Alternative view about the Constitutional Court’s opinion over appointment of judges in acting capacity

In a split 4:1 majority decision, the Constitutional Court yesterday overturned and declared unconstitutional the appointment of 16 acting judges on a 2-year probationary basis upon a petition by two constitutional lawyers whose courage and tenacity I definitely applaud them for but quite disagree with the judicial opinion giving them victory for reasons other than what is in the court’s 30-page majority decision and the dissenting opinion of one of the justice.

At issue, the court was confronted with the constitutionality of judicial nominations (though the constitution speaks of appointments) in acting capacity as a constitutional overreach on the part of the executive in contravention of Articles 128, 138, 142 and 144 of the constitution. In my opinion of the law, the question that the court should have addressed before considering the merits of the petition is one that goes to the validity of the constitutional challenge and that of the exercise of the court’s own jurisdiction, in line with our nation’s constitutional framework under separation of powers.

Under our constitutional scheme, the framers of the constitution in order to ensure checks and balances and avoid concentration of powers in one branch of government, and preserve the equilibrium the constitution sought to establish, created a structure of separation of powers. While the executive makes judicial nominations at the recommendation and advice of the Judicial Service Commission, judicial confirmation in the exercise of legislative oversight and as a function of checks and balances, by our constitutional scheme is the sole mandate of parliament.

Bearing that in mind, may the two constitutionalists as petitioners have been capable of prematurely raising a constitutional challenge against what may be outrightly a constitutional overreach when the laid down structures as necessary tools designed to guarantee checks and balances and to prevent misuse of power by one branch, have not exercised their constitutional authority? In other words, veto power in matters of judicial appointments until exercised by the legislative branch as contemplated by our constitutional framers, resort to court action within a few hours of the executive appointments, even if it be irregular and unconstitutional, is not for the courts to step in except and until the legislature performs its constitutional duty.

I am of the opinion that the remedy for the petitioners should have been to walk to their representatives in parliament and hand them a legal brief to present to the appointments committee of parliament as to why they object to confirmations of the 16 nominees, aware that a nomination per se is only an expression of a wish and or a desire by the executive until a nominee is vetted and approved by parliament. What was the Constitutional Court to rescind at the commencement of the suit, absent judicial confirmation by the legislative branch?

If I may make a quick reference to President Barack Obama’s nomination in March 2016 of Merrick Garland for Associate Justice of the U.S Supreme Court, now serving as the current Attorney General of the U.S., whose nomination (I still wrestle with the use of the word appointment for a nomination!) was blocked by the Republican majority leader and prevented from appearing before the U.S Senate for his confirmation hearings. With that, we see how checks and balances were designed to operate, not by creating parallel channels of redress.

Without commenting on the substantive issues of constitutional interpretation that the petition may have presented, as a matter of procedure, it was nothing but moot and premature, insofar as it was instituted when the facts had not sufficiently concretized for the constitutional court to intervene in the exercise of its judicial powers. What would have happened had parliament resisted or objected to all the 16 nominees for whatever reason or no reason at all?  

It is unimportant and quite secondary in my view, that by the time of listening to oral arguments for and against the petition from either side, parliament had indeed confirmed the judicial nominations and that court by a majority view, took judicial notice of the act of parliament. Shouldn’t the constitutional court first and foremost have considered the source of its legal authority to intervene over matters that the framers of the constitution felt are within a separate co-equal branch of government to resolve?

In retrospect, had the constitutional court issued its decision ahead of parliament’s vetting by second-guessing how parliament would resolve the issue if confronted with the same legal question or that it would refer back to the nomination of the 16 judicial nominees to Judicial Service Commission, may the constitutional court not be said to have usurped and trespassed on the constitutional authority of parliament to vet judicial nominees? I would leave that to the petitioners to answer for themselves.

Otherwise, what is unmistakable considering the constitutional guardrails put in place by the framers of our constitution is that what the petitioners had in mind could have been real or imaginary fears that parliament in the exercise of its vetting power would act as a rubberstamp and therefore, they viewed court as the right forum to duplicate a power reserved to parliament by the constitution.

For these reasons, I favour in part and associate with the opinion of a single dissenting justice who was highly critical of the barebones/skeleton claim of the petitioners. As a parting shot, we may need to revisit a constitutional provision under Article 137 (3) that broadly allows any person to bring a constitutional petition asserting a violation of the constitution, absent proof of injury or individualized harm. After all, no harm no foul! There are sufficient constitutional mechanisms in place to act as checks and balances unless the framers of the constitution intended to make 40 million Ugandans potential petitioners, absent any injury.

James Tamale, is an Advocate of the High Court of Uganda. Author makes an express disclaimer that nothing herein contained should be construed as rendering legal advice.