TTHE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL APPEAL NO. 02 OF 2016.

(CORAM: TUMWESIGYE, KISAAKYE, ARACH-AMOKO, NSHIMYE, MWANGUSYA, OPIO-AWERI, TIBATEMWA-EKIRIKUBINZA, JJSC.)

BETWEEN

ATTORNEY GENERAL………………………………………..APPELLANT

AND

GLADYS NAKIBUULE KISEKKA……………………………RESPONDENT

[Appeal from the decision of the Constitutional Court (Kavuma Ag.DCJ, Kasule, Mwondha, Bossa, Kakuru, JJA) Constitutional Petition No. 55 of 2013, dated 22^nd October 2014]

Representation

Mr. Geoffrey Madete, State Attorney appeared for the appellant whereas Mr. Fred Muwema and Mr. Andrew Oluka appeared for the respondent.

 

JUDGMENT OF PROF. TIBATEMWA-EKIRIKUBINZA.

BREIF FACTS

The facts pertaining to this matter as contained in the respondent’s affidavit in support of the petition filed at the Constitutional Court were that:

Sometime in 2009, the respondent who was a judicial officer at the rank of Deputy Registrar issued a decree pursuant to a default judgment in HCCS No. 2006 of 2008, Asiimwe Diana Jackline v. Dr. Aggrey Kiyingi. On May 29, 2009, she issued a warrant of attachment in respect of the same matter. On August 27, 2009, the respondent received a letter from MMAKS Advocates protesting the attachment of some of the plots that had been included in the warrant of attachment. This letter indicated that the land comprised in the said plots of land did not belong to the judgment debtor but to their client, Muhammed Ssekatawa, who had, in 2006, obtained leases thereon and held duplicate titles to said land.

The respondent responded to the complaint of the said advocates on the same day by recalling the warrant in respect of the property at issue, to avoid unnecessary objector proceedings. She copied the letter recalling the warrant to all the parties; including the Commissioner of Lands, and also gave a copy to the complainant who was also the judgment creditor.

On August 31, 2009, the said judgment creditor through her lawyer wrote to the respondent, protesting the recall of the warrant. The respondent advised the complainant to file a formal application. On October 6, 2009, the complainant wrote another letter to the Registrar of the High Court protesting the recall of the warrant. This letter was copied to the Ministry of Lands, the Commissioner of Land Registration, the Honorable Principal Judge, and to the respondent. The respondent did not respond, since she was never called to do so by any superior officer of the Judiciary. The judgment creditor subsequently lodged a complaint against the respondent with the Judicial Service Commission (JSC) about the recall of the warrant. In the complaint, she alleged fraudulent frustration of the execution process by the respondent when she administratively vacated a warrant of attachment and sale of property that had been issued by her. She further alleged that the respondent, together with other persons mentioned in the complaint, were involved in a corrupt agreement to deny her, as the decree holder in the suit, her right to execute her judgment against Dr. Kiyingi who was resident outside Uganda and had no other known property.

On June 25, 2013, the JSC notified the respondent about the complaint by the judgment creditor and required her to make a reply to the complaint within 14 days. On June 26, 2013, she responded to the allegations in the complaint denying any wrong doing; contending that the recall was a judicial administrative act exercised in her judicial discretion during the execution management process; for good cause.

On 13^th September 2013, the JSC served the respondent with a plea taking notice scheduled for 3^rd October 2013. The respondent had been charged with offences of abusing judicial authority contrary to Regulation 23(n) and contravention of the Code of Judicial Conduct contrary to Regulation 23(j) of the Judicial Service Commission Regulations.

On October 3, 2013, the respondent appeared before the JSC Disciplinary Committee and objected, through her lawyer, to the plea taking. The lawyer also raised preliminary objections to the effect that the charges and JSC Disciplinary Committee proceedings were time barred, unfounded in law and unconstitutional. The Disciplinary Committee reserved its Ruling on the preliminary objections for the 17^th day of November 2013.

 On November 17, 2013, the respondent appeared before the Disciplinary Committee. However, before the Committee could deliver its Ruling, the respondent informed the Committee that the complainant was a non-existent person. The Disciplinary Committee promised to investigate the matter and to inform her of their findings.

On December 3, 2013, the Disciplinary Committee delivered its Ruling dismissing the preliminary objections raised. Furthermore, the Committee stated that the charge sheet disclosed an offence and that it was fair and just to listen to the complainant’s grievance even though it was time barred. The Disciplinary Committee also verbally informed the respondent that it had verified the existence of the complainant. The JSC Disciplinary Committee determined that the complaint disclosed a prima facie case meriting full investigation as to the truth of the allegation and instituted disciplinary charges against the respondent under the Judicial Service Commission Regulations. The JSC then ordered the respondent to take plea on the charges and adjourned the matter to the 17^th day of On December 2013 for plea taking.

However, on 10^th December 2013, the respondent filed a petition in the Constitutional Court with eight (8) grounds. Of the eight (8), only two grounds were upheld by the Constitutional Court to wit:

1. that            the act and/or conduct of the JSC of preferring charges against the respondent in respect of acts/or omissions involving the recall of a warrant, which are judicial acts is inconsistent with and in contravention of Articles, 2, 20, 28, 42, and 44 of the Constitution of the Republic of Uganda.
2. that the act/or conduct of the JSC of lifting the judicial immunity accorded to the respondent and holding her personally liable for her judicial act of recalling the warrant in the discharge of her judicial work is inconsistent with and in contravention of Articles, 2, 20, 28, 42, 44, 128(4) and 1 73 of the Constitution of the Republic of Uganda.

The Court additionally awarded her the costs of the petition.

From this Ruling, the Attorney General of Uganda filed an appeal in this Court on the following grounds:

Grounds of Appeal

1. The     Justices of the Constitutional Court erred in law and in fact in declaring that the act and/or conduct of the Commission of preferring charges against the petitioner in respect of acts/ or omissions involving the recall of a warrant, which are judicial acts, is inconsistent with and in contravention of Articles 2, 20, 28, 42 and 44 of the Constitution of the Republic of Uganda.
2. The Justices of the Constitutional Court erred in law and in fact in declaring that the act and or conduct of the Commission of lifting the judicial immunity accorded to the petitioner and holding her personally liable for her judicial act of recalling the warrant in the discharge of her judicial functions is inconsistent with and in contravention of Articles 2, 20, 28, 42, 44, 128 (4) and 173 of the Constitution of the Republic of Uganda.

Appellant’s submissions Ground 1

The appellant’s counsel submitted that the act of the JSC Disciplinary Committee of preferring charges against the respondent was not inconsistent with Articles 2,20,28,42, 44,128 (4) and 173 of the Constitution.

That in fact the act of preferring charges by the JSC was consistent with the functions of the Commission which it is enjoined to perform under Articles 147 (d) and 148 of the Constitution.

Counsel conceded that Article 128(4) of the Constitution grants judicial immunity to the respondent. He however argued that the right inherent in Article 128(4) must be interpreted alongside the constitutional mandate of the Commission.

Counsel thus submitted that the two Constitutional provisions on which the present matter rotated viz Article 128 (1) providing for a judicial officer’s immunity against suits and Article 147 (d) providing for the disciplinary mandate of the Commission cannot be read in isolation of each other. That this was in line with the renowned principle that the Constitution must be interpreted as an integral whole with no particular provision destroying the other. Counsel relied on the authorities of P.K.Ssemwogerere & Anor vs. AG Supreme Court Constitutional Appeal No. 1 of 2002 and AG of Tanzania vs. Rev. Christopher Mitikila [2010] E.A 13.

In conclusion, the appellant’s counsel prayed that this Court makes a finding that the learned Justices of the Constitutional Court erred in law and or in fact when they declared that the act of the JSC of preferring charges against the Respondent was inconsistent with the provisions of the Constitution and reverses the decision of the lower court.

 Respondent’s Submissions

In reply to the above submission, the respondent’s counsel argued that Article 147 (d) of the Constitution should not be invoked to undermine Article 128 of the Constitution which guarantees and protects the immunity of judicial officers for actions done in exercise of their judicial duty.

The respondent’s counsel further contended that the Appellant had not demonstrated to this Court or in the court below the irregularity involved in recalling the warrant so as to subject the respondent to disciplinary action.

It was the view of the respondent’s counsel that the act of recalling the warrant of attachment and sale was a judicial act and thus protected by Article 128 (1) of the Constitution.

In conclusion, the respondent prayed that this Court upholds and adopts the finding of the Constitutional Court.

Ground 2

Appellant’s Submission

The appellant contended that the Justices of the Constitutional Court erred in law and fact in declaring that the act of lifting the judicial immunity accorded to the respondent by the JSC was in contravention of Articles 2, 20, 28, 42, 44,128(4) and 173 of the Constitution. The appellant argued that the JSC was exercising its constitutional mandate and that as such its actions did not amount to lifting of the respondent’s immunity.

The appellant further contended that the Honourable Justices of the Constitutional Court did not address their minds to the Constitutional mandate of the JSC and thereby came to a wrong conclusion. That had the learned Justices addressed Article 128 (4) together with Articles 147 (d) and 148 of the Constitution, they would have been alive to the principle that judicial immunity is not absolute. Counsel submitted that much as judicial officers enjoy protection under Article 128 (4), disciplinary proceedings of the JSC are a special procedure during which immunity can be lifted so that complaints against a judicial officer can be examined by the Commission in line with provisions of the Constitution. That nevertheless in the instant case, the respondent’s immunity was not lifted by the JSC since the JSC was at the time only investigating the veracity of the complaint it had received. Counsel submitted that the defence of immunity was still available to the respondent.

The appellant therefore prayed that this Court overturns the findings of the Constitutional Court on this ground and that the declarations and orders of the Constitutional Court be set aside. Furthermore, counsel prayed that costs of the appeal be provided for.

Respondent’s Submissions

In reply to the submissions of the appellant on ground 2, the respondent’s counsel argued that judicial immunity is an absolute right enjoyed by judicial officers for anything done, whether wrong or right, spiteful or envious, malicious or done with hatred provided it is done in exercise of judicial authority. That charging the respondent with the offences of abuse of judicial authority and contravention of the Judicial Code of Conduct would deny her judicial immunity which is guaranteed under Article 128 of the Constitution.

In respect to the two overriding Articles viz Article 128 and Article 147 (d), the respondent’s counsel argued that Article 128 (3) of the Constitution enjoins every government organ/agency such as the JSC to accord courts such assistance as may be required to ensure the effectiveness of the Courts.

 Counsel further submitted that the use of the word ‘shall’ in Article 128 implies that the Article is couched in mandatory terms unlike Article 147. It was therefore the view of counsel that since Article 147 - delimiting immunity - is not couched in mandatory language, it cannot prevail over Article 128.

That it was the intention of the framers of the Constitution to allow judicial immunity to prevail.

The respondent’s counsel thus prayed that the appeal fails, the decision of the Constitutional Court be upheld and that this Court rejects any suggestion that a judicial officer be punished for doing their work. Furthermore, that costs for the appeal and in the lower court be awarded to the respondent.

Analysis of Court

Although the appellant presented two grounds of appeal, I will resolve them as one ground. This is because it is the decision of preferring charges against the respondent that is in essence being challenged as constituting lifting of the immunity accorded to a judicial officer.

I must also make mention of the fact that several constitutional provisions were cited in the grounds of appeal presented before this Court. The grounds of appeal were derived from the holdings of the Constitutional Court which declared that the actions of the JSC had contravened the said Constitutional Articles. The Articles in issue were: Article 2 on the supremacy of the Constitution; Article 20 providing for fundamental and other human rights and freedoms; Article 28 on the right to a fair hearing; Article 42 on an individual’s right to just and fair treatment in administrative decisions; Article 44 which prohibits derogation from particular human rights and freedoms and Article 173 which protects Public Officers from victimization or discrimination for having performed their duties. I have, however, not found these provisions of relevance in determining the matter before Court. I will therefore limit my analysis to Article 128(4) which deals with judicial immunity on the one hand and Articles 147 and 148 which deal with the mandate of the JSC on the other hand.

In resolving this appeal, I have found it pertinent to answer a question which inherently arises from the facts of the matter before Court: Is judicial immunity absolute or do we acknowledge the possibility of abuse of judicial authority/ discretion?

 An answer to this question is critical because of the submission of counsel for the respondent that “judicial immunity is an absolute right enjoyed by judicial officers for anything done, whether wrong or right, spiteful or envious, malicious or done with hatred provided it is done in the exercise of judicial authority/power and the only remedy available to a party aggrieved is to appeal against such decision.” In support of his arguments, counsel relied on the English case of Sirros vs. Moore [1974] 3 All ER 776.

The answer to the above question is also pertinent if we are is to exhaustively deal with 4 concepts which are at the heart of the administration of justice: judicial independence and the related principles of judicial discretion and judicial immunity on the one hand, juxtaposed with the principle of judicial accountability on the other hand. Dealing with this question will enable me answer the question; what is the essence of Article 148 of the Constitution - an Article which deals with the mandate of the Judicial Service Commission. And under what circumstances can it be said that the Commission has overstepped its power and authority? What is the effect of juxtaposing Article 148 with Article 128 of the Constitution which deals with the Independence of the Judiciary?

I now proceed to discuss the concepts relevant to determination of the matter.

JUDICIAL INDEPENDENCE

Counsel for the appellant submitted that the personal independence of the judicial officer is one of the two main aspects of judicial independence. He relied on the Canadian authority of Valente vs. The Queen [1985] 2 S.C.R 673 wherein Le Dain J observed that the constitutional principle of judicial independence has two major elements, the individual element and institutional element. The appellant further contended that while judicial independence forms an important guarantee, it also has the potential to act as a shield behind which judges have the opportunity to conceal possible unethical behavior. That as such those judicial officers who violate the code of conduct and the principles entrenched in the Bangalore Principles of Judicial conduct, 2002 are liable to judicial accountability for their conduct.

The respondent on the other hand submitted that Article 147 should not be invoked to undermine Article 128 which guarantees independence of the judiciary and protects the right of immunity of judicial officer for actions done in the exercise of their judicial duty because Judicial Independence/ immunity is the substratum upon which any judicial system is built. Further that Judicial independence will not be obtained where there is a threat of disciplinary action when a judicial officer makes a wrong decision.

Article 128 (1) of the Constitution states that, “in the exercise of judicial power, the courts shall be independent and shall not be subject to the control or direction of any person or authority.” And Article 128 (2) provides that, “No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.”

I am aware that judicial independence is now universally recognized as one of the hallmarks of constitutional democracy and rule of law. It is accepted that an independent judiciary is the key to upholding the rule of law in a democratic society. Judicial independence requires that an individual judge be unconstrained by collegial and institutional pressures when deciding a question of fact and law.

The purpose of judicial independence is the complete liberty of the judicial officer to impartially and independently decide 15 cases that come before the court and no outsider be it government, individual or other judicial officer should interfere with the manner in which an officer makes a decision. [Per Chief Justice Dickson in The Queen vs. Beauregard, Supreme Court of Canada, (1987) LRC (Const) 180 at 188].

The principle of judicial independence aims at protecting judicial decision-making from intimidation and outside interference. [See: Pullman vs. Allen, 466 U.S. 522 (Supreme Court of the United States, 1984].

Judicial independence is a critical feature of the Judiciary, requiring the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are equitably observed - Nakibuule vs. Attorney General, Constitutional Court Petition No. 55 of 2013.

 

JUDICIAL DISCRETION

Because the judiciary is designed to be independent, judicial officers must have discretion in order for the legal system to function properly.

Discretion refers to the power or right given to an individual to make decisions or act according to her/his own judgment. Judicial discretion is therefore the power of a judicial officer to make legal decisions based on her opinion - but I hasten c\ to add - but within general legal guidelines. In Black’s Law Dictionary 5^nd Edition, “judicial and legal discretion” is  defined as “discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained.” (My emphasis). Judicial discretion does not therefore provide a license for a judge to merely act as he or she chooses.

