THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA
CONSTITUTIONAL PETITION NO. 55 OF 2013
GLADYS NAKIBUULE KISEKKA ….PETITIONER
VERSUS
ATTORNEY GENERAL………………RESPONDENT
CORUM:
HONORABLE JUSTIE S B K KAVUMA, AG. DEPUTY CJ. JA/JCC
HONORABLE JUSTICE REMMY K KASULE JA/JCC
HONORABLE LADY JUSTICE FAITH MWONDHA JA/JCC
HONORABLE LADY JUSTICE SOLOMY BALUNGI BOSSA JA/JCC
HONORABLE JUSTICE KENNETH KAKURU JA/JCC
JUDGMENT OF THE COURT
This Petition is brought under Article 137(3) (4) and (7) of the Constitution and the Constitutional Court (Petition and Reference) Rules (SI 91 of 2005).
Background
At the time of filing the petition, the petitioner was a judicial officer at the rank of Deputy Registrar of the Courts of Judicature. She was first appointed to the Bench on February 2, 1991 as a magistrate Grade 1.
According to the petitioner’s affidavit sworn on December 9, 2013 in support of the Petition, sometime in 2009, in her capacity as Deputy Registrar, High Court, Commercial Division, the petitioner 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 petitioner received a letter from MMAKS Advocates protesting the attachment of some of the plots that had been included in the warrant of attachment, namely LRV 3931 Folio 24 Plot 33 Kyadondo Block 273 at Buziga and LRV 3931 Folio 25 Plot 48, Kyadondo Block 273 at Buziga.
MMAKS Advocates indicated in their letter that the land comprised in the said plots of land did not belong to the judgment debtor but to their client one, Muhammed Ssekatawa, who had earlier in 2006 obtained leases thereon and held duplicate titles to them.
The petitioner promptly responded to the complaint of the said advocates on the same day by recalling the warrant in respect of the property in issue, ostensibly to avoid unnecessary objector proceedings. Execution for the remaining properties which, were not the subject of protest, was allowed to proceed. The petitioner copied the letter recalling the warrant to all the parties; including the Commissioner of Lands, whom MMAKS Advocates had copied their complaint to, and also gave a copy to Asiimwe Diana Jackline, the complainant who was also the judgment creditor and who had taken out the execution proceedings in HCCS No. 2006 of 2008.
On August 31, 2009, the said judgment creditor wrote to the petitioner through her lawyer, messrs Steven Sserwadda Advocates, protesting the recall of the warrant. The petitioner responded and advised that the judgment creditor files a formal application. On October 6, 2009, the complainant wrote another letter through the same lawyers to the Registrar of the High Court again protesting the recall of the warrant. This letter was copied to the Ministry of Lands, the Commissioner Land Registration, the Honorable the Principal Judge, and to the Petitioner. The petitioner did not respond to this letter/complaint, since she was never called upon to do so by the Registrar or any of her superior officers in the Judiciary who were copied the complaint. The judgment creditor then subsequently lodged a complaint against the petitioner with the Judicial Service Commission (JSC) about the recall of the warrant.
On June 25, 2013, the Judicial Service Commission’s Secretary (JSC) notified the petitioner about a complaint by the judgment creditor in respect of the warrant that was recalled. The petitioner was required to make a reply to the complaint within 14 days. On June 26, 2013, the petitioner 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 September 13, 2013, the JSC issued a plea Taking Notice to the petitioner for plea taking and hearing fixed on October 3, 2013. On that day, the petitioner appeared before the JSC Disciplinary Committee and objected, through her lawyer to the plea taking on the grounds, inter alia that the charges and JSC Disciplinary Committee proceedings were time barred, unfounded in law and unconstitutional. The Disciplinary Committee reserved its ruling for November 17, 2013. The Petitioner appeared before the Disciplinary Committee on November 17, 2013 and before delivery of the ruling, she informed the Committee that the complainant was a non-existent person and she filed with the Committee an affidavit sworn by one Ssenkezi Ssali in that regard. The Disciplinary Committee promised to investigate the matter and inform her accordingly.
On December 3, 2013, the Disciplinary Committee delivered its ruling dismissing the preliminary objection stating that the charge sheet discloses an offence and that it was fair and just to listen to the complainant’s grievance even though it was time barred. The Ruling was signed by Professor E F Ssempebwa, Mr. C.O. Owor Okoth, Honorable Grace Oburu, and Honorable H Kyemba, members of the JSC Disciplinary Committee. Accordingly, the Disciplinary Committee ordered the Petitioner to plead to the charges and adjourned the matter to December 17, 2013 for plea.
The Disciplinary Committee also verbally informed the Petitioner that it had verified the existence of the complainant without furnishing her with a copy of the report of their findings or a promise to avail the same at a later date.
The petitioner further stated that save for the Chairman of the Disciplinary Committee and the first member, none of its other members is a lawyer and/or persons skilled in or competent in applying general principles of the laws of Uganda.
She had applied for and was an eligible candidate for the vacancies of the Chief Registrar and Registrar of Courts of Judicature given her long standing as a judicial officer in the Judiciary. She had also one time been nominated for appointment as a judge in 2012.
As a result of the Disciplinary Committee instituting proceedings against her, she was liable to interdiction and disqualification from the recruitment process under the provisions of the Judicial Service Commission Regulations 2005.
The petitioner asserted that the acts and/or omissions of the Disciplinary Committee complained of in the petition and the provisions of the Judicial Service Commission Regulations 2005 SI 87 and Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 S.1 88, were inconsistent with and in breach of the Constitution and were causing her to suffer infringement of her fundamental rights.
According to the affidavit of the Secretary to the JSC, Mr. Kagole Kivumbi sworn on January 14, 2014 accompanying the Respondent’s answer to the Petition, the judgment creditor filed a complaint against the Petitioner in the JSC on 31 May 2013 in respect of HCCS No. 266 of 2008 (Commercial Division), Asiimwe Diana Jackline v. Dr. Aggrey Kiyingi. In the complaint, she alleged fraudulent frustration of the execution process by the Petitioner when she administratively vacated a warrant of attachment and sale of property that had been issued by her on the basis of a letter from a third party to the suit. According to Mr. Kivumbi, the judgment creditor in her complaint to the JSC, denied receiving a copy of the letter recalling the warrant and further stated in her complaint that the petitioner did not invite the parties to the suit to be heard before recalling the warrant. She further alleged that the petitioner, 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.
