Tc1cr,ran1s

Tclul'hor.c
"Administer"
0414 - 230537/9 (GENERAL)
0414-343841 (DI RECT)
ADM/52/02
ATTORNEY GENERAL'S CHAMBERS
P.O.Box 7183,
Kampala, Uganda
In any correspondence on .
THE REPUBLIC OF UGANDA
1hi s subject please quote No ... .. ............ ..... . .
21 June 2013
HE YOWERI K MUSEVENI
PRESIDENT OF_ .UGANDA
STATEHOUSE
ENTEBBE
YOUR EXCELLENCY,
RE: THE APPOINTMENT AND RETIREMENT OF THE CHIEF JUSTICE
His Lordship B J ODOKI vviU be retiring as Chief Justice of Uganda on the 23rci
June 2013. Upon the retirement ofHis Lordship B J ODOKI, there are two options
that can be taken, either to appoint another substantive Chief Justice or
appointment of an acting Chief Justice. Hence the issue of whether His Lordship B
J OPOKI, who will have retired can also be appointed to act as Chief Justice.
The appointment , and retirement of the Chief Justice is regulated by the
Constitution of the Republic of Uganda. Clause (1) of Article 142 of the above-
mentioned Constitution provides that the Chief Justice, the Deputy Chief Justice,
the Principal Judge, a Justice of the Supreme Comi, a Justice of Appeal and a
Judge of the High C9urt shall be appointed by the President acting on.theadvice of
the Judicial Service Commission and with the approval of Parliament. Atiicle 129
of the Constitution establishes four categories of Courts of judicature through
which the above-mentioned judges may exercise the judicial powers, narnely-
(a) The Supreme Court of Uganda;
(b) The Court of Appeal of Uganda;
(c) The High Court of Uganda and
(d) Such Subordinate Courts as Parliament may by law establish.
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And Article 130 adds-
"The Supreme Court shall consist of-
(a) The Chief Justice; and
(b) Such number of justices of the Supreme Court not
Being less than six, as Parliament may by law prescrit:.e."
Clause (3) of Article 131 elaborates as follows -
"The Chief Justice shall preside at each sitting of the Supreme
Court, and in the absence of the Chief Justice, the most se11ior
member of the court as constituted shall preside."
So not only does the Chief Justice exercise judicial functions of the Supreme Court
, but he does exercise administrative functions over the entire judiciary. Hence
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1 . Clause (1) of Article 133 that provides as follows-
/ "The Chief Justice-
(a) shall be the head of the judiciary and shall be
responsible for the administration and supervision of
all courts in Uganda and
(b) may issue orders and directions to the courts
necessary for the proper and efficient administration
of justice."
The following 1s therefore apparent from the above-quoted provisiOns of the
Constitution-
(i) that the President appoints a Chief Justice and other
Justices and judges acting on the advice of the Judicial
Service Commission and with the approval of
Parliament;
(ii) that besides being the Chief Justice, the Chief Justice is a
justice of the Supreme Court;
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(iii) that as the presiding officer at each sitting of the Supr e me
Court, the Chief Justice does exercise judicial povv r
through the Supreme Court; and
(iv) that the Chief Justice is the head of the judiciary and is
responsible for the administration and supervision of al l
Courts in Uganda.
The qualifications for the appointment of a Chief Justice or a Justice
of the Supreme Court are provided for by A1iicle 143 of the
Constitution. Clause (1) of 143 provides as follows-
"A person shall be qualified for appointment as-
(a) Chief Justice, if he or she has served as a justice oi"
the Supreme Court of Uganda or of a court having
similar jurisdiction or has practised as an advocate
for a period not less than twenty years before a court
having unlimited jurisdiction in civil and criminal
matters;
(b)
(c) a justice of the Supreme Court, if he or she has
served as a justice of Appeal or a judge of the High
Court or a court of similar jurisdiction to such a court
or has practised as an advocate for a period not less
than fifteen years before a court having unlimited
jurisdiction in civil and criminal matters;"
Thus for one to be appointed to act as a Chief Justice, he/she should
have either of the following qualifications-
(i) he/she having served as a justice of the Supreme Court
of Uganda or of a Court having similar jurisdiction; or
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(ii) having practised as an Advocate for a period not less 1han
twenty years before a Court having unlimited jurisdictj n
in civil and criminal matters.
