Why Ssemakadde is facing opposition from within

But his address to the Forum for Democratic Change Katonga Road faction, in which he attacked Justice Jane Frances Abodo, the Director of Public Prosecutions (DPP), opened a can of worms, prompting two members of his executive – Phillip Munaabi (secretary) and Geoffrey Turyamusiima (central region) – to demand Ssemakadde to offer an apology.

Ssemakadde didn’t apologise, insisting that it should be the DPP to explain how she charged about 40 members of the FDC faction, who were arrested in Kisumu, Kenya, before being extradited to Uganda with terrorism.

They were granted bail in October by the International Crimes Division, with terrorism charges still hovering above their heads.

With Ssemakadde not offering an apology as demanded by several people within the legal sector, including Prof Frederick Edward Ssempebwa, who claimed to represent the society’s former presidents, Munaabi claimed that he had fired Ssemakadde and installed himself as president.

This didn’t last long as the majority of the executive joined arms and thwarted what they christened as a coup and subsequently suspended the two renegades – Munaabi and Turyamusiima.

Ssemakadde accuses senior members of the law society such as Ssempebwa as being behind Munaabi and Turyamusiima’s efforts to undermine his leadership.

“I had to provoke them to bring their hypocrisy. They are completely sold out. The senior counsel bar comes to defend power. Uganda’s senior counsel bar is a warped entity. People are very clear that these people should be held to account. A senior counsel bar wakes up and accuses Ssemakadde of expressing himself. They call a mob on me but they should know that I can call a mob on them,” he says.

In a phone interview, Prof Ssempebwa said he couldn't respond because he was away at the conference of the East Africa Law Society.

But Mr Edgar Tabaro, one of the lawyers who didn't support Ssemakadde's candidature and has continued to voice his opposition to his presidency, denies being the brainchild of the document Munaabi authored.

“Anybody who has read my peer-reviewed publications in internationally respected journals and newspaper articles knows as very elementary knowledge that my writing style is markedly different from the impugned missive,” Tabaro says.

Ssemakadde’s agenda

For the years he has been practising law and engaged in legal activism, Ssemakadde has always been against the processes through which judicial officers be they judges or magistrates are selected.

Despite adverts being placed once there are openings in the Judiciary, he claims the processes that are spearheaded by the Judicial Service Commission (JSC) haven’t always been open, prompting Ssemakadde and like-minded lawyers to accuse the process of being covered in a fog of mystery.

Previously, Ssemakadde represented journalists Sulaiman Kakaire and Simon Kaggwa Njala who, through a constitutional petition, tried to open the process of vetting appointed public officials.

It was in 2015, that Njala, Kakaire combined efforts with Legal Brains Trust (LBT), a human rights watchdog led by Ssemakadde, that they filed a petition that asked the Constitutional Court to nullify Rule 153 (2) of the Rules of Procedure of Parliament, 2012, which provides that the proceedings of the Appointments Committee of Parliament shall be closed.

Ssemakadde and his colleagues insisted that the rule was in contravention of Article 8A (1) of the Constitution which calls for the promotion of transparency and accountability in all organs of the State by providing the public with timely, accessible and accurate information.

Most importantly, the trio said by concealing the process through which high-ranking public officials are sought, vetted and approved, the rule disempowers the public from effectively knowing about scrutinising and participating in the appointment of individuals who make decisions on their behalf.

They went ahead to ask the court to direct the Parliamentary Commission to grant them access to all transcripts, audio and video recordings of the proceedings of the Appointments Committee that had been conducted by the 9th Parliament since the institution of the rule.

The Constitutional Court didn’t hear the case quickly and it was in 2023 – eight years later – that justices Richard Buteera, Irene Mulyagonja, Catherine Bamugemereire, Muzamiru Kibeedi and Monica Mugenyi delivered the judgement in which they dismissed the petition whose intention was partly to open up the appointing processes of nominated judges.

Mulyagonja, a former Inspector General of Government (IGG), wrote the lead judgment in which she said the journalists had failed to demonstrate that they had failed to get proceedings provided for through the Access to Information Act.

“In the absence of evidence that Parliament failed, refused or neglected to provide them with information as requested, as well as the evidence that they sought to challenge either of those circumstances before the court as is provided for under Section 37 and 38 of the Access to Information Act, I’m of the view that the petitions didn’t exhaust their petition to this court to grant prayers sought for...,” Mulyagonja said.

From the time the judgment was delivered, Ssemakadde has always wanted to bring to the fore the debate of appointing judicial officers but having been enthroned to be the presidency of ULS, he issued a second executive order to open a Pandora’s box.

In the executive order, Ssemakadde said his council had decided to withdraw Ruth Sebatandira, a former ULS president, and Norah Matovu-Winyi as representatives of the Society on grounds that they hadn’t been elected by the society members.

Ssemakadde grounded this decision from a High Court judgment which stemmed from a suit filed by Steven Kalali, who in 2023, challenged the ULS council‘s tradition of appointing society representatives without members’ participation or involvement, saying it is a violation of their right to freedom of expression and thought.

Kalali also said by appointing the society’s representatives to various bodies without members’ involvement, the ULS council was violating the democratic principles of good governance.

Kalali argued that Section 10 of the ULS Act limits the powers of the ULS Council to be exercised subject to limitations provided under the Act and the regulations.

