Jailed lawyer Male Mabirizi has raised 94 grounds in an appeal challenging the dismissal of his case opposing the listing of MTN Uganda on the Uganda Securities Exchange. The appeal arises from an application in which Mabirizi challenged the decision by the Capital Markets Authority-CMA to approve the prospectus of MTN Uganda in its initial public offer worth Shillings 4.5 billion in ordinary shares on grounds that the company was not incorporated well in the country.
On November 26th 2021, Justice Phillip Odoki dismissed the application on grounds that Mabirizi failed to prove that he had sufficient interest in the MTN-Uganda IPO and therefore had no locus to file the case. As a result, the Attorney General filed an application seeking to hold Mabirizi in contempt of court, saying that shortly after that decision, he used his social media platforms to attack Justice Odoki when he posted obscene words and abuses allegedly intended to lower the Judge’s self-esteem among the right thinking society members.
High Court Civil Division Judge Musa Ssekaana heard the Attorney General’s application on January 27th 2022 and condemned Mabirizi to pay Shillings 300 million for contempt of court. He also warned him strongly to desist from posting demeaning messages against judicial official officers on social media. Mabirizi continued with the attacks prompting Justice Ssekaana to order his arrest on February 15, 2022, to serve 18 months imprisonment and pay the costs of the suit to the government.
Now in his appeal before the Appellant court, Mabirizi has raised 14 grounds challenging Justice Odoki’s decision and the 80 others against Justice Ssekaana’s decision. He contends that the learned Judge Odoki erred in law and fact when he dismissed his petition on strange grounds. “The learned Judge erred in law and fact in dismissing the appellant’s case on a strange and alien ground of lack of sufficient interest,” reads Mabirizi’s appeal.
He also faults Justice Odoki of having found that the CMA does not give Mabirizi any express or implied right to complain for the alleged unlawful act or omission by the CMA. According to Mabirizi, Justice Odoki erred in law and fact and abused the powers of his discretion when he condemned him to pay costs and holding that his constitutional duties as a citizen and the fact that the contentious decision was affecting the public did not give him sufficient interest in the matter. On Ssekaana’s part, Mabirizi faults him for having allocated himself a case where he generally lacked jurisdiction.
He faults Ssekaana for entertaining the applications by the Attorney General without first ascertaining whether the alleged internet properties and activities were within Uganda’s boundaries to clothe him with the territorial jurisdiction over the matter. “The learned Judge erred in law and fact in participating in proceedings in which he had a conflict of interest and his impartiality was reasonably questioned”, adds Mabirizi’s appeal.
He also faults Justice Ssekaana for having held that the complaint that he had lodged against him with the judicial service commission has no bearing on his work and cannot be used to stop him from handling any of the matters involving the applicant.
Mabirizi now wants the Court of Appeal to quash the decisions of the two Judges and in the alternative reinstate his case against the IPO shares before another Judge for fresh hearing. He is also demanding unconditional release from prison and an award of general, aggravated, and exemplary damages arising from the said rulings.
Last week, the Court of Appeal Justices comprising Muzamiru Mutangula Kibeedi, Irene Mulyagonja, and Eva Luswata advised Mabirizi to seek a pardon from the Court that sent him to prison. This came after the court dismissed 12 applications, in which Mabirizi wanted to be released.