Honourable Justice Anup Singh Choudry v Attorney General (Civil Appeal No. 91 of 2012) [2014] UGCA 147 (18 June 2014)

Full Case Text

### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO. 0091 OF 2012

(ARISING FROM HIGH COURT MISCELLANEOUS CAUSE NO. 74 OF $2012)$

HONOURABLE JUSTICE ANUP SINGH CHOUDRY... APPELLANT

#### **VERSUS**

ATTORNEY GENERAL....................................

CORAM:

# HONOURABLE MR. JUSTICE REMMY KASULE, JA

HONOURABLE MR. JUSTICE RICHARD BUTEERA, JA

## HONOURABLE LADY JUSTICE SOLOMY BALUNGI BOSSA JA

#### JUDGMENT OF THE COURT

## **Introduction**

This is an appeal from the judgment and decision of the High Court ( $\overline{z}$ ehurikize J.) dated July 5, 2012. That decision stems from an application for Judicial Review filed by the appellant before the High Court of Uganda vide Honourable Justice Anup Singh Choudry v. Attorney General **HC-00-CV-MC-No.0074 of 2012.** The application was filed under S. $24(2)(b)$ of the Judicial Service Act, Ss. 33, 36, 38, 41 and 42 of the Judicature Act (cap 13), and Order 52 Rules 1 and 3 of the Civil **Procedure Rules.** It sought orders that a declaration be made that the Judicial Service Commission (JSC) report to His Excellency the President of the Republic of Uganda made on July 2, 2009 regarding the applicant is null and void; that an order of certiorari issues to quash the said JSC

$\mathbf{1}$

report; that an order of Prohibition issues to stop the JSC from enforcing and taking any further action premised on the JSC report and that provisions be made for the costs of the application.

The JSC Report that was sought to be quashed had recommended that a Tribunal be appointed under **Article 144 of the Constitution** to investigate the question of the removal of the Appellant from office as a Judge of the High Court of Uganda. The High Court delivered judgment on July 5, 2012 and declined to grant the orders sought by the Appellant, hence this appeal.

While this appeal was still pending, the Appellant filed in this Court **Miscellaneous Application No. 0271 of 2013** in which he sought an injunction order prohibiting the JSC from implementing, following up or pursuing the advice to H E the President of Uganda to appoint a tribunal to consider the removal of the appellant from office as a Judge of the High Court of Uganda, until several pending matters had all been respectively and finally determined by the Constitutional Court. The pending matters included this appeal, **Constitutional Petition No. 11 of 2012**, Honorable Justice Anup Singh v. Uganda Law Society and Attorney General, Miscellaneous Application No. 14 of 2012 (arising from Constitutional Petition No. 11 of 2012); and Pastor Bosco Odiro v. Attorney General, Constitutional Petition No. 34 of $2012.$

**Miscellaneous Application No. 0271 of 2013** came up for hearing on February 10, 2014 before us. The Applicant in the said application, who is also the Appellant in this appeal, claimed that he stood to suffer substantial loss and irreparable damage, which cannot be atoned for in damages, if an injunction order is not issued stopping the JSC from implementing, following up or pursuing the advice to H E the President of Uganda, to appoint a tribunal to consider removal of the Applicant/Appellant from office as a Judge of the High Court of Uganda, pursuant to the judgment

delivered by the High Court (Civil Division) on July 5, 2012, which did not stop the challenged acts and omissions of the JSC.

He further claimed that all the pending matters have a substantial legal bearing on the propriety of the advice rendered by the JSC to H E the President of Uganda to appoint a tribunal to consider the removal of the Applicant/Appellant from the office as a Judge of the High Court of Uganda, which had yet to be decided by the Constitutional Court. If not stopped all decisions in those cases would be rendered nugatory. He further averred that this **Civil Appeal** raises questions of fact and law which are of public importance and stands great chance of success. The balance of convenience was in favor of granting the application and it was just and equitable to grant the orders sought. Both *Miscellaneous* **Application No. 0271 of 2013** and this appeal were placed before us on February 10 and 12, 2014.

As regards the Application, we ordered for preservation of the status quo until conclusion of this appeal. This decision therefore disposes of **Miscellaneous Application No. 0271 of 2013** as well as the appeal.

## **Legal representation:**

The Appellant was represented by learned Counsel Jimmy Muyanja and the Respondent by learned State Attorney Henry Oluka.

# Grounds of appeal

The grounds of appeal were framed as follows:

- 1. That the learned Trial Judge erred in law and fact to hold that the letter from the Chairman Judicial Service Commission constituted a complaint from the Uganda Law Society against the appellant. - 2. That the learned Trial Judge erred in fact to hold that the letter of December 17, 2008 was the first complaint by the Uganda Law Society, against the appellant. - 3. That the learned Trial Judge erred in law to hold that s. 11 of the Judicial Service Act (cap 24), did not apply to disciplinary proceedings against a Judge of the High Court such as the appellant.

- 4. That the learned Trial Judge erred in law to hold that there is no prescribed procedure to be followed by the Judicial Seruice Commission whilst handling disciplinary proceedings against a Judge of the High Court - 5. That the learned Trial Judge erred in law and fact to hold that the applicant was afforded an oppoftunity by the Judicial Service Commission to state his side of the case. - 6. That the learned Trial Judge ered in law and fact to hold that the applicant was afforded a fair hearing. - 7. That the learned Trial Judge erred in law and fad to hold that the letter by Professor Frederick Ssempebwa did not raise suspicion of bias or impaftiality - 8, That the learned Trial Judge erred in law and fact to hold that the Attorney General was not caught in a conflict of interest as an ex-ofllcio member of the ludicial Seruice Commission and the Uganda Law Society, in acting as principal legal adviser of the Government and His Excellency the President of the Republic of Uganda. - 9. That the learned Trial Judge ered in law and fact to hold that failure to inform the appellant of the decision made sometime in July 2009 was not fundamental as to invalidate the decision of the Judicial Service Commission.

#### e appellant prayed thau

appeal be allowed

- (a) A declaration be made that the ludicial Seruice Commission's report made on July 2, 2009 regarding the Applicant/Appellant is null and void - (b) A certiorari order be issued quashing the said Judicial Seruice Commission report - (c) An order of prohibition issues to stop the Judicial Service Commission from enforcing and taking any further action on the said repoft - (d)The appellant be granted costs in the Court of Appeal and in the High Coutt below

# ckground

e brief facts of the appeal as they appear in the Appellant's conferencing , his submissions and in his affidavit accompanying the application for icial review in the High Couft are as follows: The Appellant is a Judge of e High Court of Uganda. He was appointed to this position on May 2, 08. On December 5, 2008, the then Honourable Chairperson of the JSC, . Justice Manyindo wrote to the appellant notifying him that the JSC had \$

ived from the Uganda Law Society (ULS), documents relating to his al by the Solicitors' Disciplinary Tribunal of England and Judgment of the upreme Couft of Judicature Court of Appeal (Civil Division), UK. He nclosed the documents and asked the appellant to comment on the ecisions of the Court and Tribunal. These documents concerned previous nduct regarding the Appellant's solicitor's practice in the United Kingdom.

n December 17, 2008, the then President of the ULS, Mr. Oscar John hika wrote to the Secretary JSC asking the JSC to formally request the ppointing authority to reverse or rescind the appellant's appointment on e basis that he was not a fit and proper person to hold the office of a igh Couft Judge in Uganda. The reasons for which he was said to be nfit were that as a solicitor in England and Wales, he had made bogus aims for costs and he was subsequently struck off the roll of solicitors, nd he never successfully appealed against the decision vide Times wspaper Limited v, Anup Singh Choudry Case No. 98/O829fi,

e appellant sought further and better particulars, from the JSC, arding the complaint against him, in a letter dated January 5, 2009. The SC did not respond to this letter. The appellant made a response dated une 19, 2009 which was filed with the JSC between July 24 and 29, 2009. e response was prepared for him by Counsel Peter Cafter QC, a member f the Bar of England and Wales. Counsel Peter Carter invited the JSC to ect the complaint against the Appellant, on the ground, amongst others, at his being recommended by the JSC and his being subsequently ppointed a High Court Judge in Uganda by H E the President were done hen the appointing authorities were fully aware of his having been struck ff the Roll of Solicitors in the UK.

