City Lawyers Oscar Kihika and Jude Byamukama have today morning weighed in on the Constitutional Court ruling involving deceased lawyer, Bob Kasango who filed a petition challenging the appointment of Justice Mike Chibita as the Director of Public Prosecutions without resigning his job as a judge.
Kasango died last month at Luzira Murchison Bay Prison where he had been jailed in 2018 and the death was attributed to a heart condition he had since 2014.
In 2016, however, the Late Kasango dragged the Directorate of Public Prosecutions (DPP) and the Attorney General to the Constitutional Court arguing that it was “illegal, unconstitutional and causes a fusion between the executive and judiciary on top of undermining the independence of the judiciary and the separation of powers as enshrined in the constitution for judges to be appointed to other government positions without first resigning as judges.”
In the lead judgment delivered by Justice Kenneth Kakuru, on behalf of a panel of other justices including Geoffrey Kiryabwire, Cheborion Barishaki, Stephen Musota and Muzamiru Mutangula Kibeedi, the Constitutional Court ruled that it is illegal for a judge to be appointed to any executive or constitutional office and that assuming the position without first resigning as judges is illegal.
“I would like to observe that judges and justices are still being assigned and or appointed to various executive and constitutional offices. The relevant authorities, especially the Judicial Service Commission must ensure that before a judge or justice takes up another appointment, he or she first resigns,” Justice Kakuru ruled.
“Judicial officers as custodians of justice must comply with this constitutional requirement. They must not be seen to be contravening the very constitution they took oath to uphold while requiring others to uphold it. Consequently, any appointment of a judicial officer to any executive or constitutional office prior to his or her resignation from the judiciary shall be null and void and his or her actions will be null and void.”Kenneth Kakuru, JA
The interpretation of the judgment means that Justice Jane Frances Abodo, the current Director of Public Prosecutions (DPP) and the Electoral Commission chairperson, Justice Simon Byabakama ought to resign as judges of the High Court so as to continue serving in their current respective positions in which they were appointed by President Museveni.
However, the judges of the Constitutional Court ruled that the investigations, arrest and prosecution of the deceased lawyer, Bob Kasango while Justice Mike Chibita held the office of the Director of Public Prosecutions didn’t contravene any provisions of the Constitution.
Speaking about the matter today morning while appearing on NBS TV’s Morning Breeze, Constitutional Lawyers Oscar Kihika and Jude Byamukama welcomed the ruling and said it was great for the Judiciary as regards maintaining work force as well as helping advance the doctrine of Separation of Powers in government.
“Constitutional interpretation decisions are always informatory; some may be groundbreaking others may not. I think this one (the Kasango Ruling) maybe directory in terms of how the law is interpreted going forward.” Lawyer Kihika said.
He asserted that what the Judges were amplifying in the ruling is the doctrine of separation of powers in government where the three arms (Executive, Legislature and Judiciary) work separately of each other to maintain checks and balances.
For his part, Mr. Byamukama said the decision must have silently been cherished within the circles of the Judiciary in an age where they have been battling with Human Resource.
“I would want to imagine that the Judiciary should quietly be celebrating this decision in a sense that important human resource of the Judiciary is increasingly taken away to perform Executive roles.” Byamukama said.