Mr. Kagole Kivumbi further stated that on June 25, 2013, the JSC notified the petitioner of the complaint and directed her to submit her response exculpating herself from the allegations. The petitioner responded to the allegations, whereupon Mr. Kivumbi, as Secretary to the JSC, placed the complaint before the JSC Disciplinary Committee for further appropriate action. The JSC Disciplinary Committee determined that the complaint disclosed a prima facie case for a full investigation as to the truth or otherwise, of the allegation in the complaint and instituted disciplinary charges against the Petitioner under the Judicial Service Commission Regulations.
According to Mr. Kagole Kivumbi, the petitioner has a remedy against the decision of the JSC Disciplinary Committee by way of right of appeal. He asserted that the act and/or conduct of the JSC Disciplinary Committee of maintaining disciplinary proceedings against the petitioner does not infringe on the Petitioner’s right to a fair hearing as the JSC is enjoined under the Judicial Service Act (cap 14) and the Judicial Service (Complaints and Disciplinary Proceedings) Regulations (SI 88) to observe the rules of natural justice when dealing with matters of discipline and the regulations carry adequate safeguards for due process. On the serving members of the Judicial Service Commission Disciplinary Committee before whom the petitioner appeared, Mr. Kagole Kivumbi maintained that they were all duly qualified to serve on the Disciplinary Committee as they had been appointed in accordance with the law.
Charges against the petitioner
The petitioner was charged with the following offences. In count 1, she was charged with abusing judicial authority contrary to Regulation 23(m) of the Judicial Service Regulations. The particulars of offence alleged that the petitioner on August 17, 2013 while working as a Deputy Registrar in the High Court (Commercial Division) 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 Kiying) which she had issued on May 29, 2009 which frustrated the execution process.
In count 2, she was charged with abusing judicial authority contrary to Regulation 23(m). It was alleged in the particulars that the petitioner on August 17, 2013 while working as a Deputy Registrar in the High Court (Commercial Division) acted on a letter from MMAKS Advocates of August 27, 2009, (a third party) who had written to her to the effect that their client, one Mohammend Sekatawa, had bought the said properties on June 3, 2006 and renewed the leases on April 11, 2008 which deprived the other party the right to be heard.
In count 3, she was charged with acting in contravention of the Code of Judicial Conduct, the Judicial Oath or any other oath taken by the judicial officer contrary to Regulations 23(j) of the Judicial Service Regulations 2005. It was alleged in the particulars that the petitioner on August 17, 2013 while working as a Deputy Registrar in the High Court (Commercial Division), irregularly acted on claims of a third party when she investigated the objections contained in the letter instead of a proper application which act fell below the prerequisites to the performance of judicial office contrary to Principle 6.1 of the Uganda Judicial Code of Conduct.
At the hearing, counsel Fred Muwema represented the petitioner while counsel Madete Geoffrey, State Attorney, represented the respondent.
Issues
At the beginning of the trial, the following issues were framed and agreed upon by the parties;
Whether or not the act or conduct of the JSC Disciplinary Committee of maintaining disciplinary proceedings based on a complaint said to be time barred infringes the petitioner’s right to a fair hearing and is in contravention of Articles 2, 20, 21, 28, 42, 47, and 147 of the Constitution
Whether or not the composition of the JSC Disciplinary Committee with non lawyers denies the petitioner access to justice and contravenes articles 2,20,28,42,44,126 and 257(p) of the Constitution
Whether or not the factual error in the charge sheet preferred by the JSC Disciplinary Committee to the effect that the petitioner was a Deputy Registrar High Court Commercial Division on August 17, 2013 is inconsistent with and contravenes Articles 2, 20, 28, 42, 44, and 147 of the Constitution
Whether or not the act of the JSC Disciplinary Committee of preferring charges for the offences of abusing judicial authority and acting in contravention of the code of judicial conduct under Regulation 23 of the Judicial Service Regulations contravened articles 2, 20, 28, 42, and 44 of the Constitution
Whether or not the act of the JSC Disciplinary Committee of preferring charges against the petitioner based on a recall of a warrant of attachment and sale of immovable property is inconsistent with and contravenes Articles 2, 20, 28, 42 and 44 of the Constitution
Whether or not the act of the JSC Disciplinary Committee of instituting disciplinary proceedings against the petitioner so as to hold her personally liable for her judicial acts/omissions contravenes Articles 2, 20, 28, 42, 44, 128(4), and 173 of the Constitution
Whether or not Regulations 25 and 28(3) of the Judicial Service Commission Regulations 2005, which empower the Chief Registrar to summarily interdict a Judicial Officer upon the commencement of disciplinary proceedings and which allows the JSC to commence other disciplinary proceedings after the conviction or acquittal of a judicial officer by a court of law contravenes Articles 2, 20, 28, 40, 44 and 173 of the Constitution
Whether or not the petitioner is entitled to the orders and declarations sought
The submissions of the parties have been reproduced and considered alongside each of the above issues.
Constitutional Principles
In resolving the issues, we have given the pleadings and submissions of the parties scrupulous attention. We have relied on the following principles of constitutional interpretation;
The entire Constitution must be read as an integrated whole and no one particular provision should destroy the other but each should sustain the other (see Foundation for Human Rights Initiative v. The Attorney General Constitutional Court Petition No. 20 of 2006).
We have also relied on the articles cited by the parties and especially the following;
“28. Right to a fair hearing
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.”
“42. Right to just and fair treatment in administrative decisions.
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.”
“44. Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms
(a)…
(b)…
(c ) the right to a fair hearing”
“Article 173. Protection of public officers.
A public officer shall not be-
(a)…
(b) dismissed or removed from office or reduced in rank or otherwise punished without just cause”.
Resolution of the issues
We now proceed to resolve the issues in the order they were framed.
Issue No. 1-
Whether or not the act or conduct of the Judicial Service Commission Disciplinary Committee of maintaining disciplinary proceedings based on a complaint said to be time barred infringes the petitioner’s right to a fair hearing and is in contravention of Articles 2, 20, 21, 28, 42, 47, and 147 of the Constitution
Counsel for the petitioner submitted that according to Regulation 6 of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005, complaints to the JSC must be made within three (3) years from the time when the alleged improper conduct occurred. In the instant case, the act complained of, which is the recall of the warrant of attachment occurred on August 27, 2009. The complaint was lodged with the JSC on May 31 2013 more than 8 months after the expiry of the prescribed period. The last day on which it should have been lodged was August 27, 2012. Counsel cited the case of Mohammad B Kasasa v. Jasphar Buyonga Sirasi Bwogi; Court of Appeal Civil Appeal No. 42 of 2008 as supporting the proposition that an action that is statute barred cannot be allowed to stand. He argued that allowing it to stand contravened Article 28 of the Constitution which provides that persons charged before a court or tribunal must appear on the basis of charges that validly exist in law. Article 28(7) further provides that no person shall be charged with an act or omission that did not constitute an offence at the time it happened. By the time the complaint was referred to the JSC or the charges were drawn up against the petitioner, the acts complained of had ceased to be offences in law against the petitioner. Therefore, calling upon her to answer such charges was in violation of her non-derogable right to a fair hearing. He prayed that the Court declares the charges and complaint pending before the JSC Disciplinary Committee to be time barred
If the JSC Disciplinary Committee was to admit a complaint after three years, as it did in this case, then at the time of receiving the complaint, it had to conduct proceedings to determine whether good cause existed for the complaint to be admitted out of time. The Petitioner had raised this matter as a preliminary objection but in the proceedings of the JSC Disciplinary Committee, there was no finding in respect thereof despite the fact that the JSC Disciplinary Committee admitted that the complaint was out of time. No proceedings had been availed to the complainant in accordance with Regulation 6 of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations.