e appellant also filed a complaint with the JSC between July 2 and 9, 009 concerning the composition of the membership of the JSC which was estined to hear the complaint against him. His complaint raised the llowing objections to the jurisdiction of the JSC and we quote:

"1. That even though Professor Frederick Ssempebwa was still a Commissioner in the Respondent body, he nevertheless had been (sic) actively pursued and filed documentation with the JSC to suppott the complaint lodged against me

- 2. That the then Chairman of the lSC the Hon. Retired Deputy Chief lustice Seth Manyindo (emeritus) is an uncle to one William Byaruhanga an advocate and a paftner in Kasirye, Byaruhanga and Company Advocates against whom I delivered a decision in the Commercial Coutt Division, in the matter of Mugerwa Pius Mugalasi v. Ntwatwa Lule and 4 others, HCT-00-CC-MA-0444-2008 having found the said law firm guilty of selling the same plot to two different persons, which I believe occasioned conflict of interest on the part of the Chairman. - 3. That the members ofthe Law firm Kasirye, Byaruhanga and Company Advocates have been actively in (sic) moving the Uganda Law Society to file a complaint againil me as evidenced by the emails attached."

r filing his response and complaint, the appellant waited for summons the JSC to attend a de facto hearing wherein he could cross-examine e complainants and also present his case to the JSC but in vain.

n the meantime, the Honourable Principal Judge, Judge Yorokamu mwine notified him through a memorandum dated April 5, 2012 that the LS had filed a constitutional petition against the Attorney General vide 'nstitutional Petition No, 77 of 2072 The Uganda Law Society v. Attorney General seeking orders directing His Excellency the ident of the Republic of Uganda to appoint a Tribunal pursuant to the SC recommendation to commence proceeding for revocation of his tenure s a High Court Judge of the Republic of Uganda. It was only after reading he petition of the ULS that the appellant realized two things; first that the SC in its communication dated November 18, 2009 to the President of the LS, Mr. Bruce Kyerere, the JSC had indicated that it had already arrived at conclusion on the question of his removal from olfice as a judge of the igh Court of Uganda on an unascertained date, in violation of section 77 the Judicial Seruice Act (cap f4/ without having; summoned him to nd the hearing; availed to him the oppoftunity to cross-examine the mplainants; or availed him the opportunity to defend himself. He nceded that he might have seen the ULS communication dated October

5, 2009 but was unaware of any decision because the JSC neither notified him of the fact of the decision having been made nor availed him a copy of the same.

$\ddot{\cdot}$

On their part, the complainants, the ULS Council and members had been making follow-up communication to various authorities, without availing the appellant copies of such communications.

As example, he cited firstly the letter of the ULS President, Mr. Bruce Kyerere to the Law Society of England and Wales dated April 23, 2009, notifying it that the petition to remove the appellant primarily relied on the ruling of the Solicitors Disciplinary Tribunal, whose proceedings had been obtained through the internet. In that letter, Mr. Kyerere requested that the Law Society of England and Wales provide the ULS with certified copies of the ruling, which the JSC required before it could proceed with the matter.

Secondly he referred to the ULS communication to the Secretary JSC on July 16, 2009 in which the Secretary of the ULS noted that the JSC had committed itself to resolving the matter of the appellant and scheduled a session for June 30, 2009 in that regard. In the same letter, the Secretary of the ULS had further noted that the JSC session had indeed been convened and had considered the matter on June 30, 2009, but was yet to communicate the outcome to the ULS. The Secretary ULS therefore requested for a formal communication from the JSC on the matter.

In yet another communication, the ULS wrote to the Chairman JSC on $\mathbb{I}$ November 16, 2009, reminding him that the JSC had promised to handle the matter relating to the appellant expeditiously.

Lastly, the ULS had communicated to H E the President of the Republic of Uganda, on January 31, 2012, in which it observed that the JSC had found a *prima facie* case against the appellant that warranted the appointment of a tribunal. Zm

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arding the JSC, the appellant stated that it had been making follow-up munications to various authorities in the Republic of Uganda, without iling him copies of the same. The first communication was made by the to the ULS on July 20, 2009. In that communication, the ISC informed ULS that its complaint was still being processed by the JSC and as soon the process was completed, it would promptly give the ULS an update.

second communication was made by the Chairman of the JSC, norable Mr. Justice Manyindo to the President of the ULS on November 2009, in which he informed the President of the ULS that the JSC had sidered its complaint against the appellant and on )uly 2,2009, it had tten to H E the President advising him to investigate the matter fully so to determine whether or not the judge should be removed from the h. The Honorable Chairman also pointed out to the President that the matter is referred to the Tribunal, then the Judge must be rdicted by the President under Afticle ltA(S) of the Constitution.

appellant also complained about the Attorney General, who is an ex cio Commission member of the JSC. He asserted that the Attorney eral had purported to render advice on the ULS complaint, without iling the appellant copies of the same. This placed the office of the rney General in a conflict of interest position.

argued that the act of the JSC in arriving at a conclusion and failing to iff him of the decision was contrary to S, 77(d) of the Judicial Act and consequently, making a recommendation to H E the ident of the Republic of Uganda either on July 2, 2009 or on an sceftained date without giving him a fair hearing occasioned him ntial miscarriage of justice.

also argued that the act of the Attorney General, who is an ex officio mber of the Respondent, purporting to advise H E the President of the ublic of Uganda had occasioned him a miscarriage of justice. r(

e further argued that the acts and omissions of the ISC would result in bstantial miscarriage of justice to him.

e Appellant maintained that he never received a response to the issues raised regarding the danger of bias existing within the membership of ISC; he was never summoned to attend any hearing before the JSC to ther cross-examine the complainants or to present his case; and he had r been notified of any decision taken by the JSC.

# ues raised by the grounds of appeal

e observe that the grounds of appeal fall into three broad categories hich touch on;

- 1. Whether the learned trial judge erred in finding that there was a complaint. - 2. Whether the appellant was given a fair hearing - 3. Whether there was bias

r convenience, the grounds of appeal that bear on any of these broad tegories have been grouped and treated together. We note that the rned trial Judge treated the case along similar lines.

# e duty of a first appellate Court

e recall that this is a first appellate couft and as such, the law enjoins it review and re-evaluate the evidence as a whole, closely scrutinize it, w its own inferences, and come to its conclusion on the matter. This is recognized in Rule 3O(i) (a) of the Rules of this Court. The ses of Pandya v R [7957J EA 336 and Kifamunte Henry v Uganda No, 7O of 7997 have also succinctly re-stated this principle. We ve borne these principles in mind in resolving this appeal.

a preliminary matter, we observe and agree with both Counsel that pointment of judicial officers is as matter of great public importance, and refore that JSC and the public at large, including the ULS, should ensure

the right people are appointed to the Bench at all levels and that close rutiny is paid to their background before and even after appointment.

