Dhikusooka & 21 Others v The Attorney General (Constitutional Petition 10 of 2009) [2009] UGCC 6 (17 July 2009)

## THE REPUBLIC OF UGANDA IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA **CONSTITUTIONAL PETITION NO. 10 OF 2009**

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#### **BETWEEN**

# 1. DHIKUSOOKA MAJIDU & 21 OTHERS :::::::: PETITIONERS AND

THE ATTORNEY GENERAL:::::::::::::::::::::::::::::::::::: **CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA** HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE C. N. KITUMBA, JA HON. JUSTICE C. K. BYAMUGISHA, JA HON. JUSTICE A. S. NSHIMYE, JA

### SUMMARY JUDGEMENT OF THE COURT.

Dhikusoka and 21 others petitioned this court under Article 137

(3) of the Constitution and Rule 3 of The Constitutional Court 20 (Petitions and References) Rules, S.1 2005 No. 91 seeking various declarations which were crystallised into one issue, namely:

- 5 "Whether or not the re-appointment of the Inspector Ceneral of Government (lGG) and Deputy IGG requires Parliamentary approval in order for them to serve their respective second term and last terms of office under Article 223 (7) of the constitution'" - The petition was supported by various affidavits of the petitioners' and those of H. E the President and the Hon Lady Justice Faith Mwondha. l0

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The answer to the petition was supported by the affidavits of the rs Attomey General, the Hon' Speaker to Parliament' Deputy Clerk to Parliament amongst others'

Mr. George Omunyokol with Mr' Paul E'kochu and Mr' Edward Anguria appeared for the petitioners while Ms' Robinah Rwakoojo Acting Director Civil Litigation, Ms' Clare Olaki and Mr' Edison Karuhanga, both State Attorneys represented the respondent' 20

<sup>5</sup> At the conclusion of the hearing of this petition, and in order to expedite its conclusion we decided, to deliver a summaly judgment and reserve our reasons tilI a later date.

The brief background to the matter is as follows:

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On 23-02-05, H. E the President of Uganda appointed Hon. Lady

lo Justice Faith Mwondha, AS Inspector General of Government (lGG) in accordance with Article 223 (4) of the Constitution, with the approval ol Parliament. Beflore the constitutional term of 4(lour) years ended, which was due to expire on 23-02-09, H. E the President signed an instrument of appointrnent on 12-02-09 t5 renewing her contract as IGG.

President wrote to the Head o[ Public Service forwarding the above instrument lbr his further marlagelnent By letter dated 13-02-09, the Principal Private Secretary to H. E the

wrote to the Principal Private Secretary to H. E the President advising that the appointment of the IGG and Deputy IGG required <sup>20</sup> By letter dated 20th February, 2009 the Head of Public Service

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<sup>5</sup> parliamentary approval. I{e also sought the opinion of the Attorney General on the matter.

The A-G wrote an opinion addressed to the H. E President. ln the opinion he advised that the re-appointment of IGG and Deputy IGG required parliamentary approval.

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of the Hon Lady Justice Faith Mwondha and Mr. Raphael Baku Obudra to the Speaker ol Parliament for parliamentary approval. By letter dated 25-02-09. H. E the President forwarded the names

l5 On 26th March 2009 the Clerk to Parliament invited Hon. Lady Justice Faith Mwondha to the standing committee on 13l (l) and 132(2) (f) ol'thc Rules ol procedure o[ parliarnent Appointments set up under article 90 oIthe constitution and Rules

By letter dated 3 l" March 2009 addressed to the l{on. Speaker of

<sup>20</sup> Parliament I-lon. Lady Justice lraith Mwondha declincd to appear before the Appointments Committee of Parliament because, according to her, it was unconstitutional for her to do so.

By letter dated I't April 2009, addressed to llis Excellency the President, the Speaker of Parliament stated that the committee declined to approve the re-appointment of Hon. Lady Justice Faith Mwondha as IGG because she declined to appear before the said lo committee.

On22-04-09 the petitioners filed this petition which was amended on 08-05-09.

At the scheduling conference and in court, the issue remained l5 whether or not the reappointment of the IGG and Deputy IGG requires parliamentary approval in order for them to serve their respective second and last terms of office under Article 223 (7) of the Constitution.

### <sup>20</sup> l'hc relcvant impugncd articlcs rcad:

Articlc 99 (I) stues

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(1). The executive authority of Uganda is vested in the President and shall be exercised in accordance with this constitution and the laws of Uganda'.

Article 223.(4) The Inspector – General of Government and a Deputy Inspector - General shall be appointed by

- the President with the approval of Parliament and $10$ shall not, while holding office, hold any other office of emolument in the public service. - A person shall not be eligible for appointment as $5)$ **Inspector General of Government or Deputy Inspector**

-General of Government unless that person -15

is a citizen of Uganda, and $\left( \frac{a}{a} \right)$

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- is a person of high moral character and proven integrity; $\boldsymbol{b}$ ) and - Possesses considerable experience and demonstrated $c)$ competence and is of high caliber in the conduct of public 20 *affairs.* ..............

