Eron Kiiza and the soul of the law in Uganda

I must start with an apology. For some strange reason, last week an older piece (from last year) was reprinted.

Today’s column, therefore, is that which should have run last Wednesday. It will be recalled that on March 5th, this column dealt with Hannah Arendt’s thesis on the banality of evil – in the context of the entire process leading up to Eron Kiiza’s arrest, conviction, sentence and continued detention.

Unfortunately, these processes are occurring in a context of additional judicial appointments and promotions which bring into focus the place from which those appointments spring. It is a strange country indeed, in which lawyers, the general public and even judicial officers themselves are caught off-guard by the announcement of judicial appointments and promotions.

It is especially problematic when those appointments and promotions are based on no known objective criteria. It is even worse when they are, in fact, so coincidentally proximate to certain patterns of judicial reasoning as to lead to the strong presumption that the beneficiaries thereof have been rewarded for past or anticipated services to the President and his apparently-designated successor.

Unfortunately, even assuming that some (or most, or even all) of those appointed or promoted are persons who are both competent and of good character, the current times are such as to taint the entire process – and its beneficiaries – with the odour of illegitimacy.

This calamitous state of affairs might have been somewhat mitigated if the Constitutional Court had returned the right answer in the case of Legal Brains Trust Ltd, Simon Kaggwa-Njala and Sulaiman Kakaire v Attorney General (Constitutional Petition No.23 of 2015).

The petitioners challenged Rule 153 (2) of the 2012 Parliamentary Rules of Procedure, which is now Rule 165 (2) of the Rules of Procedure of the 11th Parliament. That Rule provides that: ‘The proceedings of the Committee on Appointments shall be closed.’

Essentially, it allows the Parliamentary Appointments Committee to vet candidates High Court, Court of Appeal and Supreme Court judges (alongside other public officers stipulated under the Constitution) in camera.

They argued that the Rule was inconsistent with, among others, Articles 8A (1) (governance of the country based on national interest and the common good); 79 (3) (duty of Parliament to protect the Constitution and promote the democratic governance of Uganda); 29 (1)(a) (freedom of expression, including freedom of the press and other media); 38 (1) (right of citizens to participate in the affairs of government) and 41 (1) (right of access to information in the possession of the State).

In a unanimous decision handed down on the 12th of September 2023, the Constitution Court dismissed the petition. In so doing, the Court took the view that the process for identifying and appointing judicial officers was already robust, so that by the time names were submitted to Parliament for approval those persons were more or less fit for office.

The Court observed: ‘It is only after determining that a candidate is suitable that the [Judicial Service Commission] recommends them to the President for appointment. He then decides, on the basis of his executive authority, whether to appoint the persons recommended or not to … [T]he President cannot lawfully recommend a person for appointment to the JSC; it is only the reverse that is sanctioned by law.

And when all is said and done, the Parliamentary Select Committee on Appointments only approves appointments as it is mandated to do under rule 167 (l) of the Rules of Procedure of Parliament.

The Committee has hitherto not found any candidate for appointments as a judicial officer unfit to hold the office because all the vetting and assessment has already been concluded by JSC by the time they go to Parliament for approval.

Opening up the process before the Committee would … make no difference whatsoever to the decision of the JSC about the suitability of the candidate.’ I

am sure the Constitutional Court was well-meaning, especially given the seriousness and integrity of the Justice who issued the lead decision.

I wonder though, whether, in light of subsequent developments, including the current impasse over the election of Uganda Law Society representatives to the Judicial Service Commission – and the nature and substance of the most recent appointments and promotions to the higher benches – the Constitutional Court in March 2025 would still reach the same conclusion it did in September 2023.

Can the process of appointment (and promotion) of judicial officers in Uganda still said to be of such a standard (in terms of rigour and integrity) as not to merit additional public scrutiny – and participation – at the stage of parliamentary vetting?

I think one would be hard- pressed to find a lawyer or judicial officer (serving or retired) who would return an affirmative answer to this question. Unfortunately, by all indications, things will only get worse before they can even start to get better.