## lution of the issues

# hether the learned trial judge erred to find that there was a mplaint

is issue is canvassed in grounds 1 and 2 of the memorandum of appeal. arned Counsel for the appellant argued firstly that the appellant was not rmed of the complaint of the ULS of November L4, 2008. He also rted that the Chairman of the JSC paraphrased the complaint, which is allowed; that he merely attached documents sent to the ISC by the without attaching a complaint. He contended that a complaint should forwarded to the affected person and that the documents sent by the airman JSC were different from the complaint of the ULS contained in its r of December 17, 2008. Learned Counsel further submitted that the was not competent to raise a complaint as it did not comply with its rning law, the Uganda Law Society.4cf which required it to make isions by resolution signed by two thirds of its membership, which was the case in the matter.

nsel Oluka for the Respondent argued that when Commissioner mpebwa as a representative of the ULS filed a complaint with the JSC, did so as a representative of the ULS on the lSC. Both by the November 2008 letter of Commissioner Ssempebwa to the JSC and by the mber 17, 2008 letter of the ULS to the JSC, the ULS furnished a plaint with the JSC about the conduct of the appellant. 5,

facts as made out from the affidavits of the appellant and respondent that On November L4, 2008, Professor Frederick E Sempebwa, a missioner with the JSC, wrote a letter to the Secretary JSC. This letter rucial in understanding and resolving several aspects in this appeal. e s8" therefore reproduced it verbatim. is

#### ads:

November 2008

Secretary

Service Commission

'r Sir,

#### Justice Anup Singh Choudry

find herewith the information obtained by the Uganda Law Society on the of His Lordship as a Solicitor in the United Kingdom.

place on the agenda of the nert meeting of the Commission an item on: The tus ofJustice Anup Singh Choudry on the Bench,

yours,

#### E SSEMPEBWA

#### ryss

r recalling the facts as they have already been set out above, the trial Judge considered this matter and quoted verbatim the letter of Chairman JSC, as he then was/ to the appellant dated December 5, 8. He then had this to say;

my view the above letter disclosed a clear complaint against the applicant. It was the Uganda Law Society had submitted documents disclosing a ruling against him Solicitors Disciplinary Tribunal of England and judgment of the Supreme Court of ture Coutt of Appeal. Copies of the decisions against him were enclosed. It is that by letter of December 17, 2008, the President ULS wrote to the ry JSC raising the same issues. It is clear to me that the Commission had earlier ved the complaint. This explains why by letter of November 14, 2008, on

Ssempebwa in his capacity as a Commissioner directed the Secretary JSC to place on the agenda the complaint regarding the applicant. He was clear in his letter when he said 'please find herewith the information obtained by the Uganda Law Society on the conduct of His Lordship as Solicitor in the United Kingdom.'

$\ddot{\phantom{a}}$

$\boldsymbol{\cdot}_i$ $\mathcal{L}$

> From the above correspondence it is obvious that the complaint against the applicant was not raised for the first time by the President of the ULS in the letter of December 17, 2008 which was some 12 days later after the complaint had been brought to the attention of the applicant by letter of December 5, 2008...."

> A close scrutiny of the tenor of the letter of Commissioner Ssempebwa dated November 14, 2008 when considered together with the accompanying documents from the ULS reveals that the ULS was not enamoured with the conduct of the learned Judge as a solicitor in the United Kingdom. The ULS decided in the first instance to communicate its disenchantment to the JSC through Commissioner Ssempebwa, its representative to the JSC. While submitting the ULS documents, Commissioner Ssempebwa directed the Secretary of the JSC to put the matter of "the status of Justice Anup Singh Choudry on the Bench" on the agenda of the next JSC meeting. All this indicates that Commissioner Ssempebwa considered this to be a complaint about the tenure of the appellant on the Bench that needed urgent attention. In fact, it is to this complaint that the Chairman, the Honorable Justice Manyindo reacted in his letter to the appellant dated December 5, 2008. This letter indicates that the JSC considered that Commissioner Ssempebwa's letter and the accompanying documents raised serious concerns on the appellant's conduct and asked the appellant to comment on it. In fact, the appellant admitted in the letter he wrote to the Chairman, JSC Honourable Justice Manyindo dated July 2, 2009, reproduced below on page 33, that Commissioner Ssempebwa lodged the initial complaint. We therefore find it strange that in this appeal and in the lower court, the Appellant purported to deny the existence of the complaint.

> We agree with the learned trial Judge that it was of no consequence that the President of the ULS subsequently wrote a letter on December 17, 2008, to the Secretary JSC asking the JSC to formally request the

pointing authority to reverse or rescind the appellant's appointment on e basis that he was not a flt and proper person to hold the office of a igh Court Judge in Uganda.

e law provides that the complaint to the JSC may be in writing or even l. If it is oral, the Secretary of the JSC is obliged to reduce it into riting: see Regulations 5, 8(a) and (b), and 9(7) Judicial Seruice ints and Disciplinary Proceedings) Regulations 2OOS (5I88 2005.

e consider that there is no particular format for a complaint specified by . As long as it is written, as it was in this case, and is clearly mprehensible, it is our understanding and judgment that it is admissible.

is therefore our considered decision that from the chronology of events outlined above; there existed a complaint with the JSC lodged by mmissioner Ssempebwa by his letter of November, 14, 2008 on behalf of ULS. We are foftified in this view by the manner in which the JSC ted the letter and the information in the accompanying documents. The pellant also treated it as a complaint.

should add that we also see no merit in the submission of Counsel for appellant that the ULS had no locus to lodge a complaint. Any person submit a complaint to the Commission against, among others, a ge, the Chief Registrar or Registrar of a Court, or a magistrate. See: ulation 4 of the Judicial Seruice Commission Regulations of (SI No. 87 of 2OOS). According to the Uganda Law Society Act 276), the Uganda Law Society is a body corporate with perpetual ssion with power to sue and to be sued in its corporate name. See: 2 of the Uganda Law Society Act. ffi

ong the objects for which the society is established are; to protect and st the public in Uganda in all matters touching, ancillary or incidental to law (Section 3(d)) and to assist the Government and the Coutts in matters affecting legislation and \$ all

n (sedion 3(e)). Its Council may exercise all the powers of the iety (section 7O). The President of the ULS heads the governing uncil of the ULS and may legally act on its behalf and that of the mbership (Section 9). Based on the above, we conclude that the ULS ident acted legally on behalf of the governing council and membership the ULS. It is our judgment therefore that the ULS was competent to file mplaint with the JSC. a

also note that this is a new ground that was not raised when the r came up for review in the High Court. We therefore conclude that re is no merit in grounds 1 and 2 of the appeal which we dismiss ordingly.

### the appellant was accorded the right to a fair hearing

now turn to grounds 3, 4, 5,6 and 9 of the memorandum of appeal, ich canvass the right to a fair hearing. The appellant submitted that the never informed him of the complaint of the ULS dated November 14, B and did not give him a hearing thereon. He further submitted that the r he received from the Chairman, JSC, did not suffice.

rned Counsel for the appellant also cited various acts and omissions of JSC, and correspondences that were exchanged between the ISC and that he was not informed about. He fufther submitted that the llant was not given the right to appear before the JSC and defend self, at the time the complaint was considered; that he was not allowed cross-examine witnesses; and lastly that the decision of the JSC, to se H E the President of Uganda to set up a tribunal to inquire into the uct of the Appellant was never communicated to the Appellant. to

rned Counsel for the respondent argued that there was a lacuna on the JSC was to manage the procedure for removal or discipline of a icial officer set out in Article 147(3) of the Constitution He argued under that Article, the JSC receives and processes complaints, and rprets them as it sees fit. In such interpretation, it investigates an d ea

I at rmines whether the complaint is wofthy of further consideration, but in ation to judicial officers mentioned under the same Article, it is not uired for a complainant to make his case or the subject of a complaint ore a decision is made. He made analogies to the powers of the r of Public Prosecutions under Afticle 1. M(2)-(4). He argued that this case, the JSC chose to make a representation to the President to int a Tribunal. Hearing could only proceed when the Tribunal was set and it was premature at this stage to raise the issue of fair hearing, make an oral reply to the complaint, or carry out further investigations in

a preliminary matter, we observe that the procedure for removal of a ge is a two stage process; the preliminary determination that must be de by the JSC regarding whether it should make a recommendation to President that he sets up a tribunal to consider whether a judge should removed; and the Tribunal stage that involves the hearing of the ations against the judge and actual determination by the Tribunal of ether he/she should be removed from office.

