Dispute over sitting Ugandan judges appointed to head prosecution arm

9 April 2021 · Carmel Rickard

Is a sitting judge allowed to take a job as head of his or her country’s prosecution services? And if a court finds that it was unconstitutional for the judge to accept the second position, what is the status of the judge’s decisions as a prosecutor? These, and difficult, related questions, have been raised in Uganda, where a series of judges have been appointed to other government jobs, without first resigning from the bench. The initial answers to the questions around the DPP job were decided in a constitutional petition last month: it’s unconstitutional, the court said, and from now on decisions by any judge who takes another government position without first resigning as a judge, will be invalid. Faced with an uproar from the prosecution services, however, the supreme court, the country’s apex forum, is to reconsider the question.

Read judgment

The constitutional challenge brought by Ugandan lawyer, Bob Kasango, and decided a couple of weeks after his death in prison, continues to cause waves in Uganda. That’s not so much because of the questions still being asked about the sensational trial that saw him sent to prison for 16 years. But rather because the issues he raised in his constitutional petition have revealed a state of affairs in Uganda’s judicial arm about which serious questions are being asked.

Kasango argued that his trial was unlawful because the director of public prosecutions, Mike Chibita, who, according to Kasango, prosecuted the case against him, was also a judge of the high court.

Kasango’s point was that it was unconstitutional for a judge to hold two such positions – to be a judge and thus a member of the independent judicial arm of government, and at the same time, be head of the state’s prosecuting arm. Explaining his position, Kasango gave examples of when he felt that Chibita's concurrent holding of these two positions was to his [Kasango’s] serious detriment.

Vexatious

Before the constitutional court, the attorney general and director of public prosecutions strongly disagreed with Kasango’s argument, calling it frivolous and vexatious, and claiming that the petition was nothing more than an abuse of court process.

The five judges hearing the constitutional petition, however, were no so easily persuaded that Kasango was talking frivolous nonsense.

An earlier case with some similarities seemed to point the way the court should go, said the judges. In that matter, a sitting judge was appointed as inspector general of government but did not resign her seat on the bench. In the earlier case, the court had asked how one individual would be able to ‘honour two oaths, to perform conflicting duties and exercise conflicting powers’? It ultimately held that the appointment of a judge to the post of inspector general of government violated the constitution because the job ‘is not compatible with that of a judge’ and infringed the separation of powers.

Unconstitutional

There was little difference between the principles established in the earlier case and those involved in the Kasango case, said the court last month. There was no dispute that Chibita was ‘regarded by the judiciary’ as a sitting judge; he had not resigned from the judiciary and his concurrent appointment to head the office of the director of public prosecution was therefore unconstitutional, null and void.

But all members of the court hearing Kasango’s petition, individually and collectively, then went on to find that though the appointment was unconstitutional, the actions taken by Chibita in that DPP position, were valid.

This may not be easy for an outsider to understand. But the next part of the court’s decision was even more difficult: while all Chibita’s actions as DPP were valid and did not in themselves contravene the constitution, said the court, from now on, things would be different. If any judge were to be appointed to an executive position in the future without first resigning as a judge, this would make his or her actions invalid.

Conflicting

The difficulty for many readers might be this: why should actions taken by Chibita in his capacity as DPP be found valid by the court, for what the judges said were constitutionally sound reasons, while actions by a judge who took a similar, conflicting appointment in the future, would not be valid.

What would make constitutionally sound reasons in Chibita’s case no longer sound in a future case? – Was it simply because the court in the Chibita matter had issued a ‘warning’ that invalidity loomed?

Whatever the answer to these questions, the judgment led to a flurry of activity – though not from Kasango, who had died several weeks before judgment was delivered.

‘Cripple’

Two weeks after the decision finding Chibita’s appointment as DPP unconstitutional, the attorney general and the new DPP – another judge, incidentally – both approached the supreme court.

They asked for a stay in the effect of the Kasanga judgment – the court’s warning that decisions of any other judge who took incompatible office within government without first resigning as a judge, would be invalid.

They said that the court order would have far reaching implications and would ‘cripple’ prosecution in the courts. In response, the supreme court issued an interim order suspending the implementation of the ban on judges taking other government positions, until it has heard the matter fully and decided on the appeal.

In the years since Kasango was convicted and sent to prison, the then-DPP, Judge Mike Chibita, returned to the bench full-time and was elevated to the supreme court. His place as DPP has been filled by another sitting judge.

Carmel Rickard

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