Uganda’s president chastises chief justice over litigation outcome, orders action to rectify matters: profession divided over response

22 February 2024 · Carmel Rickard

It took time to get going, but a letter by Uganda’s president Yoweri Museveni (pictured) to the country’s chief justice has sparked a row that shows no sign of blowing over. The letter complained about a court decision and urged that the CJ should take action in the wake of that decision. The letter, written in December 2023, dealt with a visit to Museveni by one of the parties to a court case, and castigated the CJ for the decision taken by a member of the judiciary in relation to the case. Though there was initially no public reaction from the CJ, the judiciary and other members of the profession, the matter blew up more than a month later, in a way that adds to growing concern about the health of judicial independence in Uganda.

Read ruling: interim order barring the ULS from holding its meeting

Just last month, the African Judges and Jurists Forum held a seminar on the state of judicial independence in the East African region. Speakers and participants listed problems and attempts at solutions. But, as events in Uganda are illustrating, in the real world it’s an extremely complex – perhaps even intractable – problem, particularly when key elements of the profession don’t seem to share the same understanding and concern about threats to this vital principle.

Early in 2024, the text of a letter from Uganda’s president, Yoweri Museveni, to Uganda’s chief justice, Alfonse Owiny-Dollo, surfaced in the media.

Sent in December 2023, the letter took issue with a court decision by a member of the judiciary and, according to Museveni, was written after one of the parties to the dispute was in touch with Museveni to raise his concern about the outcome.

Inexplicable silence

Once the letter became public knowledge, the Ugandan judiciary maintained an inexplicable silence.

But while the judiciary has kept silent on the subject, and while the attorney general has publicly said there is nothing wrong with the letter, calling it a mere communication between the leader of one arm of government and another, dissatisfaction from other parts of the law profession has burst into the public sphere – and proved unexpectedly divisive.

First, in reaction to the letter, some members of the Uganda Law Society (ULS) petitioned for the society to hold a special meeting related to Museveni’s letter and the health of judicial independence in Uganda.

Intention to ‘embarrass the judiciary’

But the proposed ULS meeting never took place. A member of the ULS, Brian Kirima, went to court two days before it was to have been held, asking for an interim order that would prevent it from happening. He claimed the meeting would discuss matters that were ‘illegal’ and ‘unlawful’ and outside the mandate of the ULS.

In response, the presiding judge, Musa Ssekaana, found that there were indeed grounds to grant the order, pending the outcome of a full hearing on the lawfulness of the meeting. The planned ULS special meeting could lead to the passing of illegal resolutions, said the judge, and he noted that Kirima had claimed the meeting would ‘make resolutions which are intended to embarrass the judiciary and … would bring it into disrepute.’

In his ruling of 5 February, Ssekaana therefore issued what was effectively a ban on the meeting. That, in turn, sparked angry reaction by some members of the ULS. A statement, signed by the lawyers who had originally called for the meeting, criticised the ban and urged ULS members not to attend the formal opening of the judicial year that took place on 9 February.

‘Trampling capriciously on the rights of the bar’

The group said that key constitutional rights had been gagged on the ‘speculative basis’ that some resolutions on a matter of public interest ‘may be illegal’. ‘This marks a new low for our judiciary and national bar association. It was previously inconceivable that the bench could trample on the rights of the bar in such [a] capricious fashion,’ they said.

They quoted the UN basic principles on the role of lawyers and the IBA standards of the independence of the legal profession that guarantee the rights of members of bar associations to take part in public discussions on matters concerning the law and administration of justice. It was ‘dangerous’ for the judiciary to suggest, as happened here, that gatherings of professional lawyers were ‘subject to its approval’, said the ULS members.

And they urged that, by way of response to the court ban, members of the ULS should not attend the official opening of the new law year.