In the present circumstances, my own very firm advice to any Ugandan citizen would be to avoid coming into contact with the Ugandan judicial system as much as humanly possible.

It was Abraham Lincoln (who initially practised as a lawyer before turning to politics and eventually becoming one of the more consequential US Presidents) who in 1850 advised lawyers in the following terms: ‘Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time.’

If this was true for the United States in 1850, it is several times truer for the Uganda of 2025. I repeat this advice to all Ugandans – try to settle your civil cases out of court if you can. Only go to court if you have absolutely no option – such as if, God forbid, you are forced before the court in handcuffs in the context of criminal proceedings.

The truth is that we have collectively lost our way – as lawyers and judicial officers alike. We can tell we have lost our way when the President of the Uganda Law Society is denied the simple courtesy of speaking at the opening of the New Law Year.

Is it a year of law if the elected President of Ugandan lawyers is not granted the basic consideration of sharing his views on the path of the law for that year?

We can tell we have lost our way when the same President of the Uganda Law Society is condemned to prison for two years – and is the subject of another warrant of arrest in respect of separate proceedings – in both instances in the context of the content of his speech (however, and admittedly, unpalatable the nature of such speech).

We can tell we have lost our way when Eron Kiiza – an Advocate of the High Court of Uganda and all subordinate Courts thereto – remains languishing in prison in respect of a conviction and sentence for contempt of court, issued by a tribunal deemed by the Supreme Court of Uganda to be unconstitutionally constituted.

Can justice be truly served when judges (with soldiers following their cue) seek to make lawyers – officers of the court – cower and tremble before them like serfs? If this is done to lawyers, what fate can ordinary litigants expect?

In a context where the law has lost its soul – and its way – does it still make sense to practice – or teach – law? I have personally already had two crises of faith in the legal profession since graduating from law school.

The first occurred in August 2009. After about eight months in a commercial law practice – in one of the best, if not the very best law firms in the country – it quickly became clear to me that commercial law could never be a fulfilling vocation for me.

I joked with friends at the time that, in leaving commercial law and turning towards a career in teaching and legal consultancy, I was taking a vow of poverty, much like Monks do. The second occurred in December 2018.

The passing of my father in December 2017 invited me to rigorously assess the meaning of life – and to commit to a pursuit only of those things which truly mattered, given the brevity of our journeys on earth.

And it dawned on me that emails demanding the processing of various assignments ‘by close of business’ were not among the more meaningful aspects of life. It is partly for this reason that in that month (December 2018), I took early retirement from the Consultancy Firm – M/s Development Law Associates (whose idea I had conceptualized in 2006, while a young post-graduate student in the United Kingdom).

For the continuity of the firm, this departure was only formally communicated to clients in January 2020. Inexplicably, I still find myself listed on that firm’s website as an ‘expert’ – but I hope this anomaly can and will be expeditiously resolved.

I am experiencing, in March 2025, yet another crisis of faith in the law. Does it really make sense to teach law – particularly constitutional law – in a country like Uganda where it is clear that guns (and gun men and women) are in charge? Does it make sense to write a weekly column – entitled ‘constitutionally speaking’ – in a land where the law (including the Constitution) grows ever more silent with every passing day?

How, for instance, am I to explain to my brother Eron Kiiza’s children, wife, parents, siblings and other relatives – not to mention my own children – his continued detention notwithstanding the clear terms of the Bill of Rights of the 1995 Constitution and the expressed view of the Supreme Court in the Kabaziguruka case?

If our loved one, a lawyer himself, remains incarcerated in spite of the law – does the profession which I share with him still make any sense? Sadly, it appears ever more to be the case in Uganda that to be lawyer, law teacher or judicial officer is to stand – like Ezekiel in the Bible – in a valley of dry bones.

Is it not more honourable, in these circumstances, to give up the pretence of practising, teaching, adjudicating or even studying law – and take up more honest endeavours like farming?

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.