KAMPALA – On March 18, 2021, the five justices of the Constitutional court unanimously delivered their land ruling outlawing the appointment of a judicial officer to any executive or constitutional office before resigning from the judiciary.
The decision followed the late Bob Kasango’s petition filed in 2016 arising out of several charges that had been slapped upon him by Justice Mike Chibita-the then Director Public Prosecution who was also a serving judge of the High Court.
Thus the actions taken by Justice Mike Chibita and of course those who came before him and after him contravened the doctrine of separation of powers enshrined in chapters six, seven and eight of the constitution and articles 128(1-3), 129 and was therefore null and void.
The panel that ruled unanimously against the appointment of a judicial officer to any executive or constitutional office prior to his or her resignation from the judiciary comprised Kenneth Kakuru, Geoffrey Kiryabwire, Cheborion Barishaki, Stephen Musota and Muzamiru Kibeedi Mutangula.
This is the second time a court of law is pronouncing itself on the same subject matter but the Government has made it a habit to act to the contrary. Before Justice Mike Chibita was appointed Director of Public Prosecutions in March, 2013, the Constitutional court had already delivered a decision warning Government against appointing serving judicial officers outside the parameters of the judiciary without first resigning.
I recall it was a constitutional matter filed concerning the appointment of justice Faith Mwondha as the Inspectorate of Government. Am sure her appointment was endorsed by the solicitor General. Shocking, she was appointed by the President and endorsed by the very Parliament which makes laws.
A panel of five Constitutional judges in that petition led by Deputy Chief Justice Leticia Mukasa Kikonyogo unanimously said it was illegal for President Museveni to appoint Justice Faith Mwondha as she had no resigned her judicial duties and therefore the holding of office as IGG was unconstitutional and thus void.
In the foregoing petition, Kasango had argued that having been appointed to serve as Director of Public Prosecution, Chibita continued to be a member of the executive as its chief prosecutor and criminal litigator. To the Justices of the constitutional Court, if a judge accepts to carry on duties assigned to executive and constitutional offices by the appointing authority, their actions under the docket to which they have been appointed while they are still serving as judicial officers shall be invalid as such actions contravene article 223(4) of the constitution especially regarding their mandates as the judicial officers.
According to Kasango’s petition, for a judicial officer to serve in another capacity, the two roles are in clear conflict and no judge who upholds and honours the judicial oath should ever do in any constitutional government democracy.
For the foregoing reason, Kasango had asked the Constitutional Court to declare the appointment of DPP and of course his actions as a serving judge as inconsistent with the constitution. This is exactly what the petition was all about. It is wrong for the court to allege that the decision only affects the future yet the actions complained of formed the gist of the grievances that affected the petitioner in person.
According to the spokesperson of the judiciary, Jameson Karemani in interpreting the decision of the constitutional court to the public said the duties performed before by the judges in executive positions such as the current Director of Public Prosecutions and presiding over the recently concluded elections by Byabakama remain valid.
He was short of adding and the actions performed by several judges under the Inspectorate of Government. Karemani further stated that if these judicial officers do not resign following this judgment, their actions will be illegal as if to disregard the previous decision by the same court in the case of Faith Mwondha.
It is wrong for the Constitutional Court to makes decisions that go beyond their mandate aimed at shielding illegalities procured by the executive. To date, even this very day, there are files that have been sanctioned by the current Director of Public Prosecutions in total disregard to the decision of the constitutional court yet she had not resigned.
An interpretation of the constitutional court decision in Kasango’s petition would in effect render null and void all the actions presided over and or sanctioned by any serving judicial officer serving outside the judiciary such as the current chairman of the Electoral Commission, the current and former judges who were serving as Directors of Public Prosecutions as well as the judges who served under the Inspectorate of government.
The likes of Bob Kasango would be the immediate beneficiaries of the outcome of this decision and would therefore demand for their release from prison for having been prosecuted arbitrarily. For the constitutional court to interpret a provision of the constitution that existed before and then refer the implementation of the outcome to the future is not only absurd but abuse of their mandate under the constitution.
A strict interpretation of the judgment would strike out the previous local council elections and the 14th January 2021 General elections conducted by the Electoral Commission under the chairmanship of Justice Byamukama. Even the actions sanctioned by previous judges holding the office of Inspectorate of Government would be rendered of no consequence and all those prosecuted under them on corruption-related charges if in prison would now demand for their release having been prosecuted illegally.
It is surprising that during the hearing of the case, the Attorney General who is the chief adviser to Government had already realized their mistake and asked the court not to make a postmortem pronouncement on actions of the DPP sanctioned before judgment as it would create a legal absurdity.
No wonder the Attorney General did not provide any evidence from public service or judicial service commission to the effect that the previous or current DPP had resigned their positions as judicial officers. According to the justices, there was no evidence provided to show that Chibita resigned his appointment as a judge of the High court of Uganda before he took an oath and assumed the office of Director of Public Prosecutions.
To me, the petitioner had successfully brought to the attention of court illegality as confirmed by all the five justices and should have been treated as such.
But in a twist of events which I think was a contradiction, Justice Kakuru who wrote the lead judgment stated that the investigations, arrest and prosecution of Kasango by the DPP when Chibita held office did not contravene any article of the constitutions. Justice Kakuru seemed to have forgotten that since the appointment of Chibita was illegal from the word go, it means that run the office of the director of Public Prosecution was operating without a Director to sanctions its actions.
The Constitutional Court of Uganda also constituted as the Court of Appeal of Uganda is the second-highest judicial organ in Uganda. It derives its powers from Article 134 of the 1995 Constitution. It is an appellate court when hearing cases appealed from the High Court of Uganda. However, it has original jurisdiction when adjudicating matters relating to the constitutionality of matters before it.
Article 137 of the 1995 constitution refers to any question as to the interpretation of this Constitution to be determined by the Court of Appeal sitting as the Constitutional Court. When sitting as a Constitutional Court, the Court of Appeal consists of a bench of five members of that Court. A person who alleges that- (a) an Act of Parliament or any other law or anything or done under the authority of any law; or (b) any act or omission by any person or authority is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.
The constitutional court does not have the power to interpret law and make declarations that serve a future purpose. By declaring an action taken to have been unconstitutional, its effect starts from the time that particular provision of the law was abused by doing the contrary. You cannot interpret a law that did not exist. The duty of the justices is to interpret the Constitution and the laws of Uganda, Promote the rule of law and contribute to the maintenance of order in society, safeguard the Constitution and uphold democratic principles.
It is wrong for the Constitutional court to validate illegal actions performed by Justice Mike Chibita while he served as Director of Public Prosecutions in an illegal capacity on the ground that he did not have the mandate to do what he did while in that office. The argument that the decision should be referred to the future on account that the law is now well settled is an attempt to cover up previous illegal actions performed by the judicial officers serving outside the judiciary without first resigning.