have already addressed the matter of the existence of the complaint and we need not repeat what we have said. On the acts and issions of the ISC and the ULS thereon, the appellant's evidence is that; receiving the letter of the Chairman of the JSC, Honorable Justice yindo, dated December 5, 2008, informing him about the documents by the ULS with the JSC, the appellant sought further and better culars, from the JSC, regarding the complaint against him, in a letter January 5, 2009. The JSC did not respond to this letter; that he filed sponse to the ISC dated June 19, 2009 that was prepared for him by nsel Peter Cafter QC. Counsel Peter Carter informed the appellant that as never been summoned to attend any hearing before the JSC. a he

n there were various correspondences which have already been rred to originating from both the JSC and the ULS and in respect of h no copies were sent to the Appellant. They included the letter of 123, 20L4 that the ULS President Mr. Oscar John Kihika wrote to the s-

be U a S Pr in Tr Br it sident of the Law Society of England and Wales requesting him to assist securing certified copies of the ruling of the Solicitors Disciplinary bunal against the appellant; the letter by the President of the ULS Mr. ce Kyerere dated July L6, 2009, written to the Secretary JSC requesting formerly communicate the outcome of the JSC's session, which was eduled to sit on June 30, 2009 to consider the matter of the appellant; letter of July 20, 2009 that the Secretary to the ISC Mr. Kagole Kivumbi to the President ULS, informing him that the ULS complaint was still ng processed; and the letter of reminder of November 16, 2009 that the President Mr. Bruce Kyerere wrote the JSC to finalize its investigation take a decision on the appellant's matter.

Th JS in 2, un ful Be on 2, re was also the letter of November 18, 2009, that the Chairman of the , Honorable lustice Manyindo wrote to the President of the ULS and rmed him that the JSC had considered the ULS complaint and on July 009, it had written to the President advising him to appoint a Tribunal er Article 144(4) (c) of the Constitution to investigate the matter and advise him whether or not the Judge should be removed from the h. The appellant was also not given a copy of the decision of the JSC the ULS complaint that was referred to in the Chairman's letter of July 009 to HE the President.

tha the an ap U sta co Th Mr th re re was another letter of March 6, 2012 that the President of the ULS, James Mukasa Sebugenyi wrote to the Honorable the Attorney General notified him that the ULS had petitioned the Constitutional Couft over matter of Justice Choudry, as H E the President had failed to act on the mmendation of the JSC. This letter too was not copied to the llant. Lastly, on March L5, 20t2, Mr. C. Gashirabake responded to the letter of March 6, 20L2, on behalf of the Attorney General and stated the Honorable the Attorney General had rendered to HE the President requisite legal advice on the way forward, and requested the ULS to any action they were contem of both these letters as well. plating. The appellant did not receive a \$'

e JSC's response to the omissions is contained in the affidavit of the retary of the JSC, Mr. Kagole Kivumbi in answer to the affidavit filed by e appellant in the application for judicial review in the High Court. The davit is dated June 6,20L2. He stated as follows and we quote:

That I know that on ly'h December, 2008 the Uganda Law Society a complaint with the Judicial Seruice Commission in which the ty requested the appointing authority to reverse or rescind the tment of the Applicant as set out in Annerture A'hereto.

4. That on the ld of February 2009 the Uganda Law Society sought to have the t interdicted by the Judicial Service Commission under 5I No. 87 of 2005 as in Annexture '8' hereto.

5. That in response to the two communications above, the ludicial Seryice wrote to the Uganda Law Society notifoing it of the fad that it had received Society's complaint and was investigating it, this corespondence was copied to the t a copy of this letter is attached hereto and marked Annerture 'C'.

6. That further on 1! March 2009, the Commission notified the Law Society of the tions it was undertaking, a copy of this notification was sent to the Applicant this correspondence is marked as Annerture 'D',

- 7. That following the inception of the complaint by the Law Society, the Judicial Service Commission had earlier on I December 2008 asked the Applicant to comment on the Findings/Decisions of the Court in England on matters raised by the Uganda Law Society as evidenced in Annexture 'E'attached hereto. - 8. That the applicant replied to the corespondence from the Commission by seeking for details of the complaints, the Judgmenl press reports and questioning how documentation against him was procured, all this is evidenced in the Applicants undated corespondence enclosed herewith and marked Annexture'F', - 9. That I know that the Applicant was fully conversant and in consistent and constant communication with the Judicial Service Commission on matters touching on the complaint against him as evidenced by his communication of 4h July 09, where he intimated that he was aware that the Commission would make a decision, reference is made to Annexture 'G'enclosed herewith. - 0. That I further know that the Applicant in vouching for his character and professionalism sought to place before the Commission secondment of

person by lonathan Crystal and Vrahimis Anonion Orphanon as shows in Annerture'H".

11. That in undertaking all the corespondence from paragraph 3-10 herein the Applicant was involved from the inception of the complaint against him, the investigation, receipt of Rulings/judgments from England, forwarding of his response to the complainl knowledge of the recommendailon of the Judicial Seruice Commission and ftnally did lodge complaints with the Principal Judge showing that he was abreast, fully briefed and knowledgeable of all the processing proceedings (sic) by the Commission, touching the complaints filed against him.

- 12. That I know with the above background, with my institutional knowledge of conduct of this matter that the Applicant has been more than fairly accorded impaftial treatment in conduct of the complaint against him. - 13. That I am further aware that the conduct of this complaint has been undertaken well within the powerc conferred by the Constifution in Afticles 144, 146, 147, Cap 14 and the Rules created there under...".

JSC Secretary's evidence in a nutshell is that the appellant was at all es in touch with the JSC and aware of what was going on. Although of the correspondences between the JSC and the ULS were not ied to the appellant, we do not consider this omission to be fatal to the ings that went on in the lSC. The correspondences cited were not tral to the decision by the ISC to write to the President advising him to int a Tribunal under Article 744(4) (c) of the Constitution to gate the matter of the appellant.

remaining aspects concern the alleged failure to accord the appellant a t to appear before the JSC when it was considering the matter of the llant; and the alleged failure to accord him an oppoftunity to crossmine the complainant and witnesses. The two will be considered in . But both aspects of the right to a fair hearing cannot be properly ressed without a clear understanding of the functions and duties of the on receiving a complaint.

observe that the functions of the JSC are set out in Articles 747 and of the Constitution The function most relevant to the matter at d is found in Article 747 (d), which is; to receive and orocess

xfr^ W Article 748 provides the powers of the JSC with respect to appointments and disciplinary trol. The JSC may appoint persons to hold or act in any judicial office r than the officers specified in Article 147(3) of the Constitution o include the Chief Justice, the Deputy Chief Justice, the Principal Judge, ustice of the Supreme Couft, a justice of Appeal and a judge of the High urt, and the Chief Registrar or registrar. Its role here is limited to ntifying, interviewing and recommending to the President successful didates to appoint. a

144(2) provides for the removal of judicial officers who include Chief lustice, the Deputy Chief Justice, the Principal Judge, a justice of Supreme Couft, a justice of Appeal and a Judge of the High Court. r the same sub-Article, the JSC cannot exercise disciplinary control r the Chief Justice, the Deputy Chief Justice, the Principal Judge, a ce of the Supreme Couft, a justice of Appeal and a Judge of the High rt, and the Chief Registrar or registrar.

r Article 1/14(3) it is only the President that can remove such judicial cer after the question of his or her removal has been referred to a unal appointed on the recommendation of the JSC or the Cabinet

m the above analysis we note that the JSC is clearly empowered by the to recommend to the President whether a tribunal should be up to remove a judge on the grounds of inability to perform the ions of his or her office arising from infirmity of body or mind; behavior or misconduct; or incompetence. Before the JSC undeftakes exercise, it has to make a preliminary determination on whether to the recommendation or not. In other words, it should find out her a prima facie case exists. In this regard, we consider that its

proceedings in this regard should be properly recorded and documented. How then should the JSC proceed to fulfill its duty under this article?

