Makerere law don petitions court over appointment of judges in acting capacity

Dr Kabumba Busingye

Dr Kabumba Busingye

Makerere University law don, Dr Kabumba Busingye and lawyer Andrew Karamagi have petitioned the Constitutional court seeking to declare the appointment of 16 new High court judges in an acting capacity by President Yoweri Museveni as illegal.

Last month, Museveni appointed 16 judges in an acting capacity for two years. Those who were appointed include; Mary Ikit, Douglas Singiza Karekona, Susan Kanyange, Samuel Emokor and Flavia Matovu Nassuna, Patricia Kahingi Asiimwe, Bernard Namanya and Thomas Ocaya Ojele Rubanga. Others are; Grace Harriet Magala, Collins Acellam and Allan Paul Nshimye Mbabazi, Patricia Mutesi, Christine Kaahwa, George Okello, Celia Nagawa, and Faridah Shamilah Bukirwa.

According to the Judicial Service Commission (JSC) rules, the commission may advise the appointing authority on the nature of appointments to be made such as substantive, acting, contract, temporary, or probation in respect of judges, registrars, and other judicial officers. The rules further state that a probationary appointment shall be for a period of two years and any extension of a probationary appointment shall not exceed one year.

But in their petition submitted before the court, Kabumba and Karamagi contend that the appointments in acting capacity violate several constitutional provisions which refer to supremacy and the independence of the judiciary.

"This kind of conditional appointment infringes on the supremacy of the Constitution, undermines the security of tenure of judges, and violates the independence of the judiciary as the said officers are likely to execute their duties with either fear of retribution or expectation of favour or both," reads Kabumba's affidavit.

The two argue that their case addresses several pertinent constitutional issues which, if not adjudicated, shall have far-reaching effects on the administration of justice and independence of the judiciary.

Through their lawyers of ALTO and Company Advocates, they want the court to declare that the actions by President Museveni in subjecting the appointments of judges of the High court in an acting period of two years is unconstitutional and order be made directing the government to make the appointments permanent as provided for in the Constitution.

Constitutional court registrar Henry Twinomuhwezi has summoned the attorney general who is listed as the only respondent in this case to file the government's response to the petition within seven days or else the court might go ahead and determine the case in their absence.

The appointment of High court judges in acting capacity was the first time ever since the promulgation of the 1995 Constitution. But it triggered an uproar on social media most especially from activists and advocates of courts of judicature.

Lawyer Ivan Bwowe described such an appointment as one similar to appointments in military courts where court members serve for one year subject to renewal of which he indicated that the result has been catastrophic to the independence of the judicial military system.

Bwowe together with other lawyers, Erias Lukwago said that such appointments are seen to serve at the pleasure of the presidency which they say is a clear violation of the constitution.

© 2016 Observer Media Ltd