Inspector - Generol sltull hold office for n tcrm of Jbur years but sltall be eligible for re-appointment only <sup>o</sup>rlce 5 (7) Thc lrtspcclor-Gene rrl of Govcrnntcnl und Deputl,

Article 253 (I) provides:

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t0 "where ony person has vacated an office established by this constitution, that person mfly if qualiJied, agoin be appointed or elected to holcl thil office in occordance with tlrc provisions of the conslitution."

Turning to the submissions for the petitioners, Mr. Omunyokol l5 pointed out that there was no requirement for the IGG and Deputy IGC to appear before parliament for approval for their second and last term of office. The acts of His Excellency the President, the relevant officers and relevant institutions to wlt the Attorney General, the Ilead of Public Service, Clerk to Parliament, thc <sup>20</sup> Appointments Committee of Parliament were unconstitutional. He

contended that even Article 253(l) is inapplicable

<sup>5</sup> ln Mr. Ornunyokol's view article 253 (l) applies to ar-r officet'wl.ro has vacated office, Article 223 (7) docs t-tot refer to fomrer IGG and Deputy IGG. It covers serving IGG and Deputy IGG. He asserted that by adding a requirement for parliamentary approval to article 223 (7), the respondents are seeking to amend the l0 constitution unconstitutionally. He prayed court to allow the petition with costs.

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For the respondent it was vehemently argued that the rers Parliament in order for thcm to serve their last tcrms of office under Article 223 (7) of the constitution. Ms. Rwakoojo submitted herein were constitutional and that the declining oI Hon. Lady Justice Faith Mwondl-ra to appcar belbrc Parliarnentary <sup>20</sup> Appointments Committee and her continued stay in office was unconstitutional. She prayed court to so find. The petitioners are not entitled to the remedies sought. She pointed out that Article appointment of the IGG and Deputy IGG requires approval of that the acts of H. E the Prcsident and other officers mentioned

s 223 (4) is very clear. Appointtnent is witli tl-re approval ol Parliament. It is not just in consultation with Parliarnent. She explained that Article 223 (5) and (6) set out the qualifications and conditions of an IGG so as to be approved, while Article 223 (7) sets out a specific term of 4 (four) years for which she/he must l0 serve, but that after that term he/she will be eligible for rea appointment only once.

> together to give meaning and effect to the provisions. A rel5 appointment is a fresh appointment. She referred us to the learned Attorney General's legal opinion where he defines appointment and re-appointment, which opinion binds court unless otherwise proved. Ms. Rwakoojo submitted that clauses (4) and (7) have to be read

She prayed for dismissal olthe petition with costs

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ln interprcting the constitutional provisions \1'c are alive to thc following grridelines, namcly :

- That the constitution is the Supreme law of the land. $a)$ $\mathsf{S}$ - All provisions relevant to an issue are to be brought into $b)$ perspective to give effect to or not to derogate from the intention of the constitution. - The method of interpretation is an open-ended process. $c)$ - explores and attaches signifance to every word or $It$ 10 clause and the grammar in relation to the whole context; The court searches for the exact meaning of words and use of terms. - The constitution is interpreted in the context that exists at $d)$ - the time and when not it was passed, otherwise it will 15 take into account the growth of the society cease to which it seeks to regulate. - The purpose and effect of the provisions is relevant in $e)$ determining constitutionality.

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Having regard to the foregoing principles of interpretation, more particularly **(b)**, we find the inevitable and inescapable conclusion

- 5 to be that parliamentary approi'al is a constifutional requirement under article ??3(4) for the IGG and Deputy. IGG to serve their respective second tern-rs in office under article 223 (7). Were we to hold otl-rerwise we would be strongly at variance with the spirit of the constitution. - r0 Consequently the petition stands dismissed with no order as to CoStS.

Lastly we wish to add that the ir.rterim orders made by this court on 20'r' May 2009, vide Cor-rstitutional Application No. 9 of 2009, l5 regarding the emoluments and benefits of the Hon. Lady Justice Faith Mwodha are hereby vacated.

As pointed out above rve shall be giving our detailed judgment later

rh <sup>20</sup>Datcd at Kampala thrs t1 day ol -Y<sup>009</sup>

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HON. JUSTICE A. E. N MRAGI-BAHIGEINE, $\quad \ \ \textbf{JUSTICE OF APPEAL}$

HON. JUSTICE<sup>S. G.</sup> ENGWAU, JA

JUSTICE OF APPEAL

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$C_{\mathcal{N}}$ HON. C. N. KITUMBA, JUSTICE OF APPEAL

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HON. JUSTICE C. K. BYAMUGISHA,

JUSTICE OF APPEAL

HON. WUSTICE A. S. NSIMYE, JA JUSTICE OF APPEAL

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