For Immediate Release: 12th December, 2022
THE CONSTITUTIONAL COURT OF UGANDA IN A 4-1 DECISION UPHELD THE CONSTITUTIONAL PETTION OF NO. 15 OF 2022 CHALLENGING THE APPOINTMENT OF 16 HIGH COURT JUDGES IN ACTING CAPACITY
Centre for Public Interest Law (CEPIL) welcomes the decision of the Constitutional Court of Uganda, which agreed that the appointment of 16 High Court Judges in acting capacity was inconsistent with Articles 2, 128, 138, 142,144 and 147 of the Constitution.
Early this year, the 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. Dr. Busingye Kabumba and Mr. Andrew Karamagi, both Constitutional Law Lecturers at Makerere University Law School opined that the said appointment contravened 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. They further stated that 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. As a result, they petitioned the Constitutional Court 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.
The Attorney General opposed 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
The Constitutional Court of Uganda held in a 4-1 decision that the appointment was inconsistent with the Articles 2, 128, 138, 142,144 and 147 of the Constitution. While emphasizing the appointment and need to acknowledge the process of the 16 judges, the learned Judge 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.” (Emphasis added)
In addition, the learned Judge held and stated that, the Judicial Service Commission is required to regularize the appointment of the 16 acting Judges within 6 months. Lastly the Court stated that the decision does noy affect the judicial action already taken by the affected Judges.
On that basis, the Constitutional Court of Uganda upheld the Petition in a 4-1 decision and the lead judgement was drawn by Justice Mugenyi with Justice Madrama dissenting.
This decision continues strengthen the independence of the Judiciary in the administration of justice as it limits the influence from the other branches of government or from private or partisan interests. We at CEPIL welcome this decision because it further advances our vision; A Uganda where the Rule of Law is practiced and nurtured in public interest.
Acting Executive Director
Centre for Public Interest Law
For more information, please contact:
Gad Arthur Kisaalu, Programme Officer Litigation & Advocacy – Centre for Public Interest Law on firstname.lastname@example.org or Tel: +256 782 120 666 (mobile)