Lockdown: Lawyers React to ‘Non Essential’ Classification

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A tweet by Owek. Apollo.N.Makubuya, a partner at leading commercial law firm MMAKS Advocates in Kampala, was widely shared on social media platforms in the wake of President Museveni’s orders on Monday putting the country under lockdown as a measure to combat the spread of COVID 19.

Under the lockdown, ‘people to people’ movement by whatever means – public or private is prohibited and only limited it to movement in search or conduct of ‘essential services.’

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These services could go on operating and those regarded as ‘non essential’ simply have to run from home or shut down for the 14-day lockdown period.

Legal Services belong to the non essential category as they were missing on the President’s list.

Counsel Makubuya’s tweet garnered immediate attention (as expected) but more importantly, raised the singular question – whether ‘lawyering’ or legal services are essential in a crisis, on multiple minds.

Noticeably, he started off his examples with the law profession.

Essence

It is an open secret by now that lawyers and judicial officers (everyone concerned with the profession really) rightly so consider themselves in a certain regard and of crucial importance in society.

Otherwise, who else would uphold the law? Who else would defend the rights of the people? Who else would hold the provocative finger when the Executive threatens to overstep its constitutional mandate?

” In any country or state governed by law, lawyers are an essential part of that society. They are a necessity; an important part of the criminal justice ecosystem. To disregard their advice and service is to permit the abuse of fundamental rights and freedoms at the hands of the authorities; it is to remove the guardrails of human dignity”  Says Nicholas Opiyo, a crusading human rights lawyer at Chapter Four Uganda, a non-profit organisation based in Kampala.

It is intriguing, therefore, to imagine the reaction of the learned society to their declassification as essential in a crisis.

Picture this scenario.


ALSO READ: LAWYERS ASK TO BE ALLOWED TO DRIVE THEIR CARS AND FOR JUDICIAL PROCESS TO CONTINUE NORMALLY


Most were probably following government directives to stay home. They were probably sitting on the most comfortable couch in their living rooms, flanked by their family. A cup of tea must have been close by, a warm-up to dinner once the President was done with his address.

The President was on the television, just like he had been about four times previously.

Like an eleven year old at roll-call, their ears must have perked up. Their lawyerly concentration and attention to detail must have been at an all-time high. And then, one by one, the President listed the essential services.

One by one, anticipation grew till that inevitable end. The law profession was not among the Government’s essential services during the 14-day lockdown, an anti-climactic ending to say the least.

Elsewhere

In several G7 countries, lockdowns have been enforced but legal services have been listed as essential and allowed to remain in operation.

In the UK, for example, the Ministry of Justice announced about a week ago, that services “essential to the operation of the justice system” could stay in operation during the COVID-19 crisis.

This line of thought is reechoed by the Uganda Law Society President in a letter to the Prime Minister of Uganda whose office is leading the coordination of the Anti Coronavirus taskforce.

While acknowledging the Chief Justice’s guidelines on Judicial Process, Mr Simon Peter Kinobe, the Society President says in the letter, that it is imperative that effort is made to ensure judicial process  continue normally.

” We are cognizant of the directives given by the Chief Justice that the Court should proceed to handle urgent matters together with applications of bail” he writes,

“Given that arrest and crime are a constant during this crisis, to avoid unnecessary congestion of our prison system and abuse of authority, it is imperative that the normal judicial process continues”

In neighbouring Kenya, Mr Kinobe’s counterpart, Nelson Havi has been incensed over similar orders declassifying legal services as essential in Kenya’s own lockdown.

“Kenyans never appreciate the fundamental role played by the Judiciary and the legal fraternity in ensuring the State’s performance of its obligations in the social contract. It is not surprising therefore, that these services weren’t classified as essential as we combat COVID-19″  The Law Society of Kenya President, wrote on his Twitter.

We are not under state of emergency

The Lawyers feel that a ban on legal services during the lockdown is excessive, unnecessary and borders on a blatant violation of the Constitution.

