The Supreme Court has issued an interim order staying the execution of orders of the Constitutional Court that a serving judge should resign before taking up any appointment for a new job in the executive or constitutional office.
The Constitutional Court, owing to a petition by deceased lawyer Robert Kasango ruled that it is illegal for judicial officers to be appointed to any office without first resigning as judges since it would be a contravention of the very constitution they took oath to uphold while requiring others to uphold.
Consequently, this affected the Electoral Commission chairperson, Justice Simon Byabakama, DPP Justice Jane Frances Abodo and the Judicial Service Commission chairperson, Justice Benjamin Kabiito who were ordered to vacate office since they are there illegally.
However, on Thursday, a panel of five Justices of the Supreme Court including the Chief Justice Alfonse Owiny-Dollo, Stella Arach-Amoko, Rubby Aweri Opio, Paul Mugamba, and Ezekiel Muhanguzi allowed the application for interim stay of execution of the Constitutional Court orders as requested for by the Attorney General.
“Given the application is substantially important, accordingly, we allow the application and allow an interim order staying the execution of the orders of the Constitutional Court. This order shall remain in force until the disposal of the substantive application or any other order,” the court said in a ruling read by Justice Paul Mugamba on behalf of the other justices.
Whereas the Electoral Commission chairperson, Justice Simon Byabakama, DPP Justice Jane Frances Abodo and the Judicial Service Commission chairperson, Justice Benjamin Kabiito had been ordered to vacate office owing to the judgment of the Constitutional Court, they have now been given a green light to return to office until the main case in which the Attorney General appealed against the judgment is disposed of by the Supreme Court.
The ruling also means that President Museveni has been given a green light to be sworn in since the Electoral Commission will now be fully constituted after its chairperson is allowed back into office.
The swearing in is set for May.
In 2016, Kasango dragged the DPP and the Attorney General to the Constitutional Court arguing that it was illegal, unconstitutional and causes a fusion between the executive and judiciary on top of undermining the independence of the judiciary and the separation of powers as enshrined in the constitution for judges to be appointed to other government positions without first resigning as judges.
Earlier this month, the Constitutional Court ruled that it is illegal for a judge to be appointed to any executive or constitutional office and that assuming the position without first resigning as judges is illegal.
“I would like to observe that judges and justices are still being assigned and or appointed to various executive and constitutional offices. The relevant authorities, especially the Judicial Service Commission must ensure that before a judge or justice takes up another appointment, he or she first resigns,” Justice Kenneth Kakuru said in the lead judgment.
“Judicial officers as custodians of justice must comply with this constitutional requirement. They must not be seen to be contravening the very constitution they took oath to uphold while requiring others to uphold it. Consequently, any appointment of a judicial officer to any executive or constitutional office prior to his or her resignation from the judiciary shall be null and void and his or her actions will be null and void.”