Ideally, judicial decisions will involve minimal discretion as judges apply proven facts to the established law, and a case could be given to any judge and the results would be the same. However, legal issues are not always clearly defined as black and white, right and wrong. It is not possible to create laws for every possible issue that could come up in a given case. Therefore, judicial officers must make many discretionary decisions within each case that influence the outcome of the case or the legal recourse of the parties. [See: Natayi vs. Barclays Bank of Uganda Ltd (MA No. 263 of 2013) UGHCLD 60 (14 June 2013); Kaweesa vs. Mugisha so (CIVIL APPEAL NO. 28 OF 2013) [2014] UGHCLD 21 (22 April 2014)].

Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence.

Nevertheless, while a judicial officer may have the discretion to decide the issues and outcomes within a case, this does not mean he or she will always make the right decision. Sometimes, judges misunderstand the law or pertinent facts and make an unfair decision. Therefore, while much deference is given to the judge’s decision, an erroneous judicial decision may be overturned through the appeals process in order to maintain the integrity of the legal system. A question however remains: if a judicial officer intentionally misuses this discretion to reach their own purposes, is the officer in any way liable/accountable or are they immune to questioning?,

JUDICIAL IMMUNITY

The concept of judicial immunity originated in early seventeenth-century England. In two English decisions, Floyd & Barker, 77 Eng. Rep. 1305 (1607) and The Case of the Marshalsea, 77 Eng. Rep. 1027 (1612) Lord Edward Coke laid the foundation for the doctrine of judicial immunity based on four public policy grounds. One of the grounds was maintenance of judicial independence. Another was respect and confidence in the judiciary.

In Uganda judicial immunity is enshrined in Article 128 (4) of the Constitution which provides: “A person exercising judicial power shall not be liable to any action or suit for any act or omission by that person in the exercise of judicial power.”

In H/W Aggrey Bwire vs. AG & Judicial Service Commission, SCCA No. 8 of 2010, Kitumba JSC agreed with the Court of Appeal statement that:

Judicial independence or immunity is not a privilege of the individual judicial officer. It is the responsibility imposed on each officer to enable him or her to adjudicate a dispute honestly and impartially on basis of the law and           the evidence, without external pressure or influence and without fear of interference from anyone. (My emphasis)

It is clear that the court acknowledged that immunity and independence are interlinked. But what is perhaps even more critical to note is that these privileges come with responsibility - the liberty is to be used honestly and impartially.

Counsel for the appellant conceded that Article 128 (4) of the Constitution provides immunity to a judicial officer. He however argued that immunity did not mean that the judicial officer could not be subjected to disciplinary proceedings. In support of this argument, counsel relied on the Bangalore Principles of Judicial conduct, 2002, which state that:

Judges are accountable for their conduct to their appropriate institutions to maintain judicial standards which are themselves independent and impartial and are intended to supplement and not to derogate from the existing rules of law and conduct which bind the judge.

The appellant also contended that had the learned Justices of the Constitutional Court read Article 128 of the Constitution together with Articles 147 (d) and 148, they would have come to the conclusion that judicial immunity is not absolute.

On the other hand, counsel for the respondent argued that the provisions of Article 128 (4) are couched in mandatory terms and that as long as a judicial officer is performing their duty under a judicial oath, they are immune and such immunity is absolute. Counsel further argued that had the legislature intended to limit this immunity it would have clearly stated so in Article 147 of the Constitution that details the functions of the Judicial Service Commission. Counsel concluded that as long as a judicial officer was doing a judicial act, then he or she should not appear before the Judicial Service Commission for disciplinary action.

I therefore conclude that whereas counsel for the respondent opined that judicial immunity is absolute, counsel for the appellant argued that in exercising discretion a judicial officer is accountable to the JSC.

I am aware that judicial independence and judicial accountability have long been viewed as being in tension with each other. The assumption is that any effort to strengthen judicial independence makes it difficult to hold judges accountable, and that any accountability initiative undermines judicial independence.

In my view, the starting point is to understand that 10 independence and the related principle of immunity on the one hand and accountability on the other are not ends in themselves. These principles are for purposes of ensuring fair, impartial and effective justice. Whereas independence can bolster judicial courage exercised by judges called upon to rule in difficult cases, accountability can bolster the integrity judges demonstrate in their performance on the bench. [Per David Pimentel, Balancing Judicial Independence and Accountability in a Transnational State: The case of Thailand.]^[1] There is also no doubt that respect and confidence in the judiciary, which is one of the four public policy grounds for independence of the judiciary is rooted in the integrity of judicial officers. It is therefore important that one sees judicial accountability as crucial to judicial integrity. In answering the question whether as contended by counsel for the respondent, judicial immunity is absolute, despite the existence of Articles 147 and 148 of the Constitution, I must be guided by the well-known rule of constitutional interpretation which is articulated in the judgment of this Court in Tinyefuza vs. the Attorney General, Constitutional Appeal No.l of 1997. In line with the said authority I cannot look at the essence of Article 128 in isolation of Article 147 since:

... the entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.

I must ensure that both purpose and effect are relevant in interpreting the provisions. [See: Ssemwogerere & others vs. Attorney General, EALR [2004] 2 EA 276 at p.319); Attorney General vs. Salvatori Abuki, Supreme Court of Uganda Constitutional Appeal No.1 of 1998.] I opine that whereas the purpose of Article 128 on judicial immunity is to bolster judicial courage, Articles 147 and 148 on accountability bolster judicial integrity. Each of these principles is a means to the same end - ensuring a fair, impartial and effective judicial system. Whereas I am in no doubt that judicial immunity is the substratum upon which any judicial system is built, I am also in no doubt that immunity is not an end in itself.

I further opine that the concept of judicial immunity is only applicable to judicial acts properly so called. The concept cannot extend to acts not qualified as judicial although performed by a judicial officer. Even if so qualified, judicial immunity is not applicable where a body constitutionally intended to be a shield from public scrutiny. Judicial independence and immunity do not shield a judicial officer from accountability. I must emphasize that in a democratic polity, it is inconceivable, that any person, whether an individual or an authority, exercises power without being answerable for the exercise. Judicial accountability like judicial independence has thus come to be recognized as a bulwark of the Rule of Law.

JUDICIAL ACCOUNTABILITY

But what constitutes accountability? Judicial 15 Accountability can be defined as the cost that a judge expects to incur in case his/her behavior and/or decisions deviate too much from a generally recognized standard.

The Law Reform Commission of Western Australia, Complaints Against Judiciary Report^[2], states that, judicial accountability refers to judges being answerable for their actions and decisions to the community to whom they owe their allegiance.

The need for judicial accountability has now been recognized in most democracies. And judicial accountability has today become a catch word all over the world. Judges can no longer oppose calls for greater accountability on the ground that it will impinge upon their independence. P D Finn, in The Abuse of Public Power in Australia: Making our Governors our Servants^[3] states that the accountability of the judiciary cannot be seen in isolation. It must be viewed in the context of a general trend to render governors answerable to the people in ways that are transparent, accessible and effective.

As noted by Uganda’s Chief Justice Bart Katureebe in his address at the 18^th Annual Judges Conference^[4] in Uganda:The rule of law is not a self-effecting concept

and therefore requires a strong, independent and accountable Judiciary to uphold ...    As Judges, we can only do our job well in promoting the rule of law by, among other is   things, ... accepting restraints imposed on us by the doctrine of accountability in Article 126 of the Constitution. Article 126 (1) provides that: Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with the values, norms and aspirations of the people.

Katureebe CJ referred to the Commonwealth (Latimer House) Principles on the Three Branches of Government which provide that: “Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity.” (My emphasis)

Recognizing the perceived tension between judicial independence and judicial accountability, Justice Michael Kirby of the High Court of Australia rightly stated that the important question should be: “How can accountability be improved but in a way that does not weaken the adherence of the judge, and society, to the principles of judicial independence?”⁵

Griffith G, Judicial Accountability, Background paper No. I⁶ defines the concept of accountability as a person or class of persons being answerable for their actions and decisions to some clearly identified individual/body. (My emphasis).

I opine that the answer to Kirby’s critical question lies in the establishment of institutions such as the Judicial Service Commission, institutions which as envisaged by the Bangalore Principles are themselves independent and impartial. It is this principle that is captured in Article 147 (2) of the Constitution thus: “In the performance of its functions, the Judicial Service Commission shall be independent and shall not be subject to the direction or control of any person or authority”.

In my view, the JSC is a clearly identified body to which judicial officers are accountable.

Indeed Justice Michael Kirby (infra) argues that a judge is, 25 by law, accountable to the public through the disciplinary process. I subscribe to the same view.

This then takes me to an exposition of the mandate of the Judicial Service Commission. It also takes me back to the

1. A text for a lecture delivered in Brisbane on 6th October 2001 at the University of Queensland and the Common Wealth Legal Education Association.
2. New South Wales Parliamentary Library Research Service, 1998, 14.

Question: under what circumstances can it be said that the commission has overstepped its authority?

The Mandate of the Judicial Service Commission.

According to Article 147 (1):

The functions of the Judicial Service Commission are-

(d) to receive and process people’s recommendations and complaints concerning the Judiciary and the administration of justice and, generally, to act as a link between the is    people and the Judiciary.

Article 148 provides inter alia that:

Subject to the provisions of this Constitution, the Judicial Service Commission may ... exercise disciplinary control over persons holding [judicial office].

Following the above constitutional mandate of the Judicial Service Commission and Section 5 the Judicial Service Act, the Judicial Service Commission Regulations, 2005 were promulgated. Regulation 23 stipulates the offences which warrant disciplinary action by the Judicial Service Commission. Examples of such offences are: abuse of judicial authority and contravention of the Code of Judicial Conduct, the offences that the respondent in the present matter was charged with.

 In his submissions, counsel for the appellant argued that the learned Justices of the Constitutional Court erred when they held that the lifting of judicial immunity accorded to the respondent in Article 128 of the Constitution, by the Judicial Service Commission and inviting her to respond to the complaint lodged against her was unconstitutional. He further argued that the actions of the Judicial Service Commission were based in the Constitution. He therefore faulted the learned Justices of the Constitutional Court for not addressing their minds to the constitutional mandate of the Commission.

On the other hand, counsel for the respondent argued that recalling of a warrant was a judicial act and not subject to disciplinary action before the Commission.

ABUSE OF JUDICIAL AUTHORITY

 It was submitted for the appellant that where a judicial officer’s conduct is ultravires the Uganda Code of Judicial Conduct and the Bangalore Principles on Judicial Conduct, then such a judicial officer has to account for the misconduct.

 On the other hand, counsel for the respondent argued that there was no misconduct by recalling a warrant for attachment and sale. That the practice of recalling a warrant was an acceptable judicial practice worldwide and therefore there was no need for the Commission to charge the respondent with abuse of judicial authority.

The Judicial Service Commission Regulations do not define what constitutes abuse of judicial authority. Black’s Law Dictionary^[5] defines “judicial authority” as the power and authority appertaining to the office of a judge. On the other hand, “abuse” is defined as everything which is contrary to good order established by usage; departure from reasonable use; immoderate or improper use.^[6]

From the above definitions, I conclude that what constitutes abuse of judicial authority is improper/ inappropriate use of the power of a judicial office. This must be differentiated from a judicial officer’s error in law which can only be the subject of appeal. Thus in the United States persuasive authority of Oberholzer vs. Commission on Judicial Performance^[7], the Tennessee Supreme Court stated that a judge’s legal error is not ordinarily misconduct warranting disciplinary action. Furthermore, in the same case, Hon. Adolpho A. Birch CJ, as he was then held that: “Judicial independence is the judge's right to do the right thing or, believing it to be the right thing, to do the wrong thing.” (My emphasis)

And Jeffrey M. Shaman et al in their book, Judicial Conduct and Ethics, (1995) state:

The preservation of an independent judiciary requires that judges not be exposed to personal discipline on the basis of case outcomes or particular rulings, other than in extreme or compelling circumstances. An independent judge is one who is able to rule as he or she determines appropriate, without fear of jeopardy or sanction. So long as the rulings are made in good faith, and in an effort to follow the law as the judge understands it, the usual safeguard against error or overreaching lies in the adversary system and appellate review. As the courts have often said, the disciplinary process should not be used as a substitute for appeal. Due to the possible threat to judicial independence, it has been suggested that legal error should be dealt with only in the appellate process and never should be considered judicial misconduct." (Emphasis mine).

Counsel for the respondent cited the authority of Sirros vs. Moore (supra) to support his argument that the Judicial Service Commission erred in summoning the respondent to answer complaints brought against her for recalling a warrant of attachment. Counsel's argument was that this contravened the respondent’s right to absolute immunity in the exercise of judicial duties. In Sirros v Moore (supra), Denning LJ held that:

... no action is maintainable against a Judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives ... cannot be made the subject of civil proceedings against him. No matter that the judge was ... actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action

Whereas I agree with Lord Denning’s statement that a judicial officer cannot be subjected to a civil suit for anything done in the exercise of his or her judicial discretion, the very principle articulated in Oberholzer (Supra) and by Shaman et al (supra), the pronouncements are not applicable to the work of a body legally mandated to investigate the conduct of a judicial officer. The JSC is such a body. The absolute immunity that Lord Denning was referring to is immunity from civil action. Black’s Law Dictionary,¹¹ defines a civil action or suit as;

An ordinary proceeding in a court of justice, by which one party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence ... More accurately, it is defined to be any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree.

Proceedings before the Judicial Service Commission are not in the nature of and do not culminate into a civil suit. The JSC is not a court of law. Therefore, the authority of Sirros vs. Moore (Supra) is not applicable to the present matter.

1. Pages 781-782.
2. 9^th edition at page 32.

Lord Denning held that no action is maintainable against a judge in the exercise of judicial power even when the decision arrived at was “actuated by envy, hatred and malice, and all uncharitableness.” It is this statement that counsel for the respondent was emphatic about. However, it must be noted that in the same case, afterstating that a judge who performs a judicial act is immune from civil liability, Buckley LJ further held:

It is perhaps arguable that a judge, though acting within his powers, might be shown to have acted so perversely or so irrationally that what he did should not be treated as a judicial act at all. In such a case the remedy of his removal from office would be available. I doubt whether it would be in the public interest that his conduct should be open to debate in a private action.

It is conduct such as that referred to by Buckley LJ that the JSC would unearth in its investigations. It is therefore not the correctness/merit of the judicial decision that would be a subject of investigation by the commission - since such would be ultra vires the mandate of the commission - but rather whether the decision resulted from improper exercise of judicial power.

On the other hand, an appellate court has no mandate to discipline a judicial Officer and indeed a party who appeals against a decision of a Judicial Officer is not alleging abuse of judicial authority.

What therefore must be emphasized is that in a bid to protect judicial independence and judicial officers from uncalled for disciplinary action for judicial decisions, judicial accountability should not be undermined. I am of the view that it can never be said that a judicial officer should never be investigated for abuse of judicial discretion.

However, I must quickly add that this should be backed with extrinsic evidence and not mere speculation.

What is critical is that a right balance between the principles of judicial independence and accountability needs to be maintained. For as stated by Gibson L. James in his article, Balancing Independence and Accountability of State Court Judges,^[8] “only the thoughtless and lazy prefer total independence or total accountability.” Judicial officers should be accountable to the people from whom power is derived through appropriately established institutions. In Uganda’s context, this is the Judicial Service Commission. Judicial Independence has an important corollary - judicial accountability. Indeed, whereas Article 128 (4) of the Constitution provides that a judicial officer shall not be liable for any action in exercise of judicial power, abuse of judicial power cannot qualify as exercise of judicial authority deserving protection.

The tough question therefore is: how can we balance judicial independence and judicial accountability? And which institutional structures can contribute to maintaining the desirable balance? It is in recognition of the need to balance independence and accountability that the Constitution carries Article 128 which clothes judicial officers with independence and immunity on the one hand and also Articles 147 and 148 which empower the Judicial Service Commission to exercise disciplinary control over judicial officers.

