Signs of Supreme Court appeal fight revealed
Kampala, Uganda | IAN KATUSIIME | A recent ruling of the Constitutional Court that it was unconstitutional for judges to be appointed to the Executive branch without first resigning their posts appears to have thrown a spanner in the workings of some government departments.
But the real battle over the so-called `Kasango case’ ruling is being fought in the courts with President Yoweri Museveni and his legal team in one corner and advocates of the separation of powers doctrine in the other.
The Constitutional Court ruling was made on March 18. In its ruling, the five member court averred that the appointment of judicial officers to executive offices like the Office of the Director of Public Prosecutions (ODPP) and Electoral Commission contravenes the principle of separation of powers among the two arms of government.
But on March 31, at the prompting of an appeal to stay the ruling, the top court of the land; the Supreme Court, issued an interim order halting the implementation of its implications until an appeal of the case is completed.
Without that Supreme Court order, the position of judges like Simon Byabakama as the chairman of the Electoral Commission and Jane Abodo as the Director of Public Prosecutions appeared to be in jeopardy.
The Kasango petition
The Constitutional Court ruling was a result of a constitutional petition by deceased lawyer Bob Kasango challenging his prosecution by then DPP, Justice Chibita.
In an amended petition dated June 8, 2016, Bob Kasango vs Attorney General and DPP; Kasango stated that the appointment of Chibita as DPP while holding the position of the judge was inconsistent with the constitution because it causes a fusion of the Executive and Judiciary and undermines the independence of the judiciary and the separation of powers that the Constitution requires.
The lead judgment delivered by Justice Kenneth granted Kasango’s petition saying the appointment of Chibita as DPP while he was still serving as a judge contravened the doctrine of separation of powers enshrined in Chapters Six, Seven and Eight of the Constitution and Articles 128 (1), (2) and (3) and 129.
The other judges on the panel were Geoffrey Kiryabwire, Cheborion Bashaki, Stephen Musota, and Muzamira Mutangula Kibeedi.
“Henceforth the appointment and actions of a judge to any other Executive or Constitutional office prior to his or her resignation render his or her actions invalid.” Kakuru ruled. He added, “Judicial officers as custodians of justice must comply with this constitutional requirement. They must not be seen contravening the very constitution they took oath to uphold, while requiring others to uphold it.”
Based on that ruling, Abodo had already stepped aside but Byabakama’s position had not been publicly declared. Meanwhile, the ruling by the Constitutional Court has sparked a slew of commentary among legal minds.