And in order for one to be appointed a justice of the Supreme Court,
he/she should posses the following qualifications-
(i) he/she having served as a justice of Appeal, or
(ii) A judge ofthe High Court, or
(iii) A Court of similar jurisdiction to such a Court; or
(i v) Has pracLiceJ as an advocate for a period not less than
fifteen years before a Court having unlimited jurisdiction
in Civil and Criminal matters.
The tenure of office of the Chief Justice is defined by Article 144 of
the Constitution, the relevant part of which reads as follows-
"(i) A judicial officer may retire at any time after
attaining the age of sixty and shall vacate his or her
office-
(a) 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;"
Thus His Lordship Justice B J ODOKI is retlnng as Chief Justice
having attained the retirement age of seventy years.
The issue therefore is whether he can be appointed to act as Chief
Justice having attained the retirement age.
Clause (2) of Article 142 provides-
Where-
(a) The office of justice of the Supreme Court or a
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justice of Appeal or a judge of the High Cou.-t
is vacant;
(b) A justice of the Supreme Court or a justice f
Appeal or a judge of the High Court is for any
reason unable to perform the functions of his or
her office; or
(c) The Chief Justice advises the Judicial Service
Commission that the state of business in the
Supreme Court, court of Appeal or the High
Court so requires,
the President may, acting on the advice of the Judicial
Service Commission, appoint a person qualified for
appointment as a justice or the Supreme Court or a justice
of Appeal or a judge of the High Court to act as such a
justice or judge even though that person has attained the
age prescribed for retirement in respect of that office."
And Clause (3) of the same article adds -
"A person appointed under clause (2) of this article to act as
a justice of the Supreme Court or a justice of Appeal or a
judge of the High Court shall continue to act for the period
of the appointment or, if no period is specified, until the
appointment is revoked by the President acting on the
advice of the Judicial Service Commission, whichever is the
earlier."
Therefore although the Chief Justice has attained the retirement age of
seventy years and given the fact that he is a justice of the Supreme
Court the President may acting on the advice of the Judicial Service
Commission appoint His Lordship B J ODOKI to act as a Justice of
the Supreme Comi in spite of the fact that he will have attained the
retirement age of Seventy years. It is apparent that the qualifications
refened to in Clause (2) of Article 142 are the qualifications spelled
out by Article 143. The retirement age of seventy years is not the
qualification refened to in clause (2) of Article 142 because it is
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discarded under the above-mentioned clause. TI-IUS His Lordship 8 J
ODOKI can be re-appointed a Justice of the Supreme Court.
Clause (2) of Article 133 of the Constitution however provides-
"Where the office of the Chief Justice is vacant or where the
Chief Justice is for any reason unable to perform the
functions of his or her office, then until a person has been
appointed to and has assumed the functions of that office or
until the Chief Justice has resumed the of
those functions, those functions shall be performed by the
Deputy Chief Justice."
I t is apparent from the above-quoted provision that Clause (2) W()uld
come into play where there is a Deputy Chief Justice. Then, the
Deputy Chief Justice would be called upon to perfonn the
administrative duties of the Chief Justice. However in this case there
is no Deputy Chief Justice.
Clause (1) of Article 253 of the Constitution however provides-
"Where any person has vacated an office established by this
Constitution, that person may, if qualified, again be
appointed or elected to hold that office in accordance with
the provisions of this Constitution."
His Lordship B J ODOKI will be vacating the office of Chief Justice
having attained the age of seventy years. Since the appointment under
clause (2) is not affected the retirement age and since he is a justice of
the Supreme Court, he can be appointed a justice of the Supreme
Court under Clause (2) of Article 142. He will then thereafter be
appointed to act as Chief Justice under Article 253 of the Constitution.
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..
Accordingly JUSTICE B J ODOKI having been appointed as a Justice of the
Supreme Court under Article 142(2), he could be appointed Chief Justice under
Aliicles 14 2( 1) and 25 3 ( 1) of the constitution.
I do however recommend that a meeting be held with the entire Judicial Ser-vice
Commission with the objective of harmonizing the appointments with the
Commission.
Copy to: Rt Hon Prime Minister
Minister of Justice and Constitutional Affairs
Deputy Attorney General/Minister of State for Justice and
Constitutional Affairs
Solicitor General
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