It has been argued by learned Counsel for the respondent that the **Judicial Service Commission Act** does not apply to judicial officers mentioned under **Article 147(3)** of **the Constitution** such as the appellant and that there is a lacuna as to how the JSC should proceed in respect of such officers. The learned trial Judge held that **section 11** of the **Judicial Service Act** did not apply to disciplinary proceedings against a judge of the High Court like the appellant, in view of the provisions of Article 147(1) and (3) and Article 148 of the Constitution.

We do appreciate that this is the first case to be handled by the JSC concerning a Judge after the current *(1995) Constitution*, and that there was no precedent to quide it on the proceedings. However, with respect, we do not agree that **section 11** of the **Judicial Service Act** does not apply to disciplinary proceedings against a judge of the High Court like the appellant.

We consider that there is guidance on how the JSC should proceed to determine such a matter in the **Judicial Service Act** in its preamble and **sections 9 to 11.** The preamble clearly stipulates that the purpose for the enactment of the **Judicial Service Act** is to "regulate and facilitate the discharge by the President and the Judicial Service *Commission of their functions under Chapter Eight of the* Constitution pursuant to article 150(2) of the Constitution and for other matters related to the Judiciary." Chapter 8 of the **Constitution** concerns the Judiciary.

The Constitutional Court has held that the "preamble is a vital aid in the interpretation of a statute. It determines its objective. The preamble is normally a preliminary statement of the reasons which have made the Act desirable. It may also be used to introduce a particular section or group of sections." See Uganda v. Atugonza Francis, Constitutional Reference No. 31 of 2010 p.6.

The provisions of sections 9 to 11 of the Judicial Service Act offer further guidance. They provide;

#### **9. Meetings and decisions of the commission**

- $(1)$ The chairperson of the commission shall preside at all meetings of the commission, and in his or her absence the deputy chairperson shall preside; and in the absence of both of them, the judge of the Supreme Court referred to in article 146(2) (d) of the Constitution shall preside. - The guorum at meetings of the commission shall be six. $(2)$ - Every decision of the commission shall, so far as possible, be by $(3)$ consensus. - $(4)$ Where there is no consensus, decisions shall be by a majority of all the members - In any vote under subsection (4), each member of the commission (5) shall have one vote, and none shall have a second or casting vote. - In any matter of discipline or a proposal to remove a judge or other $(6)$ judicial officer, the decision shall be carried by at least six members of the commission at a meeting at which the Attorney General is present. - Subject to the provisions of the Constitution, the commission may $(7)$ act, notwithstanding the absence of any member or any vacancy in the office of a member. - $(8)$ The commission may regulate its own procedure.

### "10. Decision by circulation of papers

- $(1)$ Except for matters of appointment, discipline, reviewing and making recommendations on the terms and conditions of service of judges and other judicial officers, or a proposal to remove a judge or any other judicial officer, decisions may be made by the commission without a meeting by circulation of the relevant papers among the members and the expression of their views in writing. - "11. Rules of natural justice

In dealing with matters of discipline, and removal of a judicial officer, the commission shall observe the rules of natural justice; and, in particular, $88$

the commission shall ensure that an officer against whom disciplinary or removal proceedings are being taken is-

- *Informed about the particulars of the case against him or her* $(a)$ - Given the right to defend himself or herself and present his or her $(b)$ case at the meeting of the commission or at any inquiry set up by the commission for the purpose; - $(c)$ Where practicable, given the right to engage an advocate of his or her own choice; and told the reasons for the decision of the commission

### "12. Bias

- $(1)$ Any judicial officer whose conduct is under consideration by the commission in a disciplinary matter is entitled to object to the participation of a member of the commission in the proceedings and decisions of the commission on the ground of bias - $(2)$ Where an objection is raised under sub-section (1), the commission shall inquire into and rule on the objection before proceeding further with the consideration of the case of the judicial officer who raised the objection - $(3)$ $...''$

In the absence of any clear provision to the contrary, it follows therefore that the principles that guide the Judicial Service Commission as enunciated in the **Judicial Service Act** apply to all judicial officers. In fact, **section 9 (6) of the Act** makes this clear when it refers to;

# "a proposal to remove a judge or other judicial officer,"

Thus when the JSC sits to consider a proposal to remove a judge, it is enjoined by the **Act** in that regard to hold a meeting **(s. 10)** as opposed to circulating of the relevant papers among the members and the expression of their views in writing under **section 10 (1)** of the **Judicial Service Act.** The meeting must be attended by at least six members of the Commission (s. 9(2)), including the Attorney General (s. 9(6)). The JSC must observe the rules of natural justice $(s, 11)$ .

e also note that the Judicial Seryice Act in section f(e,) assigns the me meaning to judicial officer as does the Constitution Article 757 ich provides:

## 57. Interpretation

this Chapter, unless the conbrt otherwise requires, ludicial officer"

# (a) A judge or any penion who presides over a court or tribunal howsoever described"

the above provisions are clear and unambiguous and do not need any plification. It is not stated anywhere that the provisions of section 77 ply only to judicial officers who the JSC is empowered to remove. If that s the intention, the Act would have specifically stated so.

have not had opportunity to benefit from decided cases in Uganda, this ng a novel case. However, several authorities have been cited by both es from other commonwealth jurisdictions to assist the court in this ard. We proceed to examine whether authorities from other isdictions are applicable in light of the above statutory provisions. The one is the case of Barnwell v Attorney General F994J 3 LRC m Guyana. We consider it important to reproduce its facts as they are ry to determine whether there are parallels that can be drawn from ith this case with regard to the right of a judge to appear and defend /her self before the JSC. it

appellant was a High Court judge. On two occasions he was invited to ear before the Judicial Service Commission in relation to allegations ch had been made about his conduct. In an appropriate case, the mission was empowered under article 197(5) of the Guyana stitution to make representation to the President that the question of oving a judge from office ought to be investigated by a tribunal inted by the President. However, on each occasion after the appellant appeared and explained his conduct to the commission the issue was

23 #nl',l'W

ated as closed and the commission took no further action. In September 89, the appellant was summoned to the chambers of the Chancellor, o was ex officio the chairman of the commission. The Chancellor rmed the appellant that a magistrate had made allegations against him a letter which she had sent to the Chancellor. The Chancellor read from letter but did not show it directly to the appellant, nor provide him with py, until much later. The Chancellor reported to the commission the tance of his discussions with the Judge and showed it the letter from magistrate. A few days after the meeting between the judge and the ncellor, the commission, without having afforded the appellant an rtunity to appear before it or to comment in any way, purporting to in accordance with article 197(5) made a representation to the ident that the question of removing the judge from office ought to be igated. A few days later the appellant was suspended from office er afticle L97(7). The appellant challenged his removal by applying for icial Review in the Guyana High Court. The application was dismissed. appellant appealed to the Guyana Court of Appeal. a

cle 197(5) of the Constitution of Guyana provides:

Prime Minister, in the case of the Chancellor or the Chief Justice, or the Judicial Commission, in the case ofany otherjudge, represents to the President that the of removing such judge from office under this afticle ought to be investigated,

- The President shall appoint a tribunal, which shall consist of a chairman and not less than two other memberc, selected by the President, acting in his discretion in the case of the Chancellor or the Chief lustice or in accordance with the advice of the Prime Minister afrer consultation with the Judicial Seruice Commission in the case of any other judge, from among persons who hold or have held office as a judge of a court having unlimited jurisdidion in civil and criminal matters in some part of the Commonwealth or a couit having jurisdiction in appeals from any such couft or who are qualified to be appointed as any such judge; and - The tribunal shall inquire into the matter and advise not thejudge ought to be removed from office the President whether

