Court name
Supreme Court of Uganda
Judgment date
24 May 2014

Mafabi v Attoney General (Constitutional Petition-2012/14) [2014] UGSC 8 (24 May 2014);

Cite this case
[2014] UGSC 8
Short summary:

HR, Have his cause heard (fair trial)

THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

 AT KAMPALA

CONSTITUTIONAL PETITION NO 0014 OF 2012

MAFABI RICHARD:::::::::::::::::::::::::::::::::::::::::::::::PETITIONER

VS.

ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::::::::::RESPONDENT

CORAM:

HON MR. JUSTICE S.B.K.KAVUMA, Ag. DCJ

HON.MR.JUSTICE REMMY KASULE, JA

HON. MR. JUSTICE ELDAD MWANGUSYA, JA

HON. LADY JUSTICE SOLOMY BALUNGI BOSSA, JA

HON. JUSTICE PROF. L TIBATEMWA-EKIRIKUBINZA, JA

 

JUDGMENT OF COURT

Introduction.

This Constitutional Petition was brought under Articles 137 (3) (b) and 137 (4) of the Constitution. The Petitioner was represented by Mr. Peter Walubiri of Kwesigabo, Bamwine and Walubiri Advocates. The respondent was represented by Mr. George Kalemera, Senior State Attorney. The Petition was supported by affidavits sworn by the Petitioner. The Respondent’s affidavits were deponed by Mr. Daniel Gantungo, State Attorney in the Attorney General’s Chambers; the Inspector of Government (IGG) and the Secretary to the Judicial Service Commission.

 

 

 

 

Background

On 13th  September 1995, the petitioner was appointed as a Grade 1 Magistrate. In 2004 at Buganda Road Court, he presided over Criminal Case Number 16 of 2004; Uganda vs. Hadija Kaweesa. The accused in that case was alleged to be in possession of some counterfeit kiwi shoe polish. On 24th  February 2004, the accused pleaded guilty to the charges. Subsequently the petitioner, as presiding Magistrate, ordered that the counterfeit kiwi shoe polish be forfeited to the state and be disposed of by way of burning at the court premises. On 19th  May 2004, the prosecutor in the case requested that this kiwi, which had also been the subject to civil proceedings in the High Court, be destroyed not at court premises but at Namanve which was then largely a forest. The prosecutor argued that it would be environmentally unhealthy to burn the contraband behind the Buganda Road Court premises. As a result, the petitioner made an order on that day that the 423 cartons of counterfeit kiwi shoe polish be burnt at Namanve. It is contended by the petitioner that shortly thereafter the burning took place.

Later, by letter dated 4th March 2005, the company which had originally complained about the counterfeit kiwi (Sara Lee Household and Body Care Kenya Ltd., the registered trademark owners) lodged complaints to the Judicial Service Commission and to the Inspectorate of Government. They alleged that the petitioner and other government officials had not followed proper procedure in destroying the counterfeit products and that the circumstances under which the purported disposal occurred caused suspicion. The goods were purportedly destroyed in the presence of the Petitioner but without the knowledge of Sara Lee Household Company; without the approval of the National Environmental Management Authority (NEMA) and in the absence of officials from the Uganda National Bureau of Standards (UNBS). The complainant further alleged that investigations pointed to the possibility that what had been destroyed were in fact empty beefcans and not the counterfeit goods. According to the Counsel for the petitioner the   complaint was not copied to the petitioner.

By letter dated 10th  June 2005, the petitioner was summoned to appear before the Inspectorate of Government on 23rd  June 2005 at

 

10 a.m. for purposes of “giving evidence in inquiry No.TS.27.2005”. The petitioner was required to bring specific documents with him.

When the petitioner answered the Inspectorate of Government summons on 23 June 2005,   he was served with a questionnaire whose 1st paragraph stated: “please acknowledge receipt of this document and write your statement in respect of the counterfeit kiwi case answering the following issues with each issue forming a different paragraph.”

The questionnaire had a total of 14 paragraphs but did not refer to the Petitioner as a person against whom a complaint had been lodged. All the questions were however seeking information regarding the process through which the counterfeit product had been destroyed and related issues.

The petitioner answered the questions and signed the document. He was not given any written complaint nor any particulars of any of the persons accusing him of misconduct. The petitioner did not meet any of the people who gave evidence against him to the Inspectorate of Government and had no opportunity to contradict their evidence. The documents availed by the respondent (both the questionnaire and the summons) did not show to the petitioner that there were specific allegations against him which he had to answer.  The petitioner was thereafter never called back to the IGG’s office.

This contention by the petitioner regarding the nature of interaction with the IGG was affirmed by the IGG’s affidavit as part of the respondent’s answer to the petition.

Following the petitioner’s appearance at the inspectorate, the IGG wrote a report on the complaint and forwarded it to the Judicial Service Commission in a letter dated 1st August 2005. The petitioner was not given a copy of the report. The IGG’s report among other things recommended that the Judicial Service Commission takes disciplinary action against the petitioner for lack of integrity, abuse of office and lack of professional judicial conduct.

The IGG further stated that although the evidence gathered may not be adequate to sustain criminal proceedings against the Petitioner and the other officials concerned, it definitely proved a prima facie case of abuse of office against them on a balance of probabilities. The IGG stated that in her opinion the prosecution may not be able to get/trace witnesses who were interviewed from the place where the kiwi was said to have been destroyed. Furthermore, in the event that the witnesses were traced to testify against the petitioner, they may not be in position to say what they witnessed exactly and further still, the court clerk may not be in a position to repeat what she said to the IGG because of various interferences which are likely to have been made between the time the investigations were concluded and when the case would be prosecuted.

On 8th August 2005 the Chairman of the Judicial Service Commission wrote to the petitioner informing him of the IGG’s recommendation that he be disciplined for lack of integrity, abuse of office and lack of professional judicial conduct. The Chairman enclosed a copy of the IGG’s report and this was the first time that the petitioner had opportunity to access the contents of the said report.

The Chairman of the Judicial Service Commission (JSC) went on to state that the Commission would carry out its own investigations in the matter, (a requirement of the Judicial Service Commission and Complaints Disciplinary Proceedings Regulations). The Commission’s letter further required the petitioner to submit his comments, if any, on the report within 14 days. In the petitioner’s response dated 20th  August 2005, he denied the allegations against him and made specific comments on the allegations in the IGGs report.

