A Commentary on the Re-appointment of the Chief Justice Emeritus of Uganda

This brief opinion is in response to the legal opinion by the Attorney General of Uganda, Peter Nyombi which supported the re-appointment of the erstwhile Chief Justice of Uganda Benjamin Odoki. 

In arriving at this opinion, I am guided by an earlier ruling of the Constitutional Court in Sam Kuteesa & 2 Others Vs Attorney General CONSTITUTIONAL PETITION NO.46 OF 2011 Constitutional Reference No. 54 O f 2011, when it held that ''the Constitution must be interpreted broadly, liberally and purposively. The entire constitution has to be read as an integral whole with its letter and spirit, as the supreme law, being respected. (Minister of Home Affairs (Bermuda) Vs Fisher [1980] AC 319). The Constitutional Court in Kuteesa also held that ''The principle of harmonization goes hand in hand with the broad approach to interpreting the Constitution. Where there are several articles that conflict with each other in the same constitution, it is the duty of the court to give effect to the whole constitution by harmonizing its provisions.'' ( Cited in TINYEFUNZA VS. THE ATTORNEY GENERAL: CONSTITUTIONAL APPEAL NO.1 OF 1997)

Therefore, in interpreting the Constitution, one should take heed to read the Constitution in its entirety; that is, all the Articles, the Preamble as well as the National Objectives and Directive Principles of State Policy. Further, interpreting the Constitution requires one to take cognizance of the requirement for the said interpretation to be in conformity with law, values, norms and aspirations of the people. Once that is done, it is difficult to concur that the intention of the framers of the Constitution envisaged - as the AG opines- that a person who has VACATED the position of Chief Justice or any other Judicial position (by reason of having reached the mandatory age for retirement), would be recalled from retirement and reappointed - first as an ''Acting'' Justice of the Supreme Court and consequently ''appointed'' either as an Acting or Substantive Chief Justice. Such a finding would defeat both the explicit wording of the Constitution as well as its spirit and purpose. 

Article 144 (1)  of the 1995  Constitution says that a judicial officer ....SHALL vacate his or her office .... in the case of the Chief Justice, the Deputy Chief Justice, a justice of the Supreme Court and a justice of Appeal, on attaining the age of seventy years. Further, whereas Article 253 provides for the re-appointment of any person who has vacated an office established by this Constitution, that person can only be re-appointed or elected to hold that office, IF QUALIFIED, and IN ACCORDANCE WITH THE PROVISIONS OF THIS CONSTITUTION (Emphasis mine). Article 253 therefore requires that ALL the provisions of the Constitution are complied with and not just the one which is cited by the Attorney General. 

So, when the Attorney General suggests that ''the retirement age of seventy years is not the qualification referred to in clause (2) of Article 142 because it is DISCARDED (emphasis mine) under the above-mentioned clause.'' How can one Article of the Constitution DISCARD another? Is that in line with the harmonization principle? Is that what the framers of the Constitution intended? If yes, i beg to differ. Indeed i strongly disagree that that could be the right interpretation of the law. I believe that the correct interpretation of the Constitution is that the qualifications under Article 143 must be read in harmony with the DIS-qualifications under Article 144. There is no way in which a retired judge, who vacated office  by reason of age, can be reappointed into a substantive or acting appointment  in ‘‘accordance with the provisions of the Constitution.’’ In other words, for an ‘acting’ position to become the linchpin for a substantive or other acting position is untenable.  

The right interpretation should be, as my learned friend Sarah Kihika asserts, that the Constitution does not envisage a Supreme Court Justice acting as Chief Justice in the same way that it does not envisage an Acting Deputy Chief Justice serving as an Acting Chief Justice. This is because Article 133 of the Constitution clearly stipulates that where the office of the Chief Justice is vacant or for some reason the substantive Chief Justice cannot perform the functions of his or her office, those functions can only be performed by a Deputy Chief Justice until a substantive appointment is made. 

It is therefore incorrect to suggest that Article 253 does away with Article 144. That could not have been the intention of the framers of this Constitution. Such an opinion runs foul of the harmonization principle that is expounded in US Supreme Court in SOUTH DAKOTA VS NORTH CAROLINA 192 V 268 [1940], to wit; “ the entire Constitution has to be read as an integrated whole and no one particular provision destroying the other but each sustaining the other. This is the rule of harmony, rule of completeness and exhaustiveness and the rule of paramountcy of the written Constitution.” When one reads the Constitution in its totality, one is UNABLE to come to the same opinion as that of the Attorney General . Neither can one agree with the advice of the Attorney General to the effect that the aforementioned proposed re-appointment should be ''harmonised'' in a meeting of the President with the entire Judicial Service Commission. My understanding of the role of the Judicial Service Commission is that it recommends candidates to the President for appointment as judicial officers and not vice-versa.

That is the law - as i understand it - that bars Chief Justice Emeritus Odoki from being reappointed.