Kabumba and Another v Attorney General (Constitutional Petition No. 15 of 2022)

Constitutional Court · [2022] UGCC 8 · 2022 Petition Granted ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Constitutional petition under Article 137(1), (3) and (4) challenging the constitutionality of judicial appointments

Decision

Petition allowed by majority; declaration of unconstitutionality granted with prospective effect; JSC directed to regularise the sixteen appointments within six months

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court considered whether appointing sixteen High Court judges in acting capacity for a fixed two-year term was constitutional. By majority it held that the provision for acting judges in Articles 142(2) and 147(1)(a) is available only to serving or retired judges, not fresh appointees; appointing newly recruited judges on probationary two-year terms undermines security of tenure and judicial independence and contravenes Articles 2, 128, 138, 142 and 144. The petition was allowed and the Judicial Service Commission directed to regularise the sixteen appointments into substantive ones within six months, the annulment operating prospectively only. Madrama JCC dissented, finding the petition disclosed insufficient facts to determine under which limb of Article 142 the appointments were made.

Facts

On or about 16 May 2022 the President, acting on the advice of the Judicial Service Commission, appointed sixteen High Court judges in acting capacity for a two-year term, announced by a JSC press release of 25 May 2022. The sixteen had responded to an advertisement for High Court judges, were vetted and approved by Parliament under Article 142(1), yet were designated as acting judges required to serve a two-year probationary period before substantive appointment. Two constitutional law lecturers at Makerere University petitioned the Constitutional Court, contending that the acting designation and fixed term subjected the judges to the control of the appointing authority, undermined security of tenure and judicial independence, and exceeded the powers granted by the Constitution. The Attorney General contended the appointments were authorised by Articles 142(2) and 147(1)(a) and that the petition raised no question for constitutional interpretation. It was common ground that the appointments were approved by Parliament, the mechanism applicable to substantive appointments under Article 142(1).

Issues

Whether the petition raises any questions for constitutional interpretation.
Whether the appointment of High Court judges in acting capacity for a two-year term contravenes Articles 2, 128, 138, 142 and 144 of the 1995 Constitution and is therefore unconstitutional.
Whether the petitioners are entitled to the reliefs sought.

Orders

The appointment of sixteen (16) judges of the High Court subject to an acting term of two (2) years is inconsistent with Articles 2, 128, 138, 142 and 144 of the Constitution and is, to that extent, unconstitutional.
The Judicial Service Commission is directed to take the necessary steps to regularise the appointment of the affected sixteen judges into substantive appointments within six (6) months from the date of this judgment.
Each party shall bear its own costs.

Key headnotes

Constitutional Law — Jurisdiction of the Constitutional Court — Article 137(1) and (3)

Article 137(1) defines the Constitutional Court's subject-matter jurisdiction while Article 137(3) defines a petitioner's locus standi; a constitutional breach alone does not engage the Court's interpretive jurisdiction unless the pleadings disclose a question whose resolution wholly depends on the interpretation of a specific provision of the Constitution.

Constitutional Law — Appointment of Judicial Officers — Acting Judges — Article 142(2) and 147(1)(a)

The power under Articles 142(2) and 147(1)(a) to appoint a person to act as a judge of the courts of record is available only to serving or retired judges; it does not authorise the first-time appointment of fresh recruits into the judiciary as acting judges.

Constitutional Law — Judicial Independence — Security of Tenure — Articles 128 and 144

Security of tenure is a traditional safeguard of judicial independence; subjecting freshly recruited judges to fixed probationary terms not provided for by law varies the tenure prescribed in Article 144 and is inconsistent with the judicial independence affirmed in Article 128.

Statutory Interpretation — Constitution — Harmonious and Literal Construction

The Constitution must be read together as an integral whole with all provisions bearing on an issue considered together; where the words are clear and unambiguous they are given their plain and ordinary meaning, with liberal or purposive interpretation reserved for imprecise or ambiguous language.

Constitutional Law — Remedies — Prospective Annulment

Where impugned appointments otherwise complied with the tripartite appointment mechanism under Article 142(1) and the appointees have taken judicial oath and assumed office, a declaration of unconstitutionality operates prospectively and does not retrospectively nullify the appointments or invalidate judicial acts already done.

Legislation cited (18)

Constitution of Uganda 1995 art.2
Constitution of Uganda 1995 art.128
Constitution of Uganda 1995 art.137(1)
Constitution of Uganda 1995 art.137(3)
Constitution of Uganda 1995 art.138(1)
Constitution of Uganda 1995 art.142
Constitution of Uganda 1995 art.143(1)(e)
Constitution of Uganda 1995 art.144
Constitution of Uganda 1995 art.147(1)(a)
Constitution of Uganda 1995 art.147(3)
Administration of Justice Act 2020 s.18
Administration of Justice Act 2020 s.20(7)
Judicial Service Commission Regulations 2009 reg.19(1)
Judicial Service Commission Act s.16
Labour Disputes (Arbitration and Settlement) Act 2006 s.10
Civil Procedure Act Cap.71 s.27(2)
Civil Procedure Rules Order 7 rules 1(e) and 11
Constitutional Court (Petition and References) Rules SI No. 91 of 2005

Cases cited (18)

Ismail Serugo v Kampala City Council and Another (Constitutional Appeal No. 2 of 1998)
Mbabali Jude v Edward Ssekandi (Constitutional Petition No. 28 of 2012)
Centre for Health, Human Rights and Development and 3 Others v Attorney General and Another (Constitutional Petition No. 22 of 2015)
Attorney General of the United Republic of Tanzania v Anthony Calist Komu (EACJ Appeal No. 2 of 2015)
David Tinyefuza v Attorney General (supra)
George William Atenyo v The Chief Registrar
Attorney General v Wilson Musalu Musene and Others (Constitutional Appeal No. 7 of 2005)
Justice Asaph Ruhinda Ntegye and Another v Attorney General (Constitutional Petition No. 33 of 2016)
Gerald Kafureeka Karuhanga v Attorney General (Constitutional Petition No. 39 of 2013)
Uganda Law Society v Attorney General (Constitutional Petition No. 52 of 2017)
Raphael Baranzira & Another v The Attorney General of Burundi (2015 - 2017) 109 124
Incal v Turkey (41/1997/825/1031)
Attorney General v Susan Kigula and Others [2009] UGSC 6
Jim Muhwezi & ... Constitutional Petition No. 16 of 2016
Minister of Home Affairs v Fisher [1979] 2 All E.R. 21
Dow v Attorney General (of Botswana) [1992] LRC (Const.) 623
In Re Constitution of Vanuatu [1993] 1 LRC 141
Sullivan v Ali Mohammed Osman [1959] E.A 239

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.