Counsel further submitted that the Petitioner was non-existent, contrary to Regulations 3, 4, 5 and 6 of Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 and Article 147 (1) (d) of the Constitution, which clearly envisage the existence of the complainant. The fact that the complainant was non-existent clearly violated the petitioner’s right to a fair hearing. He prayed that this court be pleased to declare that the charges and complaint against the Petitioner pending before the JSC Disciplinary Committee were time barred and brought by a non-existent complainant.
Mr. Madete Geoffrey, Counsel for the respondent submitted that the proceedings in the JSC were not time-barred and did not infringe the right to a fair hearing as Regulation 6 of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations allowed the JSC Disciplinary Committee to admit a complaint brought after three years for good cause. Good cause is not defined in the Regulations or the Judicial Service Act but the JSC Disciplinary Committee was vested with discretionary power to determine what, in its view, amounted to good cause and after so determining, to admit or not admit such a complaint and had to observe rules of natural justice in exercising such powers. This was done in the instant case and the petitioner was given an opportunity to respond and there was, therefore, no infringement of the Constitution as alleged by the petitioner.
On the non-existence of the complainant, counsel argued that this was not reflected in the Petition.
The other articles alleged to be infringed concern the supremacy of the Constitution (Article 2), fundamental and other human rights and freedoms (Article 20), equality and freedom from discrimination (Article 21), the right to just and fair treatment in administrative decisions (Article 42), detention under emergency laws (Article 47) and functions of the JSC (Article 147).
We have chosen to deal with the alleged non-existence of the complainant first. In our view, the question whether or not the complainant was a non-existent person does not raise a constitutional issues for interpretation. It is a factual issue for the JSC Disciplinary Committee as the body entitled to hear the complaint to decide. We, therefore, don’t accept the submission of the petitioner as it has no merit at all.
On whether admission of a complaint that was time barred infringed the Constitution, it is not disputed that the complaint was filed after three years. What is disputed is whether its admission was for good cause in accordance with Regulation 6 Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005. That Regulation provides as follows:
“6. Time within which a complaint may be made
A complaint may be made within three years from the time when the alleged improper conduct took place and where the complaint is brought after three years, the Commission may for good cause receive the complaint.”
The letter of the complainant, Asiimwe Diana Jackline to the JSC, is dated May 31, 2013. MMKS Advocates wrote to the Petitioner on August 27, 2009 requesting for the recall of the warrant of execution. The petitioner responded to their letter on the same day. By the time the complainant wrote and forwarded her complaint to the JSC Disciplinary Committee, over three years had elapsed since the recall of the warrant. The complaint was therefore clearly time-barred.
We however note that the JSC Disciplinary Committee has discretion to admit such a claim under Regulation 6 “for good cause”. In its ruling rendered on November 5, 2013, it gave the following ruling and we quote;
“The committee …agrees with the prosecution that the JSC has discretion to receive a late complaint which it has done and is now reinforced by this Ruling. The good cause arises from the following factors:
-First the allegations made are of a serious nature involving the conduct of a judicial officer as well as insinuations of fraud by other actors as a result of her exercise of judicial discretion. It is imperative that the truth be fully investigated. This is in the interest not only of the complainant but also of the judiciary, and most important, of the respondent. The respondent’s carrier should not be perpetually clouded by a lingering perception of wrong doing that was never investigated due to a technical limitation.
-secondly, while the truism is that a person is presumed to know the law, Regulation 6 must be cast in its proper context. On the one hand, are the consumers of judicial services, generally less knowledgeable in legal matters than the providers. Regulation 6 must have been intended to enable the JSC to determine whether in the circumstances, it is fair and just to listen to the consumer’s grievance though time barred, more so where the consumer/complainant is not at par with the provider/respondent. It would not be fair to apply the burden of proving good cause to the complainant in all cases.
In the result, the Committee rules that the JSC has discretion, which it has exercised in and is reinforced by this Ruling, to receive the complaint, late as it might appear.”
The ruling makes it clear that the JSC considered the question whether or not it should admit the complaint that was time-barred. It gave reasons why it considered that it should admit the complaint. It is not for this Court to decide whether the JSC was right or wrong in admitting the complaint. Our concern is the process that led to the admission of the complaint. In light of this ruling and the reasons that were given by the JSC Disciplinary Committee, we find that the complaint was properly admitted and did not infringe Articles 2, 20, 21, 28, 42, 47, and 147 of the Constitution. The first issue is therefore resolved in the negative. Ground one of the petition fails.
Issue No. 2-
Whether or not the composition of the Judicial Service Commission Disciplinary Committee with non lawyers denies the petitioner access to justice and contravenes Articles 20, 21, 24, 44, 126, and 257 of the Constitution
Counsel for the petitioner submitted that only people skilled in law can conduct proceedings of the JSC Disciplinary Committee as they properly appreciate the law applicable and that the composition of the JSC with two members who were non-lawyers prevented the petitioner from accessing justice as they (the non-lawyers) did not properly appreciate the applicable law. According to counsel, proper conduct of proceedings before the JSC required only persons who were skilled in law and had received legal training. The presence of non-lawyers on the JSC made it an incompetent tribunal contrary to Articles 28, 147(1) (d) and 257(1) (p) of the Constitution. Counsel therefore prayed for a declaration that the composition of the JSC Disciplinary Committee contravenes the Constitution and infringes on the petitioner’s right to access justice.
Counsel for the respondent cited Article 146 of the Constitution relating to the composition of the JSC and submitted, that there is no other qualification required of them, except the requirement that they have to be of high moral character and proven integrity. The JSC Disciplinary Committee was part and parcel of the JSC. Therefore, the composition of the JSC, which includes non-lawyers, does not infringe the provisions of the Constitution cited and the petitioner’s right to access justice.
