By Hillary Nsambu
The Court of Appeal has quashed a report in which the Judicial Service Commission had recommended the investigation and removal of Justice Anup Singh Choudry from the High Court Bench as a judge.
The court ruled on Wednesday that the JSC had not given Choudry a chance to defend himself against accusations by the Uganda Law Society and: therefore his rights had been violated. The ULS accused Choudry of incompetency and asked the JSC to recommend for his removal.
“In our considered view that after the stage of finding a prima fasciae case, the JSC ceases to have authority to proceed with the matter by way of trial, if the person concerned is a judge. At that stage it must consider whether or not to make a recommendation to the President to constitute a tribunal to consider removal of a judge.
Before it makes any determination, however, the JSC is obliged to investigate the complaint by itself or by anyone else authorized by it.
Otherwise it would have no basis on which to submit or not its recommendations,” the court said in the ruling read by Justice Solomy Balungi Bbosa.
“It is our decision, therefore, that the JSC erred when it considered the complaint against the appellant without observing his right to appear and present his case at the meeting of the Commission. This omission vitiated the proceedings against the appellant. The JSC also erred when it failed to communicate the decision it reached to the appellant, contrary to the rules of natural justice,” the court ruled.
Justice Remmy Kasule headed the coram. The other members were Justices Richard Buteera and Solomy Balungi Bbosa, who read the judgment.
The court agreed with Jimmy Muyanja, representing Choudry that the appellant stood to suffer substantial loss and irreparable damages, which could not be atoned for damages if an injuction stopping the JSC from implementing or pursuing the advice to the appointing authority to appoint a tribunal to consider his removal from office as a judge before he had been accorded a chance to defend himself.
Choudry’s appeal followed a judgment in which High Court Judge Vincent Zehurikize refused his application for a judicial review after the JSC had recommended his removal from office ad a sitting judge.
Muyanja had also submitted that the decision of the JSC to advise the President to set up a tribunal to inquire into the conduct of his client (appellant) was never communicated to him.
The court ruled that although the Uganda Law Society, like any other person, had the liberty to file a complaint with the JSC against the judge, the JSC should under the law of fair hearing have accorded him a hearing to hear his side of the story.
The court also ruled that before the JSC undertakes the exercise of advising the President to remove a judge, it had to make a preliminary determination on whether to make the recommendation or not with proceedings properly recorded and documented.
However, the Principal State Attorney Henry Oluka had argued that the JSC Act did not apply to judicial officers, such as Choudry and: that there was a lot missing in the law as to how the Commission should proceed in respect of such officer.
Court dismisses report on Justice Choudry probe