The title of today’s column is directly inspired by a small blue book authored by my late father, Professor Ijuka Kabumba, in 1992, entitled ‘The contribution of managers to the survival of dictatorship in Uganda’.
It reflected on the role played by members of his own profession – managers and public administrators – to the continued experience of autocracy in Uganda. It is an enquiry that perhaps all professions in Uganda should undertake. And, as members of the Uganda Law Society (ULS) head to the polls this week to elect a new executive, it is an issue every one of us should especially reflect upon.
In their 2006 essay entitled ‘Lawyers’ professionalism, colonialism, State formation and national life in Nigeria, 1900-1960: “The fighting brigade of the people”’, Chidi Oguamanam and Wesley Pue observed as follows: ‘Lawyers, indeed, are always “there”, serving, variously, the causes of independence movements, revolution, authoritarian rule, sovereign statehood, or colonial administrations. Law is Janus-faced, promising both liberty and order’ (at Page 2).
The reference to the Janus-faced character of law – and lawyers (and judges) is very apt. Like the two-faced Roman god, the law can be both a tool of oppression and of liberation. It all depends on how and why it is being deployed, and who is deploying it.
Indeed, the very colonization of Uganda was made possible by the manipulation of international law itself to permit the ‘discovery’ of occupied lands, allowing a direct line to the infamous Berlin Conference of 1884-1885.
The entrenchment of colonialism was further achieved through the instrumentality of law and legal instruments: the 1900 Buganda and Toro Agreements, and the 1901 Ankole Agreement; the 1902 Order-in-Council; the 1919 Native Authority Ordinance and others. It would also be assisted by the decisions of Judges in such cases as R v Besweri Kiwanuka (1937) and Mukwaba v Mukubira (1954).
Law and dictatorship in Uganda have always been close bedfellows – and lawyers (and Judges) have, since 1894, played a significant part in establishing and entrenching bad governance in Uganda.
This did not change after independence in 1962. Instead, we had black lawyers and black judges doing the same things the British had done. If anything, many Ugandan lawyers quickly proved themselves to be even more adept than their erstwhile colonial masters atusing the law to achieve oppressive ends. Every single draconian law in Uganda since 1962 – from Obote’s Public Order and Security Act (POSA) of 1967 to Museveni’s Public Order Management Act (POMA) of 2013 (and beyond) – hasbeen drafted by Ugandan lawyers.
Lawyers have killed Constitutions, and, like magicians pulling rabbits out of hats, conjured up new ones – it was Binaisa who both drafted the 1966 Constitution and also vigorously defended it (and Obote’s coup) before the Court in Uganda v Commissioner of Prisons, Ex Parte Matovu. In more recent times, it is lawyers who planned and executed the amendments to the 1995 Constitution which removed the safeguards that would have prevented a life presidency – in 2005 (to do away with the term limits in Article 105(2)), and in 2017 (to do away with the age limit in Article 102(b)). And it is lawyers and Judges who defended and legitimized (respectively) such measures in the Courts of law
How have they managed to get away with this? Partly through the mystique of law – enhanced by strange clothing (robes and wigs) and strange language (Latin and inscrutable ‘legalese’). This might have been exactly what Hon. Mubarak Munyagwa was invoking in his famous NTV Point Blank clip in which he says: ‘You think … I am an everyday person? Ompita omuntu wa bulijjo? I am a lawyer, my friend.’
But why should this be the case? What is wrong with being an ‘ordinary person’? Especially in a Uganda where, by all indications, most of our fellow citizens are ordinary persons? Are we not equally affected, on a daily basis, by the effects of bad (and worsening) governance as are our fellow citizens?
I am not sure that the legal profession today is that much different from that established in 1902, as an appendage to the colonial State – for primarily predatory and extractive purposes – rather than an organic and authentic part of society.
The current battle for the Uganda Law Society Presidency is one which has for the first time in my own memory presented a candidate – in Isaac Ssemakadde – who appears to understand the broader purpose of the legal profession, and to have an agenda to force a deeper reflection on these long-festering issues.
He premises his candidacy on a four-point agenda encapsulated in four ‘Ds’: i) Decolonization; ii) Demilitarization; iii) Democratization; and iv) Digital Transformation. To be fair to the outgoing ULS Executive, led by Bernard Oundo, the fourth ‘D’ is perhaps more of a continuation of the status quo, given the significant steps already taken by the ULS Secretariat in this regard. However, the first three ‘Ds’ are critical. Indeed, any single one of them would, in itself, be a sufficiently significant platform, as the country heads into the uncertain future of the 2026 electoral moment.
This particular moment is especially difficult, given that we have an ageing President; an heir-apparent First Son who seems to be intent upon forcing himself upon Ugandans whether they like it or not (and who has unilaterally declared that a ‘civilian’ will not become President); a Minister of Justice and Constitutional Affairs (himself a lawyer) who seems set to introduce a proposal under which elections for President would be by Members of Parliament rather than through universal suffrage; and a Speaker of Parliament who has already declared her readiness to receive ‘The Father, The Son, and the Holy Spirit!’.
