[2024] UGHCCD 130

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS CAUSE NO.264 OF 2020**

**BAKU RAPHAEL OBUDRA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### 10 **VERSUS**

**ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### **BEFORE: HON. JUSTICE ESTA NAMBAYO**

### **RULING**

The Applicant, Baku Raphael Obudra, brought this application under **Article 50 (1) of the** 15 **Constitution of Uganda, Sections 3 (1), 4 (1) & 9 of the Human Rights Enforcement Act and Rules 5 (1) (a), 6 (1) (a) & 7 (1) of the Judicature (Fundamental and Other Human Rights and Freedoms) (Enforcement Procedure) Rules, 2019** against the Attorney General seeking for: -

- **1. A declaration that the act of the Judicial Service Commission of not short listing** 20 **and inviting the Applicant for interview for appointment to the position of Judge of the High Court and Justice of the Court of Appeal/Constitutional Court in 2017 without any justifiable reason was in breach of the Applicant's right to just and fair treatment in administrative decisions contrary to Art. 42 of the Constitution.** - 25 **2. A declaration that the act of the Judicial Service Commission of not shortlisting and inviting the Applicant for interview for appointment to the position of Judge of the High Court and Justice of the Court of Appeal/Constitutional Court in 2017 without any justifiable reason was in breach of the Applicant's right to practice his profession contrary to Article 40 (2) of the Constitution.** - 30 **3. A declaration that the act of the Judicial Service Commission of not short listing and inviting the Applicant for interview for appointment to the position of Judge of the Court of Appeal/Constitutional Court in 2017 without any justifiable reason was in breach of the Applicant's right to fair hearing contrary to Art. 28 (1) and 44 (c) of the Constitution.**

- 35 **4. A declaration that the act of Justice Benjamin Kabiito, Chairperson/Information Officer of the Judicial Service Commission of refusing to provide information in the possession of the Commission to the Applicant on why he was not short listed and invited for interview for appointment to the position of Judge of the High Court and Court of Appeal/Constitutional Court in 2017 without any** 40 **justifiable reason was in breach of the Applicant's right to access to information in the possession of the Commission contrary to Art. 41 of the Constitution.** - **5. A declaration that the act of Justice Benjamin Kabiito, Chairperson/Information Officer of the Judicial Service Commission of refusing to provide information in the possession of the Commission to the Applicant on why he was not short** 45 **listed and invited for appointment to the position of Judge of the High Court and Court of Appeal/Constitutional Court in 2017 without any justifiable reason was in breach of the Applicant's right to just and fair treatment contrary to Art. 42 of the Constitution.** - **6. A declaration that the act of Judicial Service Commission of not short listing** 50 **and inviting the Applicant for interview for appointment to the position of Judge of the High Court in 2019 without any justifiable reason was in breach of the Applicant's right to practice his profession contrary to Art. 40 (2) of the Constitution.** - **7. A declaration that the act of the Judicial Service Commission of not short listing** 55 **and inviting the Applicant for interview for appointment to the position of Judge of the High in 2019 without any justifiable reason was in violation of the Applicant's right to fair hearing contrary to Art. 28 (1) and 44 (c) of the Constitution.** - **8. A declaration that the act of the Judicial Service Commission of not short listing** 60 **and inviting the Applicant for interview for appointment to the position of Judge of the High in 2019 without any justifiable reason was in violation of the Applicant's right to just and fair treatment in administrative decisions contrary to Art. 42 of the Constitution.**

