Kasango ruling leaves Byabakama’s EC job on the wire

Unfortunately, the petitioner, Bob Kasango, was not in court to hear the ruling, but lying in a coffin at a Kampala morgue as his mother and wife battle in court over where to bury him.

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Justice Kenneth Kakuru of the Constitutional Court

A Constitutional Court ruling against the appointment of a judicial officer or judge to perform executive functions is unconstitutional, has put the jobs of the Electoral Commission chairman, Justice Simon Byabakama, and the Director of Public Prosecutions (DPP), Justice Jane Frances Abodo hanging on a balance.

The landmark ruling delivered on Friday, March 19, 2021, was in respect to a 2016 petition filed against the appointment of Justice Mike Chibita as DPP.

Unfortunately, the petitioner, Bob Kasango, was not in court to hear the ruling, but lying in a coffin at a Kampala morgue as his mother and wife battle in court over where to bury him.

Chibita who has since joined the Supreme Court as a judge was at the time, as DPP, leading the prosecution of corruption cases against Kasango.

A panel of five justices of the Constitutional Court, Geoffrey Kiryabwire, Cheborion Barishaki, Stephen Musota, and Muzamiru Kibeedi Mutangula and Kenneth Kakuru on Friday unanimously ruled that, if a Judge accepts to carry on duties assigned to executive and constitutional offices by the appointing authority, their actions under those offices shall be invalid if they don’t resign.

This is because such actions contravene various provisions of the Constitution especially regarding the mandate of judicial officers and the judicial oath they take.

In his petition filed five years ago, Kasango questioned Chibita’s continued being a member of the executive, its chief prosecutor, and criminal litigator, a position which required him to be the representative and advocate of the interests of the executive in criminal disputes between the state and its citizens or other individuals or entities.

As such, Kasango argued that the said two roles are in clear conflict and the second one is something no Judge who upholds and honors the judicial oath should ever do in any constitutional democracy.

Accordingly, Kasango asked the court to declare the appointment of DPP while still holding status as a judge as inconsistent with the constitution and all his actions in that office illegal.

The Constitutional Court judges declared the March 14, 2013, appointment of Chibita as DPP while he was at the same time a substantive judge of the High Court of Uganda null and void since it contravened the doctrine of separation of powers enshrined in Chapters six, seven and eight of the Constitution and Articles 128(1-3) and 129.

Their decision was based on the fact that there is nothing on record to show that Chibita resigned his appointment as a judge of the High Court before he took oath and assumed the office of the DPP.

“On the other hand sufficient evidence has been provided by the respondent to show to the satisfaction of the court that he continued to be regarded by the judiciary as a sitting judge on special assignments. I therefore find that Honorable Justice Mike Chibita did not first resign as a Judge of the High Court before his appointment to the office of the Director of Public Prosecution; his appointment as the DPP, therefore, was null and void and in contravention of article 223(4) of the Constitution,” Kakuru said.

He adds that although what Chibita did as DPP remains valid since they were done within the mandate of a DPP. “It should be clear that henceforth, any further appointment of a judge to any other executive or constitutional office prior to his or her resignation would render his or her actions invalid on account that the law is now well settled.”

Kakuru has also awarded the deceased Kasango costs for the reason that at the time of Chibita’s appointment as DPP, the Constitutional Court had already delivered a decision in a case concerning the appointment of Justice Faith Mwondha as the IGG which was ignored by the appointing authority (President Yoweri Museveni).

Kakuru ordered that all relevant authorities especially the Judicial Service Commission to ensure that before a judge or Justice takes up another appointment, he or she first resigns.

This decision as it stands from now, according to the Spokesperson of the Judiciary Jameson Karemani, means that the duties performed before by judges in executive positions such as sanctioning of charges by the DPP, Justice Jane Frances Abodo, presiding over the recently concluded elections by Electoral Commission (EC) chairman, Justice Simon Byabakama and the actions performed by a judge under the Inspectorate of Government remain valid.

However, if they do not resign following this judgment, their actions will be illegal.

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