The petitioner contends that although the Chairman of the Judicial Service Commission had, as bound by law, promised to carry out investigations, none were done by the Commission. A look at the annexures to the affidavit of the Secretary to the Judicial Service Commission in support of the case for the respondent indicates that the complaint by Sara Lee Household and Body Care Kenya Ltd was received on 7th  March 2005. However the Commission did not take any action on the matter. They neither carried out investigations nor called the petitioner until they got a report from the IGG on 1st  August 2005. It was then that the Commission asked the petitioner to make comments in preparation for their investigation. An internal memo dated 30th  August 2005 from the Registrar Education and Public Affairs, annexed to the affidavit of the Commission’s secretary indicates how the Commission dealt with the complaint. The memo contains communication to the Commission Chairman to the effect that the complaint by Sara Lee Household and Body Care Kenya Ltd against the petitioner had been assessed through examination of the written complaint, the report of the Inspectorate of Government and comments on the Inspectorate’s report submitted by the petitioner. Based on the three above mentioned documents, the Commission’s Registrar made a “finding that a prima facie case of incompetence and misconduct had been established against the petitioner. The memo consequently recommended that the matter be referred to the JSC Disciplinary Committee for appropriate action.

On 6th  September 2005, the petitioner was interdicted by a letter from the Ag Chief Registrar of the Courts of Judicature addressed to him. The petitioner was to cease performing his duties until adjudication of the matter by the Judicial Service Commission. In that interdiction letter, the registrar informed the petitioner that he was by the same letter referred to the Judicial Service Commission for disciplinary action. The letter was copied to Secretary Judicial Service Commission.

The Ag Chief Registrar’s communication indicated that the interdiction was based on a 2005 August report from the Inspectorate of Government which raised serious allegations concerning the conduct, competence and integrity of the petitioner as a Judicial Officer. The Registrar further stated in the interdiction letter that the petitioner’s response to the IGG’s report was inadequate.

The petitioner contends that the Chief Registrar had never received the complaint and had never investigated the said complaint. Nevertheless, the said Registrar proceeded to interdicted him.

A letter from the Secretary to the Judicial Service Commission dated18th February 2008 informed the Chief Registrar that the Disciplinary Committee had failed to proceed with the case against the petitioner for failure to locate him and thus serve him. The Commission sought for information to enable it make a decision on how to proceed with the case. In reply the Registrar stated in a letter dated 27th February 2008 that the petitioner had been interdicted in September 2005 and still received half pay. The Registrar further stated that unconfirmed rumours were to the effect that the petitioner had left Uganda the previous year.

On 12th  March 2008, the Disciplinary Committee of the Commission made a ruling that substituted service be made.  On 30th  April 2008 there was mention of the case before the Disciplinary Committee but the petitioner was absent. The case was fixed for hearing on 23rd  June 2008. On 30th June 2008 the Commission received a letter from Tumwesigye, Baingana and Co. Advocates that the firm had instructions to represent the Petitioner in the disciplinary proceedings. Consequently, a Hearing Notice dated 1st  July 2008 was issued summoning the Petitioner to appear before the JSC on 7th  July 2008 – almost 3 years since interdiction.

The Petitioner started appearing before the Commission in 2008 until he filed the present petition on 10th April 2012 and obtained with the consent of the respondent, an interim injunction on 11th  July 2012 staying the proceedings in the Judicial Service Commission.

 

Issues:

The framed issues for determination are as follows:

1.        Whether the act of the IGG of making a report recommending that the Judicial Service Commission should subject the petitioner to disciplinary proceedings on the basis of evidence from witnesses whom the petitioner was not given opportunity to listen to and cross examine, is inconsistent with and in contravention of Articles 28(1), 42 and 44(c) of the Constitution of Uganda.

 

2.        Whether the act of the Inspector General of Government of recommending that the Petitioner be subjected to disciplinary proceedings by the Judicial Service Commission when the Inspector General of Government is aware that the witnesses on whose basis he made the Report are not available is inconsistent with and in contravention of Articles 28(1), 42, 44(c) and 173(b) of the Constitution of Uganda.

 

3.        Whether the act of the Ag. Chief Registrar of interdicting the Petitioner from exercising the functions of his office on the basis of the Report of the Inspector General of Government without first carrying out his own investigations and according the Petitioner an opportunity to be heard is inconsistent with and in contravention of Articles 28(1), 42, 44(c) and 173(b) of the Constitution of Uganda.

 

4.        Whether the act of the Ag. Chief Registrar of keeping the Petitioner on interdiction since 6/9/2005 without completing investigations into allegations against the Petitioner is inconsistent with and in contravention of Articles 28(1), 42, 44(c) and 173(b) of the Constitution of Uganda.

 

5.        Whether the act of the Judicial Service Commission of conducting disciplinary proceedings against the Petitioner before conducting its own investigations on allegations against the Petitioner and finding a prima facie case against the Petitioner is inconsistent with and in contravention of Articles 28(1), 42, 44(b) and 173(b) of the Constitution of Uganda.

 

6.        Whether, without prejudice to issue 5 above, the act of the Judicial service Commission of conducting disciplinary proceedings against the Petitioner from 25/7/2007 and failing to conclude those proceedings to date is inconsistent with and in contravention of Articles 28(1), 42, 44(c) and 173(b) of the Constitution of Uganda.

 

Resolution of the issues.

Before delving into the merits of the Petition, we need to emphasise that as a Constitutional Court, we are only concerned with the determination of the question whether or not the Petitioner’s rights or fundamental freedoms in the Bill of Rights, as set out in Chapter Four of the Constitution, have been denied or infringed. We are not concerned with the merits or demerits of the allegations levelled against the Petitioner.

 

Issues 1 and 2

In resolving the issues, we have opted to answer issues 1 and 2 together because both of them deal with the actions of the IGG. We must, from the outset, mention that despite the fact that the two issues are framed as if what is solely in contention was whether the petitioner was not accorded an opportunity to be present when evidence was being given against him, thus being denied an opportunity to cross examine the witnesses, it is our considered view that the submissions from both counsel as well as the Constitutional Provisions cited in the framed issues suggest that what is in contention is whether the IGG’s conduct contravened the right of the petitioner to a fair hearing. It is thus this question that we will answer first. We will then deal with the specific issue of cross examination.

For ease of reference we here below reproduce the articles of the Constitution referred to by the petitioner in the two framed issues as having been violated: The articles provide:

Article 28(1): “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.

Article 42 of the Constitution: Any person appearing before any administrative official or body has a right to be treated justly and fairly.

Article 44: Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights (c) the right to fair hearing

Article 173(b): A public officer shall not be dismissed or removed from office or reduced in rank or otherwise punished without just cause.”