- **9. A declaration that the act of Justice Benjamin Kabiito, Chairperson/Information** 65 **Officer of the Judicial Service Commission of refusing to provide information in the possession of the Commission to the Applicant on why he was not short listed and invited for interview for appointment to the position of Judge of the High Court in 2019 without any justifiable reason was in breach of the Applicant's right of access to information contrary to Art. 41 of the Constitution.** - 70 **10. A declaration that the act of Justice Benjamin Kabiito, Chairperson/Information Officer of the Judicial Service Commission of refusing to provide information in the possession of the Commission to the Applicant on why he was not short listed and invited for interview for appointment to the position of Judge of the High Court in 2019 without any justifiable reason was in breach of the** 75 **Applicant's right to just and fair treatment in administrative decisions contrary to Art. 42 of the Constitution.** - **11. A declaration that the act of the Judicial Service Commission of short listing but not inviting the Applicant for interview for appointment to the position of Justice of the Court of Appeal/Constitutional Court in 2019 without any** 80 **justifiable reason was in breach of the Applicant's right to fair hearing contrary to Art. 28 (1) and 44 (c) of the Constitution.** - **12. A declaration that the act of the Judicial Service Commission of short listing but not inviting the Applicant for interview for appointment to the position of Justice of the Court of Appeal/Constitutional Court in 2019 without any** 85 **justifiable reason was in breach of the Applicant's right to just and fair treatment in administrative decisions contrary to Art. 42 of the Constitution.** - **13. A declaration that the act of the Judicial Service Commission of short listing but not inviting the Applicant for interview for appointment to the position of Justice of the Court of Appeal/Constitutional Court in 2019 without any** 90 **justifiable reason was in breach of the Applicant's right to practice his profession contrary to Art. 40 (2) of the Constitution.** - **14. A declaration that the act of Justice Benjamin Kabiito, Chairperson/Information Officer of the Judicial Service Commission to the Applicant on why he was short**

**listed but not invited for interview for appointment to the position of Justice of** 95 **the Court of Appeal/Constitutional Court in 2019 without any justifiable reason was in violation of the Applicant's right to access information in the possession of the Commission contrary to Art. 41 of the Constitution.**

- **15. A declaration that the act of Justice Benjamin Kabiito, Chairperson/Information Officer of the Judicial Service Commission of refusing to provide information in** 100 **the possession of the Commission to the Applicant on why he was shortlisted but not invited for interview for appointment to the position of Justice of the Court of Appeal/Constitutional Court in 2019 without any justification was in violation of the Applicant's right to just and fair treatment in administrative decisions contrary to Art. 42 of the Constitution.** - 105 **16. A declaration that the act of Justice Benjamin Kabiito, Chairperson of the Judicial Service Commission, of chairing the Commission's proceedings when the Commission was interviewing the Applicant for the position of Justice of the Supreme Court when Justice Kabiito held a grudge against the Applicant violated the Applicant's right to fair hearing contrary to Art. 28 (1) and 44 (c)** 110 **of the Constitution.** - **17. A declaration that the act of Justice Benjamin Kabiito, Chairperson of the Judicial Service Commission, of chairing the Commission's proceedings when the Commission was interviewing the Applicant for the position of Justice of the Supreme Court when Justice Kabiito held a grudge against the Applicant** 115 **violated the Applicant's right to just and fair treatment in administrative decisions contrary to Art. 42 of the Constitution.** - **18. A declaration that the act of Justice Benjamin Kabiito, Chairperson of the Judicial Service Commission, of chairing the Commission's proceedings when the Commission was interviewing the Applicant for the position of Justice of the** 120 **Supreme Court when Justice Kabiito held a grudge against the Applicant violated the Applicant's right to practice his profession contrary to Art. 40 (2) of the Constitution.**

- **19. A declaration that the act of Justice Faith Mwondha, Deputy Chairperson of the Judicial Service Commission, of chairing the Commission's proceedings when** 125 **the Commission was interviewing the Applicant for the position of Chairperson and Deputy Chairperson, Leadership Code Tribunal when Justice Mwondha held a grudge against the Applicant violated the Applicant's right to just and fair treatment in administrative decisions contrary to Art. 42 of the Constitution.** - **20. A declaration that the act of Justice Faith Mwondha, Deputy Chairperson of the** 130 **Judicial Service Commission, of chairing the Commission's proceedings when the Commission was interviewing the Applicant for the position of Chairperson and Deputy Chairperson, Leadership Code Tribunal when Justice Mwondha held a grudge against the Applicant violated the Applicant's right to fair hearing contrary to Art. 28 (1) and 44 (c) of the Constitution.** - 135 **21. A declaration that the act of Justice Faith Mwondha, Deputy Chairperson of the Judicial Service Commission, of chairing the Commission's proceedings when the Commission was interviewing the Applicant for the position of Chairperson and Deputy Chairperson, Leadership Code Tribunal when Justice Mwondha held a grudge against the Applicant violated the Applicant's right to practice his** 140 **profession contrary to Art. 40 (2) of the Constitution.** - **22. A declaration that the act of the Judicial Service Commission of interviewing the Applicant for the position of Member, Leadership Code Tribunal when the Commission lacked quorum and was chaired by an unauthorized person violated the Applicant's right to fair hearing contrary to Art. 28 (1) and 44 (c) of the** 145 **Constitution.** - **23. A declaration that the act of the Judicial Service Commission of interviewing the Applicant for the position of Member, Leadership Code Tribunal when the Commission lacked quorum and was chaired by an unauthorized person violated the Applicant's right to just and fair treatment in administrative** 150 **decision contrary to Art. 42 of the Constitution.** - **24. A declaration that the act of the Judicial Service Commission of interviewing the Applicant for the position of Member, Leadership Code Tribunal when the**

