Inside fight pitting lawyers against Judiciary and Executive

Lawyers Peter Walubiri, Phillip Karugaba, Mohmed Mbabazi, Eron Kiiza, Isaac Ssemakadde, Jude Byamukama, and Sarah Kasande, inter-alia, have made it a point to issue statements when they conclude that the Executive is inferring with judicial independence. 

Their efforts started when at the end of last year President Museveni wrote a letter asking Chief Justice Alfonse Owiny-Dollo to intervene in the court case in which Muslim property, including the revered Gaddafi national mosque, was bound to be sold. 

“I, therefore, request you to review this matter yourself and see how to restore sanity,” Museveni told the Chief Justice and hours later the Court of Appeal stopped the sale of the property.       

The lawyers mounted pressure on Bernard Oundo, the president of the Uganda Law Society (ULS) to either call an extraordinary general meeting to discuss Museveni’s letter or at the very least issue a statement. 

The move to call the meeting was thwarted by a court order issued by the Civil Division of the High Court following an application filed by Brian Kimara, a lawyer, too.  

Kimara claimed that whatever was going to be discussed was “unlawful” and “outside the law”.

“It has also been shown by the applicant [Kimera] that the balance of convenience lies in maintaining the status quo and the balance of convenience cannot be ignored in such an application which alludes to breach of law or passing of illegal resolutions which will occasion an irreparable damage or injury, such damage or injury cannot be atoned for or compensated in damages,” Justice Musa Ssekaana ruled. 

With that avenue blocked, the lawyers asked Oundo to issue a statement condemning Museveni’s move which they said amounts to infringing on the independence of the Judiciary.

Article 128 of the Constitution buttresses the Judiciary’s independence, saying courts shall be independent and shall not be subject to the direction or control of any person or authority.   

Oundo, according to these lawyers, refused to issue a statement on grounds that issuing statements never delivers any tangible results.  

Oundo’s suggestion, which was rebuffed, was that engaging the Executive and other powers that be would be more effective than issuing a statement.   

“They seem not to be keen on rule of law issues.  There is also this idea that issuing statements is useless that’s what the current leadership thinks, which is not correct in my view,” Byamukama said. 

“The leadership wants to lobby and negotiate behind closed doors when there’s an issue.”  

Indeed, at the new law year event, Oundo dismissed this group of lawyers who had called for a boycott of the event saying the law society would present the disagreements in the courts of laws.    

“As Uganda Law Society we have two orders from courts that might have implications on the right to assembly with far-reaching implications on the mandate of Uganda Law Society. We will lead by example and defend these matters in the courts of law and we shall not attempt to boycott this function,” he said.

Oundo went ahead to propose a “bar-bench forum” which should iron out emerging disagreements. 

“The bar-bench forums should be able to meet on a bi-annual basis and deal with the challenges we face in the administration of justice,” Oundo said.   

Oundo’s approach hasn’t gone down well with lawyers who have insisted that he has failed to perform his duty . 

“I don’t personally blame Oundo because even if you elect another president he will do the same thing. What we are dealing with is State capture of the law society and the Judiciary. What we are dealing with are the after-effects of colonialism,” Ssemakadde, who supported Oundo in his campaign for ULS presidency, said.   

With Oundo preferring to engage rather than protest, the lawyers decided to form a platform which they have christened “rebels”  which they use to give opinions.  

“Not that we are opposed to the Law Society on everything but we believe we can’t just sit and look on while the independence of the Judiciary is being violated,” Byamukama said.  

Ssemakadde called his group, which was formed to examine the social and political processes by which organised voices have failed from the Law Society or its crop of senior counsel, “temporary”.   

“The quick and unprecedented succession of gagging orders, perpetually forbidding ULS assemblies without court approval had two immediate consequences,” Ssemakadde said. “One, they unmasked the previously well-hidden fascism and incestuous fusion of both the Executive and judicial powers, which sufficiently scandalised the Judiciary and ensured that the issues would now be discussed in the public square.”   

