On Wednesday, 25 September 2024, this column called upon the legal fraternity in Uganda to support the candidature of Isaac Ssemakadde for the Uganda Law Society (ULS) presidency.
We argued that the 28th September polls were not just elections for the presidency of the ULS but were, in fact, a referendum on the place of the law – and lawyers – in the struggle for freedom and democracy in Uganda.
On 28th September, that referendum was held, and the outcome demonstrated a resounding vote in favour of an overhaul of the society, and an affirmation that lawyers should be squarely at the front, centre and back of any meaningful struggle for good governance in Uganda.
This was a critically important juncture in the post-1995 history of our country, in so far as it sought, in some ways, to resurrect a little of the hope and promise that might still be salvageable from the 1995 Constitution – a document so ravaged by its surgeons and midwives that it is hardly capable of recognition in present times.
The outcome of that referendum was also – in real terms – a protest against a whole range of disparate issues ranging from corruption and bad governance in the country to the basis of payment of compensation owed by the State to successful litigants. Put differently, the bus or ‘truck’ containing ‘legal rebels’ was a broad one, containing within it a wide array of discontented Ugandan lawyers with related – but not necessarily always overlapping – grievances.
To maintain cohesion and unity in that bus – and truly deliver on the promise of the 28th September revolution is a herculean task, and would be difficult for any one individual to accomplish. This is why, from the very beginning, this column asserted that the weight of this burden could not be appropriately – or even safely – placed on the shoulders of only one person.
The legal revolution – with the entirely of its promise and pitfalls – must be carried and supported by all persons (lawyers and non-lawyers alike) who wish to see a truly free and independent Uganda. It is within this context that the current elections for ULS representatives to the Judicial Service Commission (JSC), slated for 17th December 2024, must be understood. The elections were themselves not inevitable.
In terms of Article 146 (2) (c) of the 1995 Constitution, the JSC must be composed of ‘two advocates of not less than fifteen years’ standing nominated by the Uganda Law Society’. A narrow reading might suggest that the ULS President could have the power to simply name persons to those positions.
Indeed, this was what was done by ULS previously, until this practice was challenged by a public-spirited lawyer – Steven Kalali in the case of Steven Kalali v Attorney General (Miscellaneous Cause No.129 of 2023). In an extremely progressive decision rendered on 2nd February 2024, Judge Boniface Wamala found that Regulation 13 of the Uganda Law Society (Elections) Regulations (No.10 of 2016), read together with the Uganda Law Society Act, required that elections be conducted in respect of ULS representatives stipulated under any law.
Unfortunately, a Notice of Appeal in respect of this critical decision was filed by the ULS leadership of the time and its implementation might have eventually been stayed pending the outcome of that envisaged appeal (a fate to which many progressive decisions, including many of the Constitutional Court, have been subjected).
This death-by-appeal-and-stay (itself yet another manifestation of the crisis in the Ugandan Judicial system) would have been the fate of the Kalali case – but for the 28th September legal revolution. One of the first acts of the Ssemakadde-led ULS Executive was to withdraw the Notice of Appeal previously filed by the ULS in the Kalali case – thereby throwing open the door for the democratic determination of all ULS nominees to statutory and other bodies (including the Judicial Service Commission).
However, it is not yet Uhuru. Like any struggles – especially against deeply entrenched systems of patronage, privilege and impunity – there would inevitably be reactionary tendencies and even full-blown resistance. In the wake of the 28th September moment, the first sign of this was an attempt by certain sections of the Ugandan legal community to form a rival Bar Association to the ULS (apparently called ‘the Uganda Bar Association’ – UBA).
The UBA crawled on for a few days before collapsing almost as quickly as it had been conjured up. Then, on Saturday 23rd November, an even more brazen attempt in this regard was effected by Phillip Munaabi, the elected Honorary Secretary of the ULS, apparently acting in concert with Geoffrey Turyamusiima, the ULS Council Member for the Central region.
The duo purported to expel President Ssemakadde and the Vice President Anthony Asiimwe from the ULS Council, and to establish an ‘Caretaker Committee’ – headed by Munaabi himself. Fortunately, the ULS Council was able to marshal forces, constitute a meeting on Sunday 24th November, suspend the failed coup-plotters and preserve the democratic voice that had been so loudly expressed on 28th September. Nonetheless, the ever-present danger of the reversal of gains achieved on 28th September remain, and 17th December – the date set for the
Extraordinary General Meeting of the ULS – will be a critical test of the resolve and determination of the Ugandan legal fraternity to reassert their belief in freedom and democracy. In this sense, it is rather fortuitous that the election of JSC nominees on 17th December is combined with a discussion of, and resolution on, the fate of Munaabi and Turyamusiima.