## icle 197(7) states;

the question of removing a judge from office has been referred to a tribunal under (5), the President may suspend such judge from performing the functions of office, and any such suspension may at any time be revoked by the President, and in any case cease to have effect if the tribunal advises the President that the judge t not to be removed from office, In effecting any such suspension or any of any such suspension, the President shall act in accordance with his own tejudgment tn the caSe ofthe Chancellor or the Chieflustice and in accordance the advice of the Chancellor in the case of any other judge."

appeal from judicial review, the Guyana Court of Appeal held that the sion of the commission to make a representation to the President with ard to investigating the possible removal of the judge from office under cle 197(5) was ultra vires and void because among other reasons, the ancellor as chairman of the commission had no authority under article or any other provision of the Constitution to act on its behalf and even is meeting with the appellant could properly be described as a'hearing' commission could not adopt its chairman's actions as its own as those ons were themselves ultra vires. Accordingly the commission had not n the appellant an opportunity to be heard by it before it reached its ision. It was fufther held that in the absence of any express provision to contrary, the commission was master of its own procedure but it was uired to apply rules of procedural fairness and natural justice to its iberations. It had acted in breach of its duty to act fairly and in breach the rules of natural justice (audi alteram partem and right to a fair ring) when it made its representation to the President; and a travention of the rules of natural justice rendered the decision void n if it could be shown that without such contravention there would have n an adverse result. if of

decision renders support to the principle that Constitutional provisions not displace the requirement to apply principles of natural justice. In regard as well, there are parallels with this case. Bishop CJ made a nent obseruation in that case at page 48 of the judgment and we 86 do

would say that a critical fundion of the JSC, upon retceipt of an allegation misbehavior, is to evaluate it, in order to ascertain whether it should be 'nced to the nert staget the article 197(5) removal exercise. Looked at the JSC (by a careful and thorough examination of all the facB) required to ertra.t what issues have been raised and material fac6 found relation to the complaint and considered germane to a proper and lanced exercise of the JSC's discretion to make or not make an adverse tation to the President that the question of removing the judge from ought to be investigated, Such examination would include seeino and

consider the above to be peftinent and wise counsel. Pertinent in that procedure in Uganda is also two pronged, requiring the JSC to make a liminary determination as to whether or not to advise the President to stitute a tribunal to determine whether or not a judge should be . The second stage is the full hearing before the Tribunal. But the JSC give the appellant a right to appear at the stage of deciding ether or not to advise the President to constitute a tribunal? In the case Guyana cited above, the appellant appeared before the JSC on the two ous occasions and explained himself but on this last occasion, he was given a chance to appear.

note that the Constitution of Guyana is couched in almost similar uage like the Ugandan one. It appears that at the time of the decision, na had no specific legislation on whether or not to accord a judge the t to appear before the JSC and present his/her case at the time of its sideration of whether or not to render advice to the President. The ure advised by Bishop CJ is largely what is laid down in the Judicial Adfor the JSC to follow in the case of Uganda.

learned Trial Judge in the court below relied on the Privy Council case Rees and Otherc w Richard Alfred Crane Privy Council t No 73 of 7993, decided on February !4th, lgg4, more pafticularly reasoning of the Privy Council that the affected judge;

![](1__page_25_Picture_4.jpeg)

"...ought to have been told of the allegations made to the Commission and given a chance to deal with them, not necessarily by oral hearing, but in whatever way was necessary to make his reply".

While we uphold the principle that natural justice requires that the Judge be given a chance to deal with the allegations, it is our view that in the case of Uganda, the form in which he/she should deal with such allegations and how the JSC should handle them is clearly spelt out in **section 11 of the Judicial Service Act** as indicated above.

We conclude that the provisions of **section 11 (b) of the Judicial Service Act** oblique the JSC to give such judicial officer, like the Appellant the right to defend himself or herself and present his or her case at the meeting of the commission or at any inquiry set up by the **commission for the purpose** as part of its compliance or observation of the rules of natural justice. This was not done in the case of the Appellant. We therefore answer the issue of whether the appellant's right to a fair hearing was infringed in the affirmative.

On the right to cross-examine witnesses at the stage the JSC is considering the complaint, we have found the Kenyan case of **Nancy Makokha Baraza v Judicial Service Commission and 9 Others; Constitutional Petition No. 23 of 2012 [2012] eKLR** instructive. This Kenyan case laid down the principle that at that stage, cross-examination of witnesses is not necessary and that the proper forum for it is during the proceedings of the Tribunal.

The facts of that case were that the Petitioner was appointed Deputy Chief Justice of Kenya after a rigorous interview. The Judicial Service Commission was a statutory body established under Article 171 of the Kenyan Constitution. Its functions included recommending the appointment of persons to be appointed as Judges to the President of the Republic of Kenya. It was alleged that on December 31, 2011, at the Village Market, an upmarket shopping mall on the outskirts of Nairobi, the Petitioner assaulted, intimidated and threatened a security guard, one Rebecca rubo aka Kemunto. The incident attracted a lot of publicity in the print d electronic media. The Honorable Chief Justice of Kenya, Dr. Willy tunga, therefore decided to institute the judiciary's own internal stigation. A full meeting of the JSC followed and a decision was made set up a sub-committee of eight members to look into the incident and ft back to the JSC. The sub-committee received oral and documentarv e of1 wi incl in th to e in nt.

subcommittee in due course prepared its report and handed it over to JSC. The ISC considered the repoft and resolved under Article 168(4) send a petition to the President to suspend Judge Nancy Baraza as a ge of the Supreme Court and Deputy Chief Justice of Kenya and to int a tribunal to investigate her conduct. The Petition was sent to the sident in accordance with article 168(1)(e) of the Constitution. One of grounds of her Petition in that case was that during the sub-committee uiry, the Petitioner was never afforded an oppoftunity to test the city or otherwise of the evidence adduced by the witnesses who fied at the delegated sub-committee sittings either through cross mination or other modes known to law and as such the JSC (1't ndent) denied her a reasonable opportunity to influence the decision ing process, thus being in breach of the succinct rules and principles of ral justice. She further submitted that her rights to a fair hearing under cle 50 of the Constitution of Kenya were grossly violated and/or pled upon by the JSC.

petition was dismissed on the ground that she had been given an rtunity to give her version of the events by the sub-committee (where appeared in person) and that the right to cross-examine witnesses was urely pursued, as the petitioner would have an opportunity to crossine such witnesses during the Tribunal proceedings.

note again, that the judge complained against, was given an ftunity to appear before the subcommittee of the Kenyan JSC which E heard her version of events as well as that of the complainant before the JSC sat to make a recommendation to set up a tribunal. This was not done in the case before us now.

We also hasten to add that in Uganda, unlike in Kenya, there is in place specific statutory provisions the JSC has to follow in its consideration as to whether to advise the President to appoint a Tribunal under **Article 144(4)** (c) of the Constitution to investigate the matter of the removal of a judge. These provisions are in the **Judicial Service Act** dealing with the issue of the application of the principle of natural justice also known as *audi alteram partem* rule to such proceedings. We have already pointed them out.

In light of these provisions and taking into account the above quoted jurisprudence, it is our considered view that it was not enough that the Chairman, JSC wrote to the appellant, notifying him of the complaint and requesting his comments thereon. It was also not enough for the JSC to state that the appellant was aware that a decision would be made regarding the complaint, or that he was aware and abreast of the developments and communication between the JSC and the ULS. It was a duty imposed on the JSC by the Judicial Service Commission Act **Section 11 (b)** to give the appellant "the right to defend himself or herself and present his or her case at the meeting of the commission or at any inquiry set up by the commission for the purpose".