**Commission lacked quorum and was chaired by an unauthorized person violated the Applicant's right practice his profession contrary to Art. 40 (2) of** 155 **the Constitution.**

- **25. A declaration that the Judicial Service Commission acted in violation of the Applicant's human rights guaranteed under Article 21 (2) of the Universal Declaration of Human Rights and Art. 25 (c) of the International Covenant on Civil and Political Rights to both of which Uganda is a State Party, when the** 160 **Commission denied the Applicant opportunity to access the Public Service of Uganda on the basis of equality with other applicants for the positions for which the Applicant had applied.** - **26. A declaration that the act of the Judicial Service Commission of allowing Mr. Mwesigwa Rukutana, who was not a Member of the Commission to attend the** 165 **Commissioner's proceedings when the Commission was interviewing the Applicant for the position of Deputy Chairperson, Leadership Code Tribunal and when he held a grudge against the Applicant violated the Applicant's right to fair hearing contrary to Art. 28 (1) and 44 (c) of the Constitution.** - **27. A declaration that the act of the Judicial Service Commission of allowing Mr.** 170 **Mwesigwa Rukutana, who was not a Member of the Commission to attend the Commissioner's proceedings when the Commission was interviewing the Applicant for the position of Deputy Chairperson, Leadership Code Tribunal and when he held a grudge against the Applicant violated the Applicant's right to just and fair treatment in administrative decisions contrary to Art. 42 of the** 175 **Constitution.** - **28. A declaration that the act of the Judicial Service Commission of allowing Mr. Mwesigwa Rukutana, who was not a Member of the Commission to attend the Commissioner's proceedings when the Commission was interviewing the Applicant for the position of Deputy Chairperson, Leadership Code Tribunal and** 180 **when he held a grudge against the Applicant violated the Applicant's right to practice his profession contrary to Art. 40 (2) of the Constitution.**

- **29. A declaration that all the impugned acts of the Judicial Service Commission were in contravention of the Applicant's right to protection from victimization and discrimination for having performed his duties as a public officer faithfully and** 185 **in accordance with the Constitution contrary to Art. 173 (a) of the Constitution. 30. A declaration that all the adverse decisions taken by the Judicial Service** - **Commission against the Applicant during the impugned proceedings of the Commission are invalid, null and void for having been taken in contravention of the mentioned provisions of the Constitution.** - 190 **31. A declaration that all the decisions taken by the Judicial Service Commission during the impugned proceedings are invalid, null and void for having been taken in violation of the Applicant's fundamental and other human rights and freedoms.** - **32. A permanent injunction restraining the Judicial Service Commission from** 195 **treating the Applicant as unqualified or unsuitable for appointment as Judge of the High Court, Justice of Court of Appeal/Constitutional Court, Justice of the Supreme Court, Chairperson, Deputy Chairperson and Member of the Leadership Code Tribunal on the basis on the basis of the impugned proceedings.** - 200 **33. Restitutory order that the Applicant was at all material time qualified, fit and proper person to be appointed to the positions he applied for, namely Judge of the High Court, Justice of the Court od Appal/Constitutional Court, Justice of the Supreme Court, Chairperson, Deputy Chairperson and Member of the Leadership Tribunal.** - 205 **34. Compensation for the opportunities the Applicant lost to practice his profession, denial of fair hearing, denial of fairness and justice, denial of access to information and victimization of the Applicant in respect of all those positions in the Judiciary and the Leadership Code Tribunal for which the Applicant applied but for which his name was not forwarded to the Appointing Authority** 210 **for consideration for appointment in violation of his constitutional rights.**

