansi and Dennis Buganda, Mpanga reflected on the meaning and implications of CoA overturning High Court Judge Patricia Wasswa Basaza’s earlier order granting Kabaka long term tormentor Male Mabirizi’s discovery of documents application. This meant that the Kabaka, whose Buganda Land Board (BLB)’s activities Mabirizi was contesting, had to surrender to him all records concerning the BLB tenants’ register and banking financial statements relevant to all land transactions BLB has been carrying out on Kabaka’s 350 square miles of land (aka official Mailo). After introducing the delegation that flanked him (including the lawyers and BLB Deputy CEO Bashir Kizito), Mpanga disclosed why he had called reporters. This was to interpret the ruling for them to avoid misreporting which he said the kingdom had previously suffered. He said he was grateful the Court of Appeal ruling by Justices Egonda Ntende, Hellen Obura and Ezekiel Muhanguzi had concurred with Buganda kingdom’s long held view that the lower court grant of Mabirizi’s disclosure/discovery of documents application was erroneous because the documents in question had nothing to do with the case he was pursuing against the Kabaka. “Their Lordships have also come to the finding that Mr. Mabirizi’s case in the High Court isn’t maintainable in law and subsequently, costs have been awarded against Mr. Mabirizi,” Mpanga said. The big name city lawyer, who was unusually enchanted, said the costs will atone all the expenses the kingdom incurred including numerous cabinet sessions called to discuss Mabirizi’s endless applications, BLB time and resources being diverted from very important interventions like Kyapa mu Ngalo and the time resources the Katikkiro regularly expended travelling to go and brief the Kabaka from time to time.
CONTEXT;
Mpanga’s emotional excitement about the ruling isn’t hard to understand for a senior lawyer whose suitability for the position of AG was even beginning to be disputed by some kingdom detractors on radio talk shows merely because Mabirizi’s applications seemed endless and sometimes going against the king. The best example was the Basaza ruling granting Mabirizi’s discovery of documents application on which the unrepresented litigant based to demand Shs23bn in costs. This posed a threat that fatally went to the heart of Buganda kingdom’s key source of funding which is the land management business by BLB. Just imagine the damage that would be occasioned as a result of all the records relating to BLB land transactions being released to Mabirizi through whom the media naturally would have accessed them. Just imagine all that being declassified and released for public consumption! Mpanga admitted the dent would be too extreme to atone even in the long term.
As a corporate entity, BLB has confidentiality obligations towards its clients living on Kabaka’s estate covering the 350 square miles of prime land scattered in Kampala, Wakiso and Mukono. The integrity of the kingdom was clearly being threatened which makes Mpanga’s joy and uncharacteristic excitement understandable. “It’s because this call was at such short notice, otherwise we would have showed you heaps and heaps of documents Mr. Mabirizi has been serving us here for you to understand the toll this has been taking on our time, human and financial resources. The gentleman filed so many applications and affidavits. It was almost becoming comedy,” said Mpanga adding that they remain convinced Mabirizi was on a mission to keep diverting kingdom resources and officials from doing development work and service delivery to Kabaka’s people. He wondered why else one would file close to 30 applications both in the High Court and Court of Appeal all relating to one main head suit. “That notwithstanding, he remains our brother from the Kobe clan,” said Mpanga wondering why Mabirizi always considered courts as opposed to using traditionally established channels to address any Kabaka subject’s grievances. “By the way this land matter isn’t the first time that gentlemen has taken the Kabaka to court. There was another case about the Namwama [Kobe clan head] being in office which we won too and haven’t been pursuing him for our costs there.” Mpanga wondered why Mabirizi couldn’t seek dialogue and reach out to BLB CEO Kyewalabye Male who is his fellow Kobe clan member. He said Mabirizi’s endless court actions demonstrated how contemptuous he is of the Kabaka. “We aren’t saying Kabaka’s people shouldn’t get aggrieved. They should but all these disputes and concerns can be addressed to the numerous offices in the kingdom because this is why all of us are here to serve.” Mpanga said in the end Mabirizi is going to be made to pay heavily since the court has awarded costs to the Kabaka. “A lot of work was abandoned as we concentrated on this case and our lawyers couldn’t even give probono services for many of the Kabaka subjects who can’t afford legal fees on their own,” he said. Mpanga wondered why Mabirizi took things too personally on the Kabaka even when he clearly knows that the 350 square miles whose proprietorship and management he was disputing is for the Kabakaship as an institution and not Ronald Muwenda Mutebi as an individual. Mpanga caused laughter when he said, painful as it’s going to be, the latest CoA ruling had actually saved Mabirizi from the wrath of Kabaka’s subjects that were becoming impatient and were on the verge of stopping to heed Katikkiro’s calls on them not to unilaterally act in their own way. Being the senior cautious legal brain he is, Mpanga didn’t explain which risk Mabirizi exactly faced from Kabaka’s subjects that were increasingly becoming angry. “The truth is Buganda is a big institution with so many stakeholders and it’s difficult for the Katikkiro, the Lukiiko, Cabinet and the entire leadership to determine how they act when provoked,” is all he said to elaborate the sort of threat Mabirizi risked if his anti-Kabaka litigation were to drag on.
WHAT COURT SAID?