The nature of the complaint that the JSC was considering was very grave. It doncerned the fitness or otherwise of the appellant to hold judicial office, based on allegations of fraudulent conduct as a solicitor in England and Wales. The decision rendered to set up a Tribunal was a very serious one indeed. It would affect him negatively, whether or not the Tribunal decided to impeach him. The fact that the appellant was "in consistent and constant communication and was aware that the JSC would make a decision" as stated by the Secretary of the JSC in his communication of

July 9, 2009 is not sufficient ground for the JSC to exclude him from appearing and presenting his side of the story at the JSC meeting. What is apparent from the record is that the JSC sat and considered the matter without hearing the appellant, at the meeting of the JSC or some other inquiry set up by the JSC for that purpose, contrary to the rules of natural justice stipulated in the above section.

$\bullet$

The appellant was not even informed about the decision that had been taken against him. It was only after receiving communication from the learned Principal Judge dated April 5, 2012, that the ULS had filed a Constitutional Petition against the Attorney General seeking orders directing His Excellency the President to appoint a Tribunal pursuant to the J\$C recommendations that he learnt of the JSC's decision. The nonderogable right of fair hearing with the concomitant application of the rules of natural justice should have been observed by the JSC.

On this particular aspect, the learned Trial Judge, after quoting **section 11 of the Judicial Service Act** had this to say at page 19 of his judgment;

"I have carefully considered Counsel's submissions on this point. In view of the relevant provisions of the Constitution I find that s 11 of the Judicial Service Act does not apply to disciplinary proceedings against a Judge of the High Court like the applicant. The Judicial Service Commission has as one of its functions to advise the President on appointment, confirmation and removal of Judge. It has no power to do any of those acts apart from advising the President..."

With respect, we consider that the learned trial Judge erred in reaching such a conclusion. As already demonstrated, the function of advising the President is a process that must follow the law as laid down in the **Judicial Services Act.** We consider that there was no substantial compliance by the JSC with **Articles 28(1) and 42 of the Constitution as well as** sections 9, 10 and 11 of the Judicial Service Act.

$\otimes \mathcal{C}$

We further observe that the right to a fair hearing in a non-derogable right under the *Constitution Article 28(1) and Article 44 (c). Article* **28(1)** provides as follows:

"28. Right to a fair hearing.

In the determination of civil rights and obligations or any $(1)$ criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.

$...''$ $(2)$

**\*44. Prohibition of derogation from particular human rights and freedoms.**

Notwithstanding anything in this constitution, there shall be no derogation from the enjoyment of the following rights and freedoms-

- $(a)$ Freedom from torture and cruel, inhuman or degrading treatment or *punishment;* - $(b)$ *freedom from slavery or servitude;* - $(c)$ the right to fair hearing; - the right to an order of habeas corpus." $(d)$ *(emphasis by the court)*

We also consider *Article 42 of the Constitution* relevant. It provides:

"42. Right to just and fair treatment in administrative decisions.

Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her."

It is our decision therefore that the JSC erred when it considered the complaint against the appellant without observing his right to appear and present his case at the meeting of the Commission. This omission vitiated the proceedings against the appellant. The JSC also erred when it failed to communicate the decision it reached to the appellant, contrary to the rules of natural justice.

We conclude that the proceedings against the appellant were proceedings for removal of a judge within the meaning of **sections 9(6)** and **11** of

**the Judicial Service Act** and that the appellant should have been given an opportunity to be present his case when his matter was being considered at the meeting of the Commission. The fact that he was not was a clear violation of his right to a fair hearing and the principles of natural justice. The decision of the JSC was therefore ultra vires, null and void. This disposes of grounds 3, 4, 5, 6 and 9 of the appeal, which we uphold accordingly.

## Whether there was bias on the part of JSC on account of *Commissioner Ssempebwa and the learned Attorney General* sitting on the meeting that made the decision against the appellant

This broad ground is canvassed in grounds 6, 7, and 8 of the memorandum of appeal. Learned Counsel for the appellant submitted that Commissioner Ssempebwa was an advocate, thus a member of the ULS as well as a member of the JSC. He was indeed a representative of the ULS to the JSC pursuant to **Article 146 (2) (c) of the Constitution**. He submitted documents of the ULS relating to the appellant to the JSC and sent a directive for a meeting of the JSC to be called and sat in Judgment of the appellant. Therefore, he was biased. He also submitted that the Attorney General, who sat in on the Committee that made the decision, conveyed that decision to the President and rendered advice to the President in respect thereof. He also submitted that he had written to the JSC on July 2009, complaining about the role of Commissioner Ssempebwa on the JSC panel but he had not received a response from the JSC.

In response, Learned Counsel for the Respondent submitted that the presence of the representative of the ULS and the Attorney General is a constitutional imperative under **Articles 146(2) (c) and Article 146(3) of the Constitution** respectively. He also submitted that when the Attorney General makes a representation to the President under **Article 144(4)** of the Constitution on the appointment of a tribunal, then that

ure would be acceptable under the principles of Constitutional rpretation.

have already reproduced section 72 of the Judicial Seruice Act ating to bias. We observe that no record of the proceedings of the JSC s availed to the trial Court to determine when and where the decision s taken by the JSC to advise H E the President to set up a tribunal to stigate the appellant as judge of the High Court, or who attended it. however consider that the assertion of the appellant that both mmissioner Ssempebwa and the Attorney General sat and deliberated in meeting that made the decision was not controvefted by the pondent. Mr. Kagole Kivumbi's affidavit, which he swore as Secretary to JSC is silent on the matter so we consider this to be a tacit admission the Appellant's assertion. We shall address the issue of pafticipation of mmissioner Ssempebwa and the Attorney General separately.

arding Commissioner Ssempebwa, we consider it important to address content of the letter that was written by the appellant to the Chairman, Honorable lustice Manyindo dated July 2,2009. It reads:

lord

## Frederick Ssempebwa Commissioner

response has now been filed and I trust that the JSC will consider the same and the appropriate adion.

I would like to express my reservation about the above named commissioner he initially lodged the complaint and has been active in petitioning against me.

also attended the Law Societyb AGM on May 2, and addressed the meeting and produce the video of the meeting. against me. I enclose ertract from the emails page 2 of Exhibit ASC5 and may

commissioner had cleaily expressed his opinion and I am sure you will agree that ISC cannot be impaftial in considering my response if such a member who ought to (B' been disqualified remains on board.

conduct amounts to infringement of Article 128.

principle of natural justice will demand that this commissioner recuses himself from as a commissioner on my matter,,,"

a e Appellant referred in paragraph 6(a) of his affidavit supporting the lication for review in the High Court sworn on May 24, 20t2 to mmissioner Sempebwa's letter to the JSC of November 14, 2008 and to hi active pafticipation in the deliberations of the ULS leading to the ging of the complaint. As already noted, the affidavit in reply of the ry to the JSC Mr. Kagole Kivumbi did not respond let alone trovert the appellant's assertion that Commissioner Ssempebwa sat in th meeting that made the decision against him. Thus the Appellant's to a ftions as regards this point, having not been controverted, are deemed have been admitted by the Respondent. We therefore consider this to established by the evidence.

e appellant wrote another letter to the Chairman of the JSC, Honourable ice Manyindo on July 9, 2009 in which he referred to his earlier letter of 2,2009. He stated in that letter that he was aware that the JSC would writing a report following his response. He requested the Chairman to hibit his letter of )uly 2, 2009, and the enclosures in the JSC report and n icate that the appellant had complained about the JSC not being partial in considering his response in view of the presence of mmissioner Ssempebwa. This letter too was not responded to by the J l J

e fact that the complaint was first filed by Commissioner Sempebwa on half of the ULS who was its member and representative to the JSC is lf not an indication of bias. Nevertheless, this should have alerted the to the need to pay particular attention to fairness. We consider that it a a th him to consider the case against the Appellant. Apparently, none o d inform the appellant about the decisions made thereby, before sitting s incumbent upon the JSC to address the concerns raised by the lant against Commissioner Ssempebwa, to take a decision on them, , tsg J steps were taken.

