• Francis Obonyo
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Subjecting funding of the Judiciary to the Executive affects the Independence of the Judiciary, says Justice Madrama

In the case of Krispus Ayena Odongo Vs Attorney General and the Parliament Commission,

Court Of Appeal Constitutional Petition No. 30 Of 2017

Introduction

Arguably, the independence of the Judiciary can be said to be in jeopardy because of the manner in which the budget of this arm of government is handled. The judicial budget has over the years resulted in some sort of control and underfunding, and in other cases the funding routinely reduced. This in one way or another has prevented the Judiciary from not only executing its mandate but also enjoying the independence as enshrined in the constitution unlike the other organs of the government.

This constitutional petition is one of a public interest nature seeking interpretation by the Constitutional court to establish whether the act of the Judiciary obtaining its funding from the Appropriation bill presented by the Executive contravenes the provisions of the constitution or whether there is financial independence of the Judiciary, a canon of separation of powers as provided in the 1995 Constitution of Uganda (as amended)

The petition was filed under Articles 50 (1) and (2) and Article 137 (2) and (3) of the Constitution.

Background of the case

As mentioned above, the gist of the petition is on constitutional interpretation on the financial independence of the Judiciary. The petitioner alleges that the rights of judicial officers are being violated by being paid at a much lower rate in comparison to other government employees in terms of remuneration. He further alleges that the omission by the second respondent from enacting a law for the administration of the Judiciary as is with other organs of government has left the administration of justice to fall under the Public Service which is inconsistent with or in contravention of the constitution particularly article 128 of the Constitution of Uganda.

He goes on to assert that article 128 of the Constitution of the Republic of Uganda provides for the independence of the Judiciary in many ways including its finance. He further asserts that the national objectives and directive principles of state policy of the constitution provide for support by the state in terms of distribution of powers and functions of the other organs of the government through the provision of adequate resources so as to achieve independent funding of the arms of government free from interference and control from the other organs of government. Still, on Article 128 of the constitution of the Republic of Uganda, the petitioner avers that the remuneration, salaries and allowances of judicial officers should be charged directly on the consolidated fund of the state.

He asserts that the executive is in breach of the provisions under article 128 of the constitution because the funding of the Judiciary is dependent on the executive through an appropriation bill presented every financial year by the executive. On that premise, the petitioner prayed to the court for various declarations that included that remunerations of judicial officers and workers does not form part of the estimates of the appropriation bill, that the constitution guarantees independent funding of the Judiciary among other declarations.

Also, a preliminary objection was raised by the second respondent as to whether there was a cause of action against the second respondent, the Parliamentary Commission.

Consideration of the petition

Justice Madrama upheld the preliminary objection stating that the commission is an organ corollary to the Parliament but was not the Parliament itself, and as such, it had no mandate to enact any laws. He relied on Article 79 of the constitution that spells out the functions of the parliament which is to make laws on any matter for the peace, order, development and good governance of Uganda and section 6 of the Administration of Parliament Act which provides for the functions of the Parliamentary Commission which does not include the commission to enact or make laws on any matter. He makes mention that;

“…… the second respondent not only does not have authority to enact laws but is also barred from doing so by article 79(2) of the constitution of Uganda….”

Furthermore, on the contention by the petitioner that the rights of judicial officers are being violated by them being paid at a much lower rate compared to other government employees and that this contravenes with the constitution, Justice Madrama stated that payment of members of the Judiciary was not inconsistent with the constitution since the petitioner did not cite any provision of the constitution that had been violated. He goes on to state that the petitioner did not present evidence that shows the standards that should be applied to grade different government offices so as to conceptualise the right to equal pay for equal work. As such the contention was dismissed.

On the contention as to whether the Judiciary is independent and shall not be subject to the direction or control of any person or authority but is being subjected to budgetary control, Justice Madrama states that it is forbidden for any person or authority to interfere with the courts or judicial officers in the exercise of their judicial functions. He reiterates the provisions of article 128 of the constitution stating that the contents of article 128 which are that courts shall be independent and shall not be subject to the direction or control of any person or authority among other provisions under that same article are ground rules and principles that should be followed in the operationalisation of the independence of the Judiciary.

On the issue of administrative expenses of the Judiciary, justice Madrama states that funds from the consolidated fund that is meant to cover the administrative expenses of the Judiciary as authorised by the constitution does not require seeking the mandate of parliament through an Appropriation Act. He reiterates the provisions of Article 128(5) and (6) which make mention that administrative expenses of the Judiciary are charged directly on the consolidated fund and that the Judiciary is self-accounting and may deal with the Ministry of Finance directly. He also relies on Article 154 of the constitution which provides for what funds are allowed to be withdrawn from the consolidated fund, such funds include those charged by the constitution or an Act of Parliament. To quote him verbatim, he states that;

“…it is, therefore, the constitution which provides that the money for payment of the administrative expenses of the judiciary is charged on the consolidated fund….”

Lastly, Justice Madrama states that subjecting funding of the Judiciary to the Executive arm of the government involves them in determining what priorities the Judiciary should fund and as such an arrangement like that compromises on the independence of the Judiciary in carrying out its judicial functions in the sense that the Judiciary would not prioritise its funding without an input or direction from the Executive arm of the government. For him, the only dealing the judiciary should have with the Executive is at the point of presenting its budget whereby it should only present its budget to the President for laying before Parliament without amendment but with only comments of the President to accompany it or by dealing directly with Ministry of Finance.

Conclusion

In conclusion Justice, Madrama allowed the petition on the ground of mode of payment and funding of the Judiciary and made declarations among others that the practice of funding the Judiciary through an Appropriation Act was inconsistent with articles 128(5), (6) and Article 154(1) of the 1995 constitution of Uganda and that the Judiciary may if it chooses to present its budget in collaboration with the Ministry of Finance to Parliament for approval.