Judicial officers cannot oppose calls for accountability on the ground that it will impinge upon their independence. Independence and accountability must be sufficiently balanced so as to strengthen judicial integrity. Whereas independence bolsters judicial courage, accountability bolsters the integrity a judge demonstrates in the exercise of judicial discretion.

Institutions such as the Judicial Service Commission, which are legally mandated to discipline judicial officers, cannot be prevented from doing their work by a judicial officer citing judicial immunity. This is because proceedings before the JSC do not constitute an action or “suit” envisaged under Article 128 (4) of the Constitution from which a judicial officer is protected.

Consequently, I respectfully differ with the decision of the Constitutional Court that preferring charges against a judicial officer by the JSC for purposes of effecting Articles 147 and 148, is in and of itself, a contravention of the constitutional protection accorded to a judicial officer by Article 128 (4) (supra).

Furthermore, the respondent’s counsel contended that the appellant had not demonstrated the irregularity involved in recalling the warrant so as to subject the respondent to disciplinary action. It is however a fact that the respondent’s action of going to the Constitutional Court prevented the JSC from carrying out investigations into the complaint brought against her. In the circumstances, the Commission could not arrive at a decision as to whether or not she had abused her authority. It may as well be that the JSC would have concluded not only that the act complained of fell within the realm of judicial conduct but also that the officer appropriately exercised judicial discretion in arriving at her decision. But it is only if the officer answers the charges preferred against her that the Commission is able to arrive at such a conclusion.

Since no decision was reached, I respectfully disagree with the conclusion of the Constitutional Court that the JSC had held the respondent personally liable for a judicial act.

I therefore conclude that a judicial officer once notified of a complaint lodged against them before the JSC for abuse of judicial authority cannot answer that call with the shield of judicial immunity.

Orders

I would reverse the decision of the Constitutional Court, set aside its declarations and substitute an order dismissing the petition.

 Since the appeal raises matters of public importance, I would order that each party bears their own costs.

Dated at Kampala this 11^th day of July 2018

                                            

PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA

 JUSTICE OF THE SUPREME COURT.

 

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: TUMWESIGYE; KISAAKYE; ARACH-AMOKO; NSHIMYE; MWANGUSYA; OPIO-AWERI; TIBATEMWA-EKIRIKUBINZA; JJ.SC)

CONSTITUTIONAL APPEAL NO: 02 OF 2016

BETWEEN

ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

AND

GLADYS NAKIBUULE KISEKKA :::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

 [Appeal from the decision of the Constitutional Court (Kavuma, Ag. DCJ, Kasule, Mwondha, Bossa, Kakuru, JJA) dated 22^nd October, 2014 in Constitutional Petition No. 55 of 2013]

JUDGMENT OF TUMWESIGYE. ISC

I have had the benefit of reading in draft the judgment of my learned sister,

Justice Professor Tibatemwa-Ekirikubinza, JSC and I agree with her that the appeal should be allowed.

My understanding of Article 128(4] of the Constitution, is that "action" or "suit" therein refers to civil proceedings and not disciplinary proceedings. "Action" and "suit" are two words which are often interchangeably used.

Under Article 128(4) a judicial officer cannot be liable in any civil proceedings in exercise of judicial power. He or she enjoys absolute immunity in civil actions as guaranteed by Article 128(4).

Black's Law Dictionary 9^th Edition at p. 818 defines judicial immunity as:

“The immunity of a judge from civil liability arising from the performance of judicial duties".

 

Section 46(1) of the Judicature Act provides: "A judge or commission or other person acting judicially shall not be liable to be sued in any civil court for any act done or ordered to be done by that person in the discharge of his or her or its judicial functions whether or not within the limits of his or her or its jurisdiction."

It is this interpretation of judicial immunity that Lord Denning, MR, expressed in the case of Sirros v. Moore [1974] 3 All E.R. 776 at pp. 781-782 where he stated:

No action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which ... cannot be made the subject of civil proceedings against him. No matter that the judge was actuated by envy, hatred and malice and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to the court of appeal... to reverse his ruling... a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is that he should be able to do his duty with complete independence and free from fear.

In the same case Buckley LJ also stated:

It is perhaps arguable that a judge, though acting within his powers, might be shown to have acted so perversely or so irrationally that what he did should not be treated as a judicial act at all. In such a case the remedy of his removal from office would be available. I doubt whether it would be in the public interest that his conduct should be open to debate in a private action.

Therefore, in my view, Article 124(4] provides against bringing a civil suit or action against a judicial officer in respect of a judicial decision he or she made. It would be wrong to invoke it in respect of disciplinary proceedings brought against a judicial officer. Articles 147(4) and 148 provide that the Judicial

Service Commission (JSC) can receive complaints and conduct disciplinary proceedings against a judicial officer.

As was stated by Buckley LJ in Sirros v. Moore (supra) a judicial officer's decision can be so outrageous that it leaves no doubt in anybody's mind that it was either actuated by improper motive or sheer incompetence. Either way such behavior would call for disciplinary action that could result even in the removal of a judicial officer. Let me give an example which happened in our jurisdiction. In a criminal case NAK-KRA 03 CR CO 300-2016 before a Grade 1 magistrate, a man was charged with theft of a motor vehicle. The vehicle was stolen from the home of a lady who lived in Kiira Municipality, a few miles from Kampala. The lady reported the theft to police who tracked the vehicle to Adjumani and found it with the accused in company of another man on their way to South Sudan.

The accused did not give any explanation on how he came to be found with the vehicle. However, it was the finding of the judicial officer that there was no evidence showing that it was the accused who entered the premises of the lady and stole the vehicle. So he reduced the charge and convicted the accused of retaining a stolen vehicle and sentenced him to community service.

This was a judicial decision, but it is my view that the judicial officer who made it should have been investigated by the JSC for possible disciplinary action if the matter had been brought to its attention.

This is not to say that Article 128 which guarantees the independence of judicial officers in exercise of judicial power should be ignored or treated lightly by the JSC. The rule of law which underpins democracy cannot exist without an independent judiciary. Therefore, the JSC in exercise of its disciplinary powers and functions must ensure that the independence of the judiciary is strengthened and not undermined through uncalled for questioning of judicial officers' decisions.

Judicial decisions will most often leave unsuccessful parties dissatisfied. Some parties may be tempted to complain to the JSC alleging misconduct of the judicial officer who made the decision. The JSC needs to exercise utmost care
before deciding to frame a charge of misconduct against any judicial officer for a decision the judicial officer made in exercise of judicial power. Judicial officers are liable to make honest errors in their decisions. Such errors will be corrected on appeal. That is why appellate courts exist in our judicial system. The JSC must only look for misconduct, irrational or unusual decisions that any reasonable person would be concerned with and not for errors of law. Judicial officers should not have to look over their shoulders in fear that the decisions they make may result in their being summoned by the JSC to face disciplinary proceedings.

Be that as it may, it is also important to appreciate that under Article 147(2) the JSC is independent and is not subject to the direction or control of any person or authority. It is the body established to evaluate the matter complained about and to make a decision on whether or not to investigate it. In exercise of its powers and functions it can summon a judicial officer to appear before it to answer whatever charge is framed against him or her. Therefore, in my view the respondent was not justified to refuse to appear before the JSC on the ground that the JSC did not have power to question her decision of recalling the warrant of attachment she had issued.

As the majority of members of the court (six to one) agree that this appeal should be allowed, the appeal is allowed with no order as to costs. The JSC is free to go ahead with its disciplinary proceedings against the respondent.

Dated at Kampala this 11^th day of July 2018

 

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL APPEAL NO. 02 OF 2016

[CORAM: TUMWESIGYE, KISAAKYE, ARACH-AMOKO, NSHIMYE, MWANGUSYA, OPIO-AWERI AND TIBATEMWA-EKIRIKUBINZA]

                                                                           BETWEEN

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

AND

GLADYS NAKIBUULE KISEKKA::::::::::::::::::::::::::::::::::::::::RESPONDENT

(Appeal from the judgment of Justices Kavuma, Ag. DO, Kasule, Mwondha, Bossa and Kakuru, JJA/JJC dated 22^nd October 2014 in Constitutional Petition No. 55 of 2013)

JUDGMENT OF ARACH-AMOKO, JSC

I have had the advantage of reading in draft the judgment of my learned sister Professor Tibatemwa-Ekirikubinza, JSC and I agree that the appeal must be allowed. I also agree that each party bears its or her  cost.

The facts of the case which are not in dispute are set out in her judgment and I do not need to recapulate them here except where necessary for my purpose.

 

 In the Constitutional Court, the respondent filed eight grounds and only two were upheld. The Court declared that:

1. The      act and/or conduct of the JSC of preferring charges against the Respondent in respect of acts/or omissions involving the recall of a warrant, which are judicial acts is inconsistent with and in contravention of Articles 2, 20, 28, 42 and 44 of the Constitution of the Republic of Uganda.
2. The    act/or conduct of the JSC of lifting the judicial immunity accorded to the Respondent and holding her personally liable for her judicial act of recalling the warrant in the discharge of her judicial work is inconsistent with and in contravention of Articles 2, 20, 28, 42, 44, 128(4) and 173 of the Constitution of the Republic of Uganda.

Grounds of Appeal

It is from the above declarations that the following grounds of appeal arise.

1. The Justices of the Constitutional Court erred in law and in fact in declaring that the act and/or conduct of the Commission of preferring charges against the petitioner in respect of acts/ or omissions involving the recall of a warrant, which are judicial acts, is inconsistent with and in contravention of Articles 2, 20, 28, 42 and 44 of the Constitution of the Republic of Uganda.

1. The Justices of the Constitutional Court erred in law and in fact in declaring that the act and/or conduct of the Commission of lifting the judicial immunity accorded to the petitioner and holding her personally liable for her judicial act of recalling the warrant in the discharge of her judicial functions is inconsistent with and in contravention of Articles 2, 20, 28, 42, 44, 128 (4) and 173 of the Constitution of the Republic of Uganda.

In my view, there are two main issues for decision in this appeal. The first one is whether the act of preferring charges against the Respondent with respect of a judicial act of recalling a warrant of arrest was inconsistent with and in contravention of Articles 2,20,28,42 and 44 of the Constitution. This issue arises from ground 1 of the appeal.

The Judicial Service Commission (JSC) is a constitutional organ established under Article 146 of the Constitution. The functions of the JSC are clearly provided under Article 147 and 148 of the Constitution is as well as section 5 of the Judicial Service Act, Cap 14, and Laws of Uganda. Article 147(d) specifically enjoins the JSC to: "receive and process peoples' recommendations and complaints concerning the judiciary and the administration of justice and to also act as a link between the people and the judiciary."

The JSC, in line with its mandate and in the spirit of Article 147(d), has constituted a Disciplinary Committee to receive and process complaints from the public concerning the judiciary and the administration of justice. The Committee activities are regulated by the Judicial Service (Complaints and Disciplinary Proceedings) Regulations, S I No.88 of 2005.

It is further in line with this mandate that the JSC received a complaint against the Respondent, alleging unprofessional conduct in the course of her judicial duties. On the 25^th June 2013, the JSC informed the Respondent about the complaint and requested her to submit a response. On the 26^th June, the Respondent responded to the complaint. In line with Regulation 10(2) of the Judicial Service

 

(Complaints and Disciplinary Proceedings) Regulations, S I No.88 of 2005, the JSC determined that the complaint had established a prima facie case against the Respondent. The JSC consequently prepared a charge sheet and invited the Respondent to appear before the JSC to take plea on the 3^rd October 2013.

The contention by Counsel for the Respondent is that this act was inconsistent with and in contravention of Articles 2,20,28,42 and 44 of the Constitution. Counsel for the Appellant disagreed with him.

I have carefully perused the record of appeal and the submissions of counsel for the Respondent, and I must say that I have not found any evidence of such contravention or inconsistency. In matters of such grave accusation, it is incumbent upon the petitioner to demonstrate the inconsistency or contravention complained of, otherwise, a bare allegation, which I think this one is, does not suffice to support such a declaration as the one made by the learned Justices of the Constitutional Court.

I also note that the learned Justices of the Constitutional Court did not discuss how the said Articles were contravened by the JSC when it preferred charges against the respondent and invited her to take plea so that the process of investigation would continue. The declaration was, with due respect without any basis at all.

I therefore agree with counsel for the Appellant that the act of preferring charges against the Respondent for a judicial act was not inconsistent with or in contravention of Articles 2,20,28,42 and 44 of the Constitution. It was therefore an error for the learned Justices of the Constitutional Court to make such a declaration.

Ground I of the appeal would succeed for this reason.

The second issue is whether the act of the JSC of lifting the judicial immunity accorded to the Respondent and holding her personally liable for her judicial act of recalling a warrant in discharge of her judicial functions is inconsistent with and in contravention of Articles 2,20,28,42,44,128(4) and 173 of the Constitution. This issue arises from ground 2 of the appeal.

There is no doubt in my mind that the Respondent's act of recalling the warrant of execution is indeed a judicial act. The question then is, was it covered by the judicial immunity accorded to judicial officers under is Article 128(4) of the Constitution?

Article 128(4) of the Constitution provides that:

"A person exercising judicial power shall not be liable to any action or suit for any act or omission by that person in the exercise of judicial power."

Counsel for the Respondent contended that the act of the JSC fell within the ambit of Article 128(4) above and it was inconsistent with and in contravention of this Article. Counsel for the Appellant maintained the opposite view. I agree with Counsel for the Appellant for the following reasons.

First, the expression "any action or suit" is not defined in Article 128(4) or anywhere in the Constitution. I have consulted a number of legal dictionaries for the definition. For instance, according to Black's Law Dictionary 9^th edition, page 32, the word "action" means "a civil or criminal proceeding... the terms 'action and 'suit' are nearly if not quite synonymous. But lawyers speak of proceedings in courts of law as 'actions' and in courts of equity as 'suits'.

The same Dictionary defines judicial immunity at page 818 as:

"The immunity of a judge from civil liability arising from the performance of his judicial duties."

According to Halsburys Laws of England 3^rd Edition at page 706, the subject is clearly addressed in the following paragraphs as follows:

"1351. Persons Protected. Persons exercising judicial functions in a court are protected from all civil liability whatsoever for anything done or said by them in their official capacity."

In the following paragraph the reason for such protection is given as follows:

" 1352. The Reasons for protection. The object of judicial privilege is not to protect malicious or corrupt judges, but to protect the public from the danger which the administration of justice would be exposed if the persons concerned therein were subjected to inquiry as to malice, or to litigation with those whom their decisions might offend. It is necessary that such persons should be permitted to administer the law not only independently and freely and without favour, but also without fear.

From the foregoing, it is safe to conclude that the immunity referred to in Article 128(4) of the Constitution is in respect of actions or civil suits instituted in Courts of law in respect of judicial duties by judicial officers that are likely to lead to monetary damages. It does not extend to disciplinary actions by the JSC which is an independent body set up under the Constitution because disciplinary proceedings are not the "actions or suits" envisaged under Article 128(4) of the Constitution. The question of lifting judicial immunity does not in my view arise, for that reason.

 I am fortified in my conclusion by Principle No. 16 of the Bangalore Principles on Judicial Conduct which reads as follows:

“16. Without prejudice to any disciplinary procedure or to any right of appeal or compensation from the state, in accordance with national law, judges should enjoy personal immunity from civil suits of monetary damages for improper acts or omissions in the exercise of their judicial functions."

Principle number 16 of the UN Basic principles On Independence of The Judiciary is also couched in exactly the same words.

It is clear from the above that judicial officers are not immune from disciplinary proceedings. They are immune from civil suits. It is also clear to me that judicial immunity is not absolute.

The conduct of judicial officers in the execution of their duties can be investigated. Judicial officers are accountable to the people. Objective xxvi of the Constitution is entitled "Accountability". It provides as follows:

"(i) All public offices shall be held in trust for the people.

