THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

AT KAMPALA

CONSTITUTIONAL APPLICATION NO 90 OF 2013

(Arising from Constitutional Petition No. 55 of 2013)

Gladys Nakibuule Kisekka  :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

The Attorney General:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

Coram:      Hon. Mr. Justice Remmy Kasule, JA/CC

Hon. Mr. Justice Aweri Opio, JA/CC

                   Hon. Lady Justice Faith E. Mwondha, JA/CC

RULING OF THE COURT

This application arises out of Constitutional Petition No. 55 of 2013 which is pending determination by this Court.  In the petition the applicant as petitioner, asserts, amongst others, that her being subjected to disciplinary proceedings as a judicial officer by and before the Judicial Service Commission for alleged acts she carried out as a Judicial Officer is unconstitutional.  She prays the Constitutional Court to so declare.

While the Constitutional Petition remains pending hearing and final determination, the applicant, through this application, pursuant to Rule 23(1) of the Constitutional Court (Petition and Reference) Rules, as well as Rules 2(2) 43 (1) (2) and 44 of the Judicature (Court of Appeal Rules) Directions, Section 64 (1) (e) and 98 of the Civil Procedure Act, prays that the Constitutional Court stays the Judicial Service Commission, hereinafter to be referred to as the “Commission” from carrying out the said Disciplinary Proceedings, interview and recruitment process of Judicial Officers where the applicant is an eligible candidate.

The application is supported by the affidavits of the applicant respectively dated 09.12.2013, 13.12.2013 and 19.12.2013.

Through an affidavit in reply by Mr. Kagole E.Kivumbi, the Commission secretary, dated 18.12.2013, the respondent opposes the application.

At the hearing the applicant was represented by learned Counsel Fred Muwema while State Attorney Geoffrey Madete was for the respondent.

For the applicant, it was submitted that she had a prima facie case that she would succeed in her Constitutional petition because the complaint, the subject of the disciplinary proceedings against her before the Commission was time barred as it had been instituted on 31.05.2013 after more than three (3) years from the 27.08.09, when it arose.  This was contrary to Regulation 6 of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations SI:  88 of 2005.  This was denial to the applicant of the non-derogable Right to a fair hearing under Articles 28 and 44 (c) of the Constitution. 

Further, the act giving rise to the disciplinary proceedings was one of a recall of a warrant of execution by the applicant in HCCS No. 266 of 2008, which act was Judicial in nature, carried out by the applicant in the course of her duties and within the scope of her employment as Deputy Registrar, Courts of Judicature, and as such she is protected from being subjected to disciplinary proceedings under Article 128 (4) of the Constitution.  By subjecting her to disciplinary proceedings, the Commission was now violating this Article to her prejudice.

It is also the case of the applicant that she is already being subjected to suffer irreparable damage by reason of the said disciplinary proceedings, as already, she had been excluded by the Commission from being considered for the post of Registrar, Courts of Judicature.  Thus the applicant was suffering irreparable damage by being prevented from advancing in her judicial career by reason of these disciplinary proceedings.  Hence the necessity for an order of this Court to stay the said disciplinary proceedings pending the hearing and final determination of Constitutional Petition No. 55 of 2013.

The Respondent opposed the application.  Respondent’s Counsel submitted that the applicant had not established any prima facie case to be granted an order of stay.  The Commission in its wisdom and in exercise of its discretion had, for good cause, allowed the complaint to be lodged against the applicant, even though lodged more than three (3) years from the time it occurred.  Regulation 6 vests in the Commission powers to extend time after a proper exercise of its discretion, so that complaints which are time barred, can be admitted, on proper grounds, for consideration inspite of their being time-barred.  The Commission had resolved this in its reasoned Ruling dated 05.11.2013.  The applicant had not appealed against the said decision under Regulation 18. 

The applicant had also not suffered any irreparable damage.  She had been excluded for consideration by the Commission for the post of Chief Registrar because she had not worked for at least 3 years as Registrar or 6 years as Deputy Registrar, which was one of the requirements to qualify as a candidate for the post.  As to interdiction, Counsel submitted that the applicant produced no evidence to this Court, and there was none, that the Commission had or intended to cause her to be interdicted from her post by reason of the Disciplinary proceedings in issue.  Counsel thus prayed Court not to grant the order of stay.

This Court has carefully considered the facts, as contained in the affidavits before it, the submissions by Counsel for the respective parties and the law applicable in resolving an application of this nature.

The applicant, as Deputy Registrar, attached to Commercial Division, High Court, Kampala, issued on 29.05.09 a warrant of attachment and sale of immovable property of the Defendant/Judgment Debtor (Dr. Aggrey Kiyingi) on the application of the Judgment creditor (Asiimwe Diana Jackline) in High Court (commercial Division) Civil Suit No. 266 of 2008.  The Judgment debtor’s number of land properties were attached as a result. 