Counsel also referred the Court to Section 8 (1) of the IGG Act, No 5 of 2002which provides that:

“Pursuant to the provisions of the Constitution and to this Act, the functions of Inspectorate are inter alia: (a) to promote and foster strict adherence to the rule of law and principles of natural justice in administration; (c) to promote fair, efficient and good governance in public offices.”

 It was further submitted that a hearing under Article 28(1) must be a fair hearing as provided by the Constitution. In failing to accord to the petitioner a fair hearing, a non-derogable right under Article 44(c) of the Constitution was compromised. That fair hearing must be accorded by the Inspectorate is also captured in Section 25(3) of the IGG Act which provides that:

“No matter that is adverse to any person shall be included in a report of the Inspectorate unless the person has been given a prior hearing”.

It was contended that the IGG made very adverse reports on the petitioner but did not give him a hearing.

It was argued by counsel that the right to a fair hearing was applicable even where the IGG could not itself dismiss an officer but could only refer the matter to another body with powers to discipline the officer. This, he contended was because even at a preliminary stage such as at the IGG level action detrimental to the petitioner could be taken. In this instance for example, the petitioner was interdicted solely on the basis of the IGG’s recommendations.

He further argued that IGG reports are treated seriously by other government agencies and they lead to serious consequences. Court was, on this point, referred to a decision of the Court of Appeal of Guyana in the case of Barnwell vs. Attorney General [1994] 3 LRC. We will later on in this judgment discuss the relevance of that case to the present Petition.

Counsel for the petitioner further argued that the effect of contravening the above mentioned rights had translated into contravening another article of the Constitution: Article 173b.

On the other hand, Counsel for the respondent relied on the IGG’s affidavit and argued that that IGG’s recommendations were made lawfully after an extensive investigation of the matters raised by the complainant against the petitioner and that the investigations were conducted in accordance with constitutional provisions and provisions of the IGG Act. He specifically referred Court to Article 227 of the Constitution which provides:

“The Inspectorate of Government shall be independent in the performance of its functions and shall not be subject to the direction or control of any person or authority.”

Counsel also referred to Section 10 of the IGG Act which is a restatement of Article 227 above. Court was further referred to Article 230 (2) of the Constitution which provides:

“The Inspector General of Government may during the course of his or her duties or as a consequence of his or her findings make such orders and give such directions as are necessary and appropriate in the circumstances.”

He also referred to Section 14(6) of the IGG Act which restates the constitutional provision verbatim.

The Respondent’s Counsel also argued that the investigations of the IGG were conducted pursuant to section 20 (1) of the IGG Act which provides that the procedure for conducting an investigation shall be such as the Inspectorate considers appropriate in the circumstances of the case. In the instant case the petitioner was made to record a statement with the IGG and this, it was argued by the respondent, contradicts the submission by the petitioner that his right to be heard was violated. Counsel for the respondent then invited Court to take judicial notice of the practice by the inspectorate to wit, while conducting investigations, the Inspectorate does not subject witnesses to cross examination because each witness statement is not taken in the presence of the complainant. Furthermore, statements in respect of the complaint are not taken in the presence of the person complained against because investigations are undertaken with a view to either prosecuting in Courts of Law under the Anti-Corruption Act or establishing whether there is need for administrative action against the public officer complained about. It was submitted that in the instant case the Inspectorate found it necessary to refer the case to the Judicial Service Commission for administrative action.

In support of his argument, Counsel for the respondent relied on the Supreme Court decision of Gordon Sentiba and Ors v Inspectorate of Government (Civil Appeal No. 06) of 2008 which highlighted the independence of the IGG provided for in Article 227of the Constitution.  It was argued that the IGG is independent in the sense that they decide the manner of investigation of complaints and the decision of the IGG in this instance was to independently interview each witness. Nevertheless the IGG contacted the petitioner and gave him an opportunity to reply to the facts of the complaint. It was argued that the fact that  the petitioner was not given a chance to cross examine the witnesses does not in any way raise any issue for Constitutional interpretation since the IGG acted  within its Constitutional mandate i.e. deciding the manner of investigation. 

In reply to the contention that the petitioner was never presented with the complaint and the evidence against him, counsel for the respondent argued that the witness summons from the IGG which clearly informed the petitioner that he was to appear before the Inspectorate of Government and give evidence in a specific inquiry and further asked him to produce specific documents such as a letter requesting for permission from the National Environmental Authority (NEMA) to dispose of counterfeit kiwi shoe polish; a copy of the NEMA Approval for that disposal; the destruction certificate or any other documents in the possession of the petitioner that could be relevant to the inquiry, was sufficient information to make the petitioner aware of the complaint that had been raised against him. Counsel for the Respondent further argued that the questionnaire that the petitioner was required to answer also gave adequate information to the petitioner in regard to the allegations against him although he was not directly referred to as an individual who was being investigated. It was thus contended that the petitioner was given an opportunity to respond to the allegations.

Further still, Counsel for the Respondent submitted that what the petitioner was seeking from the Court was a declaration that his not being given an opportunity to listen to and cross examine witnesses who gave evidence against him violated his right to a fair hearing. Counsel contended that there was no need for the petitioner to come to this Court and claim that in his not being able to listen to the evidence presented before the Inspectorate of Government (IGG) and to cross examine witnesses who are part of an investigation being carried out by the Inspectorate, issues of constitutional interpretation arose. In his opinion there was no matter for interpretation because the IGG was exercising her mandate in accordance with the Constitution. On that premise he prayed that court finds that there is no issue for Constitutional interpretation regarding issue number 1.

 

Resolution of the Issue.

We are inclined to accept the arguments of the petitioner. It is a fact that the petitioner was never given a copy of the complaint and at no time was he informed that it was him who was under investigation. The summons for appearance before the Inspectorate of Government stated that it was for purposes of “giving evidence in an inquiry”.

The questionnaire with which the petitioner was served required him to write a statement in respect of the counterfeit kiwi shoe polish case, but it did not refer to him as a person against whom a complaint had been lodged. All the questions sought for information regarding the process through which the counterfeit product had been destroyed. The summons and questions did not indicate that the petitioner was being investigated for abuse of office and related misconduct.

The petitioner answered the questions and signed the document but he was neither given any complaint nor any evidence from the persons accusing him.  It is probable that he considered himself as a mere witness in the investigations and not a person under investigation. It thus cannot be said that the petitioner was in the said circumstances, given adequate opportunity to defend himself or to contradict the adverse information submitted against him.