- **35. General damages for psychological torture, anguish and stress the Applicant suffered as a consequence of the violation of his constitutional rights for the eight positions he applied for and for which he was not recommended for appointment by the Judicial Service Commission without any justifiable reason.** - 215 **36. Exemplary or punitive damages for the high handed, callous, malicious and vindictive manner in which the Applicant was treated in respect of his bid for the offices for which he applied in the Judiciary and Leadership Code Tribunal.** - **37. Public apology and acknowledgement of the facts and acceptance of responsibility by the Judicial Service Commission.** - 220 **38. Any other relief the court deems fit.**

## **39. Costs of the Application be provided for.**

The grounds of the application are laid down in the affidavit in support of the application sworn by Baku Raphael Obudra but briefly are that: -

- **a. The Judicial Service Commission violated the rights of the Applicant guaranteed** 225 **by Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 & 173 (a) of the Constitution when the Commission failed, refused neglected or deliberately decided not to short list and invite the Applicant for interviews for consideration for appointment to the judicial offices of Judge of the High Court and Justice of Court of Appeal/Constitutional Court in 2017 when he qualified and was duly nominated.** - 230 **b. At all material time the Judicial Service Commission acted arbitrarily and in wanton violation of the Applicant's rights guaranteed by Articles 28 (1), 40 (2), 42, 44 (c) & 173 (a) of the Constitution when short listing applicants for interviews for appointment to the position of Judge of the High Court in 2019. c. At all material times the Judicial Service Commission acted arbitrary and in** 235 **wanton violation of the Applicant's rights guaranteed by Articles 28 (1), 40 (2), 42, 44 (c) & 173 (a) of the Constitution when short listing and inviting applicants for interview for appointment to the position of Justice of the Court of Appeal/Constitutional Court in 2019.** - **d. At all material times the Judicial Service Commission acted in violation of** 240 **Applicant's human rights guaranteed under Article 21 (2) of the Universal**

Page **8** of **19**

**Declaration of Human Rights and Article 25 (c) of the International Covenant on Civil and Political Rights to both of which Uganda is a State Party, when the Commission denied the Applicant opportunity to access the Public Service of Uganda on the basis of equality with other applicants for the positions for which** 245 **the Applicant was qualified and for which he was nominated in 2017 and applied in 2019.**

- **e. The Chairperson of the Judicial Service Commission, Justice Benjamin Kabiito, acted in violation of the Applicant's rights guaranteed by Articles 28 (1), 40 (2), 42 and 44 (c) when he chaired the Commission proceedings during the interview** 250 **of the Applicant for the position of Justice of the Supreme Court while he held a grudge against the Applicant.** - **f. At all material time Justice Benjamin Kabiito acted in contravention of the Applicant's rights guaranteed by Articles 41, 42 and 44 (c) of the Constitution when he denied the Applicant access to information in the possession of the** 255 **Judicial Service Commission, of which he is the Chairperson/Information Officer.** - **g. The Deputy Chairperson of the Judicial Service Commission, Justice Faith Mwondha, acted in violation of the Applicant's rights guaranteed by 28 (1), 40 (2), 42 and 44 (c) when she chaired the Commission proceedings during the interview of the Applicant for the position of Chairperson and Deputy** 260 **Chairperson of the Leadership Code Tribunal while she held a grudge against the Applicant.** - **h. The Judicial Service Commission acted in violation of the Applicant's rights guaranteed by Articles 28 (1), 40 (2), 42 and 44 (c) when the Commission allowed Mr. Mwesigwa Rukutana, a non-member, to attend the Commission** 265 **proceedings during the interview of the Applicant for the position of Deputy Chairperson of the Leadership Code Tribunal and when the said Mwesigwa Rukutana held a grudge against the Applicant.** - **i. Mr. Mwesigwa Rukutana acted in violation of the Applicant's rights guaranteed by Articles 28 (1), 40 (2), 42 and 44 (c) when he attended the Commission** 270 **proceedings during the interview of the Applicant for the position of Deputy**

**Chairperson of the Leadership Code Tribunal while the said Mwesigwa Rukutana was not a member of the Commission and he held a grudge against the Applicant.**

- **j. The Judicial Service Commission violated the rights of the Applicant guaranteed** 275 **by Articles 28 (1), 40 (2), 42 and 44 (c) of the Constitution when the Commission conducted the interviews for the Applicant for appointment to the position of Member of the Leadership Code Tribunal when the Commission was chaired by an unauthorized person and it lacked quorum.** - **k. The acts of the Judicial Service Commission the Applicant is complaining of** 280 **amount to victimization and/or discrimination against the Applicant for having performed his duties as Deputy Inspector General of Government and acting Inspector General faithfully and in accordance with the Constitution contrary to Article 173 (a) of the Constitution.**

Mr. Ronald Sekagya, the Acting Secretary to the Respondent filed an affidavit in reply 285 opposing this application.