On 27.08.09 on the instructions of one Mohammed Ssekatawa, Messrs MMAKS Advocates wrote to the applicant’s official office at High Court, Commercial Division, to the effect that two pieces of land, amongst the land properties attached, were no longer the properties of the Judgment Debtor, as their client Mohammed Ssekatawa had long acquired them before the court execution was issued.  They demanded that the Court vacates the warrant of attachment as regards the two pieces of land. 

On 27.08.09 having received the above stated letter, the applicant, as Deputy Registrar, wrote to MMAKS Advocates with copies to the Commissioner, Land Registration, M/s Makeera & Co. Advocates, Counsel for the Judgment Creditor, and Messrs Quick-way Auctioneers, the Court bailiffs executing the warrant, recalling the warrant of attachment in respect of the two land properties that had been the subject of objection.  She stated in her letter that she was recalling the warrant so as to avoid unnecessary objector proceedings.

The Judgment Creditor (Asiimwe Diana Jackline) thereafter on 31.05.2013 lodged a complaint with the Commission alleging that the recall of the warrant of attachment by the Applicant amounted to fraudulent and professional misconduct on the part of the Applicant. 

The Commission passed over the complaint to the applicant on 25.06.2013 with a request for a written response which the applicant duly submitted to the Commission on 26.06.2013. 

Thereafter the Commission drew up charges of professional misconduct against the applicant and invited her to take a plea on 03.10.2013 at 9.30 a.m. at the Commission offices.  Before the Commission Disciplinary Committee, the applicant objected to taking a plea contending that it was unlawful for her to do so as she had not participated in the determination of a prima facie case, that the charge sheet disclosed no offence against her and that the complaint was time barred. 

The Commission Disciplinary Committee in a Ruling delivered on 05.11.2013 rejected the applicant’s objections.  The applicant then lodged in this Court Constitutional Petition No. 55 of 2013 and this application.

For the applicant to succeed in this application she has to discharge the burden of proof, on a balance of probabilities, that she has a prima facie case to put before this Court, that failure not to grant her the orders prayed for will cause her to suffer irreparable damage and, if the Court is in doubt as regards these two, then the Court has to determine the application on the balance of convenience: See:  Constitutional Court Application No. 06 of 2013:  Davis Wesley Tusingwire vs Attorney General.

The duty of the Court in resolving an application of this nature at this stage of Court proceedings is not to delve and resolve conflicts of evidence on affidavits as to the facts upon which the status of either party may ultimately depend.  It is also not to decide difficult questions of law calling for detailed arguments and mature considerations.  It is not an occasion for the Court to resolve that either party or both are clearly wrong or have no credible evidence.  All these must be left for consideration at the actual trial of the substantial cause.  See:  East African Court of Justice Refernce No. 1 of 2006:  Prof. Anyang’ Nyong’ & 10 others vs Attorney General of the Republic of Kenya & 5 others.

The Court at this stage has to resolve whether the interests of justice call for Court to issue a temporary restriction pending the determination of the dispute at the substantive trial so as to protect the position and interests of the applicant in the interim:  See:  The American Cynamide Company vs Ethicon Limited [1975] AC 393:  [1975] ALLER 505 (HL).

A prima facie case is made out by the applicant on satisfying Court that the applicant has a good arguable claim to the right the applicant seeks to protect.  The applicant has to show that there is a serious issue, as opposed to one that is frivolous and vexatious, to go to trial and that the applicant has a probability of success. The applicant need not prove at this stage that he/she has a certainty of success. See: Constitutional Court Constitutional Application No. 02 of 2007: James Isabirye vs Attorney General and Another.

In a matter of a Constitutional nature, like this one, a prima facie case is made out if the applicant shows, on the face of it, that the interpretation of a provision of the Constitution is required.  It is however not enough to merely allege that a Constitutional provision has been violated.  The applicant must also show by way of pleadings the violation alleged and the effect of that violation. See:  Hon. Sam Kuteesa and 2 others vs Attorney General:  Constitutional Court Constitutional Application No. 46/2011 and Constitutional Reference No. 54 of 2011.

As to irreparable damage the applicant must show that he/she, if not granted the interim order prayed for, is likely to suffer such damage that cannot be easily ascertained because the same cannot be subjected to a fixed pecuniary standard of measurement due to their non-pecuniary nature.

When the Court finds it necessary to consider the balance of convenience, it is material for the Court to resolve whether more harm will be done by granting or refusing to grant the order prayed for.  Court has to consider whether, depending on the circumstances of the case before it, it is not wiser to delay establishing a new activity or status rather than risk damaging or disturbing the one that is already established.  Even in a case where pecuniary damages are a sufficient remedy, Court may, if circumstances warrant so, resort to considering the balance of convenience. If, for example, the party to pay the pecuniary damages has no ability to pay them, then the Court may consider where the balance of convenience lies and decide appropriately. We are persuaded in this respect by the Malawi High Court Civil Cause No. 1897 of 2008: CAMY SOAP AND MANUFACTURING CO. LTD vs NIRMA CHEMICAL WORKS LTD.