The articles alleged to be infringed by the petitioner include Article 28 on the right to a fair hearing, Article 21 on equality and freedom from discrimination, Article 24 on respect for human dignity and protection from inhuman and degrading treatment, Article 44(c) that prohibits derogation from particular human rights and freedoms, and specifically the right to a fair hearing, Article 126 that concerns the exercise of judicial power and Article 257, which concerns interpretation of the Constitution.
It is necessary to reproduce some of the said articles for a proper appreciation of the arguments:
“146. Judicial Service Commission
There shall be a Judicial Service Commission
The Judicial Service Commission shall, subject to clause (3) of this article consist of the following persons who shall be appointed by the President with the approval of Parliament-
A chairperson and a deputy chairperson who shall be persons qualified to be appointed as justices of the Supreme Court, other than the Chief Justice, the Deputy Chief Justice and the Principal Judge;
One person nominated by the Public Service Commission;
Two advocates of not less than fifteen years’ standing nominated by the Uganda Law Society;
One judge of the Supreme Court nominated by the President in consultation with the judges of the Supreme Court, the justices of Appeal and judges of the High Court; and
Two members of the public, who shall not be lawyers, nominated by the President
The Attorney General shall be an ex-officio member of the commission
….”
“147. Functions of the Judicial Service Commission.
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 people and the judiciary;”
On its part, the Judicial Service Act (cap 14) provides as follows;
“2. Appointment of the commissioners.
The chairperson and other members of the Judicial Service Commission shall be appointed by the President with the approval of Parliament.
The Attorney General shall be an ex officio member of the commission
We observe from the above provisions that the composition of the JSC and the JSC Disciplinary Committee is a matter of law. The Constituent Assembly that debated and promulgated the 1995 Constitution, in its wisdom, constituted the JSC to include members of the public who may not be lawyers. Members of the public are the prime stakeholders in the administration of justice. This principle is encapsulated in Article 126 (1) of the Constitution which 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.”
To make the declaration sought would be tantamount to abrogating the constitutional provisions in the said article. In any event, we do not accept the argument that only lawyers can dispense justice. Apart from courts of Judicature, which are ordinary courts manned by lawyers, there are specially constituted tribunals or administrative Tribunals that dispense/ have dispensed justice e.g. Non Performing Assets Recovery Tribunal, Tax Tribunal/ Tax Appeals Tribunal, Land Tribunal etc whose membership may not be composed entirely of lawyers. For the above reasons, we do not find that this ground of the petition has been substantiated. Therefore ground two of the petition fails also.
Issue No. 3-
Whether or not the factual error in the charge sheet preferred by the JSC Disciplinary Committee to the effect that the petitioner was a Deputy Registrar High Court Commercial Division on August 17, 2013 is inconsistent with and contravenes Articles 2, 20, 28, 42, 44, and 147 of the Constitution.
Counsel for the petitioner submitted that there was a factual error in the charge sheet in that it was stated therein that the petitioner was a Deputy Registrar of the Commercial Court on August 17, 2013 whereas by August 17, 2013, she was in fact a Deputy Registrar of the High Court, Nakawa High Court Central circuit. No amendment had been made by the time the Petitioner took the plea. The charges required the Petitioner to plead to and defend herself against charges relating to an office she did not hold at the material time.
Counsel for the respondent conceded that there was an error relating to the right designation of the petitioner at the relevant time. He however submitted that there were mechanisms in Regulation 17 of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 that permit amendments to be made provided there is no miscarriage of justice.
Regulation 17 provides;
“Amendments
Where during the course of the hearing it appears to the Commission that-
The complaint is incomplete or defective
The evidence discloses or is likely to disclose other complaints not referred to in the complaint; or
The complaint requires to be amended in any other way,
The Commission may permit such amendment to be made provided there is no miscarriage of justice.
A party to the proceedings shall be given an opportunity to respond to any amendments that may be made.”
After considering the parties’ submissions and Regulation 17 of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005, we are of the view that an amendment can easily be made to a charge sheet during the course of hearing, provided that there is no miscarriage of justice caused and the concerned person is given an opportunity to respond to the amendments made. The fact that a charge sheet may contain a factual error is a matter for resolution by the JSC as the trial forum and does not raise any issue for constitutional interpretation.
We further note that courts are enjoined by the Constitution to decide cases and subject to the law, to apply the principle that substantive justice shall be administered without undue regard to technicalities (see Article 126(e) of the Constitution). By analogy and extension quasi judicial bodies like the JSC should do likewise. This issue therefore is resolved in the negative. Ground three of the Petition fails.
Issue No. 4-
Whether or not the act of the JSC Disciplinary Committee of preferring charges for the offences of abusing judicial authority and acting in contravention of the code of judicial conduct under Regulation 23 of the Judicial Service Commission Regulations contravened Articles 2, 20, 28, 42, and 44 of the Constitution
Counsel for the Petitioner submitted that the offences of abusing judicial authority and contravention of the code of judicial conduct did not exist and had no defined penalties and sanctions. He argued that Regulation 23 of the Judicial Service Commission Regulations 2005, Regulation 23 creates one offence of committing an offence against discipline and sub-regulations 23 (a-n) are the ingredients of the offence. The petitioner was charged with the ingredients of the offence and not the offence itself. The offence of abusing judicial authority contrary to Regulation 23(m) did not exist either. It was one of the ingredients of the offence against discipline. The charge sheet therefore did not have an offence prescribed by law contrary to Article 28(12) of the Constitution which forbids charging any person with an offence unless it is prescribed by law. The third offence of acting in contravention of the code of judicial conduct contrary to Regulation 23(j) likewise did not exist.
Counsel further submitted that Regulation 23 does not provide for a specific penalty or sanction for the commission of the offence against discipline. Article 28(12) of the Constitution requires that the punishment for a specific offence must be specifically provided for. Regulation 31 of the Judicial Service Commission Regulations 2005 provides for disciplinary penalties which may be imposed by JSC Disciplinary Committee. It merely states the list of punishments that can be given if anybody was found guilty of any offences within the regulations and therefore offends the requirement of the law that punishments must be specific to the offence. With the current structure of Regulations 23 and 31, it was not possible to tell what punishment a judicial officer would suffer for a particular offence.
Counsel for the respondent argued that the offences are defined as offences against discipline in Regulation 23 while Regulation 31 of the Judicial Service Commission Regulations 2005 provides for disciplinary penalties which may be imposed by the JSC. Therefore, the court should find that the offences alluded to are defined and have specific penalties prescribed by law.
Article 28(12) of the Constitution provides as follows;
“Except for contempt of court, no person shall be convicted on a criminal offence unless the offence is defined and the penalty for it prescribed by law.”
