As judiciary that is independent, impartial, honest, and competent is essential for maintaining the rule of law, fostering public trust, and ensuring the fair administration of justice.
Judicial appointment commissions are now a global best practice for safeguarding judicial independence, reducing patronage and political Influence Article 146 of the Constitution establishes the Judicial Service Commission (JSC) as a pluralistic body, deliberately composed of judges, experienced lawyers, public service representatives, and lay members of the public, each nominated or appointed through distinct processes to ensure a balance of perspectives and to guard against undue influence by any single branch or interest group.
The rationale for this broad representation is well-documented, including in the reports of the Constitution Commission, which emphasized the need for the legal profession, the public, and the public service to have meaningful participation in judicial appointments—both to ensure legitimacy and to secure a wide range of expertise and viewpoints.
The recently gazetted Judicial Service Commission Regulations, 2025 provide that the JSC may delegate any of its functions to a committee or subcommittee, to perform specific duties.
The Regulations establish, among others, the ‘search and recruitment to a committee’ comprised of the JSC chairperson, JSC deputy chairperson, a justice of the Supreme Court representing the judiciary, the Attorney General and one other member whose appointment procedure is not specified.
Four out of the five members of the committee, including the Attorney General—ex officio, are presidential appointees. This effectively excludes the representatives of Uganda Law Society, the lay members of the public, and the representative of the Public Service Commission from the most crucial stage in the judicial appointments process.
The functions of the search and recruitment committee include considering applications and submissions for filling vacant judicial positions, initiating search and recruitment programmes upon receipt of vacancy declarations, recommending the appointment of judicial officers serving in an acting capacity to substantive positions, and recommending the confirmation and promotion of judicial officers, including judicial officers on probation.
CONSTITUTIONAL AND POLICY CONCERNS
The delegation of the JSC functions— particularly the critical function of searching and recruiting judicial officers—to a committee that is dominated by persons nominated or appointed by the executive raises significant constitutional and policy concerns.
First, it undermines the pluralistic and representative judicial appointment process envisioned by the Constitution. The intention behind including non-judicial and non- executive members on the JSC was to ensure transparency and provide checks and balances within the appointments process.
By excluding key stakeholders from the committee, the process risks becoming insular and susceptible to executive or judicial dominance, contrary to the spirit of the Constitution.
Second, the exclusion of the Uganda Law Society’s representatives deprives the committee of the independent voice of the practising legal profession, who are most familiar with the practical qualities and ethical standards of candidates to be interviewed for judicial offices.
Similarly, omitting non-lawyers robs the JSC of the direct public input, which was intended to ensure that judicial appointments reflect the values and needs of society at large, not just those of the legal community or government.
Third, the heavy concentration of presidential appointees on the committee gives rise to perceptions (or realities) of executive capture or undue influence, undermining the independence of the judiciary and public confidence in the appointments process.
The Constitution seeks to avoid this by dispersing appointment powers and providing for a mix of backgrounds and nominating authorities. While the full JSC may claim that it retains the final authority to recommend who should be appointed or promoted, in practice, the committee wields decisive gatekeeping power by determining which candidates advance to the final stage.
By controlling the shortlist and interview process, the committee effectively shapes the pool from which the JSC must ultimately select. This means that the JSC’s authority is significantly constrained by the preliminary choices made by a committee whose composition is not constitutionally representative.
Thus, the delegation process undermines the intended checks and balances, allowing a small group to control access to judicial office and marginalizing the voices of the legal profession and the public, contrary to the spirit and letter of the Constitution. It is reasonable for the JSC to delegate certain non-core functions to committees.
However, such delegations must be exercised in a manner that is consistent both with the letter and the spirit of the Constitution. A delegation, such as this, which effectively nullifies the participation of key constitutionally-mandated stakeholders in the appointments process is arguably inconsistent with the constitutional aspirations.
It risks violating the principle of inclusivity and the checks and balances that the Constitution sought to embed in the judicial appointment regime. It undermines the legitimacy, transparency, and accountability of the judicial appointments process. It should be challenged.
The writer is an advocate and member of the Uganda Law Society.
