By Ivan Mwine
A battle of wits looms on Friday, March 4, at Buganda Road court, at 2:00Pm, after a one Rutaro Robert Muhairwe filed an application to prosecute award-winning public interest lawyer Isaac Ssemakadde.
Rutaro, an advocate with Elgon Advocates located on Buganda Road, is trying to prosecute the trending fashion-forward lawyer for alleged tweets insulting Justice Musa Sekaana after he jailed serial litigant Male Mabirizi and fined him sh300m for contempt of court.
Ssemakadde has, however, dismissed the criminal summons issued on 28 February by Her Worship Marion Mangeni of Buganda Road court as “materially defective and constitutionally repugnant.”
In a replying notice of motion and affidavit filed today, the brilliant constitutional lawyer argues that the court had no jurisdiction to issue the criminal summons in respect of acts alleged to have been committed via an online platform in the virtual space.
He further states that the acts which are alleged in Rutaro’s complaint are already the subject of a highly publicized police investigation instigated on 28 January by Judge Musa Ssekaana.
The proceedings started on 28 February by a private prosecutor have therefore been termed as “arbitrary, fundamentally unlawful and demonstrably unjustified.”
Ssemakadde, who is represented by a heavyweight panel of three law firms Walyemera & Co, Thomas & Michael, and Gem, contends that the private prosecution will expose him to the risk of malicious prosecution, double jeopardy, political persecution and/or judicial tyranny.
The celebrity lawyer, who has in the past successfully represented social media icons like academic and activist Stella Nyanzi and Robert Shyaka alias TVO on computer misuse charges, has also ripped apart similar charges brought against him by the private prosecutor Robert Rutaro.
He states that the charges of offensive communication, defamation and contempt of court are “incurably defective” and “patently unconstitutional”, and should be dismissed immediately.
In the alleged tweet, Rutaro says an account he believes belonged to Ssemakadde insulted Justice Sekaana as either having “a small brain or small penis,” and neither would be cured by the sh300m fine imposed on Male Mabirizi.
Ssemakadde, who is currently trending online as the most outspoken opponent of a proposed bill by Kampala Central MP Hon Mohammed Nsereko to regulate social media, argues that Rutaro does not provide any forensic report to link the said Twitter account to him, and wonders on what basis the private prosecutor makes forensic conclusions.
He also argues that Section 25 of the Computer Misuse Act (under which he was charged) is sub-judice pending determination in Constitutional Petition No 1 of 2019, Uganda Law Society versus Attorney General.
Ssemakadde states that he believes the private prosecutor Robert Rutaro is in cahoots with Judge Musa Ssekaana for the wrongful purpose of oppressing him.
“It is plain from the papers widely circulated via social media by M/s Elgon Advocates, the law firm of Rutaro, 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,” he avers on oath.
The respected human rights attorney further contends that the complaint on oath by Robert Rutaro was made to a court without jurisdiction, and it discloses no prima facie commission of an offence, is frivolous and vexatious, and devoid of merit.
He prays that Rutaro’s complaint and charges be dismissed with costs.