Wakilii

Bob Kasango v Attorney General and Anor (Constitutional Petition No. 16 of 2016)

Constitutional Court · [2021] UGCC 2 · 2021 Petition Allowed in Part ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition seeking interpretation of the Constitution under Article 137 and declaratory orders
Decision
Petition succeeded in part: appointment of the DPP declared null and void, but his acts as DPP held valid; costs to the petitioner

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Cited — treatment unverified cited in 5 (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 Constitutional Court held that the appointment of Hon. Justice Mike Chibita as Director of Public Prosecutions while he remained a substantive Judge of the High Court, without first resigning his judicial office, contravened the doctrine of separation of powers and the independence of the judiciary under Articles 120, 128 and 129, and was null and void under Article 223(4). Following its earlier decision in Jim Muhwezi v Attorney General, the Court nonetheless held, applying the doctrine of prospective annulment, that the acts performed by Justice Chibita as DPP — including the investigation, arrest and prosecution of the petitioner — remained valid and did not contravene the Constitution. The petition succeeded in part; costs were awarded to the petitioner.

Facts

Hon. Justice Mike Chibita was appointed a Judge of the High Court and continued to hold that office. In October 2013 he was appointed Director of Public Prosecutions (DPP), but did not resign from the judicial bench, and the judiciary continued to regard him as a sitting judge on special assignment. As DPP, Justice Chibita prosecuted the petitioner, Bob Kasango, in several proceedings, including an indictment in the High Court (Anti-Corruption Division) in April 2016. The petitioner challenged the constitutionality of the dual appointment, contending that simultaneously holding judicial and executive office breached the separation of powers and the independence of the judiciary, and that the resulting prosecutions were void. The respondents conceded the petition raised constitutional questions but argued the appointment was lawful and, if not, that the DPP's decisions should nonetheless remain valid to avoid absurdity.

Issues

  1. Whether the petition raises questions that require interpretation of the Constitution under Article 137.
  2. Whether the appointment of a sitting High Court judge to head the Directorate of Public Prosecutions is unconstitutional and contrary to the doctrine of separation of powers under Articles 128(1), (2) and (3) and 129 of the Constitution.
  3. Whether the decisions, investigations and prosecutions made by Justice Mike Chibita while holding the office of Director of Public Prosecutions are valid notwithstanding the unconstitutionality of his appointment.

Orders

  • The petition succeeds in part: the appointment of Hon. Justice Mike Chibita as Director of Public Prosecution while he was a substantive Judge of the High Court contravened the doctrine of separation of powers under Articles 128(1), (2) and (3) and 129, and was null and void.
  • The appointment of Hon. Justice Mike Chibita as Director of Public Prosecution while a sitting Judge of the High Court contravened Articles 120 and 128 of the Constitution.
  • The investigations, arrest and prosecution of the petitioner by the Director of Public Prosecution while Hon. Justice Mike Chibita held that office did not contravene any Article of the Constitution.
  • Henceforth, the appointment and actions of a Judge to any other executive or constitutional office prior to his or her resignation render his or her actions invalid.
  • Costs of the petition awarded to the petitioner.
  • It is declared that this Judgment is in rem and not in persona.

Key headnotes

Constitutional Law — Separation of Powers — Incompatibility of Judicial and Executive Office
A sitting Judge of the High Court cannot lawfully hold the executive office of Director of Public Prosecutions while remaining on the judicial bench; the dual appointment causes a fusion of the Judiciary and Executive that violates the doctrine of separation of powers and the independence of the judiciary.
Constitutional Law — Appointment to Office — Requirement to Resign Prior Judicial Office
A judicial officer appointed to an executive or constitutional office must first resign the judicial office; an appointment made without such resignation is null and void and contravenes Article 223(4) of the Constitution.
Administrative Law — Validity of Acts of Office Holder — Doctrine of Prospective Annulment
Where the appointment of an office holder is unconstitutional, the acts performed within the constitutional mandate of that office are not automatically void ab initio; applying the doctrine of prospective annulment, such prior acts remain valid and the unconstitutionality operates prospectively only.
Constitutional Law — Stare Decisis — Binding Effect of Prior Constitutional Court Decision
The Constitutional Court is bound by its own previous decisions on a materially identical question unless there is a compelling reason or change of circumstances to justify departure; the principle on incompatibility of judicial and executive office settled in the Jim Muhwezi petition applies mutatis mutandis to the office of the Director of Public Prosecutions.

Legislation cited (14)

  • Constitution of Uganda 1995 art.120
  • Constitution of Uganda 1995 art.120(1)
  • Constitution of Uganda 1995 art.120(2)
  • Constitution of Uganda 1995 art.120(3)(a) & (b)
  • Constitution of Uganda 1995 art.128(1), (2) & (3)
  • Constitution of Uganda 1995 art.129
  • Constitution of Uganda 1995 art.137
  • Constitution of Uganda 1995 art.142(1)
  • Constitution of Uganda 1995 art.143(e)
  • Constitution of Uganda 1995 art.223
  • Constitution of Uganda 1995 art.223(4)
  • Constitution of Uganda 1995 art.225
  • Constitution of Uganda 1995 art.230
  • Constitution of Uganda 1995 art.252(1), (2) & (3)

Cases cited (5)

  • Jim Muhwezi and 3 Others v Attorney General and Another (Constitutional Petition No. 10 of 2008)
  • Callist Andrew Mwatella and 2 Others v East African Community (Reference No. 1 of 2005)
  • Defrenne v Sabena [1981] 1 All ER 122
  • Hon. Sam Kutesa and 2 Others v Attorney General and Another (Constitutional Petition No. 46 of 2011)
  • Hon. Sam Kutesa and 2 Others v Attorney General and Another (Constitutional Reference No. 54 of 2011)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.