(ii) All persons placed in positions of leadership and responsibility shall, in their work, be answerable to the people.

(iii) All lawful measures shall be taken to expose, combat and eradicate corruption and abuse or misuse of power by those holding political and other public offices."

 

Article 126 (1) provides that:

“(1) judicial power is derived from the people and shall be exercised by the courts established by this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people."

If these Articles are read and interpreted using the rule of harmony, the end result is that they actually support each other. While Article 128 provides for judicial independence, Articles 147 (1) (d) and 148 provide the bridge between judicial independence and accountability.

Notably, even under ground 2 of the appeal, counsel for the is Respondent did not canvass and even the learned Justices of the Constitutional Court never clearly demonstrated how the act of the JSC complained of contravened or was inconsistent with the rest of the Articles mentioned in this ground before coming to their conclusion in their judgment. It was therefore an error for the said Articles to be included in the declarations by the learned Justices of the Constitutional Court as the Articles that had been contravened by the JSC.

The second ground would also succeed for this reason.

Before taking leave of this matter, I would like to state that a judicial officer who has been summoned by the JSC to respond to complaints against him or her should comply and place his or her defence(s) before the JSC. Claims of judicial immunity should not be used to block investigations by the JSC. The Commission should be allowed to carry out its constitutional mandate as far as possible. Decisions of the JSC can then be referred to court under judicial review proceedings or by reference to the Constitutional Court in appropriate cases.

 

In view of the above, I would allow the appeal and would set aside the judgment and orders of the Constitutional Court. I make no order as to costs.

Dated this 11^th day of July 2018

 M.S.ARACH-AMOKO

JUSTICE OF THE SUPREME COURT.

 

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CONSTITUTIONAL APPEAL NO. 02 OF 2016.

(CORAM: TUMWESIGYE, KISAAKYE, ARACH-AMOKO, NSHIMYE,  MWANGUSYA, OPIO-AWERI, TIBATEMWA-EKIRIKUBINZA, JJSC.)

BETWEEN

ATTORNEY GENERAL ::::::::::::::::::::::::: APPELLANT

AND

GLADYS NAKIBUULE KISEKKA :::::::::::: RESPONDENT

[Appeal from the decision of the Constitutional Court (KavumaAg.DCJ, Kasule, Mwondha, Bossa, Kakuru, JJA) Constitutional Petition No. 55 of 2013, dated 22^nd October 2014.]

JUDGMENT OF A.S.NSHIMYE. JSC

I have had the opportunity of reading the lead judgment in draft of my learned sister Prof. Tibatemwa-Ekirikubinza, JSC and agree with her analysis, conclusion and order as to costs.

I only wish to lay a little more emphasis on the issue of judicial accountability of judicial officers.

As rightly stated by Prof Tibatemwa-Ekirikubinza, JSC, judicial immunity and independence are not intended to be a shield from public scrutiny. Judicial immunity is not absolute.

 Furthermore, the Judicial Service Commission is a clearly established Constitutional body to which all judicial officers are accountable.

Given the above exposition, it was in my view not appropriate for the respondent to run to the Constitutional Court without first giving chance to the due process of the Judicial Service Commission to carry out its mandate. What the respondent did was to seek refuge in the Constitutional Court to challenge the mandate of the Judicial Service Commission in investigating the complaint brought against her.

In my opinion, the respondent’s answer or explanation that she acted judicially and therefore immune to the disciplinary process would have been appropriately raised before the Commission even at the stage of their preliminary inquiry before they would decide to commence full fledged disciplinary proceedings. Had the respondent submitted herself to the due process of the Commission, her answer would have influenced the Commission to come to the conclusion that the act complained of was a judicial act over which the respondent was protected and needed not, to be investigated and thereby dismiss the complaint. Usually taking wrong channels is costly in terms of time and money before a decision over any given problem is found.

In opining so, I am alive to the provisions of Article 137(5) of the Constitution that:

where any question as to the interpretation of this Constitution arises in any proceedings in a court of law other than a field court martial, the court—

1. may, if it is of the opinion that the question involves a substantial question of law; and
2. shall, if any party to the proceedings requests it to do so, refer the question to the constitutional court for decision in accordance with clause (1) of this article.(See also: Paul K. Ssemogerere and Ors vs Attorney General; Supreme Court Constitutional Appeal No.l of 2002)

However, a careful study of the record does not show that a constitutional question arose in the proceedings of the Judicial Service Commission to warrant a reference to be made to the Constitutional Court.

I note that the investigation carried out by the Judicial Service Commission was still at its preliminary stages. Therefore, the effect of the respondent’s action of seeking a remedy in the Constitutional Court without allowing the Judicial Service

Commission to finalise its preliminary investigations was premature. It also amounted to undermining and sidelining the accountability process vested in the Commission which is a constitutionally established institution in our country to handle complaints against judicial officers.

With due respect to the Justices of the Constitutional Court, there is no way they could have held that the act of the Commission in preferring charges against the respondent in respect of judicial Acts was inconsistent with Articles 2,20,28, 42 and 44 of the Constitution, when the commission was not given an opportunity by the respondent to do so.

In the same vein, their Lordships, the Justices of the Constitutional Court erred in holding that the commission lifted the judicial immunity of the respondent and held her personally liable for judicial acts.

In my view that finding is not borne out of the record, the commission was not given an opportunity by the respondent to lift or not lift the said judicial immunity.

I therefore come to the conclusion that it was wrong abnitio for the respondent not to have honoured summons of the judicial service commission to give her explanation.

I would in the result allow the appeal and set aside the declarations of the Constitutional Court and substitute an order dismissing the petition of the respondent.

Dated at Kampala this 11^th day of July 2018.

 

A.S. NSHIMYE

JUSTICE OF THE SUPREME COURT

 

 

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

 

(Coram: Tumwesigye; Kisaakye; Arach-Amoko; Nshimye; Mwangusya; Opio-Aweri; Tibatemwa- Ekirikubinza; JJSC

Constitutional Appeal No. 02 of 2016 Between

Attorney General................................................................................................. Appellant

And

Gladys Nakibuule Kisekka............................................................................. Respondent

[Appeal from the decision of the constitutional Court (Kavuma, Ag. DCJ; Kasule, Mwondha, Bossa, Kakuru, JJA) dated 22^nd October, 2014 in Constitutional Petition No. 55 of 2013]

JUDGMENT OF MWANGUSYA, JSC

1. have had the opportunity of reading in draft the judgment of my learned Sister, Prof Lillian Tibatemwa-Ekirikubinza, JSC and I am in agreement with her that for the reasons she so ably advances in her judgment this appeal should be allowed.

The background to the case which is fairly straight forward is also well explained in her judgment and therefore it is not necessary to repeat it.

 

The judgment also addresses the contention of the respondent that as a judicial officer who performed a judicial function in recalling the warrant of attachment she is not liable to disciplinary action by the Judicial Service Commission because it infringes on her immunity.

The petition was brought under Article 137 clause 3 (b) of the Constitution which provides as here under: -

“137. Question as to the interpretation of the Constitution.

1..............................

1. .

3. A person who alleges that

1. ..................................
2. any.................... act or omission by any person or authority is inconsistent with or in contravention of a provision of this Constitution, may petition the constitutional court for a declaration to that effect, and for redress where appropriate        ”

The provision of the Constitution allegedly contravened by the 'act’ of the Judicial Service Commission to charge the respondent with Disciplinary offences is Article 128 which is set down hereunder:-

Article 128. Independence of the Judiciary

1. In the Exercise of Judicial Power, the Courts shall be independent and shall not be subject to the control or direction of any person or authority.
2. No person or authority shall interfere with the Courts or judicial officers in the exercise of the judicial functions.

1. ....................
2. A person exercising judicial power shall not be liable to any action or suit for any act or omission by that person in the exercise of judicial power.
3.                      
4.                                 
5.                      
6. ............................... ”

One of the cardinal principles that guide Courts in interpretation of a provision of the Constitution is the rule of harmony and completeness laid down in the case of Paul Semwogerere vs. Attorney General, Constitutional Appeal No 01 of 2002 where this Court stated as follows

“It is an elementary rule of Constitutional construction that no one of the provision of the Constitution is to be segregated from the others and to be considered alone but that all the provisions bearing upon a particular subject are to be brought into view and to be interpreted so as to effectuate the great purpose of the instrument.”

See also Attorney General vs. David Tinyefuza (Supreme Court Constitutional Appeal No.2 of 1998) where it was stated that:-

“the entire Constitution has to be read as an integral whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.”

One of the complaints raised by Counsel for the Appellant was that the Constitutional Court did not apply the above principles in arriving at the conclusion that the act of the Judicial Service Commission in charging the respondent for Disciplinary offences was in contravention of provisions of the Constitution. The specific provisions of the Constitution that the Constitutional Court was required to harmonise with Article 128 allegedly contravened by the Judicial Service Commission are Article 147 and 148 of the Constitution which spell out the functions of the Judicial Service Commission including appointment and disciplinary control of Judicial officers. The said articles are as follows:-

“147. Functions of the Judicial Service Commission.

1. The functions of the Judicial Service Commission are:

 

1. to advise the President on exercise of the President’s Power to a point persons to hold or act in any office specified in clause (3) of this article, which includes power to confirm appointments, to exercise disciplinary control over such persons and to remove them from office;
2.  
3.  
4.   

(e) ......................................

W

1. In the performance of its functions, the Judicial Service Commission shall be independent and shall not be subject to the direction or control of any person or authority.
2. The offices referred to in clause (1) (a) of this article are:-

1. the   office of the Chief Justice, the Deputy Chief Justice, the Principal Judge, a justice of the Supreme Court, a justice of Appeal and a judge of the High Court.
2. the   office of the Chief Registrar and a registrar.

148. Appointment of other judicial officers.

Subject to the provisions of this Constitution, the Judicial Service Commission may appoint persons to hold or act in any judicial office other than the offices specified in article 147 (3) of this Constitution and confirm appointments in and exercise disciplinary control over persons holding or acting in such offices and remove such persons from office. ”

I wish to make two observations from the above provisions. The first is that there is a striking similarity between Article 128 clause (1) and Article 147 clause (2) in that in the performance of their functions both the Courts and the Judicial Service Commission

“shall be independent and shall not be subject to the direction or control of any person or authority.”

The other observation is that the ‘act’ of commencing disciplinary proceedings against the respondent is not inconsistent or in contravention of the Constitution. On the contrary it is consistent with Article 148 which gives the Judicial Service Commission the mandate to appoint, confirm appointment and exercise disciplinary control over persons holding office under the said provision. The respondent falls in this category. Once it is established that the ‘act’ is not in contravention of the Constitution the provision of Article 137 (3) (b) of the Constitution becomes inapplicable because beyond the ‘act’ of commencing proceedings the matter remains for determination on merit and not for constitutional interpretation and on this consideration alone I would allow the appeal. But there are other considerations.

The other consideration is whether the Disciplinary Proceedings of the Judicial Service Commission are subject to Article 128 clause 4 of the Constitution giving immunity to officers exercising judicial power. I am guided by the principle already stated that in the interpretation of the Constitution it should be looked at as a whole with no provision destroying another. The provisions should sustain each other. So Article 128 clause 4 should not be allowed to destroy Article 148 of the Constitution which empowers the Judicial Service Commission to exercise Disciplinary control over Judicial Officers. The two articles of the Constitution should sustain each other and I see no contradiction in a Judicial Officer performing a Judicial act without interference from anybody and where the Judicial Service Commission exercises disciplinary control over a Judicial Officer in conformity with Article 148 of the Constitution. That is the application of rule of harmony already stated in this judgment.

I would, therefore, allow this appeal. I would also allow the Judicial Service Commission complete the process that was interrupted by the petition so that the matter is concluded.

I would make no order as to costs given the importance of the issue raised by the petition.

  Dated this 11^th Day of July 2018

Eldad Mwangusya

 

JUSTICE OF THE SUPREME COURT

 

THE REPUBLIC OF UGANDA

 

 

IN THE SUPREME COURT OF UGANDA AT KOLOLO

CONSTITUTIONAL APPEAL NO. 02 OF 2016.

(Coram: Tumwesigye, Kisaakye, Arach-Amoko, Nshimye, Mwangusya, Opio-Aweri & Tibatemwa-Ekirikubinza).

ATTORNEY GENERAL

VERSUS

GLADYS NAKIBUULE KISEKKA

(Appeal from the Judgment of Justices of the Constitutional Court: Kavuma, Ag. DCJ, Kasule,

Mwondha, Bossa & Kakuru, JJA/JJC).

JUDGEMENT OF OPIO-AWERI.

I have had the benefit of reading in draft the judgment of my learned sister Justice, Hon. Prof. Lillian Tibatemwa and I agree with her findings.

The thrust of this appeal was whether the Judicial Service Commission’s act of preferring charges against a judicial officer who performed a judicial act amounts to waiving of judicial immunity and therefore unconstitutional.

True, to answer this question, one has to discuss the concepts involved which are judicial immunity, judicial independence and judicial accountability.

Judicial independence is provided for under Article 128 (1) and (2) of the Constitution. It provides as follows;

1. In the exercise of judicial power, the courts shall be independent and shall not be subject to control or direction of any person or authority.
2. No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.

Judicial independence entails protecting the judiciary from other arms of government. Its main objective is to avoid undue influence on courts from other branches of government or private or partisan interests.

Judicial immunity is defined by Black’s Law Dictionary 9^th Edn at page 818 as the immunity of a Judge from civil liability arising from the performance of judicial duties.

Judicial immunity seeks to create a safe environment for judicial officers in order to enable them adjudicate over matters with impartiality and without fear or favor. This concept is enshrined in the Constitution under Article 128(4). It provides that;

12 “A person exercising judicial power shall not be liable to any action or suit for any act or omission by that person in the exercise of judicial power”.

The concepts of Judicial independence and judicial immunity aim at ensuring that the Judicial Officers are impartial while adjudicating over matters without fear of being influenced or attacked before, during or after adjudication. This was well laid by Kitumba JSC in the case of Aggrey Bwire Vs Attorney General & Judicial Service Commission, SCCA NO. 8 of 2010 where she stated inter alia that;

“Judicial independence or immunity is not a privilege of the individual Judicial Officer. It is the responsibility imposed on each officer to enable him or her to adjudicate a dispute honestly and impartially on basis of the law and the evidence, without external pressure or influence and without fear of interference from any one. The core of the principle of judicial independence is the complete liberty of the judicial officer to hear and decide cases that come before the courts and no outsider be it government, individual or even another judicial officer should interfere with the way in which an officer conducts and a decision. R vs Beauregard, SC of Canada, (1987) LRC (Constn) 180 at 188 per chief Dickson.”

It follows that the mandate of the judiciary is premised on the principles that every person is entitled to equality, a free and fair trial by a competent, independent and impartial tribunal and that the public confidence is paramount.

Judicial independence and immunity is not a veil or shield for judicial officers from public scrutiny but rather means to an end which is impartial justice. I shall now discuss judicial accountability.

It is defined in the Law reform Commission of Western Australia Against The Judiciary, Discussion Paper of September 2012 as judges being answerable for their actions and decisions to thecommunity to whom they owe their allegiance. The concept of judicial accountability is enshrined in our Constitution under various provisions.

Article 2 of the Constitution provides that all power is derived from the people of Uganda.

Article 126 further provides that;

Judicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with law and with the values, norms and aspirations of the people. Emphasis mine.

Objective XXVI of the National Objectives and Directives Principles of State Policy of the 1995 Constitution of Uganda stated as follows:

1. All public offices shall be held in trust for the people.
2. All persons in positions of leadership and responsibility shall in

their work be answerable to the people.

iii All lawful measures shall be taken to expose, combat and 24 eradicate corruption and abuse of powers or misuse of power by those holding political and other public offices.

Article 149 of the Constitution provides for the judicial oath of office as one of the avenues to ensure that judicial officers are held liable for their decisions and actions. It reads as follows;

Every Judicial Officer shall, before assuming the duties of his or her office take and subscribe the oath of allegiance and the judicial oath specified in the Fourth Schedule to this Constitution.

