Law Society caught in the crosshairs ahead of polls

“Respect for the law is the best guarantor of not only your members’ welfare, but also that of all Ugandans,” he said.

Earlier, on August 25, Busingye Kabumba, a Makerere University Law don, was left wondering if the law society had lost its way when he attended the 5th Annual Law Conference.

“Unfortunately, the language seems to be centred around ‘markets’, ‘trade’, ‘billions’, ‘purchasing power’, ‘business’, ‘investment’ etc. Less about ‘rights’, ‘governance’, ‘democracy’ etc,” Kabumba tweeted.

Among the several people that responded to Kabumba’s tweet were Mr Enoch Barata, a ruling National Resistance Movement (NRM) lawyer.

He opined thus: “I think the key is balance. In much the same way as we chose different practice areas, so should the [Uganda Law Society] business and mandate be. There is nothing unfortunate about that.”

Mr John Musiime, another lawyer, responded thus: “The objects of [Uganda Law Society] include matters that on interpretation include governance issues, rule of law etc. No one is saying that these should be discarded. Just that Advocates’ industry concerns must not pay second fiddle to them.”

He added: “I likened those to corporate social responsibility. In the [Uganda Law Society] that you (Kabumba) are nostalgic about, lawyers’ issues and welfare was ignored and the society was run as some kind of political symposium with raving speeches and press and that. That approach misaligns with our interests and the law.”

Who are the candidates?

The candidates who have thrown the proverbial hat in the ring for the top ULS job are Diana Angwech, Shuib K. Rayan Chemisto, Olivia Kyarimpa Matovu, Bernard Oundo, Mukuve Karemire Mugagga, and Diana Ninsiima Kibuuka.

Ms Ninsiima Kibuuka has said the “three pillars we shall focus on in our proactive engagement on the rule of law will be: accountability, transparency and independence of the Judiciary.”

In an August 21 interview with this newspaper, Mr Oundo said thus: “I think there should be an intentional drive to see the rule of law respected and make sure that no one undermines court orders.”

Elsewhere, Ms Angwech, the outgoing ULS vice president, has promised to “institutionalise a sustainability plan for the provision of legal aid and pro bono services, increase access to justice, build an engagement platform with civil society [and] leverage networks to improve our donor/partnership community engagement.”

Mr Mugagga has outlined 11 issues where he feels the rule of law is tenuous. These include advocates’ professional misconduct, which entails prosecutorial misconduct, overreach, partiality; charges sanctioned without evidence, unnecessary multiple charges sanctioned in land matters, criminalising civil matters, perfunctory objection to bail without grounds, deliberate delay in trial.

“To be honest the approach of the ULS has been pusillanimous. We hide behind paper statements and eschew responsibility for bold visibility and vocality on these critical issues of rule of law and good governance in times when the nation needs guidance. It’s quite unfortunate,” he said in an interview.

Sub tweeting an unsavoury TV interview that had Mr Simon Peter Kinobe, a former ULS president, Mr Nicholas Opiyo—a ULS member—said he “believe[s] character, not buzz words; thought processes and records should be closely examined lest we end up at this stage where we’re scorned.”

In WhatsApp groups and other forums the debate around the outlook of the ULS and its future has taken on a tone not different from Mr Opiyo’s. Uganda has in the past two decades witnessed several human rights violations, some of which were facilitated by state actors. The ULS has for the most part been conspicuously silent. Sources tell Saturday Monitor that this has forced many “serious” and “respectable” lawyers to take a backseat. Most of them, we’ve been told, are resigned to the conclusion—real or imagined—that ULS is a victim of state capture.

Little bark, no bite

Besides accusations that ULS has little bark and no bite, questions around whether it is exercising its mandate in a feeble manner persist.

The ULS strategic mandate has four themes. These include promoting members’ professional development and ethical conduct, promoting access to justice for the indigent, marginalised and vulnerable persons in Uganda, contributing to upholding and promoting the rule of law in Uganda and strengthening the institutional capacity of the ULS to become a modern bar association.

“I’d simply comment by looking at it holistically. All institutions that used to bark and bite a few years back are now mute. Look at the Judiciary, look at Makerere [University], look at civil society. All are mute, and mum. There’s been a concerted effort aimed at silencing institutions like ULS. It’s been a long-term game, and it has worked well for the state,” says lawyer and human rights advocate Godwin Toko.

By the very nature of their profession, lawyers the world over are not known to stay mute when leaders attempt to supplant rule of law with rule by law. In neighbouring Kenya, for example, lawyers were at the forefront of ending the dictatorial regime of Daniel Arap Moi. In Tunisia, lawyers mounted boycotts, strikes, and protests against the regime of Zine El Abidine Ben Ali. Similar accounts are chronicled in Chile against Augusto Pinochet’s regime.

Contrary to the common view that the ULS has lost its mettle over the years, Mr Isaac Ssemakadde, a lawyer who has christened himself a “legal rebel”, insists the institution has never had one and is simply a relic of the colonial era.

