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Attorney General v Gladys Nakibuule Kisekka (Constitutional Appeal 2 of 2016)

Supreme Court · [2018] UGSC 103 · 2018 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from a decision of the Constitutional Court on a petition for constitutional interpretation under Article 137(3)(b).
Decision
Appeal allowed; Constitutional Court declarations set aside and petition dismissed; Judicial Service Commission free to continue disciplinary proceedings against the respondent.

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Holding

The Supreme Court (6:1) allowed the Attorney General's appeal, holding that disciplinary proceedings before the Judicial Service Commission are not an 'action or suit' within Article 128(4) of the Constitution. Judicial immunity protects judicial officers only from civil liability, not from the JSC's constitutional disciplinary mandate under Articles 147 and 148. Reading the Constitution as an integrated whole, immunity is not absolute and cannot shield a judicial officer from accountability; abuse of judicial power is not protected exercise of judicial authority. The JSC's preferring charges did not contravene the Constitution. The Constitutional Court's declarations were set aside and the petition dismissed, leaving the JSC free to proceed with its disciplinary inquiry. Kisaakye JSC dissented.

Facts

The respondent, a Deputy Registrar in the Commercial Division of the High Court, issued a warrant of attachment and sale in execution of a default judgment in Asiimwe Diana Jackline v Dr Aggrey Kiyingi. After a law firm protested that some attached plots belonged to its client and not the judgment debtor, the respondent recalled the warrant by letter to avoid objector proceedings. The judgment creditor complained to the Judicial Service Commission, alleging fraudulent frustration of execution. The JSC notified the respondent, found a prima facie case, and charged her with abuse of judicial authority and contravention of the Code of Judicial Conduct under the Judicial Service Commission Regulations 2005. Before plea, the respondent petitioned the Constitutional Court, which declared that preferring charges and lifting her immunity for a judicial act were unconstitutional. The Attorney General appealed to the Supreme Court.

Issues

  1. Whether the Judicial Service Commission's act of preferring disciplinary charges against a judicial officer in respect of a judicial act (the recall of a warrant of attachment) was inconsistent with Articles 2, 20, 28, 42 and 44 of the Constitution.
  2. Whether the Judicial Service Commission's act of lifting the judicial immunity accorded to the respondent and holding her personally liable for a judicial act contravened Articles 2, 20, 28, 42, 44, 128(4) and 173 of the Constitution.
  3. Whether judicial immunity under Article 128(4) of the Constitution is absolute and whether disciplinary proceedings before the Judicial Service Commission constitute an 'action or suit' from which a judicial officer is immune.

Orders

  • Appeal allowed.
  • The declarations and orders of the Constitutional Court set aside.
  • An order substituted dismissing the respondent's Constitutional Petition No. 55 of 2013.
  • The Judicial Service Commission is free to proceed with its disciplinary proceedings against the respondent.
  • Each party to bear its own costs.

Key headnotes

Constitutional Law — Judicial Immunity — Scope of Article 128(4) — Immunity Confined to Civil Actions and Suits
The immunity conferred on a person exercising judicial power under Article 128(4) of the Constitution is immunity from civil actions and suits arising from judicial acts or omissions; it does not extend to disciplinary proceedings instituted by the Judicial Service Commission.
Constitutional Law — Judicial Immunity — Not Absolute — Balance with Judicial Accountability
Judicial immunity is not absolute; it co-exists with the principle of judicial accountability, and abuse of judicial power cannot qualify as an exercise of judicial authority deserving the protection of immunity.
Administrative Law — Judicial Service Commission — Disciplinary Mandate under Articles 147 and 148 — Not an Action or Suit
Disciplinary proceedings before the Judicial Service Commission, exercised under its constitutional mandate in Articles 147 and 148, are not an 'action or suit' within Article 128(4), and a judicial officer cannot invoke judicial immunity to prevent the Commission from carrying out its disciplinary functions.
Statutory Interpretation — Constitutional Construction — Rule of Harmony and Completeness
The Constitution must be read as an integrated whole, with no provision destroying another but each sustaining the other; Article 128 on judicial independence and immunity must be construed in harmony with Articles 147 and 148 on the disciplinary mandate of the Judicial Service Commission.
Administrative Law — Judicial Discipline — Distinction Between Judicial Error and Misconduct
A judicial officer's error of law is correctable only on appeal and does not ordinarily constitute misconduct warranting disciplinary action; the Judicial Service Commission may investigate whether a decision resulted from improper exercise of judicial power, but not the correctness or merits of the decision itself.

Legislation cited (25)

  • Constitution of Uganda 1995 art.2
  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.42
  • Constitution of Uganda 1995 art.44
  • Constitution of Uganda 1995 art.126(1)
  • Constitution of Uganda 1995 art.128(1)
  • Constitution of Uganda 1995 art.128(2)
  • Constitution of Uganda 1995 art.128(4)
  • Constitution of Uganda 1995 art.132(3)
  • Constitution of Uganda 1995 art.137(3)(b)
  • Constitution of Uganda 1995 art.144(2)
  • Constitution of Uganda 1995 art.146
  • Constitution of Uganda 1995 art.147
  • Constitution of Uganda 1995 art.147(1)(d)
  • Constitution of Uganda 1995 art.147(2)
  • Constitution of Uganda 1995 art.148
  • Constitution of Uganda 1995 art.149
  • Constitution of Uganda 1995 art.173
  • Judicature Act s.46(1)
  • Judicial Service Act (Cap 14) s.5
  • Judicial Service Commission Regulations 2005 reg.23
  • Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 (SI No. 88 of 2005) reg.10
  • Civil Procedure Rules Order 50 rule 4
  • Civil Procedure Act (Cap 71) s.98

Cases cited (22)

  • Sirros v Moore [1974] 3 All ER 776
  • Tinyefuza v Attorney General (Constitutional Appeal No. 1 of 1997)
  • David Tinyefuza v Attorney General (Constitutional Petition No. 1 of 1996)
  • Attorney General v David Tinyefuza (Constitutional Appeal No. 2 of 1998)
  • P.K. Ssemwogerere & Anor v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Rev. Christopher Mtikila [2010] EA 13
  • Valente v The Queen [1985] 2 SCR 673
  • R v Beauregard (1987) LRC (Const) 180
  • Pulliam v Allen 466 US 522 (1984)
  • Aggrey Bwire v Attorney General & Judicial Service Commission (Civil Appeal No. 8 of 2010)
  • Attorney General v Salvatori Abuki (Constitutional Appeal No. 1 of 1998)
  • Ssemwogerere & Others v Attorney General [2004] 2 EA 276
  • Oberholzer vs. Commission on Judicial Performance, No. 5064923 May 13, 1999
  • Attorney General v Susan Kigula & 417 Others (Constitutional Appeal No. 3 of 2006)
  • South Dakota v North Carolina 192 US 268
  • R.R. Parekh v High Court of Gujarat & Anor (Civil Appeal Nos. 6116-6117 of 2016)
  • Re Hon. Lisa O. Gorcyca, MSC Petition No. 152831 of 2017
  • In re Curda 49 P.3d 255
  • In the Matter of Laster 404 Mich 449 (1979)
  • Australian Apple & Pear Marketing Board v Tonking (1942) 66 CLR 77
  • Floyd v Barker (1607) 77 Eng Rep 1305
  • The Case of the Marshalsea (1612) 77 Eng Rep 1027
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.