The oath reads as follows;

“I ............................................................... , swear in the name of the

Almighty God/solemnly affirm that I will well and truly exercise the judicial functions entrusted to me and will do right to all manner of people in accordance with the Constitution of the Republic of Uganda as by law established and in accordance with the laws and usage of the Republic of Uganda without fear or favor, affection or ill will: (So help me God)”

 

When a Judicial Officer subscribes to the Oath of Office under the Constitution, he is subjected to codes and rules which echo the spirit of the Oath.

Rule 1.2 of the Judicial Code of Conduct provides that a Judge shall at all times behave in a manner that promotes public confidence in the independence, integrity and impartiality of the Judiciary and shall avoid impropriety and the appearance of impropriety.

Public confidence in the judiciary is eroded by improper conduct. Such conduct compromises the independence, integrity and impartiality of the Judiciary.

Further in ensuring Judicial Accountability, the framers of the Constitution established the JSC under Article 146.

Its functions are provided for under Article 147 which provides as follows;

The functions of the Judicial Service Commission are—

1. to advise the President in the exercise of the President’s power to appoint persons to hold or act in any office specified in clause (3) of this article, which includes power to confirm appointments, to exercise disciplinary control over such persons and to advise remove them from office;
2. subject to the provisions of this Constitution, to review and make recommendations on the terms and conditions of service of judges and other judicial officers and staff of the judiciary appointed in accordance with article 148A of this Constitution;
3. to prepare and implement programmes for the education of, and for the dissemination of information to judicial officers and the public about law and the administration of justice;
4. to receive and process people’s recommendations and complaints concerning the Judiciary and the administration of justice and, generally, to act as a link between the people and the judiciary;
5. to advise the Government on improving the administration of justice; and
6. any other function prescribed by this Constitution or by Parliament. {Emphasis mine}

The Judicial Service Commission is the link between the Judiciary and the people. It is the only avenue through which Judicial Officers are held accountable to the persons who trusted them with office.

Regulation 23 of the Judicial Service Commission Regulations, 2005 creates offences against discipline for which JSC may exercise jurisdiction. It provides that;

A Judicial Officer omits against discipline if he or she does all or any of the following:

1. Conducts himself or herself in any manner prejudicial to the good image, honor ,dignity and reputation of the service;
2. Practices favoritism, nepotism or corruption whether for personal advantage or gain or that of any other purpose;
3. Practices discrimination whether on basis of sex, race, ethnic origin, tribe, birth, creed or religion , social or economic standing, political opinion or disability;
4. Is a habitual late comer or absente or absconds from duty without reasonable excuse;
5. Is insubordinate, rude, abusive and disrespectful or uses vulgar language.
6. Is untrustworthy or lacks integrity in public or private transaction
7. Engages in private interests at the expense of his or her official duties;
8. Divulges official information to unauthorized persons.
9. Acts in contravention of the code of judicial conduct , the judicial oath or any other taken by the judicial officer;

j) Is convicted of a criminal offence by a court of law;

k) Disregards the chain of command in his or her place of employment without reasonable excuse;

1) Abuses judicial authority; or

 (n) In any way contravenes any provisions of the law, Uganda Standing Orders or any other instructions relating to the discipline of the judicial officers.

The provisions of the Constitution that are subject to this appeal are Articles 2, 20, 28, 42, 44, 128(4) and 173 of the Constitution. For purposes of clarity, I shall reproduce them as they are laid in the constitution as follows;

Article 2 provides that;

1. This Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda.
2. If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void.

Article 20 provides;

(i) Fundamental rights and freedoms of the individual are inherent and not granted by the State.

 (2) The rights and freedoms of the individual and groups enshrined in this Chapter shall be respected, upheld and promoted by all organs and agencies of Government and by all persons.

Article 28 provides as follows;

 (i) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.

1. Nothing in clause (1) of this article shall prevent the court or tribunal from excluding the press or the public from all or any proceedings before it for reasons of morality, public order or national security, as may be necessary in a free and democratic society.
2. Every person who is charged with a criminal offence shall—

 

1. be presumed to be innocent until proved guilty or until that person has pleaded guilty;
2. be informed immediately, in a language that the person understands, of the nature of the offence;
3. be given adequate time and facilities for the preparation of his or her defence;
4. be permitted to appear before the court in person or, at that person’s own expense, by a lawyer of his or her choice;
5. in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State;
6. be afforded, without payment by that person, the assistance of an interpreter if that person cannot understand the language used at the trial;
7. be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.
8. Nothing done under the authority of any law shall be held to be inconsistent with—

                    (a) clause (3)(a) of this article, to the extent that the law in question imposes upon any person charged with a criminal offence, the burden of proving particular facts;

1. clause (3)(g) of this article, to the extent that the law imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused are to be paid their expenses out of public funds.

1. Except with his or her consent, the trial of any person shall not take place in the absence of that person unless the person so conducts himself or herself as to render the continuance of the proceedings in the presence of that person impracticable and the court makes an order for the person to be removed and the trial to proceed in the absence of that person.
2. A person tried for any criminal offence, or any person authorised by him or her, shall, after the judgment in respect of that offence, be entitled to a copy of the proceedings upon payment of a fee prescribed by law.

 

1. No person shall be charged with or convicted of a criminal offence 6 which is founded on an act or omission that did not at the time it took place constitute a criminal offence.
2. No penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that could have been imposed for that offence at the time when it was  committed.
3. A person who shows that he or she has been tried by a competent court for a criminal offence and convicted or acquitted of that offence shall not again be tried for the offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, except upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
4. No person shall be tried for a criminal offence if the person shows that he or she has been pardoned in respect of that offence.
5. Where a person is being tried for a criminal offence, neither that person nor the spouse of that person shall be compelled to give evidence against that person.
6. Except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law.

Article 42 provides that;

Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.

Article 44 provides that;

Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms—

1. freedom from torture and cruel, inhuman or degrading treatment or punishment;

              (b) freedom from slavery or servitude;

1. the right to fair hearing;

                  (d) the right to an order of habeas corpus.

Article 128(4) provides as follows;

A person exercising judicial power shall not be liable to any action or suit for any act or omission by that person in the exercise of judicial power.

Article 173 provides that;

A public officer shall not be—

1. victimized or discriminated against for having performed his or her duties faithfully in accordance with this Constitution; or
2. dismissed or removed from office or reduced in rank or otherwise punished without just cause.

The argument by the appellant is that disciplinary proceedings against a Judicial Officer who did a judicial act contravened certain provisions of the Constitution. It is prudent to first lay out the procedure of handling complaints by the JSC.

The procedure is laid down in R.10 of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations as follows;

1. 1. The respondent shall be served the copy of the complaint and shall be required to file a reply within fourteen days from the date of service.

1. Where after considering the complaint, the Commission decides that a prima facie case has been established, it shall fix a date for

                 the hearing of the complaint.

1. The Secretary shall fix a date for the hearing notice on each party to the proceedings together with a copy of the complaint and the hearing notice shall be in the form set out in the schedule.

4. Personal service shall be effected by tendering a copy of the complaint to the party in person, and where personal service cannot be rendered, service shall be by registered post, substituted service or any other mode the Commission may prescribe.

5. A period of fourteen days shall lapse between the service of the notice and the day set out for hearing of the complaint.

1. A hearing notice shall be in the form set out in the Schedule and shall require the persons to whom it is addressed to furnish the secretary with one copy of each of the documents that he or she wishes to produce at the hearing at least ten days before the date fixed for hearing.
2. If any of the parties to the proceedings fails to appear on the hearing day, the Commission may upon proof of service of the hearing notice proceed to hear and determine the complaint.
3. Where the complaint has been determined by the Commission in the absence of either party to the proceedings, the party or both parties who failed to appear may apply to the Commission for the re-hearing of the complaint.
4. If the Commission is satisfied that the hearing notice was not duly served or that the party who failed to appear at the hearing was prevented from appearing a reasonable cause, for any order for the re- hearing of the complaint.
5. The application for hearing referred to in sub regulation (8) shall be made within fourteen days from the date of the decision of the commission but the Commission may extend the period for good cause.
6. The Commission may accept evidence by affidavit at a hearing, if it considers that the respondent shall not be prejudiced by the absence from the hearing, if it considers that the respondent shall not be prejudiced by the absence from the hearing of the person who has given evidence by affidavit.
7. The Commission may request any person other than the parties or their witnesses to attend before it and give evidence that may be of assistance to the Commission while considering a complaint.
8. Where the Commission has accepted evidence by affidavit, it may, if it is satisfied that it is in the interest of the respondent, require the person making the affidavit to appear before the Commission for cross-examination at such place and time as the Commission may direct.

14. A hearing of a complaint by the Commission and the pronouncement of the decision shall be in camera unless otherwise decided by the commission or due to public interest.

1. The Commission may pronounce its decision immediately after the conclusion of the hearing of the complaint or may reserve is decision to a specific date.
2. Where the decision of the Commission is reserved, the secretary shall communicate to the parties of the proceedings a notice of the date on which the decision of the commission is to be pronounced.

1 7. The decision of the commission shall be in writing.

18. The secretary may in addition, cause notification of a final order to be published in at least one of the local newspapers circulating in Uganda, or announce it on a radio of is choice.

19. The Commission may send copies of its decision;

1. to persons, organizations or institutions having interest in the proceedings;
2. to the Judiciary;
3. to a department or tribunal; or
4. upon   request to any member of the legal profession or any legal institution on payment of a fee prescribed by the commission.

From the fore going, the procedure adopted by the Judicial Service Commission in the impugned disciplinary proceedings is in line with all the constitutional principles of equality and fairness and therefore not inconsistent with Articles 20, 28 and 44 of the Constitution.

The powers of the Judiciary and that of the Judicial Service Commission as provided above are all created by the Constitution. 42 The two Institutions are in effect branches from the same tree. Applying the principle of harmony the two Articles are expected to support rather than contradict each other. Both Articles were intended for Judicial accountability. Thus once a Judicial Officer is called upon to account for a cause of conduct, he or she has to comply.

In my opinion the disciplinary proceedings does not amount to a suit or action as described in Article 128(4). Judicial immunity only precludes a Judicial Officer from suits in Courts of law by aggrieved litigants but does not apply to disciplinary action. I accordingly find that Article 128 does not contradict Article 147.

For the above reasons, this appeal is allowed in terms proposed by my learned sister Justice, Hon. Prof. Lillian Tibatemwa, JSC .

Dated at Kampala this 11^th day of July 2018

JUSTICE OPIO-AWERI

JUSTICE OF THE SUPREME COURT.

 

THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: TUMWESIGYE; KISAAKYE; ARACH-AMOKO; NSHIMYE; MWANGUSYA; OPIO-AWERI; & TIBATEMWA-EKIRIKUBINZA, JJ.S.C.]

CONSTITUTIONAL APPEAL NO. 02 OF 2016

BETWEEN

THE ATTORNEY GENERAL:::::::::::::::::::] APPELLANT

AND

GLADYS NAKIBUULE KISEKKA ::::::::::] RESPONDENT

[Appeal from the Judgment of Justices of the Constitutional Court (Kavuma, Ag. DCJ, Kasule, Mwondha, Bossa & Kakuru, JJA/JJC dated 22^nd October 2014 in Constitutional Petition No. 55 of 2013]

JUDGMENT OF DR. KISAAKYE, JSC (DISSENTING)

The Attorney General of Uganda filed this appeal against the Judgment of the Constitutional Court.  The Court had declared as unconstitutional, the acts/conduct of the Judicial Service Commission of lifting judicial immunity and preferring charges for recalling a warrant of attachment against a Judicial Officer, Gladys Nakibuule, (hereinafter referred to as the respondent).

I have had the benefit of reading in draft the lead Judgment of my learned sister Tibatemwa-Ekirikubinza, JSC wherein she holds that this appeal should be allowed on ground that the Judicial Service Commission (hereinafter referred to as the Commission) had power to commence disciplinary proceedings against the respondent.

Other members on the Coram agree with her lead Judgment.

With all due respect to my learned colleagues, I am unable to concur with them.  On the contrary, I find that the acts of the Commission of lifting the respondent’s immunity and preferring charges against her for a judicial act of recalling a warrant of attachment and sale contravened Article 128 (4) of the Constitution.

Before considering the submissions and merits of this appeal, it is necessary to provide a brief background to this appeal.  On 29^th May 2009, the respondent, who was working as Deputy Registrar of the Commercial Division of the High Court, issued a warrant of attachment and sale in H.C.C.S No. 2006 of 2008: Asiimwe Diana Jackline v. Dr. Aggrey Kiyingi.

On 27^th August 2009, the respondent received a complaint from the law firm of MMAKS Advocates that some of the plots of land that she had included in the warrant of attachment belonged to their client and not to the judgment debtor.  On the same day, the respondent recalled the warrant by letter as follows:

“MMAKS Advocates

Masembe, Makubuya, Adriko

Karugaba, Ssekatawa.

KAMPALA

 

RE: KAMPALA HIGH COURT CIVIL SUIT NO. 266 OF 2008 ASIIMWE DIANA JACKLINE VS. AGGREY KIYINGI.

1. LRV 3931 FOLIO 24 PLOT 33 KYADONDO BLOCK 273 AT BUZIGA REG. PROP: AGGREY KIYINGI.
2. LRV 3931 FOLIO 24 PLOT 33 KYADONDO BLOCK 273 AT BUZIGA REG. PROP: AGGREY KIYINGI.

I refer to yours ref: 3948/VMS/908/2006 dated 27^th August 2009.

I have noted the contents of your letter and to avoid unnecessary objector proceedings, given the developments, the Warrant of attachment and sale of the above property registered on the 25^th June 2009 under instrument Nos. 414920 and 414921 is hereby recalled.

………………………………….

Gladys Nakibuule Kisekka

DEPUTY REGISTRAR”

She copied the letter of recall to the Commissioner Land Registration; Makeera & Co. Advocates, and Quickway Auctioneers & Court Bailiffs.

On 31^st May 2013, (after 3 years and 9 months), the judgment creditor filed a complaint against the respondent with the Commission.  The complaint was in respect of the respondent’s decision to recall the warrant of attachment and sale.  Upon receipt of the said complaint, the Commission notified the respondent and requested her to make a response, which she did.  After examining the complaint and the response, the Commission determined that a prima facie case had been made against the respondent.  On 13^th September 2013, the Commission charged the respondent with three counts as per the following charge sheet.

CHARGE SHEET

COUNT I

STATEMENT OF OFFENCE

Abusing Judicial Authority contrary to Regulation 23(m) of the Judicial Service Regulations 2005.

PARTICULARS OF OFFENCE.

Gladys Nakibuule Kiseka on the 17^th day of August 2013 while working as a Deputy Registrar in the High Court (Commercial Division) you irregularly recalled an order of attachment and sale of some of Dr. Kiyingi’s properties in HCCS No. 266 of 2008 (Asiimwe Diana Jackline v. Dr. Aggrey Kiyingi) which you issued on 29^th May 2009 which frustrated the execution process.

COUNT II

STATEMENT OF OFFENCE

Abusing Judicial Authority contrary to Regulation 23(m) of the Judicial Service Regulations 2005.

PARTICULARS OF OFFENCE.

Gladys Nakibuule Kiseka on the 17^th day of August 2013 while working as a Deputy Registrar in the High Court (Commercial Division) you acted on a letter from MMAKS Advocates of 27^th August 2009 (a third party) who had written to you to the effect that their client one Mohammed Sekatawa had bought the said properties on 3^rd June 2006 and renewed the lease on 11^th April 2008 which deprived the other party the right to be heard.

COUNT III

STATEMENT OF OFFENCE

Acting in contravention of the Code of Judicial Conduct, the Judicial Oath or any other oath taken by the judicial officer contrary to Regulation 23(j) of the Judicial Service Regulations 2005.

PARTICULARS OF OFFENCE.

