This Petition was lodged by Dr. Busingye Kabumba and Mr. Andrew Karamagi, both Constitutional Law Lecturers at Makerere University Law School (‘the Petitioners’). It was brought under Articles 137(1), (3) and (a) of the Constitution and the Constitutional Court (Petition and References) Rules, SI No. 91 of 2005, challenging the constitutionality of the appointment of sixteen (16) High Court Judges on acting basis and for a two-year term.
Background of the case
The petitioners contended that on 25th May 2022, the Judicial Service Commission (JSC) published a press release that indicated that the President of the Republic of Uganda had appointed sixteen High Court Judges in acting capacity for a term of two years. In their view the said appointment contravenes the notion of security of tenure for judicial officers and undermines the provisions of Articles 2, 128, 138, 142,144 and 147 of the Constitution. The appointment of judges in acting capacity is particularly opined to subject the appointees to the control of the appointing authority contrary to the dictates of Article 128 of the constitution; while the two-year appointment purportedly exceeds the powers granted by the Constitution and is thus in contravention of Articles 2(2), 138, 142 and 144 of the Constitution.
On the Respondent part, they faulted the petition for being devoid of merit, misconceived, premature and an abuse of court process insofar as it supposedly raises no question for constitutional interpretation. It proposed that the appointment of judicial officers as acting judges neither subjects them to the control of the appointing authority nor violates Article 128 of the Constitution; rather, it was well within the constitutional mandate of the appointing authority and JSC, and in compliance with Articles 2, 138, 142 and 144 of the Constitution
From the several affidavits of both parties, the following issues raised for determination; Whether the petition raises any questions for constitutional interpretation; Whether the act of appointing High court Judges in Acting capacity for two (2) years contravenes Articles 2, 128, 13, 142 and 144 of the 1995 Constitution of the Republic of Uganda and is therefore unconstitutional; and whether the Petitioners are entitled to the reliefs sought’
Consideration of the petition
The petition was before a coram of Justices Egonda-Ntende, Musoke, Madrama, Mugenyi & Gashirabake, JJCC. Justice Monica K. Mugenyi wrote the lead judgement.
Justice Mugenyi first resolved the issue, whether the petition raised any question for constitutional interpretation and it was held that, on the authority of Attorney General v Maj Gen David Tinyefunza and Ismail Serugo v Kampala City Council & Another therefore, I am satisfied that the question as to the constitutionality of the appointment of acting judges is properly before this court.
On the second issue, the Learned Justice stated that; “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(1), rather than being limited to presidential appointment on the advice of the JSC as envisaged under Article 142(2). The Respondent’s affidavit evidence all 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.”
And in the result held that, the appointment of High court Judges in acting capacity for two years contravenes Articles 128, 138, 142 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(1) thereof.
Justice Madrama dissented on this issue!
On the final issue on the relief sought, the Learned Justice stated and held that; considering that the appointment of the sixteen judges that are affected by this decision did wholly comply with the tripartite appointments mechanism outlined in Article 142(1) of the constitution, my findings herein would not apply retrospectively to nullify those appointments.
Additionally, the Learned Justice further held that, given that the judges gave since taken judicial oath and assumed office in accordance with the doctrine of prospective annulment as was applied by this Court in Jim Muhwezi & Others v Attorney General & Another, Constitutional Petition No. 10 2009 and Bob Kasango v Attorney General & Another, Constitutional Petition No. 16 of 2016 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 appointments as a matter of urgency to bring them in conformity with the Constitution, and forestalls appointments in acting capacity for freshly recruited judges.
The Constitutional Court of Uganda upheld this Petition in a 4-1 decision and in the lead judgement, Justice Mugenyi allowed the Petition on the following terms; that the appointment of sixteen (16) judges of the High court subject to an acting term of two (2) years is inconsistent with Articles 2, 128, 138′ 142 and144 0fthe constitution and is, to that extent, unconstitutional; that the Judicial Service Commission is directed to take the necessary steps to regularise the appointment of the affected sixteen judges into substantive appointments within six(6)months from the date of this judgment; and 3 each party shall bear its own costs