Mr Ssemakadde has been pushing the dilution of the monopoly of the Law Development Centre (LDC) in the final training of lawyers. He says the current set up of the ULS has ignored four fundamental duties including decolonisation, demilitarisation, democratisation and digitisation.

Mr Ssemakadde adds that the ULS Act was introduced at the height of anti-colonial struggles in Buganda with the objective to introduce a buffer against colonial misrule, which was achieved by the “colonial government’s selective appointment of bursaries to children of mostly Christian oligarchs or wannabe petty bourgeois in Buganda to study law in considerations for returning to work as Askaris in ‘robes’ and ‘wigs’ for the colonial government.”

He adds that there is a lack of accountability across the whole Justice, Law and Order Sector (JLOS).

“The bar is effective in enforcing the culture of quietism whether in private or public spaces. The law society is an askari of the empire,” he says.

Mr Isaac Bakayana, a lecturer at Makerere University’s School of Law, has been aiming cheeky digs on the ongoing race to elect the next president of the ULS. He uses his Twitter account mostly to give sarcastic takes and jokes about Uganda’s society.

In one take, he said: “If I were to stand for ULS President, I would just say one thing, ‘ladies and gents you are on your own just give me and I try but things are hard…’”

In another take, he said: “If I were to run for ULS President, I would tell young lawyers, ‘you are on your own. No one owes you anything. Bring value to your office. Work hard. Be consistent and persistent. Once in a while drop the senior partners’ clothes to a dry cleaner.”

Key cases involving Uganda Law Society

Uganda Law Society Constitutional Petition of 2005. The question of the status of military courts came up again in the Uganda Law Society Constitutional Petition of 2005.  In this case, Dr Kiiza Besigye and 22 others were charged in the High Court with treason and misprision of treason under the Penal Code Act.54. They were also jointly charged in the General Court Martial with the offence of terrorism and in the alternative with being in unlawful possession of firearms. All the above-mentioned offences arose from the same facts. One of the issues that the Constitutional Court had to address was whether the concurrent proceedings in the High Court Case No. 955/2005 and Court Case No. UPDF/Gen/075/2005 in the General Court Martial against the accused contravened Articles 28 (1) and 44 (c) of the Constitution55 were inconsistent with Articles 28 (9) and 139 (1) of the Constitution. In deciding this issue, the Court had to determine the status of the General Court Martial.

Uganda Law Society and Jackson Karugaba v Attorney General. In the Uganda Law Society and Jackson Karugaba case, one of the issues was whether the Constitution of Uganda applies to Field Courts Martial. Referring to Article 2 of the Constitution and the Supreme Court case of Joseph Tumushabe, the Constitutional Court also re-affirmed the Constitution as the supreme law of Uganda with binding force on all authorities, including military courts. Justice Twinomujuni, who delivered the unanimous decision of the court, expressed shock that government was still insisting that the Constitution does not apply to military courts. He argued thus: “In the course of my 11 years’ service as a Justice of the Constitutional Court, I have heard very senior representatives of the Attorney General argue that the Constitution does not apply to the Uganda People’s Defence Forces (UPDF) as it applies to other authorities and persons in Uganda. They particularly like to argue that the Constitution does not apply to the military courts martial because the courts are not courts of judicature within the meaning of Article 129 of the Constitution. They argue that these are special institutions that were never intended to be bound by stringent rules and procedures laid down in the Constitution. I have always held that this argument is fallacious. The majority of justices of this court have always maintained that the Constitution applies to all authorities and persons throughout Uganda. I was, therefore, shocked to hear the same arguments being advanced in this petition by counsel for the respondent.”

Uganda Law Society v Attorney General Const. Application No.7 of 2003 Uganda Law Society filed a petition challenging the constitutionality of the NRA Statute insofar as it provided for the passing of a death sentence without the right of the convicts to appeal up to the Supreme Court. The application sought for an injunction to restrain the state from carrying out the death sentences in respect of certain convicts until the petition was heard.

Uganda Law Society v Attorney General Constitutional Petition No. 1/ 2006 (CC) Uganda Law Society petitioned the Constitutional Court for a declaration to the effect inter-alia that the GCM did not have jurisdiction to try Besigye and the 22.

Uganda Law Society et al. v Attorney General, Constitutional Court. On February 5, 2009, the Ugandan Constitutional Court ruled that the Constitution of the Republic of Uganda fully applies to martial courts. This case is related to the murder of three civilians in Kotido District in north eastern Uganda at the hands of two soldiers of the UPDF. On the same date of the events, “the two soldiers were tried, convicted, sentenced to death and immediately executed by firing squad.” The complaint petitions were raised arguing the whole process was not in accord with the Constitution. Conclusions of the Constitutional Court were that the process indeed violated the Constitution, mainly with regard to the right to a fair trial. In particular, the court ruled that every person sentenced by a martial court had the right to appeal the decision.

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