The Constitution does not define what a criminal offence is. We have found guidance regarding definition of “crime” in the case of Vincent Lo’kucha Emoru and the Attorney General, Constitutional Court Petition No. 5 of 1998. In that case, the petitioner filed a constitutional petition under Article 137 of the Constitution seeking declaratory orders that certain provisions of the Advocates Act No. 22 of 1970 and certain provisions of the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 (SI No. 79 of 1974) made under the Act were inconsistent with certain articles of the Constitution. The facts of this case were that the petitioner was a practicing advocate of the High Court of Uganda. The National Housing and Construction Corporation made a complaint to the Disciplinary Committee of the Law Council of Uganda, a body which, among other things, disciplines advocates in Uganda, in relation to the petitioner’s handling of the case between the complainant and Lira Municipal Council which was the petitioner’s client in the Chief Magistrate’s Court of Mengo. On September 9, 1997, the Secretary of the Law Council wrote notifying the petitioner of the complaint and seeking his answers. The petitioner responded to the letter on September 1997 and on October 15, 1997 contesting the complaint. By a letter dated December 2, 1997, the Secretary to the Law Council notified the petitioner that the Disciplinary Committee had found a prima facie case against him and informed him that the hearing date of the complaint would be February 27, 1998. A copy of the charge sheet was served on the petitioner. On the appointed date, the hearing of the complaint did not proceed. It was adjourned to another date.
The charge sheet served on the petitioner contained four counts as follows:
Misleading court contrary to section 73 (1) (b) of the Advocates Act 22 of 1970.
Acting fraudulently or improperly contrary to section 73(1)(k) of the Advocates Act 22 of 1970.
Including in affidavit matters which are known by the advocate to be false.
Misleading court by remaining silent about a matter within the Advocate’s knowledge contrary to Regulation 16(1) of the Advocates (Professional Conduct) Regulations 1977.
While the complaint was pending in the Disciplinary Committee, the petitioner filed Constitutional Petition No. 5 of 1998 (supra). In the petition, the petitioner prayed for the following declaratory reliefs;
(i) That sections 18, 19, and 73(2) of the Advocates Act are inconsistent with articles 28(3) (a), 42, 43, 44 and 128(2) of the Constitution;
(ii) That sections 18 and 19 of the Advocates Act and Regulations 3, 4, 5, 6 and 7 of the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 (SI No. 79 of 1974) are inconsistent with articles 28, 43 and 44 of the Constitution;
(iii) That Section 25(3) of the Advocates Act is inconsistent with articles 40(2), 42, 43, 50(1), 50(3), and 21(1) of the Constitution;
(iv) That section 73(1) (k) is void for being vague and ambiguous and does not meet the regulations of article 28(2) of the Constitution;
(v) That sections 73(2) and 19(4) (a) and (b) of the Advocates Act contravene articles 28(12) of the Constitution in failing to provide exact penalties for defined offences
Grant an order of redress or refer the matter to the High Court to investigate and determine an appropriate redress.
The Petitioner in that case alleged in ground 1 that the charges brought against him in counts 1 to 4 also constituted criminal offences under the Penal Code and that Sections 18, 19, and 73(2) of the Advocates Act No. 22 of 1970 and Regulations 3,4,5,6, and 7 of the Advocates (Disciplinary Committee) (Procedure) Regulations 1974 (SI No, 79 of 1974) which empower the Disciplinary Committee to act on the complaints amounting to criminal charges against an advocate, before the criminal proceedings are first determined by a court of competent jurisdiction, are inconsistent with articles 28(1), 28(3), 42, 43, 44, and 128(2) of the Constitution.
Counsel for the petitioner in that case argued that being tried for such offences before the Disciplinary Committee of the Law Council would deprive the petitioner of the protection guaranteed by those articles of the Constitution to anybody charged with a criminal offence and tried before a court of law of competent jurisdiction. The petitioner would thus be denied a fair hearing guaranteed by Article 28 of the Constitution.
Counsel for the respondent argued that the Advocates Act and Regulations did not contravene any of the specified articles of the Constitution. She contended that the offences with which the petitioner was charged were not criminal offences but civil offences created by the Advocates Act and that therefore the said provisions of the Constitution do not apply to them.
This Court (Okello JA/CC.) relied on the definitions of the word “crime” given in Stroud’s Judicial Dictionary 5th Edition Vol. 1 A-C 592, and in Jowitt Dictionary of English Law 2nd Edition by John Barke. The former defines crime as;
“An act committed or omitted in violation of public law either forbidding or commanding it.”
Jowitt Dictionary of English Law 2nd Edition by John Barke defines crime as
“The violation of a right when considered in reference to the evil tendency of such violation as regards the community at large; an act or default which tends to the prejudice of the community and is forbidden by law on pain of punishment.”
Based on the above definitions, the learned judge held that crime is a violation of public law to the detriment of the public and is punishable at the instance of the state. The offences with which the petitioner was charged do not fall within the definition of crime. They were civil offences created by the Advocates Act to deal with professional disciplinary situations.
Borrowing from Judge Okello’s reasoning in this case, we find that the principle that disciplinary offences are not a violation of public law to the detriment of the public and do not fall within the definition of crime is equally applicable to this case. The disciplinary offences with which the Petitioner is charged are abusing judicial authority and acting in contravention of the Code of Judicial conduct. These are civil offences created by the Judicial Service Commission Regulations of 2005 S.I 87 to deal with professional disciplinary matters. The Regulations make this clear in Regulation 23 when they provide that;
“A judicial officer commits an offence against discipline if he or she does all or any of the following_....”
The Regulation then goes on to specify and enumerate the acts that constitute an offence against discipline. It is our judgment that the acts so specified are not crimes within the meaning of Article 28(12) of the Constitution. Therefore charging the petitioner in this case with such disciplinary offences did not contravene Articles 2, 20, 28, 42, and 44 of the Constitution. This issue is also resolved in the negative. Ground 4 of the petition therefore fails.
Issue No. 5-
Whether or not the act of the JSC Disciplinary Committee of preferring charges against the petitioner based on a recall of a warrant of attachment and sale of immovable property is inconsistent with and contravenes Articles 2, 20, 28, 42 and 44 of the Constitution
Counsel for the petitioner argued that the recall of a warrant of attachment and sale is a common judicial practice which is performed by judicial officers like registrars in the exercise of their judicial duties and it does not amount to any misconduct. Registrars have powers under Order 52 Rule 4 of the Civil Procedure Rules to issue orders in execution proceedings. When a Registrar issues such orders, she/he sits as a civil court and enjoys inherent powers under section 98 of the Civil Procedure Act (CPA). The demands of justice in that case were that a warrant should be recalled because there was a complaint that some property was not liable to attachment. Therefore the charging of the petitioner for recalling the warrant was unconstitutional.