Applying the above principles of law to the facts of this application, we find that the applicant has established a prima facie case in that the Constitutional Court should interpret the Constitution to resolve the issue whether or not a Judicial officer, who carries out a judicial act in the course of and within the scope of his/her employment should be subjected to disciplinary proceedings by the Commission in respect of that judicial act, given the immunity and protection Articles 128(4) and 173(a) of the Constitution confer upon such a Judicial Officer. 

The applicant through Constitutional Petition No.55 of 2013 is calling upon the Constitutional Court to resolve by interpreting the Constitution whether or not, according to her, the judicial act she took of recalling the warrant of attachment in H.C.C.S. NO. 266 of 2008, an act she carried out as Deputy Registrar, High Court, Commercial Division, and which act was taken after there had been written objection to Court about the issuance of a  warrant of attachment, can be the subject of disciplinary proceedings against her. 

We accordingly find, on the facts of this application, that the applicant has established a prima facie case.

As to whether the applicant is likely to suffer irreparable damage if not given the orders she prays for, we note that, on the admission of the respondent, the applicant, it appears to us, is already being subjected to such damage.  Paragraph 6 of the affidavit dated 18.12.2013 of Mr. Kagole E. Kivumbi, the Commission Secretary, is to the effect that:  

“6. That I know that the Applicant/Petitioner was eligible for the post of Registrar Courts of Judicature but because of the disciplinary charges lodged against her she was not invited for the interviews.”

We infer from the above paragraph that the Commission Secretary is stating that on the mere existence with the Commission of a complaint upon which charges have been drawn against the applicant, but of which none has been proved against her so far, the applicant is being barred from progressing to higher levels in her career in the Judiciary.

Disciplinary proceedings against Judicial Officers under the Judicial Service Act and Regulations made there under, are in our considered view, quasi-criminal in as much as they constitute acts, defaults and conducts prejudicial to the public beyond the individual and, one convicted of the same, is liable to punishment.  It follows, in our considered view, that the presumption of innocence enshrined in Article 28 (3) (a) of the Constitution should apply to one facing disciplinary proceedings before the Commission.  Thus one should not be punished before one is proved guilty, certainly not on the mere presence of an unproved complaint with the Commission.  The applicant, in our view, has thus discharged the burden that she is suffering irreparable damage and is likely to continue suffering the same, if there is no intervention by this Court.

Regarding the balance of convenience, though this aspect need not be considered by us since we have already found that the applicant has established a prima facie case and also that she has been made to suffer and is likely to continue to suffer irreparable damage, we find it appropriate, given the importance of the case, to consider the same.

Regulation 25 of the Commission Regulations:  S.I. 87/2005 subjects the applicant to possible interdiction on her being charged with disciplinary offences.  So in addition to being barred from participating in interviews for her career advancement, the applicant is also liable to being interdicted from her work as Deputy Registrar, High Court. We thus have reached the conclusion that the applicant is more likely to be subjected to greater inconvenience than the respondent if she is denied all the orders prayed for in this application.  We would thus allow this application also on the basis of balance of convenience. 

We note that the applicant seeks an order that this Court stays the Commission from conducting any interviews and recruitment processes of Judicial Officers, where the applicant is an eligible candidate, pending the hearing and final determination of the petition.  Issuing such an order would, in our view, negatively affect the interests of other judicial officers who are seeking to advance in their respective careers through such interviews and recruitment processes and yet have nothing to do with these proceedings.  The order would thus be most unfair to them. 

The order in those terms would also unnecessarily interrupt the very heavy schedule of essential work that the Commission is carrying out for the benefit of the Uganda Judiciary and the country at large.  We thus, on the above stated grounds; decline to issue an order in those terms.  Instead we order that pending disposal of the applicant’s Constitutional Petition No. 55 of 2013, the applicant be NOT excluded for consideration by the Commission from participating in any interviews and recruitment processes of judicial officers where she is otherwise an eligible candidate. 

In conclusion this application is allowed.  We do order that Disciplinary Proceedings by the Commission against the applicant arising from the complaint to the Commission No. PRI/95/182/11/03 OF 2013:  DIANA ASIIMWE vs NAKIBUULE GLADYS KISEKKA, be stayed, pending the hearing and final determination by the Constitutional Court of Constitutional Petition No. 55 of 2013.

It is also further ordered that pending disposal of the said Constitutional Petition, the applicant, Gladys Nakibuule Kisekka, be NOT excluded for consideration by the Commission and accordingly be NOT excluded from participating in any interviews and recruitment processes of Judicial Officers where she is an eligible candidate.

As to costs of this application since the Constitutional Petition No. 55 of 2013, is yet to be determined by the Constitutional Court, we order that the costs of this application do abide the final outcome of the said Constitutional Petition.  We so order.

Dated at Kampala this …05^th… day of February, 2014.

Remmy Kasule,

Justice of Appeal/Constitutional Court

Aweri Opio

Justice of Appeal/Constitutional Court

Faith E. Mwondha

Justice of Appeal/Constitutional Court