IN the struggle to ensure judicial independence judges sometimes have to take extraordinary steps. Over the last six months however none can have been more unusual than the litigation by Ugandan high court judge Joseph Murangira, which saw the judge suing Uganda’s attorney-general.
The case, heard in the country’s constitutional court, came out of a settlement order finalized by the judge. One of the parties to that dispute was a government department, and when the agreed amount was due to be paid, the Public Accounts Committee of parliament ordered the judge to appear before it and justify his decision. When he refused to do so the parliamentary committee made a report against him that was adopted by parliament, “purporting to veto” his decision in the high court. On top of this, the media picked up the story that he and his judgment were chastised by parliament, and published reports about it.
Murangira took the matter to the constitutional court, in a case against the Attorney General, with the judge asking the court to find parliament had no right to adopt the report critical of him and that it acted unconstitutionally when it did so. He also wanted costs and damages for parliament’s actions.
The original case, heard by Murangira in 2009, involved a development company in conflict with the national forestry authority. The day the matter should have been heard, the judge was told that both the parties had agreed to settle. As agreed by the two sides, he made a damages order of USD 1,612,171 to be paid to the development company, as well as costs and interest. Later the forestry authorities tried to have the damages award overturned on appeal but they did not succeed. Once more, the two sides settled their disagreements out of court, and the final appeal was withdrawn.
The minster of water and environment was satisfied with the judgment and forwarded a copy of it to the Attorney General for an implementation plan. This led to the judge being “invited” to appear before the Public Accounts Committee and, when he refused, to the critical report and parliament’s involvement.
Initially the AG’s office replied to the judge’s court action by claiming that nothing wrong had been done by parliament. More than a year later, however, that office filed a further answer to the judge’s petition agreeing that some – but not all – of the judge’s allegations of unconstitutional behavior on the part of the committee and parliament were correct.
The five judges hearing the Murangira matter agreed that the petition involved constitutional issues for interpretation. The second question for them to answer was whether parliament’s adopting of the controversial report by the public accounts committee infringed a number of sections of the constitution. Indeed it did, said the judges. The AG’s office had already conceded that parliament had contravened some sections of the constitution including articles making it clear that the independence of the judiciary was guaranteed and that no person or authority “is permitted to control, direct or interfere with the courts or judicial officers in the exercise of their judicial functions”.
As to Murangira’s decision not to appear before the parliamentary committee: his stand was “right and constituent with the constitution”. He acted “in resistance to the demands that he be subjected to proceedings that were unconstitutional. Consequently, the proceedings that took place in his absence and the resolutions and recommendations … are null and void for being unconstitutional.”
Similarly, the hearings that took place without him and at which the report with findings made against him was adopted, were all unconstitutional.
Parliament’s mandate was to protect the constitution, but it had acted contrary to this mandate in the matter. “By so doing, parliament contravened the fundamental principles that underpin democratic governance, namely: the doctrines of separation of powers and the independence of the judiciary.”
The constitution made it clear that no one was allowed to interfere or control the courts or judicial officers in the exercise of their judicial functions. The public accounts committee was no exception. “It is therefore our finding that the (committee’s) purported observations and recommendations that sought to question how a (judge) arrived at his decision was an attempt to control, direct and interfere with the independence of a judicial officer in the exercise of his judicial function.” On those grounds the actions of the committee and of parliament were unconstitutional.
Murangira said that the actions taken by parliament and the committee that “purported to veto” the judgment he gave in the case were “an attempt by parliament to usurp powers of the judiciary, contrary to the doctrines of separation of powers, the independence of the judiciary and the finality of court judgments.”
When the case was argued in court, much of this was agreed to by the AG’s counsel, who stressed that the independence of the judiciary must not be undermined.
The court then dealt with the damages claimed by Murangira, a judge of some 30 years’ standing. Included in his claim was an amount for loss of promotion opportunity, presumably because he believed the negative finding by parliament and the prominent reporting of the finding could have resulted in his not being promoted to a higher court. But this was speculative, the court held.
On the other hand, there was negative publicity “based on an unconstitutional parliamentary process”. This did cause “inconveniences, anguish and injury” to Murangira and should be “atoned for” by a damages award. The AG’s argument that he could not be held liable for negative publicity in independence newspapers was “untenable”, said the court: “those newspapers reported the proceedings in the committee and what was subsequently adopted by parliament”.
Murangira was awarded 50m Ugandan shillings in damages (USD 13 500) as well as costs, although the court limited the number of counsel in respect of whom costs were claimed.
The full text of the judgment in Murangira v Attorney General is available on ULII here.