Gladys Nakibuule Kiseka on the 17^th day of August 2013 while working as a Deputy Registrar in the High Court (Commercial Division) you irregularly acted on claims of a third party when you investigated the objections contained in the letter instead of a proper application which act fell below the prerequisite to the performance of judicial office contrary to Principle 6.1 of the Uganda Code of Judicial Conduct.

The Commission requested the respondent to take plea on the above charge sheet.  It should be noted that while the charge sheet contains particulars indicating that the respondent recalled the warrant of Attachment on 17^th August 2013, the Record of Appeal bears respondent’s letter of recall which has already been reproduced in this Judgment was actually dated 27^th August 2009.

On 10^th December 2013, the respondent filed Constitutional Petition No. 55 of 2013 under Article 137 of the Constitution.  In her Petition, she alleged, among others, that several acts of the Commission contravened and/or were inconsistent with several cited Articles of the Constitution.  The respondent prayed for eight declarations from the Constitutional Court.  Out of these, only two of the declarations she sought are relevant to this appeal and were framed as follows:

1. The act and/or conduct of the Commission of preferring charges against the petitioner in respect of acts/omissions involving the recall of a warrant, a common judicial practice which by itself does not constitute a criminal/disciplinary offence is inconsistent with and in contravention of Articles 2, 20, 28, 42, and 44 of the Constitution.

 

1. The act and/or conduct of the Commission of lifting the judicial immunity accorded to judicial officers and holding the Petitioner personally liable for judicial acts and/or omissions in the discharge of her judicial work is inconsistent with and in contravention of Articles 2, 20, 28, 42, 44, 128 (4), and 173 of the Constitution.

The respondent also prayed for the following orders from the Constitutional Court.

1. An order to quash and expunge from the public records the charges and Disciplinary Proceedings instituted by the Commission against the Petitioner;

 

1. An order staying the Commission’s interviews and recruitment process of judicial officers where your Petitioner is an eligible candidate until hearing and final determination of the Petition;

 

1. A permanent injunction against the Attorney General, the Commission, its Disciplinary Committee, agents or servants restraining them from continuing with the Disciplinary Proceedings against your Petitioner or at all;

 

1. General damages be ordered to be paid for inconvenience, mental anguish and injury occasioned to your Petitioner;

 

1. Costs of the Petition; and

 

1. Any other or further order as Court may deem fit.

On 22^nd October 2014, the Constitutional Court allowed the Petition and made two declarations as follows:

1. The act and/or conduct of the Commission of preferring charges against the Petitioner in respect of acts/or omissions involving the recall of a warrant, which are judicial acts is inconsistent with and in contravention of Articles 2, 20, 28, 42, and 44 of the Constitution.
2. The act and/or conduct of the Commission of lifting judicial immunity accorded to the Petitioner and holding her personally liable for her judicial act of recalling the warrant in the discharge of her judicial work is inconsistent with and in contravention of Articles 2, 20, 28, 42, 44, 128(4) and 173 of the Constitution.

The Constitutional Court declined to award the respondent damages but awarded her costs of the Petition.

Dissatisfied with the above two declarations made by the Constitutional Court, the Attorney General appealed to this Court on the following grounds:

1. The Justices of the Constitutional Court erred in law and in fact in declaring that the act and/or conduct of the Commission of preferring charges against the petitioner in respect of acts/or omissions involving the recall of a warrant, which are judicial acts, is inconsistent with and in contravention of Articles 2, 20, 28, 42 and 44 of the Constitution of the Republic of Uganda.

 

1. The Justices of the Constitutional Court erred in law and in fact in declaring that the act and/or conduct of the Commission of lifting the judicial immunity accorded to the petitioner and holding her personally liable for her judicial act of recalling the warrant in the discharge of her judicial functions is inconsistent with and in contravention of Articles 2, 20, 28, 42, 44, 128(4) and 173 of the Constitution of the Republic of Uganda.

The Attorney General prayed that the appeal be allowed and the declarations and orders of the Constitutional Court be set aside.  The Attorney General also prayed for costs of the appeal.

Geofrey Madete represented the Attorney General at the hearing of this appeal, while Fred Muwema and Andrew Oluka represented the respondent.  Counsel for both parties filed written submissions.  At the commencement of hearing this appeal, Court consulted both parties as to whether any one of them had any objection to a previous and a current member of the Commission being on the Coram.  Both parties indicated that they had no objection to either of the two members being on the Coram.

In considering this appeal, I will first handle and dispose of ground 2 of appeal.

Parties’ submissions on Ground 2 of Appeal

Submitting on this ground, the Attorney General faulted the Constitutional Court for failing to address itself to the mandate of the Commission as provided for under Article 148 of the Constitution.  As a result, the Attorney General contended, the Constitutional Court reached an erroneous holding that the Commission’s actions were unconstitutional.

Submitting further on this ground, the Attorney General reiterated that the Commission was a constitutional organ, whose functions were clearly provided for under Articles 147 and 148 of the Constitution as well as under section 5 of the Judicial Service Act, Cap 14, Laws of Uganda.  The Attorney General conceded that Article 128 (4) of the Constitution grants immunity to judicial officers from actions or suits while exercising judicial power and that this immunity was essential for the independence of judicial officers.  However, the Attorney General contended that judicial independence also had the potential to conceal possible unethical behavior of Judges and all lower bench Judicial Officers. 

Relying on the Bangalore Principles of Judicial Conduct, the Attorney General contended that it was for this reason that Judicial Officers were expected to follow ethical guidelines in their judicial conduct and behavior.

The Attorney General submitted that in spite of the protection afforded to judicial officers under Article 128(4) of the Constitution, the disciplinary proceedings of the Commission were a special procedure during which immunity could be lifted and the essence of accusations against a Judicial Officer examined by the Commission in line with the provisions of the Constitution.

Specifically citing Article 147 (1) (d) of the Constitution, the Attorney General submitted that the Commission was constitutionally enjoined to receive and process people’s recommendations and complaints. The Attorney General further submitted that the Commission was acting within its mandate, when it received a complaint against the respondent alleging unprofessional conduct in the course of her judicial duties, and when it informed her about the complaint on 25^th June 2013 and requested her to submit a response.

Relying on Regulation 10(2) of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations, S.I. No. 88 of 2005, the Attorney General also contended that the Commission having determined that a prima facie case had been established against the respondent, it accordingly prepared a charge sheet and invited the respondent to appear before the Commission on 3^rd October 2013 for plea taking.

The Attorney General faulted the holding of the Constitutional Court as being contrary to the principle of conclusiveness and exhaustiveness of the Constitution.  The Attorney General contended that the Constitutional Court should have acted in consonance with the constitutional interpretation principles of completeness and exhaustiveness, and should not have read Article 128(4) of the Constitution in isolation of Article 147(d) of the same Constitution.  The Attorney General submitted that if the learned Justices of the Constitutional Court had read Article 128(4) together with Articles 147 (d) and 148 of the Constitution, they would have been alive to the fact that judicial immunity is not absolute. He relied on this Court’s decision in P.K. Ssemogerere & 2 ors v. Attorney General, Constitutional Appeal No. 01 of 2002.

The Attorney General prayed to this Court to allow Ground 2 of appeal.

Respondent’s submissions on Ground 2 of Appeal

Submitting on this ground, counsel for the respondent prayed to this Court to uphold the decision of the Constitutional Court that the Commission’s act and/or conduct amounted to lifting the respondent’s judicial immunity.  Counsel for the respondent submitted that Article 128(2) of the Constitution clearly prohibited any person/authority from interfering with the Courts or Judicial Officers in the exercise of judicial authority. He further submitted that the same Article 128 of the Constitution guaranteed Judicial Officers immunity from any suit or action for anything done while they are exercising judicial power or performing their duties.

Counsel for the respondent contended that judicial immunity was an absolute right enjoyed by judicial officers for anything done, whether wrong or right, spiteful or envious, malicious or done with hatred, provided it was done in the exercise of judicial authority/power.  Counsel for the respondent further submitted that this judicial immunity was firmly anchored in judicial independence. He argued that the only remedy available to a party aggrieved with a decision made by a Judicial Officer was to appeal against such a decision.

Relying on this Court’s decision in Aggrey Bwire vs Attorney General, Supreme Court Civil Appeal No. 08 of 2010, counsel for the respondent submitted that judicial immunity encompasses the liberty of a judicial officer to adjudicate matters without interference from Government, outsiders or the fear of disciplinary proceedings.  Counsel for the respondent further submitted that he was alive to the fact that in Aggrey Bwire (supra), judicial immunity offered by Article 128(4) of the Constitution was lifted because of the numerous complaints that had been lodged against Bwire which included being untrustworthy, lack of integrity, honor, dignity and conducting himself in a manner that was prejudicial to the good image of the judiciary.  Counsel argued that the actions Bwire was accused of were clearly different from the actions leading to charges which had been preferred against the respondent, which related to conduct/acts done in the exercise of her judicial duties.

Counsel cited and relied on, among others, the definitions of judicial power and judicial immunity in Black’s law Dictionary 9^th Ed at pages 924 and 818 respectively and on the dictum of Lord Denning MR in the case of Sirros v. Moore & others [1975] Q.B. 118 to support the respondent’s submissions.

Respondent’s counsel also contended that the conduct/actions of the respondent that the Commission sought to punish were actions done in the exercise of judicial authority and that these actions were shielded by the immunity conferred on the respondent under Article 128(4) of the Constitution. 

Counsel for the respondent submitted that charging the respondent with the offences of Abuse of Judicial Authority and Contravention of the Judicial Code of Conduct for performing her judicial duty was a denial of her right to immunity.  Counsel further contended that the particulars of the charges the Commission had preferred against the respondent revealed that the respondent was acting in her capacity as a Deputy Registrar of the High Court when she recalled the warrant.   

Counsel for the respondent submitted that judicial immunity was among those other rights envisaged under Article 45 of the Constitution.  He also contended that Article 20(2) of the Constitution enjoined all Government organs/agencies to promote this right in a manner similar to those rights under Chapter 4 of the Constitution.

Counsel for the respondent prayed that the Court dismiss this ground of appeal.

Constitutional provisions governing this Appeal

Before I proceed to consider the merits of this appeal, I have found it important to lay out the constitutional provisions at issue in this appeal. 

This Petition was filed under Article 137 (3) of the Constitution.  This article provides in the relevant part as follows:

“A person who alleges that-

(a)     …

(b)     any act or omission by any person or authority,

is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional Court for a declaration to that effect, and for redress where appropriate.”

Furthermore, Article 132(3) of the Constitution mandates this Court to hear appeals from the decision of the Constitutional Court.

Turning to the substantive provisions governing this appeal, it should be noted that the Constitution not only guarantees the independence of the Judiciary as a whole, but also grants immunity to persons exercising judicial authority from actions and/or suits for their acts and omissions committed while they are exercising judicial authority.  These twin protections are firmly entrenched in Articles 128 (2) which provides as follows:

 “No person or authority shall interfere with the Courts or judicial officers in the exercise of their judicial functions.”

Furthermore, Article 128 (4) of the Constitution provides for immunity to judicial officers from actions while exercising judicial power thus follows:

“A person exercising judicial power shall not be liable to any action or suit for any act or omission by that person in the exercise of judicial power.” (underlining mine)

The other constitutional provisions which are central to the disposal of this appeal can be found in the provisions which established the Commission, and lay out its functions and mandate.

Article 146 (1) & (2) of the Constitution establishes the Commission while Article 147 of the Constitution provides for the functions of the Commission.  Article 147 (d) in particular vests in the Commission the responsibility to receive and process people’s recommendations and complaints as follows:

“Receive and process people’s recommendations and complaints concerning the judiciary and the administration of justice and, generally, to act as a link between the people and the judiciary”

Furthermore, Article 148 of the Constitution gives the Commission powers to appoint and exercise disciplinary control over certain categories of judicial officers.  It provides as follows:

“Subject to the provisions of this Constitution, the Judicial Service Commission may appoint persons to hold or act in any judicial office other than the offices specified in Article 147 (3) of this Constitution and confirm appointments in and exercise disciplinary control over persons holding or acting in such offices and remove such persons from office.”

As the above provisions clearly show, the Constitution, on the one hand, grants independence and protection on a person exercising judicial power from ‘any action or suit for any act or omission by that person in the exercise of judicial power’. At the same time, the same Constitution grants the Commission with the power to exercise disciplinary control over judicial officers.  The question that therefore arises is how should these constitutional provisions be interpreted in relation to each other?

Overtime, Courts have developed principles which aid in the interpretation of the provisions of a Constitution.  One of these principles which should guide this Court in consideration of this appeal is the rule of harmony which requires that constitutional provisions should not be looked at in isolation. 

Another principle of constitutional interpretation that is relevant to this appeal requires that where several provisions of the Constitution have a bearing on the same subject, they should be read and considered together so as to bring out the full meaning and effect of their intent.  None can be ignored or preferred over the other.

These principles were expounded on by this Court in Attorney General v. Susan Kigula & 417 others, Constitutional Appeal No. 3 of 2006 as follows:

“The Constitution should be looked at as a whole with no provision destroying another, but provisions sustaining each other.  This has been said to be the rule of harmony or completeness.  It has also been settled by this Court that provisions bearing on a particular issue should be considered together to give effect to the purpose of the Constitution.”

Similarly, in David Tinyefuza v. Attorney General, Constitutional Petition No. 01 of 1996, Manyindo, D.C.J. (as he then was) expounded on these principles as follows:

“The entire Constitution has to be read as an integrated whole, and no one particular provision destroying the other but each sustaining the other.  This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written constitution.”

In Paul Semogerere v. Attorney General, Constitutional Appeal No. 01 of 2002, this Court cited with approval the decision of the US Supreme Court in South Dakota v. North Carolina, 192 US 268 (1940) where the learned Justices held as follows:

 "It is an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from the others and to be considered alone but that all the provisions bearing upon a particular subject are to be brought into view and to be interpreted as to effectuate the great purpose of the instrument."

This appeal requires me to construe various articles of the Constitution with one another before I can confirm or reverse the findings and declarations of the Constitutional Court.  It therefore follows that the principles cited above which have been previously followed by this Court also apply to this appeal.

Court’s consideration of Ground 2 of Appeal

With the above principles in my mind, I shall now proceed to consider ground 2 of appeal.  In my view, a proper construction of Article 128 (4) of the Constitution raises four scenarios regarding judicial immunity.

The first scenario arises in respect of any judicial act or decision done when exercising judicial power.  In this case, such Judicial Officer enjoys absolute judicial immunity from any action or suit and no personal liability can arise.

The second scenario is in respect of any omission made by a Judicial Officer during the exercise of judicial power.  Again, under Article 128(4), a Judicial Officer is also not personally liable for his or her omissions and cannot be sued for such omissions.  An omission is defined in Black’s Law Dictionary, 9^th Ed. at page 1197 as “Something that is left out, left undone or otherwise neglected.”

It therefore follows that the failure, by a Judicial Officer to act as he or she should have acted, is not a ground for holding him or her personally liable, provided the failure to act, however erroneous, was in the course of exercise of judicial power.  The erroneous act or omission may be no more than a legal error or a bona fide error of judgment.  The only time such action or omission can be faulted is in the course of review by another Court.

The third scenario under Article 128 (4) arises where the conduct or omission(s) of a Judicial Officer falls in the category of misconduct, even though it may occur in the course of exercise of judicial power.  Such conduct which, on one hand, may lead to appellate review by a higher Court may also lead to institution of disciplinary proceedings against such a Judicial Officer.  Such conduct or omission, in my view, is not protected by judicial immunity conferred by Article 128(4) of the Constitution.  I find the words of the Michigan Supreme Court In the Matter of Laster, 404 Mich. 449 (1979) 274 N. W. 2d 742 persuasive in this aspect.  It was observed as follows:

        “Judicial conduct creating the need for disciplinary action can grow from the same root as judicial conduct creating potential appellate review, but one does not necessarily exclude the other.  One path seeks to correct past prejudice to a particular party; the other seeks to prevent potential prejudice to future litigants and the judiciary in general.”