Uganda faces a very difficult moment in the two years ahead – a cocktail of militarism and autocracy (themselves a holdover from the colonial State, when soldiers were not even referred to as human beings but as ‘the King’s African Rifles’) – with the active involvement of significant segments of the legal profession. If ever there was a time in which the Uganda Law Society needed to be led by a person with a clear understanding of the demands of the moment, and the unflinching courage to squarely contend with it, tit is now. And in Ssemakadde, I believe we have such a candidate.
I am certainly not unaware of, or insensitive to, his weaknesses and blind spots. At a debate at the Makerere School of Law this past week, for instance, he very unfortunately brushed aside a question around sexual harassment – appearing to even trivialize the issue. His language is also often unduly abrasive, and he appears to evince a personal and all-consuming hatred for the person of the Attorney General, Hon. Kiryowa Kiwanuka.
I do not know what the genesis of this might be, but it is certainly not a basis on which to ground (even in part) a campaign for the presidency of the ULS. His generalized attack against certain well-respected and distinguished legal practitioners in what he refers to as ‘big law firms’ is also strange, and arguably counterproductive. Indeed, at a time when a candidate might be tempted to read even such suspicious literature as Dale Carnegie’s ‘How to win friends and influence people’, Ssemakadde seems to be reading from a text with exactly the opposite title!
Nonetheless, as one senior colleague Counsel Dan Wandera Ogalo noted in his endorsement of Ssemakadde: ‘Uganda Law Society operates in a hostile environment as rule of law means nothing to the rulers. We cannot continue to pretend we are in a normal situation.
The situation requires a “fundamental change” in how we go about our legal practice.’ We are compelled to agree. This column has previously noted the deep (and ever deepening) crisis in the Judiciary; the degradation of Parliament; and the personalization of the military, among other things. At any other moment, perhaps a better candidate for the ULS presidency might have been Mr Keneth Kipaalu – a young, intelligent and polished lawyer who seems to be the very antithesis of Ssemakadde in terms of his personality.
At the Makerere debate, for instance, he had the good sense to acknowledge the importance of the challenges faced by women in the legal profession (including in law schools) and to respond sensitively to the concerns raised by the audience members in this regard. His manifesto and campaign have also been alive to the rule of law crisis Uganda finds itself in, including, it must be said, a courageous response (via Twitter) pushing back against Gen Muhoozi Kainerugaba’s near treasonous utterances regarding the presidential transition. At another time, in another moment, Keneth would have been an ideal candidate, and I do wish him the very best even in the present campaign.
I fear, though, that we are dealing now with an entrenched culture and system of bad governance – steeped in impunity (some of which was on display at last week’s Judicial commemoration of the legacy of Benedicto Kiwanuka) – that only a self-styled ‘legal rebel’ like Ssemakadde might be able to force a serious reckoning or response from those comfortable in the abnormal.
As Martin Luther King Jr noted on 27 September 1966, ‘a riot is the language of the unheard’. Many lawyers, like their fellow citizens, feel unheard. I am among that number. On Monday this week, for the first time since I became a member of the Uganda Law Society in 2008, I made a monetary contribution to a ULS presidential campaign.
And on Saturday, I will be voting for Ssemakadde, not just on the basis of his manifesto – which is incisive – and whose claims are undeniable – but also as a protest against a system (an Executive, Parliament and Judiciary) whose dismissive silence and clear impunity require, and necessarily invite, some kind of radical response.
I am under no illusion as to what kind of ULS President Ssemakadde might be. Indeed, in voting him into office, we would probably be bringing ourselves under the rule in the 1868 case of Rylands v Fletcher, in which anyone who brings a dangerous element into an arena thereby becomes strictly liable for any harm which that element might cause to others.
In fact, I have no doubt that, if elected, Ssemakadde might at some point turn his verbal and other artillery against myself and persons of my ilk (legal academics, or as Pastor Martin Ssempa once rather uncharitably referred to us ‘pharisees’)!
Indeed, from the moment of his election, the task incumbent upon us all would be to challenge and pushback against Ssemakadde himself – as he might be tempted to ride roughshod over certain ULS internal systems, or otherwise continue to manifest the faults and blind spots already highlighted above.
All said, I have no doubt that if we elect Ssemakadde as ULS President, we might probably come to regret it. At the same time, I am equally convinced that, if we do not elect him as ULS President on 28th September 2024, we shall most definitely regret it. We are presented, this time, not just with an election for the executive of the ULS, but a battle for the soul of the legal profession, and democracy and good governance in Uganda.
It is a referendum for the place of law – and lawyers – in the struggle for freedom in Uganda. On this occasion, I will be privileging courage over decorum. My vote will, perhaps against my better judgement, go to a brash dreadlocked contrarian lawyer whose ‘bang the table’ rallying cry is somewhat reminiscent of young Middle Eastern radical who over 2,000 years ago overturned tables in the Lord’s temple declaring: ‘It is written, “My house will be called a house of prayer” but you are making it ‘a den of robbers’ [Mathew 21: 12-13].
The writer is Senior Lecturer and Acting Director of the Human Rights and Peace Centre (HURIPEC) at the School of Law, Makerere University, where he teaches Constitutional Law and Legal Philosophy.