AG Kiryowa stops State House from prosecuting judicial officer

Ms Mudhasi was interdicted on June 24, 2020, by then acting Chief Registrar Tom Chemutai, accusing her of producing poor standard work, conducting herself in a manner prejudicial to the image and dignity and reputation of service contrary to the Judicial Service Regulations of 2005.

The allegations against Ms Mudhasi are that she had conspired with lawyers Akleo Mugisha and Martha Orishaba, and the RAM Engineering Company Director Julius Mugambagye to defraud Makerere University of Shs3.5b.

Background

Ms Mudhasi allegedly between May and June 2020, when she was employed as the Deputy Registrar, abused her office and did an arbitrary act prejudicial to the interest of her employer.

She reportedly issued exparte court orders for attachment of the money from Stanbic Bank account of Makerere University to satisfy a non-existent arbitral award that had purportedly been won by Ram Engineering Uganda Ltd without ascertaining if the university owed the company anything.

After her interdiction, Ms Mudhasi was arrested first by Uganda Police Force and the State House Anti-Corruption Unit on top of another complaint before the Judicial Service Commission.

Unhappy with the parallel investigations, Ms Mudhasi through her lawyers led by Fred Muwema, asked the court to issue a temporary injunction against her pursuers.

She argued that she would suffer double jeopardy of parallel investigations which has taken away her constitutional right to judicial immunity from suit and have visited immeasurable harm to her.

While at the time the Attorney General’s chambers opposed the application arguing it was never required to report both to Uganda Police CID headquarters and the State House Anti-Corruption Unit, the same office has now changed position, and instead asked the State House Anti-Corruption Unit and police to stop further investigations and prosecution of Ms Mudhasi.

In a letter dated August 6,  Kiryowa says under Article 128(4) of The Constitution of the Republic of Uganda, 1995 a person exercising judicial power is not be liable to any action or suit for any act or omission by that person in the exercise of judicial power.

He said the law is very clear that the state stands to lose the case if they go ahead to prosecute the officer.

In his advice to the two entities, Mr Kiryowa said Section 46(1) of The Judicature Act provides that a judge or other person acting judicially is not be liable to be sued in any civil court for any act done or ordered to be done by that person in the discharge of his or her judicial functions, whether or not within the limits of his or her jurisdiction.

Quoting Section 13 of the Penal Code Act, Mr Kiryowa said the section also provides that a judicial officer is not criminally responsible for anything done or omitted to be done by him or her in exercise of his or her judicial functions.

“The above provisions of the law protect all actions of a judicial nature, whether or not they are within the limits of a Judicial Officers’ jurisdiction. A judicial act covered by judicial immunity is an act that occurs while the judge is resolving a dispute. In the premises, the act of subjecting the Applicant, who is a Judicial officer to arrest, criminal investigations and prosecution for issuing Garnishee Orders in Miscellaneous Application No. 26/2010, is contrary to the above provisions of the law and amounts to depriving the applicant of her constitutional immunity,” he said.

“We therefore do not see any chances of succeeding in the main application and would advise that you halt any criminal proceedings against the applicant and let the Judicial Service Commission handle the matter,” Kiryowa concluded in his advice.

Ruling

In his earlier ruling while granting a temporary injunction, Justice Musa Ssekaana said the application raises serious issues to be tried in the main cause, especially on the legality of actions of the Uganda Police Force and State House Anti-Corruption Unit in investigating Mudhasi’s judicial work.

“The court should always be willing to extend its hand to protect a citizen who is being wronged or whose rights are being violated or threatened to be violated or is being deprived of property without any authority of law or without following procedures which are fundamental and vital. But at the same time, judicial proceedings cannot be used to protect or perpetuate a wrong committed by a person who approaches the court,” Ssekaana he said.

He also added that the actions of the Attorney General must be rooted in the law and any divergence and abuse of power must be restrained as the court investigates the circumstances surrounding the decision made by the public body.

ISSUE

Mr Kiryowa said Section 46(1) of The Judicature Act provides that a judge or other person acting judicially is not be liable to be sued in any civil court for any act done or ordered to be done by that person in the discharge of his or her judicial functions, whether or not within the limits of his or her jurisdiction.