However, the Commission should ensure that it is not investigating exercise of judicial power that is a preserve of an appellate Court. 

Lastly, a proper construction of Article 128 (4) clearly shows that conduct which is outside the course of exercise of judicial power is not protected by immunity.  Such conduct or omission includes conduct or omission that is contrary to the law or the terms and conditions of service for Judicial Officers such as reporting to work late or drunk, failure to write judgments, incompetence, among others.

In the first two instances I discussed, the immunity accorded to a Judicial Officer is absolute, whereas in the third category there is partial immunity, which can be lifted, provided the conduct complained of supports a charge of misconduct.  In the fourth and last instance, it is clear that no immunity is available to the Judicial Officer.

In all these four instances described above, it is very important and necessary for the Commission to distinguish between the judicial decision itself and the conduct complained of, which supports a charge of misconduct. 

The constitutional provisions on judicial immunity notwithstanding, it is also clear that the Constitution recognized that there was need for people to participate in the administration of Justice.  The framers of our Constitution envisaged that the participation of people would include citizens making recommendations as well as complaints against the judiciary and the administration of justice. 

Furthermore, although the same Constitution recognized the need to confer immunity to judicial officers while exercising judicial power, it also created a mechanism for dealing with judicial officers who were either incompetent or those who misconduct themselves while exercising their judicial functions. 

The Constitution specifically entrusted the Commission to receive complaints (under Article 147 (1) (d) of the Constitution) and to exercise disciplinary control over those judicial officers below the rank of Registrar (under Article 148 of the Constitution), if the situation so warranted.  It is thus clear that under Article 147 of the Constitution the Commission is given power to receive complaints and investigate them.  Implied under this Article is also the power of the Commission to dismiss the complaint when the Commission has found no merit in it or when it falls outside the mandate of the Commission. 

The power vested in the Commission to exercise disciplinary control over certain categories of Judicial Officers is directly provided for under Article 148 of the Constitution.  The question that needs to be resolved in this appeal is when is the Commission permitted to institute disciplinary proceedings under Article 148 of the Constitution which would not contravene Article 128 (2) & (4) of the Constitution?

The answer to the above question lies in both Articles 148 and 128(4) of the Constitution.  Article 148 which empowers the Commission to exercise disciplinary control over judicial officers below the rank of Registrar starts with the proviso ‘subject to the provisions of this Constitution.’  The significance of this proviso is that the Commission should exercise its power under Article 148 of the Constitution in such a way that it does not contravene other provisions of the Constitution.  One such provision of the Constitution is Article 128(4) which I have already analyzed.

A proper construction of Article 128 (4) of the Constitution clearly shows that the Constitution prohibited any action or suit against any Judicial Officer for their judicial acts or bona fide omissions made when exercising judicial power.  The language of the Constitution is unequivocal in this aspect: once a Judicial Officer is exercising judicial power, no one, be it the Commission, a Government department or an individual is allowed to institute any action or suit against that Judicial Officer arising from his or her exercise of judicial power to perform a judicial act.

The Commission would be contravening Article 128(4) if it initiates any disciplinary proceedings against a Judicial Officer based on: (a) a complaint on a judicial act or (b) a Judicial Officer’s judicial actions or bona fide omissions made during the exercise of a judicial power.

On the other hand, it is also clear that as long as the Commission is not investigating exercise of judicial power or a bona fide error or omission committed in the exercise of judicial power, the Commission will not be acting contrary to the provisions of the Constitution for it to open and conduct disciplinary proceedings against a judicial officer for inability to perform the functions of his or her office, misbehaviour/misconduct or incompetency.

It also follows that any proceedings that the Commission may bring against a Judicial Officer over whom it has a disciplinary mandate, which are based on a complaint not involving acts or omissions arising out of exercise of judicial power are permissible under Article 148 of the Constitution and would not contravene or be inconsistent with Article 128(4) of the Constitution.

I note that whereas the learned Justices of the Constitutional Court correctly held that the lifting of the respondent’s judicial immunity contravened Article 128 (4) of the Constitution, they failed, in my view, to elucidate on the powers of the Commission regarding its mandate to exercise disciplinary control over certain judicial officers.  This could have gone a long way in addressing some of the issues raised by the Attorney General in this appeal.

As I observed earlier, the Constitution envisages the Commission to exercise disciplinary control over Judicial Officers for complaints based on either inability to perform the functions of the judicial office or misconduct by a judicial officer.  Indeed for the higher bench, the Constitution provides in Article 144 (2) of the Constitution as follows:

“A judicial officer may be removed from office only for-

(a)      inability to perform the functions of his or her office arising from infirmity of body or mind;

(b)      misbehaviour or misconduct; or

(c)      incompetence,

but only in accordance with the provisions of this article.

Although the Constitution does not have a similar provision for other Judicial Officers who are appointed by the Commission, it cannot be that such grounds as are mentioned in Article 144(2) would only be applicable to Judicial Officers sitting on the higher bench, but would not apply for those Judicial Officers sitting on the lower bench, such as the respondent in this appeal.

Note should be made of the fact that while inability to perform the functions of a judicial office, either from infirmity of mind or body would not be as difficult to prove, the Commission needs to take caution when it is proceeding on complaints based on alleged misconduct of a Judicial Officer in the course of exercise of judicial power.  This is so because the line between judicial error and judicial misconduct is not always clearly drawn out. This may be more evident when a Judicial Officer has been charged with the offence of abuse of judicial authority.  This point has been underscored in several persuasive authorities such as R. R. Parekh v. High Court of Gujrat & anor, Civil Appeal Nos. 6116-6117 of 2016 where the Supreme Court of India held as follows:

 “A charge of misconduct against a judicial officer must be distinguished from a purely erroneous decision whether on law or on fact. The legality of a judicial determination is subject to such remedies as are provided in law for testing the correctness of the determination. It is not the correctness of the verdict but the conduct of the officer which is in question. The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power.

Similarly, in Re Hon. Lisa O. Gorcyca, MSC Petition No. 152831 of 2017, the Supreme Court of Michigan rightly observed that:

“Distinguishing judicial misconduct from legal error is not a simple endeavour.”

Where the act or omission which supports the charge of misconduct is outrightly outside the exercise of judicial power, the Commission will not find it hard to proceed to investigate and prefer charges if the investigation warrants it.  Regulation 23 of the Judicial Service Regulations, 2005 S.I. 87 of 2005 is quite insightful in this aspect.  It lists instances where a judicial officer’s act or omission may lead to outright disciplinary action.  These include practicing favoritism, nepotism, discrimination, corruption, habitual late coming, absconding from duty without reasonable excuse and insubordination.

However, while I appreciate that judicial conduct warranting disciplinary action may also emanate from the judicial decision making process, we should not lose site of the danger of subjecting such judicial errors of law before the Commission for purposes of determining whether misconduct existed.  In my view, such action would inevitably lead to erosion of judicial independence of Judicial Officers in the course of making judicial decisions.  Consequently, Judicial Officers will start treading carefully so as not to attract the wrath of the Commission’s Disciplinary Committee. 

The initiation of such proceedings is likely to shake the confidence of such a Judicial Officer acting bona fide and may also affect his or her independence. I find the words of the Alaska Supreme Court In re Curda, 49 P. 3d 255, 261 appropriate in this instance.  It was stated therein as follows:

“All Judges make legal errors.  Sometimes this is because legal principles are unclear.  Other times the principles are clear, but whether they apply to a particular situation may not be.  Whether a Judge has made a legal error is frequently a question on which disinterested, legally trained people can reasonably disagree.  And whether legal error has been committed is always a question that is determined after the fact, free from the exigencies present when the particular decision in question was made.

Further, Judges must be able to rule in accordance with the law which they believe applies to the case before them, free from extraneous considerations of punishment or reward. This is the central value of judicial independence. That value is threatened when a judge confronted with a choice of how to rule-and judges are confronted with scores of such choices every day-must ask not "which is the best choice under the law as I understand it," but "which is the choice least likely to result in judicial discipline?"

Having stated as above, the Court concluded that ‘legal error that is neither willful nor part of a repeated pattern of misconduct is not an appropriate subject of discipline.’

There is therefore need for extreme care and caution before initiation of disciplinary proceedings against a Judicial Officer for purposes of determining whether or not there was misconduct in a legal error arising out of exercising of judicial power.

Having laid out and analyzed the constitutional framework underlying this appeal, I will now proceed to consider the merits of ground 2 of appeal.

I have already highlighted the provisions of Articles 128 (2) & (4), 147 (d) and 148 of the Constitution and the relevant principles of constitutional interpretation.  I had also earlier on in my analysis of Article 128 (4) stated that a judicial officer has absolute immunity with respect to any judicial act/decision and/or a bona fide omission arising out of the exercise of judicial power.

The pertinent question to therefore ask at this stage is whether the respondent, in recalling a warrant of attachment and sale was exercising judicial power and performing a judicial act.  The learned Justices of the Constitutional Court answered this question in the affirmative.

Black’s Law Dictionary, 9^th Ed at page 28 defines a judicial act as ‘an act involving the exercise of judicial power.’ 

Judicial power on the other hand, is defined by the same dictionary at page 924 as follows:

“the authority vested in courts and judges to hear and decide cases and to make binding judgments on them; the power to construe and apply the law when controversies arise over what has been done or not done under it.”

In this particular case, the respondent’s judicial power to make orders for attachment is provided for in Order 50 Rule 4 of the Civil Procedure Rules as follows:

“Formal orders for attachment and sale of property and for the issue of notices to show cause on applications for arrest and imprisonment in execution of a decree of the High Court may be made by the registrar.”

Although Order 50 Rule 4 only provides for power to issue formal orders, I note that a Judicial Officer exercising powers to issue warrants is vested with other judicial powers provided for under section 98 of the Civil Procedure Act, Cap 71, Laws of Uganda.  This section provides for the inherent powers of the Court as follows:

“Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

Thus, if in the respondent’s view, the recall of the warrant of attachment and sale was necessary, section 98 above gave her that mandate. 

The Constitutional Court found that the respondent’s acts were judicial acts and held as follows:

 “The Petitioner carried out a judicial act of recalling the warrant of attachment…After carefully examining the circumstances under which the Petitioner exercised her discretion to recall the warrant, we consider that her being charged with disciplinary offences in the circumstances went against the spirit and letter of the Constitution, particularly Articles … 128(4) of the Constitution…It is important to note that the words used in the article are ‘any act or omission’.  No distinction is made between administrative and non-administrative actions.  Therefore holding the Petitioner personally liable for the judicial act of recall of a warrant of attachment contravened the above Article.”

It should be noted that the Constitution did not make a distinction between administrative and non-administrative decisions.  The respondent still enjoyed the immunity granted to her by Article 128(4) of the Constitution.

From the above holding of the Constitutional Court, it is also evident that the Constitutional Court found that (a) the respondent was exercising judicial power, (b) that the act of recalling a warrant of attachment was a judicial act, (c) that she was therefore entitled to the protection accorded to judicial officers under Article 128 (4) of the Constitution.

Whether or not the respondent followed the proper procedure in recalling the warrant is a different matter.  What is important is that she exercised judicial power to do so.  I therefore agree with the learned Justices of the Constitutional Court that the respondent’s recall of a warrant amounted to a judicial act.  In the circumstances the provisions of Article 128 (4) would be applicable to the respondent. 

I further note that Black’s Law Dictionary 9^th Edn at page 818 defines judicial immunity as follows:

“The immunity of a judge from civil liability arising from the performance of judicial duties.”

In Sirros v. Moore, [1974] 3 All ER 776, 781-782, Lord Denning expounded on the meaning of immunity as follows:

“…it has been accepted in our law that no action is maintainable against a Judge for anything said or done by him in the exercise of a jurisdiction which belongs to him.  The words which he speaks are protected by an absolute privilege.  The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him.  No matter that the Judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.  The remedy of the party aggrieved is to appeal to a court or appeal or to apply for harbeas corpus, or a writ of error or certiorari, or take some such step to reverse his ruling.  Of course, if the Judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts.  That apart, however, a judge is not liable to an action for damages.  The reason is not because the judge has any privilege to make mistakes or to do wrong.  It is so that he should be able to do his duty with complete independence and free from fear.”

I note that the Constitution does not define what amounts to a suit or action under Article 128 (4) of the Constitution.  I also note that the majority have found that disciplinary proceedings do not fit within an ‘action or suit’ envisaged under Article 128 (4) of the Constitution.

The question that I need to resolve is whether disciplinary proceedings by the Commission arising out of a complaint against a Judicial Officer in the course of exercising judicial power can amount to an ‘action or suit’ as envisaged under Article 128(4) of the Constitution. 

Black’s Law Dictionary 9^th Edn. at page 32 defines one of the meanings of the word ‘action’ as follows:

“...4. A civil or criminal judicial proceeding- Also termed action at law.

Black’s Law Dictionary then cites with approval Estee’s Pleadings, Practice, and Forms to expound on this definition as follows: 

‘An action has been defined to be an ordinary proceeding in a Court of Justice, by which one party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.  But in some sense this definition is equally applicable to special proceedings.  More accurately, it is defined to be any judicial proceedings, which, if conducted to a determination, will result in a Judgment or decree.  The action is said to terminate at Judgment.” Emphasis mine.

It is also important to note that Black’s Law Dictionary (supra) at page 531 defines ‘Disciplinary Proceedings’ as follows:

“An action brought to reprimand, suspend, or expel a licensed professional or other person from a profession or other group because of unprofessional, unethical, improper, or illegal conduct.” Emphasis Mine

In Australia Apple & Pear Marketing Board v. Tonking (1942) 66 CLR 77 at page 83, cited in Words & Phrases Legally Defined Vol 2: D-J at page 496, which I find persuasive, it was held that:

“The term ‘judicial’ does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by a competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others.”

On the other hand, the term suit is defined by the same dictionary at page 1572 as follows:

“Any proceedings by a party or parties against another in a court of law.”

I also wish to state that in determining whether proceedings before the Disciplinary Committee of the Commission amount to an action, the basis of such determination should not only be on the statutory character of the Disciplinary Committee.  Rather the character of the functions of conducting a hearing and proceedings before it should also be considered.

In light of the persuasive authorities above, it is my view that proceedings before the Commission’s Disciplinary Committee have all the features/hallmarks of an action envisaged before a judicial body, namely: a complaint culminating into a charge (evidenced by a charge sheet) against a Judicial Officer (the respondent) and a prosecutor to prosecute the charges against a Judicial Officer.  All this adjudication takes place before a body empowered to determine such matters-the Disciplinary Committee and eventually, the Commission itself.  Furthermore in the process of conducting the hearings up to making a finding, the Disciplinary Committee has all the powers of a quasi judicial body which are similar to those of a Court.

Black’s Law Dictionary (supra) at page 1364 defines the term ‘quasi-judicial’ as follows:

“Of, relating to, or involving an executive or administrative official’s adjudicative acts.  Quasi-judicial acts, which are valid if there is no abuse of discretion, often determine the fundamental rights of citizens.  They are subject to review by Courts.”

Black’s Law Dictionary then cites with approval A Text of Jurisprudence 4^th Edn to expound on this definition as follows:   

‘Quasi-judicial is a term that is…not easily definable.  In the United States, the phrase covers judicial decisions taken by an administrative agency-the test is the nature of the tribunal rather than what it is doing.  In England quasi-judicial belongs to the administrative category and is used to cover situations where the administrator is bound by the law to observe certain forms and possibly hold a public hearing but where he is a free agent in reaching the final decision.  If the rules are broken, the determination may be set aside, ...”