### **Brief background to the application.**

The brief background to this application is that in 2017, the Judicial Service Commission advertised for jobs of Judge of the High Court and of the Court of Appeal/Constitutional Court and called upon Institutions with qualifying persons to nominate and send names 290 to the JSC. The Applicant was nominated by the Inspector General of Government, by then Justice Irene Mulyagonja and Senior Counsel Francis Gimara who was the President of Uganda Law Society. The Applicant was not shortlisted for interviews and yet he had the qualifications.

In 2019, there was another advert for the same positions as above, the Applicant applied 295 but he was again not shortlisted. When he sought for an explanation from JSC, there was none. Later on still in 2019, following other adverts, the Applicant applied for the position of Justice of the Supreme Court, Chairperson, Deputy Chairperson and Member of the Leadership Code Tribunal, 2019. This time round the Applicant was shortlisted and he appeared for interviews. Justice Benjamin Kabiito, Chairperson of the Judicial Service 300 Commission, chaired the panel for Justice of the Supreme Court while Justice Justice Faith Mwondha, Deputy Chairperson of Judicial Service Commission, was chair of the panel when the Applicant appeared for interviews for Chairperson and Deputy Chairperson of the Leadership Code Tribunal. Hon. Mwesigwa Rukutana, then Deputy Attorney General, joined the panel while the Applicant was appearing before Justice Mwondha. Senior Counsel Ruth 305 Ssebatindira chaired the panel for member of the Leadership Code Tribunal.

It is the Applicant's contention that when he appeared for interviews, Justice Kabiito and Justice Faith Mwonda were biased against him and that Senior Counsel Ruth Ssebatindira was incompetent and there was no quorum when the Applicant appeared before her. That Mr. Mwesigwa Rukutana was an unauthorized person and yet he was allowed to sit in the 310 session while the Applicant appeared for interviews before Justice Mwondah. The Applicant lost out on the recruitment, hence this suit.

#### **Representation**

Learned Counsel Bateyo Kenneth represents the Applicant while Mr. Hillary Ebila Nathan, State Attorney from the Attorney Generals Chambers, is for the Respondent. Parties were 315 directed to file written submissions, only the Applicant complied.

The following are the issues raised for trial: -

- **1. Whether the Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution while shortlisting candidates for appointment as Judges of the High Court and** 320 **Justices of the Court of Appeal/Constitutional Court in 2017 and 2019.** - **2. Whether the Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution when it shortlisted and de-shortlisted the Applicant for the position of Justice of the Court of Appeal in 2019 on claims of adverse report without giving him a** 325 **hearing.** - **3. Whether the Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution when the Commission failed to submit the name of the Applicant to H. E the President to consider the Applicant for all the positions the Applicant was nominated for** 330 **or for which he applied in 2017 and 2019.**

- **4. Whether the Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution when the Commission interviewed the Applicant for the position of member of the Leadership Code Tribunal while the Commission had no quorum and was chaired** 335 **by an unauthorized person.** - **5. Whether the Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution when it allowed a non-member to attend the proceedings of the Commission while shortlisting candidates for interviews in 2017 and 2019.** - 340 **6. Whether the Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution when it allowed a non-member to attend the proceedings of the Commission while interviewing the Applicant for the position of Deputy Chairperson of the Leadership Code Tribunal.** - 345 **7. Whether Justice Benjamin Kabiito, Chairperson of the Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution when he chaired the Commission's proceedings at which the Applicant was interviewed for the position of Justice of the Supreme Court.** - 350 **8. Whether Justice Faith Mwondha, Deputy Chairperson Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution when she chaired proceedings of the Commission at which the Applicant was interviewed for the position of Chairperson and Deputy Chairperson of the Leadership Code Tribunal.** - 355 **9. Whether the Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution when the Commission interviewed the Applicant for the position of Justice of the Supreme Court, Chairperson, Deputy Chairperson and Member of the Leadership Code Tribunal while the Commission was holding the view that there** 360 **was unresolved matter between the Applicant and the Law Council.**