Although the Constitution and the IGG Act give the Inspectorate wide powers and declare the institution independent of direction from any authority, the said powers cannot be lawfully effected outside the non-derogable right to a fair hearing. The Constitution did not, by giving wide powers to the Inspectorate, exclude all facets of the rules of Natural Justice.

The Supreme Court case of Gordon Sentiba and Ors v Inspectorate of Government (Supra) which the respondents seek to rely on does not in any way decide that the wide powers given to the IGG disentitle those who appear before him/her to enjoy non derogable rights. The import of the Sentiba Case in our view is that it affirms the constitutional independence of the Inspectorate. However it does not depart from one of the cardinal rules of constitutional interpretation that the constitution must be looked at as a whole. The Supreme Court in the case of Foundation for Human Rights Initiative versus The Attorney General, (Constitutional Petition No 20 of 2006) captured the said principle in the lead judgment of Hon JusticeL.E.M Mukasa- KikonyogoDCJ, as she then was thus:

“One of the cardinal principles in the interpretation of constitutional provisions and Acts of Parliament is that 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.”

Consequently, Article 227 of the Constitution giving the IGG independence cannot be read in isolation of Article 28 (1) which entitled the petitioner to a fair hearing and Article 42 which provides the right to just and fair treatment in administrative decisions. The independence accorded to the Inspectorate by the same Constitution certainly does not operate in isolation of Article 44 (c) which defines the right to a fair hearing as infallible.

We are also persuaded by the authority of Barnwell vs. Attorney General, (supra) a case from Guyana, a member of the Commonwealth like Uganda, whose facts we reproduce in great detail below:

On 26 September 1989, a Chief Magistrate made a written complaint to the Chairman of the Judicial Service Commission of Guyana that the appellant, who was a High Court judge, had visited her three times to attempt to influence her, including by offering money, in a case she was hearing in which the defendants were relatives of the appellant. The chairman summoned the judge to an interview in which the judge admitted visiting the Magistrate and discussing the result. The judge contended the Chairman read extracts from the letter, but refused to let him see it, and gave him an option to resign or face an inquiry as to removal (from office) under Art 197 of the 1980 Constitution. Article 197(3) provided that a judge could be removed for inability or misbehavior. The Commission met on 2 October and considered the complaint and the chairman’s recollection of the interview, but did not hear the judge. On 4 October it represented to the President that removal of the judge from office be investigated. The judge wrote an explanation to the Commission on 5 October, but the Commission did not recall its representation, and on 10 October the President (pursuant to Art 197(5) suspended the judge from office pending investigation by a tribunal as to his removal. The judge applied for judicial review on several grounds among which were that: the representation was made in breach of his right to a fair hearing. The respondents submitted, inter alia, that (a) the judge was not entitled to a hearing before the Commission, but if he was, the discussion with the Chairman was sufficient; and (c) Art 226 of the Constitution ousted the court’s jurisdiction to inquire into any question considered by the Commission because it  provided that the commission was not subjected to direction or control of any person or authority , and that a Court could not inquire into the valid performance of any function of the Commission.  The judge appealed from the dismissal of his application by the High Court.

The Court of Appeal of Guyana allowed the Appeal.

Although the present petition deals with rights of a magistrate and not a judge as was the case of Barnwell, we can still draw inferences from the Barnwell case.

In allowing the appeal, Bishop CJ held that given that the Constitution did not exclude the rules of natural justice, fairness had not been extended by observing the rules of natural justices or acting under a duty to be fair since the judge had no prior intimation of the agenda for his meeting with the Chairman and no ample opportunity to respond in that meeting.

Drawing an analogy from Bishop CJ’s pronouncements we come to the conclusion that in the present case, fairness had not been extended since the petitioner had not been informed that he was under investigation at the time he appeared and answered the questionnaire at the Inspectorate.

Another principle in the Barnwell case is in the judgment of Kennard JA who held that the rules of natural justice and fairness applied to a representation by the Commission to the President as to the removal of a judge since the Commission was a body having legal authority to determine a question affecting the judge’s rights and there was no contrary intention in the Constitution.

In a similar way the Inspectorate has legal authority under Article 230 (2) of Uganda’s Constitution to make orders and give such directions as are appropriate in the circumstances of an investigation carried out by it. In line with this mandate, the Inspectorate directed the Judicial Service Commission to take disciplinary action against the petitioner for lack of integrity, abuse of office and lack of professional judicial conduct. Even if we were to agree with counsel for the respondent that the Inspectorate did not give orders but rather directions, there is no doubt that the Commission relied on the report of the Inspectorate to direct the Ag. Registrar to suspend the petitioner.  Although the Commission did not carry out its investigations, (as we will discuss later), the Ag Registrar’s letter stated that the interdiction was based on the report of the Inspectorate. In these circumstances, the IGG was bound by rules of natural justice and fairness while preparing a report for presentation to the Commission. Unfortunately the IGG did not observe the said rules.

We are also persuaded by the ruling of Churaman JA who held that in the absence of clear statutory words to the contrary, a decision-maker deciding a question affecting the rights of an office-holder had a duty to hear the office-holder before a decision could be made. He went further to say that this was even more important because the Commission’s decision not to make a representation to the President would be an end to the matter.

His Lordship Churaman’s arguments apply to the Petition before this Court. Under Article 230 (2) of the Uganda Constitution, the IGG has the discretion whether or not to give directions or orders as a consequence of findings arrived at from an investigation. Just as the Guyana Judicial Service Commission had a duty to act reasonably in deciding whether to make a representation to the President, the IGG had a duty to act reasonably in deciding whether to make any directions/orders to the Judicial Service Commission and reasonableness included giving adequate information to the petitioner at the time he was answering the questionnaire. As it turned out, the answers given by the Petitioner were later defined as inadequate in the letter of the Ag Registrar which interdicted the Petitioner. Further, we note that the Inspectorate’s decision not to make a representation to the Commission could have been an end to the matter and consequently the IGG (decision maker) had a duty to hear the office-holder in absence of clear statutory words to the contrary.  No Uganda legislation denied such a right. On the contrary, the IGG Act in section 25(3) requires that before an adverse report is made on a person, the person must be accorded a hearing, and we emphasise – it must be a fair hearing. 

Even if the IGG could not itself dismiss an officer but could only refer the matter to another body with powers to discipline the officer, the IGG had to act reasonably because even at this preliminary, stage action detrimental to the petitioner could be taken. In the petition before this Court, the petitioner was interdicted solely on the basis of the IGG’s recommendations, since it is on record that neither the JSC nor the Ag. Registrar carried out its own investigations before the petitioner was interdicted. The Petitioner was entitled to a fair hearing because the consequences of the IGG’s report could bring, and in fact brought, untold financial, emotional and social suffering to the petitioner. It is probable that if the petitioner had been informed that he was under investigation, he would have approached the answers differently.

