Before the hearing of the case in which a private prosecutor accuses award-winning public interest lawyer Isaac Ssemakadde of insulting High Court Judge Musa Ssekaana on Twitter, the accused lawyer has filed a separate application charging the private prosecutor and Judge Ssekaana of conniving to oppress him.
Rutaro Robert Muhairwe, a lawyer with Elgon Advocates, filed a case at the Buganda Road Chief Magistrate’s Court to have Ssemakadde punished for statements made on Twitter that are attributed to him. Ssemakadde was summoned for the hearing of the case tomorrow, March 4, starting at 2pm.
Rutaro alleges that in sending out the statements, Ssemakadde among other things committed the offense of criminal libel, “clearly intended to annoy the said judge, lower the self esteem and confidence of the said trial judge, embarrass and shame him, and to lower his estimation among the right thinking members of society”.
Mr Rutaro argued that the statements attributed to Ssemakadde are “inexcusable” and amount to contempt of court, which the accuser said Ssemakadde, being a senior advocate, ought to know.
Ssemakadde is alleged to have made the said statements in response to a ruling by Judge Ssekaana condemning Male Mabirizi, also a public interest lawyer, to pay a fine of Shs300 million for contempt of court, which resulted from Mabirizi making statements on social media that the Attorney General thought were insulting to Judge Phillip Odoki.
Mabirizi said he would not pay the “illegal” fine that Judge Ssekaana had imposed on him, and proceeded to make further statements about the same judge on social media, which made the Attorney General again complain to the same Judge Ssekaana, and the judge responded by sentencing Mabirizi to 18 months in prison for contempt of court. The case unfolded so fast and Mabirizi did not get to defend himself before the same judge in the lead up to his fine and imprisonment. He has since appealed against the fine and sentence to the Court of Appeal.
When Judge Ssekaana imposed the fine of Shs300 million on Mabirizi, Ssemakadde is accused of having tweeted on the handle @isaacssemakadde thus: “This “judge”’ has either a small brain, or a small penis – but neither of His Lordship’s inferiorities will be cured by the UGX300 million (USD85,000) fine imposed on our rule of law champion. @JudiciaryUG should do more to restrain its “young Turks” from embarrassing the institution.”
Then when the judge sentenced Mabirizi to 18 months in prison, Ssemakadde is accused of having tweeted: “Another moronic decision, for the garbage heap!”
In the affidavit that Ssemakadde deponed in support of his application to the Buganda Road Chief Magistrate’s Court, the lawyer states: “I know from my defensive surveillance that these criminal proceedings were conceptualised and commenced by the private prosecutor, Advocate Rutaro Robert Muhairwe, in cahoots with Judge Musa Ssekaana for the wrongful purpose of oppressing me.”
The application was drawn and filed by three law firms – Walyemera & Co Advocates, Thomas & Michael Advocates, and Gem Advocates – on behalf of Ssemakadde.
Ssemakadde accuses Muhairwe of introducing a private prosecution against him yet he is aware that the same matter is already the subject of a police investigation.
Ssemakadde wrote in his affidavit: “It is plain from the above, and the papers [of the private prosecution case]widely circulated via social media by M/s Elgon Advocates, the law firm of the private prosecutor Advocate Rutaro Robert Muhairwe, that he was at all relevant times fully aware of the existence of a police investigation … instigated by his sponsor Judge Musa Ssekaana, in respect of the alleged online publications, and that the same is ongoing.”
Since the police are already investigating the matter, Ssemakadde argues, the court should not entertain a private prosecution on the same issue, and that the private prosecutor did not sufficiently carry out the duty of first ensuring that proper investigations are conducted before moving to institute a prosecution.
Ssemakadde further states in his affidavit that he found out from the investigating officer at the CID headquarters in Kibuli, Kampala, that Judge Ssekaana had written to the Director of Criminal Investigations “on Judiciary note paper complaining about the same charges, word-for-word, as those in the impugned proceedings commenced by the private prosecutor Advocate Rutaro Robert Muhairwe.”
Regarding the allegations of sending out tweets that were deemed to be offensive to Judge Ssekaana, Ssemakadde wrote in his affidavit that his accuser made the allegation “without disclosing any information or material to establish the territorial jurisdiction of this Honourable Court to entertain the impugned complaint.”
Ssemakadde added: “In the impugned complaint, the said Robert Rutaro Muhairwe does not provide any forensic report to link the said Twitter account to the Applicant, the basis upon which he makes forensic conclusions, and the local council officials cited do not possess technical expertise to establish that all or any of the alleged offences were committed in their area of jurisdiction.”
Muhairwe’s case is supported by two local council leaders from Paramedic Zone in Nakasero, Kampala, who sent a joint complaint about Ssemakadde’s alleged statements to the Chief Magistrate’s Court at Buganda Road.
As another reason for the case to be thrown out, and in light of the fact that the complaints that Muhairwe brings against him are based on the Computer Misuse Act, Ssemakadde wrote in his affidavit: “I know that the constitutionality of section 25 of the Computer Misuse Act is sub judice pending determination in Constitutional Petition No. 1 of 2019, Uganda Law Society versus Attorney General.”
Frivolous and vexatious
Ssemakadde further argues that the criminal summons and charges “were wrongfully issued without following due process of the law, and are therefore invalid” because they were “issued ex parte, on the basis of a materially defective and constitutionally repugnant complaint on oath made by Advocate Rutaro Robert Muhairwe, the private prosecutor in the instant proceedings.”
He demands that the charges against him are dropped “forthwith”, and compensation and costs awarded to him for “being subjected to a frivolous and vexatious private prosecution”.