Wakilii

Kiyingi & Another v Attorney General (Constitutional Petition 16 of 2022)

Constitutional Court · [2024] UGCC 21 · 2024 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition brought under Article 137 for interpretation of the Constitution
Decision
Petition dismissed; declarations made that the Leadership Code Tribunal is not a court of judicature and its members are not judicial officers

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Holding

The Constitutional Court held that the Leadership Code Tribunal is not a court of judicature or subordinate court under Article 129(1)(d), but a quasi-judicial body established under Article 235A in Chapter 14 of the Constitution. Its members are accordingly not judicial officers within Article 151 or the Administration of the Judiciary Act, and are not entitled to the status, privileges, tenure, terms and conditions of service of judges. Having qualifications equivalent to a High Court judge does not make a member a judicial officer. The five-year renewable tenure and the taxation of the petitioners' salaries are not unconstitutional or discriminatory. The petition was dismissed with no order as to costs.

Facts

The Judicial Service Commission advertised vacancies at the Leadership Code Tribunal. The first and second petitioners applied for Deputy Chairperson and Member respectively, were shortlisted, interviewed and recommended, and were appointed by instruments dated 15 June 2020 for a five-year renewable term. They accepted in writing on the stated terms, took the judicial oath and assumed office on 24 August 2020. They subsequently formed the view that their terms of service were contrary to the Constitution and sought, administratively, enhanced remuneration matching a High Court judge. The Solicitor General opined on 3 November 2020 that they were not judicial officers within the Administration of the Judiciary Act and that their remuneration was governed by the Leadership Code Act. Dissatisfied, the petitioners filed the petition contending that the Tribunal is a subordinate court and they are judicial officers entitled to the same tenure, status and tax-exempt remuneration as High Court judges. The first petitioner earned a gross salary of Shs 18,550,000 (taxed to Shs 12,228,000) and the second Shs 17,500,000 (taxed to Shs 11,628,000).

Issues

  1. Whether the Leadership Code Tribunal is a subordinate court under Article 129(1)(d) of the Constitution.
  2. Whether the petitioners are judicial officers entitled to the same status, privileges, terms and conditions of service as other judicial officers in the Courts of Judicature.
  3. Whether the terms and conditions of the petitioners were varied to their disadvantage contrary to Article 128 of the Constitution.
  4. Whether the refusal to grant the petitioners the same terms and conditions of service as other judicial officers is unconstitutional and in contravention of Articles 2, 21(1) and (2), 40(1)(b), 128, 129(1)(d) and 144(1) of the Constitution.
  5. Whether Section 19E of the Leadership Code (Amendment) Act 2017 (now Section 27 Cap 33) and the petitioners' instruments of appointment, in restricting their tenure to five years, are inconsistent with the Constitution.
  6. What remedies are available to the parties.

Orders

  • The Leadership Code Tribunal is not a Court of Judicature within the meaning of Article 129(1), but was established as a tribunal under Article 235A of the Constitution.
  • The petitioners are not judicial officers of the Courts of Judicature under Articles 129(1)(d) and 151(a) and cannot enjoy the tenure, terms and conditions of service of judicial officers unless provided for in their letters of appointment.
  • Despite the first petitioner having the qualifications of a High Court judge, he cannot be accorded the same status, privileges, terms and conditions of service as a High Court judge unless his letter of appointment so provides.
  • The taxation of the petitioners' salaries is not discriminatory and not inconsistent with Articles 21(1), 40(1)(b) and 128(7) of the Constitution.
  • The Leadership Code Act, in limiting the petitioners' tenure to five years, is not inconsistent with Articles 2, 21(1) & (2), 40(1)(b), 128(7) and 144(1) of the Constitution.
  • The instruments of appointment issued under Sections 19C and 19E of the Leadership Code Act (now Sections 25 and 27 Cap 33) restricting tenure to five years are not inconsistent with the Constitution.
  • This petition is dismissed.
  • There shall be no order as to costs since the petition was brought in public interest.

Key headnotes

Constitutional Law — Courts of Judicature — Distinction between a subordinate court under Article 129(1)(d) and a tribunal under Article 235A
The Leadership Code Tribunal is not a court of judicature or a subordinate court under Article 129(1)(d) of the Constitution; it is a quasi-judicial body established under Article 235A in Chapter 14, exercising both judicial and administrative powers, and falling administratively under the executive rather than the judiciary.
Constitutional Law — Judicial Officers — Meaning under Article 151(a) and the Administration of the Judiciary Act
Members of a tribunal established outside Chapter 8 of the Constitution are not judicial officers within Article 151(a) or the Administration of the Judiciary Act, even though they exercise judicial power, because both provisions designate only officers falling under Chapter 8 of the Constitution.
Employment & Labour — Remuneration — Qualifications and manner of appointment as a basis for terms of service
Possession of academic qualifications equivalent to those of a High Court judge, and a manner of appointment resembling that of a judge, do not of themselves render a tribunal member a judicial officer or entitle the member to a judge's remuneration; terms and conditions of service are governed by the appointing statute and the member's letter of appointment.
Constitutional Law — Independence of the Judiciary — Non-variation of judicial officers' terms under Article 128(7)
The protection in Article 128(7) against variation of salary, allowances, privileges and retirement benefits to a person's disadvantage applies only to judicial officers within the meaning of Article 151 and not to members of a tribunal who are not judicial officers of the courts of judicature.
Constitutional Law — Tenure — Fixed-term appointment of tribunal members
A statutory provision limiting a tribunal member's tenure to a fixed renewable term of five years, enacted by Parliament under the Constitution, is not inconsistent with the Constitution; security of tenure on age-based permanent terms is a feature of judicial officers under Chapter 8, not of tribunal members.
Constitutional Law — Equality and Non-discrimination — Taxation of tribunal members' salaries
Taxing the salaries of tribunal members who are not judicial officers is neither discriminatory nor unconstitutional; the tax exemption enjoyed by judicial officers derives from their position under Chapter 8 of the Constitution, and the general taxing laws apply to other public officers without exception.
Statutory Interpretation — Constitutional Interpretation — Reading the Constitution as an integrated whole
The Constitution must be read as an integrated whole so that no provision destroys another but each sustains the other; where a body is expressly provided for under one Chapter (Article 235A, Chapter 14), provisions of another Chapter dealing with the judiciary (Article 129, Chapter 8) cannot be applied to it without creating disharmony.