Counsel for the petitioner correctly observed that the process of the removal of a Judge in Guyana was similar to the provisions in the Ugandan Constitution: the Judicial Service Commission investigates the complaint, makes a recommendation to the President who then appoints a tribunal to investigate. It is only after the tribunal’s investigations that a recommendation can be made to the President to remove a Judge. It was further observed that the Commission’s work is preliminary before it makes a representation to the President, but once the representation is made, the Judge is suspended. With this in mind, the Guyana Court concluded that the Judge was entitled to a fair hearing before a commission.

Counsel for the petitioner in the present case thus submitted that similarly in the case before court, although the Inspectorate did not take the final decision on the dismissal of the petitioner but merely made recommendations to the Judicial Service Commission which has power to suspend a judicial officer, the petitioner was entitled to a fair hearing before the Inspectorate.  We accept this argument.

In the Guyana case the Judge had no prior information of the agenda of the meeting with the Chancellor and thus had no ample opportunity to respond to the complaints against him. Similarly, the petitioner in the case before court was not informed by the Inspectorate that he was being investigated but was merely given a questionnaire requiring him to write a statement in respect of the counterfeit kiwi shoe polish case. We have thus come to the conclusion that since the petitioner was not given ample information to enable him realize he was under investigation, he was denied the opportunity to appropriately respond to the complaints against him. In the circumstances, the nature of interaction he had with the Inspectorate could not be deemed to be a fair hearing. It is our judgment therefore that the Petitioner was denied a fair hearing.

We now turn to the specific issue of denial of an opportunity to cross examine witnesses. The power to discipline a Magistrate lies with the Judicial Service Commission by virtue of Article 148 of the Constitution. It is thus our considered opinion that the investigations by the IGG constituted but a preliminary stage, a stage of formation of an opinion by the IGG as to whether to give any orders/directions and if so, the nature of directions to give to the Commission. The decision would no doubt depend on the findings of the investigations. In arriving at the decision whether the IGG was obliged to give the petitioner an opportunity to hear the testimony of persons who gave information implicating him and cross examine them, we are guided by the decision on the issue in the Kenyan Constitutional Case of Nancy MakokhaBaraza versus the Judicial Service Commission and 9 Others [2012] EKLR

In the said case, MakokhaBaraza, Deputy Chief Justice of Kenya petitioned court for declarations that several of her Constitutional rights had been infringed, among them, the right to cross- examine witnesses, who testified against her, during an investigation as to whether she had breached the judicial code of conduct.

The precursor to the issues which were brought to court for determination are events which took place on Saturday 31st  December 2011 at an up market shopping mall in the outskirts of Nairobi, involving the Petitioner and a security guard, one Rebecca KeruboKemuto.  Kerubo alleged that she was assaulted, intimidated and threatened by the Petitioner. The press picked up the episode and it generated a lot of debate in both print and electronic media.

The debate centered on what was the expectation of the petitioner and Ms. Kerubo in matters revolving around public safety and security. The articles and the publications were generally geared towards the manner in which public officers should behave and conduct themselves. In light of the foregoing, the Honorable the Chief Justice in his capacity as Chairman of the Judicial Service Commission convened an emergency meeting of the Commission to discuss the matter. On 9th  January 2012, a full Commission meeting presided over by the Chief Justice met and resolved that a subcommittee be appointed of eight members to look into the said incident and report back to the Commission. The subcommittee interpreted and understood its mandate to be holistic appraisal, audit and investigation of all facets of the incident in so far as it relates to the person of the Deputy Chief Justice. The subcommittee took recognizance of the fact that its mandate relates to an investigation as to whether the Deputy Chief Justice had breached the judicial code of conduct, acted in a gross manner or exhibited a conduct that can be termed as a gross misconduct or misbehavior under Article 168 of the Constitution.

The subcommittee embarked on discharging its mandate by receiving oral and documentary evidence. There were a total of 15 witnesses among them the Petitioner and the complainant. The complainant, Rebecca Kerubo, testified that on 31st December 2011 at 6:00 p.m. while on duty, a lady she did not recognize willfully bypassed the security desk without submitting herself to a mandatory security check. According to her, the Petitioner was un-cooperative, rude and dismissive. The petitioner assaulted her and in the process told her that she “needed to know important people”. The Petitioner later came back to the security desk after buying medicine and ordered her bodyguards to shoot Mrs. Kerubo; and that when the guard declined to obey the order, the Petitioner went away and came back with a gun, which she pointed at her and threatened to shoot.

The Petitioner was afforded an opportunity to testify before the subcommittee.

The subcommittee in due course prepared its report which it handed over to the 1st Respondent – the Judicial Service Commission. After evaluation of witness testimonies and other material evidence submitted, the Commission resolved that pursuant to Article 168(4) it would send a petition to the President with a view of suspending Lady Nancy Baraza as a judge of the Supreme Court and Deputy Chief Justice of the Republic of Kenya and to appoint a tribunal to investigate her conduct. By a letter dated 19th January 2012, the Commission informed the petitioner that after investigating the incident, it had resolved to send a petition to His Excellency the President of the Republic of Kenya in terms of Article 168(1) (e) of the Constitution requesting the President to suspend her from office and establish a tribunal to investigate her conduct. The Commission also enclosed a copy of the said petition and the sub committee’s report.

By a letter dated 19th January 2012, the Commission, pursuant to the provisions of Article 168(2) of the Constitution requested His Excellency the President of The Republic of Kenya to suspend the Petitioner and appoint a Tribunal in terms of Article 168(5) (b) of the Constitution. The said letter stated that the Commission under its constitutional powers to carry out an inquiry into the conduct of a judge had exercised the said powers and carried out an inquiry into the conduct of MakokhaBaraza, Deputy Chief Justice. The letter further stated that the Commission had enclosed therein a petition requesting the President to suspend the Deputy Chief Justice and to appoint a Tribunal in terms of the Constitution to inquire into the conduct of the Deputy Chief Justice.

In her petition, Baraza argued that the Commission (1st respondent), in exercising its powers as conferred upon it by Article 168 of the Constitution exercises a quasi-judicial power which is subject to rules of evidence and the Rules of Natural Justice.

