Judicial Service Commission speaks out on acting judges

In the recent past, President Museveni, riding on the advice of the Judicial Service Commission (JSC), has been appointing judges in acting capacity for two years, a move the Constitutional Court held as unconstitutional.

But speaking to this publication last Wednesday, the chairperson of the JSC, Justice Benjamin Kabiito, explained that Article 147 1(a) empowers them to advise the President to appoint judges in acting capacity.

“It’s true the Constitutional Court found as they did in the Kabumba Busingye Vs Attorney General case but the Supreme Court has since stayed the implementation of its orders that were to among others regularise the appointment of the acting judges within a period of six months,” he said in an interview.

Article 147 1 (a) states that the JSC’s role is to advise the President in the exercise of his power to appoint persons to hold or act in any office specified in clause (3) of this article, which includes power to confirm appointments, to exercise disciplinary control over such persons and to remove them from office.

In a period of less than a year, President Museveni, acting on the advice of the JSC, has appointed 27 judges in acting capacity. He has also appointed a good number of registrars and magistrates in the same acting capacity. 

The first batch of the 16 acting judges of the High Court was last year successfully contested before the Constitutional Court by Makerere University law don, Dr Kabumba.

Justification

Justice Kabiito explained that the two years acting period is, among others, being used as an assessment tool for the appointees. This, he said, is to assess them on whether they will be able to meet the set Key Performance Indicators (KPIs) and in turn, be confirmed on their appointment.
He said if at the end of the two years the appointee is below the minimum pass mark, he or she reverts to their old position of say, being a registrar or magistrate.

However, the Uganda Law Society (ULS) insists it’s unconstitutional to appoint judges in acting capacity.

 “As the Uganda Law Society, we welcome the appointment of more judges to the Judiciary because it helps us deal with a backlog of cases. What, however, is more important is the fact that these judges should not be appointed on acting basis because one of the fundamentals for the Judiciary is the independence and security of the tenure,” The president of the ULS, Mr Bernard Oundo, said.

He continued: “Security of the tenure gives the judges the ability to make the decisions independently. Now if you appoint a judge in an acting capacity, it means that there is a potential that the judge may not be confirmed....”