#### **10. What remedies are available to the Applicant.**

#### **Resolution of issues**

**Issue No. I: Whether the Judicial Service Commission violated the Applicant's rights under Articles 21, 28 (1), 40 (2), 42, 44 (c), 45 and 173 (a) of the Constitution while** 365 **shortlisting candidates for appointment as Judges of the High Court and Justices of the Court of Appeal/Constitutional Court in 2017 and 2019.**

#### **Submissions for the Applicant**

Counsel for the Applicant relied on paragraphs 21-29 of the Applicant's affidavit in support of the application and paragraph 9 of the affidavit in reply and submitted that the evidence 370 by Sekagya (the Ag. Secretary, JSC means that the Commission deliberately decided not to shortlist the Applicant for the positions of Judge of the High Court and Justice of Appeal/ Constitutional Court because of an allegation of an unresolved matter before the Law Council yet the nature of the unresolved matter was never brought to the attention of the Applicant and that he was never required to refute or respond to the alleged 375 unresolved matter. That neither in the letter seeking nominations issued in 2017 nor in the advert for the positions in the Judiciary issued in 2019 was there any notice that advocates who had unresolved matters with the Law Council should not be nominated or should not apply. Counsel submitted that there is no law which prohibits shortlisting advocates who have any matter before the Law Council from being shortlisted and interviewed for a 380 judicial office. He relied on the case of **Gladys Nakibuule Kisekka –v- Attorney General,**

**Constitutional Application No. 90 of 2013,** at page 5, where the Constitutional Court held that; -

"Disciplinary proceedings against Judicial Officers under the Judicial Service Act and Regulations made there under, are in our considered view, quasi-criminal in as much as 385 they constitute acts, defaults and conducts prejudicial to the public beyond the individual and, one convicted of the same, is liable to punishment. It follows, in our considered view, that presumption of innocence enshrined in Article 28 (3) (a) of the Constitution should apply to one facing disciplinary proceedings before the Commission. Thus one should not be punished before one is found guilty, certainly not on the mere presence of an unproved 390 complaint with the Comission."

Counsel contended that disciplinary proceedings before the Judicial Service Commission in respect of judicial officers and those before the Law Council in respect of advocates are of the same nature and consequences and so the decision of the Constitutional Court in the case of Nakibuule is equally applicable to the Applicant in the instant case. That there 395 was no justifiable reason for him not to have been shortlisted for interviews for the position of Judge of the High Court and Justice of the Court of Appeal in 2017 as he met the requirements for appointment to both positions.

Counsel submitted that failure to shortlist the Applicant violated his rights under Articles 21, 28 (1), 40 (2), 44 (c), 45 and 173 (a) of the Constitution and prayed that this court be 400 pleased to find as such.

Counsel further cited the case of **Caroline Turyatemba –v- Attorney General & Anor. Constitutional Petition No. 15 of 2006** and averred that with respect to issue 1 in general, the Applicant gave evidence in paragraphs 59, 60, 61 & 66 of his affidavit in support of the application clarifying that after not being shortlisted for the position of Judge of the 405 High Court and Justice of the Court of Appeal, the Judicial Service Commission shortlisted and invited him for interviews for the position of Justice of the Supreme Court of Uganda. That the Applicant attended the interview although at the end, the Commission did not forward his name to the appointing authority. That this raises the question; if the Commission was acting in good faith or if the Commission did not shortlist the Applicant 410 for the position of Judge of the High Court and Justice of Court of Appeal because of "unresolved matter" as claimed by Sekagya in his affidavit, how could the Applicant be shortlisted for the position of Justice of the Supreme Court to attend interview on 14.10.2019 before he was cleared of wrong doing by the Law Council on 6.12.2019.

## **Analysis**

415 The Applicant's claim in all the nine issues for trial is that his rights were violated under **Articles 21, 28 (1), 40 (2), 44 (c), 45 and 173 (a) of the 1995 Constitution of Uganda.** I find it necessary for purposes of application and analysis of the law and facts of this case to state the respective articles of the constitution alleged to have been violated as I evaluate the evidence presented by the Applicant and the submissions of his Counsel.

Page **14** of **19**

420 Article 21 provides for equality and freedom from discrimination. It prohibits gender discrimination generally and enshrines the principle of equality before the law, regardless of sex, race, color, ethnicity, tribe, religion, political belief, or social or economic standing and it states as follows;

Art. 21. (1) - All persons are equal before and under the law in all spheres of political, 425 economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

(2) Without prejudice to clause (1) of this article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.

