The recent sentencing of Mr. Isaac Ssemakadde, the Uganda Law Society president, to two years for contempt of court raises profound constitutional and procedural questions.
The case stems from an application by Mr. Hashim Mugisha, who alleged that Ssemakadde made derogatory remarks on his X handle about Judge Musa Ssekaana. Astonishingly, the same judge heard and decided the contempt application and sentenced Ssemakadde. This warrants a closer examination of judicial impartiality.
Article 28(1) of the Constitution guarantees every individual the right to a fair, speedy, and public hearing before an independent and impartial tribunal. This right is absolute, further reinforced by Article 44(c), which declares it non-derogable.
The Constitution (Recusal of Judicial Officers) (Practice) Directions, 2019, were introduced to operationalize these constitutional guarantees. They emphasize the importance of impartiality by requiring judges to step aside in cases where their impartiality may reasonably be questioned, even in the absence of actual bias.
Rule 6(1) of the 2019 Directions is unequivocal: a judge must refrain from participating in proceedings where their impartiality may reasonably be doubted. This standard is not subjective; it is based on the perception of a reasonable observer. The goal is to preserve public confidence in the judiciary, which is as critical as ensuring justice in individual cases.
In this particular case, the alleged contempt arose from remarks directed at the presiding judge. When a judge becomes the subject of the controversy before them, it is difficult, if not impossible, to maintain the appearance of impartiality, regardless of their intentions or conduct.
The issue here is not whether the judge acted with actual bias but whether their continued involvement in the case created a reasonable apprehension of bias. The principle that justice must not only be done but must also be seen to be done is central to the legitimacy of judicial decisions.
The principle of nemo judex in causa sua (no one can be a judge in their own cause) was violated in this instance. This foundational principle of natural justice prohibits a judge from presiding over a case in which they have a personal interest or are directly implicated.
By presiding over a case in which they were directly implicated, the judge undermined the constitutional guarantee of a fair hearing under Article 28(1). Since this right is non-derogable under Article 44(c), there is no room for exceptions or compromises, no matter the circumstances.
The broader concern here is the potential erosion of public trust in the judiciary. Judicial impartiality is not just a legal requirement; it is a cornerstone of public confidence in the justice system. When impartiality is called into question, it casts doubt on the fairness of the process and the legitimacy of the outcome.
A constructive alternative would have been for the judge to recuse themselves and allow another judge to handle the matter. This approach would have demonstrated a commitment to fairness, preserved the integrity of the proceedings, and reinforced public trust in the judiciary.
The judiciary must take deliberate steps to reinforce the principles enshrined in the Constitution and the 2019 Directions. This includes fostering a culture where recusal is viewed not as a sign of weakness but as a strength—a demonstration of the judiciary’s commitment to fairness and the rule of law.
The right to a fair hearing is the foundation of justice. It is not merely a procedural formality but a substantive guarantee that protects the integrity of the judicial process. Upholding this right is essential to preserving the rule of law and the public’s faith in the judiciary.
The writer, Denis Kusaasira is a seasoned lawyer and Senior Partner at ABMAK Associates, specializing in mining and oil & gas projects. Recognized for his expertise, he is highly ranked by prestigious directories Chambers Global and IFLR1000.
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