THE REPUBLIC OF UGANDA
HIS WORSHIP AGGREY BWIRE::::::::::::::::::::::::::::::::::::::APPELLANT
1. ATTORNEY GENERAL
2. JUDICIAL SERVICE COMMISSION :::::::::::::::::::: RESPONDENTS
Second Appeal-Judicial review-application dismissed with costs-matter of discipline-section 9(6) of the Judicail service commission act
Submitting on ground 1 counsel for the appellant contended that the learned Justices of the Court of Appeal failed to exhaustively deliberate on whether the interdiction of the appellant or his removal from the performance of his judicial function was a matter of discipline as envisaged by section 9(6) of the Judicial Service Act. By reason of that failure they came to three aboard conclusions.
Firstly, they did not correctly determine the requisite quorum and composition of the Commission in disciplining judicial officers.
Secondly they failed to reconcile sections 9(2) and 9(6) of the Judicial Service Act and Regulation 14(1) of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 (SI 88/2005).
Thirdly, they failed to address the right question whether it was proper delegation for the Commission to delegate to the Disciplinary Committee in terms of quorum and composition in view of the provisions of section 9(6) of the Judicial Service Act.
Appellant’s counsel criticized the High Court and the Court of Appeal for accepting the respondent’s submission that interdiction is not a matter of discipline envisaged under section 9(6) of the Judicial Service Act but merely an interim disciplinary measure taken against an officer pending further determination of the complaint against him or her by the Commission.
“Black’s Law Dictionary, 6th Edition, St Paul Minn West Publishing Co. 1990 it defines word “interdiction” thus; “Civil Law, a judicial decree by which a person is deprived of the exercise of his civil rights;” the same Black’s Law Dictionary 8th Edition defines the word “discipline” thus “..3 types of discipline are common: disbarment, suspension and reprimand”. While according to Macmillan Dictionary for Students “interdict (4) means “….exclude from certain rights”.
Counsel argued that since the appellant was removed from the performance of his judicial duties that was “deprivation” or “exclusion” which is synonymous with the removal envisaged under sections 9(1), 9(2) and 9(6) of the Judicial Service Act. He argued that, therefore, interdiction as provided for under Regulation 25 of the Judicial Service Commission Regulations 2005 (SI 87/2005) means removal and must have been effected according to Sections 9(2) and 9(6) of the Judicial Service Act which is couched in mandatory terms by using the word “shall”
In support of his submission that interdiction is disciplinary action counsel relied on the case of Cheborion Barishaki Vs AG. Misc. App. No. 851 of 2004 in which Katutsi J stated as follows:
“While equating suspension and dismissal may be debated, the observation serves to emphasize two important features that suspension and dismissal have in common: in each case, the officer is deprived of his entitlement to perform his duties in the public service so long as the suspension or dismissal stands….”
In conclusion he submitted that when the disciplinary committee of the second respondent directed the appellant’s interdiction it was handling a substantive matter of discipline within the meaning of section 9(6) of the Judicial Service Act and not a “Preliminary matter” as there is no room for “Preliminary disciplinary matter” in the Act
In reply, counsel for the respondents supported the finding of the Court of Appeal that interdiction was merely an interim disciplinary measure, taken against an officer pending further determination of the complaint against him or her by the Judicial Service Commission.
Grounds 2 and 3
2. The Learned Honourable Justice of Appeal erred in law
The appellant’s counsel vehemently argued that in matters of discipline or proposal to removal a judicial officer from office, section 9(1) and 9(6) of the Judicial Service Act must be adhered to.
According to section 9(1) of the Act the meeting had to be presided over by the Chairperson or the Deputy Chairperson of the Commission and in the absence of both the Justice of the Supreme Court.
Section 9(6) of the Act makes the presence of the Attorney General mandatory in any matter of discipline or proposal to remove a judge or any other judicial officer from office. Besides, the decision at that meeting must be carried by at least six members of the Commission.
Counsel argued further that although by section 27 of the Act the Commission is empowered to make its own regulations, regulation 14 (2) of The Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 (SI. 88 of 2005) which delegated the full Commission’s powers to the Disciplinary Committee and altered the composition of the Commission when dealing with disciplinary matters was ultra vires the Act. Consequently, the actions of the Disciplinary Committee which sat on 14/2/2005 and purported to interdict the appellant were null and void as the said Disciplinary Committee lacked the legal capacity. According to Regulation 14(1) The Disciplinary Committee of the Commission is comprised of at least three members who constitute a quorum.
Appellant’s counsel quoted the following authorities Equator Inn Ltd Vs Tomasyan  E.A 405,