the face of it, Commissioner Ssempebwa's participation appeared that was both an accuser i.e. through the ULS and judge i.e. through the . In this regard, we consider that it is an inescapable conclusion that re was apparent bias based on the fact that Commissioner Ssempebwa vely participated in deliberations of the ULS leading to the filing of the plaint of the ULS against the appellant, there was a complaint against participation pending before the JSC, and that he then proceeded to sit the panel that heard and determined the matter. This was pounded by the fact that the JSC chose to ignore the concerns of the llant in this regard.

have found parallels to this case in the case of Queen v. Gaisfotd 7 QB 387 perS U aS VC n that regard The facts n that case WEre defendant had deposited and left a heap of earth and manure by the e of the highway. A vestry meeting was summoned by the District rveyor to consider (inter alia) the obstruction of a highway by the ndant. A justice of the peace moved a resolution calling upon the ndant to remove the heap. The defendant failed to remove the heap, ereupon a summons was taken out against him by the District Surueyor depositing the heap to the obstruction and annoyance of the highway, for failing to remove it after notice. The justice who moved the lution, and who was a ratepayer of the parish, sat and adjudicated h another justice upon the summons/ and made an order directing that heap be removed and sold and the proceeds of sale be applied to the ir of the highway. The defendant brought an application of certiorari to ng up and quash the order made by the justices. It was held that the ce was disqualified from adjudicating upon the summons, for the paft n by him in moving the resolution afforded ground for reasonable picion of bias on his paft, though there might not have been bias in , and upon further ground that as a rate payer the justice had a uniary interest in the result of the summons.

is therefore our considered decision that the learned trial Judge erred n he found that no bias had been established. The existence o h apparent bias, even if it may not have been there in fact, was an additional factor that vitiated the decision made by the JSC.

On the involvement of the learned Attorney General in the JSC meeting, we $d\phi$ not consider that it is necessary to go into the principles of constitutional interpretation before we can decide whether the act of the Attorney General in conveying the decision of the JSC to the President constituted bias. Counsel for the respondent submitted that the mere presence of a member of the ULS and that of the Attorney General on the Committee that made the decision did not constitute bias. It is necessary to examine the composition of the JSC as established by law before we determine the question whether the mere fact of the Attorney General sitting in the JSC meeting that took the decision against the Appellant attracted bias. **Article 146 of the Constitution** provide as follows:

## "146. Judicial Service Commission

(1) there shall be a Judicial Service Commission

- (2) the Judicial Service Commission shall, subject to clause (3) of this article, consist of the following persons who shall be appointed by the President with the approval of Parliament- - (a) a chairperson and deputy chairperson who shall be persons qualified to be appointed as justices of the Supreme Court, other than the Chief Justice, the Deputy Chief Justice and the Principal Judge; - (b) one person nominated by the Public Service Commission; - (c) two advocates of not less than fifteen years' standing nominated by the Uganda Law Society; - (d) one judge of the Supreme Court nominated by the President in consultation with the Judges of the Supreme Court, the justices of Appeal and judges of the High Court; and - (e) two members of the public who shall not be lawyers nominated by the President

(3) The Attorney General shall be an ex officio member of the commission.

(4) The Chief Justice, the Deputy Chief Justice and the Principal Judge shall not be appointed to be chairperson deputy chairperson or a member of the Judicial Service Commission. o

Attorney General is thus an ex official member of the Commission. We not consider the fact that the Attorney General conveyed the decision of JSC to the President to imply bias on his part. He was merely dorming his role conferred on him by the Constitution Moreover, the took place after the decision was made. As for his sitting on the orum, the appellant did not sufficiently substantiate why he should have en excluded. We note that he is an ex- officio member who has not been own to have any role in the drafting or even conveying the complaint to lSC. While he was copied in on some of the communication between JSC and the ULS, he did not make any response before the decision made. We therefore consider that he rightly sat on the meeting that de the decision and no bias flawed his actions. Ceftainly, none has been blished. We therefore dismiss ground 8 of the grounds of appeal.

## nclusion

e appellant made the prayers already set out on page 4 of this judgment r orders that:

- (a) The appeal be allowed. - (b) A declaration be made that the Judicial Service Commission's report made on 2nd July 2009 regarding the Applicant/Appellant is null and void. - (c) Aceftiorari order be issued quashing the said Judicial Service Commission report. - (d) An order of prohibition issues to stop the Judicial Service Commission from enforcing and taking any further action of the said Report. - (e) The Appellant be granted costs in the Court of Appeal and in the High Court.

conclusion, this appeal partly succeeds and we make the following ders and declarations. All the grounds of appeal except for grounds 1, 2 d B are allowed, Ground B of appeal is dismissed. The repoft of the JSC HE the President is hereby declared null and void by reason of the dings of the ISC being ultra vires for failure to give the appellant a

a8'

sident is hereby declared null and void by reason of the proceedings of JSC being ultra vires for failure to give the appellant a fair hearing and bias. The repoft is accordingly quashed. In light of this declaration, we no need to make the order of prohibition requested for by the ellant in paragraph (d) of the prayers. The appeal is allowed to the nt shown above with costs to the appellant here and in the court

ore we take leave of this matter, we consider that we should comment The Judicial Seruice Commission Regulations SI 87 of 2OO5 and Judicial Seruice (Complaints and Disciplinary Proceedings) ulations SI 88 of 2005, Both are made under Section 27 of the Seruice Act, That SCct on pro deS foI regu ationS to be made n pect of the manner in which matters shall be referred to the JSC, among er matters. We shall begin with the former.

Judicial Seruice Commission Regulations provide for how the ings of the JSC are to be conducted. Under Regulation 3, the irperson has to preside over every meeting of the Commission unless is absent, in which case the Deputy Chairperson or in his/her absence a mber of the Commission from the Judiciary should preside. The JSC ls iged to keep a record of the members present and the business sacted at every meeting of the Commission. The JSC is further obliged, e exercise of its powers in connection with the dismissal or termination any judicial officer, to act in accordance with the provisions of the stitution, the Act and these regulations. tn of

are citing these provisions out of concern because apart from the davit tendered by Mr. Kagole Kivumbi, no record of any proceedings tendered by the JSC in the High Court for its scrutiny. Needless to ntion, a record speaks for itself and makes it easy to follow what pened.

regard to The Judicial Seruice (Complaints and Disciplinary Regulations SI 88 ot 2O05, it is clear that they uppll to\$ 382,^ 'ee to

ges to a limited extent. First of all, they define a judicial officer as a ge or any person who presides over a court or a tribunal, however cribed (Regulation 7). They distinguish between complaints and plinary matters. With regard to complaints, a complaint may be filed by person or organization aggrieved by improper conduct of a judicial tcer (Regulation 3,). The complaint may be against a judge, the Chief istrar or a Registrar of a court, a magistrate among others ulation 4). The complaint may be oral or in writing (Regulation 5). procedure for handling complaints is elaborate and laid down in ulation JO. Service of the complaint must be effected on the subject the complaint within 14 days. The JSC must then proceed to determine ether a prima facie case is made out. If it is, it must then proceed to r the case. (If the officer concerned is not a Judge)

s our considered view that after the stage of finding a prima facie case, JSC ceases to have authority to proceed with the matter by way of l, if the person concerned is a judge. At that stage, it must consider ether or not to make a recommendation to the President to constitute a unal to consider removal of a judge. Before it makes any determination ever, the iSC is obliged to investigate the complaint, by itself or by ne else authorized by it. The investigations include interviewing nesses, the complainant, and the respondent, collecting documentary ce, or a written report where it has authorized someone else to stigate (Regulation f3/. Otherwise it would have no basis on which ubmit or not to submit its recommendation. It to

## ted at Kampata ilrlsl&tahv of June 2014

ned by

NOURABLE JUSTICE REMMY KASULE

## CE OF APPEAL

ONORABLE JUSTICE RICHARD BUTEERA USTICE OF APPEAL

ONORABLE JUSTICE SOTOMY BALUNGI BOSSA

USTICE OF APPEAL

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