Judges Put President Yoweri Museveni Win Under Threat
Uganda may be headed for a constitutional crisis, thanks to the unconstitutional appointment of judges into constitutional offices, before resigning judicial jobs. In a landmark Constitutional court case, Bob Kasango v Attorney General and Director of Public Prosecutions (DPP), Constitution Petition No. 16, 2016, court ruled on March 18, 2021; “Henceforth the appointment and actions of a judge to any other executive or constitutional office prior to his or her resignation renders his or her actions invalid.” In the case, the late Bob Kasango had petitioned the Constitutional court to challenge the constitutionality of the appointment of Justice Michael Chibita as the director of public prosecution. (DPP). Kasango argued that the appointment of Chibita as DDP was inconsistent with the Constitution and principles of separation of powers and independence of the judiciary and, therefore, unconstitutional and void ab initio (right from the start). The legality of the actions of an office bearer only derives from the legality of the appointment- Ex turpi non oritur action- No cause of action or right can ow from an illegality,” Kasango, who represented himself, had argued. This judgement came weeks after he had died in prison where he was serving a 16-year sentence. Court found that Justice Chibita did not first resign as a judge of the High Court before his appointment to the office of the DPP. His appointment as DPP, therefore, was null and void and in contravention of Article 223(4) of the Constitution.
Kasango, who was facing prosecution then in the Anti-Corruption court, had intended to nullify the DPP’s prosecutorial action against him. However, in the ruling delivered by Justice Kenneth Kakuru, perhaps in an attempt to preserve public policy and prevent an avalanche of nullifications of the prosecutions conducted by the DPP, the court protected Chibita’s actions and were, therefore, not cancelled. In finding an answer to this conundrum, court used the precedent of Jim Muhwezi & 3 others v Attorney General & another in Constitution petition No. 10, 2009, which sought to determine whether the appointment of Justice Faith Mwondha, who was a sitting judge of the High Court as the Inspector General of Government contravened Articles 128(1), (2), 223(4). On whether what Justice Mwondha had done as IGG could be nullified as a consequence of a defect in her appointment, the court then ruled in the negative. Any defect in the appointment of the holder of that office does not nullify everything he does in the office as long as they are within the constitutional mandate of that office,” The court, therefore, acknowledged that although Chibita’s appointment had defects, the defects were similar to those in Muhwezi’s case. In this regard, therefore, I find all that was done by Hon Justice Chibita while performing the duties of DPP remain valid,” court said. I must categorically state, however, that hence further any appointment of a judge to any other executive or constitutional office prior to his or her resignation would render his or her actions invalid on account that the law is now well settled,” court ruled. The five-member panel comprised of justices; Kakuru, Geofrey Kiryabwire, Cheborion Barishaki, Stephen Musota and Musamiru Kibeedi. This decision creates a legal conundrum for Justice Jane Frances Abodo who was appointed the DPP to succeed Chibita. Abodo’s appointment is already challenged in the East African Court of Justice by Legal Brains Trust (Legal Brains Trust (LBT) Ltd v Attorney General, reference no 15, 2020). In pIrt of her affidavit to the court, Abodo claims that the DPP is not a member of the executive branch of government, “I perform my duties independent and I am not subject to the directions and control of any person or authority.” She also claims that she was granted leave of absence from the judicial service when she was appointed DPP. But last Thursday’s Constitutional court ruling does not recognize leave of absence. It demands that a judge must resign his office. This could mean that unlike in the Chibita case, the prosecutions conducted by Abodo could be nullified and some criminals set free. The court ruled that this decision was not peculiar to Justice Chibita but it applied to all those who hold executive and constitutional offices. It is hereby declared that the judgement is not in persona (not against a particular person). It is in rem (It is out there in the public). Consequently, any appointment of a judicial officer to the executive or constitutional office prior to his or her resignation from the judiciary shall be null and void ab initio (right from the start) and his actions shall be invalid,” court ruled. Judicial officers as custodians of justice must comply with this constitutional requirement. They must not be seen to be contravening the very Constitution they took oath to uphold while requiring others to uphold it,” court ordered.
This ruling casts doubt on the actions of the chairman of Electoral Commission Justice Simon Byabakama. There is no record that Justice Byabakama resigned his job as justice of the Court of Appeal prior to his appointment. Byabakama has just presided over the 2020/2021 general election. Going by the decision of Constitutional court, it means, the elections could be nullified, thanks to the irregular appointment of Byabakama. In the case of Lukwago Erias & 13 others v Electoral Commission, Byabakama Simon and Sam Rwakoojo, the applicants asked court to declare that the appointment of Byabakama was illegal. The High court, then presided over by Justice Musa Ssekana, declined to determine whether Byabakama was presiding as chairman of Electoral Commission illegally. “Applicants’ challenge of the service of the 2nd Respondent as Chairperson, Electoral Commission involves intricate questions of constitutional interpretation and statutory interpretation, which is not a fit and proper matter to be dealt with by way of judicial review,” the court ruled then. Now the Constitutional court has interpreted, ruled and settled the law on such appointments. Efforts to talk to Byabakama to confirm whether he resigned were futile. EC spokesman Paul Bukenya referred The Observer to EC secretary Leonard Mulekwa, who also never answered his calls. Interviewed for a comment, a ranking judicial officer said Byabakama has never resigned his judicial job. “The last I checked, that is last year, Byabakama had not resigned,” the officer said. The officer said the judge took a paid leave. “He is actually still on the payroll.”
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