The law society then under the leadership of Ssemakadde’s predecessor, Mr Bernard Oundo, asked the court to dismiss the case on grounds that the ULS Council has always nominated representatives to statutory bodies within the mandate under the ULS Act and Regulations, and that the insistence on elections as the only form of participation for members in this process cannot be justified upon the premise of the ULS Act.

“The justifications put forward by the respondent pointing to the practical difficulties in implementation of that part of the regulations cannot be reason for a different construction of the Act and the regulations. Rather they can form a ground to justify amendment of the regulations which power is vested in the council with the approval of the general assembly of the society by way of a special resolution. As such, the act by the respondent’s council to nominate or appoint society representatives in a manner other than that provided for under the ULS elections regulations was in breach of the Act and the regulations,” Justice Boniface Wamala ruled.

Although Oundo’s administration indicated that it would appeal to Ssemakadde’s council to take a different route by effecting judgment, one of the reasons given for recalling Sebatindira and Matovu–Winy was that the Judicial Service Commission had failed to ensure the processes of appointing judicial officers are merit-based, transparent, and accountable.

“The ULS is concerned about the recent trend by judicial recruitments that have disregarded these principles, leading to widespread dissatisfaction and undermining the independence of the Judiciary,” a statement issued by the ULS said.

Ssemakadde made it clear that his target wasn’t just Sebatindira and Matovu, but rather the entire Judicial Service Commission.

The ULS, Ssemakadde said, shall launch a comprehensive campaign to advocate for a radical surgery of the Judiciary and JSC, emphasising the need for merit-based appointments.

However, Ssemakadde’s critics have insisted that he doesn’t have the power to issue executive orders.

“For me, there is nowhere in the Uganda Law Society Act where the president is given any powers. There is nowhere they say these are the powers of the president. So as the president, when you come out and you say ‘as a president issued executive order’, we don't have anything like an executive order under the law,” says Mr Tony Tumukunde, a lawyer who supported Ssemakadde’s opponent Isaac Atukunda.

“If you are withdrawing an appeal of the Uganda Law Society, you need a resolution from the members because for you to go to court, you need a solution from the members. Even to withdraw an appeal, you need a resolution of the members of the society,” he adds.

Tumukunde is one of the lawyers who filed a suit at the High Court’s Civil Division challenging Ssemakadde’s decision to issue the first executive order expelling Attorney General Kiryowa Kiwanuka and Solicitor General Pius Perry Biribonwoha, along with their representatives, from the ULS Council.

Ssemakadde contended that the ex-officio positions held by the Attorney General and Solicitor General on the ULS Council were outdated and conflicted with the autonomy of the ‘radical new bar’.

In kicking out the Attorney General and the Solicitor General, Ssemakadde cited the Prof Ssempebwa ULS Report (2012), which had recommended the removal of these positions.

He emphasised that the Attorney General’s ex-officio role on the ULS Council was “manifestly untenable” and accused him of failing to resign from private legal practice while continuing to conduct business with the Government of Uganda through his law firm and select private advocates.

Ssemakadde insisted that this represented a conflict of interest and abuse of office, resulting in the loss of Shs28.8 billion related to compensation for claimants of land acquired for the Namanve-Luzira 132kV transmission line project.

Although his opponents claim Ssemakadde is being “highhanded,” his supporters insist that these changes were long overdue.

“There has been a debate on whether we need an independent bar or we need a bar controlled and subject to the State. International standards prescribe that the bar should be independent. It’s one of the institutions in society that should be a watchdog against any excess of the society,” says Mr Peter Walubiri, a constitutional lawyer.

“So, if you are to have a functioning rule of law system, you need a vibrant and independent bar. Now if the council of that bar has the Attorney General and Solicitor General as its members, that compromises the independence of that council,” he adds.

To prove that the Attorney General is conflicted by being a member of the council of ULS, Walubiri cites a scenario during the Oundo administration when the ULS called a meeting to discuss the conduct of Hoima High Court judge Jesse Byaruhanga Rugyema.

In December 2023, Justice Rugyema ruled in favour of the Attorney General’s application seeking to deposit money meant to compensate landowners to court.

He also ordered the eviction of one project-affected person, who is said to have received compensation but had stubbornly refused to vacate the land for developments to go on.

Accordingly, the ULS administration called for a meeting to discuss alleged judicial misconduct by Justice Rugyema, which threatened the Tilenga Project-affected persons in Buliisa and Hoima districts, but Kiwanuka went to the High Court and got an order stopping the meeting.

“You can imagine one of your children going to court to stop you from conducting family business. That clearly showed that the Attorney General has two allegiances: one to the State where he is a Cabinet minister and chief legal advisor, and one to the Law Society where he is a member and is supposed to be on the council. There is a conflict of interest. You can’t have a council where some members are conflicted. So, it makes good sense for the Attorney General to concentrate on advising the government,” Walubiri says.

But some lawyers opposed to Ssemakadde’s move say he has no legal backing.

Mr Simon Peter Kinobe, a former ULS president, says the representation of the Attorney General and Solicitor General on the ULS council is provided for by an Act of Parliament and that he cannot wake up one day to single-handedly expel them.

“ULS does not have legislative powers, and so as far as we are concerned, that particular act is just for comical relief. The purported executive order is void ab initio and cannot be executed and, therefore, the two representatives shall continue to sit on Council until the law is amended or an order of the court is made to that effect,” Kinobe told this newspaper in October.

It is still early days in Ssemakadde’s tenure, but his march to “decolonise the legal profession from colonial laws” will not be an easy one.