Wakilii

Ochieng and Anor v A.G. of Uganda (Reference 11 of 2013)

East African Court of Justice · [2015] EACJ 39 · 2015 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice alleging Treaty violation arising from alleged refusal by the President of Uganda to appoint judges to the Supreme Court, Court of Appeal and High Court
Decision
Reference dismissed on the merits after the Court found no evidence of refusal by the President to appoint judges and no breach of Treaty provisions

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice held that the Reference was justiciable as it raised questions of legality and Treaty interpretation. The Court found no evidence that the President of Uganda refused to appoint judges to the Supreme Court, Court of Appeal or High Court. The appointment process, including consultations and certificates of financial implication, fell within the internal functioning of Uganda's central administrative structure and did not violate the Treaty principles of rule of law and good governance. The Reference was dismissed with each party bearing its own costs given the public interest nature of the matter.

Outcome

Reference dismissed on the merits after the Court found no evidence of refusal by the President to appoint judges and no breach of Treaty provisions

Facts

The Applicants alleged that the President of Uganda refused to appoint judges to the Supreme Court, Court of Appeal and High Court as required by law, thereby interfering with judicial independence and violating Treaty provisions on rule of law and good governance. The Applicants relied on a letter from the Judicial Service Commission indicating recommendations had been made. The Respondent contested the allegations, stating that judicial appointments were ongoing, that the President had appointed numerous judges, and that the appointment process involved consultations and consideration of budgetary constraints. The Respondent provided evidence that the Chief Justice and Deputy Chief Justice had been appointed and that the process for appointing additional judges was continuing. The Court heard evidence regarding Parliamentary resolutions on the number of judges and the role of certificates of financial implication in the appointment process.

Issues

  1. Whether the Reference raised a matter for interpretation by the Court pursuant to Article 30 of the Treaty
  2. Whether the Parliament of Uganda resolved to increase the number of High Court judges to 82 and, if so, whether the President refused to appoint judges as prescribed by Parliament and recommended by the Judicial Service Commission
  3. Whether the President of the Republic of Uganda declined to appoint judges of the Court of Appeal and Supreme Court as prescribed by the laws of Uganda
  4. Whether the alleged refusal of the President to appoint judges is a breach of Articles 6(d) and 7(2) of the Treaty

Orders

  • Reference dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Jurisdiction of the East African Court of Justice — Treaty Interpretation — Justiciability
For a matter to be justiciable before the East African Court of Justice, the subject matter must be an Act, regulation, directive, decision or action, the legality of which is in issue under national laws or which constitutes an infringement of Treaty provisions. A claimant is not required to show a right or interest that was infringed or damage suffered; it is sufficient if it is alleged that the matter complained of infringes a provision of the Treaty in a relevant manner.
Pleadings — Material Facts — Departure from Pleadings
Every pleading must contain a concise statement of material facts upon which the party's claim or defence is based. No party may make an allegation of fact or raise any new ground of claim inconsistent with that party's previous pleading in the same case. The rationale is to avert trial by ambush and ensure parties have sufficient information to respond to matters in contention.
Rule of Law — Legality — Exercise of Governmental Authority
The exercise of governmental authority directly affecting individual interests must rest on legitimate foundations such as statute, common law or constitutional provisions. The Executive does not enjoy a general or inherent rule-making or regulatory power except in relation to the internal functioning of the central administrative hierarchy. State necessity cannot be relied on to justify deviations from lawful authority.
Separation of Powers — Interdependence of Branches of Government
A complete separation of powers would bring government to a standstill. The doctrine advocates prevention of tyranny by avoiding conferment of too much power on any one person or body. The proper functioning of a State committed to the rule of law depends on its branches understanding and being respectful of each other's respective roles and functions. Understanding is the basis from which branches can work together within a framework of separation of powers to maintain the rule of law.
Internal Administrative Procedures — Certificates of Financial Implication — Judicial Appointments
The practice of requiring certificates of financial implication before effecting judicial appointments falls within the ambit of the internal functioning of a State's central administrative structure and constitutes an exception to the general rule that the Executive cannot create rules circumventing the legal regime. Such practice engenders smooth internal functioning of government's administrative structure with due regard to budgetary constraints and does not violate principles of rule of law or good governance.
Judicial Appointments — Due Diligence and Consultations — Appointing Authority's Discretion
Due diligence checks and consultations undertaken by an appointing authority prior to judicial appointments fall within the purview of the internal functioning of a country's central administrative structure. Such pre-appointment procedures are not within the domain of the Court to superintend. The practice of due diligence checks entrenches the principle of good governance by ensuring that only appointees of impeccable integrity and competence are appointed to the higher bench.
Costs — Public Interest Litigation — Departure from General Rule
Although costs ordinarily follow the event, in litigation which engages a broader public interest beyond the pecuniary interests of particular parties, the strictures of the general rule are modified. Where a reference clarifies issues of public interest and administrative importance, the Court may order each party to bear its own costs rather than condemning the unsuccessful party to pay costs.

Legislation cited (17)

  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 30(1)
  • East African Court of Justice Rules of Procedure 2013 Rule 24(1)
  • East African Court of Justice Rules of Procedure 2013 Rule 24(2)
  • East African Court of Justice Rules of Procedure 2013 Rule 24(3)
  • East African Court of Justice Rules of Procedure 2013 Rule 37(1)
  • East African Court of Justice Rules of Procedure 2013 Rule 40(1)
  • East African Court of Justice Rules of Procedure 2013 Rule 41
  • East African Court of Justice Rules of Procedure 2013 Rule 53
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 50(1)
  • Constitution of Uganda Article 138(1)
  • Constitution of Uganda Article 142
  • Constitution of Uganda Article 147
  • Judicature Act of Uganda

Cases cited (12)

  • Sitenda Sebalu v Secretary General, East African Community and Others (Reference No. 1 of 2010)
  • Karuhanga v Attorney General (Constitutional Petition No. 39 of 2013)
  • Kyarimpa v Attorney General of Uganda (Reference No. 4 of 2013)
  • FIDA Kenya and 5 Others v Attorney General of Kenya and Others (Petition No. 102 of 2011)
  • Muslim for Human Rights (MUHURI) and 2 Others v Attorney General of Kenya (Petition No. 7 of 2011)
  • Union Trade Centre (UTC) v Attorney General of Rwanda (Reference No. 10 of 2013)
  • Captain Harry Gandy v Caspair Air Charter Ltd (1956) 23 EACA 139
  • Katabaazi and 21 Others v Secretary General of EAC and Another (Reference No. 1 of 2007)
  • East African Civil Societies Organisation Forum (EACSOF) v Attorney General of Burundi and 2 Others (Application No. 5 of 2015)
  • Youngstone Sheet & Tube Co. v Sawyer 343 U.S 579 (1952)
  • Attorney General of Tanzania v African Network for Animal Welfare (Appeal No. 3 of 2014)
  • Barclay (Guardian ad litem) v British Columbia 2006 BCCA 434 (CanLii)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ochieng and Anor v A.G. of Uganda (Reference 11 of 2013) [2015] EACJ 39 (7 August 2015)
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.