By Hillary Nsambu
KAMPALA - The Constitutional Court has re-instated Buganda Road Court Acting Chief Magistrate Richard Mafabi who had been removed by the Judicial Service Commission (JSC) on allegations of incompetence and lack of integrity.
The court also stopped the JSC from continuing with disciplinary proceedings against Mafabi that arise out of the facts that are contained in his petition.
It also unanimously ruled that he should be paid full salary since his interdiction in 2005 with interest at court rate of 8% until payment in full. He should also be paid costs of his petition.
However, the court refused to award Mafabi general damages, saying that he had failed to prove anything that would warrant the court to award him damages.
Acting Chief Justice Steven Kavuma chaired the coram.
The other members were Justices Remmy Kasule, Eldald Mwangusya, Solome Balungi Bbosa and Lillian Tibatemwa-Ekirikubinza.
The court agreed with Peter Mukidi Walubiri that Mafabi’s rights and freedoms had been infringed upon by the Judicial Service Commission in interdicting him and continuing with disciplinary proceedings against him upon cases that were full of blemishes.
The court also disagreed with senior state attorney George Kalemera who had opposed the petition, arguing that the Constitutional Court had no powers to grant the prayers by the petitioner, since a prima facie case had been established against him and disciplinary proceedings had been commenced.
Kalemera had also argued that the petitioner would be able to defend himself before the Judicial Service Commission and the reinstatement and payment of full salary of petitioner would follow the outcome of the JSC’s findings if found innocent.
“We disagree with the way the state attorney had interpreted the powers of this court. Having found that the petitioner’s rights and freedoms have been violated by the Judicial Service Commission, we order that the JSC discontinues and permanently stay any disciplinary proceedings against the petitioner arising out of the petition,” the unanimously court ruled.
In 2004, Mafabi ordered the destruction by burning of 423 cartons of counterfeit Kiwi Shoe Polish at the court premises after the owner, Hajati Kaweesa, had pleaded guilty to owning fake goods.
The court had heard, however, that the then-prosecutor requested to have the goods burnt at Namanve forestry area arguing that it would be environmentally unhealthy if the exercise was carried out at the court premises, to which the petitioner agreed.
However, the original complainants about the counterfeit goods – Sara Lee Household and Body Care Kenya Limited – who claimed ownership of the trademark, again complained to the JSC, saying that what was destroyed at Namanve which the magistrate also witnessed were empty beef cans with the contraband left to circulate on the market.
Upon being summoned by the IGG, Mafabi strongly denied the allegations, prompting him to petition the Constitutional Court.
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