Isaac Ssemakadde’s bold move is decolonizing Uganda Law Society

Every citizen has a duty to safeguard the Constitution, to defend its principles with unwavering resolve.

This isn’t just a task for lawyers in courtrooms, arguing over interpretations. It is a responsibility that demands action, a fight for the very spirit of the law. For far too long, the Uganda Law Society, the bedrock of legal practice in our nation, had been held captive to a colonial legacy.

The Attorney General and Solicitor General, by virtue of their positions, held an unyielding grip, their authority fueled by antiquated rules – relics of a bygone era. These rules, etched into sections 4(1) and 9 of the Uganda Law Society Act, were crafted by a British-dominated Legislative Council back in 1956.

The urgency behind establishing a Bar Association during the 1953-1955 Kabaka crisis paints a clear picture. The British colonists, masters of political maneuvering, understood the power of law. They sought to control our own brilliant legal minds - Abu Kakyama Mayanja, Benedicto Kiwanuka, Andrew Fredrick Mpanga, Jehoash Mayanja-Nkangi, and many others – by ensuring their inclusion within the Law Society.

The repugnant provisions of the Uganda Law Society Act were not authored by Ugandan lawyers. And even after independence in 1962, a strange silence fell over the legal profession. We seemed to accept this colonial inheritance, allowing the British-era rules to define our very existence.

But then, on October 14, 2024, a hurricane swept through the legal landscape. Isaac Kimaze Ssemakadde, the newly elected president of the Uganda Law Society, took bold action. Through Executive Order RNB No 1/2024, he expelled the Attorney General and Solicitor General from the Law Society, initiating forensic investigations into their conduct.

Ssemakadde, the lion-killer, embodies the will of the people, a resounding victory for those who believe in the true spirit of the Constitution. He has rekindled the flame of autonomy enshrined within the 1995 Constitution, a spirit that resonates deeply with the majority of legal professionals.

BREAKING FREE: THE RIGHT TO ASSOCIATION

The truth is, individual and collective rights are inherent. They are not gifts from the state, but fundamental rights that must be upheld by the government. Article 20 of the Constitution makes this clear. Yet, the ex-officio membership of the Attorney General and Solicitor General in the Law Society blatantly violates the right to freedom of association guaranteed by Article 29(1)(e) of the Constitution.

This right is enshrined internationally, in the International Covenant on Civil and Political Rights (ICCPR), the UN Basic Principles on the Role of Lawyers, and the International Bar Association’s Standards for the Independence of the Legal Profession. UN Special Rapporteur Maina Kiai, in his 2015 final report, underscored the right of association, condemning legislation that forces associations to bend to state ideologies.

Article 40 of the Constitution safeguards workers’ freedom to associate, free of government interference, a principle enshrined in the landmark case of Sam Lyomoki vs Attorney General. The Attorney General and Solicitor General cannot claim ignorance of these legal precedents.

Our post-colonial 1995 Constitution effectively banished state officials, including the Attorney General and Solicitor General, from all workers’ associations. This was a necessary step towards a truly independent legal profession. To put it simply, you wouldn’t let a fox lead a committee guarding a henhouse.

NO COURT REQUIRED: THE POWER OF THE CONSTITUTION

Did Ssemakadde need to seek court intervention to expel the Attorney General and Solicitor General? Absolutely not. His actions were grounded in the very foundation of our nation’s legal framework. Article 274 mandates that laws enacted before 1995 must be interpreted in alignment with the Constitution.

The supremacy clause (Article 2) renders sections 4(1) and 9 of the 1956 Uganda Law Society Act, which directly contradict the constitutional right to freedom of association, void. No court order is needed for this interpretation. The Privy Council in 1961 provided a definitive understanding of the word “void.”

As Lord Denning stated in Benjamin Leonard Macfoy vs United Africa Company Limited, “If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside.” In short, a void law doesn’t exist in the eyes of the law.

This principle was reaffirmed by the Ugandan apex court in Kisugu Quarries Ltd vs Administrator General, where they stated, “You might see it with your naked eyes but it does not exist in law.”

It is clear that past Uganda Law Society governing councils shirked their duty under Article 274 by failing to expel the Attorney General and Solicitor General. The Radical New Bar has taken the correct course of action.

In his post on X (formerly Twitter), Senior Counsel Ssemakadde, referencing Lord Denning’s words in Parker v Parker, stated, “What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.”

We cannot allow the Constitution to become a dusty relic. We must breathe life into it. The duty to uphold the Constitution is not the exclusive domain of courts. UN General Comment No 31 on article 2 of the ICCPR emphasizes the government’s responsibility to protect and fulfill human rights through non-judicial measures.

States have a negative duty not to interfere with protected rights. The Attorney General and Solicitor General were, until now, operating under a colonial misconception, claiming an unwarranted ex-officio position within the National Bar Association.

A LANDMARK PRECEDENT: OSOTRACO AND BEYOND

The majority of those who oppose this landmark decision haven’t fully grasped the significance of Attorney General vs Osotraco Ltd, a case that stripped the post-colonial state of its immunities and unjustifiable powers. We must not allow case backlogs to grow as we wait for courts to act.

The Constitution is a powerful instrument that should be used proactively, not as a last resort. The Law Society Council has the authority to take bold action, to ensure the principles of the Constitution are upheld. Under paragraphs II(v)(vi) and V(ii) of the National Objectives and Directive Principles of State Policy in our Constitution, the Uganda Law Society must conform to democratic principles and retain its autonomy.

The Constitution is not a car that needs constant refueling. It is a sophisticated legal vehicle capable of sustaining itself. On October 8, 1995, it became self-executory, meaning its implementation is not dependent on courts or parliamentary actions.

We must not rely solely on courts to resolve every conflict with the Constitution. Articles 2 and 274 provide clear guidance. Common sense is a vital source of law. It is time we embrace both judicial and non-judicial remedies. Administrative bodies like the Uganda Law Society have the power to make decisions grounded in the Constitution.

Any dissatisfaction with their decisions can be addressed through the courts. Justice Kanyeihamba, in Attorney General vs David Tinyefuza, highlighted that not every constitutional violation requires a trip to the Constitutional court. He posed three thought-provoking scenarios: A late student punished by cleaning the classroom. Should they petition the Constitutional court or address the situation with the school administration?

A prison officer who opens and reads an inmate’s sealed letter. Should the inmate file a constitutional petition or take the matter to the prison administration? A resident disturbed by noisy neighbours. Should they sue or address the issue with the local government council?

The Uganda Law Society, empowered by section 10 of its own Act, was well within its rights to issue Executive Order RNB No 1/2021. Court intervention was not necessary.

Attorney General Kiryowa Kiwanuka is also subject to forensic investigations for alleged crimes against the bar, the government and the public, as outlined in Executive Order RNB No 1/2024.

If the Attorney General and Solicitor General attempt to disrupt the ULS operations, resorting to force, intimidation, or arrests, then we will be forced to seek court intervention.

The author is the founder and managing partner of Melchi Advocates and CEO of a legaltech platform called validwills.net. She is also a spokesperson of the Back On Track thinktank that supported Isaac Ssemakadde’s victorious campaign for leadership of the Uganda Law Society.