EACJ Appellate Division hears an appeal challenging the President go Uganda on the alleged refusal to appoint more Judges to Judiciary
The East African Court of Justice’s Appellate Division heard an appeal filed by Mr. Simon Peter Ochieng and John Tusiime (the Appellants, both Ugandans) challenging the decision of the First Instance Division which was delivered on 17th August, 2015.
The matter came for the bench of the Appellate Division that includes Honourable Justices Dr. Emmanuel Ugirashebuja (Judge President); Liboire Nkurunziza, (Vice President); Justice James Ogoola; Justice Edward Rutakangwa; and Justice Aaron Ringera.
The Court’s First Instance Division when delivering its judgement had ruled that the President of the Republic of Uganda had not arbitrarily refused to appoint the Judges of the High Court, Court of Appeal and Supreme Court of Uganda. The Appellants in their petition hold that the First Instance Division erred in law and urged the Appellate Division to overrule the decision of the lower Court.
The Counsel for the Appellants, Mr. Ladislaus Rwakafuzi, submitted that the First Instance Division held that the Applicants had not proved that the President of Uganda had not arbitrarily refused to exercise his power in appointing the Judges of the Supreme Court and Court of Appeal because the appointment of Judges was an ongoing process because it included pre-appointment, exercising due diligence by the President who is the appointing authority.
The First Instance Division further ruled that there was lack of resources particularly a need for a certificate of financial implication and that the Judges could not be appointed without the certificate of financial implications. It also held that the President had not received the recommendations of the Judicial Service Commission (JSC).
Lawyer Rwafakuzi reiterated his previous submissions before the lower court that the President of Uganda was exercising powers he didn’t have when he refused to appoint the number of Judges as recommended to him by the (JSC) particularly the Justices of the Court of Appeal and the Supreme Court by 23rd December, 2013 when the Appellants filed their case before the Court. He added that by that time, the Court of Appeal had only seven (7) Judges instead of fifteen (15), and the Supreme Court had five (5) instead of eleven (11).
Rwakafuzi submitted that Ms. Christine Kaahwa, the Counsel for the Respondent, had in the hearing of this case before the First Instance Division, filed a letter from the JSC that there was already an appointment of the Chief Justice and the Deputy Chief Justice and that they were planning to appoint seven (7) more Justices for the Court of Appeal and six (6) more Judges for the Supreme Court, which the Applicants thought to be an admission that there was a failure of appointment of judges, a Respondent’s argument that was accepted, that the appointment of Judges was ongoing.
The Appellant’s lawyer further said that it was well known that when the Judges are appointed, they were of different ages at the time they are appointed and that it is within the law as to when those Judges will retire and therefore it cannot be surprising to any establishment as to when there will be a vacancy, that vacancies are known before hand. Rwakafuzi added that, for a government to wait to have Judges that go so much below the number that is required by the Constitution, was governance issue and that is why the Appellants came to Court and thought that it was an arbitrary exercise of power and interferes with the independence of the Courts.
Rwakafuzi again said that, the Supreme Court is established by Article 30 of the Constitution of Uganda, which provides that “the Supreme Court shall consist of the Chief Justice and such number of Justices not being less than six (6) as Parliament shall by law describe.”
He also said that the Judicature Act was amended in 2011 to increase the number of the Supreme Court Judges to eleven (11) and that the JSC forwarded the names of the Persons for appointment to the President accordingly, that therefore the refusal of appointment of Judges as recommended by the JSC and as required by the law was arbitrary refusal and an infringement of the Treaty for the establishment of the East African Community under Article 6 (d) and (e). The Applicant asked Court to find that the President acted arbitrarily.
On her part, Ms. Kaahwa, the Counsel for the Respondent submitted that, the Budget Act of Uganda, Section 10 states that “every bill introduced in Parliament shall be accompanied by its indicative financial implications if any on revenue and expenditure for the period of two years after coming into effect.” Ms. Kaahwa contended that the Section shows the estimates of what it would cost to implement the provisions of the Act but it does not show specifically that that money has been set aside, but an estimate for the appointments to effect those appointments.
She also submitted that since the Judicature Act provides the Judges of the Supreme Court to be nine (9) and the Court of Appeal to be fifteen (15), the appointment was work in progress and that there were no time frames within which to appoint those Judges and the First instance Division agreed with the Respondent’s argument.
Ms. Kaahwa concluded by asking the Court to uphold the judgment of the First Instance and also find that those are internal mechanisms which this Court should not be going into. She also added that this is still a public interest litigation and each party should bear their costs.