Attorney General of the Republic of Uganda v Kiwanuka (Application No.24 of 2024) [2025] EACJ 2 (7 March 2025) (First Instance Division)


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THE EAST AFRICAN COURT OF JUSTICE

AT KIGALI


FIRST INSTANCE DIVISION

(Coram: Yohane B. Masara, PJ; Richard Wabwire Wejuli, DPJ; Richard Muhumuza, Leonard Gacuko & Kayembe Ignace Rene Kasanda, JJ)

APPLICATION NO. 24 OF 2024

(Arising from <u>Reference No.8 of 2020</u>)

THE ATTORNEY GENERAL OF THE REPUBIC OF UGANDA ...................................

VERSUS

MALE H. MABIRIZI K. KIWANUKA ....................................

7^th MARCH 2025

RULING OF THE COURT

A. INTRODUCTION

1. This Application is brought under Rules 4, 5, and 52 of the East African Court of Justice Rules of the Court, 2019 ("the Rules"), seeking an extension of time to file and serve additional Affidavits and written submissions to Reference No. 8 of 2020, or alternatively, validation of the additional Affidavits and written submissions already filed and served out of time. They also ask for the costs of the Application to be determined in the Reference.

B. PARTIES

- 2. The Applicant is the Attorney General of the Republic of Uganda, sued in Reference No.8 of 2020 from which this Application arises in his capacity as the Principal Legal Advisor to the Government of Uganda. - 3. The Respondent is a citizen of Uganda and a lawyer, businessman and "civically active Ugandan" residing in Kampala, Uganda.

C. REPRESENTATION

4. The Applicant was represented by Mr George Kalemera. Commissioner in the Attorney General's Chambers, Ms Imelda Adong, Senior State Attorney and Ms Jackeline Amusugut, a State Attorney. The Respondent was self-represented.

D. GROUNDS FOR THE APPLICATION

5. The grounds for the Application as stated in the Affidavit in Support deponed by Mark Muwonge stem from the Applicant's inability to Application No. 24 of 2024 Page 1

meet timelines within which the Parties were required to file their respective Affidavits and Written submissions as ordered by Court, to wit:

- that the Applicant was required to submit Affidavits by $\mathbf{i}$ . April 5, 2023, and written submissions by June 24, 2023, but faced delays due to difficulties in obtaining necessary information from Government institutions. That these challenges, which were beyond the Applicant's control, hindered timely preparation and filing; - that the Applicant has since secured the required ii. information, filed the documents, and that the issues in the Reference are of significant public importance, tied to the governance and administration of Uganda; and - that granting the requested remedies would serve justice iii. by allowing the Court to consider their evidence fully, without causing prejudice to the Respondent, and that the Application was made promptly once the obstacles were overcome. - 6. These grounds were expounded upon in oral submissions made by Mr Kalemera, for the Applicant, at the hearing of the Application. - 7. In the submissions, Mr Kalemera, sought the Court's indulgence under Rule 5 of the Rules to extend time or validate four additional Affidavits and written submissions filed out of time on September 26, 2024.

- 8. He acknowledged the delay with remorse but attributed it to challenges faced by the Attorney General's Chambers in obtaining critical information from Government institutions, a process complicated further by the unprecedented context of the COVID-19 pandemic, which disrupted normal Government operations. - 9. He submitted that despite these hurdles, the Applicant was able to file Affidavits from key figures, including the Head of the Public Service Commission and a senior judiciary member, addressing the Respondent's claims. - 10. Mr Kalemera further submitted that the belated submissions are vital to such a case as the instant one, which is of great public importance, that sufficient reason for the delay has been shown, and that no prejudice would arise against the Respondent, who in any case has already filed rejoinders. - 11. He prayed that the Court exercises its discretion in the interest of justice to grant the Orders sought.

E. THE RESPONDENT'S SUBMISSIONS

12. In his submissions opposing the Applicant's request for extension of time or validation of late filings, Mr Mabirizi, contended that the Application constitutes an abuse of Court process under Rule 5, as it seeks to remedy a contemptuous failure to comply with a prior Court Order, drawing parallels to the case like Male Mabirizi & Others vs Attorney General of Uganda, Constitutional Petitions No. 49 of 2017) [2018] UGCC 4 (26 July 2018), where non-compliance led to dismissal with costs. He also sought to rely on the authority of Castro

Pius Shirima vs the Attorney General of the Republic of Burundi & 6 Others, EACJ Reference No. 8 of 2016, to argue that the Applicant's 17-month delay after the May 2023 deadline far exceeding the initial April 2023 expectation amounts to an improper use of Court process and is prejudicial to him due to the compressed response time it forced.

- 13. Secondly, he asserted that the Application fails to meet the "sufficient cause" threshold for extending time under Rule 5, as clarified by the Appellate Division in Attorney General of Uganda vs Media Legal Defence Initiative (MLDI) & 19 Others, EACJ Consolidated Applications No. 4 & 6 of 2018, which demands a qualitatively high standard. - 14. He dismisses the Applicant's explanation of uncoordinated Government agencies as inadequate, noting that their annexed letter requesting evidence was dated January 2024, well after the deadline, and that no prior complaints or extension requests were made during conferencing. - 15. He urged the Court to reject the Application and award costs, arguing that such extreme tardiness undermines fair and expeditious litigation.