430 (3) For the purposes of this article, "discriminate" means to give different treatment to different persons attributable only or mainly to their respective descriptions by sex, race, colour, ethnic origin, tribe, birth, creed or religion, or social or economic standing, political opinion or disability.

There is no evidence on court record to show that the Applicant was discriminated against

435 by the Respondent within the meaning of Art. 21 of the 1995 Constitution during the process of shortlisting people who had applied for the position of Judge of the High Court and/or Court of Appeal for the period of 2017 and 2019.

Under Art. 28. (1) of the Constitution, it is provided that in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and 440 public hearing before an independent and impartial court or tribunal established by law. I find this Article misplaced as the Applicant has not presented any evidence of a hearing

within the meaning of Art. 28(1) of the 1995 Constitution of Uganda.

Art. 40(2) of the 1995 Constitution of Uganda provides that every person in Uganda has the right to practise his or her profession and to carry on any lawful occupation, trade or 445 business.

My understanding on application of this Article to the Applicant's evidence is that by not shortlisting the Applicant for interviews or by the Applicant appearing for interviews but not being successful, Judicial Service Commission violated his right to practice his

profession and to carry on lawful occupation, trade or business. Under paragraph 21 of his 450 affidavit in support of the application, the Applicant states that in 2017, while in the course of his legal practice, he came to learn that Judicial Service Commission was due to solicit for nominations for appointment to the Judiciary as Judges of the High Court and Justices of the Court of Appeal/Constitutional Court. Under paragraph 24, the Applicant states that when Judicial Service Commission communicated to various institutions seeking 455 nomination of candidates for the said positions of Judges of the High Court and Justices of the Court of Appeal/ Constitutional Court, he secured nominations from Senior Counsel, Francis Gimara, the then President of Uganda Law Society and Lady Justice Irene Mulyagonja, the then Inspector General of Government, but unfortunately, he was not shortlisted for interviews and yet JSC received his nominations and he was qualifying.

460 I note from his evidence that at the time of his being nominated, the Applicant was in private practice. It would appear that he continued in private practice even after his application. There is no evidence to show that JSC interfered and/or violated the Applicant's right to practice his profession and to carry on lawful occupation, trade or business. Failure to short list the Applicant for interviews did not in any way interfere with the Applicant's 465 right to practice his profession within the meaning of Art. 40(2) of the 1995 Constitution.

Article 44 (c) prohibits derogation from a right to a fair hearing. In this case, the Applicant states under paragraph 46 of his affidavit in support of the application that when his name was not short listed, he raised a complaint with the Chairman Judicial Service Commission and he (Chairman JSC) informed him that he had received adverse reports from the Uganda 470 Law Society and the Law Council. That the Applicant then informed the Chairman that he had a minor pending disciplinary matter before the Law Council Disciplinary Committee but that should not be a bar to his being interviewed for the position of Justice of Appeal for which he had been shortlisted and that there was a constitutional court case of **Gladys Nakibuule Kisseka –v- Attorney Genral Constitutional Application No. 90 of 2013**, 475 where court held that it was against the principles of presumption of innocence for the Applicant to be excluded from the interviews for appointment as Registrar merely because was an unproven pending disciplinary case.

The Applicant states that the Chairman still refused to restore his name on the short list and he advised him to go and sort himself out with the Law Council for purposes of any 480 opportunity that could arise in future. The Applicant admits that he had a case pending before Law Council. Details of the report from Law Council were not brought to court. It is not clear whether the adverse reports from Law Society and Law Council specifically advised JSC not to short list the Applicant or not. If the adverse reports specifically advised JSC not to short list the Applicant, then I would find no reason to fault Judicial Service 485 Commission and the Nakibuule case (supra) would not apply.

Secondly, since the Applicant admits that his name had been on the shortlist and later on removed; and the Chairman informed him that it was removed after he had received the adverse report from Law Council, then JSC cannot be blamed, in my view. Be that as it may, the Applicant further states that the Chairman advised him to go sort himself out 490 with Law Council and promised to short list him and indeed subsequently, the Applicant was short listed for the next interviews of Justice of the Supreme Court and for Chairperson, Deputy Chairperson and Member of the Leadership Code Tribunal. Whether or not the Applicant passed the interviews is another matter. What matters here is that he raised a complaint and his complaint was addressed and indeed Judicial Service Commission short 495 listed him, I believe, after clearance by the Law Council. Therefore, submission by Counsel

for the Applicant that the Applicant was condemned unheard and his bid to become a Judicial Officer frustrated without any justifiable cause has no basis.

