KAMPALA, Uganda — Eleven High Court judges are unemployed after their two-year contracts recently lapsed, according to information obtained by Daily Monitor.
Several of the affected judges have returned their case files to their supervisors as they await further instructions from authorities, including President Museveni, who holds the power to appoint them.
Among those affected is Justice Rosette Comfort Kania, the deputy chairperson of the Judicial Service Commission, or JSC. During a criminal court session last week in Kampala, Kania met with prosecutors and defense lawyers in her chambers to discuss the situation.
Kania reportedly briefed the legal teams on the Henry Katanga murder trial and adjourned the case for a month, expressing hope that her reappointment would be finalized before the next hearing on Sept. 22.
The other judges affected are: Flavia Nabakooza, Dr. Christine Echookit Akello, Jacqueline Mwondha, Aisha Naluzze Batala, Emily Patience Tumusiime Rubagumya, Farouq Lubega, Jamson Karemani Karemera, David Makumbi, Amos Kwizera and Philip Willbrod Mwaka.
When contacted for comment, Dr. Rose Nassali, the secretary of the JSC, said the matter was now with the appointing authority, President Museveni, who is expected to regularize their contracts. “It’s now in the hands of the appointing authority,” Nassali said in a brief telephone interview.
Constitutional Court Ruling
In December 2022, the Constitutional Court ruled that appointing High Court judges in an “acting capacity” for extended periods, such as two years, is unconstitutional.
The court found that such appointments violated the constitutional principle of judicial security of tenure and amounted to unconstitutional probationary appointments. The Ugandan Constitution does not allow for such a system for judicial officers.
Justice Monica Mugenyi, who wrote the majority judgment, said neither Article 142(1) nor Article 138(1) of the Constitution provides for the appointment of acting judges.
“The appointment of 16 judges of the High Court on an acting basis for two years is inconsistent with Articles 2, 128, 138, 142 and 144 of the Constitution and, to that extent, unconstitutional,” she wrote in 2022.
Justices Fredrick Egonda Ntende, Elizabeth Musoke and Christopher Gashirabake concurred. While the court ruled that the affected judges should not vacate their offices and that their judgments would not be affected, it ordered the JSC to regularize their appointments within six months.
The government appealed the decision, and the matter is now before the Supreme Court, which has yet to issue a final ruling on the constitutionality of appointing judges on a contract basis. The case was brought by Makerere University law professor Dr. Kabumba Busingye and lawyer Andrew Karamagi.
Justifying “Acting” Appointments
In defense of appointing judges in an acting capacity, former JSC Chairman Benjamin Kabiito argued in July 2023 that Article 147(a) empowers the JSC to advise the president on such appointments.
“Article 147(1)(a) grants the JSC the role of advising the President on appointments to offices, including judgeships, as well as their confirmation and disciplinary matters,” he said.
As of 2023, Museveni had appointed 27 High Court judges in an acting capacity. Kabiito justified these appointments as a way to assess the judges’ performance against key indicators to determine if they should be confirmed in their roles.