Legislation cited (39)

  • Constitution of Uganda art.137
  • Constitution of Uganda art.129(1)(d)
  • Constitution of Uganda art.126(1)
  • Constitution of Uganda art.128(1)
  • Constitution of Uganda art.128(7)
  • Constitution of Uganda art.133(1)(a)
  • Constitution of Uganda art.141(1)(a)
  • Constitution of Uganda art.142(1)
  • Constitution of Uganda art.144
  • Constitution of Uganda art.145
  • Constitution of Uganda art.148
  • Constitution of Uganda art.151(a)
  • Constitution of Uganda art.235A
  • Constitution of Uganda art.21
  • Constitution of Uganda art.40(1)(b)
  • Constitution of Uganda art.2
  • Constitution of Uganda art.257(p)
  • Leadership Code Act Cap 33 s.23
  • Leadership Code Act Cap 33 s.24
  • Leadership Code Act Cap 33 s.25
  • Leadership Code Act Cap 33 s.26
  • Leadership Code Act Cap 33 s.27
  • Leadership Code Act Cap 33 s.28
  • Leadership Code Act Cap 33 s.35
  • Leadership Code Act Cap 33 s.39
  • Leadership Code Act Cap 33 s.41
  • Leadership Code Act Cap 33 s.44
  • Leadership Code (Amendment) Act 17 of 2017
  • Administration of the Judiciary Act Cap 4 s.2
  • Administration of the Judiciary Act Cap 4 s.13(2)
  • Labour Disputes (Arbitration and Settlement) Act 2006 s.7(1)
  • Labour Disputes (Arbitration and Settlement) Act 2006 s.10(2)
  • Employment Act Cap 226 s.5(7)
  • Tax Procedure Code Act Cap 343 s.26(5)
  • Tax Appeals Tribunal Act 1998 s.3
  • Local Council Courts Act Cap 18 s.2
  • Uganda Peoples Defence Forces Act Cap 330 s.195
  • Uganda Peoples Defence Forces Act Cap 330 s.197
  • Uganda Peoples Defence Forces Act Cap 330 s.198

Cases cited (20)

  • Asaph Ruhinda Ntengye and Linda T. Mugisha v Attorney General (Constitutional Petition No. 33 of 2016)
  • John Ken Lukyamuzi v Attorney General (Constitutional Appeal No. 2 of 2007)
  • Attorney General v Joseph Tumushabe (Constitutional Appeal No. 3 of 2005)
  • Centre for Arbitration and Dispute Resolution (CADER) and Jimmy Muyanja v Attorney General (Constitutional Petition No. 11 of 2019)
  • Republic v Chief Magistrates' Court at Milimani Law Courts; Director of Public Prosecutions and 2 others (Interested Parties); Ex-parte Applicant; Pravin Galot Misc. Civil Application 622 of 2018, [2020] eKLR
  • SGS Kenya Limited v Energy Regulatory Commission & 2 others [2020] eKLR
  • Special Investigating Units and another v Caledon River Properties (Pty) Ltd t/a Magwa Construction and another (GP/17/2020), [2021] ZAST
  • Uganda Law Society v Attorney General (Constitutional Petition No. 52 of 2017)
  • Attorney General v Major General David Tinyefuza (Constitutional Petition No. 1 of 1997)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Uganda Revenue Authority v Rabbo Enterprises (U) Limited and another (Civil Appeal No. 12 of 2004)
  • Ngakanna v National Environment Management Authority (Constitutional Appeal No. 5 of 2011)
  • Paul K. Semogerere and 2 others v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General v Masalu Musene and 3 others (Constitutional Appeal No. 7 of 2005)
  • Dr. Busingye Kabumba and Andrew Karamagi v Attorney General (Constitutional Petition No. 15 of 2022)
  • Rasanen v Rosemont Instruments Ltd. (1994), 17 O.R. (3d) 267 (C.A.)
  • Shanker Raju v Union of India Writ Petition (Civil) 311 of 2010
  • Durgadas Purkyastha v Union of India & ors Writ Petition (Civil) 552 of 2001
  • Hon. Lt. (Rtd.) Kamba Saleh v Attorney General (Constitutional Petition No. 38 of 2012)
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