 

Further to the aforementioned, the Petitioner averred that her rights to a Fair hearing as encapsulated under Article 50 of the Constitution had been grossly violated by the 1st Respondent.  The 1st respondent adopted the findings of the delegated Sub- Committee without due regard to and in breach of the rules of natural justice as the Sub-Committee failed to give the Petitioner due notice of the illegal inquiry it was engaged in.

That during the said sub-committee inquiry, the Petitioner was never afforded an opportunity to test the veracity or otherwise of the evidence adduced by the witness who testified at the delegated sub-committee sittings either through cross examination or other modes known to law and as such the 1st Respondent was denied a reasonable opportunity to influence the decision making process and that this was in breach of the succinct rules and principles of Natural Justice.

The Petitioner sought a court declaration that her fundamental rights and freedoms to a fair trial, human dignity, right to privacy, right to fair administrative action and the right to a fair hearing as encapsulated under Articles 25, 27, 28, 31, 47and 50 of the Constitution had been violated by the 1st Respondent.

On the procedural aspects, counsel for the Petitioner submitted, interalia, that the steps leading to the suspension of the Petitioner were unfair and unconstitutional since there was no proper notification of the proceedings, no notification of findings of the sub-committee and comments thereon, and there was lack of cross examination of witnesses who testified before the subcommittee. 

The 1st Respondent filed an affidavit in reply in which it was stated inter alia that members of the sub-committee made a site visit to the scene of the incident, held a meeting with the management of the Mall and also surveyed the general area of the security desk where the alleged incident occurred. Furthermore the Sub-Committee received evidence from 15 witnesses. It also received rebuttal evidence from the petitioner. In essence, the first Respondent asserted that the petitioner was given opportunity to contest or rebut the evidence received from the other witnesses.

Although various issues were identified for determination in the Barazacase, we will limit our reference to the issue of cross examination. Just as it is in the present petition, Petitioner Baraza stated that she was not accorded the right to cross-examine the witness in breach of the rules of natural justice, thereby violating her fundamental rights and freedoms. 

The Court re-affirmed the importance of the principle of Natural Justice, also known as Audi alterampartem (or hear the other side) which requires that persons affected by an adverse position must be given an opportunity to make representations. It however went on to say:

“Whereas it is true that the Petitioner did not cross-examine the witnesses who appeared before the sub-committee, we must reiterate the fact that the Committee was simply evaluating the circumstances surrounding the evidence in question and was not and could not conduct a hearing which is constitutionally, a preserve for the Tribunal.

The Judicial Service Commission is the first port of call (for a person with a complaint against a Judge) and the Tribunal is second port of call. The right of hearing is conferred on the Tribunal.  ….

The jurisdiction of the Judicial Service Commission, the first port of call, is limited to evaluation of the circumstances and it should not trespass into or usurp the jurisdiction of the Tribunal. The second port of call where the actual hearing takes place is Tribunal. Accordingly, we find that the failure to accord the Petitioner the right to cross-examine the witnesses before the sub-committee or by the Commission does not amount to breach of the rules of natural justice. Had the Commission collected the evidence and without hearing the Petitioner’s version made recommendations to the President, we agree that may have been in breach of the Petitioner’s legitimate expectation. We say “may” because in Rees vs Crane (ibid) the Privy Council dealing with the procedure for removal of a judge in Trinidad and Tobago citing several cases stated as follows:

‘In most types of investigation there is in early stages a point at which action of some sort must be taken and must be taken firmly in order to set the wheels of investigation in motion. Natural justice will seldom if ever at that stage demand that the investigator should act judicially in the sense of having to hear both sides.’

… investigation is purely preliminary … Where an act or proposal is only a first step in a sequence of measures which may culminate in a decision detrimental to a person’s interests, the courts will generally decline to accede to that person’s submission that he is entitled to be heard in opposition to this initial act, particularly if he is entitled to be heard at a later stage … There are no words that are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and so forth.

We are satisfied that rebutting allegations by giving her version does not necessarily encompass cross examination at that inquiry stage.”

Drawing analogies from the Baraza case we can conclude that the IGG’s actions were at inquiry stage and in the case of a magistrate in Uganda, the JSC is in the same position as the Kenyan Tribunal.  Like the Committee in the Baraza case, the IGG was simply evaluating the circumstances surrounding the evidence in question and was not and could not conduct a hearing which is constitutionally, the preserve of the JSC. The IGG was, but a first port of call and the JSC was equivalent to Kenya’s Tribunal - second port of call. The right of hearing is conferred on the JSC by Article 148 of the Uganda Constitution. The IGG should not trespass into or usurp the Constitutional jurisdiction of the JSC where the actual hearing takes place. Accordingly, we find that the failure to accord the Petitioner the right to cross-examine the witnesses before the IGG did not amount to a breach of the rules of natural justice.

In most types of investigation there is in early stages a point at which action of some sort must be taken and must be taken firmly in order to set the wheels of investigation in motion. The IGG is such a stage and Natural Justice would not, at this stage, demand that the IGG should give an opportunity for the individual to cross examine the witnesses when the JSC would still have to hear the case. … The IGG’s investigations are purely preliminary because the Constitution prescribes the JSC as the body mandated to handle allegations of misconduct involving a Judicial Officer. The IGG’s investigation and recommendations should be recognized as only a first step in a sequence of measures – at that stage there was no certainty that the said recommendations would culminate in a decision detrimental to the person investigated. We thus decline to accept to the Petitioner’s submission that he was entitled to an opportunity to cross examine witnesses at this initial stage particularly since he was entitled to be heard at a later stage by the JSC.

We have also taken into consideration the rules under which the IGG operates. According to section 20 (1) of the IGG Act the procedure for conducting an investigation shall be such as the Inspectorate considers appropriate in the circumstances of the case. We take judicial notice of the practice by the Inspectorate to wit, while conducting investigations, the Inspectorate does not subject witnesses to cross examination because each witness statement is not taken in the presence of the complainant. In these circumstances the requirements of natural justice would not require that those under investigation be given an opportunity to cross examine witnesses.

In the circumstances we resolve the issue in favour of the respondent. The fact that the Petitioner was not given opportunity to cross examine witnesses who testified before the IGG did not, in itself, contravene the Petitioner’s right to fair hearing.

 

Issue 3

It was argued by the Petitioner that the act of the Ag. Chief Registrar of interdicting the Petitioner on the basis of the Report of the Inspector General of Government without first carrying out his own investigations and according the petitioner an opportunity to be heard contravened various Constitutional Provisions. 

It was contended that the Registrar erred in simply relying on the report of the IGG.

