Uganda Law Society's position on the recent Constitutional Court's ruling

Mar 02, 2017

In the ruling, Justice Egonda-Ntende, JCC, stated that fidelity to the law, an essential strand underpinning the rule of law would compel the Court of Appeal to respect the provisions of Article 137 (2), however inconvenient.

By Francis Gimara

On February 23, 2017, three Justices of the Constitutional Court (Kakuru, Egonda- Ntende and Musoke JJCC) after reviewing several decisions delivered a land mark decision whose major import was that any decision rendered by a single Judge or a panel of three Justices in a constitutional matter does not conform to the jurisdictional requirement of Article 137 (2) of the Constitution. The article provides that,

"When sitting as a Constitutional Court, the Court of Appeal shall consist of a bench of five members of that court"

For the record, we would like to point out that all the three Justices ordered that the application be placed before a bench of five Justices in compliance with article 137 (2) of the Constitution. This should be taken as the main ruling of the court.

In the ruling, Justice Egonda-Ntende, JCC, stated that fidelity to the law, an essential strand underpinning the rule of law would compel the Court of Appeal to respect the provisions of Article 137 (2), however inconvenient.

Our view is that by making this recommendation, the court was very alive to the fact that decisions made without jurisdiction are a nullity whether declared so or not. They are void ab initio from the moment of pronouncement. 

Controversy, however has been created by further consequential orders and directions issued by Justice Kakuru Kenneth in his ruling on page 13. In addition to an order referring the matter to a coram of five Justices of the court, he made the following consequential orders;

  All interim orders issued by a single Justice of the Constitutional Court which are still in force are null and void and of no effect.


Any interim or substantive orders of injunction issued by a coram of three Justices of the Constitutional Court which are still in force are null and void and of no effect.


The Registrar of this court is directed to place all pending constitutional applications before a full coram of the Constitutional Court for determination. This he said should include, all those by either a single justice or a coram of three but whose Rulings have not been delivered.

Our considered view is that these consequential orders have no life unless revived by a bench of five Justices under Article 137 (2) of the Constitution.

In conclusion, we note that the ruling presents an opportunity to reflect on the reform of the Constitutional Court. It is also important to note that in making this order, the coram of three was alive to the fact that interim orders issued especially by single Judges, though well intentioned had been grossly abused by both courts and litigants.

The Uganda Law Society has in the recent past expressed its dissatisfaction with some of the decisions issued by some Justices of the Constitutional Court in disregard of the law and best practices.

In this regard, we propose the following specific recommendations for consideration by all the stakeholders;


 We propose as an interim measure, that out of the current number of Justices available in the Court of Appeal, a standing panel be created immediately to deal with the backlog of 309 petitions as per 30th January 2017. We believe that the quick disposal of these petitions on merit would ensure the consequential disposal of 241 backlog applications.


We also propose that the question of creating a separate Constitutional Court be revisited. Time has come for a serious reconsideration of the institutional design of the Constitutional Court and, in particular, the need for the establishment of a separate, dedicated court for the determination of constitutional petitions, if the letter and spirit of Article 137 (7) is to be truly operationalized.


 The appointing authority should prioritise the appointment of new Justices to the Court of Appeal to replace those on new assignments.

 
 The Chief Justice and the Rules Committee should examine the rules of procedure for the various courts with the view of updating them. The Uganda Law Society will be making proposals on how to improve the rules to deal with some of the administrative challenges in the Constitutional Court particularly as regards the improper and unacceptable case allocation procedure adopted by the Constitutional Court.

We would like to commend the coram of the three Justices for rendering this decision. The decision has generated an intense debate in the legal fraternity on the likely implications of the decision, but also presented an opportunity to discuss possible reforms to enable the court function more effectively. 

The writer is the president of the Uganda Law Society

 

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