Counsel for the respondent submitted that the recall of a warrant can take several forms but two main ones are more common, namely during and after the conduct of judicial proceedings. Recall could be done administratively. The act of recalling the warrant in this particular case was done administratively. The complaint was not based on the act of recalling the warrant, but on how the recall was conducted by the petitioner. The act of preferring disciplinary proceedings against the petitioner did not therefore infringe on any of the Constitutional provisions cited.
It is pertinent at this juncture to look at the charge sheet. We quote there from;
“Charge Sheet
Count 1
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 17th 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 had issued on 29th May 2009 which frustrated the execution process.”
It is thus clear that the charge is for irregularly recalling the warrant. We agree that Section 98 of the CPA grants courts inherent powers;
“to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court”.
Court is defined in Section 2(b) of the Civil Procedure Act to mean any court exercising civil jurisdiction. We observe that the recall of a warrant is a common judicial practice performed by concerned judicial officers like registrars and magistrates. We also note that Registrars have specific powers conferred on them by Order 52 Rule 4 of the Civil Procedure Rules to issue orders in execution proceedings. That Rule provides as follows:
“Execution
Formal orders for attachment and sale of property and for the issue of notice to show cause on applications for arrest and imprisonment in execution of a decree of the High Court may be made by the Registrar.”
The questions which come to mind are; when in this case the petitioner exercised her discretion to recall a warrant on the basis of representations that were made by MAKKS advocates, without issuing a formal order, did her action constitute an irregularity? What is it that the petitioner should have done in the circumstances that she failed to do or what is it that the Petitioner did that she should not have done?
We find it necessary at this stage to reproduce the letter referenced 3948/VMS/908/2006 dated August 27, 2009 that was written by MMAKS Advocates, on which the petitioner acted to recall the warrant to put the matter in its proper perspective. It reads;
“The Deputy Registrar,
High Court of Uganda,
Commercial Division,
Kampala
Re: KAMPALA HIGH COURT CIVIL SUIT NO. 226 OF 2008:
ASSIMWE DIANA JACKLINE
VS.
AGGREY KIYINGI
LRV 3931 FOLIO 24 PLOT 33 KYADONDO BLOCK 273 AT BUZIGA. REG. PROP: AGGREY KIYINGI
LRV 3931 FOLIO 25 PLOT 48 KYADONDO BLOCK 273 AT BUZIGA
REG. PROP: AGGREY KIYINGI
We act for Mohammed Ssekatawa and address you as hereunder.
The above two pieces of land were purchased by our client from Aggrey Kiyingi the registered proprietor of the above described property vide a memorandum of sale dated the 3rd of June 2006, and the said Aggrey Kiyingi, duly issued to our client transfers for the said pieces of land as well as delivered to him the duplicate certificates of title to both pieces of land.
The said lands were initially known as LRV 3035 Folio 17, Circular Road, Buziga and LRV 3035 Folio 18 Buziga Ring Road. Our client has since then been and continues to occupy the said land to-date. A copy of the agreement of sale of both lands is attached hereto and marked “A”.
Upon the expiry of the initial term of the lease, our client applied for the renewal of the said leases, which renewal was granted by Buganda Land Board on 11th April 2008 and hence LRV 3931 FOLIO 24 PLOT NO. 33 AND LRV 3931 FOLIO 25 PLOT NO. 48, both land at Buziga. The certificates of title are in our possession.
Our client has since sought and obtained the consent to transfer the said lands into his names from Buganda Land Board and had paid the relevant fees to the Lessor, which consent was duly granted to him on 25th May 2009. Copies of the consent letters to transfer the above two plots is attached hereto and marked “B1-2”
Our client has since paid all the relevant transfer fees and costs (8th May 2009) and awaits the transfer of both pieces of land into his names. (A copy of the receipt of transfer by the Ministry of lands and urban development is attached hereto and marked “C”. however the transfers have to-date never been effected as the Commissioner for Land Registration informed us that there is an order of attachment and sale issued by this Court in the above suit which was registered on the 25th June 2009.
To our surprise, an application dated 4th August 2009 for issue of a special certificate of title to LRV 3931 Folio 24 Plot No. 33 Kyadondo Block 273 at Buziga, Kampala was pubished in the Uganda Gazette of 7th August 2009 on page 414.
We objected to the issuance of the special certificates of title to the said land on grounds that our client is in possession of the Duplicate Certificate of Title as transferee. A copy of our letter to the Commissioner of Land Registration dated and received on the 19th August 2009 is attached hereto for ease of reference.
This is therefore to object to the said attachment on grounds that the said pieces of land are not available for attachment in satisfaction of any judgment against the said Aggrey Kiyingi having already been sold to our client and to request that the warrant of attachment earlier issued attaching the said property be vacated….”
The language of the letter is clear and unambiguous. It is on the basis of this letter that the petitioner acted to recall the warrant. She notified all the parties about her action. We recall that the main charge is irregularly recalling an order of attachment and sale. All other charges are dependent on it. We note that it is common practice for an aggrieved party to write either by him/herself or through a lawyer to the concerned court to take steps to halt an execution by recalling a warrant of attachment, if his/her property is wrongly threatened with execution. The petitioner, in exercise of her powers, as Deputy Registrar, recalled the warrant of attachment. What she did was accepted judicial practice. In this particular case, several such letters of recall of warrants of attachment by judicial officers of various categories from various courts in Uganda were attached to the petition involving different people in different cases, a clear demonstration that the procedure is a widely practiced one in the Uganda Judiciary.
We note that Order 52 Rule 4 of the Civil Procedure Rules gives a Registrar discretion to issue formal orders. Such registrar may make the order informal, as she did in this case, but that does not lessen the weight of the order as a judicial act.
It is our considered view therefore, that the act of recalling the warrant of attachment and sale was a judicial act by the petitioner and thus covered by the judicial immunity conferred on the her by the Constitution.
The independence of judicial officers to carry out their work as they deem fit, but within the confines of the law, cannot be overemphasized. Where they err, appeal courts are available to litigants to correct any such errors. Judicial independence as a principle is recognized at the national and international levels and is of crucial importance to the independence of the Judiciary, as the third arm of Government, and to that of individual judicial officers. That is why there are constitutional guarantees in the Constitution to promote, preserve and protect such independence. We have reproduced the said provision here below for emphasis:
“128. Independence of the judiciary.
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.
No person or authority shall interfere with the courts or judicial officers in the exercise of their judicial functions.
All organs and agencies of the State shall accord to the courts such assistance as may be required to ensure the effectiveness of the courts.
