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Full ULS Letter Advising Against Justice Odoki's Reappointment As CJ

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In line with our mandate under the Uganda Law Society Act to protect and assist the public in Uganda in all matters touching, ancillary or incidental to the law; and to assist the Government and the courts in all matters affecting legislation and the administration and practice of law in Uganda, we write to record our concern over the said appointment. Our concern is not aimed at targeting the eminent personality appointed, but rather is a record of our effort, at this stage, to draw attention to the unconstitutional appointment and a request for Parliament to take into account matters herein raised in considering the President\'s request to appoint Mr. Benjamin Odoki....
ULS/350/2013

The Rt. Honorable Speaker of Parliament

Parliament House

Parliament Avenue

P. 0. Box 7178 

KAMPALA

Dear Madam Speaker, 

14th August 2013

RE: APPOINTMENT OF HON. JUSTICE BENJAMIN ODOKI AS CHIEF JUSTICE OF UGANDA ON A TWO YEAR CONTRACT

We refer to the above matter.

We have come to learn that His Excellency, The President of Uganda has, acting under Articles 142(1), 143 and 253 of the Constitution of Uganda, appointed Mr. Benjamin Odoki as Chief Justice after he vacated office as Chief Justice sometime in June 2013, on a two year contract. We have also learned that Parliament has been requested to approve the said appointment.

In line with our mandate under the Uganda Law Society Act to protect and assist the public in Uganda in all matters touching, ancillary or incidental to the law; and to assist the Government and the courts in all matters affecting legislation and the administration and practice of law in Uganda, we write to record our concern over the said appointment. Our concern is not aimed at targeting the eminent personality appointed, but rather is a record of our effort, at this stage, to draw attention to the unconstitutional appointment and a request for Parliament to take into account matters herein raised in considering the President's request to appoint Mr. Benjamin Odoki.

Article 142(1) provides that "the Chief Justice, ... a justice of the Supreme Court ... shall be appointed by the President acting on the advice of the

Judicial Service Commission and with the approval of Parliament.

Article 143 provides that "A person shall be qualifie-d for appointment as . . . Chief Justice if he or she has served as a justice of the Supieme

Court of Uganda ... "

Article 253 provides that "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".

Our appreciation of the above provisions leads us to the conclusion that:-

a. The appointment of a Chief Justice is done by the President of Uganda.

b. The appointment is done on the advice of the Judicial Service Commission.

c. A person who has served as a justice of the Supreme Court qualifies for appointment to the office of Chief Justice.

d. A person who has vacated office may, if qualified, again be appointed to hold the office in accordance with the provisions of the Constitution.

While we do not dispute the prerogative of the President to make an appointment to the office of Chief Justice, it is clear that such appointment can only be lawfully done if the Judicial Service Commission has so advised. The unassailable conclusion is that if the Judicial Service Commission has not advised that a person be appointed to the office of Chief Justice, no appointment can be lawfully made by the President.

We do not dispute that service as a justice of the Supreme Court qualifies one for appointment to the office of Chief Justice, but we believe that such qualification does not cover those who have served and vacated office by command of the Constitution.

Suffice to note that, Article 144 which deals with the time-honored pivotal principal of 'tenure of office' commands a judicial officer to vacate office as Chief Justice on attaining the age of seventy years. Thus, once the Constitution requires one to vacate an office on account of attaining the prescribed age, that person is no longer qualified for appointment to the office of Chief Justice because attaining the prescribed age is a disqualification for appointment. To construe Article 143 in any other way would lead to the absurd effect of extending the age of vacating office to beyond the age of 70 years

by simply re-appointing an individual who is above 70 years.

It is our view that since a justice of the Supreme Court can, under Article 144(1) retire at the age of 60, such person if he or she has retired, can be re-appointed because that person remains qualified until he or she attains the age of 70 years, which is a disqualification.

While we do not dispute that appointments under Article 253 are provided for, in our view, such appointments are the exception and are qualified by two tests. The tests lie in the phrases a) "if qualified" and b) "to hold office in accordance with the Constitution".

In our view, qualifications include disqualifications and if age is a disqualification then one who has attained that disqualifying age cannot be said to be qualified. It is therefore not possible to hold an office "in accordance with the Constitution" if the same Constitution provides that one must vacate that office on attaining a prescribed age. To hold the office after one has become disqualified by age cannot satisfy the test that the office must be held "in accordance with the Constitution". In addition, to hold office without it being on the advice of the Judicial Service Commission cannot be to hold office "in accordance with the Constitution".

In our very humble but firm and well considered view therefore, the appointment of Mr. Benjamin Odoki to the office of Chief Justice of Uganda, in spite of the wealth of experience he brings raises serious constitutional issues.

We trust that Parliament will be emboldened to protect the Constitution of Uganda as required by Article 79(3) of the Constitution of Uganda.

Yours Sincerely,

Ruth Sebatindira

President Uganda Law Society

cc. The Attorney General of Uganda

KAMPALA

The Chairperson

Judicial Service Commission

KAMPALA

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