We accept the submission of counsel for the respondent that since the interdiction by the Chief Registrar was done in accordance with Regulation 25(2) of the Judicial Service Commission Regulations, 2005, there was no need for the office of the Chief Registrar to carry out its own investigations. Regulation 25 (1) provides:

“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 performance of those functions if disciplinary proceedings are being taken or are about to be taken … against the judicial officer.”

Further under 25 (2) of the Regulations it is also provided that where the Commission has facts relating to the misconduct of a judicial officer, it may direct the Chief Registrar to interdict that judicial officer.

Counsel for the Respondent ably supported his argument with the Supreme Court decision in the case of AggreyBwire vs Attorney General and the Judicial Service Commission in which Justice C.N.B. Kitumba cited Regulation 25 and held that what the Commission requires before interdiction are facts relating to the misconduct. Justice Kitumba held that an argument that investigations should precede interdiction is not tenable. She further held that there is no need for a person to be heard, (even by the Judicial Service Commission), before interdiction.

We thus hold that the Registrar was not in error. Consequently, issue 3 is resolved in the negative.

 

Issue number 5 

Counsel for the petitioner based his case on provisions of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations and the Public Service Standing Orders to argue that the Judicial Service Commission did not follow laid down procedures in handling the petitioner.

He cited Regulation 12 of the Judicial Service Commission Regulations which provides for the procedure for investigations thus:  (1) On receipt of a complaint the Commission shall expeditiously conduct investigations into the allegations contained in a complaint.

Regulation 12 (3) states that investigation shall include interviewing of witnesses and the complainant. It was contended that neither the Chief Registrar nor the Judicial Service Commission interviewed any witness, or the complainant but just looked at the report of the IGG and the comments of the petitioner. It was further argued that the spirit in both the Judicial Service Commission rules and the Public Service Standing Orders is that the investigations must be handled expeditiously. Counsel for the petitioner pointed out that the interdiction of the Petitioner was in 2005 but since then no investigations were carried out. Instead the commission straight away started a hearing on the basis of the IGG report which said the witnesses are not available.

The petitioner further argued that the conduct of the JSC was also in contravention of specific constitutional rights of the petitioner. The Judicial Service Commission was faulted for proceeding to conduct disciplinary proceedings against the petitioner before conducting investigations as required by rule 12 (1) of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations, 2005.  The said regulation provides that:

 “On receipt of a complaint, the Commission shall expeditiously conduct investigations into the allegations contained in the complaint.”

The court was referred to Regulation 10(2) which provides:

 “where after considering a complaint, the commission decides that a prima facie case has been established, it shall fix a date for the hearing.”

It was thus argued that on receipt of a complaint, the commission is obliged to carry out its own investigations so as to establish whether there is a prima facie case. It is only then that the Judicial Officer will be required to reply and defend himself/herself. It is only after conducting investigations that the Judicial Service Commission can make a finding as to whether a prima facie case has been made and then where appropriate, fix a date for the hearing of the complaint or conduct disciplinary proceedings.

It was argued that in the present case, the Commission erred by simply relying on the flawed investigations by the IGG and thereby denied the petitioner a right to fair hearing.    

On the other hand, counsel for the respondent submitted that there was no failure by the Judicial Service Commission to conduct investigations. He referred to the affidavit of the Secretary to the Commission to which an internal memo dated 30th August 2005 was attached as evidence of investigation. The memo addressed to the Chair of the Commission indicated that the Commission’s Registrar of Planning, Research and Inspection had examined the complaint by Sara Lee Household and Body Care Kenya Limited against the petitioner through examination of and assessment of the complaint as well as the petitioner’s reply to the complaint. On that basis a legal opinion had been written and a finding that the petitioner had a case to answer was made. Counsel submitted that therefore the JSC had carried out its own investigations before arriving at the conclusion that there was a prima facie case against the Petitioner.

It was the submission of the Respondent’s counsel that what was on record as detailed by counsel for the petitioner was an investigation. The internal memo to the Chairman of the Judicial Service Commission from the Registrar Planning, Research and Inspection detailing that he had examined the complaint against the petitioner, the documents that were examined which form the basis of the opinion and his further recommendation that the matter be forwarded to the Judicial Service Commission disciplinary committee for appropriate action was evidence of investigation.

From the record, it is clear to us that what took place was a mere assessment by the JSC Registrar Planning, Research and Inspection, of the complaint, the report of the IGG and the comments by the petitioner.  It was on the basis of this that the legal opinion was made. We accept the Petitioner’s submission and have come to the conclusion that what occurred was not the investigation envisaged in Regulation 12 of the Judicial Service (Complaints and Disciplinary Proceedings) Regulations 2005 which, among other things, requires interviewing witnesses. What was conducted in this case was just desk analysis. We thus resolve issue number 5 in the affirmative.

 

Issues 4 and 6

We will resolve issues 4 and 6 together because they both deal with the right of the Petitioner to an expeditious resolution of his case.

The petitioner argued that even if it can be argued that the Judicial Service Commission was right to start the disciplinary hearings in 2008, by failing to conclude the hearing up to the 2012 date when the petitioner secured from court, a temporary stay of the proceedings before the commission, the commission contravened Article 28(1) of the Constitution which requires a speedy hearing in the determination of civil rights and obligations or any criminal charge. Court was also referred to Regulation 12(1) of the Judicial Service Complaints and Disciplinary Proceedings Regulations which obliges the commission to expeditiously conduct investigations into allegations contained in a complaint it receives. Furthermore Regulation 19 provides that proceedings before the Disciplinary Committee shall be governed by general principles of law applicable in Uganda to wit Principles of Natural Justice. Court was also referred to Order 4 of the Uganda Public Service Standing Orders which provides that the rules of natural justice must apply in all disciplinary cases of whatever description and Order 7 of the same orders which provides that it is essential that when disciplinary proceedings are instituted against a public officer, they are brought to a speedy conclusion. It was submitted that in the circumstances Articles 28(1), 42, 44(c) and 173(b) of the Constitution had been contravened by the delay of the Judicial Service Commission in concluding these proceedings.

