JUDGES of Uganda’s constitutional court have come to the rescue of two judicial colleagues: the two judges of that country’s industrial court were appointed for a five-year term, while the constitution says judges must have permanent, pensionable appointments. The two judges petitioned the court for help after they had no satisfaction when they raised the matter with the attorney-general. The court agreed that it was unconstitutional to appoint judges for a short-term period and that this could impact on judicial independence. But while the constitutional court decision is an important reaffirmation of basic principles entrenching the independence of the judiciary, Carmel Rickard suggests that the costs order – each party to bear its own costs even though the two judges were successful – could act as a deterrent in the future to private parties wanting to challenge unconstitutional acts or legislation.
JUDGES of Uganda’s constitutional court have come to the rescue of two judicial colleagues, finding that the statutory five-year limited term of office of the industrial court bench undermined judicial independence and was unconstitutional and therefore invalid.
The constitutional court was considering the petition of the industrial court’s two members: its chief judge, Asapah Ntengye, and a second industrial court judge, Linda Mugisha. Both were appointed to the court after the Judicial Service Commission invited them for interviews in 2014. However, their official appointment letter indicated that in terms of the labour laws, they were appointed for a period of five years only.
The two industrial court judges found this unacceptable, and tried to clarify and regularize their appointment conditions. They said their appointments had to be governed by the constitution – that is, they should have permanent and pensionable appointments as with all other judges, rather than a short, limited term in office as provided by the labour laws.
They brought their constitutional petition after correspondence with other officials including the principal judge (who heads the high court and assists the chief justice), and the permanent secretary of the ministry of public service, all trying to resolve the dispute.
A major question was whether, if they hold office for just five years, they might in fact not be “real” judges of the courts of judicature.
Counsel for the judges made the point in argument that Uganda’s industrial court was a creature of statute, and the constitution did not give parliament the power to restrict the term of office of judicial officers. If the constitutional court were to dismiss the petition, it would open the way for parliament to “enact laws creating courts with different terms of service” from that prescribed under the constitution. And that in turn would “undermine the independence of the judiciary”.
On the other side, counsel for the attorney-general’s office said the petition of the judges “substantially lacked merit”, and put forward a rather bizarre proposition that echoed the position of the ministry of public service as expressed in its correspondence with the two judges. The five-year term applied only to work in the industrial court, said counsel. At the end of that term, the judges concerned would continue to be judicial officers, permanently employed and with a pension, and would be “appropriately … redeployed elsewhere within the judicial service”.
In their judgment on the dispute the constitutional court said it was “amazing” that the solicitor-general, instead of providing guidance, asked the ministry of public service for its clarification about the way forward. As the solicitor-general was the “principal legal adviser” to the government this officer should not have passed the buck.
The two industrial court judges were judicial officers, the constitutional court held, and were thus supervised by the chief justice and the principal judge “and have the same status (as) all other judicial officers … under the constitution”. Their salaries and other benefits and conditions of service were not to be changed to their disadvantage. The constitution also made it clear that a judicial officer only left office on reaching a certain age. Thus the labour laws, which state that the industrial court judges leave after five years, regardless of age, were “clearly inconsistent” with the constitution.
The idea that such judges would be redeployed as in the rest of the civil service was not acceptable: “The terms of service of judicial officers in our view, are more protected in this regard than those of the regular civil servants who can easily be redeployed at will from ministry to ministry within the service.”
The constitutional judges said the judicial “redeployment” system proposed by the solicitor-general might have been easier in practice if the Ugandan court hierarchy was like that in Ghana, where the industrial court was a division of the high court. However, this was not the case and the system suggested by the solicitor-general lacked certainty – a crucial safeguard for judicial officers. They quoted an earlier Ugandan decision on judicial conditions of service:
“(The) term of office … and other conditions of service of judicial officers generally shall not be varied or altered to their detriment or disadvantage. This is an elementary safeguard to be found in most developed legal systems where it took many historic struggles to establish … as the most fundamental of all safeguards of judicial officers’ security of tenure. When this safeguard is destroyed by whittling away (Constitutional protective provisions) and judicial officers are put at the sufferance of the executive or at the whims of the legislature, the independence of the judiciary is the first victim.”
The industrial court members were not like the head of the tax appeals tribunal, appointed by the minister of finance on the recommendation of the judicial service commission, but were appointed by the president on the advice of the JSC. This put the two judges “on the same footing as a high court judge in terms of their appointment. Their tenure of office therefore should be no different.”
The court concluded that the two judges would remain at the industrial court until retirement, or until they are “elevated to higher courts”. The court gave the declaratory orders that the judges had requested, and also ruled that that the legislative sections stipulating a limited term period were null and void.
To my mind there was a strange twist at the end of the judgment: even though the court had criticized the conduct of the attorney-general in the matter and even though the two industrial court judges had won – after being forced to take the matter to court to defend their rights and, effectively, the independence of the judiciary more broadly – the constitutional court nevertheless ordered that each party was to bear its own costs.
This was their ruling on costs: “(G)iven that this petition sought to clarify the constitutional position of the petitioners as judges of the industrial court with the ultimate aim of aligning the law with the constitution we find it appropriate that each party bears its own costs.”
It does seem unfair that the judges were penalized in this way. In South Africa the state would usually bear the costs of both parties in constitutional litigation, particularly where the private party is successful, and – as here – where the issue at stake is a crucial constitutional matter. The thinking is that to do otherwise would discourage the public from challenging unconstitutional acts or legislation.
Editor note: The views expressed in this article belong to the author.