Appointing judges in acting capacity illegal – Constitutional court

President Museveni with some of the appointed High court judges at State House

Appointing judges in an acting capacity contravenes the 1995 constitution, the Constitutional court has ruled.

In a 4:1 majority ruling, the court ruled in a favour of a petition filed by Makerere University law don, Dr Busingye Kabumba and human rights activist Andrew Karamagi. The justices have thus ordered that the Judicial Service Commission (JSC) in the next six months regularizes the appointment of the 16 High court judges who were appointed on that basis.

In May this year, acting on the advice of JSC, President Yoweri Museveni appointed 16 judges of the High court in an acting capacity for two years. Kabumba and Karamagi rushed to court to challenge the appointment, saying it contravened several articles of the constitution and should be overturned. 

The 16 judges who were appointed in acting capacity include; Mary Ikat, Douglas Singiza Karekona, Susan Kanyange, Samuel Emokor, Flavia Matovu Nassuna, Patricia Kahingi Asiimwe, Bernard Namanya, Thomas Ocaya Ojele Rubanga, Grace Harriet Magala, Collins Acellam, Allan Paul Nshimye Mbabazi, Patricia Mutesi, Christine Kaahwa, George Okello, Celia Nagawa, and Faridah Shamilah Bukirwa.   

In their petition filed in June, Kabumba and Karamagi told the court that the appointment contravened the notion of security of tenure for judicial officers and therefore undermined the provisions of articles 2, 128, 138, 142, 144, and 147 of the constitution. 

The petition also stated that the appointments in acting capacity violate the independence of the judiciary given that the affected appointees are likely to execute their duties with the fear of retribution, expecting favours, or both.

In his affidavit in rejoinder, Kabumba also stated that the appointment of judges in acting capacity was not envisaged under articles 142 and 147 of the constitution, adding that such judges serve at the mercy of the JSC and appointing authority with absolutely no guarantee of reappointment or confirmation their supervision by the chief justice notwithstanding and thus lacked the security of tenure enjoyed by judicial officers that are appointed on a permanent basis.

In response, the attorney general who was the respondent in the matter said the petition lacked merit, was misconceived, premature, and an abuse of the court process as it raised no question for constitutional interpretation. He added that the appointment of judicial officers as acting judges neither subjected them to the control of the appointing authority nor violates article 128 of the constitution rather it is well within the constitutional mandate of the president and the JSC.

In an affidavit deposed by JSC registrar Julius Mwebembezi on behalf of the attorney general who was represented by Jeffrey Atwine the acting commissioner of civil litigation and Maureen Ijanga a senior state attorney, the judges are also full members of the judiciary for the duration of their term and are subject to the supervision of the chief justice assisted by the principal judge and not subject to the control of the president. 

In her lead judgment, Mugenyi held that indeed such appointments are irregular and are not provided for in the laws of Uganda. She said even when the constitution allows for the appointment of judges in an acting capacity, such judges don’t go through parliamentary approval as the 16 did. 

“In the instant case, I do take judicial notice of the fact that all sixteen judges whose appointment is in issue presently, were subjected to parliamentary approval in accordance with article 142 rather than being limited to a presidential appointment on the advice of the JSC as envisaged under article 142(2). The respondent’s affidavit evidence bears this out and additionally demonstrates that the supposedly acting judges are full members of the judiciary whose terms and conditions of service are identical to those of substantive holders of the office of judge of the High court save for the tenure thereof. It thus seems to me that they were appointed as substantive judges of the High court but designated as acting judges. As newly appointed judges, their designation as acting judges was unconstitutional,” Mugenyi’s ruling reads in part.

It adds that even Uganda’s international law obligations do additionally forestall the appointment of judges to a term of office that is not secured by law or explicitly stated in a written law.  

“In the result, I find that the appointment of High court judges in acting capacity for two years contravenes articles 128, 138, and 144 of the constitution and is therefore unconstitutional. To that extent, it does undermine the supremacy of the constitution and thus similarly flouts article 2 thereof,” Mugenyi ruled. 

“In the same vein given that the judges have since taken judicial oath and assumed office, in accordance with the doctrine of prospective annulment, this judgment does not render void the judicial services they have rendered to date. It simply illuminates the need by the JSC to regularize their appointment as a matter of urgency to bring them in conformity with the constitution and forestall appointments in the acting capacity of freshly recruited judges,” Mugenyi added.

Three judges; Frederick Egonda-Ntende, Elizabeth Musoke, and Christopher Gasharibake agreed with Mugenyi while Christopher Madrama dissented. In his brief concurring opinion, Egonda-Ntende said the JSC has no power to rewrite the constitution by creating categories of judges that are not provided for in any other law.  

“It appears to me that the Judicial Service Commission is setting out terms and conditions of their employment that are not available in the constitution or any act of parliament. It is seeking to do so by agreement. Does the JSC have such constitutional authority, I would think not…In reality, the effect of such acting appointments is to create probationary appointments for two years. Such appointments are neither envisioned by article 142(1) or 142 of the constitution… With regard to the terms and conditions of judges, the role of the JSC is only advisory,” Egonda-Ntende’s ruling reads in part.

In his 15-page dissent, Madrama who has since been appointed as justice of the Supreme court said although generally, he agreed that there are some issues where the constitution was not complied with as envisaged, nonetheless, the petitioners failed to provide the court with enough facts to rely upon to decide the matter. 

“The petitioners assert that the act of appointing judges in acting capacity for a period of two years contravenes certain provisions of the constitution and therefore the act of omission needed to be proved by material facts for the court to even establish under which case scenario the judges were appointed in terms of the different case scenarios under article 142 of the constitution. In the absence of such concrete facts such as the appointment letters, the advertisement of the Judicial Service Commission, and the terms of reference of the officers concerned, the petition is prematurely filed without adequate facts and I would dismiss it,” Madrama’s ruling reads in part.

It adds that because of the fact that there is no provision for approval of parliament with regard to the appointment of judges or justices of the appellate courts in an acting capacity, the petition would have been tremendously helpful if the 16 judges had been spoken to. 

“I would find that it is acceptable to conclude the petition on the basis of scanty facts which would affect the appointment of 16 judges none of whom have been heard. I have no facts from any of them as to the terms on which they were engaged and whether they intended to be appointed only on temporary terms or on permanent terms. What did any of the judges so appointed accept when he or she took up the appointment and what did they envisage or intend to accept? Did any of them intend to go back to their previous employment after the two-year period elapses? Failure to hear the judges violates their right to hearing as persons directly affected by the petition,” Madrama held.


Source: The Observer

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