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JUDGES: Supreme Court stays execution of orders in Kasango petition

The Supreme Court justices ruled on a decision of the Constitutional Court requiring judges to first resign before going into roles in the executive

Kampala, Uganda | THE INDEPENDENT | The Supreme Court has issued an interim order staying the execution of the Constitutional Court decision arising from the late Bob Kasango’s petition.

The Constitutional Court Justices led by Justice Kenneth Kakuru on March 18 2021 unanimously ordered that a serving Judge should resign before taking up any other appointment in executive or Constitutional offices. They declared that effective March 18 any Judicial Officer serving in such offices who continues with duties before the resignation, their decisions shall be invalid.

They reasoned that such actions contravene several articles enshrined under the constitution regarding their mandates as Judicial Officers and the oath they take which talks about being independent.

The ruling by the justices was as a result of the petition filed by the late Bob Kasango in 2016 who challenged the decisions made by the then Director of Public Prosecutions Justice Mike Chibita to sanction corruption-related charges against him when he was still a serving judge.

But last week, all the offices that were affected by the decision applied for an interim stay of the proceedings in the Supreme Court pending the hearing of the main application.

The affected offices include the Electoral Commission currently headed by Justice Simon Byabakama, the Judicial Service Commission led by Justice Benjamin Kabiito and the DPP led by Judge Jane Frances Abodo.

Constitutional Court’s Kenneth Kakuru

They jointly argued that there was going to be a legal crisis in the country if the stay is not granted because there was a big threat to execute the said orders.

The Electoral Commission argued that the swearing-in of new leaders in the country which is scheduled for May 2021 was going to be affected since a fully constituted Electoral Commission is the one that presents them to the swearing-in authority to take the oath, while the DPP, argued that the criminal justice system was most likely to be crippled given that the law doesn’t allow the DPP to delegate powers given to him or her.

The Judicial Service Commission told the court that the recruitment process of Judicial Officers for this financial year had already been disrupted following the constitutional Judgement.

The Director for Civil Litigation Christine Kahwa in the Attorney General’s office told the court on Wednesday that there’s a need for a stay of the execution adding that there is an intended appeal that is yet to be filed challenging the Constitutional Court decisions. According to Kahwa, this appeal has higher chances of succeeding.

However, the panel of five Supreme Court Justices led by Chief Justice Alfonse Owiny-Dollo in their ruling agreed with the applicants and issued an interim order staying the decision of the Constitutional Court.

According to Justice Paul Mugamba who read the decision on behalf of the panel, the order will remain in force until the determination of the substantive application or any other order. Other Justices are Stellah Arach Amoko, Rubby Opio Aweri and Ezekiel Muhanguzi.

This now implies that the officers who have been previously affected by the ruling can resume their duties unless there is any other order directing them to do otherwise.

Lawyer Isaac Ssemakadde has said that the decision has been done in law and he intends to apply to join the proceedings such that he can represent the deceased. Ssemakadde on Wednesday wrote to the Justices seeking to block the hearing of the Attorney General’s application in the absence of the deceased who wasn’t served.

Earlier in the hearing, Chief Justice Owiny-Dollo said that although today’s application has been heard exparte, the main application and the appeal will have a respondent to challenge the arguments by the applicants because of the nature of their importance.



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