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 same principle is reiterated in the United Nations Basic Principles on the Independence of the Judiciary and the Bangalore Principles of Judicial Conduct. We note that the former are meant for states while the latter are for individual judges/judicial officers. The United Nations Basic Principles on the Independence of the Judiciary provide;
“Independence of the Judiciary
The Independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
…
…
There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
…”
The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
…”
The Bangalore Principles provide:
“Value 1
Independence
Principle
Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
Application
A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason
…”
The case of R. v. Beauregard Supreme Court of Canada, (1987) LRC (Const) 180 at 188 quoted in Civil Appeal No. 09 of 2009 His Worship Aggrey Bwire v. The Attorney General and Another also offers some guidance. Chief Justice Dickson of the Supreme Court of Canada stated 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 the basis of the law and the evidence, without external pressure or influence and without fear of or interference from anyone. The core of the principle of judicial independence is the complete liberty of the judicial officer to hear and decide the 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 makes a decision. Independence and impartiality are separate and distinct values. They are nevertheless linked as mutually reinforcing attributes of the judicial office. Impartiality must exist both as matter of fact and as a matter of reasonable perception. There is absolute immunity once the foregoing is adhered to.
All the above demonstrate the need to secure the independence of the Judiciary and of each individual judicial officer. Judicial officers would be paralyzed into inaction if they were to be questioned or disciplined for routine judicial acts made in good faith in the course of administering justice.
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. We resolve ground 5 in the affirmative and therefore uphold the same.
Issue No. 6
Whether or not the act of the JSC Disciplinary Committee of instituting disciplinary proceedings against the petitioner so as to hold her personally liable for her judicial acts/omissions contravenes Articles 2, 20, 28, 42, 44, 128(4), and 173 of the Constitution
Counsel for the Petitioner submitted that in this case, the Petitioner was performing her duties. The acts complained of were done pursuant to her exercise of judicial power and as such she was protected under Article 128 (4) of the Constitution.
Counsel for the respondent sought to make a distinction between an administrative act and a judicial act. He argued that while it was conceded that a judicial officer was protected in the due performance of his or her duties under the Constitution, if such judicial officer misconducts himself or herself, the relevant officer would lose that protection and would be liable to disciplinary action. He also submitted that judicial immunity is not accorded to acts done in an administrative capacity, and that the warrant was not recalled in the conduct of judicial proceedings. One of the reasons the JSC was established was to entertain complaints against judicial officers and from such complaints entertain disciplinary proceedings where it finds it neccesary.
We consider that this issue has been resolved in the resolution of issue number 5. For avoidance of doubt however, we emphasize the provisions of Article 28(4) of the Constitution (supra);
It is important to note 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 contravenes the above article as well as Articles 20, 42, 44, 128(4), and 173 of the Constitution. This ground in the Petition is accordingly upheld.
Issue No. 7
Whether or not Regulations 25 and 28(3) of the Judicial Service Regulations 2005 which empower the Chief Registrar to summarily interdict a Judicial Officer upon the commencement of disciplinary proceedings and which allows the JSC to commence other disciplinary proceedings after the conviction or acquittal of a judicial officer by a court of law contravenes Articles 2, 20, 28, 40, and 44 of the Constitution.
Counsel for the petitioner submitted that Regulations 25 of the Judicial Service Regulations 2005 was unconstitutional because it gives the Chief Registrar sweeping powers to interdict a judicial officer and stop him /her from performing his/her duties, the moment disciplinary proceedings are commenced against him/her. The regulation offends and derogates the presumption of innocence that the petitioner is guaranteed to enjoy under Article 28(3)(a) of the Constitution in that the Chief Registrar is allowed to proceed and mate punishments to a judicial officer before such judicial officer has been found guilty. Some of the punishments the CR hands down are the same punishments cited in Regulation 31, which are given by the JSC Disciplinary Committee after hearing a complaint and determining the liability of the judicial officer for instance subjecting the judicial officer concerned to half pay of his/her salary.
Counsel for the petitioner also challenged Regulation 28(3) of the Judicial Service Commission Regulations 2005. He submitted that this regulation empowers the JSC to subject a judicial officer who has already been punished by a court of law for an offence to again subject that judicial officer to disciplinary proceedings and/or punishment and this creates double jeopardy contrary to Article 28(9) of the Constitution.
Counsel for the respondent submitted that Regulations 25 and 28(3) of the Judicial Service Commission Regulations 2005 do not derogate the presumption of innocence. Interdiction is not a punishment but a preliminary step for the disciplinary process. Its intention is to pave way for investigations. It is a discretionary power based on the existence of a prima facie case sufficiently warranting investigation. It is premised on the presumption of innocence given that on suspension the judicial officer is put on half pay and if he/she is exonerated of the charges subsequently, the full salary is reinstated. He relied on the case of His Worship Aggrey Bwire v. Attorney General and the Judicial Service Commission (supra).
On subjecting a judicial officer to disciplinary proceedings upon being adjudged guilty in any court of law of a criminal offence, and preferring disciplinary proceedings stemming from the same charge, counsel argued that this does not create double jeopardy. According to Regulation 25(k) of the Judicial Service Regulations, a judicial officer commits an offence against discipline when he/she is convicted of a criminal offence by a court of law. The conviction is the basis for disciplinary proceedings and not the facts constituting the offence. It is an offence against discipline and it does not create double jeopardy. It does not therefore infringe on Articles 2, 20, 28, 40, 42, and 44 of the Constitution.
Regulation 25 of the Judicial Service Commission Regulations 2005 reads;
“25. Interdiction
Whenever the Chief Registrar or the responsible officer considers that the public interest requires that a judicial officer other than a Judge should cease to perform the functions of his or her office, the Chief Registrar or responsible officer may interdict the judicial officer from the performance of those functions if disciplinary proceedings are being taken or are about to be taken or if criminal proceedings are being instituted against the judicial officer.
…”
The act of interdicting or suspending a judicial officer is neither a routine matter nor a mandatory one. The Chief Registrar must use his/her discretion and determine whether public interest dictates that the concerned judicial officer be interdicted. We reckon that interdiction would occur where the alleged conduct of the judicial officer is aggravated, or where it might be necessary for such officer to vacate office to facilitate investigations. In any event, it is an interim disciplinary measure, and not the final verdict regarding the conduct of the concerned judicial officer. In that regard, we do not consider that Regulation 25 derogates the right to innocence. Should a judicial officer be found innocent, all his/her full rights are restored under sub-article (4) of Regulation 25.