This collective agenda should be a reminder to the entire ULS membership that it is not enough to start a revolution – the gains of that revolution should be jealously guarded. To the greatest extent possible, we must ensure that we vote persons who, by their history and track record, have demonstrated those values – respect for democracy and commitment to the public interest – which the 28th September moment represented.
I will, myself, be voting for Christopher Mbazira, a lawyer (and a fellow farmer) who has since 2001 dedicated his entire professional career to investigating how the legal profession can be made sensitive to the needs and concerns of the public, rather than merely serving the profit purposes of private corporations and deeply entrenched State interests.
A human being whose vision and efforts were behind the creation of the Network of Public Interest Lawyers (NETPIL) – a network which has deliberately mentored, trained and nurtured young lawyers from all the universities accredited to teach law in Uganda: Bishop Stuart University; Cavendish; Gulu; International University in East Africa; Islamic University in Uganda (Kabojja campus); Islamic University in Uganda (Kampala campus); Islamic University in Uganda (Kibuli campus); Kampala International University; King Ceasor University; Makerere; Nkumba; Uganda Christian University; Uganda Martyrs University and Uganda Pentecostal University.
A human being one of whose earliest published work – the 18th July 2007 article in Daily Monitor entitled ‘Why we must promote openness on the bench’ literally dealt with many of very issues at the heart of the crisis in the Ugandan Judiciary, which concerns will all be on the ballot on 17th December 2024.
A human being whose campaign to represent the ULS on the JSC has been conducted on a boda boda rather than in corporate boardrooms. Since we are allowed to vote for two candidates, I will myself (‘nze nga nze’) also be casting a second vote for Paul Mukiibi – whose own life experience, work and public life have demonstrated a similar commitment to public interest lawyering rather than the narrow pursuit of corporate profit.
Like Mbazira, he has championed the cause of opening up legal education to reach the greatest number of people (not just a privileged few) and has insisted on the need for legal practice to be relevant to the most vulnerable in our society.
There are twelve other good persons who have indicated their interest in representing the ULS on the JSC. Many of these excellent people (Alex Rezida, Anthony Kakooza, Mariam Mbabaali, Patricia Atim, Diana Nabuuso, Elison Karuhanga, Milton Ocen, Frank Kanduho and others) are variously senior colleagues, old school mates, colleagues and dear friends who have my greatest respect.
In casting my vote for Mbazira and Mukiibi, therefore, I do not at all cast any aspersions on any one of these persons. My own vote for Mbazira and Mukiibi will only be a response to my deeply held conviction that they are two individuals who, in terms of their experience and track record, are uniquely placed not only to hit the ground running at the JSC but also to continue to keep the faith the face of various pressures that would inevitably come with that role.
I also have no doubt whatsoever that they are keenly attuned, and responsive, to the imperatives of the unfinished legal revolution started on 28th September, powerfully demonstrated by the ongoing trial of civilians (including Rtd Col Dr Kizza Besigye) before military tribunals, (notwithstanding clear of Constitutional Court decisions on this matter); the externalization of bad governance within the East African Community (including the apparent normalization of abduction of Ugandan dissidents in Kenya and their rendition to Uganda) and, just this week the alleged night- time abduction of an advocate – Rtd. Major Ronald Iduuli – himself one of Dr. Besigye’s defence lawyers.
I do hope that, on 17th December 2024, my fellow learned friends – most importantly my fellow Ugandan citizens – recognize the gravity of the moment that we jointly face, and the need to, once again, cast a vote not just for two individuals but more importantly for the twin ideas of democracy and freedom which have eluded our country since its birth.
The Judicial Service Commission is one of the most important constitutional bodies in our land, playing as it does such a critical role in determining the integrity of one of the most critical arms of government – the Judiciary. It is precisely for this reason – that it is so powerful, that my own votes for the ULS nominees to this body will be in respect of two of the simplest, most earnest, most honest, most hardworking and most humble Ugandans that I know.
If Judicial power in Uganda is to be returned to the people in the terms envisaged under Article 126 of the Constitution, we must send to the JSC human beings more comfortable on dusty boda bodas (which several Ugandans use) than air-conditioned boardrooms (which deeply entrenched State interests and deep-pocketed corporations favour).
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.
