Mr Daniel K. Kalinaki
The decision by the Uganda Law Council to deny advocate Martha Karua a temporary practicing certificate to represent Kizza Besigye is silly, indefensible and wrong. The reason given for the rejection – that her retention to join the team of lawyers is political, not legal – is even worse and possibly illegal.
Let’s start with the silly bits. The essence of a certificate of equivalence, which is the box that the temporary practicing certificate ought to tick, is to assess the training tradespeople have received in other jurisdictions and satisfy that it is good enough for the local market. If I hire an electrician from Chad, I want to be sure that they know which wire colour is live and which one is neutral.
Similarly, if a recent arrival from Fiji offers me a root canal, I need someone to have checked that she can tell her molars from her canines and has gone through the teething problems of domesticating her certificates. Lawyers (and journalists for that matter) on the other hand, largely learn from the same script.
In the case of Kenya, our shared colonial experience and common law ecosystem means that lawyers are, by and large, trained on the same set of principles and texts. The temp practicing certificate is a non-tariff barrier to protect market share, not a protection to legal clients.
Unsurprisingly, the Law Council’s decision now needlessly threatens the careers of the many Ugandan lawyers practicing in Kenya and possibly elsewhere.
Next, let’s consider the claim that Ms Karua’s appointment is political. The charges against Dr Besigye and his co-accused, Obeid Lutale Kamulegeya, are of illegally possessing side arms and plotting against the Ugandan military. These are not civil charges. They are very serious criminal charges. And. They. Are. Political!
If the duo was accused of defamation or of violating immigration rules, they would have many specialist lawyers in those areas to choose from. Given the political nature of the charges against them, they would be foolish to retain lawyers whose expertise is intellectual property. It is politics, dummy!
Even precedence condemns the Law Council. In 2001, candidate Besigye petitioned the Supreme Court to nullify the presidential election which had been called in favour of candidate Museveni. The second lead counsel in the team that represented candidate Museveni was Dr John Khaminwa, a Kenyan lawyer who had risen to fame by standing up to President Moi.
Mr Museveni was free to choose any lawyer to defend him in what was a decidedly political matter, and he included one with political pedigree. Why should this right be denied to Dr Besigye? Anyone who has passed the Bar – and even those who have passed by the bar – should know that an accused person is entitled to legal representation by a lawyer of. Their. Choice. One would also have expected that an eponymous Council would see it fit to point to the law undergirding its decision and the evidence relied upon to determine that Ms Karua’s selection was “political”.
It is tempting to chalk it all down to incompetence and ill judgment, but this matter coincides with a growing restlessness in the legal fraternity over what many now fear is judicial capture.
The judiciary has often stood as the last line of defence throughout Uganda’s turbulent political history. Chief Justice Ben Kiwanuka paid the ultimate price under Idi Amin, and we were reminded of the precariousness of the rule of law when armed commandos, the Black Mambas, raided the High Court in 2005.
The risk now feels more insidious and dangerously so. No one needs to attack the judiciary if it can attack itself – and us – from the inside. We always believed and hoped that whatever our political and ideological persuasions, whatever cracks emerged in other public institutions, whatever disagreements arose amongst us, we could find justice in the courts of law and that the judicial system would uphold the rule of law.
It now feels like that centre of gravity in the judiciary has sunk lower; justice is on its knees, a political boot on its neck. There might be different names and faces in the dock, but in many ways, it is the judiciary that is on trial.
Mr Kalinaki is a journalist and poor man’s freedom fighter.
[email protected];
X: @Kalinaki