” What the President is doing, without declaring a state of emergency, is contrary to the Constitution which he took an oath to defend” Says Mr Harimwomugasho Francis, a Commercial Lawyer at Newmark Advocates in Kampala and Former General Secretary to the Uganda Law Society.

According to him, the President ought to have declared a state of emergency in accordance with the Constitution so as to suspend “some” rights except those considered non derogable by the Constitution such as the right to a fair hearing, freedom from torture, among others.

Otherwise, “legal services are essential and lawyers need to be protected and allowed to represent their clients”

Mr Harimwomugasho’s views are shared by Mr Nicholas Opiyo, who says;

” We might be in a lockdown, but we are certainly not in a state of emergency. The constitution and its commands have not been suspended. It is the reason the authorities continue to implement the law and not the words of an individual. The police is arresting and charging people in court. The prisons is taking in remands. All these processes require that those accused be accorded the protection of law including legal representation”

Non derogable

The right to legal representation is hinged on the non derogable right to a fair hearing which according to the Constitution can not be taken away no matter the situation.

And the Uganda Law Society fears that these non derogable rights are at risk of being eroded during the crisis if Lawyers are not granted ‘special’ status to operate.

” We are concerned that some of the measures being taken by the government make some of the inalienable rights guaranteed under the 1995 Constitution unattainable” Mr Simon Peter Kinobe, the Uganda Law Society President, says, in his letter, to the Prime Minister.

For as long as the Law of the land (The Constitution) is still in force and government authorities still act upon its commands, then Lawyers must be allowed to operate.

” Legal representation is a must. People can’t be arrested and detained without legal representation” Mr Harimwomugasho Francis says.

‘ We will show up: Covid-19 or No Covid-19 ‘

However, Lawyer Isaac Ssemakadde – a self styled “Legal Rebel,” of Legal Brains Trust, an organisation which has been at the centre of several landmark public interest and human rights cases dismisses these claims of essential status in a crisis by Ugandan Lawyers.

To him, the Legal profession in the Ugandan context is just non essential and legal issues arising out of the crisis will only be handled by “legal rebels” like him.

” These people [lawyers and Judicial Officers] do not work for the Ugandan” He says, in an interview with the Legal Reports.

” We’ll Show Up: COVID -19 or No COVID-19″

According to the Maverick Lawyer, the legal profession is not actually emasculated by the President and his Government but has willingly renegaded on the cause of human rights and democracy.

“We have abused the legal profession and the judicial vocation for far too long by paying lip service to the protection and promotion of democracy, human rights and the rule of law.” He says, adding;

“The COVID-19 crisis, like Walk to Work, 2001-2016 General Elections, 2016 Social Media shutdowns and many cycles of human rights suppression before, gives us time to think about who we are and what we do.”

The Lawyer is disappointed in the general response to the Coronavirus Crisis by the Justice, Order and Law Sector (JLOS) which is concerned with justice, law and order issues and includes the Judiciary, the Uganda Police, and the Uganda Law Society.

“To put this in better perspective, please understand that JLOS, the umbrella group of 17 institutions concerned with justice, law and order, including Judiciary, Police and Uganda Law Society never met to synchronize a COVID-19 response that is consistent with human rights obligations of the State in a public health or public safety emergency of this kind”  He says.

The reason for this state of affairs is “simple”, according to Mr Ssemakadde, and it is “because the donors that buy them the expensive lifestyles they enjoy at the citizen’s cost—didn’t ask for it,” He says.

“Do not expect those human rights compradors to be innovative without the persuasion of [the donor]” He adds.

On Tuesday evening, in another address to the Country on the COVID-19, President Museveni said the Judiciary should be added on the list of essential services during the crisis and that Court Registrars could work in case ‘someone wants to launch a case.’

It is not clear at the time of writing this article, whether or not legal services form part of the essential services by virtue of their connection to the Judiciary.

President Museveni sternly warned against court sessions and tasked the Chief Justice to streamline issues surrounding access to courts during the lockdown.


 

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