F. COURT'S DETERMINATION

16. The Court's jurisprudence on extending time for filing documents is primarily governed by Rule 5 and the Court's inherent powers under Rule 4 of the Rules.

- 17. Rule 5 empowers the Court to extend time limits set either by the Rules or by a court order "for sufficient cause," reflecting a discretionary authority to balance procedural compliance with the interests of justice. - 18. Rule 4 further allows the Court to issue directions as necessary to ensure fairness and efficiency, providing a broad framework for handling delays. - 19. An Applicant seeking an extension of time must demonstrate "sufficient cause" for the delay. Considering whether to grant or deny extension of time therefore, is to an extent, dependent on the context of the circumstances presented in a particular case. - 20. The standard may be interpreted with varying strictness depending on the context, as was demonstrated in the case of Attorney General of Uganda vs Media Legal Defence Initiative (supra), cited by the Respondent. In that case, the Appellate Division rejected a state attorney's maternity leave as an excuse for filing in the wrong registry. - 21. The import of the Court's decision in Attorney General of Uganda vs Media Legal Defence Initiative (supra), is that routine administrative or personal challenges may not suffice unless exceptional circumstances are shown. However, the Court has shown flexibility in cases of public importance or where external factors genuinely impede compliance.

- 22. In Male H. Mabirizi Kiwanuka vs Attorney General of Uganda Mabirizi, EACJ Consolidated Applications Nos. 4 & 6 of 2019, this Court granted an extension to file a response, exercising discretion under Rule 4 when the Attorney General demonstrated efforts to compile evidence despite delays, indicating that good faith attempts to meet deadlines can sway the Court. - 23. Applied to the instant case, the inquiry would therefore be whether the challenges alleged to have been experienced by the Applicant were genuinely beyond the Applicant's control and that he exercised diligence in effort to get the requisite information. - 24. In his submissions, the Applicant acknowledged the delay with remorse but attributed it to challenges faced by the Attorney General's Chambers of Uganda in obtaining critical information from Government institutions, a process he says was complicated further by the unprecedented context of the COVID-19 pandemic, which disrupted normal government operations. To support this submission, he attached a letter marked Annex A, from the Permanent Secretary/Secretary to Treasury addressed to the Applicant, in which the Permanent Secretary/Secretary acknowledges receipt of a request, from the Applicant, for information and documentation on the Reference. Notably, while the request by the Applicant had been made in January 2024, the reply, which also referred the Applicant to another Government institution, was only done nine months after the request. - 25. In our opinion, informed by the evidence adduced by the Applicant and circumstances that pertained during the COVID pandemic, we

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are convinced that these challenges were genuinely beyond the Applicant's control and that diligence was exercised.

- 26. Precedents like Independent Medico Legal Unit vs Attorney General of Kenya, EACJ Application No. 2 of 2012 show the Court's willingness to prioritize substantive justice over strict procedural adherence in matters of wider public significance, such as governance issues during a crisis. - 27. We have also considered if there is a risk of possible prejudice that could potentially be occasioned if the Application is allowed. We note that the Respondent did not object to nor receive service "with protest". He actually went ahead to file responses to the belatedly served documents. - 28. The Respondent's filing of responses and rejoinders without protest mitigates claims of prejudice. The Respondent acquiesced to the belated service and in doing so implicitly waived the right to later object to the delay. - 29. There is therefore, in our opinion, no foreseeable prejudice that the Respondent may suffer if the Application is allowed. Indeed, as submitted for the Applicant, granting the requested remedies would serve justice by allowing the Court to consider the evidence from both sides fully, without causing prejudice to the Respondent. - 30. Regarding the allegation of contempt of Court and abuse of Court process, we find nothing in the Applicant's conduct to evince wanton misconduct as contended by the Respondent.

G. CONCLUSION

- 31. While the Respondent argued that the 17-month delay constituted an abuse of process and lacked sufficient justification, this Court finds that the unprecedented governance issues related to the Government of Uganda's COVID-19 pandemic response, coupled with the public importance of the subject matter of this case, justifiably warrant flexibility on the part of Court. - 32. The Applicant has demonstrated sufficient cause for the delay, stemming from challenges beyond his control in obtaining critical information from Government institutions during the COVID-19 pandemic, as supported by the Affidavit of Mark Muwonge and a letter from the Permanent Secretary evidencing diligence, despite a belated response. - 33. Resultantly, the additional Affidavits and written submissions filed and served on the Respondent are accordingly validated. - 34. Costs shall be in the Cause.

Dated, signed and delivered at Kigali this 7^th day of March 2025.

Hon. Justice Yohane B. Masara

PRINCIPAL JUDGE

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hon. Justice Kayembe Ignace Rene Kasanda JUDGE

Application No. 24 of 2024

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