Wakilii

Asaph Ruhinda Ntegye & Anor v Attorney General (Constitutional Petition No. 33 of 2016)

Constitutional Court · [2017] UGCC 3 · 2017 Petition Granted ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition for interpretation under Article 137(3) of the Constitution
Decision
Petition granted; section 10(3) of the Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006 declared unconstitutional and void to the extent it limits the Petitioners' tenure to five years, and the Petitioners declared Judges of the Courts of Judicature.

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Cited — treatment unverified cited in 15 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court held that the Industrial Court is a subordinate court and one of the Courts of Judicature under Article 129(1)(d), and that its Chief Judge and Judge are judicial officers within Article 151(a). Because the tenure of judicial officers under Articles 128 and 144 is age-based and protected against variation to their disadvantage, section 10(3) of the Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006, which limited the Petitioners' tenure to five years, was inconsistent with Articles 2, 129 and 144 and was declared null and void. The Petitioners may serve until age sixty-five like High Court Judges.

Facts

Around 2014 the first and second Petitioners were interviewed by the Judicial Service Commission and appointed by the President as Chief Judge and Judge of the Industrial Court respectively. Their instruments of appointment, issued under section 10(3) of the Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006, limited their service to five years. Correspondence between the first Petitioner, the Ministry of Public Service, the Principal Judge and the Solicitor General failed to resolve uncertainty over the Petitioners' status in the judicial hierarchy and whether the five-year term retired them from judicial service or required redeployment. The Industrial Court is established by Parliament under section 7 of the Act, and its decisions are enforceable as High Court civil decisions. The Petitioners hold qualifications equivalent to High Court Judges and were appointed on the recommendation of the Judicial Service Commission. They petitioned the Constitutional Court for declarations that the five-year limitation was unconstitutional.

Issues

  1. Whether section 10(3) of the Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006, in so far as it limits the tenure of office of the Petitioners to five years, is inconsistent with and in contravention of the Constitution.
  2. Whether the Petitioners are Judges of the Courts of Judicature.
  3. What remedies are available to the Petitioners.

Orders

  • Section 10(3) of the Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006, in so far as it limits the Petitioners' tenure of office to five years, is declared inconsistent with Article 2 of the Constitution and therefore void.
  • Section 10(3) of the Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006 is declared inconsistent with Article 129(1)(b) to the extent that it limits the Petitioners' term of office to five years.
  • Section 10(3) of the Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006 is declared inconsistent with Articles 144(1), (2) and (3) to the extent that it limits the Petitioners' term of office to five years.
  • No declaration is made in respect of Articles 21(1) and (2) or 40(1)(b), no case having been made out under those provisions.
  • It is declared that the Petitioners are Judges of the Courts of Judicature in accordance with Article 129(1) and may enjoy the tenure of office of Judicial Officers at the level of High Court Judges as prescribed in Article 144.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Interpretation — Presumption of constitutionality
Every piece of legislation is presumed to be constitutional, and the burden of rebutting that presumption rests on the party challenging the constitutionality of the law.
Constitutional Law — Courts of Judicature — Subordinate courts under Article 129(1)(d)
The Industrial Court, established by Parliament under the Labour Disputes (Arbitration and Settlement) Act, is a subordinate court and one of the Courts of Judicature within Article 129(1)(d) of the Constitution.
Constitutional Law — Subordinate courts — Concurrent jurisdiction with the High Court
Parliament may in its discretion place a subordinate court at the same appellate level as the High Court with concurrent jurisdiction, and doing so does not render that subordinate court a superior court.
Constitutional Law — Judicial officers — Definition under Article 151(a)
A judge or any person who presides over a court or tribunal howsoever described is a judicial officer within the meaning of Article 151(a) of the Constitution.
Constitutional Law — Independence of the judiciary — Security of tenure under Articles 128 and 144
The tenure of a judicial officer under the Constitution is age-based and the conditions of service may not be varied to the officer's disadvantage; a statute that imposes a fixed-term tenure on a judicial officer is inconsistent with Articles 128 and 144 and is void.
Constitutional Law — Supremacy of the Constitution — Article 2(2)
Where any law is inconsistent with the Constitution, the Constitution prevails and that law is void to the extent of the inconsistency.

Legislation cited (19)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.21(1) & (2)
  • Constitution of Uganda 1995 art.40(1)(b)
  • Constitution of Uganda 1995 art.119
  • Constitution of Uganda 1995 art.128
  • Constitution of Uganda 1995 art.128(7)
  • Constitution of Uganda 1995 art.129(1)
  • Constitution of Uganda 1995 art.129(1)(d)
  • Constitution of Uganda 1995 art.133(1)(a)
  • Constitution of Uganda 1995 art.137(3)
  • Constitution of Uganda 1995 art.141
  • Constitution of Uganda 1995 art.144(1), (2) and (3)
  • Constitution of Uganda 1995 art.151(a)
  • Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006 s.7(1)
  • Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006 s.10(2)
  • Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006 s.10(3)
  • Labour Disputes (Arbitration and Settlement) Act No. 8 of 2006 s.16(1)
  • Tax Appeals Tribunal Act 1998 s.3
  • Non-Performing Assets Recovery Trust Act (Cap 95) s.15

Cases cited (6)

  • Attorney General v Masalu Musene and 3 Others (Constitutional Appeal No. 07 of 2005)
  • Attorney General v Uganda Law Society (Constitutional Appeal No. 1 of 2006)
  • Davis Wesley Tusingwire v Attorney General (Constitutional Petition No. 02 of 2013)
  • Akankwasa Damian v Uganda (Constitutional Petition No. 05 of 2011)
  • Attorney General v Major General Tinyefuza (Constitutional Appeal No. 1 of 1997)
  • Attorney General v Joseph Tumushabe (Constitutional Appeal No. 3 of 2005)
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