On the other hand, counsel for the respondent argued that the Judicial Service Commission could not be faulted for conducting disciplinary proceedings from the 25th July 2007 and failing to conclude them to date.  He submitted that the commission had done everything possible to conclude its investigations and made various attempts to locate the Petitioner for purposes of service of summons. Court was referred to a February 2008 letter from the Commission Secretary to the Chief Registrar in which the Commission communicated that it had failed to proceed with the case because of failure to locate the Petitioner. Court was also referred to the reply from the Chief Registrar in which he reported that it was rumoured that the Petitioner had left Uganda.  Counsel argued that when the Commission was informed that even the Chief Registrar was not aware of the whereabouts of the Petitioner a decision was taken to advertise the hearing notice in the Ugandan media on the 11th March 2008. It was further argued by the respondent that court should also take into account the period between June 2006 and November 2007 when the Commission was not fully constituted and thus could not carry out its mandate. It was further argued that since it was the Petitioner who had sought an interim order on 11th July 2012, the continuous delay was not of the Commission’s doing. The respondent also supported his argument by the fact that there was no evidence adduced by the Petitioner by way of complaint or any other mechanism indicating that he tried to locate and get his matter heard but was frustrated by the Commission. Counsel prayed that the court finds that the Petitioner was responsible for this delay by disappearing from his employer the Judicial Service Commission.

In reply the Petitioner’s counsel argued that there was no evidence of the Petitioner’s disappearance on record.

On this issue, we rule in favour of the petitioner and accept the argument of his Counsel that the Judicial Service Commission took unduly long in concluding the proceedings. The complaint against the Petitioner was received by the Commission on 7 March 2005 but the commission did not take any action until it received the IGG’s report on 1st August 2005. It was then that the Commission wrote to the Petitioner on 8th August 2005 informing him of the recommendation by the IGG that he be disciplined. In a communication to the Commission dated 20 August 2005 the Petitioner denied the allegations in the IGG’s report. On 6th September 2005, the Petitioner was interdicted. In a February 2008 letter to the Registrar, the Commission stated that it had failed to proceed with the case because of the unavailability of the Petitioner. It is only in March 2008 that the commission made a decision to apply substituted service and summoned the Petitioner through a local news paper. An internal memo dated 30th August 2005 contains communication to the Commission Chairman to the effect that the complaint by Sara Lee Ltd against the Petitioner had been assessed through examination of various documents and a prima facie case of incompetence and misconduct had been established against the Petitioner. The memo consequently recommended that the matter be referred to the JSC Disciplinary Committee for appropriate action.

Even if Court was to take into consideration the period from June 2006 and November 2007, when the contracts of the members of the commission expired and the Judicial Service Commission was unable to carry out its mandate for lack of commissioners, the time lag between receipt of the complaint and the decision to resort to the use of substituted service could not be justified.

The respondent failed to prove the allegation that the Petitioner could not be reached for service of summons and that the Petitioner had absented himself from Uganda. A statement by the Chief Registrar that he had received “unconfirmed rumours” that the Petitioner was outside Uganda, could not be relied on as evidence of absence by the Petitioner. The Petitioner applied for stay of execution at a time when his right to a speedy hearing had already been violated and the respondent cannot be heard to say that the application be negatively visited on the Petitioner whose rights had already been violated.

We thus hold issues 4 and 6 in favour of the Petitioner.

 

 

 

 

Prayers

Counsel for the Petitioner prayed for the following Orders:

•       An order of permanent injunction, restraining the Judicial Service Commission from carrying out disciplinary proceedings against the Petitioner since the proceedings were already flawed.

•       An order reinstating the Petitioner in Public Service as Ag. Chief Magistrate and payment of full emoluments for the period under interdiction or in the alternative but without prejudice, an order that the Petitioner be retired with all arrears of pay since interdiction, gratuity and pension and other retirement benefits.

•       An order for payment of general damages to the Petitioner for the suffering and great inconvenience he has undergone since interdiction in 2005.

•       Costs of this petition by the Respondent.

In reply, counsel for the respondent argued against the prayers on the basis that a prima facie case had been established against the petitioner prior to interdiction and disciplinary proceedings have since been commenced. This, he submitted, would enable the petitioner to defend himself before the Commission and thus a prayer to declare that the said proceedings are flawed, even before the conclusion of the case was premature.

He further argued that an order for reinstatement and payment of full emoluments for the period of interdiction is tantamount to the petitioner circumventing the complaints raised against him. Such order would in effect be a finding that the petitioner was innocent even before the appropriate body (the Judicial Service Commission) considers the complaint and arrives at a verdict.

He further argued that if this court granted the Petitioner’s prayer, the court would thereby be in breach of the mandate of the Judicial Service Commission under Article 147(d). Counsel prayed the matter be finally disposed of by the Judicial Service Commission. He further submitted that this court is a court purely for interpretation of the Constitution and not for adjudication of matters of employment especially where there is a specific body (in this case the JSC) mandated to carry out that function.

In reply to the prayer for damages, Counsel for the Respondent submitted that under Article 137(2)(b) the Constitution, this Court is clothed with the authority to declare actions or omissions inconsistent or in contravention of the Constitution and is a wrong forum for seeking general damages. He further argued that award of damages is an issue for adjudication before the High Court, that it is not a matter for Constitutional interpretation. 

Orders of the Court

We disagree with the way Counsel for the Respondent has interpreted the powers of this court. An application for redress can competently be made to the Constitutional Court in the context of a Petition under Article 137 of the Constitution. Article 137 (4)(a) provides that where upon a determination of a Petition under clause (3), court considers that there is need for redress in addition to the declaration sought, the constitutional court may grant an order of redress. Having found that the Petitioner’s rights have been violated by the Judicial Service Commission, we allow the Petition and order as follows:

1.     The Judicial Service Commission is ordered to discontinue and  stay any disciplinary proceedings against the Petitioner arising out of the facts in this Petition.

2.     The Petitioner to be paid full salary for the period since interdiction, with interest at Court Rate until payment in full

3.     The Petitioner is awarded costs of this Petition. 

Court is nevertheless of the considered opinion that no grounds to warrant award of general damages have been proved and that the Petitioner will be sufficiently atoned by the Court’s Order that he be paid full salary for the period since interdiction, with interest at Court Rate until payment in full.

 

 

 

 

 

Dated at Kampala……23rd……day of…May………………..2014

 

 

…………………………………………………………………………………

HON MR. JUSTICE S.B.K.KAVUMA, Ag. DCJ

 

……………………………………………………………………………………..

HON.MR.JUSTICE REMMY KASULE, JA

 

………………………………………………………………………………………

HON. MR. JUSTICE ELDAD MWANGUSYA, JA

 

……………………………………………………………………………………

HON. LADY JUSTICE SOLOMY BALUNGI BOSSA, JA

 

…………………………………………………………………………………….

HON. JUSTICE PROF. L TIBATEMWA-EKIRIKUBINZA, JA