The Citizens’ Handbook which was compiled by the Commission is also quite insightful on what quasi-judicial bodies are.  At page 11 of ‘A Citizen’s Hand Book on Law & Administration of Justice in Uganda’, 3^rd Edn. (A publication of the JSC), it is stated as follows:

“Quasi-judicial bodies are administrative or official bodies or persons that have powers to make judicial decisions that affect the rights of others.  For instance, disciplinary committees, such as that of the Law Council, the Police Disciplinary Committee, the Public Service Commission, Judicial Service Commission, and the Medical & Dental Practitioners Board have quasi-judicial powers.” Emphasis mine.

Because the disciplinary Committee of the Commission is a quasi-judicial body having and exercising quasi judicial powers, I find that the charges (based on a complaint the Commission receives) against a party before the disciplinary committee and the proceedings that follow qualify as actions envisaged under Article 128 (4) of the Constitution. 

I also wish to note that the Attorney General in his submissions also acknowledges that the Commission’s disciplinary proceedings are ‘a special procedure.’  As I stated earlier, this special procedure falls under the definition of ‘action’ as expounded in Black’s Law Dictionary.

In light of my analysis above I find that in making a determination, the disciplinary committee of the Commission is exercising a quasi-judicial function.  It therefore follows that the procedure before the Disciplinary Committee is a quasi judicial process.  This inevitably leads me to the conclusion that the Disciplinary Committee has all the hallmarks of a quasi-judicial body.

It is therefore correct to argue that Disciplinary Proceedings before the Commission amount to an action envisaged under Article 128(4) of our Constitution.  As such, it follows that the action which has the effect of reviewing legal errors for purposes of finding misconduct fall within actions that are prohibited under Article 128 (4) of the Constitution.

I therefore respectfully disagree from the finding of the majority that disciplinary proceedings do not amount to an action envisaged under Article 128(4) of the Constitution.

As I noted earlier, the Commission charged the respondent on the basis of a complaint which was lodged by Asiimwe Diana Jackline.  Ms. Asiimwe alleged that the respondent fraudulently frustrated her execution process by irregularly recalling a warrant of attachment and sale of property.  According to the complainant, the irregularity was manifested by among others (i) recalling a warrant of attachment and sale of some properties of the judgment debtor by letter and not another Court Order, (ii) failure to give the complainant or her lawyers a hearing on grounds that she was avoiding unnecessary objector proceedings, which the complainant would have preferred.

In my view, a review of the charge sheet would also go a long way in helping this Court to determine whether or not the Commission’s preference of charges against the respondent in the circumstances lifted the respondent’s judicial immunity.

Under count 1 of the charge, the particulars of the charge of Abuse of Judicial authority was that the respondent irregularly recalled an order of attachment and sale of property which frustrated the execution process.  I note that the Commission did not specify the respondent’s acts or omissions which constituted the ‘irregular recall’ to support the charge of misconduct.  In the absence of the acts or omission that would constitute an irregular recall that could warrant a charge of misconduct, the Commission, in my view, was doing what an appellate Court was supposed to do-that is, examine whether the recall was proper or not. 

With regard to count 2 which still related to the charge of abuse of judicial authority, the particulars of the charge are that the respondent acted on a letter from a third party to recall the warrant without according the complainant the right to be heard.  Just like in the preceding count 1, the Commission did not specify in the particulars of the charge how the respondent’s reliance on a letter to recall a warrant amounted to misconduct warranting disciplinary action.

In my view, the particulars as they stand show that the Commission was reviewing the legal process taken by the respondent to recall the warrant.  This review process fell under the docket of an appellate Court and not the Commission.

Lastly under count 3, the respondent was faulted for ‘irregularly acting on claims of a third party’ to investigate an objection contained in a letter instead of a proper application.  Just like in count 1, the Commission did not specify the respondent’s acts or omissions that constituted ‘irregularly acting’ on the claims of a third party that would warrant a charge of misconduct.  In the absence of these acts and/or omissions, the proper entity to do this review process was an appellate Court.

Before I take leave of count 3, I note that the Commission was faulting the respondent for recalling a warrant of attachment administratively.  Even if it is argued that the recall was an administrative process, it was still a judicial decision since it involved exercise of judicial power.  My view is fortified by interpretation of the term ‘judicial duties’ in ‘Words and Phrases Judicially Defines (I-N) vol 3 at page 181 which defines the term as follows:

“The word ‘judicial’ has two meanings.  It may refer to the discharge of duties exercisable by a judge or justices in Court, or to administrative duties which need not be performed in Court, but in respect of which it is necessary to bring to bear a judicial mind-that is, a mind to determine what is fair and just in respect of the matters under consideration.”

I also note that under the above 3 counts, the Commission acknowledged that the respondent acted in the course of working as a ‘Deputy Registrar in the High Court (Commercial Division)’.  It can therefore be argued that that the Commission preferred charges of misconduct against the respondent which were in respect of her exercise of judicial power to recall a warrant of attachment and sale of property. 

A further review of the charge sheet clearly shows that the Commission did not distinguish between the judicial act and the non judicial acts that constituted a disciplinary offence.  As I held earlier, clearly, the preferring of charges in respect of the judicial act for the recall of a warrant was unconstitutional. 

Thus, from the way all the 3 counts were framed, the Commission was set to review the process of recall of a warrant (a judicial act) by the respondent, which review amounted to a judicial process that was a preserve of a higher Court. 

Furthermore, the respondent’s acts being judicial acts, they fell squarely under my first interpretation of Article 128 (4) of the Constitution.  The question whether the recall was right or wrong could not and cannot be answered by the Commission, through its exercise of its disciplinary control over the respondent.  This is because the Commission did not have the mandate to question a judicial act carried out by the respondent.  In the circumstances, it is my finding that by preferring charges against the respondent, the Commission lifted the respondent’s judicial immunity.  Furthermore, I also find that the lifting of the respondent’s judicial immunity was inconsistent with Article 128 (2) & (4) of the Constitution.

In conclusion on this ground, I have found that: (a) the charges preferred against the respondent emanated from her recall of a warrant of attachment and sale of property, (b) the respondent’s actions of recall of a warrant amounted to a judicial act, (c) the respondent carried out this judicial act in the course of exercising her judicial power, and (d) the charge sheet did not show the irregular conduct that amounted to misconduct. 

In light of the provisions of Article 128(4) of the Constitution already cited and discussed in this Judgment, the respondent was immune from any action or suit in respect of the recall of this warrant.  It therefore follows that by preferring charges against the respondent in respect of a judicial act, the Commission was doing exactly what the Constitution prohibited under Article 128(4).  The charging of the respondent therefore went against the letter and spirit of the Article. 

It is my finding that the Commission unjustifiably lifted the respondent’s judicial immunity when it preferred charges against her for her performance of a judicial act.  I therefore agree with the conclusion reached by the learned justices of the Constitutional Court that the act and/or conduct of the Commission of lifting the judicial immunity accorded to the respondent with respect to her judicial act of recalling a warrant of attachment in the discharge of her judicial work, contravened Article 128(4) of the Constitution.  Ground 2 of this appeal fails in as far as it faults the findings and declaration of the Constitutional Court on the lifting of the respondent’s immunity.

Before I take leave of this ground, I need to address myself to a submission made by the Attorney General regarding the need for a Judicial Officer facing disciplinary proceedings to appear and raise the defence of judicial immunity.

The Attorney General submitted that the respondent was entitled to raise the protection accorded to her under Article 128(4) of the Constitution in her own defence.  As I noted earlier, although the Constitution vests the Commission with powers to take disciplinary action against judicial officers, it is also incumbent on the Commission to adhere to the Constitution in the course of executing its mandate.  It therefore follows that the Commission should at all times ensure that it does not initiate disciplinary proceedings against any Judicial Officers which contravene or are inconsistent with Article 128 of the Constitution.  The Commission only has powers to handle complaints against Judicial Officers which pass Article 128 (4) test.

A question that arises from this is whether a Judicial Officer who believes that his or her actions are protected by judicial immunity should decline to appear before the Commission when called upon to do so?  My view is that where the Commission has reviewed the complaint and seen it fit to charge a Judicial Officer for a disciplinary offence, it is incumbent on such Judicial Officer to appear before the Commission and raise the defence of judicial immunity.

 

Ground 1 of Appeal

This ground was framed as follows:

The Justices of the Constitutional Court erred in law and in fact in declaring that the act and/or conduct of the Commission of preferring charges against the petitioner in respect of acts/or omissions involving the recall of a warrant, which are judicial acts, is inconsistent with and in contravention of Articles 2, 20, 28, 42 and 44 of the Constitution of the Republic of Uganda.

The Attorney General’s submissions

Some of the submissions the Attorney General argued under this ground have already been canvassed in Ground 2.  I only wish to recap that the Attorney General contended that the act of the Commission’s Disciplinary Committee of preferring charges against the respondent was not inconsistent with Articles 2, 20, 28, 42, and 44 of the Constitution. 

The Attorney General submitted that the Commission having perused both the complaint and the response from the respondent and having determined that a prima facie case had been established against her, accordingly prepared a charge sheet and invited her to appear before the Commission for plea taking.

The Attorney General also contended that the Commission’s act of preferring charges against the respondent was consistent with the functions the Commission is enjoined to perform under Article 147 (d) of the Constitution and that no immunity was lifted by the Commission in the respondent’s case. 

The Attorney General further contended that the respondent was at all times lawfully before the Disciplinary Committee of the Commission and that she was entitled to raise the protection accorded to her under Article 128(4) of the Constitution in her own defence.  The Attorney General conceded that the provisions of Article 128(4) of the Constitution granted a judicial officer immunity.  However, the Attorney General submitted that, in consonance with the constitutional interpretation rule of completeness and exhaustiveness, Article 128 (4) of the Constitution which guarantees judicial immunity should not be read in isolation of Article 147 (d) of the same Constitution.

The Attorney General further contended that in any event, the defence of judicial immunity and independence was available to the respondent to invoke in the disciplinary proceedings instituted by the Commission, an option the respondent ignored.  Lastly, the Attorney General argued that by holding that the act of preferring charges was inconsistent with the provisions of the Constitution, the Constitutional Court was flouting Article 147(d) of the Constitution. 

Respondent’s Submissions

Counsel for the respondent defended the findings and declarations of the Constitutional Court.  He reiterated his earlier submissions and conceded that the Commission has power to exercise judicial control over judicial officers like the respondent.  Counsel conceded that the Commission can handle peoples’ complaints in this regard under Article 147(1) (d) of the Constitution. 

He however contended that Article 147 of the Constitution should not be invoked to undermine Article 128 of the Constitution, which guarantees independence of the judiciary and protects the right of immunity of Judicial Officers for actions done in the exercise of their judicial duty.  He further contended that judicial independence/immunity was the substratum upon which any judicial system was built.

Counsel for the respondent further contented that whereas it was not refuted that charges against the respondent emanated from her recall of a warrant of attachment, the Attorney General had failed to demonstrate to this Court or the Constitutional Court that the recall was irregular or that it warranted disciplinary action.

Counsel for the respondent further submitted that the act of recalling warrants was widely practiced in our judicial system and that the respondent had demonstrated this by attaching to her Affidavit in Support of the Petition several letters recalling warrants of attachment from different Judicial Officers.  These letters appear at pages 38-55 of the Record of Appeal. 

Counsel for the respondent also submitted that the Constitutional Court confirmed this practice (of recalling warrants of attachment) in its Judgment and held that it was a common judicial practice performed by judicial officers such as Registrars, in the exercise of their duties.  Counsel further contended that this did not amount to abuse of judicial authority or a contravention of the Judicial Oath.

Consideration of Ground 1 of appeal.

In holding that the Commission contravened the Constitution when it preferred charges against the respondent for her recall of a warrant of attachment, the Constitutional Court held as follows:

“The petitioner carried out a judicial act of recalling the warrant of attachment.  It has not been demonstrated that what she did was not a judicial act.  After carefully examining the circumstances under which the Petitioner exercised her discretion to recall the warrant, we consider that her being charged with disciplinary offences in the circumstances went against the spirit and letter of the Constitution, particularly Articles 2, 20, 28, 42, 44, 128 (4) and 173.”

In my consideration of ground 2 of appeal, I concurred with the findings of the learned Justices of the Constitutional Court that the respondent’s action of recall of the warrant of attachment was a judicial act and that the Commission contravened the Constitution when it lifted her judicial immunity which is protected by Article 128 (4) of the Constitution.

Given my finding above, it also follows that the Commission contravened the provisions of Article 128 (4) of the Constitution, when it preferred charges against the respondent for recalling a warrant of attachment and sale.  I therefore find that the Constitutional Court did not err when it so held.

Court’s consideration of other findings of the Constitutional Court

I note that under both Ground 1 and Ground 2 of this appeal, the Attorney General also challenged the holding of the Constitutional Court that the acts of the Commission also contravened Articles 2, 20, 28, 42, 44 and 173 of the Constitution.  

None of the parties canvassed these provisions at the Constitutional Court.  I however note that despite this omission by the parties, the learned Justices of the Constitutional Court made a finding on them by holding that the Commission’s acts violated Articles 2, 20, 28, 44 and 173 of the Constitution.  The learned Justices of the Constitutional Court did not show how they came to the conclusion that the Commission’s acts violated Articles 2, 20, 28, 44 and 173 like they did in respect of Article 128 of the Constitution.

Furthermore, in arguing both grounds of appeal in this Court, the Attorney General did not canvass how the Constitutional Court erred in holding that the above provisions were violated by the Commission’s actions.  The respondent in turn did not canvass them as well.  In my view, it was incumbent on the Attorney General to present arguments in this Court why the learned Justices of the Constitutional Court erred in holding that the Commission’s acts contravened the above Articles.

Be that as it may, I find that there was no basis for the learned Justices of the Constitutional Court to hold that the Commission’s acts of preferring charges against the respondent and of lifting her judicial immunity contravened any of the cited Articles, with the exception of Article 128 (4).  To this extent, I therefore agree with the Attorney General that the Constitutional Court erred when it held that the Commission’s acts contravened Articles 2, 20, 28, 44 and 173 of the Constitution.

Orders and Declarations.

The Attorney General prayed that the appeal be allowed with costs.  On the other hand, the respondent only prayed to this Court to dismiss this appeal with costs. 

The appellant’s grounds of appeal have majorly failed.  I would accordingly dismiss this appeal with costs to the respondent. 

I would modify the Declarations and orders of the Constitutional Court as follows:

(a) The act and/or conduct of the Commission of preferring charges against the respondent in respect of a judicial act of recalling a Warrant of Attachment contravened and was inconsistent with Article 128 (2) & (4) of the Constitution.

(b) The act and/or conduct of Commission of lifting the judicial immunity accorded to the respondent and charging her in respect of her judicial act of recall of a warrant of attachment contravened and was inconsistent with Articles 128(2) & (4) of the Constitution.

(c) The order of costs made by the Constitutional Court is hereby confirmed.

I would also make the following additional orders:

(a) The Constitutional Court erred in holding that the Commission’s acts/conduct of lifting the respondent’s judicial immunity for the judicial act of recalling a warrant of attachment and sale contravened Articles 2, 20, 28, 44 and 173 of the Constitution when these allegations had not been canvassed by the parties.

(b) The Constitutional Court erred in holding that the Commission’s acts/conduct of preferring charges against the respondent for the judicial act of recalling a warrant of attachment and sale contravened Articles 2, 20, 28, 44 and 173 of the Constitution when these allegations had not been canvassed by the parties.

(c) The respondent is hereby awarded the costs of this appeal.

 

Dated at Kampala this 11^th day of July 2018.

 

.......................................................

JUSTICE DR. ESTHER KISAAKYE

JUSTICE OF THE SUPREME COURT.

 

 

 

^[1] 33 Pacific Basin Law Journal 155 (2016).

^[2] Project No.102 at http://www.lrc.iustice.wa.gov.au, accessed on 22/12/17.

^[3] (1994) 5 (1) Public Law Review, 43.

^[4] 19^th January, 2016.

^[5] 5^th edition at page 760.

^[6] Page 10, infra.

^[7] No. 5064923 May 13, 1999.

^[8] 7^th July 2013 at http://www.libertvlawsite.org accessed on 22/12/17.