Gladys Nakibuule Kisekka v Attorney General of Uganda (Constitutional Petition 55 of 2013)
Observed later treatment
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Holding
The Constitutional Court considered whether the Judicial Service Commission could discipline a Deputy Registrar for recalling a warrant of attachment. Held: the recall was a judicial act protected by judicial immunity under Article 128(4), which extends to any act or omission in the exercise of judicial power and draws no distinction between administrative and other judicial acts. Preferring disciplinary charges for that act, and lifting her immunity to hold her personally liable, contravened Articles 2, 20, 28, 42, 44, 128(4) and 173. The remaining grounds — time-bar, the Committee's composition with non-lawyers, an alleged factual error, vagueness of the charges, and the constitutionality of interdiction regulations — failed. The petition partly succeeded; grounds 5 and 6 were upheld and the rest dismissed.
Outcome
Petition partly succeeded; grounds 5 and 6 upheld and the remaining grounds dismissed; no damages awarded; costs to the petitioner.
Facts
The petitioner, a Deputy Registrar of the High Court, Commercial Division, issued a warrant of attachment in HCCS No. 266 of 2008 (Asiimwe Diana Jackline v Dr Aggrey Kiyingi). On 27 August 2009, MMAKS Advocates wrote protesting that two attached plots at Buziga belonged to their client, Mohammed Ssekatawa, who held duplicate titles. The same day the petitioner recalled the warrant in respect of those plots and notified all the parties, while allowing execution against the remaining properties to proceed. The judgment creditor protested the recall and, on 31 May 2013, lodged a complaint with the Judicial Service Commission. The JSC charged the petitioner with abusing judicial authority and acting contrary to the Code of Judicial Conduct, alleging she irregularly recalled the warrant on a third party's letter without a formal application. She objected before the Disciplinary Committee that the charges were time-barred, the complainant non-existent, and the proceedings unconstitutional; the Committee dismissed the objection and ordered her to plead. She then petitioned the Constitutional Court challenging the proceedings and the Judicial Service Commission Regulations 2005.
Issues
- Whether maintaining disciplinary proceedings based on a time-barred complaint infringes the petitioner's right to a fair hearing under Articles 2, 20, 21, 28, 42, 47 and 147 of the Constitution.
- Whether the composition of the JSC Disciplinary Committee with non-lawyers denies the petitioner access to justice and contravenes Articles 20, 21, 24, 44, 126 and 257(p) of the Constitution.
- Whether a factual error in the charge sheet as to the petitioner's official designation contravenes Articles 2, 20, 28, 42, 44 and 147 of the Constitution.
- Whether preferring charges of abusing judicial authority and acting contrary to the Code of Judicial Conduct under Regulation 23 contravenes Articles 2, 20, 28, 42 and 44 of the Constitution.
- Whether preferring charges against the petitioner based on the recall of a warrant of attachment and sale is inconsistent with Articles 2, 20, 28, 42 and 44 of the Constitution.
- Whether instituting disciplinary proceedings holding the petitioner personally liable for her judicial acts/omissions contravenes Articles 2, 20, 28, 42, 44, 128(4) and 173 of the Constitution.
- Whether Regulations 25 and 28(3) of the Judicial Service Commission Regulations 2005, empowering summary interdiction and post-conviction/acquittal disciplinary proceedings, contravene Articles 2, 20, 28, 40, 44 and 173 of the Constitution.
- Whether the petitioner is entitled to the orders and declarations sought.
Orders
- Grounds 5 and 6 of the petition upheld; all other grounds dismissed.
- Declared that the JSC's conduct of preferring charges against the petitioner in respect of the recall of a warrant, a judicial act, is inconsistent with and contravenes Articles 2, 20, 28, 42 and 44 of the Constitution.
- Declared that the JSC's conduct of lifting the judicial immunity accorded to the petitioner and holding her personally liable for her judicial act of recalling the warrant is inconsistent with and contravenes Articles 2, 20, 28, 42, 44, 128(4) and 173 of the Constitution.
- No damages were proved and none are awarded.
- The petitioner, having been largely successful in the main issues, is awarded the costs of the petition.
Rules and key headnotes
Legislation cited (22)
- Constitution of Uganda Article 137
- Constitution of Uganda Article 28
- Constitution of Uganda Article 28(12)
- Constitution of Uganda Article 42
- Constitution of Uganda Article 44
- Constitution of Uganda Article 126
- Constitution of Uganda Article 128(4)
- Constitution of Uganda Article 146
- Constitution of Uganda Article 147
- Constitution of Uganda Article 173
- Judicial Service Commission Regulations 2005 (SI 87) reg.23
- Judicial Service Commission Regulations 2005 (SI 87) reg.25
- Judicial Service Commission Regulations 2005 (SI 87) reg.27
- Judicial Service Commission Regulations 2005 (SI 87) reg.28(3)
- Judicial Service Commission Regulations 2005 (SI 87) reg.31
- Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 (SI 88) reg.6
- Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 (SI 88) reg.17
- Civil Procedure Act s.2(b)
- Civil Procedure Act s.98
- Civil Procedure Rules Order 52 rule 4
- Judicial Service Act (Cap 14) s.2
- Constitutional Court (Petition and Reference) Rules (SI 91 of 2005)
Cases cited (5)
- Vincent L'okucha Emoru v Attorney General (Constitutional Petition No. 5 of 1998)
- His Worship Aggrey Bwire v Attorney General and Another (Civil Appeal No. 09 of 2009)
- R. v. Beauregard Supreme Court of Canada, (1987) IRC (Const) 180 at 188
- Foundation for Human Rights Initiative v Attorney General (Constitutional Petition No. 20 of 2006)
- Mohammad B Kasasa v Jasphar Buyonga Sirasi Bwogi (Civil Appeal No. 42 of 2008)
Cases citing this judgment (6)
How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.
- Kiconco v Attorney General and 2 Others (Miscellaneous Cause 86 of 2023)
- Fox Odoi v Attorney General (Constitutional Petition No. 54 of 2013)
- Attorney General v Gladys Nakibuule Kisekka (Constitutional Appeal 2 of 2016)
- Attorney General v Nakibuule (Constitutional Appeal 2 of 2016)
- Attorney General v Nakibuule (Constitutional Appeal 2 of 2016)
- Murangira v Attorney General (Constitutional Petition No. 7 of 2014)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.