We have already referred to the case of Vincent L’okucha Emoru v. The Attorney General (supra), which lays down the principle that disciplinary offences are not offences against the public at large. They are special offences created by specified statutes to discipline concerned professionals. They are not criminal offences. Therefore, the issue of double jeopardy does not arise. More importantly, the Petitioner has demonstrated that sub-article 3 of Regulation 28 of the Judicial Service Commission Regulations is not applicable to the facts of her case.
To fully appreciate the import of Regulation 28, it is better to consider Regulations 27 first. It provides that:
“27. Procedure after acquittal on criminal charge
A judicial officer acquitted of a criminal charge in any court shall not be dismissed or otherwise punished on any charge upon which he or she has been acquitted, but nothing in this regulation shall prevent the judicial officer from being dismissed or otherwise punished on any other charges arising out of his or her conduct in the matter.
Then Regulation 28 provides;
“28. Procedure on criminal conviction
If a judicial officer is adjudged guilty in any court of a criminal charge likely to warrant disciplinary proceedings, the Chief Registrar or the responsible officer shall obtain a copy of the charges, the judgment, and the proceedings of the court if they are available, and forward them to the Secretary.
The Commission may in its discretion obtain a copy of the charges, the judgment, and the proceedings of the court if they are available.
The Commission, after giving the judicial officer an opportunity to make representations in writing or in person or to be heard in person shall determine whether the judicial officer should be dismissed or subjected to some lesser disciplinary punishment or both, on account of the conviction for the offence of which he or she has been adjudged guilty, without any of the proceedings prescribed under the rules of procedure of these Regulations.
The above provisions do not apply to the instant case as the petitioner was never subjected to criminal prosecution for a criminal offence. The case of Vincent L’okucha Emoru and the Attorney General Constitutional (supra) clearly lays down the principle that the petitioner must present clear and unmistakable evidence that the impugned provisions of the Act are unconstitutional, failing which the presumption of constitutionality prevails and all facts will be presumed in favor of constitutional validity. The petitioner has not presented any evidence that she has been interdicted. She only speculates that she may be subjected to interdiction. A court of law cannot invalidate a law on conjecture or speculative grounds.
This ground in the Petition fails.
Issue No. 8
Whether or not the petitioner is entitled to the orders and declarations sought.
The petitioner prayed that this petition be allowed and that this Honorable Court be pleased to declare and order that;
“(i) The act and/or conduct of the Judicial Service Commission of maintaining Disciplinary Proceedings against the Petitioner based on a complaint which is time barred infringes the Petitioners right to a fair hearing and is inconsistent with and in contravention of Articles 2, 20, 21, 28, 42, 44, and 147 of the Constitution.
(ii) The act and/or conduct of the Judicial Service Commission of constituting its Disciplinary Committee to dispense justice in Disciplinary Proceedings with persons not skilled in and competent to apply the general principles of law applicable in Uganda denies the Petitioner access to justice and is inconsistent with and in contravention of Articles 2, 20, 21, 28, 42, 44, 126, and 257(p) of the Constitution
(iii) the act and/or conduct of the Judicial Service Commission of maintaining charges and insisting that the Petitioner take plea in respect of charges based on fiction/imaginations that she was working as a Deputy Registrar High Court-Commercial Division on the 17/8/2013 whereas the Judicial Service Commission is fully aware that at the time of the complaint the Petitioner is the Deputy Registrar High Court-Nakawa is inconsistent with and in contravention of Articles 2, 20, 28, 42, 44, and 147 of the Constitution of the Republic of Uganda.
(iv) The act and/or conduct of the Judicial Service Commission of preferring purported offences of abusing judicial Authority and Acting in contravention of the Code of Judicial conduct against the Petitioner which purported offenses are not defined with specific penalty prescribed by law is inconsistent with and in contravention of 2, 20, 28, 42, 44, of the Constitution of the Republic of Uganda.
(v) The act and/or conduct of the Judicial Service Commission of preferring charges against the Petitioner in respect of act/or omissions involving the recall of a warrant, a common judicial practice which by itself doesn’t constitute a criminal/disciplinary offence is inconsistent with and in contravention of Articles 2, 20, 28, 42, and 44, of the Constitution of the Republic of Uganda.
(vi) The act and/or conduct of the Judicial Service 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 2, 20, 28, 42, 44, 128(4), and 173 of the Constitution of the Republic of Uganda.
(vii) The provisions of Regulations 25 of the Judicial Service Commission Regulations 2005 S.I 87 which empowers the Chief Registrar to interdict a judicial officer at his discretion if Disciplinary Proceedings are being taken or are about to be taken against him derogates the presumption of innocence, is inconsistent with and in contravention of 2, 20, 28, 40, 42, 44, and 173 of the Constitution of the Republic of Uganda.
(viii) The provisions of Regulations 28(3) of the Judicial Service Commission Regulations 2005 S.I 87 which allows the Judicial Service Commission to institute Disciplinary Proceedings against a judicial officer upon the same grounds which were taken against that officer in a criminal charge before a Court of law creates double jeopardy which is inconsistent with and in contravention of Articles 2,20, 28, 40, 42, and 44 of the Constitution of the Republic of Uganda.
(ix) An order to quash and expunge from the public records the charges and Disciplinary Proceedings instituted by the Judicial Service Commission against the Petitioner.
(x) An order staying the Judicial Service Commission’s interviews and recruitment process of judicial officers where your Petitioner is an eligible candidate until hearing and final determination of the Petition.
(xi) A permanent injunction against the Respondent, the Judicial Service Commission, its Disciplinary Committee, agents or servants restraining them from continuing with the Disciplinary Proceedings against your Petitioner or at all.
(xii) General damages be ordered to be paid for inconvenience, mental anguish and injury occasioned to your Petitioner.
(xiii) Costs of the Petition.
(xiv) Any other or further order as court may deem fit.
The result is that this petition only partly succeeds. Grounds 5 and 6 of the Petition are upheld and all the others stand dismissed. Accordingly, the following declarations are made only in respect of grounds 5 and 6.
We hereby declare and order that:
The act and/or conduct of the JSC 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 act and/or conduct of the JSC 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 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.
No damages were proved and as such none are awarded.
As the petitioner has been largely successful in the main issues that constitute the essence of the petition, she is awarded the costs of this petition.
Dated at Kampala this 22nd day of October 2014
_______________________________________
HONORABLE JUSTICE S B K KAVUMA, AG. DCJ.
____________________________________
HONORABLE JUSTICE REMMY K KASULE, JCC
___________________________________
HONORABLE LADY JUSTICE FAITH MWONDHA, JCC
___________________________________
HONORABLE LADY JUSTICE SOLOMY BALUNGI BOSSA, JCC
___________________________________
HONORABLE JUSTICE KENNENTH KAKURU, JCC
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