Mabirizi petitions EACJ to nullify Judiciary Act

Controversial lawyer Hassan Male Mabirizi has petitioned the East African Court of Justice (EACJ) to nullify the Administration of the Judiciary Act, two months after President Yoweri Museveni assented to it.

Quoting the guidelines issued by the Speaker of Parliament, Rebecca Kadaga, restricting only 100 members per sitting due to the COVID-19 pandemic, Mabirizi contends that it was passed without quorum hence a nullity. Kadaga, however, said the rest of the members could participate in the debate via Zoom.

The 10th Parliament comprises 447 lawmakers and each enactment requires two-thirds of the members to pass it. Mabirizi lodged his reference to the Arusha-Tanzania-based court at the court's sub-registry in Kampala yesterday.

Attorney General William Byaruhanga is listed as the respondent in the matter. Mabirizi argues that section 5(d) and 18-12 of the Act creates a judiciary council to maintain ethics and integrity within the Judiciary, the mandate of the Judicial Service Commission (JSC) under the Constitution.

This, he says, is contrary to Article 147 of the Constitution that empowers the JSC to play an oversight role in the Judiciary. Mabirizi further contends that sections 13-17 of the Act which establishes the JSC contravenes Article 148 of the Constitution.

"Section 17 of that act establishes a Secretary to the Judiciary to be appointed by the President contrary to Constitutional Court decision in the case of Uganda Law Society vs Attorney General where it was held that the Judiciary cannot have its secretary appointed by the president as it undermines the principle of separation of powers," Mabirizi argues.

He claims that section 20 of the Act which allows judicial officers to work in other institutions violates Article 128(1-2), which provide that judicial officers are not subject to directives of any person.

This, Mabirizi argues, creates a window for the President to compromise judges through appointments.

Mabirizi also contests section 21(1) (b) of the Act which provides for the retrospective grant of retirement benefits to retired judicial officers.

"Section 21(2) which grants a retired Chief Justice and Deputy Chief Justice monthly retirement benefits equivalent to the salary payable to a sitting Chief Justice and Deputy Chief Justice is contrary to the principle of good governance and equality before the law," Mabirizi says. 

Defeats common sense 

He purports that section 29 of the Act which grants retirement benefits to surviving spouses and dependent children of the deceased judicial officer for 15 years defeats the principles of good governance, equality before the law and common sense.

Mabirizi also contests section 27(b) of the Act which grants retirement benefits to a resigning judicial officer with the consent of the president or judicial service commission, noting that it undermines the principle of separation of powers and independence of the Judiciary.

When contacted about the matter, Judiciary principal communication officer Solomon Muyita referred NewVision to the acting Chief Justice, Alfonse Owiny-Dollo, saying he was not in a position to comment on the matter.

Efforts to get a comment from Owiny-Dollo, however, were futile as his known cellphone was switched off.

The Attorney General, however, has 45- days to respond to Mabirizi's allegations. Asked why he did not file the case in the local courts, Mabirizi said: "I am slowly losing confidence in our courts."

Mabirizi also contests the political parties and organisations regulations, 2020 and wants the regional court to quash it. He says apart from being approved without a quorum and adequate consultation, it gives leeway to political parties to contravene their respective constitutions.