Secondly, Ssemakadde said, the court injunctions were a blessing in disguise to his group because their concerns were catapulted from what would have been an hour of ULS members–only – zoom meetings into uninhibited national conversations. 

“…they provoked a unity of purpose in a team of rivals that seized the opportunity to facilitate the emergence of organised voices from the legal profession on epoch-defining matters of public interest,” he said.

Oundo’s approach is opposed to that of this group of lawyers who called the boycott because they prefer the law society to replicate the early 2000s when the lawyers demonstrated against what they termed as government interference in the Judiciary.  

Led by Moses Adriko, the lawyers demonstrated after a group of security personnel that came to be known as “black mamba” stormed the High Court and rearrested Opposition doyen Kizza Besigye and his co-accused who had been granted bail after being charged with treason and terrorism offenses. 

In 2013, under the leadership of Ruth Sebatindira, the ULS voted to suspend Attorney General Peter Nyombi for alleged incompetence. The lawyers also gave Nyombi a certificate of incompetence for allegedly misadvising Museveni. It seemed Nyombi had heard enough and he decided to go toe to toe with his fellow lawyers. 

Using Kampala Associated Advocates (KAA) Nyombi dragged ULS to the Civil Division of the High Court, saying he was tried and suspended without being heard, an act which contravenes the rule of natural justice. 

Nyombi argued that by section 4 of the ULS Act, the attorney general is a statutory member of the Law Society and, therefore, cannot be suspended. 

In his Judgement, Justice Steven Musota, who has since been elevated to the Supreme Court, said only the Law Council can suspend and revoke a license of a legal practitioner. 

He said the decision of the Law Society was just an opinion, which could not be legally binding. Justice Musota also rebuffed ULS’ argument that they suspended Nyombi, the individual, and not the attorney general.  

The 17 lawyers are accusing Kiryowa Kiwanuka, the current Attorney General, of co-opting the Judiciary into the Executive.

The lawyers cited a letter dated September 22, 2023, in which Kiwanuka addressed Chief Justice Owiny-Dollo on the issue of the subject of recommendations of the joint working committee on succession registers and certificate of succession.

Kiwanuka, according to the lawyers, concludes by giving a directive to the Chief Justice. 

“Courts should also not renew the letters of administration held by the Administrator General and private persons in respect of estates under succession registers once they expire within the timelines in the Succession Amendment Act No. 3 of 2022.”   

The lawyers interpret this as Kiwanuka, personal lawyer to President Museveni, co-opting the Judiciary. 

“The directive from the Attorney General to the Chief Justice violates Article 128 (1) and (2) of the Constitution which prohibits any interference with the judicial officer in the exercise of judicial functions. For the Chief Justice and all judicial officers who are addressed in the Attorney General’s and Principal Judge’s letters to meekly and passively receive illegal advice and directives, is an abdication of judicial independence. If the Executive wishes courts to reject renewals of certificates of succession, the proper recourse is to Parliament to cause a law to be passed and not by direction to judicial officers,” the lawyers said.   

On his part, Kiwanuka has insisted that this group of lawyers have crossed the Rubicon.     

“Again, we had a lot of excitement about a communication between the President and the Chief Justice; with the law society sitting to discuss, discuss what? This was a communication between one arm of the State and another,” Kiwanuka, who has been representing the interests of the first family since the early 2000s, said.  

In their February 19 dossier, the lawyers said they worried that the correspondence between the Attorney General and the court is symptomatic of the “illicit intercourse” that has been taking place between the Judiciary and the Executive. 

“The Judiciary must develop a greater understanding of its constitutional obligations to the independence and impartiality and guard it jealously. The proverbial blind maiden of justice must guard herself from the unholy liaison with the Executive,” the lawyers warned.

The Chief Justice, however, disagrees with the lawyers.

“My role as the Chief Justice is to ensure that the independence of the Judiciary is guaranteed. We might have differences with the lawyers, but the independence of the Judiciary is non-negotiable,” Chief Justice Owiny-Dollo says.