‘Money-changing in the temple of justice’

Commenting after the law year opening ceremony, outspoken Ugandan lawyer, Isaac Ssemakadde, one of the group that had initially called for the meeting banned by the court, said the boycott of the judicial event had been successful. On X (formerly Twitter) he referred to the event as a ‘performative gig in disgusting colonial robes and wigs’ and said those ‘wheeler-dealers’ who had attended had gone because of ‘narrow-minded motivations’, including ‘of course, money-changing in the temple of justice’ by those couldn’t resist ‘worshipping a golden calf at the Tower of Babel’.

At the formal judicial function to mark the start of the legal year, attended by judges in their wigs and robes along with other dignitaries, ULS president, Bernard Oundo, said people looking for justice needed to be certain that courts would adjudicate cases ‘impartially and without external pressure’. They had to be confident that the judge hearing their case ‘will not be receiving phone calls or letters from anyone directing how a case should be judged.’

In his official remarks, Oundo – rather bravely, considering the occasion – cited the letter written to the CJ by Museveni, and said the letter had given instructions on a case in the court of appeal. While the president could disagree with a decision, it was important for judicial independence that ‘there shouldn’t be any sort of direction from the fountain of honour, his excellency the president’.

‘Interference with public confidence in the judiciary’

The letter amounted to ‘an interference with public confidence in the judiciary and therefore we call on all actors, all arms of government and all citizens, to respect judicial independence,’ Oundo said.

He also cited other examples where the authority of the Ugandan courts was under threat, for example, the failure by local authorities to respect court orders.

In his address, however, the attorney general, Kiryowa Kiwanuka, said that the presidential letter to the CJ, was merely a ‘communication between one arm of the state with another arm of the state’, and brushed away suggestions that there was anything untoward about it.

As for the CJ himself, he barely mentioned the letter or the banned meeting, though he said a ‘bar-bench conversation’ would be held to discuss the situation.

That Bar-Bench meeting has now taken place. A wide range of issues was canvassed and the CJ briefly dealt with the letter. He said it was quite normal for the president to have approached him to clarify a situation and to ask him to look into it.

He added that the problem identified by the president was caused by counsel who had acted 'fraudulently' and also by the registrar who hadn't exercised proper due diligence in the matter.

He further said that while it had been acceptable for members of the ULS to have been concerned, that concern had been dealt with in the wrong way. Instead of making statements and going to court, it should have been addressed in a bar-bench forum, he said.

President calls CJ, describes himself as a 'lobbyist'

Museveni’s December 2023 letter to the CJ is, however, clearly not the only time he has approached the head of the judiciary about a court decision with which he is dissatisfied. In February 2023, Museveni boasted that when he was unhappy with a finding in a case about a Chinese investor, he phoned the CJ to give him his views on the decision. ‘I am a lobbyist now,’ he quipped.

It’s an unfortunate stalemate. Clearly, there would be widespread support for the chief justice and the judiciary on the grounds that judicial independence had been threatened by the letter from Museveni. But it seems that the CJ would find such support a source of embarrassment and that his preferred approach is to act as though the letter does not exist.

Since the opening of the court year there have been other salvos from both sides. However, the impression the judiciary, along with the AG, has tried to create is that there is no problem, and even if there is, it would best be dealt with ‘softly-softly’, by private communications between the CJ and suitable members of the profession who approach him discreetly. Certainly not by public statements or petitions – let alone litigation.

Regional lawyers keep silence on Uganda, speak out on Kenya

Whether the ULS will play along with that approach, and, like the judicial leadership, simply ignore or forget about the continuing trend for the president to ‘lobby’ the CJ on live court matters, is quite another story, particularly with growing international legal attention on threats to judicial independence in parts of Africa.

One of the ironies of the situation is the role of the umbrella East Africa Law Society (the EALS). That body, of which the ULS is a member, has maintained a deep silence on the Museveni letter. But the EALS had no hesitation in expressing ongoing concern about the situation in Kenya where the president, William Ruto, has made a number of searing attacks on the judiciary.

The EALS statement of 12 January cited violations of the separation of powers principle and condemned attacks on judicial independence there. An observer is left wondering about the inconsistency: why is the legal profession more able to speak out in and about Kenya, than Uganda?

Carmel Rickard

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