Wakilii

Mafabi Richard v Attorney General (Constitutional Petition No 0014 of 2012)

Constitutional Court · [2014] UGCC 107 · 2014 Petition Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition under Articles 137(3)(b) and 137(4) of the Constitution challenging the constitutionality of disciplinary processes against a Grade 1 Magistrate
Decision
Petition allowed; the Judicial Service Commission ordered to discontinue and stay the disciplinary proceedings; the petitioner to be paid full salary since interdiction with interest at court rate; prayer for general damages refused.

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Holding

The Constitutional Court held that the petitioner, a Grade 1 Magistrate summoned by the Inspectorate of Government merely to give evidence, was denied a fair hearing because he was never told he was under investigation nor shown the complaint or adverse evidence; the IGG's wide independent powers under Article 227 cannot override the non-derogable right to a fair hearing under Articles 28(1) and 44(c). It found no breach in denying cross-examination at the preliminary investigative stage, and no error in the interdiction under Regulation 25. However, the JSC conducted only a desk analysis instead of the investigation required by Regulation 12, and the years-long delay in concluding proceedings breached the right to a speedy hearing. Petition allowed.

Facts

The petitioner, appointed a Grade 1 Magistrate in 1995, presided in 2004 over a case in which an accused pleaded guilty to possessing counterfeit kiwi shoe polish. He ordered the 423 cartons of counterfeit goods forfeited and, on the prosecutor's request, burnt at Namanve. The trademark owner later complained to the Judicial Service Commission and the Inspectorate of Government, alleging improper destruction and that empty cans, not the goods, may have been destroyed. The IGG summoned the petitioner to "give evidence" and served him a 14-paragraph questionnaire that did not disclose he was the subject of investigation; he was never shown the complaint or the adverse evidence. The IGG reported a prima facie case of abuse of office and recommended discipline. On that report the JSC and Ag. Chief Registrar interdicted him in September 2005 on half pay, without their own investigation. Disciplinary proceedings stalled for years, the JSC citing inability to locate him, and remained unconcluded when the petitioner filed this petition in 2012 and obtained a stay.

Issues

  1. Whether the IGG's act of making a report recommending disciplinary proceedings against the petitioner on the basis of evidence from witnesses the petitioner was not given an opportunity to hear and cross-examine contravened Articles 28(1), 42 and 44(c) of the Constitution.
  2. Whether the IGG's recommendation that the petitioner be disciplined, when aware that the witnesses relied on were unavailable, contravened Articles 28(1), 42, 44(c) and 173(b) of the Constitution.
  3. Whether the Ag. Chief Registrar's interdiction of the petitioner on the basis of the IGG report, without conducting his own investigations or affording the petitioner a hearing, contravened Articles 28(1), 42, 44(c) and 173(b) of the Constitution.
  4. Whether keeping the petitioner on interdiction since 6 September 2005 without completing investigations contravened Articles 28(1), 42, 44(c) and 173(b) of the Constitution.
  5. Whether the Judicial Service Commission conducting disciplinary proceedings and finding a prima facie case before conducting its own investigations contravened Articles 28(1), 42, 44(b) and 173(b) of the Constitution.
  6. Whether the Judicial Service Commission's failure to conclude the disciplinary proceedings since 2007 contravened Articles 28(1), 42, 44(c) and 173(b) of the Constitution.

Orders

  • The Judicial Service Commission is ordered to discontinue and stay any disciplinary proceedings against the petitioner arising out of the facts in this petition.
  • The petitioner to be paid full salary for the period since interdiction, with interest at court rate until payment in full.
  • The petitioner is awarded the costs of this petition.

Key headnotes

Constitutional Interpretation — Reading the Constitution as an Integrated Whole — Independence of Inspectorate Subordinate to Fair Hearing
The independence conferred on the Inspectorate of Government by Article 227 cannot be read in isolation; the Constitution must be construed as an integrated whole, so the Inspectorate's wide powers cannot be exercised outside the non-derogable right to a fair hearing under Articles 28(1) and 44(c).
Natural Justice — Audi Alteram Partem — Notice that a Person is the Subject of Investigation
A person summoned by an investigating body merely to give evidence, who is not informed that he himself is under investigation and is given neither the complaint nor the adverse evidence against him, is not accorded an adequate opportunity to defend himself and is denied a fair hearing.
Inspectorate of Government — Duty to Act Fairly Where Report Causes Detrimental Action
Even where the Inspectorate cannot itself dismiss an officer but only recommends action to a disciplinary body, it is bound by the rules of natural justice in preparing an adverse report, because section 25(3) of the IGG Act requires a prior hearing and the report can, and here did, result in detrimental action such as interdiction.
Natural Justice — Cross-examination of Witnesses at the Preliminary Investigative Stage
Natural justice does not require that a person under investigation be permitted to cross-examine witnesses at the Inspectorate's preliminary investigative stage, since that stage is merely the first step in a sequence and the actual hearing is reserved for the Judicial Service Commission, the body constitutionally mandated under Article 148 to discipline a magistrate.
Discipline of Judicial Officers — Interdiction Under Regulation 25 — No Prior Investigation or Hearing Required
Under Regulation 25 of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 the Chief Registrar may interdict a judicial officer where there are facts relating to misconduct; he need not conduct his own investigations or hear the officer before interdiction.
Disciplinary Investigations — Desk Analysis Insufficient to Constitute an Investigation
A mere desk assessment of the complaint, the Inspectorate's report and the officer's comments does not amount to the investigation required by Regulation 12 of the Judicial Service Regulations, which requires, among other things, the interviewing of witnesses and the complainant.
Right to a Speedy Hearing — Undue Delay in Concluding Disciplinary Proceedings
Failure to conclude disciplinary proceedings within a reasonable time contravenes the right to a speedy hearing under Article 28(1); unsubstantiated rumours that an officer has left the country cannot justify a delay of several years between interdiction and any meaningful step.

Legislation cited (24)

  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.42
  • Constitution of Uganda art.44(c)
  • Constitution of Uganda art.137(2)(b)
  • Constitution of Uganda art.137(3)(b)
  • Constitution of Uganda art.137(4)
  • Constitution of Uganda art.147(d)
  • Constitution of Uganda art.148
  • Constitution of Uganda art.173(b)
  • Constitution of Uganda art.227
  • Constitution of Uganda art.230(2)
  • Inspectorate of Government Act 2002 s.8(1)
  • Inspectorate of Government Act 2002 s.10
  • Inspectorate of Government Act 2002 s.14(6)
  • Inspectorate of Government Act 2002 s.20(1)
  • Inspectorate of Government Act 2002 s.25(3)
  • Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 reg.10(2)
  • Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 reg.12(1)
  • Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 reg.12(3)
  • Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 reg.19
  • Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 reg.25(1)
  • Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 reg.25(2)
  • Uganda Public Service Standing Orders Order 4
  • Uganda Public Service Standing Orders Order 7

Cases cited (6)

  • Barnwell v Attorney General [1994] 3 LRC
  • Gordon Sentiba and Others v Inspectorate of Government (Civil Appeal No. 6 of 2008)
  • Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 20 of 2006)
  • Nancy Makokha Baraza v Judicial Service Commission and 9 Others [2012] eKLR
  • Rees v Crane
  • Aggrey Bwire v Attorney General and Judicial Service Commission
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