In brief court found Mabirizi’s case fatally inadequate in a number of ways. Firstly he insisted on filing a class action and accused the Kabaka and BLB of perpetrating actions that bordered on being coercive, unjust and in total violation of human rights of tenants on the land in question. He personally couldn’t demonstrate with evidence how he was being affected or victimized by those actions. He claimed this suit was on behalf of other victims that are too timid to speak out on their own. The procedure for class actions requires that the plaintiff discloses the identity of the aggrieved persons on whose behalf he is coming to court and show they have indeed authorized him to. Mabirizi didn’t have any such authority or identify the persons on whose behalf he was before court. He submitted he was proceeding on all this under Article 50 of the Constitution. The CoA, whose depth and insight Mpanga commended at yesterday’s presser, rightly found that Article 50 is applicable in cases where the violator of the rights the plaintiff is seeking to protect is a state actor and not a private individual like the Kabaka. This finding by court eroded the entire foundation on which Mabirizi sought to rest his claim against the king. Having been defeated in the lower (High) court where Justice Patricia Basaza directed full disclosure or discovery of all BLB-related documents and bank statements and accounts to Mabirizi, the Kabaka became aggrieved and appealed to CoA. His contention, which court agreed with in yesterday’s ruling, was that these documents and records had nothing to do with Mabirizi’s claim in the main head suit if it validly existed at all. It was also held that whereas the grant of such disclosure/discovery orders is a discretionary matter, court has to be extremely careful to grant it in cases of extreme importance and exceptionality and not in unsustainable actions like that of Mabirizi. Chris Bwanika, who led Kabaka’s legal team, said Mabirizi had clearly showed he wasn’t in a hurry to have his main suit heard on its merits and in the process wasted court’s time by frequently filing frivolous applications.
The Kabaka legal team, Mpanga inclusive, also wondered at yesterday’s news conference why the High Court judge considered hearing Mabirizi’s discovery of documents application more urgent than Kabaka’s security for costs application which is meant to ensure that party that is being maliciously-sued party (the Kabaka in this case) is able to recover costs to which he is entitled upon successful conclusion of litigation. It was disclosed that even when court showed extreme tolerance with Mabirizi’s endless applications, the claimant (Mabirizi) never stopped complaining against judicial officers and in the process accused many of them of bias and partiality. Mpanga said in the end many people’s names have been disreputed by Mabirizi’s way of approaching things. In finding Mabirizi’s purported class claim meritless, the CoA justices referred to the James Rwanyarare’s case (purported class action) which was dismissed after the UPC stalwart flouted procedure that required him to disclose the UPC members on whose behalf he was suing the AG and their express authority to institute the suit on their behalf. Mabirizi had tried to object to Kabaka’s appeal in the CoA on grounds it was defectively filed as it was time-barred. Court found this wasn’t true because it was him who actually frustrated service as he was elusive each time Kabaka’s lawyers tried to obtain his signature as proof that the appeal process had been brought to his attention. He had also raised objections relating to timely payment of relevant court fees but the three justices unanimously overlooked it as not being fatal. He was also found to have accused the Kabaka of land-related mistreatment without satisfactorily showing how he had personally been mistreated. Saying they are ready to battle Mabirizi even in Supreme Court should he choose to appeal (being the relentless fighter he is), Mpanga said the CoA latest ruling should be a lesson to other would-be future attention-seeking litigants who must now realize that the “Kabaka isn’t a soft spot to be played about by abusively seeking to use the court process to bring his name in disrepute.” Journalists asked Mpanga why as the AG he doesn’t plead with the Kabaka to forgive Mabirizi the impending payment of costs since he isn’t known to be materially very rich and Mpanga firmly said: “It’s time to teach others that you can’t go recklessly stepping on the Kabaka of Buganda and get away with it. They sometimes mistake us for weaklings but its high time they get to realize that the Kabaka is surrounded by people who are very firm. We know what to do, how to proceed and when. The legal resources are there in plenty and a red line has now been established. There will be consequences on whoever dares our king.” Speaking in a mixture of both English and Luganda, Mpanga said: “That gentleman [Mabirizi], like any other attention-seeker, had his 15 minutes of fame and now is the time to pay. He was adamant even when he clearly had a frivolous and unsustainable cause. He felt very important when the High Court gave him the open-ended order to go on a fishing expedition but here we are with heavy costs awaiting him. Some of these are very expensive lawyers but they have been tied here. Owek Christopher Bwanika not only chairs the subcommittee of the Lukiiko on legal matters. He is also one of the best lawyers on international arbitrations. He can be Queen’s Counsel in any country anytime and you are here wasting his time on baseless actions? I can guarantee one thing these aren’t going to be simple costs because the applications have been too many both in the High Court and Court of Appeal.” He said they will soon be sitting to determine the bill of costs in a deterrent manner that will ensure this practice of “gambling to take the Kabaka to court stops.” Maintaining that the decision to forgive Mabirizi was way beyond him, Mpanga said in case the controversial lawyer wishes to reach out, it will have to be through his clan head and county chief approaching the Katikkiro to initiate the process. He said the ball was in Mabirizi’s court still because it’s simply not possible to forgive someone who hasn’t shown any remorse. For comments, call, text or whatsapp us on 0703164755.
