JUDICIARY | JUDGES | APPOINTMENT

KAMPALA - The Constitutional Court ruled Wednesday that the appointment of High Court judges in acting capacity is unconstitutional.

The ruling follows a petition lodged by Dr. Busingye Kabumba and Andrew Karamagi, both Makerere University lecturers, challenging the constitutionality of the appointment of 16 High Court Judges in acting capacity for a two-year term.

The judges were appointed by President Yoweri Museveni on May 16, 2022, on the advice of the Judicial Service Commission (JSC).

They are Mary Ikit, Douglas Singiza Karekona, Susan Kanyange, Samuel Emokor, Flavia Matovu Nassuna, Patricia Kahingi Asiimwe, Bernard Namanya, Thomas Ocaya Ojele Rubanga, Grace Harriet Magala, Collins Acellam, and Allan Paul Nshimye Mbabazi.

Others include Patricia Mutesi, Christine Kaahwa, George Okello, Celia Nagawa, and Faridah Shamilah Bukirwa

However, the judges of the Constitutional Court led by Monica Mugenyi ruled that the appointment of 16 judges of the High court subject to an acting term of two years is inconsistent with Articles 2, 128, 138 142 and 144 of the Constitution.

Justices Fredrick Egonda-Ntende, Elizabeth Musoke and Christopher Gashirabake agreed with Mugenyi while Christopher Madrama dissented.

The judges, therefore, directed the JSC to take the necessary steps to regularise the appointment of the affected sixteen judges into substantive appointments within six months.

In a majority ruling, the Judges stated that the provision for acting judges stipulated in the Constitution is only available to serving or retired judges.

“Article 147(1) alludes to the appointment of a serving judge to temporarily serve in the place of a substantive judge given the provision in Article 142(2)(a) for such service to ensue notwithstanding that an appointee has attained the retirement age, it follows that a retired judge would similarly be eligible to serve in that capacity under that constitutional provision,” Mugenyi explained.

She said the construction of Articles 142(2) and 147(1)(a) neither negates the JSC's advisory duty to the President on appointments in acting capacity nor does it obviate the Commission's function under Regulation 19(1) of the Judicial Service Commission Regulations; provided in either event that such appointments in respect of the offices designated under Article 147(3) are restricted to persons that are serving or retired judges.

“The more purposive interpretation of those constitutional provisions would be that the option of appointment as acting judges under Article 142(2) would be exclusive to serving or retired judges that would have already been subjected to parliamentary approval,” she said.

According to a judge, the impugned appointments are akin to probationary appointments that are tagged to satisfactory performance within the designated two-year period before a substantive appointment can be made.

“I find no provision whatsoever in the Constitution for the appointment of judges on such probationary terms. That would presuppose, therefore, that the power to confirm appointments referred to in Article 147(1)(a) would pertain to the offices of Chief Registrar, registrar and, I might add, other lower cadre judicial officers as respectively delineated in Articles 147(3)(b) and 148 of the Constitution, but not to judges,” she said.

They said the appointment of 16 judges 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).

“It thus seems to me that they were appointed as substantive judges of the High Court but designated as acting judges,” Mugenyi said.

At the hearing, the petitioners were represented by lvan Bwowe, while Jeffrey Atwine, the Acting Commissioner Civil Litigation at the Attorney General's Chambers and Maureen ljang a Senior State Attorney appeared for the Attorney General.