## **Bias when he appeared for interviews**

It is the Applicant's claim that there was bias against him when he appeared for interviews 500 before Justice Benjamin Kabiito for Justice of the Supreme Court and before Justice Faith Mwondha for Chairperson of the Leadership Code Tribunal.

#### **Black's Law Dictionary, 6 th edition, defines bias as;**

'a predisposition to decide a cause or an issue in a certain way, which doesn't leave the mind perfectly open to connection'.

505 To prove bias, one has to provide concrete evidence of unfair treatment towards him or her.

# In **Dr. Arthur Ahimbisibwe –v- The Appointments Board of Makerere University Business School, MC No.34 of 2020; court noted that;**

"A decision may always be invalidated if actual bias on the part of the decision maker is 510 proved. However, the courts will often not be concerned to investigate evidence of actual bias. It is no desirable that all adjudicators, should be above suspicion, but it would not be desirable to inquire into the mental state of the decision-maker. The courts will look at the circumstances of the particular case to see if there is an appearance of bias. Therefore, what the courts see is whether there is reasonable ground for believing that the decision-515 maker was likely to have been biased."

**In Ole Keiwua -v- Chief Justice of Kenya & 6 Others, 2006 KLR, cited in Meera Investments Ltd –v- The Commissioner General, URA CA No.15 of 2007,** Court noted that;

"a litigant who has knowledge of the facts that give rise to apprehension of possibility of 520 bias ought not to be permitted to keep his objection up the sleeve until he finds out that he has not succeeded. The court must guard against litigants who all too often blame their losses in court cases to bias on the part of the judge."

In this case, the Applicant has not presented evidence to show actual bias against him by Justice Kaibiito and Justice Mwondha. He only suspects that the two were biased against 525 him because of what transpired between him and each one of them in the past. Applying the case of **Ole Keiwua (supra),** it is my view that the Applicant should have raised his fears before appearing for interviews. Raising a complaint of bias after knowing that he was not successful in the interviews makes it appear as if the Applicant is trying to find

530 Article 173(a) of the Constitution provides that a [public officer](https://ulii.org/akn/ug/act/statute/1995/constitution/eng@2018-01-05#defn-term-public_officer) shall not be victimised or discriminated against for having performed his or her duties faithfully in accordance with this Constitution.

reason for his failure.

The Applicant states that when he appeared at the commission for interface with the JSC for the assessment for the position of Deputy Chairman of the Leadership Code Tribunal,

535 while in the course of proceedings Mr. Mwesigwa Rukutana, who was the Deputy Attorney General entered the Board room and participated in the interviews. That the Applicant while he was Deputy IGG, he had sanctioned prosecution of Mr. Rukutana for abuse of office. That the Applicant came to realise that Kabiito, Mwondha and Rukutana had ganged up against him with the intension to frustrate him.

- 540 Counsel submitted that Rukutana being a none member of the commission had ulterior motives for illegally attending the Commission proceedings during short listing of candidates for Judicial appointment and he used his presence to galvanize the Commission against shortlisting the Applicant for the interviews. - With due respect to Counsel, I find that his submissions are not in tandem with the 545 Applicants evidence on record. The Applicant's evidence is that Mr. Rukutana joined Justice Mwondha while she was chairing the session of interviews for Chairperson and Deputy Chairperson of the Leadership Code Tribunal; and not shortlist as submitted by Counsel.

**Under S.2 (2) of the Judicial Service Act**, the Attorney General is an ex-officio member to the Judicial Service Commission. This means that Mr. Rukutana, being the Deputy 550 Attorney General was standing in for the Attorney General as an ex officio member and as such, he was legally in attendance of the interviews. I have not established any evidence of bias against the Applicant. I find that his claim of bias is unsubstantiated by evidence and as such, it cannot stand. On the whole, I find that the Applicant was not victimised or discriminated against for having performed his duties faithfully in accordance with the 1995 555 constitution. Therefore, I find no merit in this application and do hereby dismiss it from court. Since the Respondent did not file its submissions, I make no order to costs.

I so order.

**Dated, signed and delivered by mail at Kampala on this 23rd day of April, 2024.**

560 **Esta Nambayo JUDGE 24th/4/2024**