Two lecturers at Makerere University law school have won what they will surely regard as a significant victory for constitutionalism in the appointment of judges. Busingye Kabumba and Andrew Karamagi brought their application in reaction to an announcement by the judicial service commission (JSC), issued in May, to the effect that 16 high court judges had been appointed in an acting capacity for a two-year term.
They took their concerns to court, arguing that the appointment contravened the notion of security of tenure for judicial officers, along with infringements of various constitutional provisions.
They argued that, under the disputed arrangement, such judges would ‘essentially serve at the mercy of the JSC and appointing authority, with absolutely no guarantee of re-appointment or confirmation, ‘and thus lack the security of tenure enjoyed by judicial officers … appointed on permanent basis.’
What they asked for was a declaration that the advice of the JSC, in so far as it guided the president of Uganda to make acting appointments for two years, was unconstitutional. They also wanted the act of the president in making the appointment of judges for two years to be declared unconstitutional.
As is often the case, the respondent (the attorney general) said the petition was misconceived, premature and ‘an abuse of court process’.
Interestingly, the Ugandan courts have already had to deal with a somewhat similar case: at the time, the Labour Disputes Act stipulated that the term of office of judges of the industrial court was limited to five years. That provision was declared unconstitutional.
Justice Monica Mugenyi wrote the lead decision, with the support of three colleagues. A fifth member of the constitutional court, Justice Madrama Izana, however, disagreed.
Justice Mugenyi referred in her decision to a number of significant authorities on the terms and conditions that should operate in respect of judicial appointments in a democratic tradition.
She quoted the International Bar Association’s minimum standards of judicial independence, decisions of the East African Court of Justice, the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, the European Court of Human Rights, the UN’s Basic Principles on the Independence of the Judiciary, the African Charter on Human and Peoples’ Rights and the treaty that established the East African Community, among others.
She said it seemed to her that the impugned appointments were like probationary appointments, ‘tagged to satisfactory performance [during] the … two-year period before a substantive appointment can be made.’
However, she added, ‘I find no provision whatsoever in the constitution for the appointment of judges on such probationary terms’.
The constitution, dealing with the role of the JSC in advising the president on appointment, referred to people who would ‘hold or act’ in judicial office. What was the difference between these?
She said it was inconceivable that the framers of the constitution wanted two ‘parallel pathways’ for the first-time appointment of judges, one under Article 142 (1) that would be subject to parliamentary approval and the other, under Article 142 (2) that was not subject to this approval. More likely, she said, was that the latter was exclusively applicable to serving or retired judges, already appointed to the judiciary via parliamentary approval, while ‘fresh recruitment or appointment of judges would be subject to parliamentary approval under Article 142 (1)’ thus conferring substantive appointment on appointees.
Justice Mugenyi said she concluded that reference to ‘act in’ was relevant to the appointment of a judge, already serving as such, to serve, temporarily, in the place of a substantive judge.
Her analysis of the text led her to the view that ‘the provision for acting judges in those constitutional provisions is only available to serving or retired judges.’
All the principles, authorities and decisions she quoted called for judges’ tenure of office ‘to be explicitly reduced into law.’
‘This is certainly in tandem with the renowned principle of legal certainty,’ she added. There was nothing permitting probationary appointments in Ugandan law, and the designation of the 16 newly-appointment judges as acting members of the judiciary was unconstitutional.
What should be done about the situation?
Given that the judges had ‘since taken judicial oath and assumed office’, the constitutional court’s decision that the JSC’s actions were unconstitutional does not make any decision of the 16, invalid. ‘It simply illuminates the need by the JSC to regularise their appointments as a matter of urgency to bring them in conformity with the constitution, and forestalls appointments in acting capacity for freshly recruited judges.’
She therefore concluded that the appointment of the 16 judges, subject to an acting term of two years, was unconstitutional. Further, the JSC was directed to do what was necessary ‘to regularise the appointment of the affected 16 judges into substantive appointments within six months’ of her judgment.
One of the other decisions on the matter, this time by Fredrick Egonda-Ntende, who agreed with the outcome proposed by Justice Mugenyi, pointed out that the previous constitution permitted a system under which acting appointments could be made, and then, after ‘six months or so’, the acting judges could be appointed with tenure. It was a system that permitted probationary appointments.
But that system of initially appointing high court judges as acting judges, and then appointing them substantively, had been ‘abandoned’ for more than 25 years ‘until these impugned appointments.
Justice Egonda-Ntende pointed out that, while the case before them was being argued, the JSC put out an advertisement for 11 high court positions. They were all said to be specifically appointed to act for two years before being appointed in a substantive capacity ‘upon performance evaluation being conducted.’
It seemed that the JSC was creating terms and conditions of employment that ‘are not available in the constitution or any Act of parliament,’ said the judge. ‘It is seeking to do so by agreement. Does the JSC have such constitutional authority? I would think not.’