As the New York Giants revel in their throne, Uganda, a football country of a different kind, celebrated that the scion of a house of lawyers, Mathias Kiwanuka, put the country “on the map” as we say in Kampala. His grandfather, Benedicto is a legend of the iconic kind. A World War veteran turned learned friend in Britain, he served as leader of government business on the eve of Uganda’s independence. Later jailed in the jostling for power that followed he was set free and then murdered by the archetypical anti-intellectual strong man Idi Amin a.k.a “Big Daddy”. At the time Mr. Kiwanuka (R.I.P) was Uganda’s first black Chief Justice.
And so it was that this week, a post on the facebook page of another scion of one Uganda’s political families, my buddy, Karoli Ssemogerere whose father Paul Kawanga Ssemogerere was once the Parliamentary Secretary to Chief Justice Kiwanuka. His post had to do with a rather lengthy letter written by the outgoing Attorney General of Uganda Professor Khiddu Makubuya (PhD) to the current holder of the highest office in the land, President Yoweri Museveni.
Before we refer to this rather startling correspondence in the history of Ugandan Presidents and lawyers in high office, one must recognize that Dr. Makubuya has an outstanding claim to excellence in Ugandan legal circles. In 1974, the year I was born, he obtained one of the few First Class Honors degrees at Makerere University law school. A few years later he got his PhD from Yale. As a lawyer politician cut from the illustrious clothe above however Mr. Makubuya has a trifle disappointing.
In 2006, for example, he advised Uganda’s Electoral Commission that Mr. Museveni’s main challenger Kizza Besigye could not have his name on the ballot because of serious charges preferred against him. None of these charges would ever be proven. It was the learned Attorney General’s “contention” that Dr. Besigye’s “degree of innocence” was less than that of other candidates that caught the eyes of the legal fraternity.
What was the learned friend in a round about fashion suggesting that the presumption of innocence?
Many a lawyer figured that maybe this former editor of the Uganda Law Society Review was now more politician than lawyer after all. In his present missive now published in full at the newspaper I write for, and where Karoli Ssemogerere contributes a column, Dr. Makubuya takes a step further by refining a political ruse that has recently become fashionable amongst Uganda’s cadre civil service.
After being accused of abuse of office he suggests that any attempt to personally hold him liable may damage not just him but the office of the Attorney General itself.
“I will be put to my defence. [to the charges against him] Various truths on a number of things will definitely have to come out. This will be good news for open methods of work and the open society. But where does it leave the office of AG? And where does it leave certain transactions processed and sealed during my tenure as AG?” he opines in this letter to the appointing authority.
He goes ahead to list transactions he claims contain uncomfortable truths including a government deal on Uganda’s leading hotel, one on Uganda’s main hydro-power dam (both ironically involve the same investor the Agha Khan) as well as his work on execution of the President’s Prerogative of Mercy and ominously as member of Uganda’s Judicial Service Commission, the judicial watchdog.
In translation the learned ex-Attorney General is engaging in “ presidential entrapment” ( my term) both legal and political. In legal terms he is insinuating as he has while appearing before a recent parliamentary inquiry that his actions are bonded, not by the expectation of that office, but as part of a chain of decisions that leads back to the President.
This sort of entrapment is not uncommon.
Many may people recognize it as blackmail. But perhaps because a sitting President has constitutional immunity it is meant to share some of the cover of that office. Ugandan courts already rejected the same attempt by President Yoweri Museveni’s Vice President Gilbert Bukenya who spent almost two weeks in jail last year while on remand for the serious charges of corruption.
Before he was finally charged he had managed to obtain a temporary injunction on grounds that his actions were directed by the President’s office and therefore protected by the immunity from prosecution of that office. The courts did not fall for it. However cadre civil servants and politicians have taken to it with some relish. Other members of cabinet and even the governor of the Central Bank have pointed out that their actions were the result of superior orders. One can imagine the response Big Daddy may have had to this soap opera of legal gymnastics. And one awaits that of the present holder of the office regaled by Makubuya (PhD) as “ Father of the Nation and Fountain of Honor”.
One of the silent victims of Uganda’s once proud professions has been their decay on the weight of expediency. Perhaps the difference between Benedicto Kiwanuka as a lawyer politician and his descendants the era of their days not the error of their ways. During Idi Amin’s tenure in office the ultimate price one paid was one’s life. Some have argued elsewhere that today the ultimate price is one’s dignity and conscience- something that Makubuya (PhD) is schooled in since his training is in jurisprudence. What is clear however is that it remains a choice regardless of the judgments that many are about to heap on him.
However finally, it appears to me that the letter in question besides threatening the Chief Executive does not protect the learned ex-Attorney General from further inquiry. As a political bombshell, he has now given Parliament a list of transactions to interrogate. However he must also know that the exercise of official discretion by a holder of any office is subject to rules. The legal protection he aught to seek is that he exercised his discretion within the limits of the law. Even Judges who are inoculated in the drawing of their own conclusions including over the right to life exercise their discretion in truth, fairness and in honor.
If such discretion is abused decisions are overturned and the shield of protection is pierced. The Attorney General’s office is only protected when holders of that office operate within the rules. If an office holder abuses those rules they become a target. This position actually has been settled by Ugandan jurisprudence. The notion that an inquiry into the actions of an office holder in this case the ex-Attorney General weakens the office is laughable if a senior member of the bar did not suggest it.
It’s likely that Makubuya will be expelled from the bar eventually by the Uganda Law Society who ostracized him in 2006. But then in this game of political and legal football- history may just go in a different direction.
