By Dan Muliika (Veteran Journalist)
The recent sentencing of Uganda Law Society (ULS) President, Isaac Ssemakadde, to a two-year term for contempt of court has ignited intense constitutional and procedural scrutiny. The ruling, delivered by Justice Musa Ssekaana, raises fundamental concerns regarding judicial impartiality, fair hearing rights, and the bedrock principles of natural justice.
The Contempt Charge and the Judge’s Dual Role
The case originated from an application by Mr. Hashim Mugisha, who alleged that Ssemakadde had made derogatory remarks about Justice Ssekaana on his X (formerly Twitter) handle. The unprecedented twist in this legal saga is that Justice Ssekaana, the very subject of the alleged contempt, presided over the case, rendered judgment, and pronounced sentencing.
Such an adjudicative posture directly contravenes the doctrine of judicial impartiality, which is enshrined in Article 28(1) of the Ugandan Constitution. This provision guarantees every individual the right to a fair, speedy, and public hearing before an independent and impartial tribunal. Reinforcing this protection, Article 44(c) classifies this right as non-derogable, underscoring its inviolability under all circumstances.
The Recusal Mandate: A Legal Imperative
The Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019, were instituted to actualize these constitutional safeguards. Rule 6(1) of the Directions mandates that a judge must disqualify themselves from any proceeding in which their impartiality may reasonably be questioned. This directive is rooted in the fundamental principle that justice must not only be done but must also be seen to be done—a principle echoed in R v. Sussex Justices, Ex parte McCarthy (1924).
The jurisprudence of recusal is not subjective; it is evaluated from the perspective of a reasonable observer. The standard is not whether the judge harbors actual bias but whether a reasonable apprehension of bias arises from their involvement. In Ssemakadde’s case, the very essence of the allegations against him revolved around comments about Justice Ssekaana. By proceeding with the matter, the judge created an unambiguous appearance of bias.
Breach of Nemo Judex in Causa Sua
The doctrine of *nemo judex in causa sua*—no one shall be a judge in their own cause—is a cardinal principle of natural justice. The rationale is straightforward: an adjudicator must not have a personal stake, direct or indirect, in a matter they are deciding. By presiding over a case in which he was personally impugned, Justice Ssekaana positioned himself as both judge and victim. This violates the fundamental requirement of an impartial arbiter and vitiates the fairness of the proceedings.
Legal precedents, such as *Dimes v. Grand Junction Canal Proprietors* (1852), affirm that even the mere perception of bias is sufficient to invalidate a judicial decision. This case presented an undeniable conflict of interest, rendering the verdict and sentencing procedurally suspect.
The Perils of Judicial Overreach
Beyond the technicalities of recusal, this ruling has broader ramifications on public confidence in the judiciary. Judicial impartiality is not merely a procedural nicety; it is a cornerstone of the rule of law. When a judge’s neutrality is in question, the integrity of the entire justice system is jeopardized.
Uganda’s judiciary must take deliberate steps to institutionalize a culture of judicial restraint and impartiality. Recusal should not be perceived as an act of weakness but as an affirmation of the bench’s commitment to upholding due process. When a judge voluntarily steps aside in cases where their impartiality is contested, it strengthens the credibility of judicial outcomes and fortifies public trust.
A Missed Opportunity for Judicial Prudence
A more prudent approach would have been for Justice Ssekaana to recuse himself and allow another judge to adjudicate the matter. This would have insulated the proceedings from allegations of partiality and upheld the spirit of Article 28 of the Constitution. By declining to do so, the judge inadvertently undermined the very principles he was duty-bound to protect.
Legal scholars and practitioners now contend that Ssemakadde’s conviction could face robust appellate scrutiny. Given the clear breaches of constitutional and procedural safeguards, a higher court may very well find the ruling defective for violating the principles of natural justice.
Conclusion: A Precedent-Setting Controversy
This case serves as a stark reminder of the judiciary’s responsibility to uphold constitutional guarantees without fear or favor. The right to a fair hearing is not a discretionary privilege but a foundational pillar of justice. The Ugandan judiciary must introspect and reaffirm its commitment to impartiality, lest public confidence erodes irreparably.
Justice Ssekaana’s decision may have been an assertion of judicial authority, but in the court of public perception, it risks being viewed as an exercise in self-serving adjudication—serving his own cake and eating it too.
