Log in
Updated today

Makerere law don petitions court over appointment of judges in acting capacity

Dr Kabumba Busingye

Dr Kabumba Busingye

Makerere University law don, Dr Kabumba Busingye and lawyer Andrew Karamagi have petitioned the Constitutional court seeking to declare the appointment of 16 new High court judges in an acting capacity by President Yoweri Museveni as illegal.

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

According to the Judicial Service Commission (JSC) rules, the commission may advise the appointing authority on the nature of appointments to be made such as substantive, acting, contract, temporary, or probation in respect of judges, registrars, and other judicial officers. The rules further state that a probationary appointment shall be for a period of two years and any extension of a probationary appointment shall not exceed one year.

But in their petition submitted before the court, Kabumba and Karamagi contend that the appointments in acting capacity violate several constitutional provisions which refer to supremacy and the independence of the judiciary.

"This kind of conditional appointment infringes on the supremacy of the Constitution, undermines the security of tenure of judges, and violates the independence of the judiciary as the said officers are likely to execute their duties with either fear of retribution or expectation of favour or both," reads Kabumba's affidavit.

The two argue that their case addresses several pertinent constitutional issues which, if not adjudicated, shall have far-reaching effects on the administration of justice and independence of the judiciary.

Through their lawyers of ALTO and Company Advocates, they want the court to declare that the actions by President Museveni in subjecting the appointments of judges of the High court in an acting period of two years is unconstitutional and order be made directing the government to make the appointments permanent as provided for in the Constitution.

Constitutional court registrar Henry Twinomuhwezi has summoned the attorney general who is listed as the only respondent in this case to file the government's response to the petition within seven days or else the court might go ahead and determine the case in their absence.

The appointment of High court judges in acting capacity was the first time ever since the promulgation of the 1995 Constitution. But it triggered an uproar on social media most especially from activists and advocates of courts of judicature.

Lawyer Ivan Bwowe described such an appointment as one similar to appointments in military courts where court members serve for one year subject to renewal of which he indicated that the result has been catastrophic to the independence of the judicial military system.

Bwowe together with other lawyers, Erias Lukwago said that such appointments are seen to serve at the pleasure of the presidency which they say is a clear violation of the constitution.

Comments   

+2 #1 PaulM 2022-06-21 08:04
Very good petition. It's unbelievable that this illegality had been ignored by the Uganda Law Society.
Quote | Report to administrator
+2 #2 WADADA rogers 2022-06-21 08:33
Imagine the entire judicial service commission is comprised of high ranking judicial oficers and the President himself has a whole legal department to himself and has the authority to make further inquiries from the Attorney General's chambers.

Making such a blunder is either deliberate or the purpose of to groom cadres in the judiciary. Surely a three years probation has no place in our legal system. It is not only judges who were affected, even some magistrates were also placed on a two years probation period.

The purpose is to turn them into puppets foe fear of failing the first test. These will not be allowed to grant bail or pass judgment in cases where government has interest.
Quote | Report to administrator
+1 #3 Batamba Peter 2022-06-21 12:32
Quoting WADADA rogers:
Imagine the entire judicial service commission is comprised of high ranking judicial oficers and the President himself has a whole legal department to himself and has the authority to make further inquiries from the Attorney General's chambers.

Making such a blunder is either deliberate or the purpose of to groom cadres in the judiciary. Surely a three years probation has no place in our legal system. It is not only judges who were affected, even some magistrates were also placed on a two years probation period.

The purpose is to turn them into puppets foe fear of failing the first test. These will not be allowed to grant bail or pass judgment in cases where government has interest.


Such blunders are only possible in the intellectually Least Developed Countries which in the actual sense are "vegetable"/ "banana" republics in black Africa...!!!
Quote | Report to administrator
0 #4 Lakwena 2022-06-21 14:51
No big deal and Surprise!

This is a government of the DISHONEST and UNJUST, by the DISHONEST and UNJUST; and for the DISHONEST and UNJUST.

In other words, for Swearing Oath, and Calling the Name of the Lord in Vain: to PROTECT and PRESERVE the Constitution of the Republic, Gen Tibuaburwa is committing TREASON with impunity.

Otherwise, among others like Vote of no Confidence (having no solutions for the current social economic a crises, in a democracy the man would have already been IMPEACHED and thrown out of office (our State House). .
Quote | Report to administrator
0 #5 Moses 2022-06-21 16:15
The issues here not withstanding, and they are very very pertinent issues, how on earth can Douglas Singiza be a judicial officer after participating in the awful torture of Kakwenza?
Quote | Report to administrator
0 #6 JTom 2022-06-21 18:00
From a constitutional perspective, the challenger Dr. Kabumba being a constitutionalist as a legal thinker, would he not consider the function of separation of powers doctrine here?

The executive made an appointment which is meritoriously challenged as being unconstitutional. However, is the constitutional court the proper forum at this point to resort to as a co-branch of govt?

The constitution, which the challengers as lawyers ought to apply appropriately, reserves the power and exclusive authority, applying and following the constitution, to parliament to confirm or disapprove judicial nominees or any other presidential appointee of a level inviting parliament’s act of confirmation.

Here, the petitioners are clearly overstepping the constitution that empowers parliament to reject or approve such executive appointment according to the constitution. In a nutshell, until parliament makes confirmation is when the facts would have ripen to sue. At present, the suit is premature and moot.
Quote | Report to administrator
0 #7 JTom 2022-06-21 18:09
A brief yet important addition from a constitutional standpoint, what gives the petitioners “standing” or locus to sue in the very first place? A perusal of Dr. Kabumba’s affidavit says as much that he’s a constitutional law Don.

The nature of the petitioner’s employment has nothing to do with giving the petitioner a sufficient stake in the outcome of the litigation. There’s no personalized grievance or individualized harm caused to the petitioner by the unconstitutional appointments, such harm or injury is generalized as suffered by the public at large.

The constitution in its proper construction, consistent with separation of powers doctrine, leaves that power to parliament to exercise its proper mandate as here by applying the constitution.

It implies that the suit hasn’t matured or ripen to warrant recourse to court. There’s a remedy outside of the judicial branch being the exercise of its power of confirmation by parliament. Let’s keep within bounds as legal practitioners.
Quote | Report to administrator